author: PER CURIAM. MURDOCK, Justice

text:
    Gene William CHESHIRE v. Pearl PUTMAN; Alexander Akins, a minor, by and through his legal guardian and parent, Steve Lewis Akins; and Morgan Akins, a minor, by and through her legal guardian and parent, Steve Lewis Akins. Allstate Electric Company, Inc. v. Pearl Putman; Alexander Akins, a minor, by and through his legal guardian and parent, Steve Lewis Akins; and Morgan Akins, a minor, by and through her legal guardian and parent, Steve Lewis Akins.
    1071678 and 1071679.
    Supreme Court of Alabama.
    July 23, 2010.

      Paul A. Miller of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for appellant Gene William Cheshire.
    R. Larry Bradford and Shane T. Sears of Bradford & Sears, P.C., Birmingham; and William H. Brooks and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant Allstate Electric Company.
    Garve Ivey, Jr., Jasper; and John E. Warren III, Jasper, for appellees.
   PER CURIAM.

In two separate appeals, Gene William Cheshire and Allstate Electric Company, Inc. (“Allstate Electric”), the defendants below, appeal the trial court’s judgment, entered following jury verdicts in the plaintiffs’ favor, and its subsequent denial of their renewed motions for a judgment as a matter of law (“JML”). We affirm in part, reverse in part, and remand.

Facts and Procedural History

Cheshire is an employee of Allstate Electric, an electrical contractor headquartered in Birmingham. On August 25, 2006, Cheshire, who lives in Hanceville, was in Jasper, working as a supervisor at an Allstate Electric job site. Cheshire, who is paid hourly, ended his workday at 3:30 p.m. Cheshire left the job site in his personal truck, which he uses in the course of his employment with Allstate Electric; Allstate Electric furnishes the gasoline for Cheshire’s truck. Cheshire was hauling a trailer behind his truck that did not belong to Allstate Electric. On his way home, Cheshire drove to a Home Depot building-supply store to buy drywall for his personal use. After leaving the Home Depot store, Cheshire stopped at a convenience store to purchase a soft drink. Leaving the convenience store, Cheshire began driving north on Highway 69 to Hanceville. Having worked for approximately eight weeks at the Jasper job site, Cheshire had driven Highway 69 numerous times. Cheshire testified that he was familiar with Highway 69 and knew that “on both sides of the road there are driveways and roads and places to turn all along the way.” Shortly after 4:00 p.m., Cheshire drove his vehicle into the back end of a vehicle being driven by Pearl Putman, who had stopped to make a left-hand turn off Highway 69. The force of the collision propelled Put-man’s vehicle forward, causing it to collide with a utility pole. Cheshire testified that “he didn’t realize the vehicle was stopped until the last minute.” Putman was stopped just over the crest of a hill.

Riding as passengers in Putman’s vehicle were two of her minor grandchildren, Alexander Akins and Morgan Akins (Put-man, Alexander Akins, and Morgan Akins are hereinafter referred to collectively as “the plaintiffs”). All three of the plaintiffs were injured in the accident. Morgan Akins, who was not wearing her seatbelt at the time of the accident, was the most severely injured; she suffered a traumatic brain injury. Putman suffered a fractured rib. Alexander Akins briefly lost consciousness and suffered cuts and bruises.

Cheshire stated that, before the impact, he was traveling between 55 and 60 miles per hour. Cheshire testified that he was not “paying that much attention” to whether Putman’s vehicle was in front of his truck on Highway 69 until he saw her vehicle stopped in the road about 50 yards ahead of him; Cheshire testified that he was “focusing on driving [his] car,” and not on which specific car was in front of him. Cheshire also testified that he knew that Highway 69 is a two-lane road with numerous intersecting driveways and crossroads. Cheshire stated that he was aware that a driver making a left turn off Highway 69 onto one of the numerous intersecting driveways or crossroads might have to come to a complete stop and wait for traffic to clear before proceeding. Cheshire stated that he misjudged the time he would need in order to stop his truck and trailer to avoid hitting Putman’s vehicle. Cheshire also testified that he was aware that it would take more time to stop his truck than it normally would because he was hauling a trailer. Cheshire stated that he was aware that he “would have to alter [his] driving habits to be more safe if [he was] pulling a trailer than if [he did not] have a trailer.” The Alabama state trooper who responded to the scene of the accident testified that he told Cheshire at the scene of the accident that, in his opinion, Cheshire was driving too fast considering the weight of the trailer he was hauling.

There was no evidence indicating that Cheshire was intoxicated, impaired, or driving erratically at the time of the accident. Charlotte Bates testified that she was driving behind Cheshire’s truck before the accident and that she saw nothing unsafe or unusual about his driving. Similarly, Audra Borden was also driving behind Cheshire’s truck at the time of the accident and testified that Cheshire showed no erratic behavior while driving and that he was not driving at an excessive speed.

The plaintiffs presented evidence indicating that there was sufficient room on the shoulder of Highway 69 for Cheshire to have maneuvered his truck off Highway 69 onto the shoulder, thereby avoiding the collision with Putman’s vehicle. Cheshire agreed that swerving off Highway 69 onto the shoulder would have been a prudent maneuver, but he stated that everything happened so quickly he did not have time to respond in that manner.

On August 29, 2006, the plaintiffs sued Cheshire and Allstate Electric. The plaintiffs alleged against Cheshire negligence and wantonness. The plaintiffs alleged against Allstate Electric negligent and wanton hiring, training, and supervision. The plaintiffs also sought to hold Allstate Electric vicariously hable for Cheshire’s allegedly negligent and/or wanton conduct.

The case went to trial in April 2008. At the close of the plaintiffs’ evidence, Cheshire and Allstate Electric each filed a motion for a JML on all the claims against them, which motions were denied. At the close of all the evidence, Cheshire and Allstate Electric each expressly renewed their motions for a JML. The trial court denied Cheshire’s motion for a JML. The trial court granted Allstate Electric’s motion for a JML as to the plaintiffs’ claim for wanton hiring, training, and supervision, but denied the motion as to the remaining claims against Allstate Electric.

The jury returned general verdicts in favor of the plaintiffs and against Cheshire and Allstate Electric on all claims. The jury awarded the plaintiffs damages, as follows: Putman was awarded compensatory damages in the amount of $25,000 and punitive damages in the amount of $25,000; Alexander Akins was awarded compensatory damages in the amount of $80,000 and punitive damages in the amount of $25,000; and Morgan Akins was awarded compensatory damages in the amount of $150,000 and punitive damages in the amount of $6,000,000. On May 28, 2008, the plaintiffs filed a motion for a new trial alleging, in pertinent part, that the compensatory-damages award to Morgan was inadequate.

Allstate Electric renewed its motion for a JML on the vicarious-liability claims against it arguing that the evidence that the accident occurred while Cheshire was acting in the scope of his employment with Allstate Electric was insufficient. Allstate Electric sought a JML on all claims seeking punitive damages because, Allstate Electric argued, punitive damages could not be awarded against Allstate Electric under § 6-11-27, Ala.Code 1975. Cheshire and Allstate Electric sought a JML on all claims seeking punitive damages because, they argued, the plaintiffs failed to present clear and convincing evidence of Cheshire’s wantonness. Alternatively, Cheshire and Allstate Electric sought a reduction in the punitive-damages award to Morgan Akins so that the award would comply with § 6-11-21, Ala.Code 1975, and with constitutional due-process limits. Cheshire and Allstate Electric did not move for a new trial.

The plaintiffs conceded that Morgan Akins’s punitive-damages award was excessive. The plaintiffs submitted a proposed order denying Cheshire’s and Allstate Electric’s renewed motions for a JML, reducing each of the plaintiffs’ punitive-damages awards, and permitting the plaintiffs either to accept the reduction of the punitive-damages awards or to elect a new trial. The trial court entered the plaintiffs’ proposed order as its judgment. The plaintiffs then elected a new trial. Cheshire and Allstate Electric separately appealed. The appeals have been consolidated for purposes of writing one opinion.

Standard of Review

In American National Fire Insurance Co. v. Hughes, 624 So.2d 1362 (Ala.1993), this Court set out the standard that applies to the appellate' review of a trial court’s ruling on a motion for a JML:

“The standard of review applicable to a ruling on a motion for JNOV [now referred to as a renewed motion for a JML] is identical to the standard used by the trial court in granting or denying a motion for directed verdict [now referred to as a motion for a JML], Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.”

624 So.2d at 1366 (citations omitted). Further, in Cessna Aircraft Co. v. Trzcinski, 682 So.2d 17 (Ala.1996), this Court held:

“The motion for a J.N.O.V. [now referred to as a renewed motion for a JML] is a procedural device used to challenge the sufficiency of the evidence to support the jury’s verdict. See, Rule 50(b), [Ala.] R. Civ. P.; Luker v. City of Brantley, 520 So.2d 517 (Ala.1987). Ordinarily, the denial of a directed verdict [now referred to as a JML] or a J.N.O.V. is proper where the nonmoving party has produced substantial evidence to support each element of his claim. However, if punitive damages are at issue in a motion for a directed verdict or a J.N.O.V., then the ‘clear and convincing’ standard applies. Senn v. Alabama Gas Corp., 619 So.2d 1320 (Ala.1993).”

