text:
    Emmett JACKSON and Debra Jackson v. WELLS FARGO BANK, N.A., and U.S. Bank, National Association, as trustee for Structured Asset Securities Corporation Trust 2005-WF-3.
    1100594.
    Supreme Court of Alabama.
    Feb. 17, 2012.

      Kenneth J. Riemer and Earl P. Underwood, Jr., of Underwood & Riemer PC, Mobile, for appellants.
    W. Austin Mulherin III and Mary Margaret Bailey of Frazer, Green, Upchurch & Baker, LLC, Mobile; and D. Keith An-dress of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellees.
   WOODALL, Justice.

Emmett Jackson and Debra Jackson, husband and wife, appeal from a summary judgment in favor of Wells Fargo Bank, N.A. (“the bank”), and U.S. Bank, National Association, as trustee for Structured Asset Securities Corporation Trust 2005-WF-3 (“the trustee”), in the Jacksons’ action against the bank and the trustee challenging a foreclosure sale involving the Jacksons’ property. We affirm in part, reverse in part, and remand.

I. Factual and Procedural Background

On February 11, 2005, the Jacksons refinanced an existing loan on their home in Mobile. In so doing, they gave a mortgage on the property, which was subsequently assigned to the bank. Although the mortgage was, in turn, assigned to the trustee, the bank continued to function as the “servicer” of the loan.

The mortgage form was an “ALABAMA — Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT.” (Capitalization in original.) Paragraph 22 provided, in pertinent part:

“22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law....”

(Emphasis added.)

By October 2007, the Jacksons were in arrears on their mortgage payments. In that month, the Jacksons and the bank entered into a “special forebearance agreement” (“the first forebearance”), whereby the Jacksons were to make three monthly payments of $389.82, beginning on November 29, 2007, and a fourth payment of $1,597 on February 29, 2008. A dispute arose over the Jacksons’ compliance with the first forebearance, and, on January 25, 2008, the bank offered the Jacksons another “special forebearance agreement,” whereby they were to make three monthly payments of $370.95, beginning on February 22, 2008, and a fourth payment of $2,405.86 on May 22, 2008. While the Jacksons and the bank were engaged in negotiations for further forebearance, the Jacksons did not make the payment of $2,405.86 that was due in May.

On July 21, 2008, while the negotiations for further forebearance were ongoing, a debt-collection representative of the trustee sent the Jacksons a “NOTICE OF ACCELERATION OF PROMISSORY NOTE AND MORTGAGE” (hereinafter referred to as “the acceleration letter”). (Capitalization in original.) The acceleration letter stated, in pertinent part:

‘YOU ARE HEREBY NOTIFIED that, pursuant to the terms of the Promissory Note and Mortgage dated the 11th day of February, 2005, to Mortgage Electronic Registration Systems, Inc. acting solely as nominee for The Mortgage Outlet, Inc., said mortgage having subsequently been transferred and assigned to [the trustee] and by virtue of default in the terms of said Note and Mortgage, [the trustee] hereby accelerates to maturity the entire remaining unpaid balance of the debt, including attorney’s fees, accrued interest, and other lawful charges, and the amount due and payable as of this date is $37,040.27. This payoff amount may change on a daily basis. If you wish to pay off your mortgage, please call our office to obtain the updated figure.
“We are at this time commencing foreclosure under the terms of the Mortgage, and enclosed is a copy of the foreclosure notice to be published in the Mobile Press-Register. Please note that the foreclosure sale is scheduled for August 15, 2008. If you wish to avoid losing the subject property, you must contact us immediately; otherwise, the foreclosure sale will take place as set forth in the publication notice, and we will take legal action to obtain possession of the subject property....”

(Capitalization in original; emphasis added.) The foreclosure sale occurred on August 15, 2008, as advertised. Subsequently, a foreclosure deed to the property was issued to K-Quad, LLC.

On September 30, 2008, the Jacksons sued the bank, the trustee, and K-Quad, alleging essentially (1) negligent or wanton foreclosure and (2) breach of contract. The complaint sought damages, as well as declaratory and injunctive relief quieting title to the property in the Jacksons. K-Quad filed an answer, which included counterclaims against the Jacksons and cross-claims against the bank and the trustee. Subsequently, K-Quad settled with all parties and was dismissed from the action. Also, K-Quad allegedly executed a quitclaim deed in favor of the bank.

The bank and the trustee jointly moved for a summary judgment, contending that the Jacksons “lack any valid basis to contest the foreclosure sale.” In response to that motion, the Jacksons argued that they were not in default as of the date of the sale and that, in any case, the bank had not given notice of its intent to accelerate as required by paragraph 22 of the mortgage. Subsequently, the bank and the trustee filed an amended summary-judgment motion, contending that the Jacksons had “failed to establish that they are entitled to an award of compensatory damages.” Regarding the notice issue raised by the Jacksons, the bank and the trustee merely stated: “An acceleration letter dated July 21, 2008, notified [the Jacksons] of the total amount of their outstanding debt to [the bank] and the scheduled date of the foreclosure sale.” (Emphasis added.) The bank and trustee supplemented their original summary-judgment filings with a copy of the acceleration letter. The trial court entered a summary judgment in favor of the bank and the trustee, and the Jacksons appealed.

II. Discussion

On appeal, the Jacksons contend that the summary judgment in favor of the bank and the trustee is due to be reversed on any one of a number of alternative grounds. More specifically, they insist that “[t]here are at least three independent grounds upon which a jury could find that the foreclosure in this case was wrongful,” the first of which is the alleged ground that the bank “failed to provide the notice of default and intent to accelerate as required under the mortgage.” The Jack-sons’ brief, at 30-31 (emphasis added). The bank and the trustee reiterate their position that the acceleration letter afforded all the notice required under the mortgage. Although the bank and the trustee also argue that the Jacksons’ claims fail to support an award of damages, the overriding issue on appeal is the legal effect of the acceleration letter.

It is well settled that “[t]o defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact.” Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions regarding the legal effect of unambiguous contractual provisions are questions of law, which are reviewed de novo. Bon Harbor, LLC v. United Bank, 53 So.3d 82, 91 (Ala.2010).

A. Negligent Foreclosure

Alabama has long recognized a cause of action for “wrongful foreclosure” arising out of the exercise of a power-of-sale provision in a mortgage. However, it has defined such a claim as one where “a mortgagee uses the power of sale given under a mortgage for a purpose other than to secure the debt owed by the mortgagor.” Reeves Cedarhurst Dev. Corp. v. First American Fed. Sav. & Loan Ass’n, 607 So.2d 180, 182 (Ala.1992). Elsewhere, a wrongful-foreclosure claim is explained as follows:

“ ‘Generally the purpose for which the power of sale is given being to afford an additional and more speedy remedy for the recovery of the debt, the mortgagor is by the contract bound to exercise necessary promptness in fulfilling it and cannot complain of a legitimate exercise of the power. If in any case it is attempted to pervert the power from its legitimate purpose and to use it for the purpose of oppressing the debtor or of enabling the creditor to acquire the property himself, a court of equity will enjoin a sale or will set it aside if made. Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963 [ (1906) ], and authorities there cited. Or, as was said in the case of Castleman v. Knight, 215 Ala. 429, 110 So. 911 [ (1927) ]: “If he uses the power to sell, which he gets for that purpose, for another purpose, from any ill motive, to effect means and purposes of his own, or to serve the purposes of other individuals, the court considers that to be what it calls a fraud in the exercise of the power, because it is using the power for a purpose foreign to the legitimate purposes for which it was intended.” ’ ”

Paint Rock Props, v. Shewmake, 393 So.2d 982, 983-84 (Ala.1981).

The Jacksons have not argued or alleged that the power of sale was exercised for any purpose “other than to secure the debt owed by [them].” Nor have they invited this Court to revisit or to modify existing law. “It is not the function of this Court to construct and address arguments for the parties on [a nonjuris-dictional] point.” Custom Performance, Inc. v. Dawson, 57 So.3d 90, 99 (Ala.2010). Consequently, the Jacksons present no basis on which to reverse the summary judgment as to their claim of negligent or wanton foreclosure.

