author: BRYAN, Judge. BRYAN, Judge.

text:
    Charles Lance PAULK v. Vickie Gail PAULK.
    2100345.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.
    Opinion on Return to Remand March 9, 2012.

      Jerry W. Jackson of Jackson, Mays & McNutt, LLC, Haleyville, for appellant.
    Horace H. Nation III, Jasper, for appel-lee.
   BRYAN, Judge.

Charles Lance Paulk (“the husband”) appeals from a judgment entered by the Winston Circuit Court (“the trial court”) that divorced him from Vickie Gail Paulk (“the wife”). For the reasons set forth herein, we remand the cause with instructions to the trial court to clarify its judgment.

The wife filed a complaint for a divorce on January 9, 2009. In her complaint, she alleged that the parties had married on April 15, 2006, and that they had separated on December 6, 2008. The husband subsequently filed an answer to the wife’s complaint and a counterclaim for a divorce. There were no children born during the parties’ marriage, and the parties sought only a division of their property and debts. The trial court conducted an ore tenus hearing on June 24, 2010, but the transcript of that proceeding abruptly ends during the direct examination of the wife by her attorney after a discussion was held off the record. No other testimony was presented at an ore tenus hearing. On August 3, 2010, the wife filed a written summary of her testimony with the trial court, and, on October 7, 2010, the husband filed a written summary of his testimony with the trial court.

On October 26, 2010, the trial court entered a judgment divorcing the parties and dividing their real and personal property. Pursuant to that judgment, each party was awarded any real property that that party owned before the marriage and each party was assigned any indebtedness on the property that party was awarded. The husband was awarded all personal property that he owned before the parties married, and he was assigned responsibility for any indebtedness on that property. The wife was awarded the real property described as “the farm,” and all personal property located thereon. The wife was assigned any outstanding indebtedness on the farm, and both parties were assigned responsibility for any other debts in their names.

The husband filed a motion to alter, amend, or vacate the trial court’s judgment pursuant to Rule 59, Ala. R. Civ. P. The husband raised issues about certain items of personal property that were located at the farm, and he argued that the trial court had erred by failing to award him any interest in the farm. The trial court denied the husband’s postjudgment motion, and the husband timely appealed.

On appeal, the husband first argues that the trial court erred by restricting his ability to present ore tenus testimony. The husband specifically contends that the trial court erred by restricting his right to cross-examine the wife and by restricting his right to present evidence in support of his claim. In her brief on appeal, the wife argues that this court cannot consider these arguments because the husband failed to raise any objection before the trial court regarding how the proceedings below were conducted. Indeed, our review of the record reveals that the husband failed to raise the arguments he now presents on appeal. It is well settled that this court cannot consider an argument that is raised for the first time on appeal. See Lewis v. Lewis, 958 So.2d 896, 899 (Ala.Civ.App.2006) (holding that the mother did not preserve for appellate review her argument that the trial court had erred by limiting the testimony she presented during trial because she did not object to the time limitation or request additional time in which to complete presentation of her evidence); and Davis v. Southland Corp., 465 So.2d 397, 402 (Ala.1985) (“Timely objection is a condition precedent to raising an error on appeal.”). Accordingly, we cannot consider these arguments on appeal.

Next, the husband argues that the trial court’s division of property was inequitable because it failed to award him any interest in the real property known as “the farm.” Before we begin our discussion of this issue, however, we must first determine our standard of review of the trial court’s judgment in light of the fact that the record indicates that the only ore tenus testimony presented to the trial court was a partial direct examination of the wife; the remainder of the evidence that was presented to the trial court was in the form of exhibits and written “testimony.”

This court was faced with a similar situation in Hospital Corp. of America v. Springhill Hospitals, Inc., 472 So.2d 1059, 1060-61 (AIa.Civ.App.1985). In that case, the trial court heard live testimony from one witness called by the plaintiffs; the plaintiffs did not finish their examination of that witness, and the defendants were not given an opportunity to cross-examine the witness. Id. at 1060. The case was then submitted on briefs, depositions, and exhibits filed with the trial court. Id. In discussing what standard of review should apply to the trial court’s judgment, we stated:

“We are aware of the cases holding that when the evidence is taken ore tenus before the trial court, or partly so, on review we grant the trial court a presumption of correctness. See, e.g., Jones v. Moore [295 Ala. 31], 322 So.2d 682 (Ala.1975); Air Movers of America, Inc. v. State National Bank, 293 Ala. 312, 302 So.2d 517 (1974); State v. Frazier, 222 Ala. 180, 131 So. 442 (1930); Penn v. Penn, 437 So.2d 1053 (Ala.Civ.App.1983); Nero v. Moore-Handley, Inc., 370 So.2d 1043 (Ala.Civ.App.1979). However, in each of these cases at least one witness was examined and cross examined orally before the trial court.
“The rationale behind the ore tenus rule has historically been that the trial court deserves a presumption of correctness when it is in a position to actually see and hear the testimony, observing firsthand the demeanor of the witnesses. Christian v. Reed, 265 Ala. 533, 92 So.2d 881 (1957); Steed v. Bailey, 247 Ala. 407, 24 So.2d 765 (1946); Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983).

Considering that the trial court heard only part of the testimony of one witness, including only a partial direct examination and no cross examination, and that the case was otherwise tried exclusively on the basis of numerous depositions and exhibits, we hold that the ore tenus rule does not apply. Consequently, no presumption of correctness will be accorded the trial court’s findings on the evidence, and this court will sit in judgment on the evidence as if it had been presented de novo. Smith v. Dalrymple, 275 Ala. 529, 156 So.2d 622 (1963); Lepeska Leasing Corp. v. State Department of Revenue, 395 So.2d 82 (Ala.Civ.App. [1980) ], writ denied, 395 So.2d 85 (Ala.1981).”

Id. at 1060-61.

Accordingly, we will not apply the presumption of correctness that would usually accompany the trial court’s findings of fact that support its judgment dividing the parties’ marital property, see, e.g., Long v. Long, 824 So.2d 778, 781 (Ala.Civ.App.2001), because the divorce judgment in the present case was not based on ore tenus testimony. As we did in Hospital Corp. of America, supra, we will review the trial court’s judgment de novo.

The record indicates that the wife owned a home on a lake free of any mortgage indebtedness before the parties married and that the husband owned a home, a rental house and lot, and a vacant lot before the parties married. The record indicates, however, that the husband sold his home during the parties’ marriage. After the parties married, they purchased certain property referred to as “the farm.” The record indicates that the farm was, at one time, divided into three parcels consisting of approximately seven acres each. The wife indicated that she had inherited one seven-acre parcel, but she also testified that she paid her mother $15,000 for the buildings located on the parcel that she had inherited. The parties purchased the other two seven-acre parcels from the wife’s siblings for $21,000 each, for a total of $42,000. The parties agree that the husband paid the wife’s siblings $42,000 for their seven-acre parcels; the record indicates that the husband used an equity line of credit from one of the properties that he owned to finance that purchase. The parties subsequently executed a mortgage in the amount of $91,500, using the wife’s lake house as collateral for the loan. Using that money, the wife repaid the husband $42,000 for the parcels that he had purchased from her siblings, she paid $15,000 to her mother (discussed above), and she paid off the loan for her vehicle (approximately $25,000). The remainder of the money was deposited into a joint account held by the parties.

The parties began constructing a home on the farm property in the fall of 2007, and both parties presented evidence of monetary and nonmonetary contributions they had made toward the payment of the mortgage indebtedness related to the farm property or toward improvements to the farm property. The record indicates that the house on the farm property remained unfinished at the time of trial.

On appeal, the husband argues that the trial court erred in failing to award him any interest in the farm in light of the fact that the evidence indicated that he had made a substantial monetary contribution toward the construction of the house on the farm property.

The wife argues that she was the “sole equitable owner” of the farm because it was part of her inheritance and because she had repaid the husband the $42,000 that he had contributed toward the purchase price of the farm property. Furthermore, although she acknowledges that the husband made financial contributions toward the construction of the house on the farm property, she contends that she had made monetary and nonmonetary contributions toward the improvement of the husband’s rental property and that, because she was not awarded any interest in that property, the trial court did not exceed its discretion by failing to award the husband any interest in the farm.

The wife’s argument that the judgment is equitable in light of the fact that she was not awarded any interest in the husband’s rental property indicates that the wife is operating under the assumption that the husband’s rental property was divisible as a marital asset. However, the trial court’s judgment does not indicate whether it considered the husband’s rental property to be part of the marital estate or part of the husband’s separate estate. Likewise, the trial court’s judgment does not specifically address whether it considered the lake house or the farm to be part of the wife’s separate estate or divisible as marital property. As stated above, the wife was awarded the lake house, and she was ordered to be responsible for the remaining mortgage indebtedness on that property. The wife was also awarded the farm, which was valued between $155,000 and $200,000. The husband was awarded the rental house and the vacant lot that he owned before the parties married, but there is no value assigned to those properties in the record.

