author: THOMPSON, Presiding Judge.

text:
    Jermaine PHILLIPS v. NATIONAL SECURITY FIRE & CASUALTY COMPANY.
    2090802.
    Court of Civil Appeals of Alabama.
    Oct. 15, 2010.
    Ron A. Andress of Holston, Vaughan, Andress, LLC, Mobile, for appellant.
    Anthony M. Hoffman of Zieman, Spee-gle, Jackson & Hoffman, LLC, Mobile, for appellee.
   THOMPSON, Presiding Judge.

Jermaine Phillips appeals from a summary judgment entered in favor of National Security Fire & Casualty Company (“National Security”), Phillips’s homeowner’s insurance carrier, in his action arising from National Security’s denial of a claim Phillips had made under his policy.

The evidence submitted to the trial court supporting and in opposition to National Security’s motion for a summary judgment indicated the following. Phillips purchased a house in Whistler in February 2007. Phillips had been renting the house, and he was aware that the roof leaked. Therefore, as a condition of the purchase, Phillips required the seller to repair the roof. The seller did so, and the closing took place. Despite the repairs, however, the roof continued to leak. About one month after the closing, Global Roofing Company replaced the roof. Nevertheless, the roof continued to leak, causing damage to the interior of the house.

When Phillips bought the house, he also purchased a homeowner’s insurance policy from National Security (“the policy”). The policy was effective from February 16, 2007, to February 16, 2008, the period during which the events made the basis of this action occurred, and provided coverage for damage resulting from specific “perils.” In pertinent part, the policy stated as follows:

“We insure against direct physical loss caused by the following perils, unless the loss is excluded under the General Exclusions:
“1. Fire or Lightning
“2. Explosion
“3. Windstorm or Hail — However, we do not pay for loss:
“a. to the interior of a building or mobile home, or to property inside a structure caused by dust, rain, sand, sleet, snow or water, all whether driven by wind or not, which enter through an opening not made by the direct force of wind or hail;
“A Riot or Civil Commotion “5. Aircraft....
“6. Vehicles....
“7. Sudden and Accidental Damages from Smoke....
“8. Sinkhole Collapse....
“9. Volcanic Action....
“10. Vandalism....”

The “General Exclusions” portion of the policy specifically excluded damage incurred as the result of faulty workmanship or materials. The provision also included an “ensuing-loss” provision. The exclusion and ensuing-loss provision stated:

“We do not pay for loss if one or more of the following exclusions apply to the loss, regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events act to produce the loss before, at the same time as, or after the excluded causes or events.
“13. Errors, Omissions, and Defects — We do not pay for loss which results from one or more of the following:
“a. an act, error, or omission (negligent or not) relating to:
“2) the design, specification, construction, workmanship, installation of property;
“b. a defect, a weakness, the inadequacy, a fault, or unsoundness in material used in construction or repair whether on or off the insured premises.
“We do pay for an ensuing loss unless the ensuing loss itself is excluded.”

The “water-damage” exclusion in the policy, which, in this case, would be the applicable exclusion referred to in the ensuing-loss provision, states:

“10. Water Damage — We do not pay for loss which results from the following:
“a. flood, surface water, waves, tidal water, overflow of a body of water,, or spray, all whether driven by rain or not;
“b. water which backs up through or overflows from sewers, drains, or sumps; or
“c. water below the surface of the ground. This includes water which exerts pressure on, or seeps or leaks through or into a building, sidewalk, driveway, foundation, swimming pool, or other structure.”

In his deposition, Phillips acknowledged that the damage to the interior of his house was not caused by any of the listed perils but ensued from the “faulty roof.” He also acknowledged that coverage for the roofing company’s faulty workmanship was explicitly excluded from the policy; therefore, the cost to replace his roof was not recoverable under the policy. However, Phillips argued, water damage to the interior of his house “ensued” from that faulty workmanship. Therefore, he reasoned, the ensuing-loss provision entitled him to indemnification for the interior damage resulting from the “faulty roof.” Based upon that rationale, Phillips filed a claim for the water damage to the interior of his house.

Judy Hill-Hart, a National Security claims adjuster, went to Phillips’s house and determined that the damage to the house for which Phillips sought coverage did not result from one of the listed perils in the policy. Based upon the findings of the adjuster, National Security denied Phillips’s claim. Phillips then sued National Security alleging claims of breach of contract and bad faith. In the same action, Phillips also sued Global Roofing Company, asserting claims' of negligence and breach of contract arising from the allegedly defective workmanship carried out in replacing the roof on the house.

National Security moved for a summary judgment as to both the claims Phillips had asserted against it. National Security argued that, because the interior damage resulting from water leaking from the “faulty roof’ was not a peril included in the coverage section of the policy, it had properly denied Phillips’s claim. The trial court agreed and granted National Security’s motion for a summary judgment.

The claims against Global Roofing remain pending. Because the summary judgment resolved all Phillips’s claims against National Security and because they believed there was no just reason for delay, Phillips and National Security filed a joint motion for the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The trial court granted the joint motion. Phillips then appealed the summary judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Phillips asserts that the trial court erred in entering, the summary judgment for National Security because, he says, the ensuing-loss provision of the policy grants him coverage for the interior water damage that ensued from the faulty roof. He appears to contend that the ensuing-loss provision renders ambiguous the specific coverage granted in the policy; thus, in light of that provision, he asserts, a jury must determine whether National Security properly denied his claim.

“The standard by which this Court will review a motion for summary judgment is well established:
“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R.Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’”

Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

Our supreme court has recognized that “‘[t]he issue whether a contract is ambiguous or unambiguous is a question of law for a court to decide.’” Federated Mut. Ins. Co. v. Abston Petroleum, Inc., 967 So.2d 705, 709 (Ala.2007) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 308 (Ala.1999)). As the Slade court stated, if the terms within an insurance policy “‘are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court....’” Slade, 747 So.2d at 308 (quoting McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991)). Because the question of ambiguity is one of law, we must first decide whether the ensuing-loss provision in the policy is ambiguous or unambiguous. If the provision is unambiguous, then we must enforce the terms of the insurance policy as written. Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So.2d 1140 (Ala.2005). In Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Insurance Co., 347 So.2d 95 (Ala.1977), our supreme court held that whether a clause in an insurance policy is ambiguous is to be determined by deciding what a reasonable, ordinary person applying for insurance would expect the policy to mean. Furthermore,

“‘the terms of an insurance policy should be given a rational and practical construction. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975). Also, a court cannot consider the language in the policy in isolation, but must consider the policy as a whole. Turner v. United States Fidelity & Guar. Co., 440 So.2d 1026 (Ala.1983).’”

Nationwide Ins. Co. v. Rhodes, 870 So.2d 695, 697 (Ala.2003) (quoting Slade, 747 So.2d at 308-09).

In support of the trial court’s summary judgment, National Security asserts that, because the interior water damage was not the result of any of the perils covered in Phillips’s policy, Phillips cannot recover. Specifically, it argues, Phillips cannot use the ensuing-loss provision to expand the coverage granted in the policy.

The policy that Phillips purchased specifically limited coverage to the ten enumerated perils previously mentioned, which were set forth in the section of the policy titled “Perils Insured Against.” As Hill-Hart, the adjuster, explained, when investigating a claim she first looks to see if the damage for which a claim is made was caused by one of those enumerated perils. If so, she then looks to see if any of the exclusions in the policy are triggered. If, on the other hand, the damage was not caused by one of the listed perils, “there’s nothing more for me to look for.” In other words, according to National Security, to be entitled to indemnification, Phillips first must show that the damage for which he seeks indemnification falls within the scope of losses the policy covers.

As this court recognized in State Department of Insurance v. Gallagher, 622 So.2d 370, 372 (Ala.Civ.App.1993), a “named-perils” policy like the one issued in this case is limited in scope and coverage.

“‘“[I]n the absence of statutory provisions to the contrary, insurers have the right to limit their liability by writing policies with narrow coverage.”’ Shrader v. Employers Mut. Cas. Co., 907 So.2d 1026, 1034 (Ala.2005) (quoting St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Ctr., 595 So.2d 1375, 1377 (Ala.1992)). See also Scott v. Board of Trustees of Mobile S.S. Ass’n, 540 So.2d 657, 658 (Ala.1988) (an insurer ‘“may, with the insured’s acceptance, insert as many exclusion clauses in its liability policy as it deems proper and necessary so long as they do not conflict with public policy or the statutory laws of the state’” (quoting Cotton States Ins. Co. v. Diamond Housing Mobile Homes, 430 F.Supp. 503, 506 (N.D.Ala.1977))).”

Continental Cas. Co. v. Pinkston, 941 So.2d 926, 930 (Ala.2006). Phillips does not contend that the policy in any way conflicted with public policy or state law.

