author: MAXWELL, J., RUSSELL, J.,

text:
    Eddie J. COTTON, Appellant v. Fannie B. COTTON, Appellee.
    No. 2011-CA-01709-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Christian T. Goeldner, Southaven, attorney for appellant.
    Leslie B. Shumake Jr., Olive Branch, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. In 2010, this court affirmed a judgment awarding Fannie Cotton forty percent of Eddie Cotton’s retirement based on his employment at Solae LLC during their void marriage. In this appeal, Eddie argues that the chancery court’s order— which clarified that the affirmed judgment included an award to Fannie of forty percent of Eddie’s retirement account with Baker and Confectionary Union (B & CU), an account he has not denied was based on his employment with Solae LLC — improperly changed the judgment in violation of our rules of civil procedure.

¶ 2. But such clarification was necessary because Eddie neither listed the B & CU account on his Rule 8.05 financial declaration form nor' informed the chancery court of the name of his retirement account. We therefore find no abuse of discretion in the chancery court’s order and affirm.

Background

¶ 3. In the previous appeal, this court acknowledged that Eddie had failed to list any retirement account or pension on his Rule 8.05 financial declaration form. Cotton v. Cotton, 44 So.3d 371, 378 (¶ 20) (Miss.Ct.App.2010); see UCCR 8.05 (requiring in all domestic matters involving property disputes that each party provide a detailed written disclosure of his or her financial status, specifically including retirement accounts). Until Eddie testified at trial, the chancellor was unaware that Eddie had accrued retirement income based on his employment with Solae LLC. Based on Eddie’s testimony, the court’s final decree “awarded forty percent of the Retirement of [Eddie] accumulated in the Solae, LLC, retirement account.” Because Eddie had failed to provide specific details about his retirement, we found no error in the general award to Fannie of forty percent of Eddie’s retirement. Cotton, 44 So.3d at 378 (¶ 21).

¶ 4. The present appeal arises from Fannie’s attempt to execute the judgment we affirmed. She attempted to do so by using a qualified domestic relations order (QDRO) to divide Eddie’s retirement account with B & CU. When B & CU rejected her QDRO on the basis she had not been awarded a portion of the account, Fannie filed a motion for interpretation with the chancery court, asking the court to specify that the property award included forty percent of the B & CU retirement account.

¶ 5. The chancellor granted the motion and entered an order interpreting the pri- or judgment. This order explained: (1) the prior judgment had not specifically mentioned Eddie’s retirement account with B & CU because the only detail Eddie had provided about his retirement was that it was connected with his employment with Solae LLC; and (2) through the prior judgment, the court had intended to award Fannie forty percent of any retirement account or pension Eddie had. Thus, the court ordered that Fannie was entitled to forty percent of Eddie’s B & CU retirement account.

¶ 6. Eddie appealed this order.

Standard of Review

¶ 7. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters[.]” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor’s factual findings unless the chancellor was manifestly wrong or clearly erroneous or applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). But when reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

Discussion

¶ 8. We have already found no abuse of discretion in the chancery court’s judgment awarding Fannie forty percent of Eddie’s retirement income. Cotton, 44 So.3d at 378 (¶ 21). While Eddie argues the Mississippi Rules of Civil Procedure provide no mechanism for changing the judgment, we find nothing in the chancellor’s order interpreting the judgment that changes or contradicts the judgment we affirmed. Instead, the order merely clarified the scope of the judgment so that Fannie could execute a QDRO on the B & CU account.

¶ 9. Such clarification was necessary because Eddie failed to identify, either on his Rule 8.05 financial declaration form or at trial, the name of his pension-fund manager. At trial, Eddie testified that he had worked for Solae LLC and that he received retirement income based on that employment. But he was unable to give any further details about his retirement account, in particular what entity managed his retirement account. When it was brought to the chancery court’s attention that Eddie’s retirement was managed by B & CU, the chancery court clarified that the B & CU retirement account was the Solae LLC retirement account, of which Fannie had been awarded forty percent. Quite telling is the fact that Eddie has not argued the B & CU retirement account has nothing to do with his employment with Solae LLC, but instead has argued various procedural rules prohibit Fannie from collecting her property award.

¶ 10. In clarifying that the prior judgment included the B & CU account, the chancery court neither exceeded its authority nor abused its discretion. Because we find the order is neither an improper reconsideration nor an alteration of the prior judgment, we affirm.

¶ 11. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND FAIR, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND ROBERTS, J.

RUSSELL, J.,

dissenting:

¶ 12. The majority finds that the chancery court’s order interpreting its prior judgment was necessary for purposes of clarifying the judgment. I find that no interpretation was needed, as the prior judgment was valid and clear on its face. The chancery court’s order is unauthorized under the Mississippi Rules of Civil Procedure; and, amending the prior judgment to add an additional retirement account was an abuse of discretion. For these reasons, I respectfully dissent.