682 So.2d at 19 (footnote omitted). “[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., 547 So.2d 870, 871 (Ala.1989). See § 12-21-12(d), Ala.Code 1975.

Discussion

First, Allstate Electric argues that the plaintiffs did not present substantial evidence that Cheshire was acting within the course and scope of his employment when the accident occurred. Allstate Electric cites Shaw v. C.B. & E., Inc., 630 So.2d 401, 404 (Ala.1993), for the general proposition that “[a]ccidents that occur while an individual is travelling to and from work are not considered to have arisen out of and in the course of employment.” However, Shaw goes on to acknowledge that “[a]n exception to this rule arises when the driver/worker’s transportation expenses constitute a part of the consideration paid for his services.” 630 So.2d at 404. Although it is undisputed that Allstate Electric pays for the gasoline for Cheshire’s truck, Allstate Electric, in its initial brief, does not address this exception.

In arguing that there was substantial evidence supporting Allstate Electric’s liability for Cheshire’s tortious conduct, the plaintiffs rely, in pertinent part, upon the fact that Allstate Electric pays for Cheshire’s gasoline for his truck, which he uses to travel to and from the job site. In reply, Allstate Electric concedes that there is an “exception to [the] rule that going to and from work is not in [the] course and scope of employment ... when [the] employer ‘reimburses [the employee] for travel expenses.’” Allstate Electric’s reply brief, at 7 (quoting Ex parte Shelby County Health Care Auth., 850 So.2d 332, 336 (Ala.2002)). However, because Allstate Electric itself pays for the gasoline for Cheshire’s truck, it argues that “Cheshire ... is not ‘reimbursed’ for gas expenses as is required to fall under the exception.” Allstate Electric’s reply brief, at 7. “We decline to consider an argument made for the first time in a reply brief.” City of Bessemer v. McClain, 957 So.2d 1061, 1079 (Ala.2006). At any rate, Allstate Electric does not explain why the distinction between direct payment and reimbursement of transportation expenses is material, and it cites no authority supporting such a conclusion. “This Court will not ‘create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.’ ” S.B. v. Saint James School, 959 So.2d 72, 89 (Ala.2006) (quoting Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992)).

Allstate Electric also argues, relying on Newsome v. Mead Corp., 674 So.2d 581 (Ala.Civ.App.1995), that Cheshire was engaged in a personal errand at the time of the accident and that he was not accomplishing any objective of Allstate Electric’s. Thus, Allstate Electric argues, Cheshire was not operating within the course and scope of his employment. In Newsome, an employee drove his personal vehicle from his place of employment to a restaurant to pick up food for himself and his coworkers. The employee was “on the clock” during this errand, and the employee’s supervisor gave him permission to run the errand. While on this errand, the employee was involved in an accident with another vehicle. The driver of the other vehicle sued the employee’s employer under the doctrine of respondeat superior. The employer moved for a summary judgment based on the employee’s and the employer’s affidavit testimony that the employee was not accomplishing any objective of the employer’s but was on a personal errand at the time of the accident. The trial court entered a summary judgment in favor of the employer. In a 3-2 decision, the Court of Civil Appeals affirmed the trial court’s judgment, holding that the plaintiff did not present substantial evidence in opposition to the employer’s motion for a summary judgment.

In the present case, Allstate Electric argues that Cheshire was not “on the clock” when the accident occurred; that Cheshire did not drive straight home from work, but stopped first at a Home Depot store to pick up supplies for a personal project and then at a convenience store to buy a soft drink before continuing home; and that Cheshire was driving his personal truck at the time of the accident. These facts, Allstate Electric argues, show that Cheshire, like the employee in Newsome, was on a personal errand at the time of the accident and, thus, was not operating within the course and scope of his employment. However, the present case is distinguishable from Newsome. Unlike Allstate Electric, the employer in Newsome provided no compensation for the employee’s use of his personal car. In contrast, Allstate Electric provided the gas for Cheshire’s personal truck.

Also, nothing in the record indicates that Cheshire was traveling a substantially different route home than he normally traveled when he drove home. Instead, it appears that Cheshire was taking the same route home he always did, whether or not he had made a stop or two for personal reasons.

We conclude that the plaintiffs presented substantial evidence indicating that Cheshire was operating within the course and scope of his employment with Allstate Electric at the time of the accident. Therefore, the trial court properly denied Allstate Electric’s renewed motion for a JML as to the issue of its vicarious liability for Cheshire’s conduct under the doctrine of respondeat superior.

Next, Cheshire and Allstate Electric argue that, as a matter of law, the plaintiffs are not entitled to punitive damages. Cheshire and Allstate Electric contend that the plaintiffs’ claims for punitive damages should not have gone to the jury because, they say, the plaintiffs did not satisfy their burden of proof of presenting clear and convincing evidence of Cheshire’s allegedly wanton conduct. Cheshire and Allstate Electric do not challenge the compensatory-damages awards on appeal.

In Cessna Aircraft Co., supra, this Court held:

“Section 6-ll-20(a), Ala.Code 1975, provides that punitive damages may be awarded in tort actions ‘where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in ... wantonness’ that caused injury to the plaintiff. ‘Clear and convincing evidence’ is defined in the Code:
“ ‘Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
“Ala.Code 1975, § 6-ll-20(b)(4).
“Thus, the ‘clear and convincing1 standard requires the trial judge to do more than merely determine whether the non-moving party has presented substantial evidence to support the claim for punitive damages. It is not the trial judge’s function when ruling on a directed verdict [now referred to as a JML] or J.N.O.V. [now referred to as a postver-dict JML] motion to weigh the evidence; rather, he must view the evidence in a light most favorable to the nonmoving party. If in viewing the evidence in that light the judge reasonably can conclude that a jury could find the facts in favor of the nonmovant and that the jury could be firmly convinced of that decision after considering the evidence in opposition, then the judge should deny the motion.
“ ‘Wantonness’ is defined by § 6-11-20(b)(3)as ‘[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.’ Furthermore, this Court has held on more than one occasion that ‘wantonness’ is not merely a higher degree of negligence; instead, it is a ‘qualitatively different tort concept of actionable culpability.’ Lynn Strickland Sales & Service Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987). While a party claiming wantonness does not have to prove an intent to injure, this Court has held that wantonness requires proof of some degree of conscious culpability. Yamaha Motor Co., Ltd. v. Thornton, 579 So.2d 619, 623 (Ala.1991). See also, Hamme v. CSX Transportation, Inc., 621 So.2d 281 (Ala.1993).”

682 So.2d at 19-20.

In Ex parte Anderson, 682 So.2d 467 (Ala.1996), this Court discussed wantonness in the context of operating a vehicle:

“What constitutes wanton misconduct depends on the facts presented in each particular case. Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371 (Ala.1989); Brown v. Turner, 497 So.2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence):
“ ‘Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury....
“ ‘Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. “Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.” McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913)....
“ ‘ “Willful and wanton conduct has a well-defined meaning at law. It is sometimes expressed in terms of ‘reckless disregard of the safety of another.’ Willful and wanton conduct should not be confused with negligence. It has been correctly stated that the two concepts are as ‘unmixable as oil and water.’
“ ‘ . Willfulness or wantonness imports premeditation, or knowledge and consciousness that the injury is likely to result from the act done or from the omission to act, and strictly speaking, is not within the meaning of the term ‘negligence,’ which conveys the idea of inadvertence, as distinguished from premeditation or formed intention.” ’
510 So.2d at 145-46 (citations omitted). See also, Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371 (Ala.1989).”

682 So.2d at 470.

This Court has also stated that “[i]f there is any evidence from which a jury can reasonably infer wantonness, the issue should be presented to the jury.” Sellers v. Sexton, 576 So.2d 172, 175 (Ala.1991) (citing McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988)). See also Clark v. Black, 630 So.2d 1012 (Ala.1993).

On appeal, Cheshire claims that the facts in this case are similar to the facts in Ex parte Essary, 992 So.2d 5 (Ala.2007), an automobile-accident case in which this Court held there was no evidence of wantonness. In Essary, the defendant was driving his vehicle west and approached an intersection where a stop sign obligated traffic traveling in her direction to stop and yield to traffic traveling north or south on the intersecting road. There was no stop sign halting the northbound or southbound traffic on the intersecting road. As the defendant proceeded through the intersection, his vehicle collided with a vehicle traveling north on the intersecting road. The driver and occupants of the northbound vehicle sued the defendant, asserting, among other claims, a claim of wantonness. The trial court entered a summary judgment in favor of the defendant on the wantonness claim. The plaintiffs appealed, and the Court of Civil Appeals reversed the trial court’s judgment. The defendant petitioned this Court for certiorari review of the Court of Civil Appeals’ decision. In reversing the Court of Civil Appeals’ decision, this Court held that, even when the evidence was viewed in a light most favorable to the plaintiffs, there was no evidence of wantonness on the defendant’s part:

“The evidence, viewed, as it must be, in a light most favorable to the plaintiffs, the nonmovants, shows that [the defendant] slowed to a ‘rolling stop’ at the intersection and attempted to cross the intersection between two moving vehicles. The plaintiffs’ characterization of [the defendant’s] attempt to cross the intersection between two vehicles as ‘accelerating’ after a ‘rolling stop’ to ‘shoot the gap’ does not elevate [the defendant’s] actual conduct — as observed by the plaintiffs — from the negligent failure to exercise good judgment to a wanton act constituting reckless indifference to a known danger likely to inflict injury. At best, the plaintiffs’ evidence shows that [the defendant] ,.. made an error in judgment when he attempted to ‘beat the traffic’ or ‘shoot the gap’ by passing between [two vehicles]....
“Although the evidence indicates that [the defendant] knowingly entered the intersection, there is nothing from which the trier of fact could infer that, in moving his vehicle through the intersection, [the defendant’s] state of mind contained the requisite consciousness, awareness, or perception that injury was likely to, or would probably, result....
“The facts here presented do not establish any basis from which to conclude that [the defendant] was not possessed of his normal faculties, such as from voluntary intoxication, rendering him indifferent to the risk of injury to himself when crossing the intersection if he collided with another vehicle. Nor is the act ... so inherently reckless that we might otherwise impute to [the defendant] a depravity consistent with disregard of instincts of safety and self-preservation. We therefore conclude that, as a matter of law, the plaintiffs failed to offer substantial evidence indicating that [the defendant] was conscious that injury would likely or probably result from his actions.”