The husband’s primary contention on appeal is that he should have been awarded some interest in the farm because the record indicated that he had used the sales proceeds from the home he owned before the parties married toward the construction of the house on the farm property. However, he also argues that the trial court erred because it awarded the wife “any and all personal property located” at the farm. The record indicates that personal property that the husband owned before the parties married was located at the farm at the time the divorce judgment was entered, and the record indicates that he valued that property at approximately $11,000. The husband also indicated that he had owned personal property before the marriage that he valued at $21,500; however, the record indicates that some of that property was located at the farm, and it is unclear whether the trial court considered that property to be jointly owned by the parties or to be part of the husband’s separate estate. Because the trial court awarded the wife all personal property located at the farm, but also awarded the husband all personal property that he had owned before the parties married, we cannot determine which party the trial court intended to award the personal property that the husband owned before the marriage that was located at the farm. Because such a determination affects the analysis of whether the division of property was equitable, we remand the cause with instructions to the trial to clarify its division of personal property. Furthermore, because we are remanding the cause on the ground set forth above, and because we are unable to determine what property was included in the marital estate, we further instruct the trial court, on remand, to specifically set forth the property that it included in the marital estate and the property that it determined to be part of either party’s separate estate. The trial court shall make a return to this court containing the above-mentioned findings within 28 days.

The wife’s request for an attorney’s fee on appeal is denied.

REMANDED WITH INSTRUCTIONS.

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

On Return to Remand

BRYAN, Judge.

The Winston Circuit Court (“the trial court”) has entered an order as required by our instructions in this court’s opinion in this case on original submission. See Paulk v. Paulk, 97 So.3d 753 (Ala.Civ.App.2012). The trial court’s order on remand states: (1) that the rental property owned by Charles Lance Paulk (“the husband”) was treated as the husband’s separate property and was not included in the marital estate; (2) that the lake house owned by Vickie Gail Paulk (“the wife”) was treated as the wife’s separate property and was not included in the marital estate; (3) that the real property described as “the farm” was treated as the wife’s separate property and was not included in the marital estate; (4) that the trial court’s intention was to award the husband all personal property listed in exhibits 1 and 1(a) in his brief to the trial court, regardless of where the personal property was located; and (5) that it was the intention of the trial court to award the wife all other personal property that was not listed on the husband’s exhibits that was located at the farm.

This court gave both parties the opportunity to file a supplemental brief in light of the specific findings of fact made by the trial court. In his supplemental brief to this court, the husband argues that the trial court erred by concluding that the farm was part of the wife’s separate estate in light of the evidence indicating that the farm was accumulated by the parties during their marriage and that he had made financial and nonfinancial contributions to the improvement of the farm. In response, the wife argues, as she did in her original brief, that she is the sole equitable owner of the farm because it was part of her inheritance and the husband lived at the farm only for a short time.

In order to address the husband’s primary contention on appeal, i.e., that the division of property is inequitable, a more thorough recitation of the facts found in the record on appeal is needed. At the time of trial in 2010, the husband was approximately 57 years old, but the wife’s age is unclear from the record. The wife was an elementary-school teacher earning approximately $2,600 a month. The husband retired from the Florence Utility Department in September 2008; his salary at that time was $40,000 a year. The record indicates that the husband was injured in October 2007 and that the Social Security Administration determined that the husband met the medical requirements to obtain disability benefits as of November 28, 2007. He was awarded a lump sum of $9,351, and he began receiving $2,078 a month in disability benefits effective November 2008. The husband and the wife lived in separate towns for a significant portion of their marriage, but the husband contended that he visited the wife at the farm every weekend. According to the wife, the husband moved to the farm in mid-2008 and they lived together at the farm for approximately eight months out of their two-and-one-half-year marriage. However, the husband stated that he remained at the farm after November 2007 and moved away from the farm on December 5, 2008, when the parties separated. We note that the parties agreed that misconduct of the parties was not a factor for the trial court to consider in dissolving the marriage or in making a division of property.

As we stated in our opinion on original submission, the parties took out a mortgage in the amount $91,500, using the wife’s lake house as collateral, in order to finance the purchase of the farm. After the wife repaid the husband $42,000, paid her mother $15,000, and paid off her automobile loan in full (approximately $25,000), the remaining funds from the mortgage were placed into an account held jointly by the parties. The wife used that account to pay the mortgage debt in January and February 2007. The parties separated in February 2007, and the wife closed the joint account. At that time, she began making the mortgage payments from a separate account in her name. The parties reconciled in December 2007, and the parties opened another joint account. The record indicates that the husband and the wife deposited their paychecks into their joint account, when one existed, and that the husband also deposited several large lump-sum payments into the parties’ joint account. The mortgage payments were made from the joint account from December 2007 through November 2008. The parties separated again in December 2008, and, from that time forward, the wife made every mortgage payment from a separate account. The record indicates that the mortgage debt had been reduced by approximately $30,000 as of July 2010, leaving a mortgage indebtedness of $61,500. According to the wife, only 12 mortgage payments totaling $9,265.56 had been paid from the parties’ joint account.

The husband presented evidence indicating that he had contributed approximately $90,000 “to the parties’ financial situation” from the sale of his home, from annuity payments, from insurance proceeds, from Social Security disability payments, and from payments for unused leave time that he had accumulated while working for the Florence Utility Department. However, he also indicated that he had “recovered” $16,851 of the money he had contributed, presumably after the parties separated. The record indicates that the husband had contributed several lump-sum amounts in excess of $16,851 in the two months before the parties separated.

The wife also testified that the parties had paid for improvements to the husband’s rental property, had paid nine months of the monthly mortgage debt on the husband’s rental property, and had paid some utility and other expenses related to the husband’s rental property from a joint account while they were married.

The record indicates that, during the marriage, the husband .sold the home he owned before the parties married and realized $54,000 in equity from the sale of that home. According to the husband, construction on the house at the farm was initiated in the fall of 2007 with a $22,000 contribution from the husband from the sale of the home he had owned before the parties married. The husband presented documents indicating that he had contributed an additional $40,600 from an account in his name only toward the construction of the house at the farm and that he had contributed labor toward the construction of the house at the farm valued at $12,000.

The wife presented bank records indicating that she had paid approximately $47,000 from her individual account for expenses related to the farm, including construction on the house and payments toward the mortgage, and that she and her family had made significant improvements to the house, which was still unfinished at the time of trial, after the parties separated. While the parties resided together during their marriage and the house was being built, the parties lived at the farm in a barn that was on the property. The husband estimated that the farm was worth between $155,000 and $200,000; the wife did not give an estimate of the value of the farm.

We note that the standard of review applicable in this particular case is de novo and that the trial court’s findings of fact are not afforded a presumption of correctness. See Paulk v. Paulk, 97 So.3d at 757. The husband contends that the division of property is inequitable because he was not awarded any interest in the farm. As we stated above, the trial court concluded that the farm was the wife’s separate property and, thus, not divisible as a marital asset. The husband has challenged that finding, but he does not challenge any other aspect of the trial court’s determination of what property was the separate property of the husband or the wife. See Green v. Wedowee Hosp., 584 So.2d 1309, 1311 n. 4 (Ala.1991) (“[A] par ty’s failure to argue an issue in brief to an appellate court is tantamount to a waiver of that issue on appeal and ... an appellate court will consider only those issues that have been properly delineated and will not search the record for errors that have not been raised before the appellate court.”). Accordingly, regarding the specific findings of fact made by the trial court, we will consider only whether the trial court erred by concluding that the farm was part of the wife’s separate estate.

“A party’s ‘“separate estate” is that property over which [he or] she exercises exclusive control and from which the [spouse] ... derives no benefit by reason of the marital relationship.’ Gartman v. Gartman, 376 So.2d 711, 713 (Ala.Civ.App.1978). The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage. § 30-2-51(a), Ala.Code 1975. 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. See § 30-2-51(a), Ala.Code 1975.”

Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001).

The wife argues that the farm is her separate property because it was part of her inheritance. However, the record contains documents indicating that two of the three separate parcels of the farm were purchased from the wife’s siblings during the parties’ marriage and that those two parcels were conveyed to the husband and the wife jointly. The record also indicates that the third parcel of the farm was conveyed to the husband and the wife during their marriage by a deed from the wife’s mother. As we noted above, the wife repeatedly called the farm her inheritance. However, the wife’s mother was present at the parties’ divorce trial. Thus, the seven-acre parcel the wife received from her mother as an “inheritance” was nothing more than an inter vivos gift from the wife’s mother to the husband and the wife. There is no evidence to support a conclusion that the wife had actually inherited any part of the farm. Instead, the evidence indicates that the parties purchased two of the seven-acre parcels from the wife’s family members and that they jointly received the third seven-acre parcel as a gift. It is undisputed that the husband and the wife obtained joint ownership of the farm during their marriage and that they lived at the farm together during their marriage, albeit for a relatively short amount of time. Thus, we conclude that the farm was. marital property because it was “purchased or otherwise accumulated by the parties during the marriage.” Nichols, 824 So.2d at 802. See Kaufman v. Kaufman, 934 So.2d 1073, 1080 (Ala.Civ.App.2005) (when the evidence indicated that certain assets were accumulated during the marriage, and there was no evidence indicating that one spouse had received those assets by gift or inheritance, then those assets were marital property subject to division).

We now consider whether the trial court’s division of property was equitable.

“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,] 1038 [ (Ala.Civ.App.1993) ]. 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).”

Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009).

The wife was awarded the farm (valued at $155,000 to $200,000), and she was ordered to pay the remaining mortgage indebtedness associated with the farm ($61,-500). Accordingly, the wife was awarded between $93,500 and $138,500 in equity in the farm. She was also awarded all personal property at the farm that was not listed on exhibits 1 and 1(a) provided by the husband. The record indicates that this award included a tractor, valued by the husband at $4,050; a lawn mower, valued by the husband at $2,400; a wood stove that was purchased by the husband for $2,000; and kitchen furnishings that were valued by the husband at $600. The wife testified that the lawn mower no longer worked. Considering that testimony, we conclude that the wife was awarded personal property that had a value of $6,650. Therefore, the wife’s award of real and personal property totaled between $100,150 and $145,150.

