author: THOMAS, Judge. MOORE, Judge,

text:
    R.B.S. v. K.M.S.
    2090027.
    Court of Civil Appeals of Alabama.
    May 28, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091259.

      R.B.S., pro se.
    Thomas M. Galloway, Jr., of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellee.
   THOMAS, Judge.

R.B.S. (“the former wife”) appeals from the judgment of the Baldwin Circuit Court enforcing a settlement agreement between the former wife and K.M.S. (“the former husband”). We affirm.

Facts and Procedural History

In 2002, the former husband petitioned the trial court for a divorce. The former husband also‘filed a motion for temporary custody of the parties’ two minor children (“the children”) and for a restraining order preventing the former wife from having any contact with the former husband or the children. The trial court granted the former husband’s motion for temporary custody and entered a temporary restraining order against the former wife. The former wife then moved the trial court for temporary custody of the children, child support, and pendente lite alimony; the former wife also moved the trial court to grant her exclusive possession of the parties’ Ono Island home. The former wife then answered the former husband’s complaint and counterclaimed, requesting custody of the children, child support, an equitable division of the parties’ assets and debts, alimony, and an attorney fee. The trial court entered an order that, among other things, granted the parties joint legal custody of the children, with the former husband having temporary physical custody of the younger child and the parties having joint physical custody of the older child, modified the temporary restraining order insofar as it conflicted with the trial court’s order, and ordered the former husband to pay to wife $1,000 per month in pendente lite alimony.

In October 2004, the parties entered into a- settlement agreement. The settlement agreement was read into the record in open court. The settlement agreement contained several provisions relating to the parties’ Ono Island home and an Internal Revenue Service (“IRS”) tax lien (“the tax lien”) on the Ono Island home. The settlement agreement provided that the former wife would receive all right, title, and interest in the Ono Island home and that the former husband would waive all claims to the home. The settlement agreement also provided that the tax lien on the Ono Island home had been incurred solely by the former husband, that the former husband would cooperate with the former wife’s efforts to discharge the tax lien, and that the former husband would agree to be solely responsible for the tax lien and to indemnify and hold the former wife harmless from the tax lien. The settlement agreement further provided that the “parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the [tax] lien against the Ono [Island home.] If said discharge is not accomplished the parties are not bound by the terms of this agreement.” In return for the Ono Island home, the former wife gave up any rights to alimony, the former husband’s retirement accounts, and any other property. The parties agreed that the agreement, as read into the record, accurately reflected the settlement reached between the parties.

In 2004, the former husband arranged to refinance the Ono Island home so that he could use the proceeds to pay off the tax lien. When the wife arrived for the closing, she noticed that she was also listed as an obligor on the mortgage; the former husband should have been solely obligated to repay the mortgage. The former wife refused to sign the mortgage note and left the closing. Richard Shields, the attorney who was then representing the former husband, testified that the mortgage had been intended to be only in the former husband’s name and that the former wife’s name was removed from the mortgage documents. As a result of the former’s wife’s refusal to sign the documents at the closing, the refinancing of the Ono Island home was never completed. The IRS then began collection efforts on the tax lien.

The former husband alleged that in August 2008 the parties agreed to settle the tax lien in a federal-court action. The tax-lien settlement provided that the Ono Island home would be sold and the proceeds from the sale would be used to satisfy the tax lien. The federal court, in December 2008, granted the former husband’s motion to enforce the tax-lien settlement and, in January 2009, ordered that the Ono Island home be sold.

The former wife moved the trial court for an increase in pendente lite alimony on October 27, 2008; the former wife also moved the trial court to compel discovery. On March 11, 2009, the former husband moved the trial court to enforce the settlement agreement and to enter a judgment divorcing the parties. The former husband alleged in his motion that the settlement agreement had been contingent on the discharge of the tax lien on the Ono Island home, that an agreement with the IRS relating to the tax lien had been reached, and that the tax lien had now been resolved.

On August 12, 2009, the trial court held a hearing on the former husband’s motion to enforce the settlement agreement and the wife’s motions to compel discovery and for increased pendente lite alimony. The parties agreed that if the trial court granted the former husband’s motion to enforce the settlement agreement, then the former wife’s motions would both become moot, as the case would be resolved. Following the hearing, the trial court entered a judgment on August 12, 2009, enforcing the settlement agreement and divorcing the parties. The trial court determined in its judgment that the former wife had failed to cooperate with the former husband’s efforts to discharge the tax lien; therefore, the former wife had been at fault for the former husband’s failure to discharge the tax lien. As a result, the trial court determined that, even though the former wife had lost the benefit she was to receive under the settlement agreement, the former wife could not use the former husband’s failure to discharge the tax lien to prevent the enforcement of the settlement agreement. The former wife subsequently filed a post-judgment motion, pursuant to Rule 59(e), Ala. R. Civ. P. The trial court denied the former wife’s postjudgment motion, and the former wife appealed to this court.

Analysis

The former wife first argues that the trial court erred when it enforced the settlement agreement because, she argues, the enforcement of the settlement agreement was contingent upon the former husband’s discharge of the tax lien on the parties’ Ono Island home. The settlement agreement provided that “[t]he parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the IRS lien against the Ono [Island] property. If said discharge is not accomplished the parties are not bound by the terms of this agreement.” However, the trial court did not determine that the discharge of the tax lien was not a condition precedent to the enforcement of the settlement agreement. Instead, in the trial court’s August 19, 2009, judgment, the trial court determined that the former husband had met his obligation to discharge the tax lien by arranging to refinance the Ono Island home and to then satisfy the tax lien with the proceeds. The trial court further determined that the former wife refused to cooperate with the former husband’s attempt to discharge the tax lien. The trial court then stated:

“The Court is of the opinion that a party to a settlement agreement cannot evade the terms of the settlement agreement by refusing to cooperate in accomplishing the terms of the settlement. While [the former wife] may have lost the benefit of the bargain, she did so by her own actions and not through any fault of [the former husband].”

Thus, even assuming that the former wife is correct that the discharge of the tax lien is a condition precedent to the enforcement of the settlement agreement, to prevail on appeal the former wife would still need to challenge either the trial court’s conclusion that the wife was responsible for the nonoceurrence of the condition precedent or the trial court’s conclusion that the former wife’s responsibility for the nonoccurrence of the condition precedent precluded her from preventing the enforcement of the settlement agreement.

The former wife does not make any argument concerning the correctness of the trial court’s legal conclusion that the former wife’s fault for the nonoccurrence of the condition precedent precluded her from preventing the enforcement of the settlement agreement. “ ‘An argument not made on appeal is abandoned or waived.’ ” Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003)). Because the former wife has waived any legal argument on this issue, we need not further consider this issue.

The only challenge the former wife makes to the trial court’s factual finding that the former wife was at fault for the former husband’s failure to discharge the tax lien is a statement, without the support of any authority, that the settlement agreement did not require her to refinance the Ono Island home or to sign a mortgage. Because the wife’s argument is not supported by relevant authority, it does not meet the requirements of Rule 28(a)(10), Ala. R.App. P.

“Inapplicable general propositions are not supporting authority, and an appellate court has no duty to perform a litigant’s legal research. Legal Systems, Inc. v. Hoover, 619 So.2d 930 (Ala.Civ. App.1993); Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889 (Ala.Civ.App. 1991); and Moats v. Moats, 585 So.2d 1386 (Ala.Civ.App.1991). Similarly, appellate courts do not, ‘based on undeli-neated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992). This court will address only those issues properly presented and for which supporting authority has been cited. Si-monton v. CaiToll, 512 So.2d 1384 (Ala. Civ.App.1987).”

Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). Moreover, “[w]hen an appellant fails to properly argue an issue, that issue is waived and will not be considered.” Asam, 686 So.2d at 1224.

