author: MURDOCK, Justice.

text:
    REGIONS BANK and Morgan Keegan & Company, Inc. v. BALDWIN COUNTY SEWER SERVICE, LLC. Morgan Keegan & Company, Inc. v. Baldwin County Sewer Service, LLC.
    1101508 and 1101512.
    Supreme Court of Alabama.
    Sept. 21, 2012.

      Kirkland E. Reid of Jones, Walker, Waechter, Poitevent, Carrére & Denegre, LLP, Mobile; and Robert B. Bieck, Jr., of Jones, Walker, Waechter, Poitevent, Car-rére & Denégre, New Orleans, Louisiana, for appellant Regions Bank.
    Laurence J. McDuff of Adams & Reese LLP, Birmingham, for appellant Morgan Keegan <& Company, Inc.
    Steven L. Nichols, Stephen C. Olen, David G. Wirtes, Jr., and George M. Dent III of Cunningham Bounds, LLC, Mobile, for appellee.
   MURDOCK, Justice.

Morgan Keegan & Company, Inc. (“Morgan Keegan”), and Regions Bank (hereinafter referred to collectively as “Regions”) appeal from an order of the Baldwin Circuit Court granting in part and denying in part their motions to compel arbitration in an action filed against them by Baldwin County Sewer Service, LLC (“BCSS”). We reverse the trial court’s order.

I. Facts & Procedural History

According to the allegations made by BCSS in its complaint, in 2001 BCSS began discussing with AmSouth Bank (“Am-South”), the predecessor-in-interest to Regions Bank, options to finance its existing debt. AmSouth recommended that BCSS finance its debt through variable-rate demand notes (‘VRDNs”). As Regions explains in its appellate brief:

“VRDNs are bonds with interest rates that reset on a periodic basis, generally weekly, as in this case. VRDN holders have a right to liquidate their security for par through a put or tender feature. A dealer, called a Remarketing Agent, resells the VRDNs tendered for purchase to new investors. The Remarket-ing Agent also determines the interest rates paid by the VRDN issuer after each reset by setting the new interest rate at the lowest rate for which the VRDNs can still be resold at par, taking into account relevant marketing conditions and credit rating factors.”

Regions’ brief, pp. 5-6.

BCSS agreed to finance its debt through the issuance of VRDNs, and on March 15, 2002, BCSS issued its first series of VRDNs in the amount of $6.2 million. The VRDNs were secured by a letter of credit from AmSouth; a credit agreement attached to the letter of credit contained the terms governing the VRDN transaction. AmSouth also served as the remark-eting agent for the VRDNs. On October 1, 2008, and on May 1, 2005, BCSS issued two additional series of VRDNs for $4.875 million and $14.2 million, respectively, that were structured in the same fashion as the 2002 transaction.

BOSS alleges that in 2005, after the issuance of the third series of VRDNs, AmSouth advised BOSS to execute a so-called interest-rate-swap transaction that would allow BOSS to pay a fixed rate of interest on the 2002, 2003, and 2005 VRDNs rather than to continue to be exposed to the variable interest rates on those bonds. As Regions explains in its appellate brief:

“A swap can cover all or part of the principal of an issuer’s bonds and synthetically fix all or part of the variable interest rate exposure. Under the terms of a swap, the issuer agrees to pay the swap provider a Fixed Rate in exchange for the swap provider paying a Floating Rate on some or all of the underlying debt.”

Regions’ brief, p. 13 (footnotes omitted).

On May 24, 2005, BOSS and AmSouth entered into an International Swap Dealers Association Master Agreement (“the ISDA master agreement”) based on a “notional” amount of $20,085 million — the total of the remaining debt financed by the 2002, 2003, and 2005 VRDNs. BOSS alleges that AmSouth represented to BOSS that the ISDA master agreement would have the effect of fixing BCSS’s interest rate on the remaining debt of $20,085 million.

In 2006, AmSouth merged with Regions Bank, and BOSS continued it relationship with Regions Bank. On June 28, 2007, BOSS issued another series of VRDNs in the amount of $17.3 million that were secured through a letter of credit from Regions Bank to which was attached a credit agreement that was substantially the same as the previous credit agreements between BOSS and AmSouth. Morgan Keegan served as the remarketing agent for the 2007 series of VRDNs.

Subsequently, BOSS entered into an interest-rate swap with Regions Bank that consisted of two transactions dated August 17, 2007, and August 21, 2007, for the total amount financed through the issuance of the 2007 series of VRDNs. The 2007 interest-rate-swap agreements that memorialized those transactions incorporated the ISDA master agreement, changing only a schedule that contained additional contract terms. BOSS alleges that Regions represented to BOSS that the 2007 swap agreement would have the effect of fixing BCSS’s interest rate on the $17.3 million debt.

In its complaint, BCSS alleges that in late 2008 it received a notice of a substantial increase in the variable interest rates on its 2002, 2003, 2005, and 2007 VRDNs, which constituted BCSS’s first notice that the interest-rate-swap agreements recommended by Regions did not fix the interest rate on the VRDNs but, instead, exposed BCSS to “an entirely new increased level of market risk in the highly complex derivative market.”

The credit agreement associated with the 2007 series of VRDNs (“the 2007 credit agreement”) contains an arbitration clause, which states, in pertinent part:

“(a) Any controversy, claim or dispute or issue related to or arising from (A) the interpretation, negotiation, execution, assignment, administration, repayment, modification, or extension of this Agreement or any Financing Document; (B) any charge or cost incurred under this Agreement or any Financing Document; (C) the collection of any amounts due under this Agreement or any assignment thereof; (D) any alleged tort related to or arising out of this Agreement or any Financing Document; or (E) any breach of any provision of this Agreement or any Financing Document, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.”

The credit agreements for the 2003 and 2005 series of VRDNs contain substantively identical arbitration clauses that likewise refer to “any Financing Document.” The arbitration clause in the credit agreement for the 2002 series of VRDNs provides:

“(a) Any controversy or claim between or among the parties hereto including but not limited to those arising out of or relating to this instrument, agreement or document or any related instruments, agreements or documents, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act (or if not applicable, the applicable state law), the Commercial Arbitration Rules, and the ‘Special Rules’ set forth below. In the event of any inconsistency, the Special Rules shall control. Judgment upon any arbitration award may be entered in any court having jurisdiction. Any party to this Agreement may bring an action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this Agreement applies in any court having jurisdiction over such action.”

The 2007 credit agreement defines “Financing Documents” as

“the Series 2007 Notes, the 2007 indenture, the 2007 Letter of Credit, this Agreement, the Guaranty Agreements, and Future Security Documents and/or any other writing delivered at any time by any Financing Participant to the Bank relating to the 2007 Letter of Credit or any Hedge Agreement, or to evidence or secure any of the Obligation.”

(Emphasis added.) The credit agreements for the 2002, 2003, and 2005 series of VRDNs contain identical or substantively identical definitions of the term “Financing Documents,” all including the same reference to “any Hedge Agreement.”

The 2007 credit agreement defines a “Hedge Agreement” as

“any agreement between the Account Party and the Bank now existing or hereafter entered into, which provides for an interest rate or commodity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross-currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging the Account Party’s exposure to fluctuar- tions in interest rates, currency valuations or commodity prices.”

(Emphasis added.) The other credit agreements contain identical definitions of the term “Hedge Agreement.”

The ISDA master agreement contains a section entitled “Governing Law” that provides that “[tjhis Agreement will be governed by and construed in accordance with the law specified in the Schedule.” The schedules attached to the ISDA master agreement in 2005 and 2007 provide that “[t]his Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to choice of law doctrine.”

The ISDA master agreement also contains a clause entitled “Jurisdiction” that provides:

“(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement (‘proceeding’), each party irrevocably:
“(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed by English law, or to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, if this Agreement is expressed to be governed by the laws of the State of New York; and
“(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.
“Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction (outside, if this Agreement is expressed to be governed by English law, the Contracting States, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or any modification, extension or re-enactment thereof for the time being in force) nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.”

The schedules attached to the ISDA master agreement contain a provision concerning the “Waiver of Jury Trial,” which provides:

“(d) Waiver of Jury Trial. Each party hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all rights it may have to trial by jury in respect to any proceedings arising out of or relating to this Agreement or any Transaction and acknowledges that it and the other party have been induced to enter into this Agreement by, among other things, these mutual waivers.”

The ISDA master agreement contains a merger clause that provides: “Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supercedes all oral communication and prior writings with respect thereto.”

The ISDA master agreement also explains the “Events of Default and Termination Events” for the agreement. These include events that constitute a “Credit Support Default”:

“(1) Failure by the party or any Credit Support Provider of such party to comply with or perform any agreement or obligation to be complied with or performed by it in accordance with any Credit Support Document if such failure is continuing after any applicable grace period has elapsed;
“(2) the expiration or termination of such Credit Support Document or the failing or ceasing of such Credit Support Document to be in full force and effect for the purpose of this Agreement (in either case other than in accordance with its terms) prior to the satisfaction of all obligations of such part under each Transaction to which such Credit Support Document relates without the written consent of the other party; or “(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, such Credit Support Document.”

(Emphasis added.) The 2002, 2003, and 2005 credit agreements are included in the list of “Credit Support Documents” in the ISDA master agreement.