On the other hand, the husband was awarded the personal property listed in exhibits 1 and 1(a) in the record, and he contends that that personal property was his separate property. In exhibit 1, which is labeled “Antique Personal Property Owned by [the Husband] Before the Marriage Still at [the] Marital Residence,” the husband lists several pieces of furniture that he valued at $11,290. In exhibit 1(a), which is labeled “Miscellaneous Items Owned Prior to the Marriage by [the Husband],” the husband lists multiple items of personal property that he valued at $21,685. With one exception, discussed infra, there is no indication that any of the property listed in those two exhibits was used regularly for the common benefit of the parties during the marriage, and it is undisputed that the property listed in those two exhibits was owned by the husband before the parties married. Accordingly, we conclude that, with one exception, discussed infra, the property awarded to the husband in exhibits 1 and 1(a) is his separate property and should not be considered in determining whether an equitable division of property was made.

The one exception, noted above, is a single listing in exhibit 1(a) described as a washer, a dryer, and a refrigerator with a cumulative value of $1,000. According to the husband, the wife was using those appliances. Therefore, we conclude that the washer, the dryer, and the refrigerator were marital property because a reasonable inference could be made that those appliances were used regularly for the common benefit of the parties during the marriage. The record indicates that the husband removed joint property that totaled $900 from the farm when the parties

separated. Therefore, the husband was awarded marital property totaling $1,900.

The record indicates that the parties’ earning capacities were similar, in light of the husband’s disability, and, as we stated above, the parties agreed that misconduct of the parties was not a factor for the trial court to consider. Even considering the fact that the parties contributed funds toward the husband’s rental house from their joint account, without any evidence of the amounts contributed we cannot conclude that those contributions balanced out the husband’s interest in the farm, especially considering the indication in the record that the husband was the primary contributor to the parties’ joint account. Furthermore, to the extent that the record indicates that the husband removed approximately $16,851 from a savings account when the parties separated, the record indicates that the source of the funds the husband removed were primarily attributable to a lump-sum Social Security disability payment and a payment for unused leave time that he had received shortly before the parties separated. Therefore, we cannot conclude that the husband’s actions justified the disproportionate award of property to the wife.

Considering the undisputed fact that the husband used $22,000 in proceeds from the sale of his residence to contribute to the construction of the house at the farm, as well as evidence indicating that he had made additional financial contributions totaling approximately $40,600 from his separate bank account toward the construction of that house, we must conclude that the divorce judgment, insofar as it fails to award the husband any interest in the farm, is inequitable. See Kaufman v. Kaufman, 934 So.2d at 1080-81 (reversing a division of property that disproportionately favored one spouse after the trial court improperly determined that certain assets were not marital property). Accordingly, the trial court’s judgment dividing the parties’ marital property is reversed, and the cause is remanded with instructions to the trial court to enter a judgment fashioning an equitable division of property in light of this opinion.

REVERSED AND REMANDED.

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

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

      . The husband alleges that, during the ore tenus hearing, the parties and the trial-court judge had an off-the-record discussion and, during that time, the trial-court judge instructed the parties’ attorneys to "submit the case in writing for a final decision.” This instruction from the trial-court judge does not appear in the record on appeal. The record on appeal cannot be altered or varied by statements in appellate briefs, and this court is limited to a review of the record alone. See Hail v. Regency Terrace Owners Ass’n, 782 So.2d 1271, 1277 (Ala.1999).

      . We note that the record indicates that the wife’s two siblings each sold their seven acres of property to the husband and the wife in early September 2006 and that the wife's mother conveyed the third seven-acre parcel that completed the farm to the husband and the wife in early October 2006.

      . In her summary testimony, the wife stated that $66,216.50 remained from the $91,500 mortgage after she paid off the loan on her vehicle, a difference of $25,283.50. Other parts of the record indicate that the wife paid approximately $20,000 in order to pay off the loan on her vehicle.

      . The record indicates that the wife presented two exhibits during trial regarding the amount of joint funds expended on the husband’s rental house; however, those exhibits were never admitted into evidence. The trial court stated on the record that the wife’s exhibits regarding funds used for the husband's rental house were "merely advisory and not to be taken as proof of the matters asserted.” One exhibit is not included in the record on appeal, and the other indicates that the parties spent approximately $3,400 from their joint account on the husband's rental property.

      . We note that, in our opinion on original submission, we held that the ore tenus standard of review did not apply in this particular case because the trial court had heard only direct testimony from the wife, with no cross-examination, and the remainder of the evidence presented by the parties was submitted to the trial court in writing. See Paulk v. Paulk, 97 So.3d at 757.

      . A reasonable inference could be made from the evidence in the record that the wife would have inherited that property upon her mother's death; however, it is clear from the record that the wife's mother was still alive at the time of trial.

      . We note, however, that the parties did pay the wife’s mother $15,000 for the structures on the property that was conveyed to the husband and the wife from the wife's mother.

      .We acknowledge that there was evidence indicating that the mortgage debt had been reduced by $30,000 at the time of trial; however, the record indicates that approximately $9,000 was paid on the mortgage from the parties’ joint account and that approximately $25,000 from the mortgage proceeds was used to pay the wife’s automobile loan. Therefore, the remaining mortgage debt, i.e., $61,500, was only about $5,000 less than the amount of money that was actually used to purchase and improve the farm.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Jennifer Knapp GILMORE et al. v. Hugh Harold JONES et al.
    2101129.
    Court of Civil Appeals of Alabama.
    March 2, 2012.

      Noel J. Nelson, Mobile, for appellant.
    Lamar C. Johnson of Gilmore Law Firm, Grove Hill, for appellee.
   THOMAS, Judge.

Jennifer Knapp Gilmore, Linda White, Frank J. Dolbear, and M. Crawford Knapp (hereinafter referred to collectively as “the landowners”) own real property situated on the west bank of Bates Lake in Washington County (“the County”). In 2003, Hugh Harold Jones, who also owns property situated on Bates Lake, sued the County and the members of the county commission, seeking a judgment declaring that a portion of Bates Lake Road (“the road”), which runs across his property, was a private way and not a public road. In August 2006, after taking evidence and after an agreement of the parties to that action was reached, the Washington Circuit Court entered a consent judgment (“the 2006 consent judgment”) declaring that a portion of the road was a public road and that a portion of the road was a private way. No party appealed from the 2006 consent judgment.

In February 2007, the landowners sued Jones, the County, John Armstrong, the former president of the county commission, and the current members of the county commission: President Charles Singleton, Willie Dixon, Johnny L. Johnston, Allen Bailey, Jr., William E. Beasley, and Hilton Robbins. In their complaint, the landowners sought a judgment declaring that the 2006 consent judgment was void because, the landowners alleged, up to the time of the entry of the 2006 consent judgment, the road had been a public road and, the landowners contended, had not been properly vacated under Ala.Code 1975, § 23-4-1 et seq. The landowners further sought a preliminary and a permanent injunction (1) requiring Jones to remove a barricade he had constructed across the road and preventing him from obstructing access across the road and (2) requiring the county commission to “affirmative [sic] void and set aside as a nullity the settlement agreement of May 9, 2005 [sic], ordering the county commission to resume county maintenance of the [road,]” and ordering the county engineer to amend the records maintained in the county engineer’s office, if necessary, to reflect the public character of the road. Finally, the landowners sought compensatory damages for trespass from Jones for obstructing the right-of-way and from the members of the county commission, excepting Singleton, “for their actions to unlawfully facilitate said obstruction, and to acquiesce in the same.”

Jones moved to dismiss the landowners’ action based on the application of the doctrine of res judicata. The trial court denied the motion to dismiss. Jones later filed a motion for a summary judgment, again arguing that the doctrine of res judi-cata barred the landowners’ action; the trial court took the motion under advisement on the date of the trial. After the trial, at which the parties had presented conflicting evidence on the character of the road, the trial court entered a judgment stating that the doctrine of res judicata did not bar the landowners’ action and declaring the disputed portion of the road — i.e., the portion that had previously been determined to be a private way in the 2006 consent judgment — to be a private way. The landowners appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We note that the central issue at trial— whether the disputed portion of the road was a public road or a private way — was not specifically pleaded as a count in the landowners’ complaint because the landowners premised their complaint on their belief that the disputed portion of the road was and had always been public; however, the landowners’ prayer for injunctive relief and their claim for damages premised on a trespass theory rested on their proving that the disputed portion of the road was public. Thus, the issue was necessarily tried, and to the extent it was not specifically pleaded, it was undisputedly tried by the implied consent of the parties. Rule 15(b), Ala. R. Civ.App.; Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997). The trial court did not explicitly determine whether the 2006 consent judgment was void; however, in light of its determination that the doctrine of res judicata did not bar the landowners’ action, we conclude that the trial court must have concluded that a determination regarding the validity of the 2006 consent judgment was unnecessary and that it could proceed to determine the status of the road without regard to the 2006 consent judgment.

The trial court’s conclusion that the doctrine of res judicata did not serve as a bar to the landowners’ action is incorrect. “The elements of res judicata are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” Parmater v. Amcord, Inc., 699 So.2d 1238, 1240 (Ala.1997). The trial court indicated during the trial that the landowners, who were not parties to the previous action, would not be bound by the 2006 consent judgment. However, because the 2006 consent judgment, which declared the status of the road, was entered in an action to which the County was a party, the landowners, who are all residents of the County, were bound by that judgment.