However, even if an appellant fails to comply with Rule 28(a)(10), this court may consider an argument if we can adequately discern the issue presented on appeal. Thomcm Eng’rs, Inc. v. McDonald, 57 Ala. App. 287, 290, 328 So.2d 293, 295 (Civ.App. 1976) (explaining that, even when an appellant fails to comply with Rule 28(a)(10), an appellate court may consider an argument when the argument “has been raised in a manner which is fair to all concerned”). Because we can adequately discern the bases for the former wife’s arguments challenging the factual findings in the trial court’s judgment, we will consider the merits of those arguments on appeal.

The first of the former wife’s arguments challenging the trial court’s factual findings is her argument that the trial court incorrectly determined that she had failed to cooperate with a 2003 attempt to refinance the Ono Island home. Although there was an unsuccessful attempt to refinance the Ono Island home in 2003, it is clear from the testimony at the August 2009 hearing that the failed attempt at refinancing the Ono Island home at issue at the hearing, and referenced in the trial court’s judgment, occurred in 2004, not December 2003. Therefore, this argument does not properly challenge any of the factual findings in the trial court’s judgment and it cannot form the basis for this court to reverse the trial court.

The wife’s next argument challenging the trial court’s factual findings is that “[the former husband] was not required to refinance the Ono [Island] home in the settlement agreement. [The former wife] was not required to sign any mortgage in the settlement agreement, and for this reason there is no mention of this requirement in the settlement agreement at all.” It appears that the former wife is arguing that because the 2004 settlement agreement did not explicitly require the refinancing of the Ono Island home and because the terms of the 2004 settlement agreement were unambiguous, the parties could not present testimony regarding any oral agreement to alter its terms, because consideration of any such testimony by the trial court would violate the parol evidence rule. See Prattville Mem’l Chapel v. Parker, 10 So.3d 546, 561 (Ala.2008) (stating that “once contracts have been reduced to a writing and the parties have acknowledged that the writing represents the complete agreement between them, parol evidence of the negotiations will not be admitted to alter or contradict the writing”).

“However, in Alabama, parties ‘may try their case on evidence that would otherwise be inadmissible upon proper objection and ... where evidence violative of the parol evidence rule is admitted without objection, it may be considered and allowed such force and effect as its weight entitles it in construing the agreement of the parties.’ ”

Parker, 10 So.3d at 561 (quoting Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041, 1044 (Ala.1990)).

At the hearing, Shields testified that the parties had agreed to refinance the debt associated with the Ono Island home in order to resolve the tax lien, that the former husband had arranged for the refinancing of the debt associated with the Ono Island home, and that the former husband would have been solely responsible for the payment of the resulting mortgage. Shields and the former wife testified that the former wife had refused to complete the closing for the refinancing of the debt associated with the Ono Island home.

Because the former wife did not object to Shields’s testimony based on the parol evidence rule, she has waived that argument on appeal, and the trial court properly could have considered Shields’s testimony concerning the parties’ agreement to discharge the tax lien. Id. This testimony supports the trial court’s determination that the former wife thwarted the former husband’s attempt to refinance the debt associated with the Ono Island home and, thus, prevented the discharge of the tax lien. Because the former wife did not raise an objection to Shields’s testimony based on the parol evidence rule and because that testimony supports the trial court’s determination that the former wife had been responsible for the failure of the former husband’s attempt to discharge the tax lien, we cannot agree that the trial court’s determination on that issue was plainly and palpably wrong.

The former wife next argues that the settlement agreement was procured through fraud. In support of her argument, the former wife alleges that her own attorney misled her regarding whether she could remain the beneficiary of a life-insurance policy or whether the beneficiary of the life-insurance policy had to be changed to the children. An action for fraud is cognizable when there are “[mjisrepresen-tations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party....” Ala. Code 1975, § 6-5-101. There is nothing in the record to suggest that the former wife raised this issue before the trial court, either in her pleadings, at trial, or in a postjudgment motion. It is well settled that “‘[tjhis Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.’ ” Hal-ford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 416 (Ala 2005) (quoting State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005), quoting in turn Crutcher v. Wendy’s of N. Alabama, Inc., 857 So.2d 82, 97 (Ala.2003)). Because the former wife failed to raise the issue of fraud before the trial court, she has not preserved this issue for our review.

The former wife further argues that the trial court erred when it failed to award her periodic alimony and when it failed to reserve the right to award periodic alimony in the future. However, as with her fraud argument, the former wife failed to raise this argument before the trial court or in her postjudgment motion. Thus, the former wife’s argument is not preserved for appellate review, and we need not further consider this issue. See Halford, supra.

The former wife next makes a general argument that the trial court should have granted the divorce on fault grounds instead of on the ground of incompatibility of the parties. The former wife argues that because of the former husband’s alleged actions, she should have received some form of spousal support or she should have received a more favorable settlement. The former wife’s argument on this issue is not supported by any authority; therefore, it does not meet the requirements of Rule 28(a)(10), and we need not further consider it. See Asam, supra.

The former wife further argues that the trial court erred because neither the settlement agreement nor the judgment contains a provision addressing the former husband’s unpaid child support. The settlement agreement provides that the parties shall have joint legal and physical custody of the children and that neither party is to pay child support. The settlement agreement further states that the children may choose with which party they wish to live and that the children may determine how long they wish to live with either party. In addition, the record does not reflect the existence of any order requiring the former husband to pay child support. Because there is no evidence indicating that the former husband had ever been subject to a requirement to pay child support, we find no error on the part of the trial court for its failure to address past-due child support.

Finally, the former wife argues that the trial court erred in denying her various motions for an attorney fee.

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188,191 (Ala.Civ.App.1993).”

Glover v. Glover, 678 So.2d 174, 176 (Ala. Civ.App.1996). The former wife’s argument concerning the award of an attorney fee consists only of a statement of the above general proposition of law and a statement that “the factors to be considered by the trial court have been covered extensively in this brief.” Such an argument is not sufficient to invoke this court’s review.

“Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Therefore, we need not further consider the former wife’s argument on this issue.

Conclusion

Because the former wife’s arguments are either waived, not preserved for our review, or are not supported by relevant authority, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN, J., concurs.

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I reluctantly concur in the result.

The trial court entered a judgment enforcing a settlement agreement that had been reached between the parties on October 26, 2004 (“the 2004 agreement”). That agreement provided, in pertinent part:

“For property settlement: The wife shall have all right, title, and interest in the [Ono Island property] and husband waives all claims to the same.
“Wife shall refinance [the Ono Island property] in her separate name within 90 days of discharge of the IRS lien that is currently on the property and shall indemnify and hold harmless husband from the mortgage debt thereon.
“Husband shall have all right, title, and interest in the property located at 260 North Joachim, J-o-a-c-h-i-m. Street in Mobile, Alabama and shall indemnify and hold harmless the wife from any indebtedness on the same.
“The parties recognize that the IRS currently maintains a lien on the Ono [Island property] for unpaid withholding taxes incurred solely by the husband and/or husband’s business activities. The wife will seek a discharge of the lien with the IRS at the wife’s cost of processing this discharge. Husband shall cooperate in all respects with wife’s efforts in accomplishing this discharge.
“The husband agrees to be solely responsible for any and all indebtedness to the IRS and agrees to indemnify and hold wife harmless from the same....
“Alimony: Husband and wife waive all claims of periodic alimony in gross [sic ] that they have, that they may have against the other.
“Retirement: Parties waive all claims to the other parties retirement and pension accounts and they shall be their respective party’s property.
“The parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the IRS lien against the Ono [Island] property. If said discharge is not accomplished the parties are not bound by the terms of this agreement.”

As the terms of the 2004 agreement make plain, the provisions relating to property division and alimony, among other things, depended on the satisfaction of a condition precedent — the discharge of the IRS tax lien against the Ono Island property. It is undisputed that the IRS tax lien was never discharged and, in fact, that the IRS had foreclosed on the tax lien against the Ono Island property. However, the trial court concluded, as a matter of fact, that the failure to discharge the tax lien resulted from the wife’s misconduct in refusing to cooperate with the husband’s efforts to mortgage the Ono Island property in order to pay the IRS tax lien and that, as a matter of law, that misconduct by the wife preventing the satisfaction of the condition precedent essentially es-topped the wife from complaining of that failure.