DISCUSSION

¶ 13. I am compelled to address several of the majority’s factual statements that are unsupported by the record in this case. The majority states that Eddie neither listed the B & CU retirement account on his Uniform Chancery Court Rule 8.05 financial disclosure statement nor informed the chancery court of the account. However, the record shows that during trial, Eddie disclosed all information about his retirement and pension of which he was aware. Eddie also testified that he submitted to his lawyer all of his financial information, including all known information about his pension. In addition, the majority seems to ignore the fact that neither Eddie nor Fannie have submitted a Rule 8.05 financial disclosure statement to this Court for our review in this appeal or the previous one. This is imperative considering that the contents of Eddie’s Rule 8.05 statement, which we do not have, are relied on so heavily by the majority in affirming the chancery court’s order. During trial, Eddie testified that the only information regarding his pension of which he was aware was that he received two checks from the pension every month; one for $200, and the other for $1,700. Eddie stated multiple times that he had no access to his pension account, and was unaware of its total cash value. The following colloquy between Eddie and the plaintiffs counsel occurred during the original hearing before the chancellor:

COUNSEL: Did you provide your attorney with information about your pension plan?
EDDIE: Yes. Yes.
COUNSEL: Do you understand that you are requested in discovery to tender any documents specifically regarding that pension plan?
EDDIE: Well, I didn’t have knowledge of the account of the plan at the time.
COUNSEL: Do you have it now?
EDDIE: No.
COUNSEL: Are you telling this Court under oath that you don’t have any idea [of] what’s in your pension?
EDDIE: Yes, sir.
COUNSEL: And you expect this Court to believe you?
EDDIE: Well ... I don’t have access to ... my pension[.] I don’t know what’s in that pension. All I know is what I get a month.
EDDIE: I don’t have the ... exact figures of what the pension has. I don’t know. They send me a check. I get a $200.00 check. I get a $1,700.00 check.

¶ 14. The majority also relies on our prior judgment from Eddie’s previous appeal. See Cotton v. Cotton, 44 So.3d 371, 378 (¶¶ 20-23) (Miss.Ct.App.2010) (affirming the judgment of the chancery court awarding Fannie a forty percent interest in Eddie’s Solae LLC retirement account). The majority contends that in the previous appeal, we found no error in the general award to Fannie of forty percent of Eddie’s retirement. However, we affirmed the judgment concerning a specific award, not a general award to include any retirement later disputed. The award specifically listed Solae as the only retirement account of which Fannie was granted forty percent interest. The record indicates that the order interpreting the prior judgment was drafted by Fannie’s lawyer. Therefore, Fannie had the opportunity to request an interest in any retirement acquired by Eddie, but the record shows that she did not.

¶ 15. Even more troubling is the evidence in the record indicating that Fannie knew about the B & CU retirement account prior to the annulment and had previously executed a waiver of any interest in the account. This matter was not addressed by the majority or the chancellor. I find that expanding the scope of the award so broadly to include any and all property that may subsequently come into question without first determining its value, and whether it is in fact marital property subject to equitable distribution, is error.

¶ 16. “There are only three ways to reopen, amend and/or alter a final judgment entered by a court of competent jurisdiction.” Adcock v. Van Norman, 917 So.2d 86, 89 (¶ 9) (Miss.2005).

First, [a party] may file an appeal to the [Mississippi] Supreme Court.... The Mississippi Rules of Civil Procedure provide the other two procedures under which a judgment may be altered: (1) under Rule 59(e), a party may [file] a motion to alter or amend a judgment; and (2) under Rule 60, a litigant may receive relief from a judgment if one of the following is shown: a clerical mistake; fraud, misrepresentation or other misconduct; accident or mistake; newly discovered evidence; void judgment; discharge of judgement; or “any other reason justifying relief.”

Adcock, 917 So.2d at 89 (¶ 9) (citing M.R.C.P. 59, 60).

I. The chancery court’s order is unauthorized under the Mississippi Rules of Civil Procedure.

¶ 17. The majority finds that the chancery court’s order was neither an improper reconsideration nor an alteration of the prior judgment. I disagree. The relevant portion of the prior judgment states:

The Plaintiff ... is hereby awarded forty percent (40%) of the [retirement of the Defendant accumulated in the So-lae[] LLC[] retirement account.... [T]he attorneys for the parties are hereby directed to prepare any necessary paperwork, including a Qualified Domestic Relations Order, to effectuate the transfer of the said monies to the Plaintiff.

¶ 18. “[W]here the words of a its prior judgment are plain and unambiguous, the power thereby conferred cannot be extended beyond the plain meaning of the language used.” Howard v. McMurchy, 175 Miss. 328, 336, 166 So. 917, 919 (1936). Here, the chancellor amended the prior judgment by adding a retirement account that was not previously listed to be split between the parties. Nothing in the record suggests that such an amendment is authorized under the Rules. There is nothing unclear about the prior judgment that would warrant a declaratory judgment under Mississippi Rule of Civil Procedure 57. A declaratory judgment is proper where its entry will terminate any uncertainty or controversy giving rise to the proceeding. See M.R.C.P. 57(a). Here, there is no uncertainty or actual controversy that requires clarification. The chancellor cannot simply change her mind and make new findings.