“In the absence of fraud or collusion, a judgment for or against a governmental body, such as a municipal corporation, county, town, school or irrigation district, or other local governmental agency or district, or a board or officers properly representing it, is binding and conclusive on all residents, citizens, and taxpayers with respect to matters adjudicated which are of general and public interest, such as questions relating to public property, contracts, or other obligations.”

50 C.J.S. Judgments § 1156 (2009)(footnotes omitted).

Such a conclusion is consistent with Alabama’s rule that a county is an indispensable party to an action seeking to declare a road a public road. Boles v. Autery, 554 So.2d 959, 961 (Ala.1989). In Boles, our supreme court explained the reason behind requiring joinder of a county in a case involving a dispute over whether a road is public or private:

“The trial court’s determination of whether the road was public or was private might affect not only the rights of the individual litigants but also the rights of members of the public to use the road, the duty of the county to maintain it, and the liability of the county for failure to maintain it. If the county is not joined, as a party, then neither it nor other members of the public are bound by the trial court’s ruling. Accordingly, if the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results of later litigation may be inconsistent with the results of the initial litigation. We note the following as a possible example: Suppose the landowners, over the course of time, allow the road to fall into disrepair, and a school bus carrying children has an accident because of the road’s deterioration. Would the county be liable for its failure to maintain the road? Coupled with the other problems discussed, that possibility of contradictory rulings about the status of the road as public or private is a sufficient reason to require the joinder of Autauga County as a party. See also Johnston[ v. White-Spunner ], [342 So.2d 754 (Ala.1977) ]. ‘The desirability of judicial economy must give way to the orderly administration and demands of justice,’ Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala.1977).”

554 So.2d at 961 (emphasis added).

The landowners argued in their posttrial brief that the fact that the 2006 consent judgment was a “settlement agreement” prevented application of the doctrine of res judicata as a bar to the landowners’ action. In their brief in the trial court, the landowners relied on Russell v. Russell, 404 So.2d 662, 664 (Ala.1981), for the proposition that the applica tion of the doctrine of res judicata depends on a “final judgment on the merits.” Although that proposition is true, the 2006 consent judgment is not a mere settlement agreement. It is a consent judgment.

“A consent order ‘embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’
“... Although a consent order is a voluntary agreement between the parties, it is also a judicially approved order. Wyatt v. King, 803 F.Supp. 377 (M.D.Ala.1992).”

Austin v. Alabama Check Cashers Ass’n, 936 So.2d 1014, 1038-39 (Ala.2005) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)). “[A] consent judgment is generally entitled to the same conclusive effect as a judgment on the merits.” Sanders v. First Bank of Grove Hill, 564 So.2d 869, 872 (Ala.1990) (citing 50 C.J.S. Judgments § 705 (1947)).

We turn now to the landowners’ argument that the 2006 consent judgment is void because the County did not comply with the statutes governing the vacation of

a public road, codified at Ala.Code 1975, §§ 23-4-1 through -6 and § 23-4-20 (“the vacation statutes”). See Perkins v. Shelby Cnty., 985 So.2d 952, 958-59 (Ala.Civ.App.2007) (holding a deed from the county conveying to landowners a public road void because the county had failed to comply with the vacation statutes so as to vacate the public road). The landowners are permitted to challenge the 2006 consent judgment on the ground that it is void. See Randolph Cnty. v. Thompson, 502 So.2d 357, 362 (Ala.1987) (citing 49 C.J.S. Judgments § 414 (1947)). We conclude that the landowners are incorrect in their conclusion that the August 2006 consent judgment is void. The landowners contended at trial and contend again on appeal that the county commission was not permitted to “vacate” the disputed portion of the road without utilizing the statutory method for vacating a public road set out in the vacation statutes. However, because the 2006 consent judgment was a judgment settling the controversy over the status of Bates Lake Road and because that consent judgment declared the disputed portion of the road to be a private way, the disputed portion of the road did not have to be “vacated” because it had never been declared a public road.

“A public way is established in either one of three ways, (1) by a regular proceeding for that purpose, or (2) by a dedication as such by the owner of the land the way crosses, with acceptance by the proper authorities, or (3) the way is generally used by the public for twenty years.”

Powell v. Hopkins, 288 Ala. 466, 472, 262 So.2d 289, 294 (1972). The landowners do not contend that the road was dedicated as a public road; moreover, they do not assert, and the evidence does not reflect, that the road was established as a public road by “a regular proceeding for that purpose.” However, the landowners do argue that the evidence establishes that the road was established as a public road by prescription; that is, they argue that its use by the public for more than 20 years established it as a public road.

The landowners rely on a map that was posted in the county surveyor’s office that indicates that the road is public and on evidence indicating that utility lines run under the disputed portion of the road to support their contention that the disputed portion of the road is, and always has been, a public road. They also argue that the characterization of the road as a public road in the deed to Jones’s property compels the conclusion that the road was public. Despite the existence of evidence that could support the conclusion that the road was a public road, there exists only one judicial determination of its status, which, contrary to the landowners’ insistence otherwise, declares the disputed portion of the road to be a private way. The evidence the landowners rely upon in the present action may not have been adduced in the earlier action; however, the failure of the County to prove the public character of the disputed portion of the road in the earlier action does not undermine the validity of the 2006 consent judgment. Whisman v. Alabama Power Co., 512 So.2d 78, 81-82 (Ala.1987) (citing A.B.C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 548, 25 So.2d 511, 515 (1946)) (“Res judicata may be pleaded as a bar, not only as to matters actually presented to sustain or defeat the right asserted in the earlier proceeding, but also as to any other available matter that might have been presented to that end.”).

Because the effect of the trial court’s judgment declaring the disputed portion of the road to be private is consistent with the 2006 consent judgment, we affirm the judgment of the trial court, although we do so because the 2006 consent judgment was a bar to the landowners’ action insofar as it sought to establish that the disputed portion of the road is public. Miller v. Harris, 945 So.2d 1072, 1074 (Ala.Civ.App.2006) (noting that this court may affirm a judgment on “ ‘ “ ‘any valid legal ground’ ” ’ ” (citations omitted)). Furthermore, because the landowners’ action, insofar as it sought to have the 2006 consent judgment set aside based on the County’s failure to comply with the vacation statutes, was premised on the landowners’ incorrect notion that the vacation statutes applied, we affirm the trial court’s judgment insofar as it implicitly denied the landowners’ request to vacate the 2006 consent judgment. The landowners make no argument concerning the implicit denial of the damages they sought for alleged trespasses by Jones and the other defendants; thus, the judgment is affirmed insofar as it denied the landowners the damages requested in their trespass claim. Tucker v. Cullman-Jefferson Cntys. Gas Dist., 864 So.2d 317, 819 (Ala.2003) (stating that issues not raised and argued in brief are waived). Because we are affirming the judgment of the trial court on the above-stated grounds, we will not discuss the merits of the parties’ arguments relating to whether the evidence established that the road was public or private in nature. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue).

The landowners’ request for an attorney fee on appeal is denied.

AFFIRMED.

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


author: MAIN, Justice. MURDOCK, Justice

text:
    Ex parte Jennifer Knapp GILMORE et al. (In re Jennifer Knapp Gilmore et al. v. Hugh Harold Jones et al.).
    1110717.
    Supreme Court of Alabama.
    May 11, 2012.
   MAIN, Justice.

WRIT DENIED. NO OPINION.

MALONE, C.J., and WOODALL and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

The Court of Civil Appeals bases its opinion in this case on a statement found in Corpus Juris Secundum. The court quotes from that treatise as follows:

“ ‘In the absence of fraud or collusion, a judgment for or against a governmental body, such as a municipal corporation, county, town, school or irrigation district, or other local governmental agency or district, or a board or officers properly representing it, is binding and conclusive on all residents, citizens, and taxpayers with respect to matters adjudicated which are of general and public interest, such as questions relating to public property, contracts, or other obligations.’ ”

Gilmore v. Jones, 97 So.3d 764, 766-67 (Ala.Civ.App.2012) (quoting 50 C.J.S. Judgments § 1156 (2009) (footnotes omitted) (emphasis added)). Although it may be that the law of Alabama does, in fact, align with this statement, the general principle reflected therein does not speak to the situation where individuals own land so situated in relation to a roadway, particularly in rural areas, as to give them a unique, private interest in the use of that roadway that goes well beyond any “general and public interest.”

The Court of Civil Appeals couples its quotation from Corpus Juris Secundum with a citation to Boles v. Autery, 554 So.2d 959, 961 (Ala.1989), and, in essence, the following reasoning: Because, under Boles, a county is an essential party to any case involving a dispute over whether a road is public or private, the individual landowners in this particular case must of necessity be bound by a judgment brought only against the county.

The petition before us does not challenge the above-described reasoning. I therefore concur in the denial of the writ.


author: PER CURIAM. PITTMAN, Judge,

text:
    Andinaria NELSON and Tarrance Nelson v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    2100842.
    Court of Civil Appeals of Alabama.
    May 11, 2012.

      Kenneth J. Lay, Birmingham, for appellant.
    Alan M. Warfield and Mary Colleen B. Beers of Jones, Walker, Waechter, Poitev-ent, Carrére, & Denegre, L.L.P., for appel-lee.
   PER CURIAM.

Andinaria Nelson and her husband, Tar-rance Nelson, appeal from a summary judgment in favor of Federal National Mortgage Association (“Fannie Mae”) in an ejectment action. We vacate the judgment and dismiss the appeal.