The main opinion correctly concludes that the wife has not challenged the legal conclusion reached by the trial court, thereby waiving any right to reversal on that ground. 58 So.3d at 800. The wife instead only attacks the sufficiency of the evidence supporting the trial court’s factual conclusion, pointing out that the unambiguous terms of the 2004 agreement did not require her to cooperate with the husband’s efforts to mortgage the Ono Island property and that her husband’s former attorney’s testimony to the contrary violates the parol evidence rule. The main opinion affirms the judgment on the ground that the testimony of the husband’s former attorney supports the trial court’s interpretation of the 2004 agreement and that the wife waived any argument based on a violation of the parol evidence rule by failing to object to that testimony. 58 So.3d at 801-02. I must agree that the main opinion has properly applied current Alabama law, but I believe that current Alabama law regarding the effect of the failure to object to parol evidence should be reconsidered.

The wife correctly argues that the terms of the 2004 agreement do not require her to permit the husband to mortgage the Ono Island property for any reason, including obtaining funds necessary to satisfy the IRS tax lien. In fact, the terms of the 2004 agreement contradict any implication that the husband could mortgage the Ono Island property to gain a discharge of the IRS tax lien. The 2004 agreement calls for the husband to indemnify and hold the wife harmless from the IRS tax lien, and, upon the lien’s discharge, the agreement calls for the wife to indemnify and hold the husband harmless from any mortgage on the Ono Island property. If the husband had achieved his goal of mortgaging the Ono Island property, the wife ultimately would have had to pay the mortgage in order to perform her contractual obligations, but such responsibility would have violated the husband’s contractual obligation to hold the wife harmless for the IRS tax lien. The -wife thus argues that her refusal to participate in the closing of the attempted mortgage cannot be considered misconduct that prevented the satisfaction of the condition precedent.

Nevertheless, the wife allowed the husband’s former attorney, Richard Shields, to testify, without objection, that the parties did agree to refinance the Ono Island property in order to satisfy the IRS tax lien and that the husband would have been solely responsible for that mortgage. The trial court evidently agreed with that testimony when it concluded that the husband had performed his part of the bargain under the 2004 agreement. The trial court therefore inferred that the wife had acted unreasonably in failing to cooperate with the husband’s efforts to mortgage the Ono Island property.

On appeal, the wife correctly points out that Shields’s testimony violates the parol evidence rule. Under that rule, in the absence of some ambiguity, oral testimony generally will not be received to explain, contradict, vary, add to, or subtract from the express terms of a written contract. See Lake Martini Alabama Power Licensee Ass’n v. Alabama Power Co., 601 So.2d 942 (Ala.1992). In this case, the 2004 agreement was read into the record by the wife’s attorney and both parties then confirmed their agreement to the trial court. At that point, the 2004 agreement became as enforceable as any written agreement. See Ezell v. Childs, 497 So.2d 496, 498 (Ala.Civ.App.1986) (“In Alabama oral agreements entered in open court are as binding as written ones.”). As such, parol evidence could not be used to vary its terms.

However, current Alabama law also holds that, when a party allows the introduction of parol evidence contradicting the terms of a written agreement, the evidence may be considered and allowed such force and effect as its weight entitles in construing the agreement of the parties. Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041 (Ala.1990). On appeal, the court will consider that a party, by failing to object to the introduction of parol evidence, has waived any argument as to its use in determining the meaning of the agreement. Id. In other words, present Alabama law holds that by failing to object to parol evidence, a party may not thereafter complain that the fact-finder found a contract in accord with the parol evidence even if that parol evidence is totally contrary to the terms of the written agreement.

I believe the foregoing rules are premised on a misunderstanding of the parol evidence rule.

“The parol evidence rule does not exclude certain evidence because, for one reason or another, it is untrustworthy or undesirable as a means of evidencing a fact sought to be proved. The rule simply states that certain evidence is legally ineffective. See Hibbett Sporting Goods, Inc. v. Biembaum, 875 So.2d 481 (Ala.1979).”

Dixon v. SouthTrust Bank of Dothan, 574 So.2d 706, 713 n. 5 (Ala.1990) (Houston, J., dissenting). In Southern Guaranty Insurance Co. v. Rhodes, 46 Ala.App. 454, 459, 243 So.2d 717, 721 (Civ.App. 1971), the court stated:

“In Section 2400(1)[, Wigmore on Evidence, 3d ed., Vol. 9,] Dean Wigmore says as follows:
“ ‘... The rule is in no sense a rule of evidence, but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process, — the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of fact are legally ineffective as substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely the dramatic aspect of the process of applying dramatic aspect of substantive law. When a thing is not to be proved at all, the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to “prove” it or “give evidence” of it; otherwise, any rule of law whatever might be reduced to rule of evidence;
As a rule of substantive law, the parol evidence rule declares all oral testimony contradicting the terms of a written agreement to be ineffective regardless of any attempt by a party to introduce such testimony and regardless of any failure by the opposing party to object to that attempt.

In Moody v. McCown, 39 Ala. 586 (1865), our supreme court, in discussing the effect of parol evidence admitted without objection, said:

“That this parol testimony was not objected to in the court below, or that no motion was made by the defendant to draw from the court an instruction against its being taken into consideration by the jury, will not, as we conceive, vary the case. The rule of law is, that the best evidence the case admits of must be produced. If either party offers to produce secondary evidence of the contents of a deed or other writing, and the opposing party does not object, the latter party waives his right, and the court may receive the secondary evidence. But this rule does not apply, where the parol evidence is not merely a secondary or inferior kind of evidence of the same facts, but is an inferior species of evidence, which conflicts with, and seeks to overthrow, that which is of a higher degree. This is against law; the silence of the opposing party does not cure its illegality, and the court is bound, mero motu, to treat it as having no validity, and to instruct the jury accordingly, if the nature of the case and the rights of the other party so require. There are cases, in which the rule requiring the best evidence may be relaxed; but evidence which is positively illegal, can never be received; and such is the character of parol evidence going to contradict or vary a written instrument. The court has no power to permit a deed or other writing, the foundation of a right or suit, to be annulled or weakened in that way. Even if the parties consented that the parol evidence should be heard, the rule of interpretation would be the same, because the principle is, that parol evidence shall not be received to alter or contradict a written instrument.... ”

39 Ala. at 594-95 (emphasis added). The supreme court recognized in Moody that parties cannot change a rule of substantive law by their conduct at trial.

Over the years since Moody was decided, our appellate courts have consistently issued opinions contradicting the holding in Moody so that the decision now must be considered to have been implicitly overruled. See, e.g., State ex rel. Elmore v. Leveson, 207 Ala. 638, 93 So. 608 (1922); Vinyard v. Duck, 278 Ala. 687, 180 So.2d 522 (1965); Mersereau v. Whitesburg Ctr., Inc., 47 Ala.App. 146, 251 So.2d 765 (Civ.App.1971). However, the logic employed in Moody has never been challenged in any reported case. It appears that the appellate courts of this state simply adopted a contrary rule without any real analysis or explanation of why parol evidence should be treated as simply another form of proof that may be considered in the absence of a proper objection.