Our research revealed no Alabama law on point. However, the Court of Appeals of North Carolina dealt with a similar situation in Alwart v. State Farm Fire & Casualty Co., 131 N.C.App. 538, 508 S.E.2d 531 (1998). In Alwart, the insured discovered that the exterior walls of his house, which were covered with synthetic stucco, were buckling, wrinkling, and bulging. Undisputed testimony indicated that the damage to the walls was the result of improper workmanship or materials used in the installation of the synthetic stucco. The “Perils Insured Against” section of Alwart’s homeowner’s policy stated that his insurer, State Farm Fire & Casualty Co., did “ ‘not insure loss caused by ... settling, cracking, shrinking, bulging, or expansion of ... walls....’” 131 N.C.App. at 539, 508 S.E.2d at 532. In addition, the “Exclusions” portion of the policy specifically excluded coverage for faulty, inadequate, or defective workmanship. However, the policy also contained a provision stating that it would cover any “ ‘ensuing loss’” not excluded or excepted in the policy. Id.

Alwart filed a claim under his policy for the damage to his walls under the theory that the buckling and wrinkling ensued from faulty workmanship and materials, and, therefore, he said, he was entitled to indemnification pursuant to the ensuing-loss provision of his homeowner’s policy. State Farm denied Alwart’s claim on the basis that he could not use the ensuing-loss provision to broaden his initial coverage.

The North Carolina Court agreed with State Farm. Using an example provided by State Farm, the North Carolina court illustrated the coverage contemplated by the ensuing-loss provision. If a policy included coverage for fire damage but excluded water damage, the ensuing-loss provision would nonetheless allow coverage for any water damage that resulted from putting out the fire. The North Carolina court determined that State Farm had properly denied Alwart’s claim, holding that the ensuing-loss provision cannot be used to expand coverage beyond the specific perils the policy insures against. 131 N.C.App. at 541, 508 S.E.2d at 533. “‘[G]iven the placement of the ensuing loss clause in a policy exclusion, it is difficult to reasonably interpret the ensuing loss clause contained in the defective construction and materials exclusion to be a grant of coverage.’” 131 N.C.App. at 542, 508 S.E.2d at 534 (quoting McDonald v. State Farm Fire & Cas. Co., 119 Wash.2d 724, 734, 837 P.2d 1000, 1005 (1992)).

In this case, Phillips concedes that the water damage to the interior of his house was not caused by any of the perils the policy insured against, including fire, lightning, windstorms or hail. The policy specifically excluded water damage to the interior of the house or to property inside the house “caused by dust, rain, sand, sleet, snow or water, all whether driven by wind or not, which enter through an opening not made by the direct force of wind or hail.”

Phillips has never claimed that water was leaking into the roof through an opening made by the direct force of wind or hail. Instead, he asserts that he is entitled to indemnification because the interior water damage ensued from faulty workmanship carried out when the roof was replaced. In reading the policy as a whole, as we are required to do, Nationwide Ins. Co. v. Rhodes, supra, we agree with the North Carolina Court of Appeals that the ensuing-loss provision in the exclusions section of the policy cannot reasonably be interpreted to create coverage beyond the perils initially insured against, and the coverage allowed under the ensuing-loss provision is not ambiguous as applied in this case.

Phillips could not have been indemnified for the water damage to the interior of Phillips’s house under one of the perils covered by the policy, and he cannot use the ensuing-loss provision to expand that coverage. Thus, he is not entitled to indemnification pursuant to the policy, and National Security did not breach the terms of the policy by denying his claim for coverage.

In his brief on appeal, Phillips did not raise the issue whether the trial court erred by entering the summary judgment in favor of National Security as to the bad-faith claim. Therefore, that issue is waived. See Tidwell v. Pritchett-Moore, Inc., 12 So.3d 83, 88 (Ala.Civ.App.2008) (“An issue not raised on appeal is deemed waived, and we need not address it.”).

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.

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

PITTMAN, J., recuses himself.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    BIZ DISTRIBUTION COMPANY, INC. v. CRYSTAL FRESH, INC.
    2090474.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.
    John P. Graves, Birmingham, for appellant.
    William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellee.
   MOORE, Judge.

Biz Distribution Company, Inc. (“Biz”), appeals from a judgment of the Lamar Circuit Court (“the trial court”) dismissing, without prejudice, its complaint against Crystal Fresh, Inc. (“CFI”). We affirm.

Biz and CFI entered into two agreements pursuant to which Biz agreed to act as the exclusive distributor of CFI products in certain north and west Alabama counties. On September 30, 2009, Biz filed a complaint against CFI alleging that CFI had breached those agreements, as well as damaged Biz, through negligence, wantonness, fraud, and intentional interference with Biz’s contractual relations. CFI filed a motion to dismiss the complaint on November 4, 2009. In that motion, CFI asserted that the trial court lacked personal jurisdiction over CFI, that the parties had contractually agreed in a forum-selection clause in the distribution agreements that any actions relating to those agreements would be decided by Minnesota courts, and that Alabama was an inconvenient forum. See § 6-5-430, Ala.Code 1975. After conducting a hearing on the matter, the trial court granted the motion to dismiss, stating that “the State of Minnesota is the appropriate forum for this action and that the Court should decline to exercise jurisdiction.” On January 4, 2010, the trial court dismissed the complaint without prejudice. Biz timely appealed.

In this case, CFI moved the trial court to dismiss the complaint on three independent bases. The trial court did not specify which of the three bases it relied upon in granting the motion, but the language in the judgment indicating that it found Minnesota to be the “appropriate forum” and that it “should decline to exercise jurisdiction” suggests that the trial court either found that the parties had entered into a binding forum-selection clause requiring the action to be filed in Minnesota or that the trial court should exercise its discretion to decline jurisdiction in favor of Minnesota under § 6-5-430, Ala.Code 1975. Section 6-5-430 requires a circuit court in this state to dismiss an action without prejudice when an action is based upon a claim originating outside the state and “if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice.”

On appeal, Biz argues that the trial court committed error as to the first ground, but not the second. CFI maintains that, even if the trial court erred as to the meaning of the forum-selection clause, which we do not decide, the trial court still acted correctly in dismissing the case based on § 6-5-430.

In Soutullo v. Mobile County, 58 So.3d 733 (Ala.2010), the Mobile Circuit Court granted a motion for a judgment as a matter of law (“JML”) in a storm-water damage case filed by property owners against Mobile County. In its order, the circuit court specified two grounds for granting the JML: (1) that the “law on water” applicable to unincorporated areas entitled Mobile County to a judgment in its favor and (2) that the statute of limitations had expired on the claims asserted by the property owners. On appeal to the Alabama Supreme Court, the property owners argued solely that the circuit court had erred as to the first ground, ignoring entirely the statute-of-limitations defense, which, Mobile County argued, alone supported the JML. The supreme court stated:

“In order to .secure a reversal, ‘the appellant has an affirmative duty of showing error upon the record.’ Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983). It is a familiar principle of law:
“ ‘When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver with respect to the issue.’
“Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.2006) (footnote omitted) (emphasis added). This waiver, namely, the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment. Id. That is so, because ‘this court will not presume such error on the part of the trial court.’ Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 478 (Ala.Civ.App.2010) (emphasis added). See also Young v. Southern Life & Health Ins. Co., 495 So.2d 601 (Ala.1986). If an appellant defaults on his or her duty to show error by failing to argue in an opening brief an unstated ground that was placed in issue below, then, a fortiori, a challenge to the judgment is waived where, as here, the trial court actually states two grounds for its judgment, both grounds are championed by the appellee, and the appellant simply declines to mention one of the two grounds. Because the [property owners] have pretermitted discussion of one of the two grounds forming the basis for the JML, we pretermit discussion of the other ground, and we affirm the judgment.”

58 So.3d at 738-39.

In accordance with Soutullo, we conclude that Biz has waived any argument that the trial court erred in dismissing the action pursuant to § 6-5-430 and that, therefore, we are required to affirm the judgment as a valid exercise of the trial court’s authority under § 6-5-430. See also Kellis v. Estate of Schnatz, 983 So.2d 408 (Ala.Civ.App.2007) (failure by purported purchaser of property pursuant to vendor’s lien deed to challenge trial court’s alternative basis for holding that documents of sale were void, on ground that they failed to comply with state law to be valid real-estate contracts, compelled appellate court to affirm judgment).

AFFIRMED.

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

      . That same language implies that the trial court rejected the argument that it lacked personal jurisdiction over CFI, but we need not decide that issue to properly dispose of this appeal.


author: BRYAN, Judge. MOORE, Judge,

text:
    J.F. v. R.J.
    2090544.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.

      William T. Fortune, Jr., Birmingham, for appellant.
    • John M. Wood, Birmingham, for appel-lee.
   BRYAN, Judge.

J.F. (“the father”) appeals from a judgment of the Jefferson Family Court (“the trial court”) that found him in contempt for failure to pay child support and ordered him to pay postminority educational support.