Facts and Procedural History

On October 8, 2007, Mrs. Nelson, in consideration for a loan of $114,000 from Global Lending Group, Inc. (“Global”), executed a promissory note agreeing to repay Global in monthly installments over a 30-year period. On the same day, Mr. and Mrs. Nelson executed a mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), acting solely “as a nominee for [Global] and [Global’s] successors and assigns.” Also on the same day, Mrs. Nelson signed a document acknowledging that she had received a “Notice of Assignment, Sale, or Transfer of Servicing Rights,” informing her that “the servicing of [her] mortgage loan, that is, the right to collect payments from [her], [would be] assigned, sold, or transferred from [Global] to Flags-tar Bank, FSB, effective December 1, 2007.”

The Nelsons failed to make the payments due on the mortgage indebtedness and Flagstar Bank, FSB (“Flagstar”), sent them notices of default on January 17, March 18, and May 17, 2008, along with loss-mitigation pamphlets entitled “How to Avoid Foreclosure.” The Nelsons responded with information regarding their financial status. On August 28, 2008, an attorney retained by MERS notified the Nelsons via a mailed letter that Flagstar was accelerating the maturity date of the loan and initiating foreclosure proceedings, with a foreclosure sale scheduled for October 2, 2008. Newspaper notices published on September 6, September 13, and September 20, 2008, stated, in pertinent part:

“Default having been made in the payment of the indebtedness secured by that certain mortgage executed by [the Nelsons] to [MERS], solely as nominee for [Global] on the 8th day of October, 2007, said mortgage having been recorded in the office of the Judge of Probate of Jefferson County, Alabama, in Book: LR 200765, page 7255 and re-recorded in LR 200765, page 17347; said mortgage having subsequently been trans-femd and assigned to [MERS], solely as nominee for [Flagstar], the undersigned [MERS], solely as nominee for [Flagstar], as mortgagee/transferee, under and by virtue of the power of sale contained in said mortgage, will sell at public outcry to the highest bidder for cash, in front of the main entrance of the Courthouse at Birmingham, Jefferson County, Alabama, [property description]....” (Emphasis added.) Before the third notice was published, Flagstar entered into a forbearance agreement with the Nelsons, reducing their mortgage interest rate from 7.5% to 5% and setting up a modified payment plan to allow them to bring their loan to a current status.

By March 2009, the Nelsons were again in default on their obligations under the note and mortgage. On March 17, 2009, Flagstar sent the Nelsons a notice of default and a loss-mitigation pamphlet. Mrs. Nelson provided Flagstar with the information it requested in order to consider her for a loss-mitigation program. On June 5, 2009, an attorney retained by MERS notified the Nelsons via a mailed letter that Flagstar was accelerating the maturity date of the loan and initiating foreclosure proceedings, with a foreclosure sale scheduled for July 27, 2009. Newspaper notices were published on June 6, June 13, and June 20, 2009. In early July 2009, however, the Nelsons were approved for a trial Home Affordable Modification Plan (“HAMP”), and the Nelsons signed a HAMP agreement requiring them to make three consecutive reduced payments in a timely manner. On September 21, 2009, a notice postponing the foreclosure sale to November 23, 2009, was published. On September 22, 2009, Flagstar sent the Nelsons a notice of default, again attaching loss-mitigation information. On November 23, 2009, an attorney for MERS informed the Nelsons that the foreclosure sale was being postponed until January 25, 2010, under the same terms as set forth in the previous foreclosure-sale notices. On November 28, 2009, a notice postponing the foreclosure sale to January 25, 2010, was published in the Alabama Messenger.

On January 25, 2010, MERS, as nominee for Flagstar, conducted a foreclosure sale of the Nelsons’ property. MERS purchased the property and received a foreclosure deed. On January 27, 2010, MERS conveyed its interest in the property to Fannie Mae by special warranty deed. The deed was recorded in the Jefferson Probate Office on February 15, 2010.

On February 5, 2010, Fannie Mae filed a complaint alleging that it was the owner of the property by virtue of its special warranty deed from MERS and seeking to eject the Nelsons from the property. The Nelsons answered, denied the material allegations of the complaint, and asserted the affirmative defense that the foreclosure deed was void and that Fannie Mae had no right to eject them from the property because, they claimed, the foreclosure was “wrongful.” Following discovery, Fannie Mae moved for a summary judgment. In support of that motion, Fannie Mae submitted copies of the note, the mortgage, the foreclosure deed to MERS, its own special warranty deed from MERS, and the affidavit of Sharon Morgan, an assistant vice president of Flags-tar. Morgan stated that she had reviewed Flagstar’s records concerning the Nelsons’ loan and that she had personal knowledge of the facts set forth in her affidavit. Morgan authenticated the pertinent documents, including the note, the mortgage, the “Notice of Assignment, Sale, or Transfer of Servicing Rights [from Global to Flagstar],” the series of loss-mitigation documents that Flagstar and the Nelsons had exchanged, the notice-of-default letters that Flagstar had mailed to the Nelsons, and the notice-of-acceleration letters that attorneys for MERS had mailed to the Nelsons.

With respect to the promissory note that Mrs. Nelson had executed in favor of Global on October 8, 2007, Morgan authenticated Flagstar’s copy of the note, which had been stamped with the following undated special indorsement:

“Pay to The Order of Flagstar Bank, FSB Without Recourse Global Lending Group, Inc.
By: /s/ Janice Hopkins Loan Operations Associate”

The materials attached to Morgan’s affidavit did not include any assignment of the mortgage.

In response to Fannie Mae’s summary-judgment motion, the Nelsons presented their own affidavits and argued that MERS could convey to Fannie Mae only the interest in the property that MERS had, and, they contended, MERS had no interest in the property because its foreclosure deed was void; accordingly, they said, Fannie Mae did not have standing to seek possession of the property. The Nelsons based their contention that the foreclosure deed was void on the undisputed fact that there had been no assignment of the mortgage from the entity “MERS, as nominee for Global,” either to Flagstar or to the entity “MERS, as nominee for Flagstar,” and offered the following arguments: (1) that the power-of-sale provision in the mortgage instrument was unenforceable because the note and mortgage had been separated; (2) that MERS and the loan servicer, Flagstar, had breached the notice requirements in the mortgage instrument and had failed to follow the statutory notice requirements of § 35-10-13, Ala.Code 1975; and (3) that Flagstar had failed to comply with its loss-mitigation program and had misrepresented that the foreclosure would not occur as long as Flagstar was working with the Nelsons to help them keep the property. Finally, the Nelsons argued that Fannie Mae’s summary-judgment motion was not supported by admissible evidence under Rule 56, Ala. R. Civ. P. Specifically, they contended that Morgan’s affidavit was not based on personal knowledge and was not accompanied by sworn or certified copies of the documents to which it referred.

Fannie Mae filed a reply to the Nelsons’ response, arguing that the Nelsons had contractually authorized MERS to foreclose on the property, in the event of their default, when they signed the mortgage instrument, which instrument contained the following provisions:

“Borrower irrevocably mortgages, grants and conveys to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale, [the Property].
“... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property.”

(Emphasis added.)

Following oral argument on the motion, the trial court entered a summary judgment in favor of Fannie Mae on January 18, 2011, setting out the reasons for its decision. The trial court’s determination can be summed up by the following excerpt from its judgment:

“[Mrs.] Nelson admitted in her affidavit that she was sending payments to Flags-tar. [The Nelsons have] not submitted any evidence, let alone substantial evidence, to show that Flagstar was not the ‘successor or assign’ of the ‘lender’ as defined in the mortgage. An assignment of mortgage from MERS to Flags-tar was unnecessary for MERS to proceed with the foreclosure on behalf of Flagstar under the power of sale in the mortgage. All that was required was that Flagstar be entitled to the debt secured by the mortgage as the successor or assign of the ‘lender.’ ”

The Nelsons filed a motion to alter, amend, or vacate the judgment on February 17, 2011. Fannie Mae filed a response to the Nelsons’ postjudgment motion, reiterating an argument made earlier in its summary-judgment motion that it was not subject to the defenses asserted by the Nelsons because it was a bona fide purchaser for value, without notice of any claim or defense the Nelsons may have had. The trial court denied the post-judgment motion on April 18, 2011, after which the Nelsons timely appealed. The supreme court subsequently transferred the appeal to this court pursuant to Ala. Code 1975, § 12-2-7(6).

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (AIa.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (AIa.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Discussion

I.

The Nelsons argue that the power-of-sale provision in the mortgage instrument was unenforceable because the note and mortgage had been separated. This court has recently rejected that argument because it does not comport with Alabama law. See Coleman v. BAC Servicing, [Ms.2100453, February 3, 2012] (Ala.Civ.App.2012); Perry v. Federal Nat’l Mortg. Ass’n, [Ms. 2100235, March 9, 2012] (Ala.Civ.App.2012).

“This once-novel theory of mortgage law has been consistently rejected by courts which have considered its merit. See, e.g., Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir.2011) (‘[T]he plaintiffs advance a novel theory of wrongful foreclosure. They contend that all transfers of the interests in the home loans within the MERS system are invalid because the designation of MERS as a beneficiary is a sham and the system splits the deed from the note, and, thus, no party is in a position to foreclose.’); Kiah v. Aurora Loan Servs., LLC, [(No. 10-40161-FDS)] (D.Mass. Mar. 4, 2011) [(not published in F.Supp.2d) ] (‘Plaintiffs theory that the note and the mortgage somehow became disconnected from one another, and that the mortgage should disappear as a result, is ... not tenable as a matter of law.’).”