The rule now persisting in Alabama was once followed in the majority of jurisdictions, see Gary D. Spivey, Annotation, Modem Status of Rules Governing Legal Effect of Failure to Object to Admission of Extrinsic Evidence Violative of Parol Evidence Rule, 81 A.L.R.3d 249 (1977); however, the “new rule” now prevailing in this country holds, consistent with Moody, that parol evidence cannot vary the terms of a written instrument even if the evidence is admitted without objection, and that a party may raise for the first time on appeal an error by the trial court in relying on such oral testimony when considering the meaning of a written instrument. See Gajewski v. Bratcher, 221 N.W.2d 614 (N.D.1974). In Bratcher, the North Dakota Supreme Court stated:

“Our research reveals that there is a sharp conflict and substantial difference in the judicial decisions upon the question of the legal effect of the admission, without proper and timely objection, of oral or intrinsic evidence, incompetent and inadmissible under the parol evidence rule.
“One line of authority, characterized as the ‘old rule,’ holds that, unless proper and timely objection is made to the incompetency or inadmissibility of intrinsic evidence in violation of the parol evidence rule, such error cannot be assigned or raised for the first time upon appeal.
“The other line of authority, referred to as the ‘new rule’ established by the ‘modern trend’ of judicial decisions, holds, in effect, that since parol evidence is not a rule of evidence but of substantive law, the failure to make proper and timely objection to the admissibility of oral or intrinsic evidence does not render such evidence competent or admissible or entitle it to any probative force or value, and imposes a duty upon the appellate courts to disregard and to exclude such evidence from its consideration in the rendition of its decision in the absence of a claim or proof of fraud, mistake or accident. 32A C.J.S. Evidence § 851, p. 219; 30 Am.Jur.2d, Evidence, §§ 1017 and 1022; 88 C.J.S. Trial § 154, p. 301; Williston on Contracts (3d ed.) § 631; and 5 Am.Jur.2d, Appeal and Error, § 737.
“We believe it to be appropriate and advisable to quote from some of the decisions to establish the rule recognized and approved by the ‘modern trend’ of judicial authority.
“(1) ‘Parol evidence, though admitted without objection, must be ignored as of no legal import, and its incompetency to vary a written contract is a matter of law.’ Pinsky v. Sloat, 130 Cal.App.2d 579, 279 P.2d 584, 590 (1955). Smith v. Bear, 287 F.2d 79 (2d Cir.1956).
“(2) ‘The parol-evidence rule is not so much the rule of evidence as the rule of substantive law and requires the court to disregard such evidence even if it gets into the record without objection.’ Conrad Milwaukee Corporation v. Wasilew-ski, 30 Wis.2d 481, 141 N.W.2d 240, 244 (1966).
“(3) ‘Since the parol evidence rule is a rule of substantive law as well as a rule of evidence (citations omitted) we conclude that the parol evidence in this case must be ignored as having no probative value even though it was admitted without objection.’ Thornton Construction Co. v. Mackinac Aggregates Corp., 9 Mich.App. 467, 157 N.W.2d 456, 458 (1968).
“(4) ‘The parol evidence rule is not a rule of evidence, but is a rule of positive or substantive law founded upon the substantive rights of the parties. (Citations omitted.) Admission of testimony in violation of the parol evidence rule does not make the testimony competent, whether it is admitted without, or over, objection. Such evidence will be disregarded even though no objection is made thereto. (Citations omitted.) ... and an appellate court cannot consider such evidence or give it any weight.’ Farmers State Bank v. Reiser, 83 S.D. 354, 159 N.W.2d 388, 390 (1968).
“We find that, in addition to the decisions of the Supreme Courts of the states of California, Michigan, Wisconsin, and South Dakota, from which we quoted herein, there are another fourteen states that have recognized and approved the so-called modern rule. They are: Carey v. Shellbume, Inc., Del., 43 Del.Ch. 292, 224 A.2d 400 (1966); Waters v. Lanier, 116 Ga.App. 471, 157 S.E.2d 796 (1967); Williams v. Williams, 251 Iowa 260, 100 N.W.2d 185 (1959); O'Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891 (Ky.1966); Burrowes Corporation v. Read, 151 Me. 92, 116 A.2d 127 (1955); Sherman v. Kaufman, 349 Mass. 606, 211 N.E.2d 220 (1965); Melton v. Ensley, 421 S.W.2d 44 (Mo.App.1967); Fry v. Ashley, 228 Or. 61, 363 P.2d 555 (1961); Philip Carey Mfg. Co. v. General Products Co., 89 R.I. 136, 151 A.2d 487 (1959); Adams v. Marchbanks, 253 S.C. 280, 170 S.E.2d 214 (1969); Aetna Casualty & Surety Company v. Watson, 476 S.W.2d 868 (Tex.Civ.App.1972); Zehler v. E.L. Bruce Co., 208 Va. 796, 160 S.E.2d 786 (1968); Fleetham v. Schneekloth, 52 Wash.2d 176, 324 P.2d 429 (1958); North American Uranium, Inc. v. Johnston, 77 Wyo. 332, 316 P.2d 325 (1957).
“We are convinced that the rule established by the modern trend of judicial authority is sound, reasonable and just....
“Considering these principles of law and rules of evidence, we conclude that the mere failure by the plaintiffs to object to the admission of intrinsic evidence that is incompetent under the par-ol evidence rule does not constitute the relinquishment of a known right or privilege by them. We think that the crucial question presented for decision is whether a substantial breach of the material terms and conditions of a written contract by a party thereto is prohibited by and against the public policy expressed in our statute.
“We are convinced that the trial court erred in considering the evidence that was received in violation of the parol evidence rule and in the entry of an order directing the dismissal of plaintiffs’ action with prejudice for two sound and practical reasons:
“First, because the mere failure of the plaintiffs to object to the admission of intrinsic evidence cannot render competent or admissible, or impart any probative value, to evidence which was incompetent and inadmissible in the first instance under the parol evidence rule embodied in and expressly prohibited by our statute, in the absence of any claim of fraud, mistake or accident; and
“Second, because it is our plain duty to interpret the quitclaim deed involved herein in the light of the law in existence at the time of its execution and delivery, which must be read into and become an enforceable part thereof, and when so interpreted we find and determine that the parties thereto agreed:
“(1) That their written contract expressed their true intention;
“(2) That they would not adduce or rely upon extrinsic evidence to vary, contradict or impeach it, and having so agreed, they are bound thereby and cannot be permitted to repudiate or violate the material terms and conditions thereof.
“Manifestly, to permit either of the parties to breach or to dishonor their written agreement would not only destroy the value of written contracts, but seriously undermine and impair the stability and security of titles to real property, evidenced by written instruments, and thereby defeat the very purpose of the parol evidence rule, nullify the legislative enactment thereof, and induce the commission of perjury. 92 A.L.R., p. 812.
“For these reasons, we approve the rule established by the modern trend of judicial authority as an exception to the general rule that error in the admission of incompetent evidence must first be raised in and decided by the trial court before it can be assigned as prejudicial error upon appeal.
“Consequently, we find and determine that we not only have the legal right, but the explicit duty, to disregard and to exclude from our consideration in the rendition of our decision all of the oral or intrinsic evidence, admitted without objection, in violation of the parol evidence rule.”

221 N.W.2d at 629-32. Accord Barber v. McCord Auto Supply, Inc. (In re Pearson Indus., Inc.), 147 B.R. 914 (Bankr.CD.Ill.1992); Tri-Cities Forklift Co. v. Conasauga River Lumber Co., 700 S.W.2d 548 (Tenn.Ct.App.1985); and Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1 (Tex.App.-Houston [1st Dist.] 2005).

This case illustrates the inherent injustice in allowing a technical rule of procedural law to overcome the substantive rights of the parties. By determining that the wife has waived any argument as to the sufficiency of the parol evidence upon which the trial court relied in construing the 2004 agreement, this court is allowing the 2004 agreement to be interpreted in a manner totally contrary to its plain and unambiguous terms. Despite Alabama law that parol evidence is ineffective to vary the terms of a written agreement, this court is affirming a judgment based exclusively on the testimony of an advocate for the husband, which testimony absolutely contradicts the terms of the 2004 agreement. Basically, this court is allowing a trial court to disregard the terms of a written agreement because a former attorney for one of the parties testified that it means something different than what it actually says. The trial court did not enforce the 2004 agreement; it enforced a totally different agreement proven solely by the words of former counsel for the husband. As a result, the wife lost, among other things, her right to contest the grounds for divorce, her right to an equitable division of property, and her right to alimony. The better-reasoned rule would have required this court to disregard the parol evidence, which would have mandated a reversal of the trial court’s judgment and would have allowed the divorce of the parties to be decided based on actual evidence.