B. Breach of Contract

The Jacksons’ breach-of-contract claim stands on better ground. At this stage in the litigation, there remains a fundamental failure of communication between the parties as to the function and effect of the acceleration letter. Although the Jacksons maintain that the acceleration letter was not the notice of intent to accelerate the debt required by the mortgage, the bank and the trustee tout it as evidence that they satisfied their duty under the contract. We agree with the Jacksons.

The parties’ confusion centers on the difference between notice of actual acceleration and notice merely of intent to accelerate. Similar confusion infected the litigation in Ogden v. Gibraltar Savings Ass’n, 640 S.W.2d 232 (Tex.1982), in which the Supreme Court of Texas explained:

“The term ‘notice of acceleration’ is used by the parties to express different concepts. [The debtor] refers to notice of intent to accelerate; Gibraltar refers to notice that the debt has been accelerated. Although the cases do not always clearly distinguish between the two, both types of notices are required. Notice of intent to accelerate is necessary in order to provide the debtor an opportunity to cure his default prior to harsh consequences of acceleration and foreclosure. Proper notice that the debt has been accelerated, in the absence of a contrary agreement or waiver, cuts off the debt- or’s right to cure his default and gives notice that the entire debt is due and payable. See Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948). Notice that the debt has been accelerated, however, is ineffective unless preceded by proper notice of intent to accelerate. Allen Sales & Sevicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex.1975).”

640 S.W.2d at 233-34 (emphasis added). In that connection, commentators have stated:

“[I]t should be emphasized that the Federal National Mortgage Association (Fannie Mae) — Federal Home Loan Mortgage Corporation (FNMA-FHLMC) mortgage-deed of trust form contains substantial limitations on the acceleration process. Not only does it require detailed mailed notice and a thirty-day grace period as a condition precedent to acceleration, it also affords the mortgagor the right to defeat acceleration until five days prior to foreclosure by the payment of arrearages and mortgagee’s reasonable costs and attorney’s fees. These provisions may be omitted from the FNMA-FHLMC form only when state law is more protective of the mortgagor with respect to pre-acceleration requirements and the ability to defeat acceleration once it has occurred. Because most institutional lenders wish to retain the option of selling their home mortgages to these two secondary market entities, they will be likely to use the FNMA-FHLMC form. Thus vast numbers of mortgagors in states that have not enacted legislation regulating acceleration, or whose legislation or case law is less restrictive than the requirements of the form, will nevertheless have substantial protection against abuse of the acceleration process.”

Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law § 7.7, at 551 (Hornbook Series 4th ed.2001) (emphasis added; footnotes omitted). See 1 Jesse P. Evans III, Alabama Property Rights and Remedies § 34.5[a] (4th ed. 2010) (“A party may contractually undertake or obligate him or herself to provide pre-foreclosure notice. Nothing prevents a party from freely engaging in a contract that would require some form of notice to the mortgagor ... as a condition precedent to the exercise of the power of sale in the mortgage. Failure to give notice where there is such a contractual obligation amounts to a failure of a condition precedent or an estoppel, thereby forming a basis for barring exercise of the power .... ” (footnote omitted)). See also Dewberry v. Bank of Standing Rock, 227 Ala. 484, 492, 150 So. 463, 469 (1933) (“[A] sale under the power [of sale] in a mortgage or trust deed must be conducted in strict compliance with the terms of the power.”); Bank of New Brockton v. Dunnavant, 204 Ala. 636, 638, 87 So. 105, 107 (1920) (“ ‘In a court of law a power of sale is merely part of a legal contract to be executed according to its terms.’ ” (quoting Harmon v. Dothan Nat’l Bank, 186 Ala. 360, 369, 64 So. 621, 624 (1914))); Fairfax Cnty. Redev. & Hous. Auth. v. Riekse, 281 Va. 441, 446, 707 S.E.2d 826, 829 (2011) (“[T]he powers of the person foreclosing under a mortgage ... are limited and defined by the instrument under which he acts, and he has only such authority as is thus expressly conferred upon him, together with incidental and implied powers that are necessarily included therein.... Accordingly, the ... mortgagee must see that in all material matters he keeps within his powers, and must execute the trust in strict compliance therewith.”).

The “Fannie Mae/Freddie Mac Uniform Instrument” mortgage form in this case contained the species of provisions referenced in the excerpt from Real Estate Finance Law quoted above. Specifically, paragraph 22 of the form required the bank to give the Jacksons a notice— before acceleration — that it was considering an acceleration, upon the failure of certain conditions, in “not less than 30 days” following the date of the notice. In other words, the debt could not be accelerated until at least 30 days had passed and the Jacksons were still in default. Under the language of this mortgage, without proper notice of intent to accelerate, acceleration fails and, consequently, so does the foreclosure sale. See Sharpe v. Wells Fargo Home Mortg. (In re Sharpe), 425 B.R. 620, 643 (Bankr.N.D.Ala.2010).

The acceleration letter is just that — a notice that the debt had been accelerated, not a notice of intent to accelerate. The only option it contemplates is payment of the entire debt, an approach in direct contravention of paragraph 22. Thus, the Jacksons have provided substantial evidence that essential notice under the mortgage was not given, resulting in failure of the acceleration, and, consequently, failure of the foreclosure sale conducted on August 15, 2008. The trial court’s judgment, to the extent it summarily disposed of the breach-of-contract claim, was improper.

III. Conclusion

In conclusion, the Jacksons have presented no error in regard to the trial court’s judgment insofar as it disposed of the claim alleging negligent or wanton foreclosure. To that extent, the judgment is affirmed. However, insofar as it disposed of the breach-of-contract claim, the judgment is reversed, and the cause is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . Throughout this litigation, the Jacksons have continued to reside on the property.

      . Because the Jacksons have maintained that the judgment could be reversed on this ground alone and have not explained how a reversal on any other ground would materially alter the case, we decline to address other grounds for reversal asserted in their briefs.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    JOHN C. CALHOUN COMMUNITY COLLEGE et al. v. Michael Shane KING.
    2100302.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2011.

      Luther Strange, atty. gen., and Matthew Y. Beam, Montgomery, for appellants.
    Robert C. Lockwood and Christopher L. Lockwood, Huntsville; and Sabrina L. Comer of Slate Carter & Comer, PLLC, Montgomery, for appellee.
   PITTMAN, Judge.

John C. Calhoun Community College (“the college”), Dr. Marilyn Beck (the president of the college), the Alabama Department of Postsecondary Education (“the department”), and Dr. Freída Hill (the chancellor of the department), (hereinafter sometimes referred to collectively as “the defendants”), appeal from a summary judgment in favor of Michael Shane King on King’s claim that he was wrongfully dismissed from his employment without cause and without the opportunity for a hearing. We reverse.

Factual and Procedural History

The college hired King as a systems analyst/computer programmer in August 2005, pursuant to a letter of appointment signed by President Beck. The letter of appointment stated, in pertinent part:

“I am pleased to offer you the position of Systems Analyst/Programmer at Calhoun Community College. Your salary placement will be Salary Schedule C3, Step 6, with a salary of $57,475 (12 months). Your effective date of employment will be August 15, 2005.”

King accepted the position and worked at the college for 2 years and 11 months. On June 20, 2008, President Beck notified King that his employment would be “discontinued,” effective July 8, 2008. King sued the defendants, seeking declaratory relief or, in the alternative, the issuance of a writ of certiorari or mandamus requiring the defendants to reinstate him to his employment with the college. The parties filed cross-motions for a summary judgment.