992 So.2d at 12.

In the present case, a review of the evidence, viewed in a light most favorable to the plaintiffs, convinces us that the plaintiffs have not presented sufficient evidence as to each essential element of the claim of wantonness and to show a high probability as to the correctness of the conclusion that Cheshire’s operation of his vehicle amounted to “a wanton act constituting reckless indifference to a known danger likely to inflict injury.” Essary, 992 So.2d at 12. The plaintiffs' evidence indicates that Cheshire was familiar with the road on which the accident occurred, that Cheshire knew that vehicles were often stopped in the roadway waiting for traffic to clear in order to make a left turn, that Cheshire does not recall seeing Put-man’s vehicle in front of him before the accident, that Cheshire was aware that, in order to safely operate his truck while pulling a trailer, he needed to alter his driving habits, that Cheshire misjudged the distance it would take to stop his vehicle and the trailer, that maneuvering his vehicle onto the shoulder of Highway 69 would have been a prudent response if he had had the time to respond, and that a driver should keep a proper lookout while driving. The evidence is insufficient to produce in the mind of the trier of fact a firm conviction as to each essential element of wantonness, which requires some degree of conscious culpability. George v. Champion Ins. Co., 591 So.2d 852, 854 (Ala.1991). There is no evidence to convince a trier of fact that Cheshire consciously disregarded his familiarity with Highway 69 and operated his vehicle in such a manner that injury to someone was likely to occur. Cheshire’s familiarity with Highway 69, coupled with the fact that he caused an accident to occur, is not clear and convincing evidence from which a jury could reasonably infer that Cheshire operated his vehicle wantonly. Instead, as in Essary, the evidence merely establishes that Cheshire made an error in judgment. Therefore, the trial court erred in denying Cheshire’s and Allstate Electric’s motions for a JML as to the wantonness claim.

The plaintiffs also presented evidence of Cheshire’s conduct immediately following the accident. Specifically, the plaintiffs presented evidence showing that Cheshire did not check on the occupants of Putman’s vehicle and that he did not attempt to help in any way. However, such evidence is not germane to determining whether Cheshire was possessed of his normal faculties before or at the time of the accident. Therefore, such evidence is irrelevant to whether Cheshire was operating his vehicle wantonly at the time of the accident.

Cheshire and Allstate Electric also present arguments concerning the amount of the punitive damages, which are rendered moot in light of our holding that the trial court’s denial of Cheshire and Allstate Electric’s renewed motions for a JML was error as to the plaintiffs’ wantonness claim against Cheshire.

Conclusion

Based on the foregoing, we conclude that the trial court’s judgment is affirmed in part, reversed in part, and remanded. The plaintiffs presented substantial evidence that Cheshire was operating within the course and scope of his employment at the time of the accident; thus, we affirm the trial court’s judgment insofar as it held that Allstate Electric was vicariously liable for Cheshire’s conduct. However, the plaintiffs failed to present evidence sufficient to produce in the mind of the trier of fact a firm conviction as to each essential element of the claim of wantonness and a high probability as to the correctness of the conclusion that Cheshire was operating his vehicle in a wanton manner when the accident occurred; thus, we reverse the trial court’s judgment as to the plaintiffs’ wantonness claim against Cheshire. As a result, the punitive-damages awards are set aside. Further, Rule 50(d), Ala. R. Civ. P., grants us the authority to remand a case for the trial court to determine whether a new trial should be granted in a case in which the trial court’s denial of a motion for JML is reversed. Rule 50(d), Ala. R. Civ. P. (providing that, “[i]f the appellate court reverses the judgment [denying the motion for a JML], nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted”); see also State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 319 (Ala.1999) (holding that “Rule 50(d) grants us the authority to award the appellee a new trial in a case in which we reverse the trial court’s denial of a motion for JML”). Therefore, in light of the fact that the jury returned a general verdict in favor of the plaintiffs and our reversal of the trial court’s denial of Cheshire’s and Allstate Electric’s motions for a JML concerning the plaintiffs’ claim of wantonness against Cheshire, we remand this case to the trial court to determine whether to grant a new trial on the remaining issues.

1071678 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1071679 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result because of the manner in which the issue of payment of or reimbursement for transportation expenses to and from work appears to have been addressed in the trial court, but not in the appellant’s initial brief to this Court. In so doing, I do not wish to be understood as suggesting that the exception to the general rule (that an employee’s negligence while traveling to and from work does not subject an employer to vicarious liability) when the employee’s transportation expenses are paid or reimbursed, as it is described in the main opinion, is generally applicable to third-party respondeat-superior claims against employers. It appears that few, if any, cases, other than Shaw v. C.B. & E., Inc., 630 So.2d 401 (Ala.1993), apply this rule outside the workers’ compensation context, i.e., when an employer’s liability to a third party under common-law principles of vicarious liability is at issue. Even if this exception to the general rule were properly applicable to such non-workers’ compensation cases, it appears to be a rule applicable only under narrow circumstances. See generally Gilmore v. Rust Eng’g Co., 289 Ala. 46, 265 So.2d 591 (1972); Ammons v. McClendon, 263 Ala. 651, 83 So.2d 239 (1955); and 1 Terry A. Moore, Alabama Workers’ Compensation § 11.38 Payment of Travel Expenses (1998).

      . Section 6-1 l-27(a) provides:
      "A principal, employer, or other master shall not be liable for punitive damages for intentional wrongful conduct or conduct involving malice based upon acts or omissions of an agent, employee, or servant of said principal, employer, or master unless the principal, employer, or master either: (i) knew or should have known of the unfitness of the agent, employee, or servant, and employed him or continued to employ him, or used his services without proper instruction with a disregard of the rights or safety of others; or (ii) authorized the wrongful conduct; or (iii) ratified the wrongful conduct; or unless the acts of the agent, servant or employee were calculated to or did benefit the principal, employer or other master, except where the plaintiff knowingly participated with the agent, servant, or employee to commit fraud or wrongful conduct with full knowledge of the import of his act.”

      . Section 6-11-21(d) limits punitive damages in a personal-injury case to "three times the compensatory damages of the party claiming punitive damages or one million five hundred thousand dollars ($1,500,000), whichever is greater.”


source: Caselaw Access Project

author: THOMAS, Judge. THOMPSON, Presiding Judge, BRYAN, Judge,

license: Public Domain

text:
    Aletha Brown THOMAS v. Brian THOMAS.
    2071171.
    Court of Civil Appeals of Alabama.
    July 17, 2009.
    Stephen M. NeSmith of Riggs & NeS-mith, P.A., Montgomery; and J. Keith Rodgers, Montgomery, for appellant.

      C. Franklin Snowden III, Montgomery, for appellee.
   THOMAS, Judge.

Aletha Brown Thomas (“the wife”) appeals from a judgment entered by the Montgomery Circuit Court in favor of Brian Thomas (“the brother”) in her action to recover the proceeds of a life-insurance policy owned by John T. Thomas, Jr. (“the husband”). We affirm.

Facts and Procedural History

The husband and the wife were married in 1998. One child (“the child”) was born of the marriage. During the course of the marriage, the husband purchased a $500,000 term life-insurance policy and named the wife as the beneficiary. The policy did not contain any restrictions preventing the husband from changing the beneficiary of the policy. The monthly premiums on the policy were paid from marital funds. In late 2008, the parties separated and the husband filed for a divorce in the domestic-relations division of the Montgomery Circuit Court (“the family court”).

On March 17, 2004, the husband and the guardian ad litem appointed to represent the child jointly moved the family court to, among other things, enter a temporary restraining order (“TRO”) restraining the wife from removing any marital assets from the marital residence. The family court entered a TRO that, in pertinent part, restrained both the husband and the wife from “removing and disposing of any marital asset of the parties.”

After the entry of the TRO, the husband changed the beneficiary of the term life-insurance policy from the wife to the brother. The husband died while the divorce action was still pending in the family court and the TRO was still in effect. The insurance company paid the proceeds of the policy to the brother.

