author: PER CURIAM.

text:
    R. Dale PETERSON and M. Kathy Peterson v. James L. LUCAS.
    2100077.
    Court of Civil Appeals of Alabama.
    March 11, 2011.
    R. Dale Peterson and M. Kathy Peterson, pro se.
    Submitted on appellants’ brief only.
   PER CURIAM.

R. Dale Peterson and M. Kathy Peterson appeal from an order granting James L. Lucas injunctive relief against the Pe-tersons in a property dispute.

The record indicates the following. In his civil action against the Petersons, Lucas alleged that a 1998 judgment (“the 1998 judgment”) entered in an earlier action had ordered the Petersons to grant Lucas a “permanent easement for ingress and egress” (“the easement”) to certain property. In the current action, Lucas claimed that, although he had asked the Petersons to execute a document granting the easement, they had failed to do so. At the time he filed the current action, Lucas was attempting sell the property accessed by the easement. He notified the Peter-sons that the property was for sale, and he told them that, if he received an offer on the property, he would give them the right of first refusal to purchase the property themselves, as required by the 1998 judgment.

In the current action, Lucas alleged that, after he advised the Petersons that he wished to sell the property accessed by the easement, the Petersons installed numerous fence posts along the easement and posted “unsightly” hand-made “no trespassing” signs on the fence posts. Lucas also alleged that the Petersons accumulated debris on their property along the side of the easement and that Dale Peterson had threatened Lucas’s real-estate agent after the agent posted a “for sale” sign on the highway near the property Lucas was selling.

In his complaint against the Petersons, Lucas asserted a number of claims, including, among other things, claims of nuisance, tortious interference with a business relationship, and the tort of outrage, for which he sought compensatory and punitive damages. Lucas also requested in-junctive relief, including requiring the Pe-tersons to execute a document granting the easement, requiring the Petersons to abate the nuisance they had created at or along the easement, and requiring the Pe-tersons to cease interfering with Lucas’s business relationships related to his attempts to sell the property accessed by the easement.

On August 2, 2010, after a hearing, the trial court entered an order requiring the Petersons to remove the fence posts and signs along the easement, to remove the brush pile and debris from the sides of the easement, to cease any other attempts designed to make Lucas’s property appear unappealing to potential purchasers, and forbidding the Petersons to communicate with Lucas’s real-estate agent. In the August 2, 2010, order, the trial court specifically reserved all other issues for future adjudication. The record indicates that litigation is continuing as to those issues.

After the August 2, 2010, order was entered, the Petersons filed a motion to stay or amend the order. A hearing was held on that motion, after which the trial court entered a supplemental order, which gave Lucas and his agents or guests the right to the unobstructed use of the easement and the right to maintain the easement. The supplemental order specified that all provisions of the August 2, 2010, order were to remain in full force and effect. The supplemental order was entered on September 2, 2010. On October 12, 2010, the Petersons appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), AIa.Code 1975.

The August and September 2010 orders are appealable under Rule 4(a)(1)(A), Ala. RApp. P., because they are interlocutory orders granting an injunction against the Petersons. See Jefferson County Comm’n v. Edwards, 49 So.3d 685, 689 n. 3 (Ala.2010); and Kish Land Co. v. Thomas, 42 So.3d 1235, 1236 n. 2 (Ala.Civ. App.2010). Rule 4(a)(1) requires appeals from an interlocutory order granting an injunction to be filed within 14 days of the date of the entry of the order or judgment being appealed. “ ‘ “The timely filing of a notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964[, 965] (Ala. Civ.App.1985). The failure to appeal within the prescribed time is fatal and requires the dismissal of the appeal. Id.’ Allen v. Independent Fire Ins. Co., 743 So.2d 490, 492 (Ala.Civ.App.1999).” Martin v. Phillips, 7 So.3d 1012, 1017 (Ala.Civ.App.2008).

As Lucas points out, the initial order granting him injunctive relief was entered on August 2, 2010, and the supplemental order that was entered in response to the Petersons’ motion to stay or amend the August 2 order was filed on September 2, 2010. We question whether the filing of the Petersons’ motion to stay or amend the August 2 order would have extended the 14-day period in which the Petersons had to appeal from the August 2, 2010, order. See Momar, Inc. v. Schneider, 828 So.2d 701, 706 (Ala.Civ.App.2001) (discussing the effect of a “postjudgment” motion on the timeliness of an appeal from an interlocutory order and quoting Appendix IV, Ala. R.App. P., which states, “A notice of appeal is required in appeals from those interlocutory orders enumerated in Rule 4(a)(1)(A), (B) and (C) and must be filed within 14 days (2 weeks) as provided in such rule.”). We need not reach that issue in this opinion, however, because the notice of appeal filed in this case was untimely, even as to the supplemental order, entered on September 2, 2010. Because both the August 2 and September 2 orders are interlocutory orders granting injunctive relief, the Petersons had 14 days from the entry of those orders to file their notice of appeal. Therefore, at the latest, the Pe-tersons had until September 16, 2010, to file a timely notice of appeal. However, they did not file their notice until October 12, 2010; therefore, this appeal is untimely. This court has no jurisdiction to consider an untimely appeal. Momar, Inc. v. Schneider, 828 So.2d at 707; Rule 2(a)(1), Ala. R.App. P. Accordingly, this court has no option other than to dismiss this appeal.

APPEAL DISMISSED.

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

BRYAN, J., recuses himself.


source: Caselaw Access Project

license: Public Domain

text:
    Floyd A. GANT and Renee F. Gant v. AZALEA CITY CREDIT UNION.
    2100111.
    Court of Civil Appeals of Alabama.
    March 11, 2011.

      David E. Hudgens and Alvin L. Moon of Hudgens & Associates LLC, Daphne, for appellants.
    Gregory B. McAtee, Mobile, for appel-lee.
   PER CURIAM.

Floyd A. Gant and Renee F. Gant appeal from a summary judgment entered by the Mobile Circuit Court insofar as it determined that the Gants had intentionally defrauded Azalea City Credit Union (“Azalea City”) and awarded it $100 in punitive damages. We reverse and remand.

The Gants borrowed $45,090 from Azalea City on January 28, 2009. In their loan application, the Gants listed 16 welding inverters as collateral for the loan. The Gants provided Azalea City with two purchase orders for the inverters, with each purchase order listing eight inverters. The purchase orders showed that the inverters had been ordered by and would be delivered to G-l Mechanical, Inc. (“G-l”), a corporation of which the Gants were president and vice president. The Gants later defaulted on the loan to Azalea City.

On April 20, 2010, Azalea City filed a complaint in the trial court, in which it claimed that the Gants had defaulted on the loan and that the Gants had fraudulently misrepresented their ownership of the inverters. Azalea City requested that the trial court award it $37,728.41, representing the balance of the loan, attorney fees, interest, and costs. Azalea City also requested that the trial court award it unspecified compensatory and punitive damages on its fraud claim. The Gants answered Azalea City’s complaint, denying all of its material allegations.