Kirby v. Bank of America, N.A., (No. 2:09-CV-182-DCB-JMR, March 29, 2012) (S.D.Miss.2012) (footnote omitted; not published in F.Supp.2d). “Although the separation of the note and the [mortgage] does not render either instrument void, it does create a substantial question of what entity has the right to foreclose when the borrower defaults on the loan,” Morgan v. Ocwen Loan Servicing, LLC, 795 F.Supp.2d 1370, 1375 (N.D.Ga.2011), as will be evident from our discussion in Part II.

II.

The Nelsons insist, because the mortgage was never assigned to Flagstar, or to the entity “MERS, as nominee for Flags-tar,” that MERS, as nominee for Flagstar, had no authority to exercise the power of sale in the mortgage. Fannie Mae maintains that, by executing the mortgage in favor of MERS, as nominee for the lender and the “lender’s successors and assigns,” the Nelsons granted MERS the authority to foreclose the mortgage as nominee for Flagstar because, Fannie Mae contends, Flagstar was Global’s “assignee.”

There is no dispute that Global assigned, sold, or transferred to Flagstar the right to service the Nelsons’ loan, effective December 1, 2007. The Nelsons received a “Notice of Assignment, Sale, or Transfer of Servicing Rights,” informing them that “the servicing of [their] mortgage loan, that is, the right to collect payments from [them, was] being assigned, sold, or transferred ... to [Flagstar], effective December 1, 2007.” (Emphasis added.) As the notice correctly informed the Nelsons, a loan servicer has the right to collect payments on behalf of the owner of the debt and to disburse those payments, minus any applicable commission or fee, to the owner of the debt. See generally Adam J. Levitin & Tara Twomey, Mortgage Servicing, 28 Yale J. on Reg. 1 (2011).

There is also no dispute that at some point Flagstar became the holder of the note. This court has recently held that a foreclosing entity that, before it initiates foreclosure proceedings, obtains a note secured by a mortgage and becomes the holder of the note may execute the power of sale in the mortgage by virtue of § 35-10-12, Ala.Code, 1975. See Perry v. Federal Nat’l Mortg. Ass’n, — So.3d at —. Section 35-10-12 provides, in per tinent part, that

“[w]here a power to sell lands is given in any mortgage, the power is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured.”

(Emphasis added.) In Perry, this court quoted Harton v. Little, 176 Ala. 267, 270, 57 So. 851, 851 (1911), as standing for the proposition that “ ‘[i]t is not at all necessary that a mortgage deed be assigned in order to enable the owner of the debt to foreclose under a power of sale.’ ” — So.3d at — (emphasis added). Based on Perry and Harton, it is clear that, under Alabama law, the “person who ... becomes entitled to the money ... secured [by a mortgage],” § 35-10-12, and who is thereby authorized to execute the power of sale in the mortgage, is the owner of the debt, not one who is a mere collecting agent for the owner of the debt.

“[T]he benefits of specialization [in the modern home-mortgage market] have resulted in an almost complete bifurcation of the duties of administration (referred to as loan servicing) from the benefits of ownership. Loan servicing generally is performed by separate companies that are paid by fees deducted from payments on the notes, and that ordinarily have little or no ownership interest in the notes in question. Thus, [often] the party to whom the homeowner is obligated to make payments no longer owns the document.”

Ronald J. Mann, Searching for Negotiability in Payment and Credit Systems, 44 UCLA L.Rev. 951, 970 (1997) (footnote omitted).

Our research has disclosed only two instances in which a loan servicer who was neither the assignee of the mortgage nor the holder of the note was permitted to initiate foreclose proceedings: when the servicer’s invocation of the power of sale was authorized by the loan documents or permitted by statute. See Hoverman v. CitiMortgage, Inc., (No. 2:11-CV-00118-DAK, August 4, 2011) (D.Utah 2011) (not published in F.Supp.2d) (approving the initiation of foreclosure proceedings by Citi-mortgage (“Citi”), a loan servicer who had invoked the power of sale as the “lender,” despite the fact that Citi was neither the assignee of the mortgage nor the holder of the note, because “the term ‘Lender’ is a defined term in the documents and ... ‘Lender’ is defined to be Citi. The documents do not add any additional requirements for Citi to qualify as the Lender for purposes of the documents, such as being the actual source of the funding. Therefore, for purposes of the Note and Trust Deed in question, Citi is the Lender and is subject to all of the obligations and is authorized to perform all of the actions of the Lender under the terms of the contracts.”); and Jarbo v. BAG Home Loan Servicing, (No. 10-12632, December 15, 2010) (E.D.Mich.2010) (not published in F.Supp.2d) (rejecting claim that loan servi-cer lacked authority to foreclose on property because the note and mortgage “contained provisions authorizing the lender or servicer, or an assign of either, to invoke the power of sale,” and because Mich. Comp. Laws Ann. § 600.3204(a) permitted foreclosure by “ ‘the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage’ ”) (emphasis omitted).

It is unclear whether Fannie Mae’s argument to the trial court — that Flags-tar’s status as the lender’s “assignee” authorized Flagstar to invoke the power of sale in the mortgage — was based upon the assumption (a) that the assignment to Flagstar of servicing rights alone — without a transfer of the debt — sufficed to permit Flagstar to execute the power of sale, or (b) that the transfer to Flagstar of the servicing rights, effective December 1, 2007, included a transfer of the note on December 1, 2007. In support of its summary-judgment motion, Fannie Mae presented Flagstar’s copy of the note that Mrs. Nelson had executed to Global on October 8, 2007. The note contained an undated special indorsement by Global to Flagstar. Fannie Mae, however, presented no evidence indicating that the transfer of servicing rights to Flagstar, effective December 1, 2007, also included the transfer of the note to Flagstar. As the mortgage instrument in the present case makes clear, a transfer of servicing rights to a loan may, but does not necessarily, include a transfer of the note evidencing the debt. Paragraph 20 of mortgage states:

“Sale of Note; Change of Loan Servicer; Notice of Grievance. The note or a partial interest in the note (together with this security instrument) can be sold one or more times without prior notice to borrower. A sale might result in a change in the entity (known as the ‘Loan Servicer’) that collects periodic payments due under the note and this security instrument and performs other mortgage loan servicing obligations under the note, this security instrument, and applicable law. There also might be one or more changes of the Loan Servi-cer unrelated to a sale of the note. If there is a change of the Loan Servicer, borrower will be given written notice of the change which will state the name and address of the new Loan Servicer, the address to which payments should be made, and any other information [the Real Estate Settlement Procedure Act (RESPA) ] requires in connection with a notice of transfer of servicing. If the note is sold and thereafter the loan is serviced by a Loan Servicer other than the purchaser of the note, the mortgage loan servicing obligations to borrower will remain with the Loan Servicer or be transferred to a successor Loan Ser-vicer and are not assumed by the note purchaser unless otherwise provided by the note purchaser.”

(Emphasis added.) If Fannie Mae’s argument that Flagstar was Global’s assignee is not based on the assumption that the transfer of servicing rights also included a transfer of the note but is, instead, based on some other theory — for example, that Global’s transfer of servicing rights constituted Global’s appointment of Flagstar as its agent, not only for the purpose of collecting payments on behalf of Global as holder of the note but also for the purpose of foreclosing in the event of default — then such agency agreement should have been, but was not, included in the materials submitted in support of Fannie Mae’s summary-judgment motion. Compare Larota-Florez v. Goldman Sachs Mortg. Co., 719 F.Supp.2d 636, 639 (E.D.Va.2010) (holding that loan servicer of note owned by Freddie Mac was entitled to appoint a substitute mortgagee to foreclose in the event of mortgagor’s default, and that substitute mortgagee’s appointment was evidenced by a recorded “Appointment of Substitute Trustee dated July 15, 2009”).

In the trial court, Fannie Mae did not argue that MERS, as nominee for Flagstar, was entitled to execute the power of sale in the mortgage as a consequence of Flagstar’s status as the holder of the note. Likewise, the Nelsons raised no argument in the trial court and they do not argue on appeal that Fannie Mae failed to establish that Flagstar was the holder of the note before June 5, 2009, when MERS, as nominee for Flagstar, initiated the foreclosure proceedings. In its appellate brief, however, Fannie Mae argues that the note is a negotiable instrument that was transferred by possession, thereby, it says, entitling Flagstar to the money secured by the Nelsons’ mortgage (and, by implication, authorizing Flagstar, or MERS as nominee for Flagstar, to execute the power of sale). In response to that argument, the Nelsons contend in their reply brief that the note was nonnegotiable because it did not represent “an unconditional promise ... to pay a fixed amount of money.” See § 7-3-104, Ala.Code 1975.

The Nelsons maintain that the following provision in the note requires an undertaking other than the payment of money: “[The mortgage] instrument describes how and under what conditions I may be required to make immediate payment in full of all I owe under this note.” The Nelsons argue that because the note requires that the mortgage instrument be consulted to determine how and under what conditions they would be required to make immediate payment in full of all amounts they owed under the note, the note fails the test of negotiability set out in § 7-3-104(a)(3), Ala.Code 1975: that the note “[d]oes not state any other undertaking or instruction by the person promising ... payment to do any act in addition to the payment of money.” That argument is not well taken. The mortgage need not be consulted to determine the conditions under which acceleration of the indebtedness can occur. Paragraph 6(C) of the note contains the same provision:

“If I am in default, the note holder may send me a notice telling me that if I do not pay the overdue amount by a certain date, the note holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means.”