The wife filed an action in the Montgomery Circuit Court (“the trial court”) to recover the proceeds of the life-insurance policy. The wife claimed that the husband had violated the TRO by changing the beneficiary of the life-insurance policy. The wife asked the trial court to impose a constructive trust on the life-insurance proceeds and to declare the wife the true owner of the proceeds. The wife moved the trial court for a summary judgment, which the court denied. The wife then filed a motion for reconsideration, which the court also denied. The trial court also denied a second motion for summary judgment filed by the wife.

On July 8, 2008, the trial court heard evidence ore tenus and entered an order in favor of the brother, finding that because the term life-insurance policy was not a marital asset, the husband did not violate the TRO by changing the beneficiary of the policy. The wife timely appealed to the Alabama Supreme Court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. This court heard oral argument on May 7, 2009.

Issues

The wife presents two issues in her appeal: (1) whether the trial court erred when it held that the husband did not dispose of a marital asset in contravention of the TRO when he changed the beneficiary of the term life-insurance policy; and (2) whether the trial court erred in not imposing a constructive trust for the benefit of the wife on the proceeds of the life-insurance policy.

Standard of Review

The material facts are undisputed. “Because the issues before us involve only the application of law to undisputed facts, our review is de novo.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810 (Ala.2005) (citing Alfa Mut. Ins. Co. v. Small 829 So.2d 743, 745 (Ala.2002); and Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).

Analysis

This case presents a question of first impression: whether a party, by changing the beneficiary of a term life-insurance policy, violates a TRO restraining that party from removing or disposing of marital assets. The wife argues that a term life-insurance policy is a marital asset. In support of her argument, the wife analogizes term life-insurance proceeds to un-vested military-retirement benefits, citing Jackson v. Jackson, 656 So.2d 875 (Ala.Civ.App.1995). In that case, a plurality decision, this court held that unvested military-retirement benefits are marital assets, stating “one’s right to retirement benefits is a contractual right, subject to a contingency, and is a form of property.” 656 So.2d at 877. This court also cited approvingly to an opinion of the Court of Civil Appeals of Texas for the proposition that “the possibility of forfeiture did not reduce the [nonvested retirement] benefits to a mere expectancy.” Id. (citing Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968)). However, Alabama courts have long held that the beneficiary of a life-insurance policy does not hold a contingent contract right to the proceeds of the policy during the life of the insured but, instead, has only a mere expectancy. See Stephenson v. Westbrook, 286 Ala. 620, 624, 244 So.2d 569, 572 (1970) (“Where an insured has the right to change the beneficiary of his policy, a beneficiary has no vested right or interest under the policy but only an expectancy which becomes vested only upon the death of the insured.” (citing Flowers v. Flowers, 284 Ala. 230, 224 So.2d 590 (1969))); see also Barfoot v. Barfoot, 245 Ala. 593, 594, 18 So.2d 465, 465 (1944) (“The interests of the named beneficiary in a policy of insurance providing for a change of beneficiary at the will of the insured is a mere expectancy. The right of a named beneficiary, no change having been made in fact or legal effect, becomes a fixed, vested and legal interest, at the death of the insured.”); Wilkerson v. Gallahar, 24 Ala.App. 62, 63, 129 So. 799, 800 (1930) (“Ordinarily, a beneficiary named in a policy of life insurance has a mere expectancy, subject to change without notice by the insured.”); and McDonald v. McDonald, 212 Ala. 137, 141, 102 So. 38, 41 (1924) (“[T]he interest of the named beneficiary in a policy of insurance providing for a change of beneficiary at the will of the insured is a mere expectancy.”).

Other states that, like Alabama, follow the expectancy rule for life-insurance beneficiaries' have held that a term life-insurance policy is not a marital asset. In Metropolitan Life Insurance Co. v. Tallent, 445 N.E.2d 990 (Ind.1983), the Supreme Court of Indiana answered the following certified question from the United States Court of Appeals for the Seventh Circuit:

‘Whether an insured may change the designation of beneficiary of a group life insurance policy during the pendency of a marriage dissolution proceeding in which a temporary restraining order, which restrains the insured from “transferring ... or in any way disposing of any property except in the usual course of business or for the necessities of life,” is in effect.’ ”

Id. at 991. The court held that the TRO in effect in that case did not prevent the husband from changing the designated beneficiary. The court stated:

“In the case at bar, the [wife] had, prior to the change in beneficiary, a mere expectancy in the proceeds. Had there been life-time benefits associated with the policy, such as a cash surrender value, we believe under our statutory definition of property ... [the husband] would have been precluded by the restraining order from exercising those benefits in such a manner as to dispose of their value. However, even in that case, the restraining order would not have acted as a bar to the [husband’s] right to change the beneficiary of the policy.”

Id. at 993.

In Succession of Jackson, 402 So.2d 753 (La.Ct.App.1981), the Louisiana Court of Appeals considered whether a term life-insurance policy was community property. The parties in that case were subject to a restraining order that prohibited both parties from disposing of any community property they had acquired. The husband changed the beneficiary on two of his term life-insurance policies. The husband died while the restraining order was still in effect. The court held that the husband did not violate the terms of the restraining order. The court stated:

“In the matter before us both of the term life insurance policies ... were acquired during the existence of the community between [the wife] and [the husband]. Therefore, ownership of these policies belongs to the community existing between them. As such the community was entitled to all of the lifetime benefits attributable to a term life policy which, upon accrual of the policy as has occurred here with the death of [the husband], amounts to nothing.”

Id. at 757. The court then held, with respect to the term life-insurance policies:

“[The husband] had the authority in those policies to change the beneficiaries. The proceeds of a term policy acquired during the existence of the community do not constitute a community asset, as discussed above, but instead belong to the validly designated beneficiary. ... Not being a community asset, these proceeds did not come within the scope of the injunction protecting the community estate. Accordingly, the injunction was no bar to [the husband’s] policy right to change his beneficiary.”

Id. at 759.

In Lindsey v. Lindsey, 342 Pa.Super. 72, 492 A.2d 396 (1985), the Superior Court of Pennsylvania considered whether a husband had violated a preliminary injunction preventing him from disposing of any marital property when he changed the beneficiary designated of in his life-insurance policies. The court held:

“[W]e find that [the wife’s] interest as a beneficiary was nothing more than an expectancy. Her interest in the policies themselves was limited to their cash surrender value. Since a change in a beneficiary designation in a life insurance policy is not a conveyance or disposal of a marital asset, [the husband’s] decision to designate [another person] rather than [the wife] as his beneficiary did not violate the lower court’s injunction.... ”

342 Pa.Super. at 79, 492 A.2d at 399.

In Bell v. Bell, 896 S.W.2d 559 (Tenn.Ct.App.1994), the Tennessee Court of Appeals considered whether a husband had violated a restraining order prohibiting the husband from disposing of or removing any marital property or assets when he changed the beneficiary designated in his life-insurance policy. The Tennessee court first noted that “[i]t is settled in Tennessee that [the beneficiary of a life-insurance policy] has no vested right or interest in the policy but rather a mere expectancy.” Id. at 562. The court then reasoned that a restraining order prohibiting the husband in that case from “ ‘removing, selling, mortgaging, transferring, or in any other manner dissipating the property or assets of the parties’ ” was insufficient to prevent the husband from changing the beneficiary of his life-insurance policy. Id. at 564.

The wife in this case next argues that a term life-insurance policy is a marital asset because, she argues, the policy has a present value. In support of this argument, the wife cites In re Marriage of Gonzalez, 168 Cal.App.3d 1021, 214 Cal.Rptr. 634 (1985), in which the California Court of Appeals for the Third District held that a term life-insurance policy had present value and, therefore, was a marital asset. The court reasoned that a term life-insurance policy had value because the policy premiums might be lower than the premiums on a new policy. The court also reasoned that the right to renew the policy had value because the insured might have become uninsurable and, therefore, unable to obtain coverage at all.

California courts are split on the question of whether a term life-insurance policy is a marital asset. In In re Marriage of Lorenz, 146 Cal.App.3d 464, 194 Cal.Rptr. 237 (1983), the California Court of Appeals for the Second District held that term life-insurance was not marital property. That court reasoned that, “unlike whole life insurance, term life insurance is generally accepted as having no value, since once its term has expired it is worthless.” 146 Cal.App.3d at 468, 194 Cal.Rptr. at 239. The court went on to hold that “[t]he proceeds or benefits of the [term life-insurance] policy, of course, have a value. However, until those benefits are payable, the policy itself is worthless.” 146 Cal.App.3d at 468, 194 Cal.Rptr. at 239-40.

In Estate of Logan, 191 Cal.App.3d 319, 236 Cal.Rptr. 368 (1987), the California Court of Appeals for the First District analyzed and rejected the holding in Gonzalez, noting that, in reaching its holding, the Gonzalez court had “assumed [that] ‘undoubtedly the premium rate was very favorable’ and [that the] ‘husband was not required to establish medical eligibility for coverage,’ and [had] concluded, ‘We are confident the same policy today, assuming the husband is still insurable, would cost considerably more.’ ” Logan, 191 Cal.App.3d at 325, 236 Cal.Rptr. at 371. The Logan court then noted that there was no evidence cited in Gonzalez to support those assumptions. In this case, we similarly find no evidence in the record to support a conclusion that the husband had become uninsurable or that a replacement policy would have higher premiums. Thus, it would be purely speculative to determine that a term life-insurance policy has present value, and, thus, is a marital asset, on these grounds.