Azalea City moved the trial court for a summary judgment on July 6, 2010. In support of its motion for a summary judgment, Azalea City attached an affidavit of Deborah Chestang, the assistant manager of Azalea City. Chestang asserted in her affidavit that, at the time of the loan, the Gants had represented to Azalea City and had provided it with documentation indicating that the inverters were “paid for” and were “free and clear” of liens. Ches-tang further asserted that Azalea City had subsequently learned that the Gants had never paid for the inverters and that other parties already had a security interest in the inverters.

In response to Azalea City’s motion for a summary judgment, the Gants filed a cross-motion for a summary judgment on Azalea City’s fraud claim and, alternatively, moved the trial court to continue the hearing on Azalea City’s motion for a summary judgment. In their cross-motion for a summary judgment, the Gants alleged that Azalea City could not prove its fraud claim because, the Gants alleged, Azalea City could not have reasonably relied on any assertions by the Gants that they had already paid for or that they owned the inverters. The Gants argued that Azalea City could not prove reasonable reliance because the documentation — the purchase orders — provided to Azalea City by the Gants, and on which Azalea City claims it relied when it agreed to loan money to the Gants, showed that the Gants did not own the inverters at that time.

Azalea City later filed an affidavit of its attorney, Gregory B. McAfee, in which he stated that he had learned that the inverters had been delivered to G-l for only one day and then were reclaimed by the supplier. McAfee further asserted that G-l had obtained the inverters for only one day for a “dog and pony show” for a potential client.

Following a hearing, the trial court entered a summary judgment in favor of Azalea City on September 3, 2010. In its summary judgment, the trial court awarded $45,945.32 plus costs on Azalea City’s loan-default claim. The trial court further determined that the Gants had intentionally defrauded Azalea City and awarded Azalea City $100 as punitive damages. The Gants appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“Our review of a summary judgment is de novo. ‘A motion for summary judgment is granted only when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.’ Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply ‘the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. ‘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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Borders v. City of Huntsville, 875 So.2d 1168, 1176-77 (Ala.2003). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

On appeal, as in the trial court, the Gants challenge only Azalea City’s claim that they fraudulently misrepresented their ownership of the inverters to Azalea City. The Gants argue that Azalea City could not have reasonably relied on any alleged assertion by the Gants that they owned the inverters at the time they completed the loan application because, the Gants say, the written documentation supplied by the Gants refuted that assertion. The Gants assert that the purchase orders showed that G-l had recently purchased the inverters on a “Net 30” basis. The Gants maintain that, because the purchase orders showed that G-l owned the inverters, Azalea City could not have reasonably relied on any oral statements from them implying that they, as individuals, owned the inverters.

The elements of a fraudulent-misrepresentation claim are: “(1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation.” Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988). The Alabama Supreme Court expounded on the requirement that a party show that it reasonably relied on a misrepresentation in AmerUs Life Insurance Co. v. Smith, 5 So.3d 1200 (Ala.2008):

“This Court explained the reasonable-reliance principle in Torres v. State Farm [Fire ] & Casualty Co., 438 So.2d 757, 758-59 (Ala.1983):
“ ‘Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances. If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover. Bedwell Lumber Co. v. T & T Corporation, 386 So.2d 413, 415 (Ala.1980).
“ ‘ “If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, ‘volunti [sic] non fit injuria.’ ”3
“‘Munroe v. Pritchett, 16 Ala. 785, 789 (1849).’
“... [T]he reasonable-reliance standard imposes ... on a plaintiff a ‘general duty ... to read the documents received in connection with a particular transaction,’ Foremost [Ins. Co. v. Parham], 693 So.2d [409,] 421 [ (Ala.1997) ], together with a duty to inquire and investigate. ‘Fraud is deemed to have been discovered when the person either actually discovered, or when the person ought to or should have discovered, facts which would provoke inquiry by a person of ordinary prudence, and, by simple investigation of the facts, the fraud would have been discovered.’ Gonzales v. U-J Chevrolet Co., 451 So.2d 244, 247 (Ala.1984)....
“When reviewing a plaintiffs actions pursuant to the reasonable-reliance standard, this Court has consistently held that a plaintiff who is capable of reading documents, but who does not read them or investigate facts that should provoke inquiry, has not reasonably relied upon a defendant’s oral representations that contradict the written terms in the documents....
" 3 See Black’s Law Dictionary 1605 (8th ed. 2004), defining the maxim 'volenti non fit injuria' as '[t]he principle that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.’ ”

5 So.3d at 1207-08.

The purchase orders do not reflect ownership of, or an intent to purchase the inverters, by the Gants. They show an actual purchase of the inverters on credit by G-l, a separate entity. In its brief to this court, even Azalea City does not dispute that point. Azalea City simply argues that it could have reasonably relied on the oral statements of the Gants despite the documents showing that the Gants had not acquired the inverters, which is contrary to the law.

The parties disagree as to whether Azalea City could have discovered the true ownership of the inverters by checking Uniform Commercial Code (“UCC”) filings in the Secretary of State’s database. We find that disagreement to be immaterial. Regardless of whether the UCC filings would have given Azalea City additional information regarding G-l’s ownership, the fact remains that the documents in the possession of Azalea City already indicated that the Gants did not own the inverters, as they allegedly misrepresented.

The written information contained in the purchase orders provided to Azalea City by the Gants contained information that should have provoked an inquiry by Azalea City as to whether the Gants, in fact, owned the inverters at the time that they applied for their loan. Therefore, Azalea City could not have reasonably relied on the alleged representations by the Gants that they owned the inverters free of any liens. See Woodlawn Fraternal Lodge No. 525, F. & A.M. v. Commercial Union Ins. Co., O.M., 510 So.2d 162, 164 (Ala.1987) (“[T]he policy of the law is that it is unreasonable to rely on oral statements when one is in possession of written documents that would put one on notice as to the validity of oral statements. By the same token, the written documents put the party to whom oral representations were made in a position to discover the falsity of those representations, thereby putting him on notice as a matter of law that a fraud may have been committed.”). Absent proof of reasonable reliance, Azalea City cannot recover for fraud. See AmerUs Life Ins. Co., 5 So.3d at 1207-08.

Because Azalea City has not demonstrated that, as a matter of law, it reasonably relied on the representations of the Gants, the trial court erred in entering a summary judgment on Azalea City’s fraud claim. Therefore, we reverse the portion of the judgment of the trial court determining that the Gants had defrauded Azalea City, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . "Net 30” is a commercial term referring to a form of trade credit whereby a seller gives a purchaser 30 days after goods are shipped to pay an invoice for those goods. See Energy & Process Corp. v. Jim Dally & Assocs., Inc., 291 Ga.App. 772, 772, 662 S.E.2d 835, 837 (2008).

        . Azalea City maintains in its brief to this court that the Gants signed documents "authenticating” their statements of ownership of the inverters. The documents referenced in the brief do contain a description of the inverters as collateral for the loan as well as the signatures of the Gants, but the documents do not contain any statements regarding ownership of the inverters, as Azalea City asserts.

      . The evidence in the record shows that the Gants were officers of G-l. However, the record does not indicate that the Gants possessed an ownership interest in G-l, as Azalea City argues in its brief. At any rate, a corporation is a separate entity from its officers, and its ownership of property is not tantamount to the ownership of that property by its individual officers. Durbin v. Durbin, 818 So.2d 396, 400 (Ala.Civ.App.2000), rev'd on other grounds, Ex parte Durbin, 818 So.2d 404 (Ala.2001), on remand, 818 So.2d 409 (Ala.Civ.App.2001).


author: THOMPSON, Presiding Judge.

text:
    Joseph M. BRIDGES v. Renee Lynn BRIDGES.
    2090977.
    Court of Civil Appeals of Alabama.
    March 18, 2011.