¶ 19. The only other avenue through which such an amendment would be permitted under the Rules is if the chancellor had entered a Rule 60(b) order based on fraud. However, the order fails under this exception, as well. There was never a finding of fraud in the chancery court, nor was there ever a finding of fraud by this Court during the previous appeal. The majority states that the chancery court’s order amending its prior judgment was proper because Eddie failed to list any information regarding his retirement account or pension in his Rule 8.05 financial declaration form. However, without Eddie’s Rule 8.05 financial declaration form included in the record for our review, I feel that we cannot make such a determination. Further, I find that, without evi-dentiary support, this allegation cannot serve as justification for the chancellor’s alteration of a prior judgment.

II. The chancery court’s order was based on a procedurally barred motion.

¶ 20. It is well established that a motion to alter or amend a judgment must be filed no later than ten days after the entry of the judgment, and this ten-day period may not be extended under any circumstances. See M.R.C.P. 59(e). Fannie’s motion for interpretation of decree was filed on June 29, 2011, over three years after the final judgment was entered, and over one year after this Court affirmed that judgment. As discussed above, there are exceptions that permit a party, or the court on its own initiative, to seek or issue relief from a prior judgment notwithstanding the time requirement. Yet there is nothing in the record that shows where any of these exceptions are applicable. Thus, the chancery court’s order interpreting its prior decree was based on a procedurally barred motion.

¶ 21. I find that the chancery court abused its discretion in amending the prior judgment to add an additional retirement account. The final its prior judgment was valid and clear on its face, and needed no interpretation. Here, the chancellor arbitrarily changed her mind and added an additional retirement account that has yet to be accounted for to a its prior judgment that needed no interpretation or clarification. In addition, Fannie failed to identify any other reason to remove the time-bar to her motion. For these reasons, I would reverse and render the chancery court’s order.

IRVING, P.J., AND ROBERTS, J., JOIN THIS OPINION.

      . Cotton v. Cotton, 44 So.3d 371, 378 (¶¶ 20-23) (Miss.Ct.App.2010).

      . UCCR 8.05.

      . According to the letter B & CU sent Fannie, attached to Fannie’s motion for interpretation, B & CU also rejected the QDRO based on the mistaken belief that Fannie was not entitled to a portion of Eddie’s retirement because her marriage to Eddie had been found void. But see Cotton, 44 So.3d at 377 (¶¶ 16-17) (holding that a member of a knowingly bigamous marriage was not prevented from receiving an equitable distribution of the property acquired during the void marriage).

      . The majority contends that the B & CU and Solae LLC accounts are somehow the same account of which Fannie was awarded forty percent. However, the record does not show any correlation between the two retirement accounts. In fact, the order interpreting the prior judgment addresses the accounts separately. The record indicates that Fannie entered a qualified domestic relations order which B & CU refused to recognize, but she did not encounter the same issue with Solae LLC. Thus, based on the record, as well as the language in the chancellor’s order, the Solae and B & CU retirement accounts are controlled by two separate entities.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Dustin SILLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00500-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.

      Dustin Sills, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In May 2008, twenty-three-year-old Dustin Sills was driving a car that he had taken without the owner’s permission. Sills lost control of the car and struck a tree. Four of the seven passengers in the car were seriously injured. Fifteen-year-old Megan Bass was killed in the collision. Subsequent testing revealed that Sills’s blood-alcohol content was .10%.

¶ 2. Sills was indicted for DUI manslaughter and four counts of DUI mayhem. In April 2009, Sills pled guilty to DUI manslaughter and one count of DUI mayhem. The prosecution agreed that it would not pursue the other three DUI-mayhem charges in exchange for Sills’s guilty plea.

¶ 3. For DUI manslaughter, the Lawrence County Circuit Court sentenced Sills to twenty-five years in the custody of the Mississippi Department of Corrections. The circuit court sentenced Sills to a consecutive twenty-five-year sentence for DUI mayhem. Additionally, the circuit court suspended fifteen years of Sills’s sentence for DUI mayhem, effectively sentencing Sills to a combined thirty-five-year sentence for his DUI-manslaughter and DUI-mayhem convictions.

¶ 4. Sills filed a motion for post-conviction relief (PCR) and claimed that the circuit court erred when it set his sentence for DUI mayhem to run consecutively to his sentence for DUI manslaughter. The circuit court summarily dismissed Sills’s PCR motion. On appeal, Sills claims his convictions for DUI manslaughter and DUI mayhem violate the constitutional prohibition against double jeopardy. Finding no error, we affirm the circuit court’s decision to dismiss Sills’s PCR motion.

STANDARD OF REVIEW

¶ 5. “This Court will not disturb a trial court’s dismissal of a [motion] for post-conviction relief unless the trial court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App.2010).

ANALYSIS

¶ 6. Sills does not repeat his claim made in his PCR motion that the circuit court erred when it did not modify his sentence for DUI mayhem and set it to run concurrently with his sentence for DUI manslaughter. Instead, for the first time on appeal, Sills claims he was subjected to double jeopardy.

¶ 7. Sills did not raise his double-jeopardy argument in the circuit court. In Rowland v. State, 42 So.3d 503, 508 (¶ 13) (Miss.2010), the Mississippi Supreme Court overruled its earlier decisions holding that one may not raise a double-jeopardy argument for the first time on appeal. According to the supreme court, the prohibition against double jeopardy is a “fundamental right” that is not subject to a procedural bar. Id. at (¶ 14). Accordingly, we address Sills’s double-jeopardy claim.