Because Alabama courts consider a beneficiary’s interest in the future proceeds of a life-insurance policy a mere expectancy, we are persuaded by the opinions of the courts of other jurisdictions that also follow that rule. We also find the reasoning expressed in Lorenz and Logan more consistent with this view of life insurance proceeds than the reasoning in Gonzalez. Thus, a term life-insurance policy is not a marital asset. As a result, the husband in this case did not violate the TRO, and the trial court’s judgment is due to be affirmed.

Conclusion

A term life-insurance policy is not a marital asset. Thus, the husband did not violate the TRO that prevented the removal or disposal of marital assets. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN, J., concurs.

THOMPSON, P.J., concurs in the result, with writing, which MOORE, J., joins.

BRYAN, J., dissents, with writing.

THOMPSON, Presiding Judge,

concurring in the result.

By deciding the issue whether a term life-insurance policy constitutes a marital asset, the main opinion goes further than I believe is necessary in resolving this appeal. Even if the term life-insurance policy at issue in this case constituted marital property, the husband’s change of beneficiary on the policy from the wife to the brother in no way constituted “removing and disposing” of that policy in violation of the trial court’s temporary restraining order.

Although it does not appear that either this court or our supreme court has addressed the question of what acts constitute removing and disposing of marital property in a case like the present one, courts in other jurisdictions have. See, e.g., Nicholas v. Nicholas, 277 Kan. 171, 83 P.3d 214 (2004); and Gleed v. Noon, 415 Mass. 498, 614 N.E.2d 676 (1993). In Gleed, the husband, who owned a life-insurance policy naming the wife as beneficiary, commenced an action for a divorce. While the action was pending, the probate court issued a temporary restraining order preventing the husband and the wife from, among other things, “ “withdrawing, transferring, conveying, assigning, spending, encumbering, pledging, bequeathing or otherwise divesting themselves of any assets in which they have acquired an interest during their marriage to each other and which are subject to division by [the Probate Court]....’” 415 Mass. at 499, 614 N.E.2d at 677. Following the entry of that order, the husband changed the beneficiary on the life-insurance policy from the wife to the parties’ daughter. Subsequent to changing the beneficiary of the life-insurance policy, the husband died. At the time of his death, the divorce action was still pending.

The wife sought a judgment from the probate court declaring that the husband’s change of beneficiary on the life-insurance policy was void because the change violated the terms of the temporary restraining order. After the wife received such a declaration from the probate court, the daughter appealed. Reversing the probate court’s judgment, the Supreme Judicial Court of Massachusetts held that the husband’s change of the beneficiary of the policy was not a violation of the probate court’s temporary restraining order. The court wrote:

“In this case the order did not specifically prohibit, restrain, or prevent the decedent from changing the beneficiary on any of his policies or accounts and the decedent could not have been guilty of contempt for doing so if he had survived. Absent a specific court order preventing or prohibiting the beneficiary change, the decedent had the right to change the beneficiary designation on the ... life insurance policy while retaining ownership in compliance with the injunction
“A change of beneficiary on a policy ... is not a conveyance, transfer, or disposal of the proceeds because they are not acquired until the death ... of the insured.... A beneficiary’s interest is a conditional interest subject to defea-sance until the death of the insured.... The beneficiary is only entitled to receive proceeds from a policy if the insured dies without changing the beneficiary designation.”

415 Mass. at 500, 614 N.E.2d at 678 (emphasis added). Thus, the Massachusetts appellate court concluded that, although the probate court’s order restraining the parties from disposing of marital property required the husband to retain ownership of the policy, it did not prohibit his changing the beneficiary on the policy.

The court in Nicholas, supra, reached the same conclusion as the Gleed court, but it provided a more detailed analysis as to why the changing of a beneficiary on a life-insurance policy does not constitute a disposal of the policy. In Nicholas, the husband owned a life-insurance policy that named the wife as the beneficiary. The wife filed for a divorce from the husband, and the trial court entered a temporary restraining order preventing the parties from disposing of assets. After that order was entered, but before a final judgment of divorce was entered, the husband changed the beneficiary of his life-insurance policy from the wife. Thereafter, and, again, before the entry of a divorce judgment, the husband died. Following the husband’s death, the wife asserted claims against the new beneficiary under the policy. The trial court entered a summary judgment in her favor, holding that the husband’s change of the beneficiary of the policy constituted a violation of the temporary restraining order. The husband’s executor appealed to the Supreme Court of Kansas, which reversed.

The court began by rejecting the executor’s argument that the life-insurance policy did not constitute a marital asset. However, it continued, the fact that the life-insurance policy was marital property does not mean that the change of the beneficiary of that policy constituted disposing of the policy. Instead, it concluded that the change of the beneficiary did not, in fact, constitute disposal of the asset. The court wrote:

“Within the context of estate planning, other courts have recognized that the purpose of statutes such as K.S.A. 2002 Supp. 60 — 1607(a)(1) is not to ‘freeze each party’s estate plan as of the date of the filing’ of the divorce action, rather it ‘is to forbid actions by either party that would dissipate the property of the marital estate or place it beyond the court’s adjudicatory power in the dissolution proceeding.’ Lonergan v. Strom, 145 Ariz. 195, 200, 700 P.2d 893 (Ct.App.1985). See Benson v. District Court, 57 Idaho 85, 91-92, 62 P.2d 108 (1936); Girardi v. Girardi, 140 A.D.2d 486, 487, 528 N.Y.S.2d 397 (1988); Lindsey v. Lindsey, 342 Pa.Super. 72, 76, 492 A.2d 396 (1985); Dyer v. Dyer, 87 S.W.2d 489, 490 (Tex.Civ.App.1935); In re Knickerbocker, 912 P.2d 969, 976 (Utah 1996).
“In this case, the restraining order did not limit the use or control of the property in question, at least in a way which affects the issues in this case. Thus, the question is whether [the husbandj’s actions disposed of the property. An appropriate test for this determination is that recognized in the above-cited cases: whether the action affected the value of the marital estate or placed the property outside the adjudicatory power of the court. [The husbandj’s action did not change the value of the marital estate and did not do anything that would prevent the court from having power over the property for purposes of property division.
“[The wife] ... had no vested interest in the insurance policy because ‘ “[a] beneficiary has only an inchoate right to the proceeds of a policy, subject to being divested at any time during the lifetime of the insured, by transfer, assignment, or change of beneficiary.”’ [Wear v. Mizell,] 268 Kan. [175,] at 178, 946 P.2d 1363 [ (1997) ] (quoting Hollaway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 [1976]). Had [the wife] and [the husband] not been parties in an action for divorce, [the husband] could have changed the beneficiary designation....
“Furthermore, had the divorce been granted before [the husband]’s death, [the wife]’s interest in the property and its value to the estate remained within the adjudicatory power of the court. Pursuant to K.S.A. 2002 Supp. 60-1610(b)(1), the district court would have had the power to divide the property, including granting the cash value or appropriate balances to [the wife], or to order [the husband] to change the beneficiary designations he had previously made....
“The Court of Appeals held [the hus-bandjs actions changed the value of the estate. It did change the value of the estate which [the wife] received upon [the husband]’s death. However, changing or designating a beneficiary did not change the cash value of the insurance policy or the account balances and, therefore, did not change the value of the marital estate for divorce purposes. The appropriate inquiry is only the impact upon the marital estate, and [the husband]’s beneficiary designations had no impact until his death. At that point, the divorce action abated and there remained no action for division of the marital estate.... [The wife] no longer had a vested interest in the property pursuant to K.S.A. 2002 Supp. 23-201.
“We hold that [the husband] did not dispose of property by ... changing the beneficiary on the life insurance policy. Under the provision of K.S.A. 2002 Supp. 60-1607(a)(l) allowing a court to issue an order providing for the use, management, and control of property, the district court had the power to prohibit [the husband] or [the wife] from making a change of beneficiary designation, but no such order was entered in this case.”

Nicholas, 277 Kan. at 182-84, 83 P.3d at 222-24.

I find the Kansas Supreme Court’s analysis in Nicholas persuasive on what, in my view, is the dispositive question at issue in this case, that is, whether the husband’s change of the beneficiary of his term life-insurance policy from the wife to the brother constituted removing and disposing of the policy. In the present case, regardless of whether the insurance policy constituted a marital asset, the husband’s change of beneficiary did not deprive the parties of the policy, because the husband continued to own the policy, the value of the policy had not been diminished, and, to the extent the insurance policy did constitute a marital asset, the trial court hearing the divorce action retained control over the insurance policy for purposes of the final division of the marital property. As a result, the husband’s change of the beneficiary of the policy to his brother did not constitute removing and disposing of the insurance policy, and the question whether that policy constituted a marital asset need not be resolved.

Were this court to resolve the appeal on the narrower ground of whether a change of beneficiary in a term life-insurance policy constitutes removing and disposing of the insurance policy, we would, rightfully in my view, leave open for another day the question whether, in circumstances such as those presented in the present case, one party’s failure to maintain ownership of an insurance policy (rather than merely changing the beneficiary of that policy) constitutes the transfer and disposal of a marital asset. For that reason, I concur in the result.

MOORE, J., concurs.

BRYAN, Judge,

dissenting.