On September 29, 2010, BCSS sued Regions Bank and Morgan Keegan in the Baldwin Circuit Court. Among other things, BCSS asserted that Regions falsely represented to BCSS that the ISDA master agreement and the August 2007 swap agreement incorporating the ISDA master agreement fixed BCSS’s interest rates on all the BCSS debt that had been financed through the VRDNs.

Both Regions Bank and Morgan Keegan filed motions to compel arbitration of all claims based on the arbitration clauses in the credit agreements. In response, BCSS contended that its claims concerning the failure of the 2007 swap agreement to provide a fixed interest rate were not subject to arbitration.

Following a hearing on the motions to compel arbitration, the trial court entered an order on August 9, 2011, in which it granted the motions to compel arbitration as to BCSS’s claims concerning the credit agreements but denied the motions to compel arbitration as to BCSS’s claims concerning the failure of the swap transactions to provide a fixed interest rate. The trial court reasoned that the “Jurisdiction” clause in the ISDA master agreement, in combination with its merger clause, “prevented] any argument that the VRDN arbitration agreement applies to disputes concerning the swap agreements” and that those clauses demonstrated that it was “the parties’ intention, as it relates to the interest-swap agreement and any transaction related to that agreement, that the parties would not arbitrate but instead [any dispute] would be resolved by proceedings in a court of competent jurisdiction.”

Regions Bank and Morgan Keegan appealed the trial court’s order pursuant to Rule 4(d), Ala. R.App., P., which permits appeals of a trial court’s order “granting or denying a motion to compel arbitration .... ” Morgan Keegan also filed a separate appeal pursuant to Rule 4(d). This Court consolidated the two appeals for the purpose of writing one opinion.

II. Standard of Review

The parties agree that “[a] direct appeal is the proper procedure by which to seek review of [an order granting or denying a motion to compel arbitration], Rule 4(d), Ala. R.App. P., and this Court reviews the lower court’s order de novo.” Auto Owners Ins., Inc. v. Blackmon Ins. Agency, Inc., 99 So.3d 1193, 1195 (Ala.2012).

III. Analysis

At the outset, we note that the parties agree that this case is to be decided under New York law because of the choice-of-law provision in the ISDA master agreement.

Regions argues that the arbitration clauses in the credit agreements are sufficiently broad in their intended reach to apply to disputes concerning the ISDA master agreement and the 2007 swap agreement. The arbitration clauses in the credit agreements require that “[a]ny controversy, claim or dispute or issue related to or arising from ... the interpretation, negotiation, execution, assignment, administration, repayment, modification, or extension of this Agreement or any Financing Document,” “any alleged tort related to or arising out of this Agreement or any Financing Document,” and “any breach of any provision of this Agreement or any Financing Document” must be arbitrated. In addition, the credit agreements expressly define “Financing Documents” to include “any Hedge Agreement.” The credit agreements likewise define “Hedge Agreement” to include “any agreement between [BOSS] and [Regions Bank] now existing or hereafter entered into, which provides for an interest rate or commodity swap,” and it further explains that such “hedge agreements” are “for the purpose of hedging [B CSS’s] exposure to fluctuations in interest rates.”

BOSS argued to the trial court — and the trial court agreed — that the merger clause in the ISDA master agreement precludes any application to the ISDA agreement of the arbitration clauses in the credit agreements and that the jurisdiction clause in the ISDA agreement evinces an intention by the parties to submit disputes concerning that agreement to a court, for a bench trial. The trial court stated that, “[u]nder New York law, a merger clause prevents the consideration of any other evidence of the parties’ agreement, including an arbitration clause from another agreement.” The trial court cited Jarecki v. Shung Moo Louie, 95 N.Y.2d 665, 722 N.Y.S.2d 784, 745 N.E.2d 1006 (2001), for this proposition.

Jarecki actually states the following with regard to effect of a merger clause:

“The purpose of a merger clause is to require the full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to alter, vary or contradict the terms of the writing (Matter of Primex Inti. Corp. v. Wal-Mart Stores, 89 N.Y.2d 594, 599 [ (1997) ]). The merger clause accomplishes this purpose by evincing the parties’ intent that the agreement ‘is to be considered a completely integrated writing1 (id., at 600).”

95 N.Y.2d at 669, 722 N.Y.S.2d 784, 745 N.E.2d at 1009 (emphasis added).

The trial court apparently understood the explanation in Jarecki to mean that nothing in another contract can affect disputes under the contract containing the merger clause, but this is not the case. In fact, “under New York law, the general language of a merger clause ... is ‘insufficient to establish any intent of the parties to revoke retroactively their contractual obligations to submit disputes arising’ under an earlier agreement to arbitration.” General Motors Corp. v. Fiat S.p.A, 678 F.Supp.2d 141, 148 (S.D.N.Y.2009) (quoting Primex Int’l Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594, 599, 657 N.Y.S.2d 385, 679 N.E.2d 624 (1997)). The reason for this is that “the parties’ obligation to arbitrate disputes arising from the earlier agreements in no way implicate[s] the parol evidence rule.” Id. at 149. In Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278, 283 (2d Cir.2005), the United States Court of Appeals for the Second Circuit reached the same conclusion in rejecting an argument almost identical to that made by BCSS:

“Waxfield first argues that the Pledge Agreements’ Merger Clause effectively voided the Arbitration Agreement because it ‘supersedes all prior agreements.’ (emphasis added). We disagree, although we concede that a literal reading of the Clause would lead to that result.
“... [A]s a legal matter, that is not the way that merger clauses are typically understood. Rather, a merger clause acts only to require full application of the parol evidence rule to the writing in question — here, the Pledge Agreements. See Albany Sav. Bank, FSB v. Halpin, 117 F.3d 669, 672 (2d Cir.1997). But ‘enforcement of the parties’ obligations to arbitrate disputes ... does not implicate the parol evidence rule in connection with the [Pledge Agreements] and, hence, is not precluded by the merger clause in that writing.’ Primex Int’l Corp. v. Wal-Mart Stores, 89 N.Y.2d 594, 600, 679 N.E.2d 624, 627, 657 N.Y.S.2d 385, 388 (1997).”

In other words, in this case, although the merger clause in the ISDA master agreement ensures that that contract constitutes the entire agreement as to the interest-rate swaps, it does not have any effect on the terms of the credit agreements, including the scope of the arbitration clauses in those agreements.

Both BCSS and the trial court seek to rely upon MAT Movies & Television Productions GMBH & Co. Project IV KG v. RHI Entertainment Distribution, LLC, 752 F.Supp.2d 373 (S.D.N.Y.2010). The trial court stated that the MAT Movies court “rejected an attempt to impose an arbitration clause from an earlier agreement between the parties because the merger clause in the subsequent agreement which was in dispute prevented the earlier agreement from being merged into the latter.” BCSS claims that MAT Movies demonstrates that the merger clause in the ISDA master agreement prevents application of the arbitration clauses in the credit agreements to disputes involving the ISDA master agreement.

BCSS and the trial court make MAT Movies stand for something broader than it actually stands for, however. The court in MAT Movies was concerned with whether the fact that the later agreement (called “the settlement agreement”) mentioned the earlier agreement (called “the distribution agreement”) meant that the arbitration clause in the distribution agreement applied to disputes concerning the settlement agreement. The MAT Movies court stated generally: “ ‘[A]s is the case in all merger clauses, the reference to ... other documents [including the contract with the arbitration clause] simply assures the continued vitality of those documents and prevents their being merged into the [subsequent] Agreement.’ ” 752 F.Supp.2d at 378 (quoting Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 665 (7th Cir.2002)). Specifically, the MAT Movies court explained that “this standard merger clause language prevents the earlier Distribution Agreement from being merged into the later Settlement Agreement and thereby assures that parts of the Distribution Agreement remain in effect....” Id. at 378. In this case, the arbitration clause in the credit agreements is worded broadly enough to cover disputes concerning the ISDA master agreement and the 2007 swap agreement. Indeed, the arbitration clause in the credit agreements expressly references disputes that might arise from future agreements. In contrast, the court in MAT Movies was not concerned with whether an arbitration clause in the earlier distribution agreement provided that its requirement for arbitration of disputes apply to the later settlement agreement.

BOSS also contends that the “Jurisdiction” or forum-selection clause in the ISDA master agreement evinces an intention by the parties to adjudicate disputes concerning that agreement in court rather than submit them to arbitration. The forum-selection clause provides, in pertinent part, that “[w]ith respect to any suit, action or proceedings relating to this Agreement (‘proceeding’) each party irrevocably ... submits ... to the non-exclusive jurisdiction of the courts of the State of New York” and each party “waives any objection which it may have” to venue or jurisdiction “of venue of any Proceedings brought in any such court.” BOSS argues that this clause provides for nonexclusive jurisdiction in the courts of New York over any dispute concerning the ISDA master agreement.