Because I am constrained by the decisions of our supreme court, I must agree that the main opinion correctly disposes of the wife’s argument regarding the sufficiency of the evidence by holding that the factual findings of the trial court are supported by the testimony of the husband’s former attorney. However, I urge the supreme court to reconsider its position and to adopt the “new rule,” which requires appellate courts to apply the substantive law that parol evidence cannot be considered to the extent it contradicts the terms of a written instrument even if the appealing party fails to object to the introduction of such evidence.

      . In her motion for increased support, the former wife asked only for an increase in pendente lite support. by the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing Ex parte Wig-inton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala. 1988). This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant's evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element. Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).”

        Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). Therefore, we deny Helen’s motion to strike Jack's letter adopting the brief filed by the Chapel and the Bank.
      Finally, the Chapel and the Bank move this court to strike the portion of Helen’s reply brief requesting us to strike the brief filed by the Chapel and the Bank. We deny that motion to strike as being moot.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Helen McKNIGHT, as conservator of the estates of William Walker Way and Alexander Spiller Way and as executor of the estate of Linda McKnight v. Jack WAY et al.
    2090508.
    Court of Civil Appeals of Alabama.
    June 25, 2010.
    Rehearing Denied Aug. 6, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091585.

      J. Paul Whitehurst, Northport, for appellant.
    John T. Fisher, Jr., and Jaime Webb Conger of The Fisher Law Firm, P.C., Tuscaloosa, for appellee Tuscaloosa Memorial Chapel, Inc.; and Randolph M. Fowler of Phelps, Jenkins, Gibson & Fowler, LLP, Tuscaloosa, for appellee The Peoples Bank & Trust Co.
   BRYAN, Judge.

Linda McKnight (“Linda”), a resident of Pickens County, died testate on May 11, 2006. Item Two of Linda’s will left all of her property to her three children, Drew Smithart (“Drew”), William Walker Way (“William”), and Alexander Spiller Way (“Alex”):

“ITEM TWO
“I give, devise, and bequeath all of my property, real, personal or mixed, of every kind and description, wherever located, to my children, Drew Smithart, William Way and Alex Way. The property (including real estate and all furnishings and contents) designated as 13593 Riverbend Road, Moundville, AL 35474, located in Tuscaloosa County shall be owned by my sons as joint tenants with right of survivorship. Drew Smithart is to have all jewelry and furniture that was given to me by him or his father. This includes a diamond engagement ring in unusual setting, a diamond cross necklace, a yellow gold diamond teardrop necklace and plain diamond earrings to match, a solid pearl necklace, matching earrings with gold jackets, one pearl and one jade enhancer, a solid gold large ring, and diamond loop earrings. He also gets my fur coat and his truck. William and Alex shall share the rest of my jewelry, furniture and personal effects, equally. I LOVE YOU ALL. YOU HAVE BEEN THE LIGHTS, JOYS AND LOVES OF MY LIFE. I WILL SEE YOU IN HEAVEN. I hope I have provided for your needs and ask you to spend your money and use your hearts wisely. My sons are already given the manufactured house owned by myself and located at 994 Clear Creek Road, Gordo, AL, 35466 as tenants in common. They may move it or live in it where it stands or sell it.”

(Capitalization in original.)

Item Five of Linda’s will prohibited her former husbands, Bill Smithart and Jack Way (“Jack”), from having possession or control of any property belonging to Drew, William, or Alex that they had acquired through Linda, her sister, or her parents:

“ITEM FIVE
“I name as guardian of the person and as conservator and/or trustee of the estate of each child of mine Helen McKnight, my mother, and Drew Smit-hart, my son, presently of Pickens County, Alabama, or if he/she for any reason fails or ceases to act as such guardian or conservator, then the other shall act alone. No bond or other security shall be required of a conservator, guardian or trustee acting under this Will or on behalf of any life insurance or IRA beneficiaries. It is my intention by the appointment of a guardian of the person that such guardian shall have custody of the person of the minor children. It is my desire that my named guardians and custodians immediately get a custody order for all my children upon my death. Upon each child reaching 18, it is my desire that each such child shall be relieved of any disabilities of non-age and shall be emancipated, guardian of their own person, and conservator of their own money.
“Anybody who contests this will shall receive nothing. Neither [Bill Smit-hart] nor Jack [Way] is to ever have possession or control of any items or funds from life insurance, IRAs, this will or other method of acquisition belonging to my children and acquired by, through or under myself, my sister, or my parents. This is based not on spite, for I loved them both; but upon their proven criminal track records with money (even if one of them remains uncon-victed). I wish I could say it more delicately, but I cannot. They are not to touch one penny of Drew’s, William’s or Alex’s assets.”

(Emphasis added.)

The Probate Court of Pickens County admitted Linda’s will to probate and issued letters testamentary to Helen McKnight (“Helen”), Linda’s mother. The probate court also appointed Helen conservator of the estates of William and Alex.

William, who was Jack’s son, died on September 24, 2006, at the age of 15. The Probate Court of Tuscaloosa County opened a decedent’s estate for William and issued letters of administration to Tuscaloosa Memorial Chapel, Inc. (“the Chapel”), William’s largest creditor. Although the record before us is not complete, Jack apparently asserted that Helen, as William’s conservator, was obligated to transfer the property in William’s conservator-ship estate to Jack on the ground that it had vested in Jack by virtue of the statute governing intestate succession. Although her petition is not in the record before us, Helen apparently petitioned the Probate Court of Pickens County to determine that the property in William’s conservatorship estate should be transferred to Linda’s estate so that it could be divided between Drew and Alex. Following a hearing, the Probate Court of Pickens County entered a judgment determining that Jack was entitled to the property in William’s conser-vatorship estate by virtue of the law of intestate succession. That judgment stated:

“This cause was before the court for hearing on the conservator’s Petition to Determine Distribution of the Estate. Helen McKnight is the conservator of the subject estate and the maternal grandmother of William Walker Way.
“Present in the courtroom were the conservator and her attorney the Hon. J. Paul Whitehurst, and the Hon. Thomas R. Jones, Jr., the attorney representing Jack Way who is the father and sole heir at law of William Walker Way. William Walker Way was 15 at the time of his death and therefore lacked legal capacity to make a will. The conservator’s petition at paragraph 3, page 1, acknowledges that Jack Way is William’s only heir at law pursuant to Alabama’s law of intestate succession. Code of Alabama 1975, § 43-8^2.
“The attorneys made opening and closing arguments to the court. Ms. McKnight testified on direct examination of her attorney and cross-examination of Mr. Jones. No other witnesses were called by either side.
“The assets comprising the subject conservatorship estate devolved substantially from the estate of Linda McKnight, the mother of William Walker Way who preceded her son in death. The conservatorship was established to receive and conserve the assets obtaining to William Walker Way from his mother’s estate, his separate estate and proceeds of a life insurance policy. Linda McKnight and Jack Way were divorced several years prior to Linda’s death. It is clear in Linda’s will that she did not want Jack Way to benefit from her estate, either directly or indirectly. However, pro-vision is not made in the will for disposition of the assets received from her estate by William Walker Way upon his death.
“The conservator is now asking the court to construe Linda McKnight’s will to read that her intent, as expressed in the will, was to restrict the transferred property to the children so that Jack Way could not benefit from the transfer upon the death of one of his children. In other words, the court should now order a renunciation of the property received from Linda’s estate by the con-servatorship thereby returning the property to Linda’s estate so that her two surviving sons would then share equally in William’s share. The court, however, must apply the law of Alabama’s intestate succession statute because the assets obtaining to William Walker Way from his mother’s estate vested in him by operation of law at the moment of Linda’s death. Code of Alabama 1975, § 43-8-42.
“The section of the statute applicable to the instant issue is found at § 43-8-42(2) which directs that in the event of no surviving issue, the intestate’s estate shall devolve in toto to the surviving parent or parents. Such is the case here. William Walker Way had no surviving spouse or issue at the time of his death and was survived by his father, Jack Way. The conservatorship estate is within the jurisdiction of this court and shall be distributed under this ORDER as below directed.
“IT IS THEREFORE THE ORDER OF THE COURT that:
“1. The conservator of the William Walker Way conservatorship case number 6735 now pending in the Probate Court for Pickens County, Alabama, shall within 80 days from the date hereof petition the court for a final settlement of the subject conservatorship estate and upon a hearing shall submit her final account for all receipts and disbursements.
“2. Upon the court’s entry of order approving the conservator’s account and final settlement of the conservatorship, the assets thereof shall be transferred from this court to the Tuscaloosa County Probate Court for administration and distribution under the estate case of William Walker Way now pending before that court.”