I respectfully dissent. In my opinion, the term life-insurance policy constituted a marital asset, and the temporary restraining order (“the TRO”) entered in the divorce action involving Aletha Brown Thomas (“the wife”) and John T. Thomas (“the husband”) prohibited the husband from changing the beneficiary of the term life-insurance policy from the wife to Brian Thomas (“the brother”). Therefore, I would reverse the trial court’s judgment, which holds that the term life-insurance policy is not a marital asset.

No Alabama case has specifically addressed the issue whether a term life-insurance policy constitutes a marital asset. To support its conclusion that a term life-insurance policy does not constitute a marital asset, the main opinion relies on cases decided in other jurisdictions, which, obviously, do not constitute binding precedent in Alabama. Although this court can follow cases decided in other jurisdictions if they are not contrary to precedent of the Alabama Supreme Court, I do not find the cases relied upon by the main opinion to be persuasive.

In my opinion, the contingent right to receive the proceeds of a term life-insurance policy is analogous to the contingent right to receive payment of unvested military-nondisability-retirement benefits, which has been held to constitute a marital asset subject to division in a divorce action in Alabama. See Jackson v. Jackson, 656 So.2d 875, 877-78 (Ala.Civ.App.1995) (plurality decision).

In Jackson v. Jackson, a plurality of this court held that the contingent right to receive payment of unvested military-non-disability-retirement benefits is a marital asset subject to division in a divorce action even though the right to receive those benefits is subject to forfeiture and, therefore, might never occur. In pertinent part, this court stated:

“We believe the better view ... is that military nondisability retirement pay, whether or not vested, constitutes a marital asset subject to division upon the dissolution of the marriage. See, e.g., In re Marriage of Harrison, 13 Kan.App.2d 313, 769 P.2d 678 (1989); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Poe v. Poe, 711 S.W.2d 849 (Ky.App.1986); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (S.Ct.N.M.1969); Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968); and In re Marriage of Brown, 15 Cal.3d 838, 544 P.2d 561, 126 Cal.Rptr. 633 (1976).
“We believe that a benefit right, whether or not it is vested, constitutes an asset that should be shared and, therefore is subject to division upon divorce. The Court of Civil Appeals of Texas held in Mora, supra, that retirement benefits were not gratuities, but earned property rights. There, the husband had not retired from military service, but had completed over 25 years of service with over 14 of those years being served during the marriage. The court held that the husband obtained a property right, even though the vested benefits were not payable at the time of the divorce and might never be received if the husband was dishonorably discharged or died before his actual retirement. The court pointed out that the possibility of forfeiture did not reduce the benefits to a mere expectancy, but instead made them subject to division as property.
“Further, in LeClert, supra, the Supreme Court of New Mexico approved the award of an interest in military retirement benefits of the husband as community property. There, as here, the retirement payments were contingent on the husband’s completion of service, and his right to them would not vest until after the termination of the marriage. Likewise, in Miser, supra, the Texas Court of Civil Appeals upheld a division of retirement pay where the husband had served approximately 18 and one-half years in the military at the time of the divorce. The court held that if the husband served at least 20 years, the retirement benefit that accumulated during the marriage would be community property.
“We hold that one’s right to retirement benefits is a contractual right, subject to a contingency, and is a form of property. A contrary holding would produce inequitable results.”

656 So.2d at 877 (emphasis added); see also Mosley v. Mosley, 747 So.2d 894, 901 (Ala.Civ.App.1999) (recognizing that lawsuit claims and counterclaims are assets and liabilities, respectively, to be divided in a divorce despite their contingent nature).

Moreover, I agree with the conclusion of the California District Court of Appeal in In re Marriage of Gonzalez, 168 Cal.App.3d 1021, 214 Cal.Rptr. 634 (1985), that, even though a term life-insurance policy has no cash surrender value, it has economic value while the insured is alive because it provides insurance coverage during its term that might otherwise be more expensive or unavailable altogether due to the insured’s advancing age or declining health. Accordingly, I would hold that the right to receive the proceeds of a term life-insurance policy is an asset within the meaning of the TRO despite its contingent nature. Moreover, because the evidence is undisputed that the premiums for the term life-insurance policy were paid with marital funds, I would hold that it was a marital asset subject to division in the divorce action and thus was subject to the TRO.

Furthermore, I do not agree with the position expressed in the other special writing that the husband’s changing the beneficiary of the term life-insurance policy did not constitute “removing” or “disposing” of the term life-insurance policy and that it, therefore, did not violate the TRO. By changing the beneficiary of the term life-insurance policy from the wife to the brother, the husband “disposed” of the wife’s contingent right to receive the proceeds of the term life-insurance policy. Therefore, in my opinion, he violated the TRO when he changed the beneficiary of the term life-insurance policy from the wife to the brother.

      . Because we affirm the trial court's judgment determining that the husband did not violate the TRO, we do not need to address the issue whether the trial court should have imposed a constructive trust on the life-insurance proceeds.

      . We note that it is well within the power of a trial court to include in a TRO a requirement that a spouse maintain or obtain a life-insurance policy with the other spouse named as beneficiary, if requested. However, in this case, there was no such request and the TRO did not contain any such requirement.

      . In fashioning divorce judgments, trial courts often include provisions requiring a spouse to insure his or her life for the benefit of the other spouse or the minor children born of the marriage. Thus, a term life-insurance policy that is in existence when the divorce action is initiated may also have value, despite its contingent nature, because it facilitates the fulfillment of such a provision. Moreover, the utility of existing term life-insurance policies in fulfilling such provisions further justifies the conclusion that the term "marital asset” encompasses existing term life-insurance policies when it appears in a temporary restraining order entered to maintain the status quo in divorce actions pending the entry of a final divorce judgment.
      In addition, provisions in term life-insurance policies providing that they can be converted to whole life-insurance policies can also confer value on a term life-insurance policy despite its contingent nature, although the page containing the convertibility provision of the policy at issue in the action now before us is not in the record.


author: SMITH, Justice. COBB, Chief Justice

text:
    Ex parte Aletha Brown THOMAS. (In re Aletha Brown Thomas v. Brian Thomas).
    1081447.
    Supreme Court of Alabama.
    July 16, 2010.
    Stephen M. NeSmith of Riggs & Ne-Smith, P.A., Montgomery; and J. Keith Rodgers, Montgomery, for petitioner.

      C. Franklin Snowden, Montgomery, for respondent.
   SMITH, Justice.

Aletha Brown Thomas (“the wife”) sued her brother-in-law Brian Thomas (“the brother”) in the Montgomery Circuit Court seeking to recover the proceeds of a term life-insurance policy owned by John T. Thomas, Aletha’s husband (“the husband”). After a bench trial, the trial court entered a judgment in favor of the brother. The wife appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. Thomas v. Thomas, 54 So.3d 346 (Ala.Civ.App.2009). We granted the wife’s petition for certiorari review.

Facts and Procedural History

At issue in this case are the proceeds from a 30-year term life-insurance policy (“the policy”) the husband purchased on himself while he was married to the wife. In 1998 the husband and the wife married, and, in 2001, the husband purchased the policy and named the wife as the beneficiary.

Sometime in late 2003 or 2004 the husband filed for a divorce from the wife in the domestic-relations division of the Montgomery Circuit Court (“the family court”). While the divorce action was pending, the family court, at the request of the husband and the guardian ad litem appointed to represent the couple’s child, issued a temporary restraining order (“TRO”), stating, among other things, that “both parties are restrained from removing and disposing of any marital asset of the parties.” When the divorce action was still pending and the TRO was still in effect, the husband changed the beneficiary of the policy from the wife to the brother. Several months after the husband named the brother as the beneficiary of the policy and while the divorce action was pending, the husband died. The brother subsequently filed a claim under the policy, and the insurance company provided him with the proceeds of the policy.

The wife then filed the underlying separate action against the brother in the Montgomery Circuit Court (“the trial court”) “seeking a declaratory order or decree by [the trial court] that she is the true beneficiary and owner of the proceeds of the [policy].” In the complaint, the wife also sought the creation of a constructive trust on the proceeds on the policy for her benefit. The wife claimed that she is entitled to the proceeds of the policy because, she said, the policy was a marital asset of a type the husband was enjoined from removing or disposing of under the terms of the TRO issued by the family court; she also claimed that the brother had been unjustly enriched by the receipt of the proceeds of the policy.

The wife moved for a summary judgment in the trial court. The trial court denied the motion. The wife then moved for reconsideration of the denial of the summary-judgment motion, which the trial court also denied. The wife then filed a “renewed motion for summary judgment,” which the trial court also denied.

The trial court conducted a bench trial on July 8, 2008. On August 20, 2008, the trial court issued a judgment in favor of the brother. The trial court found that “the central issue in this matter is whether or not a term-life insurance policy is marital property in Alabama” and then answered this question in the negative, concluding that “[the husband] did not violate the [TRO] entered by the [family court], and the proceeds of the life insurance policy shall remain with the rightful beneficiary.” The order of the trial court also notes that “[b]ecause the restraining order was temporary, there were many issues left to be decided by the [family] court[;] thus [the husband’s] death abated the action and the temporary order, and the life-insurance proceeds were properly payable to the most recently designated beneficiary as interpreted in [Ex parte Parish, 808 So.2d 30 (Ala.2001) ].”