Procedural History

The procedural history of this case dates back to October 3, 1989, when the trial court established the paternity of the father and ordered him to pay $170 a month in child support to R.J. (“the mother”) for the benefit of the parties’ child (“the child”), who was on born December 15, 1988. The father’s child-support obligation was increased in October 1998 and again in January 1994. On June 14, 2000, the trial court entered an order finding that the father owed a child-support ar-rearage in the amount of $8,028.

The mother initiated the proceedings that led to this appeal on July 17, 2006, by filing a petition for a rule nisi and a petition to modify the father’s child-support obligation. In her petition, the mother alleged that the father had failed to pay the child-support arrearage that was determined by the June 2000 judgment and that the father had failed to pay an attorney’s fee award in the amount of $1,000 that he had been ordered to pay on April 20, 2000. The mother requested a finding of contempt, a determination as to the father’s obligation to pay a portion of the child’s postminority educational expenses, and an award of her attorney’s fees. The father answered the mother’s petition on August 8, 2006, and denied every allegation in the mother’s petition.

The record contains an order entered on August 27, 2007, that modified the father’s child-support obligation to $314.70_ a month. The record indicates that, after several continuances, the trial court conducted a hearing on December 1, 2008, and that the father was not present for that hearing. On January 12, 2009, the trial court purported to enter a final judgment; however, the judgment failed to rule on the mother’s request to hold the father in contempt, thus rendering the judgment nonfinal. See Faulk v. Berry, 984 So.2d 426, 427 (Ala.Civ.App.2007) (when a purported final judgment did not completely adjudicate the matters in controversy between the parties, including a motion for contempt, the judgment appealed from was nonfirial and the appeal was due to be dismissed).

After the trial court purported to grant the father’s postjudgment motion to set aside the January 2009 judgment, see Hood v. Hood, 23 So.3d 1160, 1162 n. 3 (Ala.Civ.App.2009) (noting that a post-judgment motion may only be taken from a final judgment), the trial court conducted a final hearing on August 11, 2009. The trial court entered a judgment on December 23, 2009, that stated:

“1. The [father] is in contempt of this Court’s order and is in arrears for past due child support the sum of Ten Thousand Eight Hundred Forty Seven Dollars and Sixty-seven Cents ($10,-847.67).
“2. The [father] shall pay to the [mother] the sum of two thousand dollars ($2000) within thirty (30) days; two thousand dollars ($2000) within ninety (90) days; two thousand dollars ($2000) within one, hundred eighty days (180); two thousand.dollars ($2000) within two hundred seventy days (270); and the remainder within three hundred and sixty five (365) days of this Court’s Order.
“3. That the [father] is hereby ordered to pay one-half (½) of all college expenses including books, tuition, room, board and fees. That the [mother] shall submit to the [father] in writing any expenses incurred for said child within thirty (30) days of receipt and [father] will reimburse the [mother] for said expenses within fifteen (15) days thereafter.
“4. That the [father] owes the [mother] the sum of Nineteen Thousand Four Hundred Twenty Seven Dollars and [Fifty]-eight Cents ($19,427.58). This sum represents the [father’s share of one-half (½) of college expenses previously paid by the [mother] through October 2, 2009. That [the father] shall pay said sum to the [mother] within ninety (90) days of this Court’s Order.
“5. The [the m]other and [the fjather shall be equally responsible for any non-covered medical expenses, including but not limited to, all doctor, hospital, prescription drug, dental, orthodontic, oral surgery, optical care, mental care professionals (counselor, psychiatrists), and the like, as well as any amounts that are in excess of said insurance coverage (including deductibles and co-pays) as long as child support or post-minority support is payable. If the [m]other incurs any medical expenses for said child, she will provide the [f]ather with documentation for the medical expenses incurred within sixty (60) days of receipt and he will reimburse the [m]other for said expenses within thirty (30) days thereafter. That the [fjather currently owes to the [m]other the sum of Four Thousand Nine Hundred Eighty Four Dollars and One Cent ($4984.01) and shall pay this amount directly to the [m]other within 30 days of this Court’s Order.
“6. That the [mother’s] Counsel is hereby awarded 'attorney fees in the sum of five thousand dollars ($5000).... Said amount is due within 45 days of this Court’s Order.”

After the father’s postjudgment motion was denied by operation of law, see Rule 1(b), Ala. R. Juv. P., the father filed a timely notice of appeal.

Facts

At the final hearing, the mother submitted a payment summary into evidence that indicated that the father’s child-support arrearage totaled $15,276.81. According to the father, that arrearage amount was incorrect because it did not include the child-support payments he had been making since August 2007. The parties agreed that the father was due a credit in the amount of $4,500 for child-support payments he had made since August 2007.

It was undisputed that the mother’s petition for postminority educational support was filed before the child turned 19. According to the mother, at the time of the August 2009 hearing, the child was attending the University of Alabama at Birmingham (“UAB”) and her grade-point average was 3.52. The record does not clearly indicate the date that the child graduated from high school or the date that she began college, but the mother submitted an exhibit into evidence that summarized the child’s college-tuition and book expenses from fall 2006 through fall 2009 and totaled $19,427.58. The mother did not present any evidence of the child’s room- and-board expenses, other than a $250 expense for a meal plan for the child’s fall 2007 semester of college. The mother stated that the child had qualified for some grants but that the child had also obtained student loans to finance her college education.

The father, who was 64 years old at the time of the final hearing, testified that he was employed in the maintenance department at Lakeland Community Hospital and that he had been working there for nine years. The father testified that he earned approximately $2,648 a month. The father stated that he had a history of health problems and that he paid approximately $8,000 a year in medical expenses not covered by health insurance. The father testified that he did not own his own home but that he was “supposedly” renting a home owned by his sister. However, there is no indication in the record of the father’s housing expenses. The father stated that his regular expenses included a power bill, which was approximately $140 a month; a water bill, which was approximately $28 a .month; $30 a week for gas; and $158 every six months for home insurance. The father testified that, based on his income and expenses, he was unable to assist the child -with her college expenses.

The mother testified that the father had the child removed from his health-insurance plan on December 31, 2007. The mother presented evidence indicating that she had incurred $4,436.50 in health-care expenses for the child from January 2008 through August 2009. The father admitted that, he had removed the child from his health-insurance plan after - the. child turned 19 in December 2007. The father stated that the mother had never notified him .of the. child’s health-care expenses.

Issues

On appeal, the father raises several issues for review by this court, which can be summarized as follows: (1) whether the trial court erred by ordering the father to pay postminority educational expenses that had already been incurred; (2) whether the trial court exceeded its discretion by ordering the father to pay prospective postminority educational expenses for the child;-' (3) whether the trial court erred by ordering the father to reimburse the mother for the child’s health-care expenses; (4) whether the trial court exceeded its discretion by finding the father in contempt and determining the father’s child-support ar-rearage amount; and (5) whether the trial court exceeded its discretion by ordering the father to pay the mother’s attorney’s fees.

Standard of Review
“When a trial court hears ore tenus evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Further, matters of child support- are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong. Id.”

Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala.Civ.App.2001).

Discussion

I. Payment of Retrospective Postminority Educational Expenses

The father argues that the trial court erred by ordering him to reimburse the mother for postminority educational expenses that were incurred by the child from fall 2006 through the child’s 2009 fall semester of college. Specifically, the father argues that the mother’s evidence of the child’s previously incurred educational expenses was hearsay, and that he should not be required to pay those expenses because he had been paying child support at the same time that those expenses were incurred. However, we will not consider these arguments presented by the father because the father has not complied with Rule 28(a)(10), Ala. R.App. P., by failing to include “citations to the cases, statutes, other authorities, and parts of the record relied on.” Rule 28(a)(10). See also State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (quoting Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)) (holding that a failure to comply with Rule 28(a)(10) provides an appellate court a basis for disregarding the appellant’s arguments).

The father also argues that the mother failed to produce evidence demonstrating that the child was enrolled in college full-time during the time that the child incurred postminority educational expenses. However, we can find nothing in the record to indicate that the father presented this argument to the trial court; thus, the father has waived appellate review of this argument. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991)) (“This Court cannot consider argument raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). Accordingly, we affirm that part of the trial court’s judgment that ordered the father to pay one-half of the postminority educational expenses that the child had already incurred.

However, the father also argues that the trial court erred by ordering him to pay $19,427.58 as his “share of one-half’ of the previously incurred postminority educational expenses of the child. At the final hearing, the mother testified that the child had incurred $19,427.58 in postminority educational expenses between fall 2006 and fall 2009. The trial court’s judgment ordered the father to pay the full amount of the postminority educational expenses that had been incurred, but it then stated that that “sum represents the [fatherj’s share of one-half (½) of college expenses previously paid by the [mother] through October 2, 2009.” We agree with the father that the trial court erred in concluding that $19,427.58 was one-half of the child’s postminority educational expenses that had already been incurred. Thus we reverse that part of the trial court’s judgment that orders the father to pay the mother $19,427.58, and we remand the cause with instructions to the trial court to amend its judgment to reflect the proper amount of the father’s retrospective post-minority-educational-support obligation, i.e., one-half of $19,427.58, or $9,713.79.