Regions correctly observes, however, that the forum-selection clause in the ISDA master agreement does not preclude arbitration. Courts in New York have rejected the notion that a forum-selection clause containing language similar to the one here precludes the application of an arbitration clause to the agreement in question. In Bank Julius Baer & Co., for example, the United States Court of Appeals for the Second Circuit explained:

“We turn next to the Forum Selection Clause. Waxfield argues that by admitting the possibility of litigation in court, the Forum Selection Clause constitutes a waiver of the agreement to arbitrate. Here, too, we disagree.
“Under our cases, if there is a reading of the various agreements that permits the Arbitration Clause to remain in effect, we must choose it: ‘[T]he existence of a broad agreement to arbitrate creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir.1997) (internal quotation marks omitted). Moreover, we ‘cannot nullify an arbitration clause unless the forum selection clause specifically precludes arbitration.’ Personal Sec. & Safety Systems v. Motorola, 297 F.3d 388, 396 n. 11 (5th Cir.2002). In the circumstances presented to us in this appeal, we cannot say that the Forum Selection Clause, which does not even mention arbitration, either ‘specifically precludes’ arbitration or contains a ‘positive assurance’ that this dispute is not governed by the Arbitration Agreement.”

424 F.3d at 283-84 (emphasis added). The Bank Julius Baer & Co. court further explained how a forum-selection clause and an arbitration clause could be harmonized:

“The Forum Selection Clause can be understood, as the Third Circuit did [in Patten Securities Corp. v. Diamond Greyhound & Genetics, 819 F.2d 400 (3d Cir.1987), abrogated on other grounds, Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988) ], as complementary to an agreement to arbitrate. The Forum Selection Clause merely requires Waxfield to submit to suit in the courts of New York. It may be read, consistent with the Arbitration Agreement, in such a way that the Bank and Waxfield are required to arbitrate their disputes, but that to the extent the Bank files a suit in court in New York — for example, to enforce an arbitral award, or to challenge the validity or application of the arbitration agreement — Waxfield will not challenge either jurisdiction or venue. In addition, the Forum Selection Clause makes no reference to arbitration, and so is at least ambiguous. That being so, ‘[djoubts [about arbitrability] should be resolved in favor of coverage.’ WorldCrisa Corp., 129 F.3d at 74 (internal quotation marks omitted).”

Id. at 285. In Citigroup Global Markets Inc. v. VCG Special Opportunities Master Fund, Ltd. (No. 08-CV-5520(BSJ), Nov. 12, 2008), note 6 (S.D.N.Y.2008) (not reported in F.Supp.2d), aff'd, 598 F.3d 30 (2d Cir.2010), the court followed this same rationale in a case concerning the “Jurisdiction” clause in an ISDA master agreement. See also Kelso Enters. Ltd. v. A.P. Moller-Maersk A/S, 375 Fed.Appx. 48, 50 (2d Cir.2010) (not reported in F.3d); Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394, 402-03 (S.D.N.Y.2011). Applying these authorities, we find that the forum-selection clause in the ISDA master agreement does not override the arbitration clauses in the credit agreements.

Finally, BCSS contends that the clause in the ISDA master agreement waiving a right to trial by jury also demonstrates that the parties to the ISDA master agreement intended to resolve disputes in court rather than in arbitration. The jury waiver provides, in pertinent part, that “[e]ach party hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all rights it may have to trial by jury in respect to any proceedings arising out of or relating to this Agreement....” (Emphasis added.)

As Regions notes, the jury-trial-waiver clause “neither requires litigation nor precludes arbitration.” Regions’ brief, p. 34. Indeed, jury-trial waivers often accompany arbitration provisions in contracts. The language of the jury-trial-waiver clause by itself does not prevent application of the arbitration clauses in the credit agreements to disputes concerning the ISDA master agreement. It simply represents what it states: a waiver by the parties of any possible right to a trial by jury for disputes between the parties.

IV. Conclusion

Regions presented evidence of the existence of a contract requiring arbitration of the disputes at issue. BCSS attempted to demonstrate that the arbitration clauses did not apply to disputes over the ISDA master agreement and the 2007 swap agreement, but its reasoning is not compatible with the text of the arbitration clauses in the credit agreements and is not sufficient to overcome the presumption in favor of arbitrability. Therefore, we reverse the order of the trial court denying the motions to compel arbitration of BCSS’s claims concerning the ISDA master agreement and the 2007 swap agreement and remand the case for proceedings consistent with this opinion.

1101508 — REVERSED AND REMANDED.

1101512 — REVERSED AND REMANDED.

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

      . Regions notes that VRDNs are also known as “variable-rate demand obligations."

      . "The International Swap Dealers Association, now known as the International Swap and Derivatives Association, is a global trade association that developed a master agreement for interest rate and currency exchange swaps.” Caiola v. Citibank, N.A., New York, 295 F.3d 312, 317 n. 1 (2d Cir.2002).

      . In its motion to compel arbitration, Regions Bank represented that “[e]ach of the Credit Agreements ... contains a virtually identical arbitration agreement” and that "the 2002 provision differs only cosmetically — there is no substantive difference.” In its response to Regions Bank's motion, BCSS did not dispute this assertion, and, in fact, it quoted the language of the arbitration clause in the 2007 credit agreement as representative of the arbitration clauses in “[e]ach of the agreements.” ía its order, the trial court did not note any difference in the wording of the arbitration clauses, and it did not render its decision on that basis. Similarly, on appeal no issue is raised by any of the parties regarding the difference in wording between the arbitration clause in the 2002 credit agreement and the arbitration clauses in the other credit agreements. Thus, for purposes of this appeal, we consider the differences in wording to be inconsequential.

      . Morgan Keegan argued in the trial court that it could enforce the arbitration provisions because BCSS’s claims against it are inextricably intertwined with its claims against Regions Bank. BCSS did not dispute this assertion.

      . Specifically with respect to Morgan Keegan, the trial court ruled that "Morgan Keegan may arbitrate the claims against it to the same extent Regions [Bank] can compel arbitration." BCSS did not appeal this aspect of the trial court’s order.

      . The MAT Movies court readily admitted that "where a claim alleging breach of one contract requires construction of another contract with an arbitration clause or implicates the parties’ rights or obligations under the other contract, that claim may be governed by the other contract’s arbitration clause.” 752 F.Supp.2d at 378. It was just that, in that case, ”[c]onstruction of the Distribution Agreement [wa]s not required to resolve the parties’ dispute” under the later settlement agreement; the parties’ "rights or obligations under the Distribution Agreement [were] not implicated.” Id. at 378-79.


source: Caselaw Access Project

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

license: Public Domain

text:
    D.M.J. v. D.N.J.
    2101079.
    Court of Civil Appeals of Alabama.
    July 27, 2012.
    Certiorari Denied Sept. 7, 2012
    Alabama Supreme Court 1111468.

      Christopher K. Croft, Rainsville, for appellant.
    Angela Cochran Morgan, Fort Payne, for appellee.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of May 4, 2012, is withdrawn, and the following is substituted therefor.

D.M.J. (“the mother”) appeals from a custody-modification judgment of the De-Kalb Circuit Court that awarded D.N.J. (“the father”) sole physical custody of the parties’ child (“the child”) and ordered the mother to make monthly child-support payments to the father in the amount of $156.40.

The parties divorced on November 2, 2006. One child was born of their marriage. The child was in the third grade at the time of the trial in this action. By an agreement that was incorporated into the divorce judgment (“the 2006 child-custody agreement”), the mother and the father exercised joint custody of the child, with the father making monthly child-support payments to the mother in the amount of $269. Following the entry of the November 2, 2006, judgment, the parties amicably alternated physical custody of the child every three days or every seven days, and the father made every child-support payment that was due.

It appears that on June 28, 2007, the trial court entered a judgment modifying the divorce judgment (“the 2007 modification judgment”) to provide, among other things, that the mother and the father were each to submit to a drug test upon the request of the other party. The pleadings, orders, and other documents relative to the divorce action and the 2007 modification proceeding are not included in the record of the present appeal.

On June 29, 2010, the State of Alabama (hereinafter “the State”), on behalf of the mother, filed an action against the father in which it sought an increase in the father’s child-support obligation on the basis that his income had increased. On October 20, 2010, the father filed an answer and a counterclaim in which he alleged there had been a material change in circumstances such that he should be awarded sole custody of the child. He also asked the trial court to enter an order requiring the mother to pay child support to him and to enter an order prohibiting the mother from having “overnight visitors of the opposite sex to whom she is not related or married in the presence of [the child].”

The trial court held a bench trial on April 19, 2011, at which it received ore tenus evidence. The mother testified that she is a hairdresser. Although the testimony is not entirely clear, it appears from the mother’s testimony that, when the 2007 modification judgment was entered, she was living in an apartment in Rains-ville. After the entry of that judgment, she moved out of that apartment and moved in with a friend and the friend’s minor son in Dutton. She then moved with that friend and the friend’s minor son to a house in Scottsboro. At some point, she became romantically involved with her friend’s minor son and began living with the minor son in a house in Fyffe that the minor son was using while he took care of chickens. Later, the mother moved into an apartment with the Mend’s minor son, and, when the minor son was 17 years old, she and the friend’s minor son married. That marriage appears to have lasted approximately three months.

In January 2009, after she divorced from her friend’s minor son, the mother moved into a rental house where she remained until November 2010. During that approximately 23-month period, she had one live-in boyfriend for approximately four months and a second live-in boyfriend for more than a year. The mother testified that her landlord notified her that he had sold the house she was renting, and, therefore, in November 2010, the mother moved in with her father while a house she intended to rent from him was renovated. In January 2011, she moved into her father’s rental house, where she was living at the time of the trial in April 2011. At the time of the trial, she had a different boyfriend with whom she had been in a relationship for four months; that boyfriend was not living with the mother. The mother admitted that her constant moves were not good for the child.