      John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellant.
    Philip A. Thompson of Haygood, Cleveland, Pierce, Mattson & Thompson LLP, Auburn, for appellee.
   THOMPSON, Presiding Judge.

Joseph M. Bridges (“the husband”) appeals from a judgment finding him in contempt for his failure to comply with certain provisions of the 2005 judgment divorcing him from Renee Lynn Bridges (“the wife”). In addition to finding the husband in contempt, the trial court modified provisions of the 2005 divorce judgment.

The record indicates the following. The 2005 divorce judgment (“the 2005 judgment”) incorporated an agreement the parties had reached that settled all the issues in the case. The provisions of the judgment that are relevant to this appeal read as follows:

“9. LIFE INSURANCE: The Husband shall maintain through his employer a life insurance policy in an amount not less than $500,000 with the Wife named as the beneficiary thereon for so long as Husband is obligated to pay periodic alimony to the Wife as set out herein. The Husband shall pay all premiums on said policy and shall not cancel or allow said insurance to lapse. The Husband shall not mortgage, pledge, or encumber said insurance. The Husband shall furnish proof of said insurance to the Wife each year on the anniversary of this Consent Decree.
“11. FREQUENT FLIER MILES/DISCOUNT POINTS: Husband shall transfer to the Wife 50% of his existing frequent flyer/discount mileage points with the airlines; and 50% of his hotel discount points/bonus points. In the future, Husband shall convey to Wife 25% of all new frequent flyer/dis-count mileage points and hotel discount points/bonus points earned or accrued by Husband during the prior year. Commencing March 1, 2006, and continuing on March 1st each year thereafter, Husband shall provide to the Wife a photocopy of each and every account evidencing his accumulated frequent flyer/discount mileage points and his hotel discount points/bonus points. Husband shall execute whatever documents are necessary or required to allow Wife to use her 25% of each year’s accumulated points.
“18. ALIMONY: .... As additional periodic alimony, the Husband shall pay the sum of 25% of the gross sum of bonuses and commissions received by Husband under his employer’s Neptune Technology Group, Inc.’s ‘Management Incentive Plan’ (as defined by Husband’s employer for all covered management and staff); however, the same shall exclude Husband’s salary, stock, stock options or any other form of non-cash compensation received by Husband from Neptune Technology Group, Inc.”

In June 2008, the wife filed a petition for a rule nisi alleging, among other things, that the husband had failed to abide by the life-insurance, frequent-flier-mileage/hotel-discount, and periodic-alimony provisions of the 2005 judgment. The husband denied most of the wife’s allegations; however, he acknowledged that he owed the wife $3,000 in monthly periodic alimony, contending that he had been financially unable to pay it. The husband submitted documents that he said indicated that he had complied with the life-insurance and frequent-flier-mileage/hotel-discount provisions of the 2005 judgment. He also asserted that he had left his job with Neptune Technology Group, Inc. (“Neptune”) shortly after the parties divorced and that, therefore, he was under no obligation to pay the wife a 25% share of any bonuses he might receive. After a number of continuances, the trial court held a hearing on the matter on November 10, 2009. The husband lived out of the country, and he waived his presence at the trial; however, he was represented by-counsel.

The evidence was undisputed that the husband no longer worked for Neptune. At the trial, the wife refuted the husband’s assertion that, because he was no longer employed by Neptune, he was under no obligation to pay her any portion of bonuses he might receive from any other employer. The wife testified that, in entering into the agreement that was incorporated into the 2005 judgment, the parties intended that she would receive 25% of any bonuses paid to the husband, regardless, of who his employer was at the time. Neither party presented any evidence regarding the amount of money, if any, the husband had received in the form of bonuses since leaving his employment with Neptune.

The wife testified that when the husband provided her with proof that he had life insurance, the information she received from him did not indicate the beneficiary. She also testified that, since July 2008, she had not received proof that the husband had maintained a life-insurance policy naming her as the beneficiary.

The wife also testified that the husband had not deposited any frequent-flier points into her account since 2007, and, she said, he had never provided her with hotel-discount points. She asserted that the husband had not provided her with any documentation as to the frequent-flier points he had accumulated after 2007. The husband provided a document indicating that he had transferred frequent-flier points to the wife’s account in February 2008. However, there was no evidence in the record indicating that the husband had provided the wife with any points or proof of the number of frequent-flier points or hotel-discount points he had accumulated after February 2008.

After the trial, the trial court entered a judgment finding, among other things, that the husband was in contempt for failing to provide proof of an insurance policy naming the wife as the beneficiary, for failing to provide proof to the wife of the total amount of frequent-flier and hotel-discount points earned, and for failing to provide to the wife proof of any bonuses he had been paid for the three years preceding the entry of the judgment.

The trial court ordered the husband to provide the wife with proof that he had a $500,000 life-insurance policy naming the wife as a beneficiary and to continue to provide proof of the policy annually. The trial court further ordered the words “through his employer” in the first sentence of the life-insurance provision of the 2005 judgment — paragraph 9 — to be stricken. The trial court also ordered the husband to pay 25% of the gross sum of any bonuses or commissions he had received from his employer during the three years preceding the entry of the judgment. As to the periodic-alimony provision of the 2005 judgment — paragraph 18 — the trial court ordered the language “under his employer’s Neptune Technology Group, Inc.’s ‘Management Incentive Plan’ (as defined by Husband’s employer for all covered management and staff)” and “from Neptune Technology Group, Inc.,” to be stricken. The husband also was ordered to provide the wife with 25% of the frequent-flier and hotel-discount points he had earned in the three years preceding the entry of the judgment. The husband appeals.

The husband argues that the trial court abused its discretion by finding him in contempt for his alleged failure to comply with requirements that were not included in the 2005 judgment. This court’s standard of review in contempt cases is well settled.

“The issue whether to hold a party in contempt is solely within the discretion of the trial court, and a trial court’s contempt determination will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that its judgment is not supported by the evidence. Brown v. Brown, 960 So.2d 712, 716 (Ala.Civ.App. 2006) (affirming a trial court’s decision not to hold a parent in contempt for failure to pay child support when the parent testified that he had deducted from his monthly child-support payment the amount he had expended to buy clothes for the children).”

Poh v. Poh, 64 So.Sd 49, 61 (Ala.Civ.App. 2010).

“Rule 70A, Ala. R. Civ. P., has governed contempt proceedings in civil actions since July 11, 1994. Rule 70A(a)(2)(D) defines ‘civil contempt’ as a ‘willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.’ ”

Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ.App.2004). To hold a party in contempt under either Rule 70A(a)(2)(C)(ii) (criminal contempt) or (D)(civil contempt), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order. T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002).

Specifically, the husband contends that the 2005 judgment did not require him to maintain a life-insurance policy naming the wife as his beneficiary unless his employer offered the insurance. The husband also contends that, pursuant to the 2005 judgment, he was not required to pay the wife a 25% share of any bonus he received from any entity other than Neptune.