II. -Payment of Prospective Postminority Educational Expenses

Next, the father argues that the trial court erred in ordering him to pay one-half of the child’s prospective postminority educational expenses. The father argues that the judgment is due to be reversed because: (1) the trial court failed to reasonably limit the award of postminority educational support; (2) it imposes an undue financial hardship on him; and. (3) the mother failed to present evidence of the future costs of the child’s college education.

After our supreme court established the existence of postminority educational support in Ex parte Bayliss, 550 So.2d 986 (Ala.1989), this court held:

“A parent has a legal duty to provide or aid in providing a college education for his/her child if the child demonstrates the ability and willingness, to attain a higher education and the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship to himself.”

Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Furthermore,

“[t]his court has held that the trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. See Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Hocutt v. Hocutt, 591 So.2d 881, 882 (Ala.Civ.App.1991); Kent v. Kent, 587 So.2d 409, 412 (Ala.Civ.App.1991). These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring that the child be enrolled as a full-time student. Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Ullrich v. Ullrich, 736 So.2d 639, 643 (Ala.Civ.App.1999) (quoting Bahri v. Bahri, 678 So.2d 1179, 1181 (Ala.Civ.App.1996)).
“This court has further held that without legal evidence as to the amounts required for books and tuition or for actual costs of room and board, we cannot determine whether the sums a parent is required to pay for postminority educational support would cause him undue hardship. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Furthermore, when the judgment of the tri,al court has the potential to allow the child to prolong his undergraduate studies well beyond four years, by not requiring the child to take a minimum number of courses each session and by not limiting the number of courses that the child can withdraw from each semester, it will not be upheld. Kent v. Kent, 587 So.2d 409 (Ala.Civ.App.1991); Hill v. Hill, 739 So.2d 501 (Ala.Civ.App.1999) This court has also held that a reasonable limitation would include limiting the expenses to be paid by a parent to particular college or institution. Baggett v. Foster, 622 So.2d 350 (Ala.Civ.App.1992); Eastis v. Bredehoft, 599 So.2d 53 (Ala.Civ.App.1992).”

Penney v. Penney, 785 So.2d 376, 379 (Ala.Civ.App.2000).

Paragraph three of the trial court’s judgment, which orders the father to pay one-half of all the child’s college expenses, including expenses for books, tuition, room, board, and fees, does not contain any reasonable limitations on the award of postminority educational support: the judgment does not limit the support to a reasonable period; the judgment does not require the child to maintain a “C” average; the judgment does not require the child to be enrolled as a full-time student; and the judgment does not limit the expenses to be paid by the father to a particular college or institution. Accordingly, that part of the judgment ordering the father to pay one-half of all the child’s college expenses is due to be reversed. We remand the cause with instructions to the trial court to modify its judgment in accordance with the required limitations set forth above.

In light of the fact that paragraph three of the trial court’s judgment is due to be reversed insofar as it ordered the father to pay one-half of all the child’s college expenses without placing any reasonable limitations on the award, we pretermit discussion of the remaining issues presented by the father on appeal regarding paragraph three of the trial court’s judgment. The trial court, on remand, should consider the father’s claim of undue hardship after crafting the reasonable limitations on the award of postminority educational support.

III. Payment of the Child’s Health-Care Expenses

Next, the father challenges the trial court’s judgment insofar as it ordered him to pay the child’s health-care expenses that were incurred after the child turned 19. The father argues that he was not required to maintain health-insurance coverage for the child after she turned 19 in the absence of an order requiring him to do so. However, there is no indication that the trial court held the father in contempt for failure to maintain health insurance for the child; instead, the trial court’s judgment indicates that the trial court determined that the father was required to contribute to the child’s postminority health-care expenses. The father, in his brief on appeal, has failed to cite a single authority to support his position that he should not be required to contribute to the child’s postminority health-care expenses. See State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d at 822. See also Waddell v. Waddell, 904 So.2d 1275, 1285 (Ala.Civ.App.2004) (“[H]ealth-care expenses may be properly includable in a judgment awarding Bayliss support.”). Accordingly, we affirm that part of the trial court’s judgment that ordered the father to contribute to the child’s postminority healthcare expenses.

However, the father also argues that the amount of health-care expenses he was ordered to pay, $4,984.01, is not supported by the evidence and that the trial court exceeded its discretion in ordering him to pay the full amount of the child’s previously incurred health-care expenses. At the final hearing, the mother presented evidence indicating that she had incurred health-care expenses on behalf of the child in the amount of $4,436.50. The father did not dispute that the child’s health-care expenses totaled. $4,436.50. Our review of the record does not reveal evidence sufficient to support that part of the trial court’s judgment that concluded that the father owed the mother $4,984.01 for health-care expenses.' Furthermore, in light of the fact that the trial court ordered the parties to equally share the cost of the child’s future health-care expenses, we find no evidence to support a determination that the father should bear the entire cost of the child’s previously incurred healthcare expenses. Therefore, we conclude that the trial court exceeded its discretion insofar as it ordered the father to pay all the child’s previously incurred health-care expenses. Accordingly, we reverse that part of the judgment that ordered the father to pay the mother $4,984.01 for the child’s previously incurred health-care expenses and remand the cause with instructions for the trial court to enter a judgment regarding the payment of the child’s health-care expenses that is supported by the evidence presented at the final hearing and consistent with the remainder of the judgment that ordered the parties to equally share the cost of the child’s healthcare expenses.

IV. Finding of Contempt and the. Determination of the Father’s . Child-Support Arrearage

Next, the father argues that the trial court erred in finding him in contempt for failure to pay child support because, he says, the mother failed to present evidence of the correct amount of his arrearage. We note, however, that the father does not argue on appeal that he was current on his child-support payments. The father maintains that there should have been an accounting performed to determine the correct amount of his child-support arrearage. The father cites no authority to support a finding that he should not have been held in contempt, and he cites nothing in the record to demonstrate that the amount of the arrearage he was ordered to pay is incorrect. See Rule 28(a)(10). It is well settled that this court is not required to do a party’s legal research, nor is this court required to search the record to find support for the appellant’s arguments. White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008); and James v. City of Russellville, 57 So.3d 111, 116 (Ala.Civ.App.2010) (“It is not the duty of this court to search an appellate record for evidence to support an appellant’s contention of error.”). Accordingly, the father’s failure to comply with Rule 28(a)(10) has provided this court a basis for disregarding the arguments made by the father on appeal regarding the trial court’s finding of contempt and its determination of the father’s child-support arrearage. See Ex parte Showers, 812 So.2d 277, 281 (Ala.2001) (quoting City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998)).

V. The Award of Attorney’s Fees to the Mother

Finally, the father argues that the trial court exceeded its discretion by ordering him to pay $5,000 toward the mother’s attorney’s fees. The father argues that he does not have the financial ability to comply with the trial court’s order because the attorney-fee award is approximately double the amount of his monthly income andbecause the trial court ordered him to pay the award to the mother’s attorney within 45 days of the entry of the judgment.

Initially, we note that “‘[t]he award of attorney fees is within the sound discretion of the trial court and will not be reversed unless an abuse of discretion is shown.’” B.B. v. F.P., 984 So.2d 418, 423 (Ala.Civ.App.2007) (quoting Volovecky v. Hoffman, 903 So.2d 844, 850 (Ala.Civ.App.2004)). The father testified that he earned approximately $2,650 a month. The only indication of the mother’s income in the record on appeal consists of a CS^ll child-support form filled out by the mother in May 2007 that stated that her gross monthly income at that- time, was $2,708; the mother’s CS-41 form contained a handwritten notation next to the line that listed the mother’s employment income that stated “imputed.” Thus, the record before this court indicates that the monthly incomes attributed to the father and the mother were almost equivalent.

In B.B. v. F.P., supra, a father petitioned the trial court for postminority support on behalf of his son and sought to hold the mother in contempt for failing to pay child support. Id. at 419. In that case, we affirmed an award of attorney’s fees to the father that was more than double the amount of the mother’s monthly income, noting that the father had prevailed in his petition seeking to hold the mother in contempt for failing to pay child support. Id. at 423.

In light of the mother’s successful bid to hold the father in contempt for failing to pay child support in the present case and the nearly identical financial circumstances of the parties, we cannot conclude that the trial court exceeded its discretion by ordering the father to pay $5,000 toward the mother’s attorney’s fees. Furthermore, in light of the fact that the mother’s petition for a rule nisi, which was filed in July 2006, alleged that the father had not paid an award of attorney’s fees that had been entered in April 2000, we cannot conclude that the trial court erred in ordering the father to pay the attorney-fee award within 45 days.