The father testified that he worked for a telephone company and that he had worked for that company for the last 16 or 17 years. The father’s testimony reflects that he married his present wife, who is a college professor, on June 8, 2007. His testimony indicated that, since the 2007 modification, he and his wife had moved one time — from the mobile home in which he and his wife had lived while they were building a house to the house that they built.

When it was pointed out to the father that he did not raise with the court his concerns relative to the mother until he filed his counterclaim in the present action three and a half years after the most recent modification, the father responded that he did not have money to come back to court “every time the mother changed boyfriends.” The father testified that he “knew” the mother would file something with the court at some point to increase his child-support obligation. The father repeatedly stated that, while he waited for that to happen, he noted the mother’s conduct so that when he returned to court, he “would have all my ducks in a row” in order to assert a custody claim. We note that, according to the child-support forms incorporated into the trial court’s judgment, the father’s annual income was $82,685, and the mother’s annual income was $15,600.

The mother testified that she requested the State’s assistance in filing the child-support action after the father withdrew the child from the private school in which the child had been enrolled for several years. The divorce judgment had provided that the father pay “all educational fees and expenses, including school lunches, clothing, extracurricular activities.” The mother acknowledged that that provision did not specifically require that the father pay private-school tuition, but she stated that the father had agreed to pay that tuition. The father admitted that he had decided he could no longer afford to send the child to private school because he and his new wife had constructed “a house that ended up being a whole lot bigger than we was expecting” and because he and his new wife had had a child together.

The child testified that he liked the present custody arrangement and that he would not want to change it.

On April 21, 2011, the trial court entered a judgment in which it found that there had been a material change of circumstances and that it was in the child’s best interest that sole physical custody of the child be awarded to the father. It awarded joint legal custody of the child to the parties, sole physical custody of the child to the father, and visitation to the mother. The father remained responsible for the child’s health insurance, all other medical expenses not covered by the father’s health insurance, and for the child’s educational expenses. The mother was ordered to pay monthly child-support payments in the amount of $156.40 to the father. The judgment restricted both parties from having overnight visitors of the opposite sex to whom they are not related when the child is in their respective homes. The mother filed a postjudgment motion, which the trial court denied. The mother appeals.

In Ex parte Blackstock, 47 So.3d 801, 804-06 (Ala.2009), our supreme court set out the standard of review appropriate to the present ease.

“Where, as in the present case, there is a prior judgment awarding joint physical custody, ‘ “the best interests of the child”’ standard applies in any subsequent custody-modification proceeding. Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994) (quoting Ex parte Couch, 521 So.2d 987, 989 (Ala.1988)). To justify a modification of a preexisting judgment awarding custody, the petitioner must demonstrate that there has been a material change of circumstances since that judgment was entered and that ‘ “it [is] in the [child’s] best interests that the [judgment] be modified” ’ in the manner requested. Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005) (quoting Means v. Means, 512 So.2d 1386, 1388 (Ala.Civ.App.1987)).
“Also, we note the presumption of correctness accorded to a trial court’s judgment:
“‘When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: “ ‘A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....’” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. “In child custody cases especially, the perception of an attentive trial judge is of great importance.” Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).’
“Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).
“As this Court stated in Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996), quoted in part in Lamb [v. Lamb, 939 So.2d 918 (Ala.Civ.App.2006) ], in an ore tenus proceeding,
“ ‘[t]he trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App. 1993), set out the well-established rule:
“““Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.
676 So.2d at 1324; see Lamb, 939 So.2d at 922; see also Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ (citation omitted)).
“ ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ’ Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Bryowsky, 676 So.2d at 1326). ‘Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment.’ Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App. 2007) (citing Ex parte Patronas) (emphasis added). Under the ore tenus rule, where the conclusion of the trial court is so opposed to the weight of the evidence that the variable factors of a witness’s demeanor and credibility and the inferences that can be drawn from the evidence, even after considering those factors, ‘ “ ‘could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.’ ” ’ Cheek, 1 So.3d at 1029 (quoting B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999), quoting in turn Jacoby v. Bell, 370 So.2d 278, 280 (Ala. 1979) (emphasis added)).
“Further, where, as in the present case, the trial court does not make detailed written findings of fact, we ‘ “will assume that the trial court made those findings [of fact] necessary to support its judgment, unless such findings would be clearly erroneous.” ’ Ex parte Fann, 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992)).”

The mother contends that the trial court erred in modifying custody because, she argues, there is no evidence of a material change in circumstances and because the child stated that he was content with the joint-physical-custody arrangement. Because we conclude that the parties shared true joint custody of the child, the trial court was required to consider whether, since the date of the last custody-modification order, there had been a material change in the circumstances of the parties such that it was in the best interests of the child to modify custody. See Ex parte Couch, 521 So.2d 987, 989-90 (Ala.1988); Morgan v. Morgan, 964 So.2d 24, 34 (Ala.Civ.App.2007). This court has stated that,

“[i]n considering the best interests of the child, the court must consider the individual facts of each case, including the following factors: the sex and age of the child; the child’s emotional, social, moral, material, and educational needs; the home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, and mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child; the interpersonal relationship between the child and each parent; the effect on the child of disrupting or continuing an existing custodial status; the preference of the child; available alternatives; and any other relevant matter the evidence may disclose.”

Id.

Based on the evidence of record, we conclude that the trial court reasonably could have found a material change in circumstances such that it was in the child’s best interest to award the father sole physical custody of the child. The evidence reflects that, in less than four years, the mother had moved seven times; had cohabitated with, married, and, after three months, divorced a minor; and had multiple live-in boyfriends. Based on this evidence, the trial court was free to infer an impact on the child brought on by the mother’s lack of stability such that an award to the father of sole physical custody was in the child’s best interest. Holsombeck v. Pate, 47 Ala.App. 39, 42, 249 So.2d 861, 864 (Civ.1971).

Watters v. Watters, 918 So.2d 913 (Ala.Civ.App.2005), a case on which the mother relies, is not to the contrary. In Watters, the parties were awarded joint physical custody of their child in a divorce judgment. Later, the mother filed a petition seeking sole physical custody of the child, which the trial court granted. On appeal, this court noted that the mother’s circumstances had changed: “she ha[d] remarried ...; she [was] no longer employed; and she [was] now residing in a large house in a nice residential neighborhood.” Watters, 918 So.2d at 916. However, we concluded that there was no evidence indicating “those changes [had] affected the child in anything more than a tangential way.” Id. Thus, we reversed the trial court’s judgment.

The changes in Watters, involving a remarriage and a single move by the mother to a nicer house, pale in comparison to those at issue in the present case. There is simply no way that any type of impact, positive or negative, appropriately could have been inferred from the slight changes described in Watters. Under the circumstances in the present case, however, involving changes that go to the very heart of, and call into serious doubt, the mother’s ability to provide the child with a stable environment, the trial court was free to infer an impact on the child from the mother’s constant relocations and ever changing housemates.

The mother would have us read Watters in a broader fashion and require in every case that there be direct evidence of a serious impact on a child brought on by changed circumstances before a trial court could modify custody under the Ex parte Couch standard. This is not the law. Indeed, this court has previously held that an impact on a child by material changes can be inferred from the nature of the changes themselves. See Holsombeck, 47 AIa.App. at 42, 249 So.2d at 864. We find the drawing of such an inference to have been within the trial court’s prerogative in the present case, given that stability is plainly an important factor to be considered with regard to the best interests of a child. See Morgan, 964 So.2d at 34.

In her appellate briefs, the mother attempts to paint this case as one in which the trial court is depriving her of her right to carry on postdivorce romantic relationships, and she cites her constitutional rights to marry and procreate. Clearly, the evidence does not support this contention. Without reciting all the evidence, it is sufficient to note that the evidence demonstrates substantially more than that the mother dated a few men after her divorce; it demonstrates poor judgment and a substantial lack of stability in the mother’s personal relationships, a lack of stability in her housing arrangements, and a lack of stability in her living arrangements.

The mother also argues that the trial court failed to give appropriate weight to the child’s desire to keep the joint-physical-custody arrangement in place. Although we recognize, as the mother points out, that the wishes of a child who is of a sufficient age are entitled to “much weight” in deciding custody, Toler v. Toler, 947 So.2d 416, 422 (Ala.Civ.App.2006), a trial court is required to consider a number of factors, see Morgan, supra, and the child’s wishes are not dispositive, see To-ler, 947 So.2d at 422. Given the facts of this case, we cannot say that the trial court erred in concluding that the wishes of the child did not outweigh the other factors the trial court considered, such as each party’s relative stability and home life.

The mother also contends that this court should overrule or choose not to follow the supreme court’s decision in Ex parte Couch, supra, applying, instead, the rationale set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Because we are bound by supreme court precedent, see § 12-3-16, Ala.Code 1975, we find no merit in this final argument. We note that the mother, in her briefs, recognizes that this court is bound by supreme court precedent, and she notes that she has raised this argument in this court so as to preserve the argument for further appellate review.