King acknowledged that, having been employed at the college for less than 3 years, he was a probationary employee whose employment could be terminated upon 15 days’ notice without cause and without a hearing under the Fair Dismissal Act. See Ala.Code 1975, § 36-26-101. He argued, however, that he was entitled to contest the termination of his employment pursuant to Section 2.4 of Policy No. 619.01, part of the Revised Hearing Procedure adopted by the State Board of Education. Section 2.4 states:

“If a probationary employee under contract is terminated within the period of a contract, the employee is entitled to be given cause and the opportunity for a hearing under these procedures adopted by the State Board of Education. Employment agreements shall be offered for either three (3), nine (9), or twelve (12) months. If fifteen (15) calendar days prior to the end of the contract period, the person is not notified in writing that his or her services will no longer be required, he/she shall be offered another employment agreement for the same length as the prior contract unless otherwise agreed to by the President and the employee.”

King argued that President Beck’s appointment letter of August 2005, constituted a 12-month contract that, according to the last sentence of section 2.4 of Policy No. 619.01, had been renewed each succeeding year. He conceded that he had never received a “renewal” of the alleged contract or any other appointment letter after the initial one, but he contended that his alleged contract had been “automatically renewed” each year because he was not given a notice of nonrenewal. Accordingly, he argued, the college had attempted to terminate his employment “within the period of [his] contract,” and, because he was a “probationary employee under contract,” pursuant to section 2.4 of Policy No. 619.01, he was entitled to a hearing before he was dismissed from employment.

King submitted a brief in support of his summary-judgment motion, arguing that House v. Jefferson State Community College, 907 So.2d 424 (Ala.2005), was disposi-tive of his claim that he was a “probationary employee under contract.” In House, a computer-science instructor accepted on October 19, 2000, an offer of employment from Jefferson State Community College (“Jefferson State”). His employment was to begin on March 2, 2001. On March 2, 2001, Jefferson State notified the instructor that his employment would terminate 15 days later. The instructor sued Jefferson State, arguing that he was entitled to a hearing before he was dismissed from his employment. The instructor relied on Policy No. 619.01 and argued, as King does here, that he was a “probationary employee under contract.” The trial court concluded that the instructor had been hired pursuant to an “ ‘open-ended letter of appointment,’ ” 907 So.2d at 426, that did not constitute an employment contract because it did not specify an ending date, and it entered a summary judgment in favor of Jefferson State. The supreme court reversed, concluding that the instructor was a “probationary employee under contract.” The court stated:

“Section 3.14 [now section 2.4] of policy number 619.01, the Revised Hearing Procedure, which was incorporated into House’s contract of employment, provides that ‘[e]mployment agreements shall be offered for either 3, 9, or 12 months’ (emphasis added). House’s contract of employment indicated that his salary was to be derived from salary schedule D. The salary stated in House’s contract of employment was the amount shown as rank II, step 10 of schedule D for ‘9-month’ employment. While House’s contract stated a beginning date for his contractual period, it did not state an ending date. However, considering the contract as a whole, the only reasonable conclusion is that House was employed on a 9-month basis. Ryan Warranty Servs., Inc. v. Welch, 694 So.2d 1271, 1273 (Ala.1997) (‘[A] contract is to be construed in its entirety and not solely on a single provision.’).”

907 So.2d at 427 (footnote omitted).

In support of their summary-judgment motion, the defendants in the present case submitted, among other things, Chapter III of the College Personnel Handbook, entitled “Personnel Policies and Procedures.” Section VIII of that chapter, entitled “Contracts,” provides, in pertinent part:

“VIII. Contracts
“A. Salary Schedule D Contracts “The President of Calhoun Community College may offer contracts for one semester, two semesters, or twelve months, as appropriate, to librarians, counselors, and instructors ....
“B. Contracts for Other Employees
“The President of Calhoun Community College may offer employment contracts as appropriate, to other college personnel, provided funds are available ([State Board of Education] Policy 603.01). The President may also confirm, employment for all employees not on Salary Schedule D by letters of appointment, which shall state the beginning date of employment, salary, job title, and other relevant information.”

(Emphasis added.)

The defendants argued that King was not a “probationary employee under contract,” because that term, as used in section 2.4 of Policy No. 619.01, refers to employees who are hired pursuant to an employment contract for a specified period, whereas King, they said, was hired pursuant to a letter of appointment that was “open-ended” because it did not specify an ending date. In support of that argument, the defendants submitted the affidavits of Chancellor Hill, President Beck, Kimberly Gaines, the human-resources coordinator for the college, and Joan Davis, general counsel and vice-chancellor for legal and human resources for the department, all of whom stated that the only employees who are required by college policy to be hired under a contract for a specified period are employees paid under Salary Schedule D and averred, Salary Schedule D applies only to librarians, counselors, and instructors. College presidents have the discretion, the affiants attested, to appoint other employees by means of a “letter of appointment” that specifies a beginning date but need not specify an ending date. According to the affiants, if a letter of appointment does not specify an ending date, the appointment is “open-ended” and will continue until such time as the appointment is discontinued by the president of the college. In her affidavit, Kimberly Gaines stated that

“[i]t is the general practice of Calhoun Community College to appoint non-faculty personnel by way of an open-ended letter of appointment rather than a contract for a specified period of time, and Mr. King’s appointment was conducted in the same manner as other non-faculty personnel.”

In their brief opposing King’s summary-judgment motion, the defendants argued that House is distinguishable on the basis that the plaintiff in House, an instructor who was paid on Salary Schedule D, was an employee whose employment contract was required to be for a specified period, whereas King was not an instructor, was not paid on Salary Schedule D, and did not have any employment document indicating that he was hired for a specified period. In deposition testimony, President Beck stated that the parenthetical reference to “12 months” in her appointment letter to King (“Your salary placement will be Salary Schedule C3, Step 6, with a salary of $57,475 (12 months)”) designated the rate of King’s compensation, not the length of his appointment. She explained:

“To illustrate how the rate of compensation is applied, Mr. King was paid a monthly salary based on one-twelfth of the annual rate. Had Mr. King been terminated six months after his initial appointment, he would have been paid approximately $28,737 dollars in compensation, or half of $57,475.”

In her affidavit, President Beck stated that King’s rate of compensation had been increased three times: to $60,927, effective September 1, 2005; to $63,973, effective September 1, 2006; and to $70,198, effective September 1, 2007, “in accordance with [the college’s] institutional salary increase procedures.” She explained that

“King’s pay increases each took effect on September 1 of the respective year because under State Board of Education policy and institutional practice, annual raises are granted as of the first date of a contract for employees ‘under contract’ for a given academic year, but granted on September 1 for all other employees.”

The trial court entered a summary judgment in favor of King, concluding that House was controlling and required that King “be given cause and the opportunity for a hearing pursuant to the Revised Hearing Procedure adopted by the State Board of Education.” After their post-judgment motion was denied, the defendants filed a timely appeal.

Standard of Review

“ ‘Our review of a summary judgment is de novo.’ Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 85 (Ala.2003). ‘The nature of our review of the legal conclusions of a trial court is de novo.’ Omega Leasing Corp. v. Movie Gallery, Inc., 859 So.2d 421, 422 (Ala. 2003). ‘When [the] terms [of an agreement] are clear and certain, the court ... has the duty to determine the meaning of the agreement.’ Terry Cove North, Inc. v. Baldwin County Sewer Auth., Inc., 480 So.2d 1171, 1173 (Ala. 1985).”

House v. Jefferson State Cmty. Coll., 907 So.2d at 427.

Discussion

The trial court erred in determining that House requires that King be given cause and the opportunity for a hearing pursuant to Policy No. 619.01. Unlike the employee in House, who was an instructor paid on Salary Schedule D, King was a nonfaculty employee paid on Salary Schedule C. In House, the supreme court placed special emphasis on the requirement in Policy No. 619.01 that an employment contract for an instructor on Salary Schedule D specify the period of employment. The court noted that “ ‘[employment agreements shall be offered for either 3, 9, or 12 months.’ ” 907 So.2d at 427 (emphasis added in House), and it determined that the requirement was satisfied by the notation in the instructor’s appointment letter that the instructor was being hired for “ ‘9-month’ employment.” Id.