Conclusion

In conclusion, we affirm those parts of the trial court’s judgment that found the father in contempt, that determined his child-support arrearage, and that awarded the mother attorney’s fees. We reverse those parts of the judgment that ordered the father to pay the mother $19,427.58 in postminority educational support, that ordered the father to pay one-half of the child’s prospective postminority educational expenses without any reasonable limitations, and that ordered the father to pay the child’s postminority health-care expenses in the amount of $4,984.01. We remand the cause with instructions to the trial court to enter a judgment consistent with this opinion.

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

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

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

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

MOORE, Judge,

concurring in part, concurring in the result in part, and dissenting in part.

J.F. (“the father”) appeals from a child-support judgment entered by the Family Court Division of the Jefferson Circuit Court (“the trial court”). In the pertinent parts of that judgment, the trial court found that the father was in contempt of previous judgments for failing to pay past-due child support in the amount of $10,847.67; ordered the father to pay the child-support arrearage in full through a series of lump-sum payments over a one-year period; ordered the father to pay one-half of the child’s past college expenses amounting to $19,427.58; ordered the father to pay one-half of the child’s future college expenses; ordered the father to pay one-half of the child’s medical expenses during the postminority-support period; ordered the father to pay $4,984.01 in past medical expenses; and" ordered the father to pay $5,000 in attorney’s fees.

As to the contempt finding, the father argues solely that the record does not contain sufficient evidence to support the arrearage amount of $10,847.67 as found by the trial court and that the trial court never conducted an accounting to verify the arrearage amount. The record contains ample evidence, consisting of the testimony of R.J. (“the mother”), the child-support-payment summary entered as an exhibit during the trial, and the father’s testimony regarding payments made by him that were not recorded in that summary, to sustain a finding that the father owed $10,847.67. For that reason, I concur that the contempt portion of the judgment should be affirmed.

As for the postminority-educational-sup-port provisions of the judgment, the father argues primarily that he cannot afford to provide S.F. (“the child”) any financial assistance without undue hardship. In Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990), this court, in interpreting Ex parte Bayliss, 550 So.2d 986 (Ala.1989), held that, as a condition to awarding postminority educational support, a trial court must find that the noncustodial parent “has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship to himself [or herself].” 574 So.2d at 841. This court further held that, in determining whether a parent would face an undue hardship, the trial court must determine from legal evidence the amount of the expenses to be incurred for the education of the child and the ability of the parent to pay those expenses. Id.

In this case, the mother presented legal evidence of the past educational expenses of the child, which totaled to $19,427.58. The trial court intended to order the father to pay one-half of those costs, or $9,713.79, but it erred to reversal by ordering the father to pay the entire amount, as the majority correctly concludes. 59 So.3d at 724. The father nevertheless maintains that he cannot pay even that reduced amount due to financial constraints. The father had the burden of proving that the payment of postminority support would cause him an “undue hardship.” See Wagner v. Wagner, 989 So.2d 572, 580 (Ala.Civ.App.2008). The father introduced evidence indicating that he had- a gross monthly income of $2,648.88 and that, due to cardiac health problems, he does not have the capacity to earn additional wages. Out of that $2,648.88, the father must pay taxes and his monthly bills; the father testified that his monthly bills are approximately $1,100.00 per month, exclusive of his child-support payments. The father did not present any other evidence regarding his financial status. Based on the scant record before the court, I conclude that the father did not carry" his burden of proving that paying one-half of the child’s past college expenses would cause him an undue hardship. Therefore, I would instruct the trial court on remand to enter a judgment for $9,713.79 in favor of the mother and against the father for past educational expenses.

I conclude, however, the mother did not carry her burden of proof regarding the child’s future educational expenses. The record contains no evidence indicating the course of study the child was undertaking, the estimated length of time she would need to obtain her degree, or the reasonably predictable costs to be incurred in reaching that educational goal. The record also does not include any evidence indicating that the past educational expenses were representative of the likely future expenses to be incurred so that the trial court could have extrapolated the probable future educational costs of the child. This court has repeatedly reversed judgments awarding future educational support when the custodial parent has failed to present evidence as to the specific amount of educational expenses expected to be incurred because, without that requisite evidence, the trial court could not have reasonably concluded that the award would not cause an undue hardship on the noncustodial parent. See, e.g., B.B. v. F.P., 984 So.2d 418 (Ala.Civ.App.2007); Stanford y. Stanford, 628 So.2d 701 (Ala.Civ.App.1993); and Bowen v. Bowen, 817 So.2d 717 (Ala.Civ.App.2001). In the past, this court has remanded such judgments for the trial court to accept such evidence, but that practice, which allows a custodial parent “a second bite of the apple,” see McAlpine v. McAlpine, 865 So.2d 438, 445 (Ala.Civ.App.2002) (Crawley, J., concurring in the result), should no longer be permitted. See Taylor v. Taylor, 991 So.2d 228, 237-38 (Ala.Civ.App.2008) (Thomas, J., dissenting). Hence, I agree with the father that that portion of the judgment awarding future postminority educational support should be reversed and a judgment rendered for the father as to that claim. I therefore dissent from the decision of the majority to remand the case to place reasonable limitations on the future postmi-nority support awarded.

I am constrained to agree with the majority that current caselaw allows a trial court to treat health-care expenses as part of a Bayliss award of postminority support while a child is pursuing a college education. Waddell v. Waddell, 904 So.2d 1275, 1285 (Ala.Civ.App.2004). The father has not urged this court to overrule that caselaw, so we are bound to apply it. However, I find nothing in our prior case-law requiring a noncustodial parent to shoulder the entire burden of such medical expenses. The trial court ordered the father to reimburse the mother for all medical expenses incurred by the mother for the child after January 2008, which would have relieved .the mother from contributing to the payment of any portion of those medical expenses. The trial court exacerbated that error by actually awarding the mother $4,984.01 for those expenses when the mother proved that she had paid only $4,436.50, which the majority correctly holds requires reversal of the judgment. 59 So.3d at 726-27. The trial court should have awarded the mother only one-half of that last amount if it intended that the parties would evenly split the medical expenses the child incurred while pursuing her college education, as the remainder of the judgment indicates. Therefore, I concur with the main opinion that the judgment should be modified to award the mother only one-half of the past medical expenses.

Lastly, in light of the foregoing, I would remand the case to the trial court for reconsideration of its attorney-fee award.

      . The Jefferson Family Court is a division of the Jefferson Circuit Court. See Act No. 674, Ala. Acts 1967 (renaming the "Juvenile and Domestic Relations Court of Jefferson County” the "Family Court of Jefferson County"). The case was docketed with a "CS” case number, which indicates, that the matter involves a juvenile-court child-support matter. See M.C. v. L.J.H., 868 So.2d 465, 467 (Ala.Civ.App.2003) (citing former Ala.Code 1975, § 26-17-10); and State ex rel. Provitt v. Coleman, 821 So.2d 1015, 1019 (Ala.Civ.App.2001). "For this reason, this proceeding is governed by the Rules of Juvenile Procedure instead of the Rules of Civil Procedure.” M.C. v. L.J.H., 868 So.2d at 467.

      . The record indicates that the father appealed that judgment to the Jefferson Circuit Court but that the father voluntarily dismissed his appeal.

      . Although paragraph 5 of the trial court’s judgment does not specify what the $4,984.01 award to the mother is in payment of, we presume that it is meant as payment of the child’s health-care expenses because the remainder of paragraph 5 is devoted to ordering the mother and the father to equally share the cost of the child's health-care expenses.

      . The father does not argue on appeal that the trial court improperly calculated the arrear-age amount based on the mother’s testimony of the arrearage amount and the patties’ stipulation that the father was due a credit in the amount of $4,5.00. Thus, that issue is waived on appeal. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988), citing in turn Ex parte Riley, 464 So.2d 92 (Ala.1985)) ("'An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.’”).

      . However, we note that the father’s inability to pay the attorney-fee award within 45 days may be a defense to a finding of contempt.

      . The mother presented public documents showing the costs incurred by the child for tuition, books, and fees, see Rule-802(6), Ala. R. Evid., and testified as to the amount of student loans the child had taken out for other costs. Hence, had this court elected to address the merits of the father’s contention that the mother had not presented legal evidence of the child's past educational expenses, I believe this court would have affirmed the trial court’s judgment on that point.

      . The father attempted to introduce into evi- . dence a summary of his monthly bills showing that, in 2008, after taxes, he brought home $1,668.82, and that he spent more than that amount on routine living expenses and uninsured medical expenses. However, the trial court sustained an objection to that exhibit.

      . I also believe that because the evidence does not support an award of future postminority educational support, the father should not have to pay future medical expenses. The father, however, does not raise that argument, so I find no basis for reversing the judgment insofar as it requires the father to pay one-half of the child's medical expenses while the child is pursuing her college degree.


text:
    Deanna M. HARRIS v. Paris L. HARRIS.
    2090555.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.

      Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for appellant.
    Paris Harris, pro se.
   THOMPSON, Presiding Judge.

Deanna M. Harris (“the mother”) appeals from a judgment entered by the Montgomery Circuit Court divorcing her from Paris L. Harris (“the father”). For the reasons stated herein, we affirm the judgment in part and reverse it in part.

The father and the mother were married on January 9, 1999. Two children (“the children”) were born of the marriage. At the time of the trial of this action, one of the children was nine years old and the other child was three years old. The father also had a daughter from a relationship preceding the parties’ marriage. At the time of the trial, the father’s daughter was 13 years old.

The parties separated in May 2008. On December 10, 2008, the mother filed an action seeking a divorce from the father. The father, acting pro se, filed an answer to the mother’s complaint and a counterclaim for a divorce. Each party sought primary physical custody of the children.

The trial court held a trial of the action on October 27, 2009. At the trial, the mother testified that, during the marriage, the parties had resided in a house that was titled in her name and that she had owned before they married. She testified that she was asking that the trial court award her the house.

The mother testified that, during the marriage, she had a credit card on which the father had accumulated debt. She testified that, although the father was supposed to pay the credit-card balance, he did not do so. She stated that, after the parties separated, she paid off the balance on the credit card in the amount of $1,600. The mother testified that, at most, she charged $200 to the credit card.

Documentary evidence was submitted indicating that the mother earned approximately $35,000 annually. She testified that she worked the second shift, which was from 3:00 p.m. to 11:30 p.m., but that she had applied to work the first shift, which was from 7:00 a.m. to 3:30 p.m.

The mother testified that, at the time of trial, the children spent the night at her house on Tuesdays, Thursdays, Fridays, Saturdays, and Sundays and that they spent the night with the father on Mondays and Wednesdays. She stated that the marital residence, in which she continued to reside, had three bedrooms and that each of the children had his own bedroom in the home. She stated that the father was living in a two-bedroom house with his daughter and that, when the children stayed there, the younger son slept with the father in the father’s bedroom and the older son slept on a couch.

The mother testified that she had been the primary caregiver of the parties’ children during the marriage. She testified that, since the parties separated, the only support the father had provided for the children was $350 worth of groceries, and she testified that he also had paid for the children’s haircuts. She stated that, when the parties separated, she had asked the father to give her $250 per month for support of the children but that he had refused to do so.

The mother testified that she paid $65 weekly for childcare for the three-year-old child. It was undisputed that the mother paid $45 monthly for family medical insurance. She testified that the father did not contribute toward payment for those items.

The mother testified that the father was presently employed by a security company and that she had helped him with his job by printing flyers for him.

The mother testified that the parties owned two vehicles, one that she primarily had driven and one that the father primarily had driven. She testified that she wanted the court to award one of the vehicles to each of the parties. She testified that she was not seeking alimony from the father.

The father testified that he had accumulated debt of only $700 on the credit card about which the mother had testified and that the mother had accumulated the remainder of the debt on the credit card. He testified that he had paid off the debt he had accumulated on the credit card.

The father testified that, from the time the parties separated in May 2008 until the mother obtained counsel in December 2008, the children spent almost every weeknight with him and the weekends with the mother. He stated that the mother began taking the children during some weeknights after her lawyer had told her that she should do so. The father stated that he had told the mother that there was no basis for giving her child support because he had physical custody of the children 20 days out of each month.

The father testified that, throughout the parties’ marriage, he had provided most of the help with the children’s schooling, such as school projects and homework, and that he had taught the children to read and to write. He- also testified that he had performed the yard work, the cooking, and the laundry for the family during the parties’ marriage.

The father testified that he had been laid off from a job with a delivery company in December 2008 and that he had acquired a new job with the security company in July 2009.

The father stated that he was receiving $225 in unemployment compensation in addition to whatever compensation he received from his job with the security company, which was entirely commission-based. He stated that he had an offer to work with a pharmaceutical company but that he could not.start that job until he obtained a larger vehicle, which he planned to do.

At the end of the trial, the court stated that “Child-Support-Obligation Income Statement/Affidavit” forms (Forms CS^41) and a “Child-Support Guidelines” form (Form CS-42) would be completed before everyone left that day. However, copies of those forms do not appear in the record.

On January 19, 2010, the trial court entered a final judgment divorcing the parties. Among other things, the trial court awarded the parties joint legal and physical' custody of the children. The court concluded that joint custody was “best after careful consideration of the fact that the mother works from 3:00-11:80 p.m. and as the father has actively been engaged and involved in raising” the children. The judgment provided that the father would have physical custody of the children during the week and that the mother would have physical custody of the children from Saturday morning until Monday morning. The father was to have custody of the children during at least every fifth weekend. The judgment required the mother to pay the father monthly child support in the amount of $476 and to maintain health insurance on the children. The court ordered the parties to divide evenly the $1,600 debt on the credit card, with the father to make eight monthly payments of $100 to the mother. The trial court awarded the father 25% of the equity in the marital residence that had accrued from the date of the parties marriage until their separation, with the mother to pay the father an amount equivalent to that equity. The trial court ordered that the mother would remain the fee-simple owner of the marital residence. The mother appeals.

On appeal, the mother asserts error with regard to the property division and the child-custody provisions of the divorce judgement. The standard by which this court reviews a property division in a divorce action after a hearing at which the trial court received ore tenus evidence is well settled:

“When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). This ‘presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.’ Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000).
“.... When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).”

Stone v. Stone, 26 So.3d 1232, 1235-36 (Ala.Civ.App.2009). Also well settled is the standard by which this court reviews a custody determination in a divorce judgment entered after an ore tenus hearing: “[O]ur review of custody determinations based on ore tenus evidence is quite limited; the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong.” Smith v. Smith, 887 So.2d 257, 262 (Ala.Civ.App.2003).

The mother contends that the trial court erred in awarding the parties joint custody of the children. She argues that, in her house, each child has his own bedroom, while, in the father’s house, neither child has a bedroom. Instead, when staying with the father, one of the children sleeps with the father while the other child sleeps on a sofa. She also argues that the father does not have a sufficient income to provide for the needs of the children. She points out that the father testified that she is a good mother.

In Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994), this court wrote:

“In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App.1990). The trial court’s overriding consideration is the children’s best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App.1986). The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala.Civ.App.1987). Likewise, it is proper for the court to consider the ‘characteristics of those- seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.’ Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981).”

Section 30-3-152(a), Ala.Code 1975, provides, in pertinent part: “The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child.”

In the present case, the trial court had before it evidence indicating that the mother had a job that kept her away from her house from 3:00 p.m. until 11:30 p.m. every weekday. There was also evidence indicating that, during the parties’ marriage, the father had provided most of the educational support for the children and that he had performed the bulk of the domestic duties in the home. Also, there was. .evidence indicating that the custody arrangement the trial court ordered was modeled on the arrangement. the parties had in place between the time of the separation and when the mother’s attorney suggested to her that she exercise more custody of the children. As to the mother’s argument that the father was unable to financially support the children, we note that the father testified that he is now employed, and we also note that the trial court ordered the mother to pay child support to the father.

Based on the foregoing evidence, we conclude that the trial court’s judgment awarding the parties joint custody and dividing the time the children would spend with each parent is not plainly and palpably wrong. As a result, that portion of the judgment is due to be affirmed.

The mother next contends that the trial court erred when it awarded the father 25% of the equity in the marital residence that had accrued between the time the parties married and when they separated. She argues that the father did not present any evidence indicating that he was entitled to “any property of the mother.”

Of property divisions in divorce judgments, this court has written:

“A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish [v. Parrish], 617 So.2d [1036] at 1038 [(Ala.Civ.App.]. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001). ‘[W]e note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.’ Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004).”

Stone, 26 So.3d at 1236.

It appears that the mother argues that the marital residence is part of her separate estate and therefore was not subject to division by the trial court. If that, indeed, is what the mother is arguing, we reject that contention. In Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001), this court stated:

“Although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during their marriage.”

In the present case, it is beyond dispute that the marital residence was used during the parties’ marriage for their common benefit. Thus, although the mother owned the marital residence before the parties’ marriage, it was within the trial court’s discretion to consider the marital residence as a marital asset subject to division between the parties.

Moreover, the trial court limited its award to the father to only 25% of the equity the parties had accumulated in the marital residence during the marriage. It is undisputed that during the marriage, before the parties separated, both parties were employed, and therefore both contributed income to the marriage. That the trial court would award the father 25% of the equity that had accrued in the marital residence during their marriage seems to us to be well within the broad discretion afforded a trial court’s determination on the division of the marital assets.