As previously noted, the Ex parte Couch standard provides that, in a case such as the present case, the trial court, to modify custody, only need find that there has been a material change in circumstances and that a modification of custody is in the child’s best interest. Ex parte Bladcstock, 47 So.3d at 804. The evidence supports such a finding in this case. As a result, we conclude that the trial court did not err when it awarded sole physical custody of the child to the father, and the trial court’s judgment is therefore affirmed.

APPLICATION GRANTED; OPINION OF MAY 4, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

PITTMAN, J., concurs.

BRYAN, J., concurs specially.

THOMAS and MOORE, JJ., dissent, with writings.

BRYAN, Judge,

concurring specially.

I concur in the main opinion, but I write specially to note that I do not agree with the holding in Ex parte 730 So.2d 1190, 1194 (Ala.1998), as set forth in note 2 of the main opinion. However, I am bound by the decisions of the Alabama Supreme Court. See State Farm Mut. Auto. Ins. Co. v. Carlton, 867 So.2d 320, 325 (Ala.Civ.App.2001) (“[The Court of Civil Appeals] is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and we have no authority to overrule that court’s decisions.”).

THOMAS, Judge,

dissenting.

I respectfully dissent. My review of the record does not lead me to the determination that the evidence before the trial court supports its conclusion that a modification of the parties’ joint-custody arrangement, which our legislature requires us to favor, was warranted. Ala.Code 1975, § 30-3-150. I do not agree that, in this case, the trial court could have “inferred” that D.N.J. (“the father”) had offered proof to the trial court of a material change of circumstances affecting the best interest and welfare of the child.

The majority of this court is convinced that the father presented sufficient evidence to the trial court of a material change in circumstances and that the trial court properly inferred that that change in circumstances affected the best interest and welfare of the child. However, I am wholly unconvinced the trial court could have rightly inferred an effect on the best interest and welfare of the child in light of the utter lack of evidence from which it could have made such an inference.

The majority has relied upon Holsombeck v. Pate, 47 Ala.App. 39, 249 So.2d 861 (Civ.1971), for the proposition that a trial court is “free to infer” an impact on a child when it finds a material change in circumstances. 106 So.3d at 398. The testimony indicating an “impact,” or an effect upon the best interest and welfare of the child, in the present case, pales in comparison to the inferred effects upon the child in Hol-sombeck. Unlike the changes in circumstances and the inferred effects in this case, the material changes upon which the Holsombeck court had permitted an inferred effect upon the child had presented (1) a risk to the life of the child and (2) a continuing effect at the time of the trial.

In Holsombeck, a trial court had awarded custody of one child (“the son”) to the mother and custody of two other children to the father in the parties’ divorce judgment. The father sought a modification of the custody of the son. Testimony revealed that, soon after the divorce, the mother had married a man who did “not enjoy a good reputation for peace and quietude.” 47 Ala.App. at 40, 249 So.2d at 862. Immediately following that marriage, the parents had “difficulty” with visitation exchanges. 47 Ala.App. at 42, 249 So.2d at 863. The trial court awarded custody of the son to his father. 47 Ala.App. at 41, 249 So.2d at 862. This court said:

“Perhaps the evidence as to one change of circumstances could not be considered to materially affect the welfare and best interest of [the son], but we think there was evidence and reasonable inferences to be drawn therefrom of more than one change of circumstance and conditions materially affecting the best interest and well-being of [the son].”

47 Ala.App. at 41-42, 249 So.2d at 868 (emphasis added). This court listed the evidence presented to the trial court of changes in circumstances that had led the trial court to its reasonable inference of an effect upon the welfare and best interest of the son. Those changes in circumstances were (1) the mother’s continuing marriage to a man who had a reputation for violence, (2) the mother’s continuing changes in address, (3) the birth of a half sibling, and (4) the parents’ conflicts at visitation exchanges that had culminated with the “firing of guns and threats of violence” in the presence of the son. 47 Ala.App. at 42, 249 So.2d at 863. Furthermore, in Hol-sombeck, the son had expressed his preference for a change in his custody. Id.

In Holsombeck, we determined that the trial court had not “strayed” too far in inferring an effect on the son although the evidence presented had not “directly shown [the changes in circumstances] to have materially affected adversely the welfare of [the son].” 47 AlaApp. at 42, 249 So.2d at 864. We determined that the trial court must have discerned that the parents were “so imbued with their personal feelings against one another, and their efforts to exercise them, they [had forgotten] the effect their actions and emotions ha[d] upon the children involved.” id We said that the “[c]ustodial and visitation privileges with the children [had been] abused as a club to punish one another.” Id. Furthermore, we stated a belief that “[t]he primary consequence of such acts is permanent harm to the children. Conflict between parents is more damaging to the children after divorce than during cohabitation.” Id.

In the case at hand, I believe that the trial court has “strayed” too far in inferring an effect upon the welfare and best interest of the child. D.M.J. (“the mother”) testified concerning what the main opinion has called her “instability.” I might agree with the majority, and with the mother, that she had moved too many times and that those 'moves were not “good” for the child, yet I, unlike the majority, credit the mother with a pattern of stability beginning in January 2009. That year, the mother began renting a house that she resided in for 23 months. She moved because the owner of the house had sold it. At the time of the trial, she had already settled into a second rental house, owned by her father. Finally, I note that, unlike the son in Holsombeck, who desired to live with his father, in this case the child testified that he is content and that, if given a choice, he would prefer to remain in the joint-custody arrangement.

I am mindful of the ore tenus standard; however, I cannot agree with the majority of this court that the trial court’s judgment is due to be affirmed. The parties shared joint custody, triggering the trial court’s proper use of the best-interest standard, which was explained in Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). The father had the burden to prove that there had been a material change of circumstances since that judgment was entered and that ¾ [is] in the [child’s] best interests that the [judgment] be modified...' '' Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005) (quoting Means v. Means, 512 So.2d 1386, 1388 (Ala.Civ.App.1987)). A trial court is not required to, and, in this case, did not, provide specific findings of fact in its judgment modifying the custody of the child, so, under the ore tenus standard, this court will presume that the trial court made findings that would support its judgment, but only if those findings are supported by the evidence at trial. Marsh v. Smith, 67 So.3d 100, 105-06 (Ala.Civ.App.2011).

I believe that the evidence before the trial court fails to support its inference that the mother’s lifestyle has affected the best interest and welfare of the child; therefore, I conclude that the decision to award sole physical custody of the child to the father is “ ‘plainly and palpably wrong....’” Ex parte Perkins, 646 So.2d 46, 47 (Ala.l994)(quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). I have neither reweighed the evidence presented to the trial court nor substituted my opinion for that of the trial court regarding disputed evidence, because, after my careful review of the record, I have discovered no evidence presented to the trial court to reweigh or upon which to substitute my judgment of an effect upon the best interest and welfare of the child. In my opinion, the father has simply failed to carry his burden because he failed to present any evidence from which the trial court could have determined, or even inferred, that the mother’s lifestyle had affected the best interest and welfare of the child.

Furthermore, I believe that today’s decision is in direct conflict with former decisions of this court and of our supreme court. In Watters v. Watters, 918 So.2d 913 (Ala.Civ.App.2005), we cited Ex parte Couch, supra, and acknowledged that this court should not

“undercut our supreme court’s pronouncement that we are to encourage parents to work together for the benefit of the family, see Ex parte Couch, 521 So.2d at 990, and the requirement that a party seeking a modification of custody prove a material change of circumstances affecting the best interest and welfare of the child that warrants a modification of custody. Ponder [v. Ponder], 50 Ala.App. [27,] 30, 276 So.2d [613,] 615 [ (Civ.1973) ].”

918 So.2d at 917 (emphasis added).

The main opinion has easily distinguished the facts in Watters; however, I do not believe that it has distinguished its legal conclusions. In Watters, we reversed a trial court’s modification of a custody arrangement based upon our determination that the party seeking a modification of an agreed upon, joint-custody arrangement had not provided evidence to the trial court of a material change of circumstances that warranted a change in the custody of a child. Id. The Watters court was not required to infer an effect upon the best interest and welfare of the child; the mother testified to her improved situation — that she had remarried, that she could stay at home with the child, and that she had moved into a nicer house. Id. at 915. Despite the evidence presented, we reversed, saying:

“The child appears, based on all the evidence of record, to be happy and well-adjusted. The changes in his mother’s life have existed since July 2003. No evidence reveals that those changes, although positive in nature, have affected the welfare and best interest of the child to such an extent that a change in custody is warranted.”

Id. at 917 (footnote omitted).

In this case it also appears that the child is happy and well-adjusted, based on the testimony provided by the mother, the father, and the child. It is apparent that the child feels loved and is loved by the mother and the father. In Watters, we reiterated that “the testimony at trial did not establish that [the changes in the mother’s life had] affected the child in anything more than a tangential way.” Id. at 916.

In Watters, the mother in that case, the party seeking the change in custody, testified as to what she “thought” and to problems she had “noticed”; however, we determined that her testimony was unconvincing because she had not offered specific explanations to the trial court. Id. at 915.

In this case, the father has offered only his perceptions that the child has been affected by the mother’s lifestyle; the father does not testify to a single concrete example of an effect upon the best interest and welfare of the child. My search of the record has failed to yield an inference of a tangential effect, much less a direct effect, upon the best interest and welfare of the child.