The wife appealed the trial court’s judgment to this Court. We transferred the appeal to the Court of Civil Appeals under § 12-2-7(6), Ala.Code 1975. That court affirmed the judgment of the trial court in a two-judge opinion having no precedential value. Judge Thomas authored the lead opinion, in which only Judge Pittman concurred. Presiding Judge Thompson concurred in the result with a writing in which Judge Moore concurred. Judge Bryan wrote a dissenting opinion.

The lead opinion in the Court of Civil Appeals frames the dispositive issue in this ease as “whether a party [to a divorce action], by changing the beneficiary of a term life-insurance policy, violates a TRO restraining that party from removing or disposing of marital assets.” Thomas, 54 So.3d at 348. The lead opinion ultimately concludes that “[a] term life-insurance policy is not a marital asset” and that, therefore, “the husband in this case did not violate the TRO, and the trial court’s judgment is due to be affirmed.” Thomas, 54 So.3d at 350. Presiding Judge Thompson’s opinion concurring in the result asserts that the lead opinion unnecessarily decides whether a term life-insurance policy constitutes a marital asset because, Presiding Judge Thompson believed, regardless of whether the policy is a marital asset, “the husband’s change of the beneficiary of the policy to [the] brother did not constitute removing and disposing of the insurance policy, and the question whether that policy constituted a marital asset need not be resolved.” Thomas, 54 So.3d at 353 (Thompson, P.J., concurring in the result). Judge Bryan’s dissenting opinion states his belief that the policy constituted a marital asset and, therefore, that the husband violated the TRO by changing the beneficiary on the policy. Thomas, 54 So.3d at 354-56 (Bryan, J., dissenting).

The wife petitioned this Court for certio-rari review of the Court of Civil Appeals’ decision.

Standard of Review

“On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). The lead opinion in the Court of Civil Appeals applied a de novo standard of review because it found that the issues in this case involve only the application of law to undisputed facts. See Thomas, 54 So.3d at 347-48. We agree that a de novo standard of review was appropriate in the Court of Civil Appeals; therefore, we apply the same standard of review.

Discussion

The threshold issue in this case is not, as framed by the lead opinion in the Court of Civil Appeals, whether the husband violated the TRO by changing the beneficiary of the policy from the wife to the brother; rather, the threshold issue is whether the trial court had subject-matter jurisdiction over this action. This inquiry is essential because “[a] judgment entered by a trial court without subject-matter jurisdiction is void.” Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490 (Ala.2008).

“A court is obligated to vigilantly protect against deciding cases over which it has no jurisdiction because ‘[i]t would amount to usurpation and oppression for a court to interfere in a matter over which it has no jurisdiction, and its pronouncements in respect thereto would be without force, and its decrees and judgments would be wholly void. This is a universal principle, as old as the law itself.’ ”

Crutcher v. Williams, 12 So.3d 631, 635 (Ala.2008) (quoting Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930)). Thus, if the trial court in this action lacked jurisdiction over the subject matter, the judgment entered was void and must be set aside.

The subject matter of this action is the TRO entered by the family court. Each of the wife’s claims against the brother are contingent on a finding that the wife is entitled to the proceeds of the policy because the husband allegedly violated the TRO by changing the beneficiary of the policy from the wife to the brother. Therefore, we must first consider whether the trial court had jurisdiction over the TRO in view of husband’s death and the subsequent abatement of the divorce action in the family court.

It is clear that the divorce action between the wife and the husband in the family court abated upon the death of the husband. Alabama law is well settled that “[a] marriage is dissolved by the death of a party to the marriage, and a pending action for dissolution by divorce is necessarily terminated and absolutely abated.” Jones v. Jones, 517 So.2d 606, 608 (Ala.1987) (citing Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (1941); and Killough v. Killough, 373 So.2d 336 (Ala.Civ.App.1979)). Further, this Court has held that not only does a pending divorce action abate upon the death of a party to the marriage, but that the interlocutory orders by the divorce court dividing marital property also have no effect upon the death of a party to the marriage. See Ex parte Parish, 808 So.2d 30, 33 (Ala.2001); and Jones, 517 So.2d at 608.

In Jones, the trial court in a divorce action issued a temporary order regarding the disposition of the marital home pending final resolution of the divorce action. 517 So.2d at 606-07. While the action was pending and the temporary order was in effect, the husband died. 517 So.2d at 606. Upon the motion of the wife, the trial court dissolved the temporary order and dismissed the action based on the husband’s death. 517 So.2d at 607. The administra-trix of the husband’s estate appealed, and this Court affirmed the judgment of the trial court, concluding that the husband’s death abated the divorce action and nullified the temporary order. 517 So.2d at 607-08. In so holding, this Court reasoned: “An action for divorce, alimony, attorney fees, and an equitable division of marital property in which there has not been a final judgment does not survive the death of a party.” 517 So.2d at 608.

In Parish, the husband filed a divorce complaint in the trial court. 808 So.2d at 31. Several days thereafter, the trial court entered a divorce judgment, which adopted the terms of a property-settlement agreement between the husband and the wife. 808 So.2d at 31. The divorce judgment stated that pursuant to § 30-2-8.1, Ala.Code 1975, the terms of judgment would become final 30 days after the date on which the summons and complaint had been filed. The husband committed suicide 7 days after the trial court entered the divorce judgment — less than 30 days after the complaint had been filed — and the wife moved the trial court to set aside the judgment. The trial court denied the motion and ordered that the divorce judgment “ ‘shall remain in full force and effect.’ ” 808 So.2d at 32 (quoting the trial court’s order). The wife appealed to the Court of Civil Appeals, and, relying upon Jones, that court reversed the judgment of the trial court, holding that “the divorce action was abated by the husband’s death and ... the trial court erred in denying the wife’s postjudgment motion to set aside the divorce judgment.” Connell v. Parish, 808 So.2d 27, 29 (Ala.Civ.App.2000). Implicit in this holding is the conclusion that the property-settlement agreement within the divorce judgment was a temporary order that had no effect upon the death of the husband. This Court agreed and affirmed the judgment of the Court of Civil Appeals. Parish, 808 So.2d at 33.

Alternatively, if a trial court in a divorce action enters & final judgment that affects the property rights of the parties to the marriage and a party to the marriage then die s, “ ‘the judgment as it relates to property rights may be altered or modified upon a timely motion.’ ” Boudreau v. Slaton, 9 So.3d 495, 498 (Ala.Civ.App.2008) (quoting Goodloe v. LaRoche Indus., Inc., 686 So.2d 335, 337 (Ala.Civ.App.1996)). See also Ex parte Riley, 10 So.3d 585, 587 (Ala.Civ.App.2008) (“Alabama law generally holds that abatement does not divest a court of jurisdiction to act on a judgment affecting the parties’ property rights.” (citing Hill v. Lyons, 550 So.2d 1004, 1006 (Ala.Civ.App.1989))). In Hill v. Lyons, the husband died 10 days after the trial court had entered the judgment in a divorce action. 550 So.2d at 1005. The wife filed a timely postjudgment motion under Rule 59(e), Ala. R. Civ. P., requesting the trial court either to modify or to set aside the divorce judgment. The trial court subsequently nullified the divorce judgment. The administrator of the husband’s estate appealed to the Court of Civil Appeals; that court reversed the judgment of the trial court, holding that “upon timely motion the trial court had jurisdiction to amend, alter, or modify the [divorce judgment].” 550 So.2d at 1006. That court reasoned that the divorce judgment made final division of the couple’s marital property and that “[abatement does not occur when the [divorce judgment] affects property rights, and matters touching the parties’ property rights under the divorce [judgment] are amenable to alteration or modification upon timely motion, or upon appeal.” 550 So.2d at 1006 (citing Cox, 242 Ala. at 39, 4 So.2d at 737 (noting that “[i]t is a further general rule that the death of a party, pending an appeal or writ of error, furnishes no grounds for the abatement of the suit”), and Stapleton v. Stapleton, 282 Ala. 62, 209 So.2d 202 (1968)).

This Court has not directly addressed the issue of whether an interlocutory order, which only requires parties to a divorce action to preserve their assets before division of the marital property, becomes a nullity when a party to a marriage dies while the divorce action is pending. However, in Ex parte Riley, the Court of Civil Appeals considered this issue and concluded that this Court’s decisions in “Parish and Jones suggest that an interlocutory-order affecting the property rights of the parties to a divorce action may not he enforced after the death of one of the parties due to the abatement of that action.” 10 So.3d at 588-89. In Riley, the trial court issued an interlocutory order in a divorce action stating that the parties to the action were to preserve all their assets in anticipation of a future division of the marital property. While the divorce action was pending and the interlocutory order was in effect, the husband died. 10 So.3d at 588. The Court of Civil Appeals held that the divorce action abated upon the husband’s death and, therefore, that court concluded that the trial court lost jurisdiction to act on the interlocutory order. 10 So.3d at 589.

Like Riley, the present case presents the question whether a court may enforce an interlocutory order, which prohibits the parties to a divorce action from removing or disposing of marital assets, after the abatement of the action in which the order was entered. We agree with the Court of Civil Appeals’ decision in Riley that this Court’s decisions in Jones and Parish support the conclusion that, not only does an interlocutory order that divides marital property dissolve upon the death of a party to the pending divorce action, an interlocutory order that “affect[s] the property rights of the parties to a divorce action may not be enforced after the death of one of the parties due to the abatement of that action.” Riley, 10 So.3d at 588-89. Here, upon the husband’s death and the subsequent abatement of the divorce action in the family court, the TRO became a nullity, which could no longer be enforced. Because the subject matter of this action is an alleged violation of a nullity (the TRO), the trial court lacked subject-matter jurisdiction over this action; therefore, the judgment of the trial court is void. See Faith Props., 988 So.2d at 490 (“A judgment entered by a trial court without subject-matter jurisdiction is void.”).