The mother also argues that the father released any claim he may have had to the marital residence during the trial when, during his testimony, he stated: “And I ask for no property I ever owned. I am not responsible for any debt that she may have. I release my name on any home ownership or vehicle ownership that she may have.” The mother cites no legal authority for this argument, and, as a result, we will not consider it. See White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) (“Rule 28(a)(10)[, Ala. R.App. P.,] 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.”).

Based on the foregoing, we conclude that the mother has failed to demonstrate error with regard to the trial court’s division of the marital estate, and, as a result, the trial court’s judgment is due to be affirmed as to that issue.

Finally, the mother contends that the trial court erred in its calculation of the amount of child support she is required to pay the father when the record lacks any basis for that calculation. We agree. In Hayes v. Hayes, 949 So.2d 150, 154-55 (Ala.Civ.App.2006), this court wrote:

“The father’s only remaining contention is that the trial court failed to utilize the required child-support-guidelines forms in making its determination of the amount of prospective child support owed by the father. This court has held that if the record does not reflect compliance with Rule 32(E), Ala. R. Jud. Admin, (which requires the filing of ‘Child Support Obligation Income Statement/Affidavit’ forms (Forms CS-41) and a ‘Child Support Guidelines’ form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004); Rimpf v. Campbell, 853 So.2d 957, 959 (Ala.Civ.App.2002); and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala.Civ.App.1999).
“The record in this case contains only one Form CS-41 prepared by the father; it reflects an amount between $1,200 and $1,400 in monthly income. However, the judgment expressly noted that the trial court had imputed a monthly income to the father of $4,417 and that the actual monthly income of the mother totaled $3,245. Calculating the father’s child-support obligation under Rule 32 based solely on his percentage share of the parties’ combined incomes (as reflected in the judgment) would result in a child-support obligation significantly greater than $625 per month. In fact, no application of the income figures specified by the trial court to the schedule of basic child-support obligations in the child-support guidelines supports the $625 monthly child-support award, and the trial court did not expressly state that it had deviated from the guidelines or state any reasons why a deviation from the guidelines would be necessary. See Appendix to Rule 32, Ala. R. Jud. Admin.; see also Mosley v. Mosley, 770 So.2d 638, 640 (Ala.Civ.App.2000).
“Accordingly, we must reverse the judgment modifying the child-support award and remand the cause for the trial court to properly determine the father’s prospective child-support obligation in compliance with Rule 32, Ala. R. Jud. Admin. The trial court may, in its discretion, compute the obligation according to the guidelines or expressly state the reasons why a deviation from the guidelines is necessary in this case. See also Harmon v. Harmon, 928 So.2d 295 (Ala.Civ.App.2005).”

In the present case, the trial court awarded the father $476 in monthly child support. Although the trial court indicated that it was going to have the parties prepare Forms CS-41 and a Form CS-42, the record does not include a copy of those forms. Although the record contains evidence regarding the mother’s income, the record is unclear as to the father’s income. We have compared the figures included in the record and the amount of child support awarded to the child-support guidelines contained in the Appendix to Rule 32, Ala. R. Jud; Admin., and we are unable to determine how the trial court arrived at the amount of child support it awarded. As a result, we are obligated to reverse the trial court’s judgment as to the award of child support and remand the cause to the trial court to properly determine the mother’s child-support obligation in compliance with Rule 32, Ala. R.. Jud. Admin.

Based on the foregoing, we affirm the trial court’s judgment as to the award of joint custody of the children to the parties and the division of the marital property, we reverse the trial court’s judgment as to its calculation of child support, and we remand the cause to the trial court for the entry of a new judgment -consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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


text:
    Nue Cheer FRANKLIN v. Valdez CATLEDGE; 7-C’s International, LLC; and Catledge Land Management, LP.
    2090570.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.

      Nue Cheer Franklin, pro se.
    Glenn D. Zimmerman, Montgomery, for appellees.
   BRYAN, Judge.

Nue Cheer Franklin, the plaintiff below, appeals from a judgment entered by the Montgomery Circuit Court .(“the circuit court”) dismissing civil action no. CV-09-3.0 due to lack of subject-matter jurisdiction. We dismiss the appeal in part and affirm in part.

On October 81, 2008, Franklin, acting pro se, sued Valdez Catledge (“Valdez”) in the Montgomery District Court (“the district court”), stating a claim of breach of contract and seeking an award of damages in the amount of $2,650. On November 18, 2008, before Valdez had been served with process, Franklin moved the district court to transfer her action to the circuit court. Attached to her motion was an unsigned amended complaint, which named 7-C’s International, LLC (“7-C’s”), and Cat-ledge Land Management, LP (“Catledge Management”), as additional defendants; added various tort claims; and sought an award of $25,000 in compensatory damages and an unspecified amount of punitive damages. On December 18, 2008, the district court entered an order transferring Franklin’s action to the circuit court.

After the district court entered its order transferring Franklin’s action to the circuit court, Valdez was served with process on January 26, 2009. Franklin did not instruct the circuit court to serve 7-C’s or Catledge Management at that time. Valdez answered Franklin’s complaint on February 20, 2009. On April 17, 2009, Franklin moved for a summary judgment. Following a hearing regarding Franklin’s summary-judgment motion on June 30, 2009, the circuit court, on July 15, 2009, issued an order entering a judgment against Valdez in the amount of $550. On July 28, 2009, Franklin filed motions seeking the recusal of the circuit-court judge assigned to the action, a new trial, and the addition of 7-C’s and Catledge Management as defendants. On July 31, 2009, Franklin instructed the circuit-court clerk to serve 7-C’s and Catledge Management with process, and they were served on August 3, 2009.

Thereafter, the circuit-court judge assigned to the action recused himself, and the action was assigned to another circuit-court judge, who also recused himself. The action was then assigned to a third circuit-court judge. The circuit court never ruled on Franklin’s motion for a new trial, and that motion was denied by operation of law on October 26, 2009. See Rule 59.1, Ala. R. Civ. P. Franklin did not file a notice of appeal within 42 days after October 26, 2009.

Franklin moved for a summary judgment with respect to 7-C’s and Catledge Management, and 7-C’s and Catledge Management moved for a dismissal of Franklin’s action. On February 22, 2010, following a hearing regarding those motions, the circuit court entered a judgment dismissing the action on the ground that the circuit court lacked subject-matter jurisdiction. On March 2, 2010, Franklin filed a postjudgment motion, which the circuit court denied on March 5, 2010.

Also on March 5, 2010, Franklin appealed to this court. Due to lack, of jurisdiction, this court transferred the appeal to the supreme court, which transferred the appeal back to this court pursuant to § 12-2-7(6),,Ala.Code 1975.

As a threshold matter, Valdez, 7-C’s, and Catledge Management move this court to dismiss Franklin’s appeal on the ground that her notice of appeal was not timely filed. In support of their motion, Valdez, 7-C’s, and Catledge Management argue that the circuit court’s July 15, 2009, order entering a judgment against Valdez in the amount of $550 was a final judgment and that, because Franklin did not file a notice of appeal within 42 days after her motion for a new trial was denied by operation of law on October 26, 2009, her notice of appeal was not timely filed.

Rule 4(f), Ala. R. Civ. P., provides:

“When there are multiple defendants and the summons ... and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment. After the entry of judgment, if the plaintiff is able to obtain service on a defendant or defendants not previously served (except, however, defendants designated as fictitious parties as allowed by Rule 9(h), who shall be deemed to have been dismissed voluntarily when the case was announced ready for trial against other defendants sued by their true names), the. court shall hear and determine the matter as to such defendant or defendants in the same manner as if such defendant or defendants had originally been brought into court, but such defendant or defendants shall be allowed the benefit of any payment or satisfaction that may have been made on the judgment previously entered in the action.”

Thus, under Rule 4(f), the judgment entered on July 15, 2009, against Valdez, the only defendant who at that time had been served with process, was a final, appeal-able judgment with respect to Valdez. See Bedell v. Quality Cas. Ins. Co., 958 So.2d 344 (Ala.Civ.App.2006); and Williams v. Fox Television Stations of Birmingham, Inc., 959 So.2d 1120 (Ala.Civ.App.2006), overruled on other grounds by Ex parte Luker, 25 So.3d 1152 (Ala.2007). Consequently, Franklin was required to file a notice of appeal within 42 days after the denial of her motion for a new trial on October 26, 2009, in order to perfect an appeal from that judgment. See Rules 4(a)(1) and 4(a)(3), Ala. R.App. P.; Bedell; and Williams. Because Franklin did not file a notice of appeal within 42 days after the denial of her motion for a new trial by operation of law on October 26, 2009, she failed to file a timely notice of appeal with respect to the judgment against Valdez. Id. Therefore, we grant the motion to dismiss the appeal with respect to the judgment against Valdez. However, because Rule 4(f), Ala. R. Civ. P., authorized the circuit court to proceed with the adjudication of Franklin’s claims against 7-C’s and Catledge Management after they were served with process and because Franklin filed a notice of appeal within 42 days after the denial of her postjudgment motion challenging the February 22, 2010, judgment of the circuit court dismissing those claims, we deny the motion to dismiss the appeal with respect to that judgment.