(Capitalization in original.) Helen, in her capacities as William’s and Alex’s conservator and as Linda’s executor, then appealed from that judgment to the Pickens Circuit Court (“the circuit court”).

The Chapel appeared in Helen’s appeal in the circuit court and moved the circuit court to compel Helen to file a final settlement of William’s conservatorship estate and, upon approval of that final settlement, to order Helen to transfer William’s property to the decedent’s estate established for William by the Probate Court of Tuscaloosa County. The Peoples Bank & Trust Company (“the Bank”), a judgment creditor of Jack’s, filed a motion seeking leave to intervene in Helen’s appeal and requesting that the circuit court compel Helen to file a bond as required by an earlier order of the Probate Court of Pickens County. The record before us does not indicate whether the circuit court ruled on that motion.

Following a hearing, the circuit court entered a judgment affirming the judgment of the Pickens County Probate Court. The circuit court’s judgment stated:

“This action is before the Court on the Appeal of Helen McKnight, Conservator of the Estates of William Walker Way and Alexander Spiller Way, and Executor of the Estate of Linda McKnight deceased, from the Order entered by the Probate Court of Pickens County, Alabama, on the Petition to Determine Distribution which was entered by the Probate Court on February 22, 2007. The parties, except Jack Way, appeared by counsel and the Court proceeded to consider the record, briefs and arguments of counsel.
“Bad facts make bad law. The facts in this case go beyond bad to heartbreaking. This Judge was fortunate to have had Linda McKnight practice law in his court. She was a lawyer’s lawyer, completely ethical and honest and fought hard for her clients. Ms. McKnight had a great sense of humor and the uncanny ability to communicate with people from all walks of life.
“The only thing more important to Ms. McKnight than her profession was her family. She loved her children, took great pride in their accomplishments and found humor in their ‘life experiences.’
“As a consummate lawyer, Ms. McKnight believed in the rule of law. This Court takes no pleasure in this ruling but, just as Ms. McKnight was, is bound by the rule of law and must deny this appeal.
“IT IS ORDERED, ADJUDGED AND DECREED that the appeal of Appellant] Helen McKnight, Conservator of the Estates of William Walker Way and Alexander Spiller Way and Executor of the Estate of Linda McKnight, deceased, is denied and this Court does hereby affirm and adopt the Order on Petition to Determine Distribution entered by the Probate Court for Pickens County, Alabama, on February 22, 2007.”

(Capitalization in original.)

Helen then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Helen argues that we must reverse the judgment of the circuit court because, she says, the language in Item Five of Linda’s will stating that “[n]either [Bill Smithart] nor Jack [Way] is to ever have possession or control of any items or funds from life insurance, IRAs, this will or other method of acquisition belonging to my children and acquired by, through or under myself, my sister, or my parents” (“the Item Five language placing a restriction on Jack”) constitutes a valid and enforceable restriction on the alienation of her property to Jack and that Linda’s will, considered as a whole, indicates that she intended her gift to her children in Item Two to be contingent upon their dying under circumstances in which possession or control of property her children had received from her, her sister, or her parents would not pass to Jack.

When the resolution of an appeal turns on the construction of a will, we apply a de novo standard of review. See Harrison v. Morrow, 977 So.2d 457, 459 (Ala.2007).

“ ‘The law in Alabama regarding the interpretation of wills is well settled:
“ ‘ “[T]he intention of the testatrix is the law of the will, which the court should consider as a whole, giving effect to each provision where it is possible to do so; it is the court’s duty to carry out the testatrix’s intention where that intent can be ascertained. To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator’s or testatrix’s intent, then that language must govern. Galin v. Johnson, 457 So.2d 359 (Ala.1984). Where a will contains ambiguous or doubtful expressions, it is the duty of the court to determine what the testator or testatrix intended. Brittain v. Ingram, 282 Ala. 158, 209 So.2d 658 (1968).” ’
“Barnett v. Estate of Anderson, 966 So.2d 915, 918 (Ala.2007). ‘A document is unambiguous if only one reasonable meaning emerges.’ Kershaw v. Kershaw, 848 So.2d [942] at 951 [ (Ala. 2002) ].”

Scholl v. Stacy, 981 So.2d 1116, 1120 (Ala.2007).

We conclude from a careful review of the language of Linda’s will as a whole that, with the exception of William’s interest in the “property (including real estate and all furnishings and contents) designated as 13593 Riverbend Road, Moundville, AL 35474, located in Tuscaloosa County” (“the Riverbend Road property”), which her will gave to Drew, William, and Alex “as joint tenants with right of survivorship,” Linda intended to make a gift of an absolute fee interest in her property to Drew, William, and Alex. We further conclude that Linda did not intend the Item Five language placing a restriction on Jack to add a contingency to the gift of her property to her children as provided in Item Two or to provide for the disposition of her children’s property upon their deaths. Rather, we conclude from the fact that the Item Five language placing a restriction on Jack stated that he was never to have possession or control of property belonging to her children, which would occur if he was ever appointed as a conservator or trustee for her children, and from the fact that the Item Five language placing a restriction on Jack immediately follows the language of Item Five nominating Helen and Drew to serve as conservators and trustees for William and Alex that Linda intended the Item Five language placing a restriction on Jack to prevent him from being appointed as a conservator or trustee for Drew, William, or Alex. Accordingly, aside from William’s interest in the Riverbend Road property, which passed to Drew and Alex by virtue of their rights of survivorship, the disposition of William’s property upon his death was governed by the intestate-succession statutes. In pertinent part, § 43-8-42, Ala. Code 1975, provides:

“The part of the intestate estate not passing to the surviving spouse under section 43-8-41, [Ala.Code 1975,] or the entire intestate estate if there is no surviving spouse, passes as follows:
“(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
“(2) If there is no surviving issue, to his parent or parents equally.... ”

(Emphasis added.) Because William did not have a spouse or issue when he died, his property, other than his interest in the Riverbend Road property, passed to Jack upon William’s death. Accordingly, we affirm the judgment of the circuit court.

AFFIRMED.

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

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

      . Helen also argues in her reply brief that we should strike the brief filed with this court by the Chapel and the Bank. We will treat her argument as a motion to strike their brief. As grounds, Helen asserts that the Chapel and the Bank lack standing to oppose her appeal. First,, we note that, because Jack was a party to the action in the Probate Court of Pickens County and was a party to Helen's appeal to the circuit court, Helen's challenge to the standing of the Chapel and the Bank does not constitute a challenge to the jurisdiction of the Probate Court of Pickens County, the circuit court, or this court. Second, we note that Helen has not argued to us that the circuit court erred in allowing the Chapel and the Bank to participate in the appeal in the circuit court and that, therefore, Helen has waived that issue on appeal. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ 'When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ. App.1996).”). Third, we note that Helen named the Chapel and the Bank as appellees in her notice of appeal to the supreme court. Fourth, we note that, even if the Chapel and the Bank lacked standing as appellees, we could consider their brief as the brief of amici curiae. See Rule 29, Ala. R.App. P. Accordingly, we deny Helen's motion to strike the brief of the Chapel and the Bank.
      Helen also argues in her reply brief that we should strike Jack's letter adopting the brief filed with this court by the Chapel and the Bank. We will treat that argument as a motion to strike Jack's letter. As grounds, Helen argues that Jack did not present the arguments contained in that brief to the circuit court. However, although we cannot reverse a lower court’s judgment on the basis of an argument that was not presented to the lower court, we can, subject to exceptions not applicable here, affirm a lower court's judgment on the basis of an argument that was not presented to it.
      "[Tjhis Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected,


text:
    Tracy Lynn MULLINS v. Lisa Christine SELLERS.
    2090297.
    Court of Civil Appeals of Alabama.
    Sept. 3, 2010.
    Cliff Kerry, Huntsville, for appellant.
    Julia Smeds Roth and Heather N. Hudson of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.
   BRYAN, Judge.