In analyzing whether the trial court abused its discretion in finding the husband in contempt in this case, we look first to the language included in the 2005 judgment.

“In R.G. v. G.G., 771 So.2d 490 (Ala.Civ. App.2000), this court stated:
“ ‘ “[A] settlement agreement which is incorporated into a divorce decree is in the nature of a contract.” Smith v. Smith, 568 So.2d 838, 889 (Ala.Civ. App.1990). A divorce judgment should be interpreted or construed as other written instruments are interpreted or construed. Sartin v. Sartin, 678 So.2d 1181 (Ala.Civ.App.1996). “The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them.” Id. at 1183. Whether an agreement is ambiguous is a question of law for the trial court. Wimpee v. Wimpee, 641 So.2d 287 (Ala.Civ.App.1994). An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ. App.1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id. Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous.
m:
771 So.2d at 494. See also Ex parte Littlepage, 796 So.2d 298, 301 (Ala.2001); Van Allen v. Van Allen, 812 So.2d 1276, 1277 (Ala.Civ.App.2001); and Granger v. Granger, 804 So.2d 217, 219 (Ala.Civ.App.2001).
“Alabama appellate courts have stated that a court will not look beyond the four corners of a written instrument unless the instrument contains latent ambiguities. E.g., Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala. 1982). ‘[A] latent ambiguity is one that “appear[s] only as the result of extrinsic or collateral evidence showing that a word, thought to have but one meaning, actually has two or more meanings.” ’ [Meyer v.] Meyer, 952 So.2d [384] at 392 [ (Ala.Civ.App.2006) ] (citing 11 Richard A. Lord, Williston on Contracts § 33:40, at 816 (4th ed.2003)).”

Judge v. Judge, 14 So.3d 162, 165-66 (Ala. Civ.App.2009). Moreover, “[i]f the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their ‘legal effect must be declared in the light of the literal meaning of the language used’ in the judgment.” State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000) (quoting Wise v. Watson, 286 Ala. 22, 27, 236 So.2d 681, 686 (1970)).

Here, the husband asserts that the plain language of the 2005 judgment does not obligate him to maintain a life-insurance policy for the benefit of the wife if he cannot obtain life insurance through his employer. The 2005 judgment states that the parties had reached an agreement as to all issues, and the trial court “adopt[ed] and merge[d]” that agreement into the 2005 judgment. Therefore, the 2005 judgment is in the nature of a contract, and we will construe it as we would any other document. The provision in paragraph 9 of the 2005 judgment regarding life insurance requires the husband to “maintain through his employer” a life-insurance policy with the wife as the named beneficiary. Giving the plain language of the phrase “maintain through his employer” its ordinary meaning, as we are required to do, we must agree with the husband that, under the 2005 judgment, he is not obligated to obtain a life-insurance policy for the benefit of the wife if the policy is not offered through his employer.

The next step in our analysis is to determine whether the husband complied with the terms of the 2005 judgment. Paragraph 9, regarding providing life insurance to the wife, provides that the husband “shall furnish proof of [life] insurance to the Wife each year on the anniversary date of this [judgment].” The husband argues that the wife had the burden to demonstrate that he had life insurance available to him through an employer after he left Neptune and that the wife had failed to meet that burden.

In J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001 (Ala.Civ.App.2007), the Phillips-es filed a petition for a rule nisi alleging that J.K.L.B. Farms had failed to comply with the terms of a July 8, 2003, judgment the trial court had entered against J.K.L.B. Farms.

“J.K.L.B. argued before the trial court that it has complied with the July 8, 2003, judgment to the extent to which it has the authority to do so. Thus, it asserted before the trial court its defense that it was unable to comply with the July 8, 2003, judgment. Stamm v. Stamm, 922 So.2d 920, 924 (Ala.Civ.App. 2004) (‘[T]he inability to comply with the trial court’s judgment is a valid defense in contempt proceedings.’). The trial court, after hearing the arguments of counsel, rejected that defense. The burden is on the party accused of contempt to demonstrate its inability to comply with the trial court’s judgment; the burden shifts only after the accused party presents sufficient evidence of lack of ability to comply with the trial court’s judgment. Carr v. Broyles, 652 So.2d 299, 301-02 (Ala.Civ.App.1994); Hitson v. Hitson, 412 So.2d 798, 800 (Ala.Civ. App.1982).”

J.K.L.B. Farms, 975 So.2d at 1008. See also Falkner v. State ex rel. Falkner, 769 So.2d 933, 935 (Ala.Civ.App.2000) (quoting Watts v. Watts, 706 So.2d 749, 751 (Ala. Civ.App.1997)) (“ ‘The inability to pay child support or alimony is a defense to contempt. When the accused presents evidence that he is unable to pay the ordered amount, the burden of proof is on the complainant to prove beyond a reasonable doubt that he can comply.’ ”); Summers v. Summers, 661 So.2d 243 (Ala.Civ.App.1995); and Morgan v. Morgan, 582 So.2d 1147, 1149 (Ala.Civ.App.1991).

In this case, the evidence was undisputed that the husband had not provided the wife with proof that he was maintaining a life-insurance policy for several years. The husband’s defense appears to be that he had not had the opportunity to obtain life insurance through an employer since leaving Neptune and, therefore, that he could not comply with paragraph 9. The holding in J.K.L.B. Farms, however, places the burden squarely on the husband as the party accused of contempt to prove his lack of ability to comply with the 2005 judgment. Our review of the record indicates that the husband presented no evidence on the issue whether he could obtain life insurance through his current employer. Accordingly, we conclude that the husband failed to meet his burden of showing his inability to comply with the 2005 judgment as to paragraph 9. Thus, the trial court’s determination that the husband was in contempt for failing to comply with the requirements of paragraph 9 is due to be affirmed.

The husband makes a similar argument for his contention that the trial court abused its discretion by finding him in contempt for failing to comply with the provisions of the 2005 judgment regarding sharing frequent-flier and hotel-discount points with the wife. Specifically, he argues that the wife had the “affirmative burden” of proving that he had, in fact, accumulated any points after 2007.

Paragraph 11 f the 2005 judgment provides that, “[cjommencing March 1, 2006, and continuing on March 1st each year thereafter, [the] Husband shall provide to the Wife a photocopy of each and every account evidencing his accumulated frequent flyer/discount mileage points and his hotel discount points/bonus points.” The husband also was ordered to transfer 25% of his annual accumulation of those points to the wife. The evidence was undisputed that the last time the husband had provided the wife with information regarding his frequent-flier and hotel-bonus points was in February 2008, when he provided her with documentation regarding the points he had accumulated in 2007.

The husband’s defense as to this issue is that he had not earned any points since that time and that the wife had failed to show otherwise. As was the case with the life-insurance issue, however, the husband bore the burden of demonstrating that he had not earned any other points and, therefore, that he could not comply with the 2005 judgment. J.K.L.B. Farms, 975 So.2d at 1008. The husband failed to produce any evidence indicating that he had not earned frequent-flier points or hotel-discount points; thus, he failed to meet his burden to demonstrate that he was unable to comply with the 2005 judgment. Thus, the trial court’s determination that the husband was in contempt for failing to comply with the requirements of paragraph 11 regarding frequenfiflier and hotel-discount points is also due to be affirmed.