¶ 8. According to Sills, because the DUI-manslaughter charge and the DUI-mayhem charge stem from the same incident, it was unconstitutional to convict him of both charges. “Double jeopardy allows a defendant to be protected against multiple punishments for the same offense.” Teston v. State, 44 So.3d 977, 985 (¶ 13) (Miss.Ct.App.2008) (citations omitted). “The same[-]elements test is used to determine whether ... double jeopardy attaches.” Id. “If the offenses contain the same elements, they are the ‘same offense[,]’ and double jeopardy bars additional punishment and successive prosecution.” Id.

¶ 9. Mississippi Code Annotated section 63-11-30(5) (Supp.2012) provides that:

Every person who operates any motor vehicle [while under the influence] and who[,] in a negligent mannerf,] causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement or other injury....

(Emphasis added). Section 63-11-30(5) plainly states that one is guilty of a separate felony for each death or injury caused. Furthermore, this Court has previously held that a defendant may be convicted for multiple offenses when that defendant drives under the influence and injures multiple people in a single collision. Teston, 44 So.3d at 986 (¶ 16).

¶ 10. Krystal Marie Teston was driving under the influence of hydrocodone when she hit a car occupied by five people. Id. at 983 (¶ 3). Three people died as a result of that collision and another person was severely injured. Id. Teston was later convicted of three counts of DUI manslaughter and one count of DUI mayhem. Id. at 985 (¶ 11). On appeal, Teston claimed that her four convictions were violations of her right to be free from double jeopardy. Id. at (¶ 12). This Court found that Teston had not been subjected to double jeopardy, because she had been convicted once for each death or injury that she caused while she was driving under the influence of hydrocodone. Id. at 986 (¶ 16).

¶ 11. As previously mentioned, Sills drove under the influence of alcohol and caused the death of one of the passengers in the car he was driving. Four other people in the car were seriously injured. Sills was convicted of one count of DUI manslaughter and one count of DUI mayhem. Section 63-11-30(5) clearly provides that Sills may be convicted for each death or injury that he caused. Sills was not subjected to double jeopardy. It follows that we find no merit to this issue.

¶ 12. THE JUDGMENT OF THE LAWRENCE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.


author: BOLIN, Justice.

text:
    Ex parte Carolyn Wilson FLOYD. (In re Estate of S.L. Wilson, Sr. v. Honorable Thomas ap R. Jones et al.).
    1111241.
    Supreme Court of Alabama.
    Sept. 21, 2012.

      Jeffrey H. Dial, Birmingham, for petitioner.
    Robert H. Turner, Sr., of Turner, Turner & Bryant, Marion, for respondents.
   BOLIN, Justice.

Carolyn Wilson Floyd petitions this Court for a writ of mandamus directing Judge Thomas ap R. Jones of the Hale Circuit Court to set aside his order denying her motion to dismiss the will contest filed by Carlean Wilson Wakefield on the ground that the action is barred by § 43-8-199, Ala.Code 1975, which provides that an action to contest a will must be filed within six months after the admission of the will to probate. We grant the petition.

I. Facts and Procedural History

S.L. Wilson, Sr. (sometimes hereinafter referred to as “the father”), a resident of Hale County, died on March 17, 2010. At the time of his death, Wilson was survived by his children: Floyd, Wakefield, S.L. Wilson, Jr., Luci Wilson Montgomery, Isaac Wilson, and Eddie Wilson. On July 5, 2010, Wakefield wrote a letter addressed to three Hale County judges (the circuit judge, the district-court judge, and the probate-court judge) expressing concerns regarding her father’s estate, inquiring if her father’s will had been admitted to probate, and implying that she was going to contest his will; Wakefield received no answer.

On February 2, 2011, Floyd, named by Wilson as the personal representative of Wilson’s estate, filed a petition in the Hale County Probate Court seeking to probate Wilson’s will. On March 10, 2011, Wake-field wrote a second letter addressed to Hale County Probate Judge Leland Avery informing him, among other things, that she “wish[ed] to contest the will and address this forum in circuit court.” (Emphasis added.) After a hearing, which Wakefield attended, the probate court on March 22, 2011, admitted the will to probate and issued letters testamentary to Floyd. On April 20, 2011, Wakefield wrote a third letter addressed to Floyd’s attorney, informing him that she was contesting the will because “it is believed to be fabricated to misrepresent the true intent of S.L. Wilson, Sr.[’s] inheritance to his heirs.”

On February 15, 2012, Wakefield filed in the Hale Circuit Court a “complaint contesting will,” and on February 16, 2012, she obtained an order removing the administration of her father’s estate from the probate court to the Hale Circuit Court. Floyd moved to dismiss the complaint filed in the circuit court on the ground that the circuit court lacked subject-matter jurisdiction because, she said, Wakefield had not filed her will contest within six months after the will was admitted to probate as required by § 43-8-199, Ala.Code 1975. Wakefield opposed the motion, claiming that she did not learn of the existence of the probate proceeding until February 12, 2011, but also claiming that her letters to the Hale County judges, to Judge Avery, and to Floyd’s lawyer were notice of her intent to contest the will and to seek removal of the administration of the estate and/or the will contest to the circuit court. Wakefield therefore claimed that her action contesting the will was timely under § 43-8-190, Ala.Code 1975 (will contest filed before will admitted to probate), § 43-8-198 (transfer of a will contest from probate court to circuit court), and § 43-8-199, Ala.Code 1975 (will contest filed after will admitted to probate). Wakefield further claimed that the six-month limit in § 43-8-199 is inapplicable because she alleged fraud pursuant to § 43-8-5, Ala. Code 1975, thereby, she says, tolling the limitations period of § 43-8-199. The circuit court denied Floyd’s motion to dismiss Wakefield’s will contest. Floyd then petitioned this Court for a writ of mandamus.