See also First Nat’l Bank of Birmingham v. De Jernett, 229 Ala. 564, 568,159 So. 73, 76 (1935) (“We are fully persuaded that there is nothing in the appellee’s contention that the acceleration clause destroyed the negotiability of the note, if otherwise negotiable.... And we are equally convinced that there is no merit in appellee’s contention that the negotiability of the note was destroyed by its reference to the mortgage.... ”); Third Nat’l Bank of Nashville v. Keathley, 35 Tenn.App. 82, 92, 242 S.W.2d 760, 764 (1951) (holding that “negotiability is not destroyed by ... an acceleration of maturity of installment payments by some act of the maker nor ... by a mere reference in the note to a conditional sales contract, mortgage or other collateral security instrument, where the note does not incorporate the terms of the collateral instrument into the note such as by the expression ‘subject to the terms of the collateral instrument”).

Despite the failure of the parties to have clearly identified the crucial issue in the trial court — whether Flagstar was the holder of the note before MERS, as nominee for Flagstar, initiated the foreclosure proceedings — this court is “ ‘ “ ‘duty bound to notice ex mero motu [an issue that indicates] the absence of subject-matter jurisdiction.””” See Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, December 16, 2011] — So.3d —, — (Ala.Civ.App.2011) (quoting Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009), quoting in turn Baldwin Cnty. v. Bay Minette, 854 So.2d 42, 45 (Ala.2003), quoting in turn Stamps v. Jefferson Cnty. Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994)).

“ ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). The issue of a lack of standing may not be waived, and an argument concerning standing may be asserted for the first time on appeal. RLI Ins. Co. v. MLK Ave. Redev. Corp., 925 So.2d 914, 918 (Ala.2005). In fact, in an appeal from a judgment in an ejectment action, our supreme court, on its own motion, has vacated the judgment ejecting the mortgagor when the evidence demonstrated that the plaintiff did not have legal title to the property at issue and, therefore, lacked standing to bring the action. See Cadle Co. v. Shabani, [950 So.2d 277 (Ala.2006) ]. Accordingly, we address the issue whether [Fannie Mae] had standing to bring the ejectment action.”

Sturdivant, — So.3d at -.

“In order to maintain an action for ejectment, a plaintiff must allege either possession or legal title.” Cadle Co. v. Shabani, 950 So.2d 277, 279 (Ala.2006). The Nelsons challenged Fannie Mae’s assertion that it held legal title to the property on the basis that the deed of Fannie Mae’s grantor — MERS, as nominee for Flagstar — was void because Flagstar had not been assigned the mortgage when MERS, as nominee for Flagstar, initiated the foreclosure proceedings. That argument has no merit in light of § 35-10-12, which authorizes “any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured” to execute the power of sale in a mortgage. Our caselaw interpreting § 35-10-12 holds that the owner of the debt may foreclose on property that is the subject of a mortgage securing that debt if the owner is the holder of the promissory note at the time the owner initiates foreclosure proceedings. See Coleman v. BAC Servicing, supra; Perry v. Federal Nat’l Mortg. Ass’n, supra Fannie Mae presented no evi dence indicating that, at the time MERS, as nominee for Flagstar, initiated the foreclosure proceedings, Flagstar was the holder of the note.

The complete absence of any evidence indicating that Flagstar was the owner of the debt, i.e., the holder of the note, before June 5, 2009, when MERS, as nominee for Flagstar, invoked the power of sale in the mortgage means that MERS did not convey legal title to itself by virtue of the foreclosure deed because MERS had no authority to initiate the foreclosure proceedings. Consequently, the special warranty deed that Fannie Mae received from MERS two days after the foreclosure sale, which depended for its efficacy upon the validity of the MERS foreclosure deed, see 11 Thompson on Real Property § 94.07(b)(2)(I) at 390 (David A. Thomas 2d ed.2002), was also void. Accordingly, Fannie Mae did not have standing to bring the ejectment action.

As this court stated in Sturdivant, supra:

“A judgment entered in an action commenced by a party lacking standing is a nullity. Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008); see also Blevins v. Hillwood Office Ctr. Owners’ Ass’n, 51 So.3d 317, 321 (Ala.2010) (same). Because [the ejectment plaintiff] lacked standing to bring the ejectment action, the trial court never acquired subject-matter jurisdiction over this dispute. Accordingly, the summary judgment is void and is hereby vacated. Blevins, 51 So.3d at 321; and Cadle Co., 950 So.2d at 280. Additionally, because a void judgment will not support an appeal, Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008), this appeal must be dismissed for lack of subject-matter jurisdiction. Blevins, 51 So.3d at 323.”

Based on the foregoing authorities, the judgment of the Jefferson Circuit Court is vacated and the appeal is dismissed.

JUDGMENT VACATED; APPEAL DISMISSED.

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

PITTMAN, J., dissents, with writing, which BRYAN, J., joins.

PITTMAN, Judge,

dissenting.

Standing is determined at the commencement of an action. Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008). Unlike the ejectment plaintiff in Cadle Co. v. Shabani, 950 So.2d 277 (Ala.2006), who had no paper title to the property, when Fannie Mae commenced the ejectment action, it was prima facie the legal title holder because it produced a special warranty deed. See Muller v. Seeds, 919 So.2d 1174, 1177 (Ala.2005).

Nevertheless, in support of its summary-judgment motion, Fannie Mae failed to present any evidence indicating that Flagstar was the holder of the note before MERS, as nominee for Flagstar, initiated foreclosure proceedings. Fannie Mae’s failure of proof presents a classic example of a party’s inability to prove the allegations of its complaint, not a question of standing. See Byrd v. MorEquity, Inc., 94 So.3d 378, 383 (Ala.Civ.App.2012) (Pittman, J., concurring in the result).

Because the Nelsons did not argue to the trial court the ground made the basis of the main opinion’s vacation of the judgment and dismissal of the appeal, the trial court’s judgment is due to be affirmed. The Nelsons did not refute Fannie Mae’s flawed theory that it was entitled to recover because Flagstar was Global’s “assign-ee,” and the trial court relied on that theory in entering the judgment for Fannie Mae.

I would affirm the trial court’s judgment because this court will not hold a trial court in error on an issue or argument that the parties did not present to the trial court. See Ex parte Ryals, 773 So.2d 1011,1013 (Ala.2000).

BRYAN, J., concurs.

      . In Jackson v. Wells Fargo Bank, N.A., 90 So.3d 168 (Ala.2012), our supreme court held that Alabama recognizes a claim for "wrongful foreclosure” only when the foreclosing entity “ ‘uses the power of sale given under a mortgage for a purpose other than to secure the debt owed by the mortgagor.' ” (Quoting Reeves Cedarhurst Dev. Corp. v. First American Fed. Sav. & Loan Ass'n, 607 So.2d 180, 182 (Ala.1992).)

       Note from the reporter of decisions: On June 22, 2012, the Alabama Court of Civil Appeals withdrew the February 3, 2012, opinion in Coleman and substituted another one. See Coleman v. BAC Servicing, [Ms. 2100453, June 22, 2012] - So.3d -(Ala.Civ.App.2012). On June 29, 2012, the Alabama Court of Civil Appeals withdrew the March 9, 2012, opinion in Perry and substituted another one. See Perry v. Federal Nat’l Mortg. Ass’n, [Ms. 2100235, June 29, 2012]-So.3d -(Ala.Civ.App.2012).

       Note from the reporter of decisions: On June 29, 2012, the Alabama Court of Civil Appeals withdrew the March 9, 2012, opinion in Perry and substituted another one. See Perry v. Federal Nat’l Mortg. Ass'n, [Ms. 2100235, June 29, 2012] - So.3d - (Ala.Civ.App.2012).

       from the reporter of decisions: On June 29, 2012, the Alabama Court of Civil Appeals withdrew its March 9, 2012, opinion in Perry and substituted another one. The substituted opinion contains the quoted language. See Perry v. Federal Nat'l Mortg. Ass’n, [Ms. 2100235, June 29, 2012]- So.3d -, -(Ala.Civ.App.2012).

       Note from the reporter of decisions: On June 22, 2012, the Alabama Court of Civil Appeals withdrew the February 3, 2012, opinion in Coleman and substituted another one. See Coleman v. BAC Servicing, [Ms. 2100453, June 22, 2012] - So.3d - (Ala.Civ.App.2012).
      On June 29, 2012, the Alabama Court of Civil Appeals withdrew the March 9, 2012, opinion in Berry and substituted another one. See Perry v. Federal Nat’l Mortg. Ass’n, [Ms. 2100235, June 29, 2012] - So.3d - (Ala.Civ.App.2012).

      . The absence of evidence as to when Flagstar obtained the note from Global distinguishes the present case from our recent decision in Byrd v. MorEquity, Inc., 94 So.3d 378 (Ala. Civ.App.2012), in which the ejectment plaintiff presented conflicting evidence as to whether it had been assigned the mortgage at the time it initiated the foreclosure proceedings.


author: PITTMAN, Judge.

text:
    Dee Lavon HAYNES v. Linda Lee HAYNES.
    2101036.
    Court of Civil Appeals of Alabama.
    May 25, 2012.
    Thomas E. Drake II, Cullman, for appellant.
   PITTMAN, Judge.

Dee Lavon Haynes (“the former husband”) appeals from a judgment entered on June 22, 2011, by the Cullman Circuit Court in a postdivorce proceeding finding the former husband in criminal contempt based upon his noncompliance with various provisions of the judgment divorcing him from Linda Lee Haynes (“the former wife”). Because the former wife did not properly invoke the trial court’s contempt jurisdiction, we dismiss the appeal as being from a void judgment.