The husband contends that the trial court abused its discretion in finding that he was in contempt for failing to comply with paragraph 18 of the 2005 judgment because, he says, he was not obligated to provide the wife proof of any bonuses he may have earned once he left Neptune and was not required to pay the wife a portion of any such bonuses.

Paragraph 18 requires the husband to pay the wife 25% of any bonus “received by Husband under his employer’s Neptune Technology Group, Inc.’s ‘Management Incentive Plan’ (as defined by Husband’s employer for all covered management and staff).” As was the case with the life-insurance provision of the 2005 judgment, the language used in paragraph 18 regarding the source from which the husband must pay the wife additional periodic alimony is clear and unambiguous. The literal meaning of that language requires that the husband’s obligation to provide the wife with information regarding bonuses he receives is limited to his employment with Neptune. Furthermore, because the language in paragraph 18 regarding the source of the bonuses the husband is required to share with the wife as periodic alimony is clear and unambiguous, any consideration the trial court may have given to the wife’s testimony regarding what she said were the parties’ intentions in reaching the agreement incorporated into the 2005 judgment was improper.

The wife acknowledged that the husband no longer worked for Neptune. Under the plain and ordinary meaning of the 2005 judgment, the husband was not required to pay the wife a portion of bonuses or commissions he may have earned from any other source. Thus, the husband did not fail to comply with the 2005 judgment by not providing the wife with proof of any bonuses he may have received after leaving his job with Neptune or for not paying her a portion of such bonuses, if any. Accordingly, the trial court abused its discretion in finding the husband in contempt for failing to comply with paragraph 18 of the 2005 judgment, and that portion of the trial court’s judgment is due to be reversed.

The husband contends that the trial court did not have the authority to strike any language from the 2005 judgment, which had the effect of modifying the judgment, because, he says, the wife did not request a modification in her pleadings, and the issue of modification was not tried by the consent of the parties.

Rule 15(b), Ala. R. Civ. P., states, in pertinent part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence .... The Court is to be liberal in granting permission to amend when justice so requires.”

Determining whether an issue has been tried by the express or implied consent of the parties within the meaning of Rule 15(b) is a matter that lies within the discretion of the trial court. Hathcock v. Hathcock, 685 So.2d 736, 738 (Ala.Civ.App. 1996) (citing McCollum v. Reeves, 521 So.2d 13 (Ala.1987)). The trial court’s determination as to whether an issue has been tried by consent will not be reversed on appeal absent an abuse of that discretion. Id.

“ ‘ “ ‘[I]f Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments.... We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.’ ” ’
“Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997), quoting Hayes v. Payne, 528 So.2d 333, 334 (Ala.1987), quoting in turn Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975).”

Advantage Sales of Alabama, Inc. v. Clemons, 979 So.2d 114, 118 (Ala.Civ.App.2007).

Our supreme court has recently addressed whether an issue had been tried by express of implied consent:

“1 “Rule 15(b) is not permissive: it provides that issues tried by express or implied consent shall be treated as if raised in the pleadings.’” Ammons v. Tesker Mfg. Corp., 853 So.2d 210, 216 (Ala.2002) (quoting Hawk v. Bavarian Motor Works, 342 So.2d 355, 358 (Ala. 1977) (emphasis added in Ammons)). See also Rule 54(c), Ala. R. Civ. P. (‘[EJvery final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.’).
“‘It is well settled law in Alabama that implied consent of the parties can be found when an opposing party fails to object to the introduction of evidence raising the disputed issue initially.’ Ho-sca, O. Weaver & Sons, Inc. v. Towner, 663 So.2d 892, 896 (Ala.1995). ‘If a party objects to the introduction of evidence at the trial on the ground that it is not within the issues framed by the pleadings, he must show that he would be actually prejudiced in maintaining his action or defense on the merits by the admission of the evidence.’ Hawk, 342 So.2d at 358 (emphasis added).
“‘“[Wjhether pleadings are deemed to be amended in order to conform to the evidence presented is also a matter within the discretion of the trial court,” and a decision in that regard will not be disturbed on appeal absent an abuse of discretion.’ International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1214 (Ala.1992) (quoting McCollum v. Reeves, 521 So.2d 13, 16-17 (Ala.1987)). ‘Failure to so amend “does not affect the result of the trial of these issues.” Therefore, any such “variance” cannot affect the result of this appeal.’ Whitfield v. Burttram, 471 So.2d 401, 405 (Ala.1985) (quoting Rule 15(b)).”

Scrushy v. Tucker, 70 So.3d 289, 314 (Ala. 2011).

In this case, the wife’s petition for a rule nisi asked that the trial court hold the husband in contempt for failing to comply with certain provisions of the 2005 judgment; she did not seek a modification of those provisions. As to the issue whether the husband was in contempt for failing to maintain a life-insurance policy naming the wife as a beneficiary, the parties argued over whether the husband had an obligation to provide that insurance during periods of unemployment. They did not litigate the issue whether the provision should be modified.

During the-wife’s testimony at trial regarding the language in paragraph 18 of the 2005 judgment that additional periodic alimony would be paid out of Neptune’s incentive plan, the wife’s attorney asked her whether she was asking the trial court “to disregard that language and interpret [it] to mean that [the husband] should pay any bonuses that he might receive from any employer.” The husband’s attorney objected as follows:

“Judge, if they are attempting to amend their pleadings by the evidence, I object to it. It’s never been brought to our attention before. We have been here only on a contempt on the four issues set out, and if they are trying to amend their pleadings through the evidence we would object to that.”

The trial court overruled the husband’s objection, saying, “That’s a legal argument that can [sic] disregard that — the language of the divorce, and I overrule that.” The trial court then went on to say that it recognized that the husband’s contention was that the husband’s obligations under the 2005 judgment were limited to the exact language of the 2005 judgment.

When the trial court entered its judgment finding the husband in contempt, it also ordered stricken the words “through his employer” in the first sentence of the life-insurance provision — paragraph 9 of the 2005 judgment. It also ordered stricken the language in paragraph 18 that read “under his employer’s Neptune Technology Group, Inc.’s ‘Management Incentive Plan’ (as defined by Husband’s employer for all covered management and staff)” and “from Neptune Technology Group, Inc.”

The husband filed a motion to alter, amend, or vacate the contempt judgment on the ground that the trial court had improperly modified the judgment by striking certain language in the 2005 judgment, thereby modifying the terms of that judgment. The trial court held a hearing on the issue. At the hearing, the husband argued that, in striking the language, the trial court had modified the 2005 judgment. However, the husband argued, the trial court had been asked only to interpret and enforce the terms of the 2005 judgment. The wife’s attorney acknowledged that, during the contempt trial, he had not sought a modification of the 2005 judgment. Instead, he said, the wife had asked the court to interpret the intent of the parties at the time they entered into their consent agreement, which was incorporated into the 2005 judgment. The wife argued that, in its contempt judgment, the trial court had merely interpreted the 2005 judgment and had not actually modified that judgment.