II. Standard of Review

A petition for a writ of mandamus is a proper means by which to review questions of subject-matter jurisdiction. Ex parte Punturo, 928 So.2d 1030 (Ala.2002).

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003).

In Newman v. Savas, 878 So.2d 1147, 1148-49 (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. Bentbrooke 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.”

III. Discussion

In her petition for a writ of mandamus, Floyd contends that the circuit court exceeded the scope of its authority by refusing to dismiss Wakefield’s will contest for lack of subject-matter jurisdiction because, she says, the contest was not filed within six months of the admission of the will to probate as required by § 43-8-199, Ala. Code 1975. Wakefield, on the other hand, claims that her July 5, 2010, letters to the judges of Hale County and her March 10, 2011, letter to Judge Avery constituted a contest of the will before it was admitted to probate, as provided in § 43-8-190. Specifically, she claims that her letters, which were dated before the will was admitted to probate, were notice of her intent to contest the will and to seek removal of the administration of her father’s estate and/or the will contest to the circuit court. In other words, Wakefield claims that her letters constitute adequate pleading and documentation of a will contest in the probate court.

Alabama law pertaining to will contests is well settled and long-standing:

“In Alabama a will may be contested in two ways: (1) under § 43-8-190, Code of Alabama 1975, before probate, a contest may be instituted in the probate court or (2) under § 43-8-199, Code of Alabama 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.”

Stevens v. Gary, 565 So.2d 73, 74 (Ala.1990).

Section 43-8-190 provides:

“A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the mil was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury.”

(Emphasis added.)

Section 43-8-199 provides for a will contest after a will has been admitted to probate, which must be brought in the circuit court. Section 43-8-199 provides:

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

Wakefield cites Ex parte Barrows, 892 So.2d 914, 918 (Ala.2004), for the proposition that her letters addressed to the Hale County judges and her letter to Judge Avery constituted adequate pleading and documentation for the filing of an initial will contest in the probate court. We disagree. In Ex parte Barrows, this Court held that the filing of the copy of a complaint previously filed in the probate court with the word “probate” marked out and the word “circuit” inserted in its place in the style and the filing of a circuit-court cover sheet constituted adequate pleading and documentation of the filing of a will contest in the circuit court. Specifically, this Court stated:

“Applying the law and the reasoning set forth in Dunning [v. New England Life Insurance Co., 890 So.2d 92 (Ala.2003) ], we must conclude that the filing of the copy of the complaint previously filed in the probate court with the word ‘probate’ marked out and the word ‘circuit’ inserted in its place in the style and the filing of a circuit court cover sheet constituted adequate pleading and documentation for the filing of the will contest in the circuit court. While the complaint appears to be a xeroxed copy of the complaint originally filed in the probate court, the complaint properly contains the name of the court, the title of the action, the file number, and the designation that it is a ‘complaint contesting will.’ See Rule 10, Ala. R. Civ. P. Additionally, applying the principle of law set forth in Dunning that a signature may be affixed in different ways, the attorney’s signature, although not original, properly certified the allegations in the complaint. See Rule 11, Ala. R. Civ. P. See also Dunning, supra (noting that Rule 11 does not provide the method by which a pleading is to be signed). Additionally, Shields Jr. properly filed a cover sheet pursuant to Rule 3(b), Ala. R. Civ. P. Lastly, the docket fee was timely filed.”

892 So.2d at 918.

Clearly, Ex parte Barrows is distinguishable from the present case. The contestant to the will in Ex parte Barrows “filed” an actual complaint, albeit not an original, containing the necessary allegations, with the circuit court as evidenced by the timely filing of the docket fee. Section 43-8-190 specifically states that “[a] will, before the probate thereof, may be contested ... by filing in the court where it is offered for probate allegations in writing....” Wakefield’s letters in the present case were not filed with the probate court; they were not stamped “filed” by the clerk of the probate court. Instead, they were merely letters addressed to and sent to the Hale County judges, including Judge Avery, expressing, for the most part, Wakefield’s general concerns about a family matter. The first letter, dated July 5, 2010, to the three judges was sent seven months before the petition to probate the will was filed, when no proceeding whatsoever was pending. The second letter, to Judge Avery, indicated that Wakefield wished to “address this forum in circuit court.” We note again that, after sending that letter, Wakefield appeared personally in the probate court on the day the probate court considered and granted Floyd’s petition to probate the will. Furthermore, the complaint in Ex parte Barrows contained, among other things, the name of the court, the title of the action, the file number, and the designation in the complaint that that action was a will contest. Wakefield’s letters to Judge Avery and to Floyd’s attorney in the present case contain scant characteristics of a complaint; they do not include the title of the action, the file number, or any designation that they were intended as a will contest. Instead, the wording of the letters can be interpreted as showing Wakefield’s position regarding the will, i.e., her “desire” to contest her father’s will. Accordingly, the letters did not constitute a properly drafted pleading and/or will contest filed in the probate court.