Although King argues that the parenthetical reference to “12 months” in his appointment letter also stated the period of his employment, so as to make the appointment letter an employment contract for a specified period, the defendants presented evidence to the contrary — specifically, the testimony of an individual charged with interpreting and applying college policies. President Beck explained that the parenthetical reference to “12 months” in her appointment letter designated the rate of King’s compensation, not the length of his appointment. Because schools and colleges, unlike most other employers, pay some of their employees on a 12-month basis, and others on the basis of the academic calendar, it is not unheard of among schools and colleges to describe an employee’s pay, or “rate of compensation,” in terms of the period during which the compensation is paid. Cf. Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting a letter of appointment for a community-college employee that described “ ‘a rate of compensation equivalent to a full-time annual salary of $12,500.00’ ”) (emphasis added; emphasis omitted).

From all that appears in the House opinion, no representative of Jefferson State or the department presented evidence as to the meaning of the 9-month notation in the instructor’s appointment letter. In the absence of such evidence, our supreme court reasonably interpreted the notation to state a contract of employment for a 9-month period. In the present case, however, the trial court was presented with evidence from President Beck as to the reason for designating King’s pay in terms of a 12-month period. President Beck said the reason was unrelated to the period of King’s employment, however, which employment period, according to department and college officials, was open-ended. The trial court was also presented with the affidavit of Chancellor Hill, stating that nonfaculty employees are not usually offered employment contracts and that a letter of appointment is not an employment contract for a specified period because it has no ending date.

“ ‘An agency’s interpretation of its own policy is controlling unless it is plainly erroneous.’ ” Ex parte Alabama Dep’t of Postsecondary Educ., 50 So.3d 489, 446 (Ala.Civ.App.2009) (quoting Ex parte Board of Sch. Comm’rs of Mobile County, 824 So.2d 759, 761 (Ala.2001)). In concluding that House was controlling, the trial court apparently gave little or no weight to the statements of the officials charged with interpreting and applying the department’s and the college’s policies. However, under similar circumstances, our supreme court in Ex parte Craft, 727 So.2d 55 (Ala.1999), rejected the argument of a technical-college administrator who had been hired pursuant to an ‘“open-ended letter of appointment,’” 727 So.2d at 58, that he was a probationary employee under contract based, in part, on an affidavit of the former interim president of the technical college, stating that

“ ‘[i]t was [the technical college’s] policy that contracts not be given to any administrator. Each employee receives an open-ended letter of appointment, which means that the employee could be terminated at any time during the probationary period (36 months).’ ”

727 So.2d at 57-58. In Craft, the supreme court held:

“[The administrator’s] arguments depend principally upon his assertion that he was under contract and, thus, that his employment could not be terminated before the end of the contract period without cause and a hearing. However, he offers no evidence of a written contract. The defendants presented evidence indicating that [the administrator] was appointed, by a letter of appointment, to the position of interim dean of instruction effective May 1, 1992, and, by another letter of appointment, to the position of dean of instruction effective May 1, 1993. Neither of these documents constitutes a contract of employment for a specified time, and the parties presented no other evidence of such a contract. Thus, under § 36-26-101(c), [the administrator’s] employment was subject to termination after 15 days’ notice.”

727 So.2d at 60 (footnote omitted).

The supreme court did not overrule Craft when it decided House. Therefore, we conclude that the test to be applied in determining whether a letter of appointment such as the one King received constitutes a contract of employment for a specified period is as follows: in the absence of evidence indicating how the department has interpreted or the employing college has applied such an employment document, the document is properly interpreted as any alleged contract would be, that is, it is construed in its entirety according to the plain meaning of its terms. See Ryan Warranty Servs., Inc. v. Welch, 694 So.2d 1271, 1273 (Ala.1997) (quoted in House, 907 So.2d at 427). When, however, a court is presented with evidence indicating how the department has interpreted or the employing college has applied the employment document, a court may decline to follow that guidance only if it is clearly erroneous.

Because House is distinguishable, it is not dispositive of King’s claims. The trial court erred in holding that King was wrongfully dismissed from his employment without cause and without the opportunity for a hearing. We reverse the trial court’s judgment and remand the case for the entry of a judgment in favor of the defendants.

REVERSED AND REMANDED.

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

      . The version of Policy No. 619.01 that is in the record before us states that its effective date is "3/24/05” and that it supersedes former versions of the policy "issued 10-28-04 [and] 12-08-94.” The record indicates that current section 2.4 of Policy No. 619.01 corresponds to former section 3.14.


author: WOODALL, Justice.

text:
    Ex parte Michael Shane KING (In re John C. Calhoun Community College et al. v. Michael Shane King).
    1110245.
    Supreme Court of Alabama.
    Feb. 10, 2012.
    Robert C. Lockwood and Christopher L. Lockwood of Wilmer & Lee, P.A., Huntsville; and Sabrina Comer of Slate Carter & Comer, PLLC, Montgomery, for petitioner.
    Submitted on petitioner’s brief only.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.


author: BRYAN, Judge.

text:
    Carrie Michelle HETZEL v. FLEETWOOD TRUCKING COMPANY, INC.
    2110069.
    Court of Civil Appeals of Alabama.
    Feb. 10, 2012.

      Rex W. Slate of Donaldson & Guin, LLC, Birmingham, for appellant.
    Meredith Jowers Lees and Charles Price II of Haskell Slaughter Young & Rediker, Birmingham, for appellee.
   BRYAN, Judge.

Fleetwood Trucking Company, Inc. (“Fleetwood”), employed Russell Lynn Young as a commercial truck driver. Young was driving a dump track owned by Fleetwood when he was involved in an accident with an automobile being driven by Carrie Michelle Hetzel. Hetzel later sued Young and Fleetwood, alleging various claims arising from the automobile accident. Against Fleetwood, Hetzel alleged that “Fleetwood negligently and/or wantonly hired, trained, and/or supervised” Young; that “Fleetwood negligently and/or wantonly entrusted the motor vehicle” to Young; and that “Fleetwood is ... vicariously liable ... for the negligent and/or wanton conduct of ... Young.” Against Young, Hetzel alleged that Young “negligently and/or wantonly operated” the vehicle involved in the accident.

Fleetwood moved for a partial summary judgment with respect to Hetzel’s negligent-entrustment claim only. One of the elements of a negligent-entrustment claim involving the entrastment of an automobile to a driver is the incompetence of the driver. Mason v. New, 475 So.2d 854, 856 (Ala.1985). In moving for a partial summary judgment, Fleetwood argued that the evidence indicated that Young was a competent driver at the time of the accident and, thus, that Fleetwood had not negligently entrusted its vehicle to Young. On August 9, 2011, the trial court entered a partial summary judgment on the negligent-entrustment claim only, and the trial coui’t certified that judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. Hetzel appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

In alleging that Fleetwood “negligently and/or wantonly entrusted” the vehicle to Young, Hetzel alleged that Fleet-wood was negligent or wanton, or both, in entrusting the vehicle. See Bryan A. Garner, A Dictionary of Modern Legal Usage 56 (2d ed.1995) (discussing the definition of the term “and/or”). Fleetwood moved for a summary judgment with respect to only the negligent-entrustment claim; Fleet-wood did not address the wanton-entrustment claim. The issue on which the trial court entered a summary judgment on the negligent-entrustment claim — the competency of Young as a driver — is also an issue in the wanton-entrustment claim. See Bruck v. Jim Walter Corp., 470 So.2d 1141, 1144 (Ala.1985) (indicating that a driver’s incompetency is an element of wanton entrustment).