The February 22, 2010, judgment held, among other things, that the circuit court lacked subject-matter jurisdiction over Franklin’s action because, the circuit court concluded, Alabama law did not authorize the transfer of Franklin’s action to the circuit court after she had successfully invoked, the jurisdiction of the district court. We agree with that conclusion.

By filing her action in district court, stating a claim of breach of contract, and seeking an amount of damages that was within the jurisdictional limit of the district court, Franklin successfully invoked the jurisdiction of the district court. See Ex parte Loftin, 540 So.2d 65, 67 (Ala.1988) (holding that a plaintiff who filed his action in the district court, stated a claim of negligence, and sought an amount of damages that was within the jurisdictional limit of the district court had successfully invoked the jurisdiction of the district court even if the actual amount of damages he had suffered exceeded the jurisdictional limit of the district court). Having successfully invoked the jurisdiction of the district court, Franklin could only seek damages in excess of the jurisdictional limit of the district court by voluntarily dismissing, without prejudice, the action she had filed in the district court and filing a new action in the circuit court that sought an amount of damages that was within the jurisdiction of the circuit court. Id. (recognizing that, when the district court has jurisdiction over an action filed by the plaintiff in that court, the appropriate procedure for the plaintiff to invoke in order to seek damages in excess of the jurisdictional limit of the- district court would be for the plaintiff to voluntarily dismiss, without prejudice, his or her action in the district court and file a new action in the circuit court). As, the circuit court correctly held in the action now before us, Alabama law does not allow a plaintiff to invoke successfully the jurisdiction of the district court, subsequently amend his or her complaint to seek an amount of damages in excess of the jurisdictional limit of the district court, and seek a transfer of the action to the circuit court. Id. (reversing a decision of this court granting a petition for a writ of mandamus directing the circuit court to grant a writ of mandamus directing the district court to allow the plaintiff to amend his complaint to seek an amount of damages that exceeded the jurisdictional limit of the district court as an initial step toward seeking a transfer of his action to the circuit court). Accordingly, we affirm the judgment of the circuit court insofar as it dismissed Franklin’s claims against 7-C’s and Catledge Management on the ground that it lacked subject-matter jurisdiction.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

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

MOORE, J., concurs specially.

MOORE, Judge,

concurring specially.

I fully concur that this court must dismiss the appeal in regard to the July 15, 2009, judgment entered against Valdez Catledge (“Valdez”) due to its untimeliness and that this court must affirm the February 22, 2010, judgment dismissing the action against 7-C’s International, LLC (“7-C’s”), and Catledge Land Management, LP (“Catledge Management”), which was improperly transferred from the district court. However, I note that, for the same reasons the main opinion concludes that the circuit court lacked subject-matter jurisdiction over the claims filed against 7-C’s and Catledge Management, the circuit court also lacked subject-matter jurisdiction over the claims filed against Valdez, and, accordingly, the July 15, 2009, judgment against Valdéz is void for lack of subject-matter jurisdiction. Because of the untimeliness of the appeal from the July 15, 2009, judgment, this court is powerless to take any action in regard to that void judgment; however, any party aggrieved by that judgment may file a Rule 60(b)(4), Ala. R. Civ. P., motion in the circuit court to have the judgment set aside.

      . Because Franklin had successfully invoked the jurisdiction of the district court, such a transfer was not authorized by Alabama law. See Ex parte Loftin, 540 So.2d 65, 67 (Ala.1988) (holding that a plaintiff who hád’filed his action in the district’ court, had stated a claim of negligence, and had sought an amount of damages that was within the jurisdictional limit of the district court had successfully invoked the jurisdiction of the district court even if the actual amount of damages he had suffered exceeded the jurisdictional limit of the district court and that, once he had successfully invoked the jurisdiction of the district court, a transfer of his action to circuit court based on’ an amendment of his complaint seeking an amount of damages greater than the jurisdictional limit of the district court was improper).


text:
    Curtis FESSLER v. David MILLER.
    2090673.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.

      Richard W. Whittaker, Enterprise, for appellant.
    Benjamin H. Parr of Ingram, Rice & Parr, LLC, Opelika, for appellee.
   MOORE, Judge.

Curtis Fessler appeals from a judgment of the Lee Circuit Court (“the trial court”) awarding David Miller compensatory damages following a bench trial. Fessler contends that the trial court erred in denying his demand for a trial by jury. We affirm.

On October 1, 2009, Miller filed a complaint against Fessler seeking $25,182.78 in damages for breach of contract, money had and received, money paid by mistake, and money lent. Fessler, through his attorney of record, moved to dismiss the complaint on November 12, 2009. On December 4, 2009, the trial court denied the motion to dismiss and scheduled the case for trial on March 9, 2010. The trial court subsequently allowed Fessler’s attorney to withdraw from the case on December 21, 2009, but reminded the parties of the scheduled trial date. .On March 8, 2010, the day before trial, Fessler, acting pro se, filed his answer to the complaint. In that answer, which did not contain a certificate of service on Miller, Fessler demanded a trial by jury, on all claims.

On March 9, 2010, at the outset of the trial, Fessler indicated that he was under the impression that he had until the time of the trial to, demand a jury. The trial court, mistakenly believing Fessler had filed an . answer through his original attorney of record, informed Fessler that the time for filing the jury demand had long passed and’ that he could not file a jury demand the day before trial because it would result in the cancellation of the bench trial. The case then proceeded to a trial without a jury. Following the trial, on March 15, 2010, the trial court entered judgment for Miller in the amount of $25,132.78. Fessler then timely appealed to this court.

Article I, § 11, Ala. Const, of 1901, provides that the “right of trial by jury shall remain inviolate.” Rule 38, Ala. R. Civ. P., establishes the procedure for invoking that right. Ex parte Sellers, 31 So.3d 665, 667 (Ala.2009). Rule 38(b), Ala. R. Civ. P., provides, in pertinent part:

“Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than thirty (30) days after the service of the last pleading directed to such issue....”

Fessler argues that he complied with Rule 38(b) because he filed his jury-trial demand in the answer he filed on March 8, 2010, which was the last pleading, directed to the issues for which he sought a jury trial. See Poff v. Hayes, 763 So.2d 234, 243 (Ala.2000); and Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 669 (Ala.1981).

However, pursuant to Rule 38(b), a party may make a jury demand only by “serving upon the other parties a demand therefor in writing.” Rule 38(d), Ala. R. Civ. P., provides: “The failure of a party to serve a demand as required by this rule and to file it as required by [Ala. R. Civ. P.] 5(d) constitutes a waiver by the party of trial by jury.” Rule 5(d), Ala. R. Civ. P., provides, in pertinent part:

“All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court either before service or within a reasonable time thereafter....
“A certificate of service shall list the names and addresses, including the email addresses of registered electronic-filing-system. users, if known, of all attorneys or pro se parties upon whom the paper has been served.”

It is undisputed that Fessler did not include a certificate of service in his answer and that Miller and his attorney did not receive any notice of the jury demand until just before the trial commenced. Based on the plain language of Rule 38(d) and Rule 5(d), Fessler waived any right he had to a trial by jury because he did not properly serve the jury-trial demand upon Miller or properly file a certificate of service of the jury-trial demand with the court.

“[T]his 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, by the trial court.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). Although not expressly considered by the trial court, the lack of proper filing and service amounted to a valid legal ground for denying Fes-sler’s jury-trial demand. Hence, we affirm the judgment of the trial court.

AFFIRMED.

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

      . That constitutional provision does not create a right to a trial by jury, but, rather, it preserves the common-law right to a trial by jury as it existed before the adoption of the Alabama Constitution. Thus, that provision does not give a litigant a right to a, trial by jury on claims and issues that theretofore had not been triable by jury, such as equitable claims. See Finance, Inv. & Rediscount Co. v. Wells, 409 So.2d 1341, 1343 (Ala.1981). Based on our disposition of this case, we do not decide whether Fessler had a right to a trial by jury on any or all of the claims asserted in the complaint.

      . Federal and state courts construing their respective versions of Rule 38 have also reached similar conclusions. See Wall v. National R.R. Passenger Corp., 718 F.2d 906 (9th Cir.1983) (checking jury-demand box on civil cover sheet, which was not served on opposing party, was not proper jury demand); McNabb v. Kansas City Life Ins. Co., 139 F.2d 591, 595 (8th Cir.1943) ("Failure to serve such a demand is a legal waiver, whether it is inadvertent or intentional.”); Sackett v. Santilli, 101 Wash.App. 128, 5 P.3d 11 (2000), aff’d, 146 Wash.2d 498, 47 P.3d 948 (2002) (holding waiver rule to be constitutional); and In re G.P., 679 P.2d 976 (Wyo.1984).