The record reflects that a judgment divorcing the parties was entered in January 2010. Although a copy of that judgment does not appear in the appellate record, the parties’ filings reveal that that judgment contained provisions requiring the former husband to provide medical insurance for the former wife and that the former wife was to receive the first $40,000 of net proceeds from a judicially ordered sale of the former marital home.

In August 2010, the former wife, acting pro se, sent a letter to the trial court averring that the former husband had failed to comply with the medical-insurance-provision requirement, that he had failed to cooperate with the court-appointed real-estate agent that had been marketing the former marital property, and that he had defaulted on a note secured by a mortgage on that property. The trial court issued an order directing the former husband to show cause at a hearing why he should not be found in contempt. After holding a hearing, at which both parties appeared pro se, the trial court entered a judgment on November 30, 2010, determining that, although the former husband had allowed the mortgage on the property to be foreclosed upon, he had not done so contemptuously; the trial court awarded the former wife a $40,000 money judgment against the former husband, but that court otherwise denied all relief sought by the former wife. The former wife sent a letter on December 9, 2010, requesting that the trial court amend its judgment to set a payment deadline as to the $40,000 judgment; the trial court entered orders on December 13, 2010, and December 14, 2010, denying the requested relief and suggesting that the former wife might wish to seek the advice of counsel as to collection of her judgment. No appeal was taken by either party from the November 30, 2010, judgment.

On March 22, 2011, the former wife sent another letter to the trial court, averring that the former husband had failed to satisfy the obligation to pay $40,000 under the November 30, 2010, judgment and “requesting that the [divorce judgment] again be amended to award [the former wife] half (or $40,000.00) of [the former husband’s] retirement [benefits] from” his former employer (a form of relief that, the former wife admitted in her letter, had not been sought in the divorce proceeding). The record does not, however, indicate that, at or before the time that she requested that judgment modification in the trial court, the former wife had paid the applicable docket fee or filed a verified statement of substantial hardship that would authorize her to proceed without payment of that fee. As this court stated in Vann v. Cook, 989 So.2d 556, 558-59 (Ala.Civ.App.2008):

“Section 12-19-70, Ala.Code 1975, provides that ‘a consolidated civil filing fee, known as a docket fee, [shall be] collected ... at the time a complaint is filed in circuit court or in district court,’ although that payment ‘may be waived initially and taxed as costs at the conclusion of the ease’ if ‘[a] verified statement of substantial hardship’ is filed and is approved by the trial court. In turn, § 12-19-71(a)(7), Ala.Code 1975, specifies that a filing fee of $248 is to be collected ‘for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order ’ (emphasis added [in Vann ]). The payment of a filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action. See De-Gas, Inc. v. Midland Res., 470 So.2d 1218, 1222 (Ala.1985); see also Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (‘The failure to pay the filing or docketing fee is a jurisdictional defect.’).”

The trial court, notwithstanding the former wife’s failure either to pay the applicable docket fee or to file a verified statement of substantial hardship, issued an order directing the former husband to show cause at a June 20, 2011, hearing why he should not be held in contempt; the former husband, acting pro se, then filed a letter in which he accused the former wife of having a mental disorder. After an ore tenus proceeding at which both parties appeared pro se and testified, the trial court, acting through a trial judge who had assumed office just before the hearing, entered a judgment on June 22, 2011, that, in pertinent part, found the former husband in criminal contempt on both of the grounds stated in the former wife’s August 2010 letter and set conditions pursuant to which the former husband could purge himself of that contempt.

The former husband, appearing through counsel, appealed from the June 22, 2011, judgment. Among the grounds of error asserted by the former husband in his brief on appeal is that the trial court lacked subject-matter jurisdiction to act on the former wife’s March 22, 2011, modification request because the former wife had failed to pay a docket fee. We agree with the former husband that the record does not show that the former wife made such a payment. Further, we note that the former wife filed no verified statement of substantial hardship that would, if approved by the trial court, have excused her payment of that fee at the outset of her modification request. Although the former husband’s argument was not first presented to the trial court in any form, the defect he raises as to the trial court’s subject-matter jurisdiction, as we noted in Vann, “ ‘may be raised at any time by any party’ ” and “ ‘may not be waived.’ ” 989 So.2d at 558 (quoting C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)). A judgment, such as the June 22, 2011, judgment under review in this appeal, that is entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal, and an appellate court must dismiss an attempted appeal from such a void judgment. Vann, 989 So.2d at 559.

As the appeal was dismissed in Vann, we dismiss the former husband’s appeal in this case, and the trial court is instructed to vacate its June 22, 2011, judgment. Any further pleadings filed in the trial court in which the former wife seeks to enforce or modify the divorce judgment or the November 30, 2010, judgment should be accompanied either by the requisite filing fee or by a verified affidavit of substantial hardship that, if accepted, will allow for waiver of the payment of that fee until the close of the case. In light of our dismissal, we pretermit consideration of the former husband’s other contentions, including that the June 22, 2011, judgment contravened principles of res judicata or collateral estoppel, was entered -without the former husband’s having been represented by appointed counsel, and was erroneous given the constructive nature of the purported contempt found by the trial court and the former husband’s claimed inability to pay his debts.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The former wife has not favored this court with an appellate brief.

      . In concluding that the former wife's March 22, 2011, filing was, in form and in substance, a request for modification of the parties’ divorce judgment, we necessarily reject the former husband’s alternative argument that the letter can be viewed as an impermissible successive postjudgment motion under Rules 59 or 60 of the Alabama Rules of Civil Procedure seeking changes to the November 30, 2010, judgment on the wife's August 2010 contempt claims.


text:
    Lauren P. CHAPMAN v. Jason Scott BUNCH.
    2101139.
    Court of Civil Appeals of Alabama.
    May 25, 2012.
    Norman Bradley, Jr., Huntsville, for appellant.
   PITTMAN, Judge.

The marriage of Lauren P. Chapman (“the mother”) and Jason Scott Bunch (“the father”) — from which one child was born to the parties on July 12, 1992 — was dissolved by the Marshall Circuit Court in December 1993; custody of the child was awarded by that court to the mother. In April 2011, just before the child attained the age of 19 years, the mother filed a petition in that court to modify that judgment, seeking an award of postminority educational support for the child pursuant to the holding in Ex parte Bayliss, 550 So.2d 986 (Ala.1989); the mother averred that she and the child were both residents of Louisiana. The father filed a motion to dismiss for lack of subject-matter jurisdiction, averring that he had resided in Tennessee since 1997 and that the mother and the child had resided in Louisiana since at least 2007. In his motion, the father relied upon § 205 of the Uniform Interstate Family Support Act (“UIFSA”), which Alabama has codified at § 30-3A-205, Ala. Code 1975, for the proposition that the trial court had lost subject-matter jurisdiction to modify the support provisions of the divorce judgment because neither party nor the child remained in Alabama. The trial court entered a judgment granting the father’s motion to dismiss and thereafter denied a postjudgment motion filed by the mother attacking the correctness of that judgment; the mother then appealed to this court.

The mother contends on appeal that the trial court retained subject-matter jurisdiction to modify the support provisions of its 1993 divorce judgment, citing Hall v. Hall, 524 So.2d 370 (Ala.Civ.App.1988), and Ex parte Carstens, 728 So.2d 128 (Ala.1998), as supporting the proposition that an Alabama trial court has continuing subject-matter jurisdiction to modify monetary obligations previously established by that court in a divorce judgment. However, the legal landscape in existence at the time that the modification petitions were filed in Hall (1985) and Carstens (1997) was drastically changed by Alabama’s adoption of UIFSA, which applies to proceedings initiated on or after January 1, 1998. See Ala.Code 1975, § 30-3A-905(a).

UIFSA provides, in pertinent part:

“A court of this state issuing a support order consistent with the law of this state has continuing exclusive jurisdiction over a child-support order:
“(1) as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
“(2) until all of the parties who are individuals have filed written consents with the court of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.”

Ala.Code 1975, § 30-3A-205(a). The Official Comment to UIFSA § 205 states that, “if all the relevant persons — the obligor, the individual obligee, and the child — have permanently left the issuing state, the issuing state no longer has an appropriate nexus with the parties or child to justify exercise of jurisdiction to modify”; further, “the issuing tribunal has no current information about the factual circumstances of anyone involved, and the taxpayers of that state have no reason to expend public funds on the process.” Ala. Code 1975, § 30-3A-205, Official Comment; accord Lattimore v. Lattimore, 991 So.2d 239, 243 (Ala.Civ.App.2008) (holding that, under UIFSA, Alabama courts may modify an Alabama child-support order “only if the obligor, the obligee, or the concerned child affected by that order reside in the state and all the parties who are individuals have not filed written consent for the tribunal of another state to exercise jurisdiction over the child-support order”).

In this case, unlike in Lattimore (in which we reached a contrary conclusion), there is neither any contention nor any indication in the record that any party to this case remains an Alabama resident. Under the circumstances presented, the trial court correctly dismissed the mother’s petition to modify. The judgment of dismissal is therefore affirmed.

AFFIRMED.

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

      . We note that because the appellant in Hall did not contest the subject-matter jurisdiction of the trial court in that case (see 524 So.2d at 371), any pronouncement in our opinion to the effect that subject-matter jurisdiction necessarily continues as to modification proceedings based upon the proposition that such proceedings are ‘‘extensions” of the original divorce action amounts to mere dicta.