There being no further action taken by Wakefield concerning her purported attempt at a will contest in the probate court before the admission of the will to probate, there was simply an estate administration before the probate court. The only provision available to Wakefield for contesting the will after its admission to probate is § 48-8-199, Ala.Code 1975, which, as noted above, states: (Emphasis added.) Because jurisdiction in a will contest is conferred by statute, “§ 43-8-199 was enacted to provide an additional opportunity for contesting a will already admitted to probate.” Simpson v. Jones, 460 So.2d 1282, 1284-85 (Ala.1984).

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

In Simpson, this Court stated:

“Because will contest jurisdiction is statutorily conferred, proceedings under § 48-8-190 and § 43-8-199 must comply exactly with the terms of the applicable statute. ‘It is familiar law in Alabama, the only way to quicken into exercise a statutory and limited jurisdiction is by pursuing the mode prescribed by the statute.’ Ex parte Pearson, 241 Ala. 467, 469, 3 So.2d 5, 6 (1941). Section 43-8-199 mandates that, in order to commence a valid contest of a will already admitted to probate, a person with an interest in the will file a complaint in circuit court and ‘quicken’ that court’s jurisdiction of the contest.”

460 So.2d at 1284.

In the present case, the will was admitted to probate on March 22, 2011. Wake-field filed her “complaint contesting will” on February 15, 2012. Floyd moved to dismiss the will contest because it was filed well beyond the six-month time limitation prescribed in § 43-8-199. In her “opposition to motion to dismiss,” Wake-field argues that the time in which to file the will contest was tolled by the application of § 43-8-5, Ala.Code 1975, which provides:

“Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefítting from the fraud, whether innocent or not. Any proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of the commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.”

“Section 43-8-5, Ala.Code 1975, was enacted in 1982, and it extends, under limited circumstances, the time for filing an action relating to the fraudulent administration of an estate.” Holway v. Wanschek, 690 So.2d 429, 433 (Ala.Civ.App.1997). Section 43-8-5 states, in part, that “[a]ny proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered.” In Christian v. Murray, 915 So.2d 23 (Ala.2005), this Court concluded that “the Legislature intended that the fraud necessary to toll the time for filing a will contest must be that kind of fraud that would allow relief for ‘fraud on a court.’ ” 915 So.2d at 28. In Waters v. Jolly, 582 So.2d 1048, 1055 (Ala.1991), this Court defined “fraud on the court” as

“that species of fraud that defiles or attempts to defile the court itself or that is a fraud perpetrated by an officer of the court, and it does not include fraud among the parties, without more.”

(Citing Brown v. Kingsberry Mortg. Co., 349 So.2d 564 (Ala.1977), and Spindlow v. Spindlow, 512 So.2d 918 (Ala.Civ.App.1987).)

In other words, the tolling provision of § 43-8-5 applies when a contestant of a will shows that the proponent of the will has engaged in fraud in connection with the administration of the estate; that Code section “has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.” § 43-8-5, Ala.Code 1975. See, e.g. In re Estate of Hudson, 887 So.2d 923 (Ala.Civ.App.2004)(during administration of estate, attorney for estate misrepresented amount of outstanding mortgage indebtedness on property); Hol-way, supra (during time from admission of will to probate until complaint was filed in the will contest, proponents concealed the fact that testator’s son was not named as a beneficiary of his mother’s estate); Burch v. Burgess, 521 So.2d 921 (Ala.1988)(son failed to contest the probate of his mother’s will because the executrix and sole beneficiary had told the son that the mother had died without assets and that he need not go to the probate court); Vandegrift v. Lagrone, 477 So.2d 292 (Ala.1985) (limitations period for filing petition to probate will tolled as result of proponent’s father’s fraudulent concealment of existence of proponent’s grandfather’s will); and Fuller v. Qualls, 241 Ala. 673, 4 So.2d 418 (1941)(limitations period for filing petition to probate will tolled when existence of testator’s will was fraudulently concealed from proponent).

The allegations in Wakefield’s February 15, 2012, “complaint contesting will” govern this Court’s ruling on Floyd’s motion to dismiss. The complaint alleges the following:

“[Wakefield] would be an heir of the decedent...
“[Wakefield] avers that the said will was not executed in the mode and manner prescribed by law.
“2. [Wakefield] avers that the decedent was of unsound mind and mentally incompetent and did not possess testamentary capacity to make and execute a will on the 15th day of October, 2009.
“3. [Wakefield] avers that the will ... was procured through undue influence exercised upon the decedent by one (or more) of the distributes of the estate of said decedent as set forth in said contested will, and
“4. That a distributee of the estate was in a confidential relationship with the decedent. That said distributee was dominant and controlling in this relationship and exercised undue activity in procuring the execution of the will being contested. Furthermore, that the decedent was infirm and incompetent. That as a result of this undue influence and while in this condition and relationship the decedent executed the will being contested. That the decedent was persuaded to sign the purported will by a beneficiary of the contested will, and such will, because of this undue influence is not the true last will and testament of the deceased.
‘WHEREFORE, [Wakefield] prays that this Court will set his matter for a hearing and that the issues involved herein will be made up and tried in this Court to determine whether the said will is the true Last Will and Testament of the said decedent....”