Because the competency issue is crucial to both the negligent-entrustment claim and the wanton-entrustment claim, we conclude that the Rule 54(b) certification was not appropriate. As our supreme court recently stated:

“ ‘This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘ “It bears repeating, here, that ‘ “[ejertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.” ’ State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). ‘ “ ‘Appellate review in a piecemeal fashion is not favored.’ ” ’ Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ. App.1996)) (emphasis added).”
‘Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).’
“In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether ‘the issues in the claim being certified and a claim that will remain pending in the trial court “‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ Schlarb [v. Lee,] 955 So.2d [418,] 419-20 [ (Ala.2006) ] (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs. [v. Guthrie,] 20 So.3d [1277,] 1281 [ (Ala. 2009) ] (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required ‘resolution of the same issue’ as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues).”

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala.2010).

Moreover, the claims alleging that “Fleetwood negligently and/or wantonly hired, trained, and/or supervised” Young also preclude proper Rule 54(b) certification. Those claims, like the negligent-en-trustment claim, all depend in part on Young’s incompetency as a driver. See Jones Exp., Inc. v. Jackson, 86 So.3d 298, 305 (Ala.2010) (“[I]mplicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee’s incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiff’s injury.”).

Accordingly, we conclude that the trial court exceeded its discretion in certifying its partial summary judgment on the negligent-entrustment claim as final under Rule 54(b). Because there is no final judgment, we must dismiss the appeal. Lighting Fair.

APPEAL DISMISSED.

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

      . Rule 54(b) provides, in pertinent part:
      “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination. that there is no just reason for delay and upon an express direction for the entry of judgment.”


text:
    Ex parte Teresa NORLANDER (In re Daniel Norlander v. Teresa Norlander).
    2110193.
    Court of Civil Appeals of Alabama.
    Feb. 17, 2012.

      William C. Porter, Cullman, for petitioner.
    Michael W. Fuller of Fuller, Willingham, Fuller & Carter, LLC, Cullman, for respondent.
   PITTMAN, Judge.

Teresa Norlander (“the mother”) petitions this court to issue a writ of mandamus directing the Cullman Circuit Court to vacate its ex parte order awarding pen-dente lite custody of the parties’ 10-year-old son to Daniel Norlander (“the father”). For the reasons set forth below, we grant the petition and issue the writ.

Fads and Procedural Histonj

On October 26, 2011, the father filed a divorce complaint and a motion for immediate pendente lite relief, seeking custody of the child, possession and exclusive use of the marital residence, and a temporary restraining order prohibiting the mother from harassing, threatening, or interfering with the father. In support of his motion for pendente lite custody, the father alleged the following: that the mother was mentally unstable and unable to provide a safe environment for the child; that the mother had directed “violent fits or rage” at the father and had threatened to take the child away from him; that the mother had created a “fantasy world” based on a delusion that the father and his family were conspiring to ruin her reputation; that the mother had disparaged the father and his family members in the presence of the child, once having referred to the paternal grandmother as a “slut” in the presence of the child, resulting, the father said, in his having to explain to the child the meaning of the word “slut”; that the mother had not allowed the child to see his paternal grandparents since May 2009; that the mother had screamed at the father in the presence of the child and had called the father “evil,” a “narcissist,” and “a pathological liar” — conduct that, the father alleged, was adversely and irreparably damaging the child; that the mother had refused to seek treatment to determine whether she had a mental illness; that the mother was homeschooling the child and was, therefore, in a position to influence the child by her delusional conduct and that, according to the father, the child was beginning to believe the mother’s delusions; and, finally, that the father was “fearful as to what [the mother would] do to [him] and [to the child] once she was served with the complaint and the motion for immediate relief.”

The trial court entered an ex parte order granting the father’s motion for pen-dente lite relief the same day it was filed. The mother was served with the divorce complaint two days later on October 28, 2011. On November 4, 2011, the mother filed a motion to set aside the ex parte order, filed her own motion for pendente lite custody and child support, and filed a motion requesting the issuance of mutual restraining orders prohibiting the parties from harassing, annoying, or demeaning each other. The mother attached to her motion to set aside the ex parte order that had been issued in favor of the father on his request for pendente lite custody a certified copy of a similar motion that the father had filed, along with a divorce complaint, in May 2009. The grounds stated in the father’s 2011 motion for pendente lite custody are identical to the grounds stated in his 2009 motion for pendente lite custody. The mother also attached to her motion copies of letters allegedly sent by the father to her, to his parents, and to his clergyman after he had dismissed his 2009 divorce complaint. Those letters purportedly contain the father’s admission that he is a “pathological liar”; the father’s apology for the “false” assertions concerning the mother in the 2009 pleadings; and the father’s acknowledgment that he, rather than the mother, was suffering from “mental problems” that, according to the letters, were caused by “brain damage” occasioned by the father’s drug use.

The father filed a response to the mother’s motion to set aside the ex parte order, asserting that the statements he had made in the correspondence attached to the mother’s motion had not been made under oath and had merely reflected his efforts in 2009 “to save his marriage” and “to appease [the mother].” The father asserted that the allegations he had made in 2011 concerning the mother’s conduct were essentially the same as the allegations he had made in 2009 because, he said, the mother had simply “never changed her conduct.”

The trial court denied all the mother’s motions on November 16, 2011. The mother filed a timely petition for a writ of mandamus in this court on November 18, 2011.

Standard of Revieiv

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

Discussion

In Ex parte Williams, 474 So.2d 707, 710 (Ala.1985), our supreme court held that “a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice under Rules 4 and 5, [Ala.] R. Civ. P., and an opportunity to be heard.” The only exception to that rule is a situation in which “the actual health and physical well-being of the child are in danger.” Id. (emphasis omitted; quoting Thorne v. Thorne, 344 So.2d 165, 171 (Ala.Civ.App.1977)). See also Ex parte Franks, 7 So.3d 391 (Ala.Civ.App.2008), and Ex parte Russell, 911 So.2d 719 (Ala.Civ.App.2005).

Taking as true all the father’s assertions concerning the mother’s conduct and the alleged effect of that conduct on the child, the assertions are simply insufficient, either singly or in combination, to infer a danger to the child’s “actual health and physical well-being.” The father’s allegations amount to no more than a description of the mother’s verbal display of anger at the father, accompanied by shouting, insults, and disparagement of the father’s family members. That such rancor would be displayed in the presence of the parties’ child is unfortunate, but, we daresay, it is hardly unheard-of between spouses who are on the threshold of a divorce.

The father’s motion for immediate pen-dente lite relief “vehemently denie[d] that any physical abuse had occurred during the parties’ marriage.” Cf. Ex parte Russell, 911 So.2d at 720 (granting the mother’s petition and issuing a writ of mandamus directing the trial court to vacate its ex parte order removing custody from the mother, despite the father’s assertion that the mother had “ ‘committed acts of violence upon him ... in the presence of ... the parties’ minor child’ ”). In Russell, this court discounted the father’s allegation that the mother had committed an act of domestic violence sufficient to render her a danger to the child’s physical health and well-being because the father had “not initiate[d] [the custody-modification proceeding in which he sought ex parte relief] until two weeks after the alleged act of domestic violence had occurred.” 911 So.2d at 723. The inference that could have been drawn from the fact that the father in Russell waited two weeks after an alleged domestic-violence incident to seek an immediate, emergency pendente lite custody order — ie., that there was no immediacy or emergency and, thus, that there was no merit in the allegation that the mother presented a threat to the child’s physical health and well-being — is much stronger in the present case. Here, the father alleged, in both 2009 and 2011, that the mother’s mental instability rendered her unable to provide a safe environment for the child. However, the father’s permitting the mother to maintain, throughout the two-year period between 2009 and 2011, constant daily contact with the child by homeschooling the child is at odds with the father’s allegation.