We agree with the husband that, in striking certain language from the 2005 judgment, the trial court went beyond merely interpreting the 2005 judgment; it modified the judgment to the extent that it changed the husband’s obligations. When the trial court removed the words “through his employer” from the life-insurance provision, the provision then required the husband to “maintain a life insurance policy” for the benefit of the wife, broadening the source from which the husband was obligated to obtain that insurance. Likewise, when the trial court removed from the periodic-alimony provision the explicitly defined plan from which the husband was to pay the wife, the provision obligated the husband to pay the wife a share of any bonuses he received from whatever source rather than from only the Neptune incentive plan, as stated in the 2005 judgment. By striking certain language from provisions in the 2005 judgment, the trial court went beyond merely interpreting the 2005 judgment and actually changed — i.e., modified — the obligations of the husband. It is fundamentally unfair to hold a party in contempt for failing to do something he or she was not required to do in the judgment to be enforced.

Based on the record before us, we conclude that the parties did not try the issue of modification of the 2005 judgment by express or implied consent and that, in the contempt judgment, the trial court did, in fact, modify certain provisions of the 2005 judgment. Because neither party sought a modification of the 2005 judgment, the trial court did not have the authority to modify that judgment. See State v. Cash, 739 So.2d 521, 522 (Ala.Civ. App.1999) (“Because the father did not request a modification of his child-support obligation or a reduction of his arrearage, and because the State did not consent, pursuant to Rule 15(b), Ala. R. Civ. P., to the trial of these issues, we conclude that the trial court had no authority to modify the child-support order or to reduce the amount of the arrearage.”). Therefore, those portions of the 2009 contempt judgment ordering language in the 2005 judgment to be stricken are due to be reversed.

For the reasons stated above, those portions of the judgment finding the husband in contempt for failing to comply with the life-insurance and frequent-flier/hotel-discount provisions of the 2005 judgment are affirmed. That portion of the judgment holding the husband in contempt for failing to provide the wife with information regarding bonuses he may have received after leaving Neptune and for failing to pay the wife a portion of those bonuses, if any, is reversed. The portions of the judgment ordering that certain language be stricken from the 2005 judgment are also reversed. This cause is remanded for the trial court to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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


text:
    STATE DEPARTMENT OF HUMAN RESOURCES v. Stephen P. BUSSMAN.
    2100066.
    Court of Civil Appeals of Alabama.
    March 25, 2011.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

This matter was initiated when J.H. (“the father”) filed in the DeKalb Circuit Court (“the trial court”) an action seeking to modify custody of his two minor children born of his marriage to A.J.M. (“the mother”). The father sought an award of emergency custody of the children, citing a concern that the children had been sexually abused while in the mother’s care. The trial court awarded the father pendente lite custody of the children.

Subsequently, in June 2009, the trial court awarded pendente lite custody of the children to the DeKalb County Department of Human Resources (“DHR”), and it ordered the parents to pay child support to DHR.

Also in June 2009, the trial court appointed Stephen P. Bussman as guardian ad litem to represent the children. The trial court later granted a motion to intervene filed by DHR, and DHR moved to have the father held in contempt for his failure to pay child support as required by the pendente lite order.

The trial court conducted a hearing on the merits. After presenting several hours of testimony, the parties reached an agreement, and, on June 23, 2010, the trial court entered a judgment incorporating the terms of that settlement agreement. In its June 23, 2010, judgment, the trial court awarded the mother custody of the children, awarded the father certain specified visitation, and denied DHR’s motion to have the father held in contempt.

On August 13, 2010, Bussman filed a motion seeking an award of an attorney fee for services he provided on behalf of the children. Four days later, the trial court entered an order granting Buss-man’s motion and awarding Bussman $4,000 as a guardian ad litem fee; the order specified that that fee was to be paid by DHR. On August 24, 2010, DHR filed an “objection” to Bussman’s motion. We note that, at the hearing on DHR’s “objection,” DHR’s attorney stated that she had not received the August 17, 2010, order. In response, the trial court stated that it considered DHR’s “objection” to be a post-judgment motion; accordingly, this court also treats DHR’s August 24, 2010, “objection” as a postjudgment motion. After receiving arguments, the trial court denied DHR’s motion. DHR timely appealed. DHR argues that the trial court had no jurisdiction to order it, as an agency of the state, to pay an attorney fee to Bussman. Bussman did not favor this court with a brief on appeal.

In State Department of Human Resources v. L.P., 586 So.2d 19 (Ala.Civ.App. 1991), this court held that DHR may not be compelled to pay the attorney fees for a nonindigent parent or for the guardian ad litem. The court explained:

“The law concerning the award of attorneys fees in Alabama is well settled. Attorneys fees are recoverable only where authorized by statute or case law, when provided for in a contract, or by special equity, such as a proceeding where the efforts of an attorney create a fund out of which fees may be paid. Shelby County Commission v. Smith, 372 So.2d 1092 (Ala.1979).
“Here, there was no statutory authority for the award of such attorneys fees against the department. The petition was not filed frivolously or without substantial justification; therefore, an award of attorneys fees under Ala.Code 1975, § 12-19-270 et seq., would not be available, nor can we find any case law which would support such an award. Further, there was no contract entered into by the department to pay for the father’s attorney’s fees or the guardian ad litem’s fees, and there was no equitable basis for such an award. We also note that the appellee did not suggest any legal basis for the award of attorneys fees, as he did not favor this court with a brief.”

State Dep’t of Human Res. v. L.P., 586 So.2d at 20.

In this case, the action before the trial court was one for modification of the custody provision of a divorce judgment. The award of the fee to the guardian ad litem was not provided for by contract, it is not authorized by statute, and there is no argument before this court that the award was warranted on an equitable basis. State Dep’t of Human Res. v. L.P., supra. Although pendente lite custody of the children was awarded to DHR for some period, there is no indication in the record on appeal that this matter was transferred to the juvenile court as a dependency action so as to allow the guardian ad litem to be paid by the state treasurer pursuant to § 15-12-21, Ala.Code 1975. See In re C.H., 723 So.2d 1277, 1279 (Ala.Civ.App. 1998) (reversing a judgment ordering DHR to pay a guardian ad litem’s fee when § 15-12-21 set forth a procedure by which the guardian ad litem could seek payment for his services from the state treasurer), and State Dep’t of Human Res. v. Estate of Harris, 857 So.2d 818 (Ala.Civ. App.2002) (reversing a judgment that, among other things, ordered DHR to pay a guardian ad litem fee, when § 26-2A-142, Ala.Code 1975, set forth the procedure by which the guardian ad litem could seek fees under the facts of that case).

Further, as DHR points out in its brief submitted to this court, an award such as the award of the guardian ad litem’s fee at issue in this matter is barred by Art. I, § 14, Ala. Const.1901. Haley v. Barbour County, 885 So.2d 783, 788-89 (Ala.2004); see also Ex parte Town of Loumdesboro, 950 So.2d 1203, 1214 (Ala.2006) (vacating that part of a judgment requiring the Alabama Department of Environmental Management to pay an attorney fee because it violated Art. I, § 14, Ala. Const.1901); and State v. Pullman-Standard Car Mfg. Co., 235 Ala. 493, 501, 179 So. 541, 547 (1938) (“No judgment is rendered for the costs of the trial in the circuit court, since no judgment can be rendered against the state.” (citing Collier v. Powell, 23 Ala. 579 (1853), and Ala. Const.1901, Art. I, § 14)); c.f. State v. Inman, 239 Ala. 348, 195 So. 448 (1940) (noting that although the State, as a defendant, may not be ordered to pay costs of a legal action, when the State is a plaintiff and the judgment is adverse to the State, costs may be taxed).