The allegations in Wakefield’s complaint are nothing more than generalized assertions of grounds for a will contest, i.e., lack of due execution of the will, lack of testamentary capacity of the testator, and undue influence in procuring the execution of the will during Wilson’s lifetime. These allegations neither relate to fraud in connection with the administration of Wilson’s estate nor, more particularly, equate to fraud upon the court. It is undisputed that Wilson’s will was admitted to probate on March 22, 2011, and that Wakefield’s contest in the circuit court was filed on February 15, 2012, almost 10 months later. Accordingly, the tolling provisions of § 43-8-5 do not apply, because they were not alleged or embraced in Wakefield’s complaint.

IV. Conclusion

Based on the foregoing, Floyd properly invoked the jurisdiction of this Court, and she has shown a clear legal right to the dismissal of the will contest because the circuit court lacked jurisdiction over the contest. Accordingly, the petition for a writ of mandamus is granted and the circuit court is directed to grant Floyd’s motion to dismiss Wakefield’s will contest.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, MURDOCK, and MAIN, JJ„ concur.


author: MALONE, Chief Justice. WISE, Justice

text:
    Ex parte Gregory Lenard WEAVER. (In re Gregory Lenard Weaver v. State of Alabama).
    1111146.
    Supreme Court of Alabama.
    Sept. 21, 2012.
    Arthur R. Medley, Dothan, for petitioner.
   MALONE, Chief Justice.

WRIT DENIED. NO OPINION.

WOODALL, STUART, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

MURDOCK and WISE, JJ., dissent.

WISE, Justice

(dissenting).

For the reasons set forth, while I was serving as the presiding judge on the Alabama Court of Criminal Appeals, in my dissent in Sykes v. State, 25 So.3d 485, 485 (Ala.Crim.App.2009), and in Presiding Judge Baschab’s dissent in Gargis v. State, 998 So.2d 1092, 1100 (Ala.Crim.App.2007), which I joined, I respectfully dissent from the denial of certiorari review in this case.


author: BRYAN, Judge.

text:
    Diana MASSEY v. Janet WOMACK et al.
    2110422.
    Court of Civil Appeals of Alabama.
    Sept. 7, 2012.

      Sabrina L. Comer and Amy D. Gundlach of Comer & Gundlach, PLLC, Montgomery; and H. Thomas Heflin, Jr., of Ashe, Heflin & Wright, P.C., Tuscumbia, for appellant.
    J.R. Brooks and Taylor P. Brooks of Lanier Ford Shaver & Payne P.C., Huntsville, for appellees.
   BRYAN, Judge.

Diana Massey appeals from a summary judgment in favor of the Florence City Board of Education (“the board”), the individual members of the board (“the board members”), in their official capacities, and the superintendent of the board (“the superintendent”), in her official capacity. We affirm.

Effective March 10, 2004, the board employed Massey, who is a registered nurse, for the position of “Head Start Health and Data Entry Coordinator” at the Handy Head Start Family Service Center (“Handy Head Start”). On August 10, 2010, the board transferred Massey to the position of “Registered Nurse” at Weeden Elementary School.

While she was employed as Head Start Health and Data Entry Coordinator at Handy Head Start, Massey was paid the salary specified for that position on the board’s salary schedule for its Head Start and Early Head Start staff. Since being transferred to the position of Registered Nurse at Weeden Elementary School on August 10, 2010, Massey has been paid the salary specified for the position of Registered Nurse on the board’s salary schedule for its employees at schools that serve children in kindergarten and grades 1 through 12 (“the K-12 salary schedule”).

The annual education budget acts for fiscal years 2007-2008, 2008-2009, 2009-2010, and 2010-2011 contained minimum-salary schedules for school nurses (“the minimum-salary schedules”). The salary Massey was paid while she was Head Start Health and Data Entry Coordinator at Handy Head Start was lower than both the salary specified by the minimum-salary schedules for a school nurse with experience comparable to Massey’s and the salary specified by the K-12 salary schedule for a Registered Nurse with experience comparable to Massey’s.

On March 8, 2009, Massey sued the board, the board members, and the superintendent, claiming that, beginning with fiscal year 2007-2008, the board should have paid her for her service as Head Start Health and Data Entry Coordinator at Handy Head Start either the salary specified for a school nurse with experience comparable to Massey’s on the minimum-salary schedules or the salary specified for a Registered Nurse with experience comparable to Massey’s on the K-12 salary schedule. Massey stated a breach-of-contract claim seeking compensatory damages, costs, and an attorney fee. In addition, she stated a claim seeking a judgment declaring that she was entitled to back pay and benefits (“the claimed back pay and benefits”) in an amount equal to the difference between the salary and benefits she would have received if she had been paid in accordance with the minimum-salary schedules or the K-12 salary schedule while she served as the Head Start Health and Data Entry Coordinator at Handy Head Start and the salary and benefits she actually received for that service. She also stated claims seeking a writ of mandamus and an injunction compelling the board, the board members, and the superintendent to pay her the claimed back pay and benefits.