Tracy Lynn Mullins (“the father”) appeals from a judgment entered by the Madison Circuit Court (“the trial court”) that found him in contempt for failure to pay child support, ordered him to pay his child-support arrearage, and sentenced him to serve 700 days in jail for 140 separate acts of contempt, with all but 5 days of that term suspended.

The father and Lisa Christine Sellers (“the mother”) were divorced by the trial court in September 1995. Two children were born of the parties’ marriage, a boy born in September 1985 (“the older child”) and a boy born in August 1990 (“the younger child”) (hereinafter the older child and the younger child are referred to collectively as “the children”). Pursuant to the divorce judgment, the mother was awarded physical custody of the children and the father was ordered to pay child support. On or about May 25, 2001, the parties entered into an agreement modifying the divorce judgment so that the father was awarded custody of the older child and neither party was responsible for the payment of child support; that agreement was incorporated into a judgment of the trial court (“the May 2001 modification judgment”). The May 2001 modification judgment included a provision that the father would not be responsible for any past or future dental expenses of the children arising from a genetic disorder that the children had.

The divorce judgment was modified again on August 30, 2001 (“the August 2001 modification judgment”), and, pursuant to that modification judgment, the mother was awarded custody of the older child and the father was ordered to pay $451.08 a month in child support, beginning on August 13, 2001. The father was ordered to make the child-support payments on the 15th day of each month through the clerk of the trial court. The parties were also ordered to equally share the cost of the children’s “health care services which are not covered by insurance ... including bills for doctors, hospitals, prescription drugs, orthodontic, dental, and optometric expenses.”

On June 13, 2008, the mother filed a petition for a rule nisi alleging that the father had failed to pay court-ordered child support from August 13, 2001, until the day she filed her petition, and she requested that the father be ordered to pay the child-support arrearage due with interest. The mother also requested an award of her attorney’s fees. The father filed an answer to the mother’s petition for a rule nisi, and he denied all the allegations made by the mother.

The trial court conducted an ore tenus hearing on October 21 and 22, 2009. The mother and the father both testified that the father had paid his child-support obligation as ordered in the August 2001 modification judgment from August 2001 through May 2002. It was also undisputed that the father had not made a single child-support payment through the clerk of the trial court from June 2002 through the date of the final hearing in October 2009.

The evidence revealed that both the older child and the younger child had lived, at times, with the father despite the fact that the mother had had physical custody of the children. According to the mother, the older child had lived with the father from June 2002 through December 2002. However, according to the father, the older child had lived with him from June 2002 through May 2004. The mother testified that the father had stopped paying child support after the older child moved into the father’s home. According to the father, he and the mother had agreed in June 2002 that the father no longer had to pay child support because the older child was living with him and the younger child was living with the mother. The mother denied that the parties had reached such an agreement. The father stated that he began paying child support directly to the mother after the older child turned 19 years old in September 2004.

Tina Mertz, the father’s sister, testified that she was present when the mother and the father reached an agreement in May 2002 that the father would not owe child support to the mother because the older child was going to live with the father. The mother testified that she agreed in June 2002 that, as long as the older child was in high school and was living with the father and the younger child was living with her, she would not require the father to pay child support. The mother stated that she expected the father to resume paying child support in December 2002, after the older child graduated from high school.

The father testified that when the older child lived with him he provided the older child’s housing, utilities, cable television, food, clothing, vehicle, car insurance, gasoline, and vehicle maintenance and paid for the older child’s extracurricular activities. The father stated that, even though he and the mother had reached an agreement that he did not have to pay child support while the older child was living with him, he had paid the mother child support during that time. The older child graduated from high school in December 2002, and the mother testified that she had supported the older child while he was in high school and after he graduated from high school by purchasing clothing for the older child and by giving him money.

According to the mother, the younger child moved in with the father in October 2008, but the father testified that the younger child had begun living with him in June 2008. The father testified that, when younger child lived with him, he paid for the younger child’s housing, utilities, Internet service, vehicle, vehicle maintenance, clothing, and food. The father testified that he only gave the mother child support when she asked for it.

The mother submitted an exhibit that calculated the father’s child-support obligation from June 13, 2002, until July 13, 2009, which was the month before the younger child turned 19; according to the mother, the father’s child-support arrear-age for that period totaled $42,942.12, including interest. However, the mother testified that, because the younger child had gone to live with the father in October 2008, she was not seeking child support from the father that would have been due after October 2008. The mother submitted an exhibit that calculated the father’s child-support arrearage, including interest, due from June 2002 through October 2008. According to the mother’s calculations, the father owed $38,343.20 in child support for that period.

The father was responsible for payment of one-half of the medical and dental expenses of the children, and the mother testified that the father had given her money, in the form of checks, to cover his one-half of the medical expenses of the children. The mother testified that the younger child had several medical conditions, including a genetic disorder, and that she had incurred approximately $8,000 in medical bills for the younger child in 2008. The father alleged that he did not have to pay for the medical treatment of the younger child insofar as it arose from his genetic disorder, pursuant to the May 2001 modification judgment. However, he admitted that he did have to pay half of the children’s regular dental costs.

The mother stated that the father had provided some child support directly to her and that she was willing to allow the father’s child-support arrearage to be credited to reflect the payments that the father had made directly to her. The father submitted an exhibit into evidence that contained copies of approximately 19 canceled cheeks payable to the mother between March 2004 and January 2009, which totaled $11,614.73. The father admitted that approximately $414.73 from those payments was to reimburse the mother for payment of the younger child’s medical expenses. The father also submitted an exhibit into evidence that contained check stubs that purported to show that he had paid the mother approximately $3,600 from July 2004 through July 2006. The mother further admitted that the father had paid her $600 in October 2007. The father also estimated that he had paid the mother approximately $2,500 in child support between June 2002 and March 2004 that he could not support with evidence from his check register or with canceled checks. The mother testified that at least $3,364.73 that the father had given her in 2008 was for payment of one-half of the younger child’s medical expenses for which the father was responsible. The mother also testified that approximately 80% of the money that the father had provided to her was for payment of his half of the children’s medical expenses. The father claimed that the checks he had given to the mother were for child support and not for medical expenses.

The father owned his own plumbing business, which was incorporated in 2006. The father’s income-tax records demonstrated that his gross income was $40,801 in 2002, $15,304 in 2003, $13,612 in 2004, $47,327 in 2006, $97,187 in 2007, and $153,348 in 2008. The father stated that he did not have the ability to pay child support on a regular basis before 2006, but he admitted that he had had the ability to pay child support for the three years before the ore tenus hearing.