Under the facts of this case, the trial court lacked authority to order DHR to pay the guardian ad litem’s fees. Accordingly, we reverse the trial court’s judgment and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . The trial court’s failure to award Bussman an attorney fee did not affect the finality of its June 23, 2010, judgment. R.J.G. v. S.S.W., 42 So.3d 747, 750 n. 1 (Ala.Civ.App.2009); and Edwards v. Edwards, 999 So.2d 939, 941 (Ala. Civ.App.2008).

      . The trial court also indicated that the issue of an award of an attorney fee to Bussman had been raised before it entered its June 23, 2010, judgment on the merits.

      . The State Department of Human Resources and the county departments of human resources are state agencies for the putposes of sovereign immunity. Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277, 1279 (Ala. 1996).


text:
    R.L. v. J.E.R. and S.L.R.
    2100050.
    Court of Civil Appeals of Alabama.
    March 25, 2011.

      Jayme K. Amberson, Anniston, for appellant.
    Gerald 0. Sills of Stubbs, Sills & Frye, P.C., Anniston, for appellees.
   THOMPSON, Presiding Judge.

R.L. (“the mother”) appeals from a judgment of the Calhoun Juvenile Court terminating her parental rights to I.M.L. (“the child”). Six days after entering the judgment terminating the mother’s parental rights, the juvenile court entered a second judgment allowing J.E.R. and S.L.R. (“the adoptive parents”) to adopt the child.

The record indicates the following. The mother lives in Georgia. The child’s birth certificate indicates that he was born in Riverdale, Georgia, on January 30, 2009; the mother testified, however, that she believed the child was born on January 31, 2009. After the child was born, he lived with the mother in Georgia.

The mother testified that she became aware that an arrest warrant had been issued for her and that she was facing up to six months in prison for violating the terms of her probation. The mother testified that her aunt told her that the adoptive parents were unable to have children and wanted to adopt a baby. Because the mother was not getting along with her own mother at the time, she said, she agreed to allow the adoptive parents to have temporary custody of the child while she was in jail.

On August 29, 2009, the adoptive parents, who live in Piedmont, Alabama, traveled to Georgia to take physical custody of the child. On that day, the mother signed a document titled “Power of Attorney Delegating Parental Rights,” which allowed the adoptive parents to have custody of the child for six months unless earlier revoked by the mother. The mother’s signature does not appear on a separate document in the record titled “Single Parent Consent to Adoption,” and the mother testified that she did not intend for the adoptive parents to adopt the child. However, the adoptive parents testified that they believed the mother had intended for the arrangement to be permanent, and their intention at that time was to adopt the child. The adoptive parents returned to Piedmont with the child on August 29, 2009.

. The mother was incarcerated shortly after the adoptive parents took custody of the child. On September 17, 2009, the adoptive parents filed in the Calhoun Probate Court a petition seeking to adopt the child. The mother was served with the petition while she was still incarcerated in Georgia. The mother testified that she served about one month in jail for the probation violation. After the mother was released from jail, the probate court held a hearing on the matter of the child’s adoption. The mother attended the hearing and contested the adoption. On December 16, 2009, the probate court entered an order transferring the matter to the juvenile court “for further disposition.”

On June 3, 2010, the juvenile court held a hearing during which evidence was presented ore tenus. At the outset of the hearing, the mother moved to dismiss the proceedings because, she said, the child’s home state was Georgia; thus, she asserted, the juvenile court had no jurisdiction over the child. The juvenile court denied the mother’s motion to dismiss, stating that the issue of jurisdiction had not been raised in the probate court and noting that, at the time of the juvenile court hearing, the child had been in Alabama for nine months.

On September 9, 2010, the juvenile court entered a judgment finding that the child was dependent and terminating the mother’s parental rights. On September 15, 2010, the juvenile court entered a judgment granting the adoptive parents’ petition to adopt the child. On September 22, 2010, the mother filed a motion for relief from the judgment terminating, her parental rights pursuant to Rule 60(b)(4), Ala. R. Civ. P., on the ground that the judgment was void for lack of jurisdiction. Pursuant to Rule 59, Ala. R. Civ. P., she also filed a postjudgment motion to alter, amend, or vacate the judgment terminating her parental rights. The postjudgment motion to alter, amend, or vacate was deemed denied by operation of law on October 6, 2010. See Rule 1(B), Ala. R. Juv. P. We note, however, that a motion filed pursuant to Rule 60(b), Ala. R. Civ. P., is not subject to being denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; see also Ex parte Keith, 771 So.2d 1018, 1021 (Ala. 1998). Even though the juvenile court never ruled on the mother’s Rule 60(b)(4) motion, a motion filed pursuant to Rule 60(b) does not affect the finality of a judgment or suspend its operation. Ex parte R.S.C., 853 So.2d 228, 233-34 (Ala.Civ.App. 2002). Therefore, the mother’s appeal to this court was not premature and was timely filed.

The mother contends that the judgment terminating her parental rights to the child is void because, she says, Georgia is the child’s home state; thus, she asserts, the juvenile court did not have jurisdiction over the child. This action began with a petition for adoption, filed in the probate court. The jurisdiction of Alabama courts in adoption matters is set forth in § 26-10A-3, Ala.Code 1975, which provides:

“The probate court shall have original jurisdiction over proceedings brought under the chapter. If any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limit ed purpose of termination of parental rights. The provisions of this chapter shall be applicable to proceedings in the court having jurisdiction over juvenile matters.”

(Emphasis added.) The mother refused to consent to the adoption; therefore, pursuant to § 26-10A-8, the probate court was required to transfer the matter to the court having jurisdiction to determine whether the mother’s parental rights were due to be terminated.

Alabama has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at § 30-3B-101 et seq., Aa.Code 1975, to govern child-custody disputes involving, or potentially involving, more than one jurisdiction. A “child-custody proceeding” is defined in the UCCJEA to include not only divorce actions involving the custody of a child, but also, among others, “dependency, ... [and] termination of parental rights” actions in which the issue of child custody is addressed. § 30-3B-102(4). The term “child-custody proceeding” does not include an adoption proceeding. Id.

In D.B. v. M.A., 975 So.2d 927, 937 (Ala.Civ.App.2006), this court held that, in a consolidated adoption and custody case such as the case at bar, when a juvenile court must determine whether to terminate a parent’s parental rights before adoption proceedings can continue, the UCCJEA applies to the custody determination. Section 30-3B-201 of the UC-CJEA sets forth the following relevant requirements that must be met for a trial court to have subject-matter jurisdiction over a child-custody determination:

“(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) A1 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 30-3B-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.”

The UCCJEA defines “home state” as “[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” § 30-3B-102(7), Aa.Code 1975. The definition further notes that “[a] temporary absence of the child or any of the mentioned persons is part of the period.” Id.