In addition, to the extent that the majority of this court has expressed its belief that there was evidence presented to the trial court of a material change of circumstances from which an effect on the best interest and welfare of the child could be inferred, this court may also be in direct conflict with additional decisions of this court and our supreme court. The following opinions do not support the majority’s conclusion that it was in the child’s best interest to modify the parties’ joint-custody arrangement because the mother was. unstable due to her changes in residence. Rey v. Rey, 513 So.2d 1, 1-2 (Ala.Civ.App.1986) (reversing a trial court’s judgment determining that a parent’s sudden move to another state reflected instability); Judah v. Gilmore, 804 So.2d 1092, 1097 (Ala.Civ.App.2000) (quoting Patchett v. Patchett, 469 So.2d 642 (Ala.Civ.App.l985))(not-ing that a mere change in residence does not necessarily justify a change in custody); and C.M.M. v. S.F., 975 So.2d 975, 980 (Ala.Civ.App.2007)(noting that past instability was insufficient to deny a parent of custody of a child when the parent had been stable for a period at time of the trial).

In conclusion, this court should have required what I believe Alabama law requires — in a custody-modification action, a party must provide not an inference but evidence of a material change in circumstances affecting the best interest and welfare of a child. Therefore, I dissent.

MOORE, Judge,

dissenting.

Once a trial court has entered a judgment establishing the physical-custody arrangement for a child, that judgment

“is conclusive of the interest of the child and the rights of the parents, so long as the status at the time of the decree remains without material change, or unless pertinent facts existing, but not disclosed, at the time of the final decree are brought to light.”

Messick v. Messiah, 261 Ala. 142, 144, 78 So.2d 547, 549 (1954). A change of circumstances is considered “material” under Alabama law if that change “ ‘affeet[s] the welfare and best interests of the child or children involved.’ ” Ford v. Ford, 298 Ala. 743, 744, 310 So.2d 234, 235 (1975) (quoting Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Civ.1973)).

As our supreme court has clarified on repeated occasions, in order to be material, the change of circumstances does not have to be adverse to the best interests of the child, but may be a beneficial change. See Ex parte Murphy, 670 So.2d 51, 53 (Ala.1995); Ex parte McLendon, 455 So.2d 863, 866 (1984); and Ford v. Ford, 293 Ala. at 744, 310 So.2d at 235. Nevertheless, our supreme court has also recognized that alleged heterosexual misconduct by a parent will not justify a change of custody in the absence of evidence indicating that the misconduct has detrimentally affected the child. Ex parte J.M.F., 730 So.2d 1190, 1194 (Ala.1998). In this case, D.N.J. (“the father”) criticized D.M.J. (“the mother”) for engaging in multiple romantic relationships and cohabiting with her romantic partners in the presence of the child. The father also hypothesized that her conduct may not be good for the child; however, the father did not present any evidence of any actual detrimental effect the mother’s conduct had had on the child. Consequently, the trial court did not have any evidentiary basis for modifying custody based on the mother’s alleged unstable romantic relationships.

The father also presented no evidence indicating that the child had been detrimentally affected by the mother’s various residence changes since the parties’ divorce. Although our prior caselaw has not explicitly stated that such evidence is required, numerous cases have at least implied as much. In Rey v. Rey, 513 So.2d 1 (Ala.Civ.App.1986), this court, in reversing a judgment modifying the custody of a child, rejected Mr. Re/s argument that Mrs. Key’s change in residence reflected instability that was adversely affecting the welfare and best interests of their child. In Judah v. Gilmore, 804 So.2d 1092 (Ala.Civ.App.2000), this court, in reversing a judgment modifying custody, noted that the moving parent had not proven any adverse effect on the children based on a temporary change in their residency while in the custody of the nonmoving parent. 804 So.2d at 1097. On the other hand, this court and our supreme court have affirmed judgments modifying custody based on the custodial parent’s residential instability in light of additional evidence of behavioral, emotional, or developmental problems for the child or children whose custody was at issue. See Ex parte Murphy, 670 So.2d 51 (Ala.1995); Pitts v. Priest, 990 So.2d 917 (Ala.Civ.App.2008); and Taft v. Taft, 553 So.2d 1157 (Ala.Civ.App.1989).

Additionally, it defies logic to require proof of a detrimental effect in cases involving alleged indiscreet sexual behavior, but not to do so in cases involving alleged residential instability. In the former line of cases, the morals of the developing child are at issue, yet the appellate courts of this state have recognized that a trial court cannot infer moral endangerment in every case so the burden remains on the noncustodial parent to present actual evidence of a detrimental effect. In the hierarchy of judicial concerns, the stability of a child does not hold greater importance than the morals of a child. Likewise, it cannot be inferred that a child’s healthy development is automatically threatened by the residential instability of his or her custodial parent; if that was the case, the courts would have to deny petitions for custody filed by parents whose professions require constant relocation, such as military personnel. Moreover, if such inferences could be made from the mere fact of residential instability, it would place no great burden on a noncustodial parent to present actual evidence of a detrimental effect as this court explicitly requires in cases involving alleged sexually indiscreet behavior.

In this case, the father undoubtedly proved that the mother had often moved and had lived in varying arrangements with third parties since the parties divorced. The father also clearly proved that, during that same period, he had moved far less and had engaged in only one romantic relationship. However, the father did not prove that the child had experienced any difficulties while in the former joint-custody arrangement as a result of the mother’s living arrangements, much less that those arrangements had stunted his natural development. The majority opinion likewise concludes that the trial court had no evidence before it indicating that the mother’s unstable living arrangements had harmed the child, but it maintains that the trial court could have inferred such an impact, based on Holsombeck v. Pate, 47 Ala.App. 39, 42, 249 So.2d 861, 864 (Civ.1971). 106 So.3d at 398-99. For the same reasons as asserted by Judge Thomas in her dissent, 106 So.3d at 400-01, I find Holsombeek inapposite and the reasoning of the majority opinion unpersuasive.

The record before this court contains no evidence indicating that the child is anything other than a normal child who is thriving under the custody arrangement originally chosen by the trial court and which the child desires to maintain. Based on the record before this court, I find no evidentiary basis for modifying custody. Therefore, I respectfully dissent.

      . The father's testimony indicates that the mother initially told him the minor was 20 years old.

      . In his dissent, Judge Moore argues that direct evidence of a detrimental effect on the child by material changes in circumstances must be shown. Our supreme court has limited such a requirement to cases in which a change of custody is sought based solely on heterosexual misconduct by a parent. See Ex parte 730 So.2d 1190, 1194 (Ala.1998). Although the evidence supports a finding of indiscreet conduct by the mother, we do not affirm the change of custody in this case solely on the basis of "heterosexual misconduct” by the mother but, rather, on the totality of the evidence presented, including, most importantly, the mother’s pervasive and ongoing lack of stability and her constantly changing residential arrangements. Moreover, we note that the cases on which Judge Moore relies in support of his argument, Rey v. Rey, 513 So.2d 1 (Ala.Civ.App.1986), and Judah v. Gilmore, 804 So.2d 1092 (Ala.Civ.App.2000), involve situations that are so entirely distinguishable from the facts in this case as to provide no real basis for the adoption of the broader proposition asserted by Judge Moore. Rey involved nothing more than a single move by a custodial parent; Judah involved nothing more than a single, temporary move by a custodial parent. Furthermore, both of those cases were decided under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applicable to prior custody awards that favor one of the parents, not under the standard set forth in Ex parte Couch that is applicable in the present case.

      . Alabama Code 1975, § 30-3-150, reads in its entirety:

        "Joint Custody. It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.”

      . The mother testified that she had had 2 live-in boyfriends during 16 of the 23 months that she had lived in that rental house. The majority characterizes two live-in boyfriends as "multiple live-in boyfriends.” 106 So.3d at 398.

      . This court also relied on Watters in Kilgore v. Kilgore, 100 So.3d 544, 549 (Ala.Civ.App.2012), writ denied, 100 So.3d 551 (Ala.2012); in Kilgore, we determined that a parent’s general testimony that a joint-custody arrangement is "hard” on a child, without a more specific explanation, is “speculative at best” and does not indicate an effect upon the child.

      . The opinions listed reviewed changes of custody and were subject to the heightened McLendon standard, which requires proof that a change of custody will materially promote the best interest of the child, Ex parte McLendon, 455 So.2d 863 (Ala.1984). However, the McLendon standard also requires a party seeking a modification of custody to first prove a material change of circumstances prompting the need for a change in the existing custody arrangement.


author: MOORE, Judge.

text:
    T. Mark MACLIN, as administrator ad litem for Ronald Leon Brotherton, deceased v. Justin CONGO et al.
    2110546.
    Court of Civil Appeals of Alabama.
    Sept. 7, 2012.

      J. Mark Debro and Jennifer M. Matthews of Grace, Matthews & Debro, LLC, Huntsville, for appellant.
    H. Carey Walker III of Adams & Walker, P.C., Huntsville, for appellee Justin Congo.
   MOORE, Judge.

T. Mark Maclin, as the administrator ad litem for Ronald Leon Brotherton, deceased, appeals from a judgment of the Limestone Circuit Court (“the trial court”) awarding damages to Justin Congo on his claims resulting from a motor-vehicle accident involving vehicles being driven by Brotherton and Congo. Because we conclude that the trial court lacked subject-matter jurisdiction over the claims asserted in the action, we dismiss the appeal.