On November 9, 2009, the trial court entered a final judgment, which stated, in pertinent part:

“3. The evidence reveals that the [father] never paid any child support payments through the Office of the Clerk of Court even though required to do so by the Divorce Decree as amended.
“4. The evidence further reveals that, even when prior custody orders of the court vested the [mother] with the primary custody of one or both children at specific intervals, both of the children during their minority lived by agreement with the [father] from time to time and the [father] claims a credit should be afforded to him against any child support that the Court determines to be due and owing.
“5. As a result, for the period of time of August 1, 2001 through August, 2009, the Court finds that the sum of $38,343.20 as child support would be due and owing pursuant to the Deoree of Divorce, as amended, from the [father] to the [mother], but the Court also finds that a credit of $19,000.00 should be awarded to the [father] for support furnished by him for the periods of time when the children were living with him and he was furnishing virtually all of their support. Due to the haphazard payments made by the [father] to the [mother], none of which were through the Clerk’s office, the Court credits the [father] with $19,000.00 worth of child support towards the arrearage mentioned above, leaving a balance due and owing to the [mother] of $19,343.20.
“WHEREFORE, premises considered, the Court ORDERS as follows:
“A. That the [father] has committed numerous acts of contempt; specifically, he has never paid child support through the Office of the Clerk of Court as required since the entry of the Amended Order on August 1, 2001, for a total of ninety-seven (97) separate acts of contempt.
“B. That the [father] is delinquent in the amount of child support in the amount of NINETEEN THOUSAND, THREE HUNDRED FORTY-THREE AND 20/100 ($19,343.20) DOLLARS for which a Judgment is entered in favor of the [mother] against the [father] and for which the [father] shall make minimum monthly payments of at least FIVE HUNDRED AND 00/100 ($500.00) DOLLARS per month on the first day of each month following, commencing December 1, 2009. Further, the Court finds that the [father] committed at least forty-three (43) separate acts of contempt by willfully and intentionally failing to pay child support to the [mother] during periods of time when he had the financial means to do so.
“C. The Court finds from the foregoing that the [father] has committed one hundred forty (140) numbers of incidents of contempt for each of which he is hereby sentenced to the Madison County Jail for a period of five (5) days or a total of seven hundred (700) days. All but five (5) days of this sentence shall be suspended and the [father] shall be placed on unsupervised probation pending further compliance by the [father] of all other provisions of this or any prior orders entered in this cause....
“D. The [mother] is awarded a reasonable attorney’s fee in the amount of FIVE THOUSAND AND 00/100 ($5,000.00) DOLLARS for the services of her attorney in this action and for which a judgment is entered in favor of the [mother] against the [father] for which execution may issue.”

The father filed a timely notice of appeal to this court, and the trial court entered a stay of execution of its November 2009 judgment pending resolution of the father’s appeal to this court.

The father raises several issues on appeal: (1) whether the trial court erred by finding him guilty of contempt on 10 occasions between August 1, 2001, and May 2002; (2) whether the trial court erred by finding him guilty of contempt on 11 occasions between October 2008 and August 2009; (3) whether the trial court erred by failing to give him credit for payments he made directly to the mother; (4) whether the trial court erred by finding him guilty of contempt when there was no evidence indicating that he had acted willfully in his failure to pay child support through the clerk of the trial court; (5) whether the trial court erred by finding him guilty of 43 separate acts of contempt; (6) whether the trial court erred by finding him guilty of contempt during periods of time that the father provided all the support for the children; (7) whether the trial court erred by finding that he had committed willful acts of contempt by making direct payments to the mother; (8) whether the trial court erred in calculating the arrearage awarded to the mother; (9) whether the trial court erred by awarding the mother attorney’s fees following a criminal-contempt action; and (10) whether the trial court exceeded its discretion by sentencing the father to 700 days in jail, with all but 5 days of that term suspended.

In response to the father’s arguments on appeal, the mother argues that the issues argued by the father should not be considered by this court because the father failed to comply with Rule 28, Ala. R.App. P. Indeed, the father’s brief on appeal does not contain a statement of facts or a statement regarding the applicable standard of review, and, as the mother points out, several of the arguments made by the father on appeal are not supported by citation to authority. See Rule 28(a)(7), (8), and (10), Ala. R.App. P. Although the father’s brief is not a model of clarity, we are able to ascertain most of the father’s arguments on appeal, and, thus, we will not dismiss the father’s appeal on the basis of his failure to comply with Rule 28. See Du-bose v. Dubose, 964 So.2d 42, 46 n. 5 (Ala.Civ.App.2007) (when an appellant’s brief fails to comply with Rule 28, this court may affirm the judgment on the basis of the failure to comply with Rule 28, but we are not required to do so).

However, we will not address the issues raised by the father on appeal at this time because we detect inconsistencies in the judgment that hinder our ability to fully address each of the issues raised by the father on appeal. Thus, in this particular case, we find that the best course is to reverse the judgment and remand the cause with instructions to the trial court to clarify its judgment and address the discrepancies in the judgment discussed below.

In paragraph A of the trial court’s final judgment, the trial court found that the father had committed 97 separate acts of contempt because of his failure to pay child support through the trial-court clerk’s office after August 1, 2001. The period between August 2001 and August 2009 consists of 97 months. Thus, the trial court’s finding in paragraph A implies that the trial court found that the father had willfully failed to obey prior orders of the trial court ordering him to pay child support in each month from August 2001 through August 2009. The trial court, in its final judgment, determined that the total arrearage that accumulated during that time was $38,343.20. However, our calculations reveal that the father’s child-support arrearage, accruing over a period of 97 months, would have totaled $43,754.76, plus interest. The amount of the total arrearage owed by the father, as determined by the trial court, implies that the trial court agreed with the mother’s assertion that she was owed child support with interest from June 2002 through August 2009. However, that finding is in conflict with the trial court’s finding that the father willfully failed to pay child support for 97 months between August 2001 and August 2009. The discrepancy in the number of acts of contempt and the amount of the accumulated arrearage could not be due to the credit that the trial court applied to the father’s arrearage because the trial court deducted all credits that the father was due to receive from the total amount of the accrued arrearage that it found, i.e., $38,343.20.

Furthermore, the judgment states that the amount of the father’s child-support arrearage, or $38,343.20, is due to be reduced by a $19,000 credit for support that the father periodically provided to the children while the children lived with the father. The final judgment implies that the trial court did not give the father credit for support payments that he allegedly made directly to the mother. Because our understanding of the judgment is that the trial court did not credit the father with payments that he made directly to the mother, we are unable to discern how the trial court determined the amount of credit that the father was due. Because we are unable to determine from the record on appeal how the trial court arrived at its child-support-arrearage award, we reverse the judgment and remand the cause for further proceedings. See Hildesheim v. Velaski, 769 So.2d 920, 923 (Ala.Civ.App.1999) (reversing judgment and remanding for recalculation of child-support arrearage when we were unable, after a review of the evidence, to determine “how the trial court reached its total when it calculated the arrearage”).

Finally, in Paragraph B of the trial court’s judgment, the trial court found that the father was guilty of 43 separate acts of contempt, in addition to the 97 acts of contempt referred to in paragraph A, for willfully and intentionally failing to pay child support to the mother during periods of time when the father had the financial ability to do so. The judgment does not explain how the father committed 43 separate acts of contempt in addition to the 97 acts of contempt that the father had been found guilty of committing between August 2001 and August 2009. Because we are unable to determine how the trial court reached this conclusion in its judgment, we instruct the trial court to clarify this portion of its judgment on remand.

For the foregoing reasons, we reverse the judgment and remand the cause to the trial court with instructions for the trial court to consider the evidence already presented by the parties and to clarify its final judgment. We pretermit discussion of the remaining issues raised by the father on appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

THOMPSON, P.J., concurs in the result, without writing.

      . The mother also requested an upward modification of the father's child-support obligation. However, the trial court subsequently granted the mother’s motion to dismiss that part of her petition.

      . The copies of canceled checks submitted by the father demonstrated that in 2008 the father had written checks payable to the mother in the amount of $4,914.73.

      . The father's income records for the year 2005 were not presented at the final hearing.

      . We note that, based on the trial court’s judgment, the trial court apparently did not consider the undisputed testimony from the mother and the father that the father had paid child support through the trial-court clerk’s office from August 2001 through May 2002.

      . The trial court’s finding of the total accrued arrearage matches exactly the amount of child support and interest that the mother testified that she was due. However, the mother’s calculations were based on nonpayment of child support from June 2002 through October 2008, and the trial court's judgment concludes that die father had not paid child support from August 2001 through August 2009.