The father argues that the rule announced in Ex parte Williams — that “a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice ... and an opportunity to be heard” — does not apply in this case because, he says, the ex parte custody order in this original divorce proceeding did not have the effect, as the ex parte order in Ex parte Williams did, of modifying a previous judgment awarding custody to a parent. That argument — the acceptance of which would result in the absurd declaration that married parents do not have “custody” of their children and that neither member of a couple that is separated has custody of his or her children until the order of a court makes it so — is belied by our decision in Ex parte Franks, supra, also an original divorce proceeding in which the first and only custody order at issue was the ex parte pendente lite order in favor of the mother and in which this court repeated the well-established rule set out in Ex parte Williams:

“In the absence of allegations indicating that the ‘actual health and physical well-being of the minor child are in danger,’ the trial court was without authority to enter an order removing custody from the father without affording the father notice and an opportunity to be heard. Ex parte Williams, 474 So.2d at 710; Thorne v. Thorne, 344 So.2d at 171.”

7 So.3d at 395 (emphasis added).

The father contends that the mother is not entitled to relief by way of the petition for the writ of mandamus because, he says, she has other remedies available to her, specifically, “the right to request a hearing on the issue of temporary custody” or “a trial on the merits.” The mother is seeking to have the trial court’s interlocutory order, which was entered without notice to her and without a hearing, set aside; her right to request a hearing on pendente lite custody or permanent custody does not amount to a remedy for the unlawful issuance of the ex parte order. Mandamus is the proper vehicle to review an interlocutory order in a divorce action that results in the denial of due process. See Ex parte Franks, 7 So.3d at 396.

We hold that the allegations in the father’s October 26, 2011, motion were insufficient to warrant the entry of the penden-te lite custody order of that same date without providing the mother with notice and the opportunity to be heard. We, therefore, grant the petition and direct the Cullman Circuit Court to vacate its October 26, 2011, order and to conduct a hearing on the mother’s November 4, 2011, motions.

PETITION GRANTED; WRIT ISSUED.

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

THOMAS, J., recuses herself.


author: THOMPSON, Presiding Judge.

text:
    Barbara Jean PATTERSON v. Raymond Lindsey PATTERSON.
    2101185.
    Court of Civil Appeals of Alabama.
    Feb. 17, 2012.
    James C. Melnturff, Pell City, for appellant.

      Brandi C. Williams of Harmon Williams LLC, Pell City, for appellee.
   THOMPSON, Presiding Judge.

Barbara Jean Patterson (“the wife”) appeals from a judgment of the St. Clair Circuit Court divorcing her from Raymond Lindsey Patterson (“the husband”) and dividing the parties’ marital estate. For the reasons stated herein, we reverse the trial court’s judgment and remand the cause for the entry of a new judgment.

The parties married in 1989. One child was born of the marriage; she was 12 years old at the time of the trial. The parties separated in September 2008, and the husband subsequently filed a complaint for a divorce on January 20, 2009. During the pendency of the action, the parties entered into a pendente lite agreement providing, among other things, that the wife would have custody of the child, that the husband would have visitation with the child, that the husband would pay $683 as child support and $167 as spousal support to the wife every month, and that the husband would make the monthly payment of $317 on the van the wife drove.

The trial court held a bench trial of the action on April 5, 2010. Testimony at the trial revealed the following pertinent facts. The husband began working for his present employer, Honda Manufacturing of Alabama, LLC, in 2001. He stated that he works 40 hours per week, that he has an annual base salary of approximately $64,000, and that he does not work overtime on a regular basis. The CS-41 Child-Support-Obligation Income Statement/Affidavit that the husband filed with the court indicated that he earned $5,733 monthly. When it was pointed out that he earned approximately $91,500 a year in 2006 and 2007, the husband stated that his income had since decreased because of salary reductions and the elimination of overtime work brought on by poor economic conditions. The husband stated that he earned approximately $1,000 per year working on boats. He testified that he had accumulated “maybe” $30,000 in a retirement account with his employer, but he also admitted that the accumulated amount could possibly be more.

When the parties married, the wife was working as a welder, earning $10 or $12 per hour. She quit that job in 1996 at her doctor’s request because of her pregnancy with the parties’ child. The husband testified that the parties had agreed that the wife would return to work after a period following the birth of the parties’ child. He stated that the wife refused to do so, however.

Although the wife did not return to full-time employment, which, according to the husband, had caused problems in the parties’ marriage, the wife had worked as a school-bus driver for the last eight or nine years. She earned approximately $14,000 annually as a bus driver and had accumulated approximately $3,000 in a retirement account. During the marriage, the wife, who had a general equivalency diploma (“GED”), took some college courses related to computer-aided drafting, but she did not obtain á college degree.

The wife testified that she did not suffer from any condition that kept her from working at a job with more hours. She stated that the reason she had chosen to drive a school bus for her employment was so she could raise the parties’ child and not have to pay a babysitter. When asked if she had any prospect for increasing her income, she stated that she wanted to be there for the parties’ child. She stated that she was not able to maintain the standard of living to which she had become accustomed during the marriage.

Before the parties separated, the parties lost their house in a foreclosure proceeding. At the time of their separation, the parties sold much of their personal property and divided the proceeds equally. At the time of trial, the wife was living in an apartment and the husband was living in a house with his girlfriend. The parties’ assets at the time of trial included their retirement accounts; the van the wife used on which the parties owed approximately $1,800 — $2,500; a truck the husband used on which the parties owed approximately $1,800 — $2,000; and an all-terrain vehicle on which the parties owed approximately $3,200-$3,600. The husband had had several medical procedures before the parties’ separation, and, at the time of trial, he still owed $1,000 in medical bills.

The husband testified that, in 2006 or 2007, he began making wine and moonshine. He testified that he sold the moonshine and that he and the wife consumed the wine. In April 2008, the husband attended a 90-day rehabilitation program because of his abuse of a prescription medication he had been taking since 1997. He testified that he had successfully completed the program and that he had not abused any drug or narcotic since then. He stated that he had had very little alcohol to drink since that time and that he no longer made wine and moonshine. In a document prepared while he was undergoing rehabilitation, the husband reported that he had struggled significantly with alcohol- and drug-related problems and that those struggles had affected his family and his family’s financial situation. The husband stated that, before the parties separated, he had attended some of the child’s basketball games in an intoxicated condition.

On May 3, 2010, the trial court entered a judgment divorcing the parties. In its judgment, the trial court awarded to each party the personal property (presumably including the vehicles they each normally drove) in his and her respective possession, and it awarded to each party, respectively, his and her retirement account. The trial court reserved the issue of alimony “as the [husband] is currently paying for the [vehicle] driven by the [wife].” The trial court awarded the parties “shared care, custody, and control” of their child, with the wife to “maintain the primary residence” for the child and the husband to “maintain the secondary residence” for the child. The husband was ordered to pay monthly child support of $685 and to maintain medical insurance for the child. The husband was also ordered to pay all the marital debts and to pay the $5,000 fee of the guardian ad litem the court had appointed for the parties’ child.

Within 30 days of the entry of the divorce judgment, the wife filed a motion that she titled “Petition to Modify Decree.” Although the motion set forth grounds cognizable under Rule 59(e), Ala. R. Civ. P., as a basis to alter, amend, or vacate the divorce judgment, the trial court treated the wife’s motion as having initiated a separate action seeking to modify the divorce judgment and denied it on the basis that the wife did not allege in her motion a material change in circumstance since the entry of the divorce judgment.

The wife appealed. On appeal, this court determined that the trial court had erred in treating the wife’s motion as a petition to modify the divorce judgment rather than as a Rule 59(e) motion to alter, amend, or vacate the divorce judgment. Patterson v. Patterson, 71 So.3d 699, 700-01 (Ala.Civ.App.2011). We reversed the trial court’s judgment denying that motion and remanded the cause with instructions that the trial court treat the motion as a Rule 59(e) postjudgment motion. Id. We ordered that the 90-day period in which to rule on a postjudgment motion established by Rule 59.1, Ala. R. Civ. P., would begin to run on the date this court issued its certificate of judgment. Id. at 701.

On May 4, 2011, this court issued its certificate of judgment. Subsequently, the wife’s motion was denied by operation of law, and the wife filed a timely appeal to this court.