Conclusion

The judgment of the trial court is void for lack of subject-matter jurisdiction and is due to be vacated. Because an appeal does not lie from a void judgment, the appeal in the Court of Civil Appeals was due to be dismissed. Therefore, the judgment of the Court of Civil Appeals is also void for lack of subject-matter jurisdiction, and we quash the previously granted writ of certiorari. The Court of Civil Appeals is instructed to vacate its judgment and to dismiss the appeal, with instructions to the trial court to vacate its judgment.

WRIT QUASHED WITH INSTRUCTIONS.

LYONS, WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I do not agree that the trial court lacked subject-matter jurisdiction to adjudicate the issue relating to the proceeds of the life-insurance policy of Aletha Brown Thomas’s husband. The majority states: “[t]he subject matter of this action is the TRO entered by the family court.” 54 So.3d at 359. I disagree. The subject matter of this action is the proceeds from the life-insurance policy. Thomas asserts that her husband’s brother was unjustly enriched by the receipt of the proceeds from a policy that was created by her marital estate with the intention that she receive the benefits.

Although I agree that the divorce action abated with the death of Thomas’s husband, it does not follow that the death of the husband or the abatement of the divorce action work to deprive the trial court of subject-matter jurisdiction in Thomas’s separate action seeking to impose a constructive trust on the insurance proceeds. Jurisdiction has many applications that are dependent on the nature of the case before a court, but the concept of subject-matter jurisdiction ultimately devolves to “the extent to which a court can rule on the conduct of persons or the status of things,” Black’s Law Dictionary 870 (8th ed. 2004). Until this case, it was well settled that Alabama trial courts had the authority to impose a constructive trust where a party has been unjustly enriched.

“‘Whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentation, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means which render it un-conscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property in the hands of the original wrong-doer or in the hands of a subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved of the trust.’ ”

Knowles v. Canant, 255 Ala. 331, 333, 51 So.2d 355, 357 (1951) (quoting 2 John N. Pomeroy, A Treatise on Equity Jurisprudence §§ 1053, 1055 (Spencer W. Symons ed., 5th ed. 1941)). See also Grace Murphy Long, The Sunset of Equity: Constructive Trusts and the Law, 57 Ala. L.Rev. 875 (Spring 2006).

Thomas’s action for a constructive trust might have been strengthened by proof that Mr. Thomas had violated the TRO issued by the divorce court, but that fact does not operate to deprive the trial court of jurisdiction to adjudicate Thomas’s claim. The case of Rau v. Rau, 429 So.2d 593 (Ala.Civ.App.1982), provides a useful example. In Rau, the Court of Civil Appeals reviewed the claim of the children, through their mother, for a constructive trust over the proceeds of a policy on the life of the father. In the divorce judgment from the children’s mother, the father was ordered to maintain a presently existing life-insurance policy on his life for the children’s benefit. When the father remarried and changed employers, his new employer provided him with a life-insurance policy; there was no further mention of the life-insurance policy described in the divorce judgment. However, the beneficiary of the new policy was the father’s new wife. When the father died, the children asserted that the new policy should have taken the place of the old policy specified in the divorce judgment and brought the action seeking to impose a constructive trust. The trial court agreed, but the Court of Civil Appeals determined that the children had no equitable interest in the proceeds of the second policy that was created separately from the original marriage. The judgment imposing the constructive trust was reversed. There was never an implication in Rau that because the facts did not support the constructive trust, the trial court lacked jurisdiction to adjudicate the matter. As in Rau, this case involves a claim seeking a constructive trust. As the Court of Civil Appeals did in Rau, this Court might well determine that the facts supporting the claim are insufficient. See also Berryman v. Adams, 883 So.2d 214 (Ala.Civ.App.2003), and Brown v. Brown, 604 So.2d 365 (Ala.1992). However, when the parties are properly before the court on an adversarial claim, the presence or absence of facts in support of that claim does not affect the trial court’s authority, i.e., jurisdiction, to adjudicate that claim. I respectfully dissent.

      . The lead opinion was authored by Judge Thomas, with Judge Pittman concurring, Presiding Judge Thompson and Judge Moore concurring in the result, and Judge Bryan dissenting.

      . Section 12-2-7(6), Ala.Code 1975, provides that "[t]he Supreme Court shall have authority ... [t]o transfer to the Court of Civil Appeals, for determination by that court, any civil case appealed to the Supreme Court and within the appellate jurisdiction of the Supreme Court....”

      . Section 30-2-8.1(a), Ala.Code 1975, provides: "A court shall not enter a final judgment of divorce until after the expiration of 30 days from the date of the filing of the summons and complaint.”

      . In Riley, the Court of Civil Appeals included the following discussion from Aither v. Estate of Aither, 180 Vt. 472, 476-77, 913 A.2d 376, 379 (2006), regarding the split of authority among states on the issue of abatement of interlocutory orders upon the death of a party to the action in which the order was entered:
      " ‘Several states follow the rule that abatement also divests the trial court of the equitable power to enforce its pre-abatement orders. See, e.g., Am. Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 923 (Minn.Ct.App.1995) ("When one of the parties dies ... a temporary restraining order has no effect and the court’s jurisdiction to enforce it ends."); [Estate of] Hackler [v. Hackler], [44 Va.App. 51,] 602 S.E.2d [426,] 437 [(2004)] (holding that trial courts do not have jurisdiction to remedy violations of injunctions when divorce has been abated by a party’s death). Other courts have determined that the abatement of a divorce by a party’s death does not divest the trial court of jurisdiction to enforce pre-abatement orders. See, e.g., Cent. States, S.E. & S.W. Areas Pension Fund v. Howell, 227 F.3d 672, 675-76 (6th Cir.2000) (applying Michigan law); Candler v. Donaldson, 272 F.2d 374, 377 (6th Cir.1959) (applying Michigan law); Webb v. Webb, 375 Mich. 624, 134 N.W.2d 673, 674-75 (1965) ("Transfers of property in violation of an injunction are invalid and may be set aside by the party to a divorce suit, and subsequent death of the injunction violator does not prevent the court from exercising such power.”); Lindsey v. Lindsey, 342 Pa.Super. 72, 492 A.2d 396, 398 (1985) (holding that, even after the death of a party, "the lower court had the authority to void the disposal of any marital property in violation of its injunction”); Standard Ins. Co. v. Schwalbe, 110 Wash.2d 520, 755 P.2d 802, 805 (1988) (holding that a trial court had equitable power to enforce its preliminary injunction prohibiting a change in insurance beneficiaries, despite the death of the violator). A federal district court, similarly, has noted that transfers in violation of temporary injunctions, while not per se void, may be voided based on a balancing of equities. Valley Forge Life Ins. Co. v. Delaney, 313 F.Supp.2d 1305, 1309 (M.D.Fla.2002) (citing Wilharms v. Wilharms, 93 Wis.2d 671, 287 N.W.2d 779, 784 (1980), in which the Wisconsin Supreme Court remanded for an evidentiary hearing to consider relevant equitable factors affecting validity of transfer in violation of pre-abatement temporary order).’ "
      10 So.3d at 588.

      . In her dissenting opinion, the Chief Justice asserts that she believes that the trial court had subject-matter jurisdiction over this action because, she says, the subject matter of this action is not the TRO but “the proceeds from a policy that was created by [the wife’s] marital estate.” 54 So.3d at 362. We disagree with the Chief Justice's conclusion that the wife's alleged entitlement to the proceeds of the policy is not dependent on the TRO. Indeed, the premise for the wife's alleged entitlement to the imposition of a constructive trust on the proceeds of the policy is predicated on her allegation that the husband violated the TRO. Further, the Chief Justice’s application of Rau v. Rau, 429 So.2d 593 (Ala.Civ.App.1982), to the facts of this case is misguided. Rau is distinguishable from the present case because the plaintiffs in Rau "filed suit seeking to enforce the terms of their parents’ divorce judgment," 429 So.2d at 594 (emphasis added), whereas here the wife filed suit seeking to enforce the terms of a temporary order entered in a divorce action that had abated.


author: THOMAS, Judge.

text:
    Aletha Brown THOMAS v. Brian THOMAS.
    2071171.
    Court of Civil Appeals of Alabama.
    July 30, 2010.

      Stephen M. NeSmith and Riggs & NeS-mith, P.A., Montgomery; and J. Keith Rodgers, Montgomery, for appellant.
    C. Franklin Snowden III, Montgomery, for appellee.
   On Remand-from the Alabama Supreme Court

THOMAS, Judge.

The Alabama Supreme Court has held that the prior judgment of this court is void for lack of subject-matter jurisdiction. See Ex parte Thomas, 54 So.3d 356, 362 (Ala.2010). On remand to this court, and in compliance with the supreme court’s opinion, we vacate our judgment, dismiss the appeal, and instruct the trial court to vacate its judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

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