Procedural History

On May 26, 2009, Ernest Congo, individually and doing business as Congo Towing, and Justin Congo (hereinafter referred to collectively as “the Congos”) filed a complaint against Brotherton and a number of fictitiously named defendants, alleging claims of negligence and wantonness. The Congos alleged, among other things, that, on or about June 7, 2007, Brotherton had allowed the vehicle he was driving to collide with the tow truck Justin was driving, which tow truck was owned by Ernest, doing business as Congo Towing; that, as a result of Brotherton’s alleged negligent and/or wanton operation of his vehicle, Justin had suffered injuries and had incurred damages; and that, as a result of Brotherton’s alleged negligent and/or wanton operation of his vehicle, Ernest, doing business as Congo Towing, had suffered damages in the form of lost income as a result of the damage to, and loss of use of, the tow truck Justin had been driving.

On June 26, 2009, J. Mark Debro filed a “limited appearance for filing a suggestion of death” on behalf of Brotherton, notifying the trial court that Brotherton had died in May 2008. Debro also filed a “limited appearance for purpose of contesting service and motion to quash,” asserting that Brotherton had been a resident of Missouri; that, at the time the summons and complaint were issued to Brotherton, no agent or executor of Brotherton’s estate had received the complaint; that it was unknown whether an estate had been opened or if an executor had been appointed; and, thus, that service had been improper and the trial court lacked jurisdiction over the matter. Debro also filed a supplement to his motion to quash, attaching a copy of Brotherton’s death certificate thereto and again requesting that the trial court quash the service on Brotherton. Debro filed an additional supplement to his motion to quash, attaching a certified copy of Brotherton’s death certificate and the affidavit of Brotherton’s daughter, Dianne Brotherton Edwards. Edwards stated in her affidavit that Brotherton had died without leaving a known will and that no estate had been opened on his behalf. She stated also that, “[a]t the time of [Brother-ton’s] death, no one had been appointed agent, personal representative, or executor to receive service of any lawsuits on his behalf.” The trial court granted the motion to quash on September 8, 2009.

On November 9, 2009, the Congos filed a motion requesting that the trial court appoint T. Mark Maclin as the administrator ad litem for Brotherton’s estate, pursuant to Rule 25, Ala. R. Civ. P., and § 43-2-250, Ala.Code 1975. Debro filed a limited appearance to respond to the Congos’ motion and to file a motion to dismiss. In his response, Debro asserted that the Congos had not met the requirement under § 43-2-250 that Brotherton’s estate be represented because, he asserted, “there is no estate.”

On December 11, 2009, the Congos filed an amended complaint, adding Progressive Specialty Insurance Company (“Progressive”). The Congos alleged that Progressive had issued an automobile-insurance policy to Ernest Congo, that that policy covered Justin at the time of the accident, and that they were seeking damages from Progressive under the uninsured-motorist provision of the policy.

On December 17, 2009, the affidavit of Leslie Clay was filed in the trial court; Clay stated in her affidavit that she worked in the claims-litigation department of Shelter Mutual Insurance Company (“Shelter”), that Shelter is a Missouri corporation that is not licensed to sell insurance in the State of Alabama, and that Brotherton had been issued an automobile-insurance policy from Shelter that was in full force and effect on the date of the accident.

On December 17, 2009, the trial court entered an order finding that Brotherton had died on May 10, 2008, in the State of Missouri, appointing T. Mark Maclin as the administrator ad litem for Brotherton’s estate, and substituting Maclin as a defendant in the action. Debro filed a limited appearance to renew his motion to dismiss and to seek revocation of the trial court’s December 17, 2009, order based on his assertion that the trial court lacked subject-matter jurisdiction; the trial court denied Debro’s motion on January 11, 2010.

On January 18, 2010, Progressive filed an answer to the Congos’ amended complaint, asserting that the truck operated by Justin at the time of the accident was not listed on Ernest’s policy with Progressive and, thus, that uninsured-motorist coverage had not been confirmed at the time the answer was filed. Progressive also filed a motion demanding a trial by jury.

On February 25, 2010, Maclin filed an answer and a motion to dismiss, asserting, among other things, that no estate had been established on Brotherton’s behalf and, thus, that there was no estate to represent, that the Congos had failed to bring suit against a viable defendant, and that the trial court lacked subject-matter jurisdiction. The Congos filed a response to Maclin’s motion to dismiss. On May 21, 2010, the trial court denied Maclin’s motion to dismiss.

On July 13, 2010, Progressive filed a motion to withdraw from active participation in the case; the trial court granted that motion by a notation on the case-action-summary sheet on July 15, 2010. On August 30, 2011, the trial court set the case for a trial on January 9, 2012.

On December 9, 2011, Maclin filed a motion for a summary judgment, again asserting the trial court’s lack of subject-matter jurisdiction and also asserting lack of personal jurisdiction over Brotherton and Shelter. Attached to the summary-judgment motion was Maclin’s affidavit, in which he stated that the “Probate Court of Limestone County’s records show that an estate has never been opened for the late Ronald Leon Brotherton.” Maclin also attached to his motion the affidavit of Leslie Clay, who stated that Shelter had not written policies of insurance, advertised, or employed insurance agents in Alabama and that Shelter was not licensed to do business in Alabama. On December 14, 2011, the trial court set Maclin’s summary-judgment motion for a hearing on January 4, 2012. Maclin filed a supplement to his summary-judgment motion on December 20, 2011, attaching the affidavit of Diane Mardis, Brothertoris daughter, who stated that Brotherton was a resident of Potters-ville, Missouri, that all of the automobiles that Brotherton had owned were principally garaged in Missouri, that Brotherton had died in Missouri without leaving a known will, that no estate had been opened on his behalf, and that, at the time of his death, Brotherton did not own any property or assets in Alabama. The Congos filed responses to Maclin’s summary-judgment motion.

A jury trial was conducted on January 11 and 12, 2012. At the close of the Con-gos’ case, Debro, who represented Maclin at the trial, filed a motion for a judgment as a matter of law, which the trial court denied. Debro renewed his motion for a judgment as a matter of law at the close of all the evidence, again asserting, among other things, that the trial court lacked subject-matter jurisdiction; the trial court denied that motion. The jury found in favor of Justin and awarded him $27,020 in damages; it found in favor of Ernest, individually and doing business as Congo Towing, but awarded him no damages. On January 18, 2012, the trial court entered a judgment on the jury’s verdict.

On February 7, 2012, Debro filed on behalf of Maclin a document entitled “defendant’s alternative post-judgment motions,” in which he stated that he was appearing for the limited purposes of making a motion to set aside the verdict and the judgment entered on the jury’s verdict and for the entry of an order granting Maclin’s judgment as a matter of law or, in the alternative, a motion for a new trial. The trial court entered an order on February 9, 2012, that, among other things, denied Maclin’s alternative postjudgment motions. Maclin filed his notice of appeal to this court on March 13, 2012.

Discussion

Maclin argues on appeal that the trial court did not have subject-matter jurisdiction in this case because, he states, “appointment of an administrator ad litem by a circuit [court] does not create a legal entity which can be sued.” We do not reach the merits of Maclin’s argument, however, because we conclude that the trial court never obtained jurisdiction over the cause of action. The Congos filed their complaint against Brotherton on May 26, 2009. At that time, Brotherton was deceased. Proceedings instituted against an individual who is deceased at the time the action is filed are a nullity and do not invoke the trial court’s jurisdiction. A.E. v. M.C., 100 So.3d 587, 595 (Ala.Civ.App.2012). The Congos’ action against Broth-erton was therefore void ab initio. Id. The trial court had no jurisdiction to entertain an amendment of the complaint or any further motions or pleadings; it was required to dismiss the action for lack of subject-matter jurisdiction. See Ex parte Owens, 65 So.3d 953, 955-56 (Ala.Civ.App.2010). Because the Congos’ complaint failed to invoke the trial court’s subject-matter jurisdiction, all subsequent actions by the trial court are void. See A.E. v. M.C., 100 So.3d at 587 (“ ‘The absence of subject-matter jurisdiction renders void any judgment entered in the action.’ Moore v. John Hancock Life Ins. Co., 876 So.2d 443, 448 (Ala.2003).”). See also A.E., 100 So.3d at 587 (Moore, J., concurring in the result). “A void judgment will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.” Reed v. White, 80 So.3d 949, 953 (Ala.Civ.App.2011). We therefore dismiss the appeal, albeit with instructions to the trial court to vacate its void judgment and orders.

APPEAL DISMISSED WITH INSTRUCTIONS.

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


text:
    Rickey L. AYERS, as administrator of the estate of James L. Cleveland, deceased v. Carol CLARK et al.
    2110503.
    Court of Civil Appeals of Alabama.
    Sept. 7, 2012.
    Cory T. King of Harris, Skipworth & King, Florence, for appellant.
    Sharon Hindman Hester of Hester & James, LLC, Russellville, for appellees.
   MOORE, Judge.

Rickey L. Ayers, as administrator of the estate of James L. Cleveland, deceased (“the estate”), appeals from a judgment of the Franklin Circuit Court (“the trial court”) granting a motion to dismiss filed by Carol Clark and Robert J. Cleveland for lack of jurisdiction. We reverse.