The wife contends that the trial court erred when it failed to award her alimony and failed to award her any portion of the husband’s retirement account. Our review of this issue is well settled:

“Alabama law is well settled that property-division issues are within the trial court’s broad discretion, and a judgment must be plainly and palpably beyond the scope of that discretion before the judgment can be disturbed on appeal. See McClelland v. McClelland, 841 So.2d 1264, 1271 (Ala.Civ.App.2002). When dividing marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. See Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996); see also Ex parte Elliott, 782 So.2d 308, 311-12 (Ala.2000), and Morrison v. Morrison, 540 So.2d 80, 81 (Ala.Civ.App.1989) (affirming division of property under which one spouse was awarded all the marital real property).
“ ‘A court has no fixed standard to follow in awarding alimony or in dividing marital property[; rjather the award or division need only be equitable and be supported by the particular facts of the case.’ Ex parte Elliott, 782 So.2d at 311; see also Hall v. Hall, 895 So.2d 299, 303 (Ala.Civ.App.2004). In examining whether the trial court acted within its discretion in dividing the parties’ property or determining whether to award alimony, an appellate court reviews the entire judgment. See O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996).”

Lowery v. Lowery, 72 So.3d 701, 705-06 (Ala.Civ.App.2011). With regard to periodic alimony, this court has stated: “The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties enjoyed during the marriage, until the spouse is self-supporting or maintaining a lifestyle similar to the one enjoyed during the marriage.” Yohey v. Yohey, 890 So.2d 160, 168 (Ala.Civ.App.2004).

The parties were married more than 20 years. The final judgment awarded the husband his truck, an all-terrain vehicle, and his retirement account, which he testified had “maybe” $30,000, and possibly more than that, in it. The final judgment also ordered the husband to pay the marital debt, which appears from the record to amount to between $7,800 and $9,100, and the guardian ad litem’s fee of $5,000. The final judgment awarded the wife her van and her retirement account, in which she had accumulated approximately $3,000. The husband, who has a college education, earns a salary of at least $64,000 annually, and, in the past, has earned substantially more than that. The wife, who has a GED and no college degree, earns approximately $1,150 per month. The wife testified that she is not able to maintain the standard of living to which she had become accustomed during the marriage.

Given the length of the parties’ marriage, the wide disparity in income between the parties, and a division of marital property that appears to favor the husband, we conclude that the trial court erred to reversal when it failed to award the wife some amount of periodic alimony. See Lowery, 72 So.3d at 706 (reversing trial court’s judgment failing to award periodic alimony to wife because of wide disparity in the parties’ income); Allen v. Allen, 53 So.3d 960, 965-66 (Ala.Civ.App.2010) (reversing periodic-alimony award of $600 as inadequate when husband’s monthly net income was $3,000 and wife’s monthly disability income was $600).

The issues of alimony and property division are intertwined. See Lowery, 72 So.3d at 706. Because we are reversing the trial court’s judgment for failing to award the wife periodic alimony, we pre-termit discussion of the wife’s argument that the trial court should have awarded her a portion of the husband’s retirement account. On remand, the trial court will have the opportunity to reconsider its division of the parties’ marital property when determining the issue of periodic alimony.

The wife also contends that the trial court erred when it failed to award her an attorney fee. In Lowery v. Lowery, 72 So.3d at 706, we pretermitted discussion of the same issue under similar circumstances, writing:

“Because we are reversing the judgment for failure to award the wife some amount of spousal support, we pretermit discussion of the lack of an attorney-fee award to the wife. We simply note that certain “‘[fjactors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” ’ Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996) (quoting Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993)). Considering the outcome of the litigation and the wife’s minimal income, an attorney-fee award on remand may be appropriate.”

We adhere to our determination in Lowery and leave it to the trial court to consider on remand whether to award the wife an attorney fee.

Based on the foregoing, we reverse the trial court’s judgment and we remand the cause for the entry of a new judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . On April 18, 2011, before this court had issued its certificate of judgment, the trial court purported to enter a judgment denying the wife’s postjudgment motion. Because the certificate of judgment had not yet been issued, the trial court was without subject-matter jurisdiction when it purported to enter that judgment. Thus, the judgment was void. See Raybon v. Hall, 17 So.3d 673, 675 (Ala.Civ.App.2009).


author: MOORE, Judge.

text:
    Angela SIBLEY v. Lance SIBLEY.
    2100915.
    Court of Civil Appeals of Alabama.
    Feb. 17, 2012.

      Blake L. Oliver of Adams, Umbach, Davidson & White, LLP, Opelika, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

Angela Sibley (“the wife”) appeals from a May 17, 2011, judgment of the Russell Circuit Court (“the trial court”) purporting to amend a divorce judgment entered on October 18, 2010.

The procedural facts pertinent to this appeal show that Lance Sibley (“the husband”) filed a complaint for a divorce from the wife on August 13, 2009. The wife filed an answer and a counterclaim on August 18, 2009. After entering several interim orders and holding a trial on the matter, the trial court entered a final judgment on September 28, 2010; that judgment had been prepared by the wife’s attorney. On October 1, 2010, the wife filed a motion seeking to vacate the September 28, 2010, judgment because it had been submitted by her attorney in error. The trial court entered a corrected judgment on October 18, 2010 (“the divorce judgment”).

On November 17, 2010, the husband filed a motion to amend the divorce judgment, arguing, among other things, that the trial court had erred in determining the amount of the health-insurance premiums the husband should pay on behalf of the wife. On December 2, 2010, the trial court denied that motion in part, but it ordered that a hearing on the health-insurance issue would be held on January 14, 2011. On December 14, 2010, the husband filed an “Amended Motion/Motion for Rule Nisi.” In that motion, the husband argued for the first time that the child-custody, visitation, and property-division provisions of the divorce judgment should be altered and that a new provision relating to the parties’ joint bank account should be added. The husband further alleged that the wife had contemptuously violated the trial court’s judgment insofar as it ordered the wife not to harass the husband or his coworkers. On January 11, 2011, the wife filed an “Answer & Counterclaim” in which she argued that the divorce judgment should not be amended as requested by the husband but that the visitation and property-division provisions of the judgment should, nevertheless, be amended. The wife also sought to hold the husband in contempt based on his alleged violation of several provisions of the divorce judgment.

The trial court ordered that a final hearing on all the issues would be held on March 21, 2011. After that hearing, the trial court found both parties to be in contempt and sentenced each of them to one day in the Russell County jail to be served on March 22, 2011. On May 17, 2011, the trial court entered a judgment purporting to amend the divorce judgment. The wife appealed from that judgment on June 27, 2011.

The dispositive issue on appeal is whether the trial court had lost jurisdiction to enter the May 17, 2011, judgment, pursuant to Rule 59.1, Ala. R. Civ. P., which provides that certain postjudgment motions that remain pending for 90 days are deemed denied by operation of law on the 90th day and that a trial court thereafter loses jurisdiction to rule on such motions. See, e.g., Ex parte Davidson, 782 So.2d 287, 241 (Ala.2000).

The record reflects that the husband filed his first postjudgment motion on November 17, 2010, and that he amended that motion on December 14, 2010. The wife filed her postjudgment motion on January 11, 2011. All the motions sought amendments or additions to the October 18, 2010, divorce judgment and are properly considered to be motions filed pursuant to Rule 59(e), Ala. R. Civ. P. Under Rule 59.1, motions filed pursuant to Rule 59(e) shall remain pending before a trial court for only 90 days, “unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie.” The record does not contain the express consent of the parties or permission from this court to extend the time for ruling on the motions beyond 90 days. Assuming, without deciding, that the 90-day period began to run, at the latest, when the wife filed her post-judgment motion on January 11, 2011, the trial court had until April 11, 2011, to rule on the parties’ postjudgment motions. “A failure by the trial court to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.” Rule 59.1, Ala. R. Civ. P. Thus, at the latest, the postjudgment motions were denied by operation of law on April 11, 2011. After the postjudgment motions were denied by operation of law, the trial court lost jurisdiction to act on the motions; its May 17, 2011, judgment, therefore, is void. Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).