At the time the adoption proceeding was initiated, aside from the child’s “temporary absence” from Georgia while he was in the adoptive parents’ custody, the child had lived with his mother in Georgia for six consecutive months immediately preceding the filing of the adoption petition, and the mother continued to live in Georgia during the child’s “temporary absence”; thus, Georgia was the child’s home state. See § 80 — 3B—102(7), Ala.Code 1975. Even if we were to consider the termination-of-parental-rights proceeding as a separate proceeding, the probate court transferred the matter to the juvenile court on December 16, 2009, approximately three and one-half months after the adoptive parents took the child from Georgia; thus, the child had not resided in Alabama for six consecutive months immediately preceding the litigation. Therefore, we conclude that Georgia was the child’s home state at the commencement of the proceedings. See § 30-3B-102(7).

Because Alabama was not the home state of the child, an Alabama court could not make an initial custody determination unless (1) Georgia had declined to exercise jurisdiction, (2) the child and at least one parent or person acting as the child’s parent had significant connections with Alabama, and (3) substantial evidence concerning the child’s care, protection, training and personal relationships was available for the Alabama court’s review. See § 30-3B-201(a)(2), Ala.Code 1975, (emphasis added). There is no evidence in the record to indicate that a Georgia court had declined to exercise jurisdiction over the issue of the child’s custody; thus, an Alabama court could not properly make a determination regarding the mother’s parental rights, which would necessarily involve an initial child-custody determination as to the child.

Based on the record before us and the authority cited earlier, we hold that the juvenile court did not have jurisdiction to terminate the mother’s parental rights. “Without subject-matter jurisdiction, any judgment entered in the action is void.” Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.2005). A void judgment will not support an appeal. T.B. v. T.H., 30 So.3d 429, 433 (Ala.Civ.App.2009). Accordingly, we dismiss the mother’s appeal as being from a void judgment, and we remand this cause to the juvenile court to vacate the judgment terminating the mother’s parental rights.

Although the mother did not explicitly appeal from the juvenile court’s judgment of adoption, this court must sua sponte recognize and address the juvenile court’s lack of subject-matter jurisdiction to enter that judgment, because “ ‘this Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.’ ” Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994)).

In Ex parte C.L.C., 897 So.2d 234, 238 (Ala.2004), our supreme court held that, generally, a juvenile court does not have jurisdiction to enter a judgment of adoption. The court in C.L.C. explained its holding as follows:

“ ‘ “Adoption is not merely an arrangement between the natural parents and adoptive parents, but is a status created by the state acting as parens patriae, the sovereign parent. Because the exercise of sovereign power involved in adoption curtails the fundamental rights of the natural parent[s], the adoption statutes must be closely adhered to.” ’ Ex parte Sullivan, 407 So.2d 559, 563 (Ala. 1981) (quoting Davis v. Turner, 337 So.2d 355, 360-61 (Ala.Civ.App.1976)).
“ ‘Once jurisdiction has attached in one court, that court has the exclusive right to continue its exercise of power until the completion of the case, and is only subject to appellate authority.’ Wesson v. Wesson, 628 So.2d 953, 953 (Ala.Civ.App.1993). ‘[W]hen [a] court has no power to sit, nor has general jurisdiction over that nature of proceeding or over the parties, it cannot make any effective order.’ Carter v. Mitchell, 225 Ala. 287, 292, 142 So. 514, 518 (1932).
“The ‘primary jurisdiction over adoption proceedings is in the probate court.’ B.W.C. v. A.N.M., 590 So.2d 282, 283 (Ala.Civ.App.1991). ‘[Ujnless [a] juvenile court acquire[s] jurisdiction over a petition to adopt by the “transfer” mechanism found in § 12-12-35, [Ala.] Code 1975,[] the juvenile court [is] without authority to grant an adoption.’ B.W.C., 590 So.2d at 283.
“The probate court kept exclusive jurisdiction over the issue of'whether or not to grant or deny the petition to adopt. Wesson, supra. The probate court, pursuant to the authority of § 26-10A-3, sent the case to the juvenile court for the strictly limited purpose of addressing the issue of termination of parental rights, and the juvenile court acquired only that limited jurisdiction over this particular case. See Martin v. Martin, 173 Ala. 106, 55 So. 632 (1911), Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941), and B.W.C., supra. The juvenile court did not acquire jurisdiction over the issue of whether to grant the petition to adopt, as that jurisdiction remained exclusively in the probate court. See Wesson and B.W.C., supra.
“Therefore, in purporting to grant the petition to adopt, the juvenile court exceeded its jurisdiction and entered only a void judgment. See State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538 (Ala.1977), Ex parte McKivett, 55 Ala. 236 (1876), and Knight v. Taylor Real Estate & Ins. Co., 38 Ala.App. 295, 83 So.2d 353 (1955). A related but independent analysis is that, in exceeding the limited mandate of the probate court, the juvenile court exceeded its jurisdiction and entered only a void judgment. See Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983), and Smith v. State, 852 So.2d 185 (Ala.Crim. App.2001).”

Ex parte C.L.C., 897 So.2d at 237-38.

In this case, no party to the adoption proceeding filed a motion to transfer the case to the juvenile court; therefore, § 12-12-35, Ala.Code 1975, the statute creating the “transfer” mechanism referred to in the quote above, is not applicable here. Pursuant to the authority of § 26-10A-3, the probate court sent the case to the juvenile court strictly for the limited purpose of addressing the issue of termination of parental rights, and the probate court retained jurisdiction over the adoption petition. Therefore, on the authority of C.L.C., we conclude that the juvenile court did not have jurisdiction to enter the judgment of adoption. Accordingly, that judgment is also void, and the cause is remanded for the juvenile court to vacate the adoption judgment as well.

APPEAL DISMISSED WITH INSTRUCTIONS TO JUVENILE COURT.

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

      . The judgment also terminated the parental rights of the child's father. The identity of the father was unknown; the child’s birth certificate, which is included in the record, does not include information regarding the father. Notice of the termination hearing was served by publication to any putative father. No one claiming to be the child's father has participated in these proceedings at any level.

      . Although it is not entirely clear from the record on appeal, from the mother’s testimony it appears that she had been placed on probation after a conviction for possession of marijuana.

      . The exception to the inability of a court to exercise jurisdiction when the prerequisites of § 30-3B-201 are not met is when a court exercises "emergency jurisdiction” under the UCCJEA. Section 30-3B-204(a), Ala.Code 1975, provides that an Alabama court "has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” The UCCJEA defines "abandoned” as "[l]eft without provision for reasonable and necessary care or supervision.” § 30-3B-102(l), Ala.Code 1975. In this case, the mother had made provision for the child’s reasonable and necessary care or supervision by making arrangements for the adoptive parents to have custody of the child while the mother was incarcerated and by executing the "Power of Attorney Delegating Parental Rights.” There is no allegation that the adoptive parents have abandoned the child or that the child has been mistreated, abused, or threatened with abuse while in the adoptive parents’ custody. Thus, the juvenile court’s "emergency jurisdiction” would not have been triggered in this case.

      . The "transfer” mechanism provided for in § 12-12-35 requires the filing of a motion by a party to the probate court adoption proceeding to transfer the action to the district court.