On February 15, 2011, Ayers filed in the trial court a petition to terminate a trust, asserting that James L. Cleveland had died intestate on November 21, 2010, and that Ayers had been granted letters of administration of James’s estate on January 6, 2011. Ayers named as defendants Essie V. Cleveland, Robert J. Cleveland, and Carol Clark. Ayers alleged that James was the settlor and sole trustee of the “James Cleveland Living Trust” (“the trust”), which, he alleged, had its principal place of administration in Franklin County. Ayers asserted that “[njeither the original nor any copy of the document creating the [trust] remains in existence and no living person has personal knowledge of the complete contents of the original trust document, including any knowledge of putative beneficiaries or a purpose for the existence of the trust.” Ayers requested the trial court to issue an order terminating the trust and directing that the assets of the trust be paid into the estate for distribution among James’s heirs in accordance with Alabama’s intestacy statutes. Although Ayers asserted in his petition that he was seeking the termination of the trust, we interpret his petition as seeking a declaration that no valid trust exists.

Carol Clark and Robert J. Cleveland filed an answer to the petition, denying the allegations therein, on July 15, 2011. Also on July 15, 2011, Carol and Robert filed a motion to dismiss, asserting that the document creating the trust had been located after Ayers had filed his petition. Carol and Robert also asserted in their motion to dismiss that the assets held by the trust are not assets of the estate but are to be distributed pursuant to the trust, that Ayers is not a real party in interest and does not have standing, and, thus, that the trial court lacked subject-matter jurisdiction. Carol and Robert filed a brief in support of their motion to dismiss; attached to that brief is a copy of a document dated November 20, 1991, entitled “Love Agreement.” Ayers filed a response to the motion to dismiss, asserting that the document submitted by Carol and Robert was not the trust document that established the trust.

On November 30, 2011, the trial court entered an order granting Carol and Robert’s motion to dismiss. That order stated: “MOTION TO DISMISS PURSUANT TO RULE 12(B)[, Ala. R. Civ. P.,] filed by [Carol Clark] and [Robert J. Cleveland] is hereby GRANTED. Court lacks jurisdiction. Case is dismissed.” (Capitalization in original.) Ayers filed a motion to alter, amend, or vacate the trial court’s judgment on December 29, 2011; that motion was denied on January 12, 2012. Ayers filed his notice of appeal to this court on February 22, 2012. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court subsequently transferred the appeal back to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Ayers argues on appeal that the trial court erred in dismissing his petition based on lack of subject-matter jurisdiction. Each of Ayers’s arguments on appeal tending to show that the trial court has jurisdiction to hear this action are based on Ayers’s continued assertion that the “Love Agreement” is not the document that created the trust.

In Smith v. Neil, 20 So.3d 1271, 1273 (Ala.2009), Smith filed a complaint against Neil and other defendants, alleging a number of claims stemming from Neil’s purported failure to transfer an ownership interest in a company to Smith. Smith, both in her individual capacity and on behalf of the company, filed the complaint against, among others, Neil and the current owner of the company. Neil and the current owner of the company filed motions to dismiss alleging that Smith lacked standing to sue on behalf of the company because she did not own the company and that the claims asserted in her individual capacity against the current owner were based on the premise that Smith owned the company, which, they asserted, she did not. 20 So.3d at 1274. In affirming the trial court’s dismissal of Smith’s claims on behalf of the company and her claims against the current owner, the supreme court stated, in pertinent part:

“In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bent-brooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.” ’
“ ‘878 So.2d at 1148-49.’

“Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). See also Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007).

“III. Analysis

“[The current owner of the company] postures her challenge to Smith’s complaint under Rule 12(b)(1), Ala. R. Civ. P., as a factual challenge rather than a facial challenge. This Court recently discussed the difference between a facial challenge and a factual challenge in Ex parte Safeway Insurance Co. of Alabama, Inc., 990 So.2d 344 (Ala.2008). Quoting Lindsey v. United States, 448 F.Supp.2d 37, 42-43 (D.D.C.2006), this Court explained:

“ ‘ “Once a defendant has moved to dismiss a case pursuant to Rule 12(b)(1), ‘the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.’ Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) .... ‘The [C]ourt, in turn, has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.’ Abu Ali v. Gonzales, 387 F.Supp.2d 16, 17 (D.D.C. 2005) (internal quotations omitted).
“ ‘ “Facial challenges, such as motions to dismiss for lack of standing at the pleading stage, ‘attack[ ] the factual allegations of the complaint that are contained on the face of the complaint.’ Al-Owhali [v. Ashcroft ], 279 F.Supp.2d [13,] 20 [ (D.D.C.2003) ] (internal quotation marks and citation omitted). ‘If a defendant mounts a “facial” challenge to the legal sufficiency of the plaintiffs jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party.’ Erby, 424 F.Supp.2d at 181-The court may look beyond the allegations contained in the complaint to decide a facial challenge, ‘as long as it still accepts the factual allegations in the complaint as true.’ Abu Ali, 387 F.Supp.2d at 18 ....
“ ‘ “Factual challenges, by contrast, are ‘addressed to the underlying facts contained in the complaint.’ Al-Owhali, 279 F.Supp.2d at 20.... [A] court deciding a Rule 12(b)(1) motion asserting a factual challenge ‘must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.’ [Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000).]” ’
“Safeway, 990 So.2d at 349-50. In Safeway, this Court concluded that the complaint was facially sufficient, and it reviewed the defendant’s factual challenge to the trial court’s subject-matter jurisdiction.”

20 So.3d at 1274-75 (footnote omitted).

In their brief on appeal, Carol and Robert state in the section entitled “Summary of the Argument,” in pertinent part:

“It is the responsibility of the Trustees of the Trust, Carol Clark and Robert J. Cleveland, to enforce the provisions of the agreement and only if a Court determines the ‘Love Agreement’ is not the same document referenced as the James L. Cleveland Living Trust by Edward Jones would the assets of the Trust possibly pass through the Estate.”

It is clear that Carol and Robert’s argument that Ayers did not have standing to bring the action and, thus, that the trial court lacked subject-matter jurisdiction, both before the trial court and on appeal, turns on whether the “Love Agreement” is the document that created the trust. Because the trial court granted Carol and Robert’s motion to dismiss based on lack of jurisdiction, it is clear that the trial court interpreted Carol and Robert’s assertion that the “Love Agreement” created the trust as a factual challenge, which it apparently resolved in favor of Carol and Robert.

In response to Carol and Robert’s motion to dismiss, Ayers filed a response that stated, in pertinent part:

“1. [Ayers] plans to present evidence in this case that the document procured by [Carol and Robert], titled ‘Love Agreement’ and dated both November 20, 1991, and May 15, 1990, did not establish the James Cleveland Living Trust.
“2. [Ayers] will provide testimony from the appropriate authorities at every financial institution that holds funds on behalf of the James Cleveland Living Trust to the effect that the James Cleveland Living Trust was created by a trust document dated on or about July 11, 1990, titled ‘The James Cleveland Living Trust.’
“3. Because the ‘Love Agreement’ provided by the Defendants did not establish the James Cleveland Living Trust and no document creating said trust has been located to this date, [Ayers] believes the appropriate remedy remains to dissolve said trust and place the funds into the estate of James Le-born Cleveland. As the Administrator of the Estate of James Leborn Cleveland, [Ayers] is a real party in interest, has standing before this Court, and this Court thus retains subject matter jurisdiction over this cause.”

When Carol and Robert filed their motion to dismiss, they challenged the factual assertion on the face of Ayers’s petition that no copy of the document creating the trust was in existence. We interpret Ayers’s petition, however, as initiating an action requesting the trial court to declare, based on the lack of a trust document, that no trust ever existed. Ayers’s standing to request such a declaration stems from his fiduciary capacity as the administrator of James’s estate. See generally Ex parte Byrom, 47 So.3d 791 (Ala.2010), and § 19-3B-103(10), Ala.Code 1975 (including an “estate” in the definition of a “person” for purposes of the Alabama Uniform Trust Code, AIa.Code 1975, § 19-3B-101 et seq.). Because Ayers is the administrator of James’s estate, he is a fiduciary “under a duty to settle and distribute the estate of the decedent ... as expeditiously and efficiently as is consistent with the best interests of the estate.” § 43-2-833(a), Ala. Code 1975. Carol and Robert’s assertion that the “Love Agreement” is the trust document does not attack Ayers’s standing as the administrator of the estate to challenge either the validity of the trust itself or Carol and Robert’s assertion that the “Love Agreement” is the document creating the trust. Rather, it merely illustrates that there remains a genuine issue of material fact as to whether the “Love Agreement” is the document that created the trust and, regardless of whether the trial court concludes that it did, whether that trust is valid. Thus, the trial court erred by interpreting Carol and Robert’s motion to dismiss as a factual challenge to Ayers’s standing. We conclude, therefore, that the trial court erred in granting Carol and Robert’s motion to dismiss, and we remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Although Essie V. Cleveland was served as a defendant, she failed to file an answer to Ayers's petition. Because the trial court ultimately dismissed the petition for lack of subject-matter jurisdiction, we conclude that that judgment disposed of Ayers’s claims against all the named defendants.