A judgment that has been rendered void by operation of Rule 59.1 may be set aside on a motion filed with the trial court under Rule 60(b)(4), Ala. R. Civ. P. See Ex parte R.S.C., 853 So.2d 228, 233 (Ala.Civ.App.2002). In the event a trial court refuses to vacate a void judgment upon proper motion, an aggrieved party may appeal that denial. See Weaver v. Weaver, 4 So.3d 1171, 1172 (Ala.Civ.App.2008). Our supreme court has also recognized that, in appropriate circumstances, a petition for a writ of mandamus will issue to direct a trial court to vacate any orders entered on a postjudgment motion after that motion has been denied by operation of law pursuant to Rule 59.1. See Ex parte Bolen, 915 So.2d 565, 567-68 (Ala.2005). However, an appeal will not lie from a judgment rendered void pursuant to Rule 59.1. See, e.g., Claridy v. Claridy, 43 So.3d 626, 628 (Ala.Civ.App.2010). By directly appealing following the entry of the May 17, 2011, judgment, the mother did not follow proper procedure, and, although we recognize that the May 17, 2011, judgment is void, this court is without jurisdiction to grant the wife any relief. Instead, this court must dismiss the appeal. Id.

APPEAL DISMISSED.

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

      . The wife does not contend that the amended motion constituted an impermissible successive postjudgment motion. See, e.g., Hudson v. Hudson, 963 So.2d 92, 94 (Ala.Civ.App.2007). This court will not sua sponte address that issue because it is not necessary for us to do so in order to decide the appeal.

      . Because it is not necessary for us to do so in order to decide the appeal, this court does not address the timeliness of the wife’s post-judgment motion.


text:
    B.B. v. M.N.
    2100895.
    Court of Civil Appeals of Alabama.
    Feb. 17, 2012.
    Mark David Pratt, Birmingham, for appellant.
    Julie Ann Marks, Legal Ad Society of Birmingham, Birmingham, for appellee.
   MOORE, Judge.

B.B. appeals from a February 28, 2011, judgment of the Jefferson Juvenile Court (“the juvenile court”) that set aside a prior judgment of that court adjudicating B.B. as the father of L.S.W. (“the child”) and dismissed a dependency action filed by B.B. regarding the child.

The following facts are undisputed. The child was born on August 30, 2006, to M.W. (“the mother”), who was, at that time, married to M.N. On February 19, 2007, B.B. filed a paternity action in the juvenile court to have himself declared the father of the child. Although B.B. served the mother with the complaint in the paternity action, he did not serve M.N. and M.N. did not otherwise receive notice of, or appear in, the paternity action. In the paternity action, the juvenile court ordered “DNA” testing, which revealed the probability of B.B.’s paternity of the child to be 99.99%. On June 26, 2007, the juvenile court entered a judgment establishing B.B. as the child’s legal father, ordering B.B. to pay $538 per month in child support, placing legal and physical custody of the child with the mother, and awarding B.B. visitation with the child. Following the entry of the judgment in the paternity action, the mother remained married to M.N. and they resided together with the child until the mother’s death on July 6, 2008. On July 10, 2008, M.N. filed a motion to set aside the judgment in the paternity action. B.B. responded by, among other things, filing a dependency petition with the juvenile court on July 11, 2008.

The juvenile court consolidated for trial M.N.’s motion to set aside the judgment in the paternity action and B.B.’s dependency petition. The trial consisted of two ore tenus hearings conducted on February 26 and March 4, 2010. In its final judgment, the juvenile court concluded that the judgment in the paternity action was due to be set aside because B.B. lacked standing to contest the paternity of the child; the juvenile court further found that the child was not dependent and dismissed the dependency action filed by B.B.

On appeal, B.B. contends that the juvenile court erred in finding that he lacked standing to prosecute the paternity action and in failing to find the child dependent.

As to the first contention, B.B. acknowledges that, under Alabama’s former Uniform Parentage Act, Ala.Code 1975, former § 26-17-1 et seq., M.N. was the presumed natural father of the child because the child was born during his marriage to the mother. See Ala.Code 1975, former § 26-17-5(a)(1). B.B. further acknowledges that so long as M.N. persisted in the presumption that he is the natural father of the child, B.B. lacked standing to bring a paternity action to have himself declared the biological father of the child. See Ex parte Presse, 554 So.2d 406 (Ala.1989). B.B. maintains, however, that M.N. failed to persist in his presumed paternity, thus conferring standing on B.B. to bring and maintain his paternity action.

In J.O.J. v. R.R., 895 So.2d 336, 340 (Ala.Civ.App.2004), of this court held that a juvenile court must conduct an evidentia-ry hearing to resolve any question as to whether a presumed father persists in his presumption of paternity. See also W.D.R. v. H.M., 897 So.2d 327 (Ala.Civ. App.2004); and R.D.B. v. A.C., 27 So.3d 1283 (Ala.Civ.App.2009) (accord). In this case, the juvenile court conducted a hearing over the course of two days, most of which was dedicated to resolving the question whether M.N. persisted in the presumption that he was the natural father of the child. B.B. elicited a great deal of evidence regarding his and M.N.’s interactions with the child and with each other following the entry of the June 26, 2007, paternity judgment. However, standing concerns the power to bring and maintain a valid legal action. See Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). Standing must be determined as of the time of the filing of an action asserting a legal right. See Town of Elmore v. Town of Coosada, 957 So.2d 1096, 1102 (Ala.2006). Thus, the proper question for the juvenile court to resolve was whether M.N. persisted in the presumption of paternity when B.B. filed and maintained his paternity action in 2007. A thorough review of the record convinces us that B.B. presented no evidence indicating that M.N. failed to persist in the presumption of paternity during that essential period. Thus, the juvenile court did not err in finding that B.B. lacked standing to bring the 2007 paternity action and in setting the paternity judgment aside on that ground. See generally Cadle Co. v. Shabani, 950 So.2d 277, 279 (Ala.2006) (holding that judgment is void and due to be vacated if plaintiff lacked standing to invoke jurisdiction of trial court).

As to his second contention, B.B. argues that the child was dependent because the mother of the child had died, leaving the child with “two legal fathers” who disputed the custody of the child. See Ala.Code 1975, former § 12-15-1(10)c. & n. (defining “dependent child” to include a child whose custody was the subject of controversy and who was in need of care and protection). Assuming, without deciding, that the child could be found dependent under the circumstances described by B.B., we conclude that the juvenile court did not err in finding the child not to be dependent. B.B. claims status as the “legal father” of the child based solely on the 2007 paternity judgment; however, as we have held, that judgment is void and, as such, had no legal effect. See Loyd v. Director, Dep’t of Pub. Safety, 480 So.2d 577, 579 (Ala.Civ.App.1985) (“A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree.”). When the mother died, she did not leave the child with “two legal fathers”; rather, she left the child with one father, M.N. Hence, we reject B.B.’s contention that the child was dependent because of any alleged uncertainty as to her legal paternity.

We conclude that B.B. has failed to show that the juvenile court committed any error. Thus, the judgment of the juvenile court is affirmed.

AFFIRMED.

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

      . For various reasons, B.B. did not receive notice of the entry of the February 28, 2011, judgment until some time in May 2011. On May 24, 2011, B.B. filed a Rule 60(b)(6), Ala. R. Civ. P., motion to have the February 28, 2011, judgment set aside. The juvenile court essentially granted that motion, but it subsequently reentered the same judgment on June 2, 2011. B.B. appealed on June 16, 2011. Based on those circumstances, this court treats the appeal as being timely.

      . The former Alabama Uniform Parentage Act was repealed effective January 1, 2009. Because the paternity action in the present case was filed before that date, we apply the former act.

      . Effective January 1, 2009, former § 12 — 15— 1(10), Ala.Code 1975, was amended and renumbered. Because the dependency action in the present case was filed before January 1, 2009, we apply the former act.