Answering, the board, the board members, and the superintendent denied that Massey was entitled to be paid in accordance with either the minimum-salary schedules or the K-12 salary schedule while she served as the Head Start Health and Data Entry Coordinator at Handy Head Start, denied that she was entitled to the claimed back pay or benefits, and asserted that Article I, § 14, Alabama Constitution of 1901 (“ § 14”), barred Massey’s claims.

On September 15, 2011, the parties filed cross-motions for a summary judgment and supporting evidence. Following a hearing, the trial court, on November 9, 2011, entered a judgment denying the summary-judgment motion filed by Massey and granting the summary-judgment motion filed by the board, the board members, and the superintendent.

Massey timely filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion, which the trial court denied. Massey then timely appealed to this court.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Onee a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co.[ v. DPF Architects, P.C.], 792 So.2d [369] at 372 [(Ala.2000)] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Initially, we note that Massey conceded in the trial court and concedes in her reply brief to this court that § 14 bars all her claims against the board. Therefore, we affirm the summary judgment with respect to the board. Moreover, Massey concedes in her reply brief to this court that § 14 bars all her claims against the superintendent. Therefore, we affirm the summary judgment with respect to the superintendent.

Although Massey argues that § 14 does not bar her claims against the board members insofar as her claims seek to compel the board members to pay her the claimed back pay and benefits, she has not argued that § 14 does not bar her claims insofar as they seek other forms of relief against the board members. “When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). Therefore, we affirm the summary judgment in favor of the board members insofar as Massey’s claims seek any form of relief other than a writ of mandamus or an injunction compelling the board members to pay her the claimed back pay and benefits.

In Ex parte Bessemer Board of Education, 68 So.3d 782, 790-91 (Ala.2011), the supreme court held that § 14 did not bar a claim against the members of the Bessemer Board of Education in their official capacities seeking to compel them to pay an employee of the Bessemer Board of Education the appropriate pay increase she was due under a statute because the members of the Bessemer Board of Education had a legal duty to pay her the appropriate pay increase and, therefore, the payment of the appropriate pay increase she was due under the statute was a ministerial act. In the present case, if Massey was entitled to be paid in accordance with either the minimum-salary schedules or the K-12 salary schedule while she was Head Start Health and Data Entry Coordinator at Handy Head Start, the board would have a legal duty to pay her the claimed back pay and benefits and, therefore, the payment of the claimed back pay and benefits by the board members would be a ministerial act. Id. Accordingly, we conclude that § 14 does not bar Massey’s claims insofar as they seek to compel the board members to pay her the claimed back pay and benefits, and, therefore, we will consider the merits of Massey’s argument regarding those claims.

Massey argues that, beginning with the 2007-2008 fiscal year, she was entitled to be paid at least the salary specified on the minimum-salary schedules for a school nurse with experience comparable to hers while she served as the Head Start Health and Data Entry Coordinator at Handy Head Start because, she says, she was an employee of the board, she was a nurse, and Handy Head Start is a school and, therefore, she was a school nurse. The board members agree that Massey was an employee of the board while she served as Head Start Health and Data Entry Coordinator at Handy Head Start; however, they assert that she was not entitled to be paid in accordance with the minimum-salary schedules or the K-12 salary schedule while she served in that position because she was not serving as a “school nurse” as that term is used in the pertinent sections of the Code.

Before April 21, 2009, § 16-22-16, Ala. Code 1975, provided, in pertinent part:

“(a) The State Board of Education shall require the employment of registered nurses in each local school system. ...
“(e) There shall be a minimum statewide salary schedule for school nurses which shall be included in the annual budget act for the public schools.
“(f) The amounts necessary to meet the requirements of this section shall be appropriated in the annual budget act for the public schools.”

(Emphasis added.)

Effective April 21, 2009, § 16-22-16 was amended. As amended, § 16-22-16 now provides, in pertinent part:

“(a) The State Department of Education ... shall require the employment of school nurses in each local school system.
“(f) At a minimum, all school nurses shall be paid according to the statewide salary schedule for school nurses which shall be included in the annual budget act for the public schools.
“(g) The amounts necessary to meet the requirements of this section shall be appropriated in the annual budget act for the public schools....”

(Emphasis added.)

Section 16-11-16, Ala.Code 1975, provides:

“(a) The city board of education shall have power to establish and maintain a system of public schools including kindergartens and playgrounds for the benefit of children who are bona fide residents of and living within the corporate limits of such city.
“(b) Such children who are six years of age and less than 19 years of age on the date school opens shall be entitled to admission to the elementary, junior and senior high schools.
“(c) If a kindergarten is established and maintained, children from five to eight years of age may be admitted on such terms and conditions as the city board of education may prescribe.”

(Emphasis added.)

In support of their summary-judgment motion, the board members filed, among other things, an affidavit signed by Dr. Kendy Behrends. In pertinent part, that affidavit states:

“2. I was the Superintendent of the Florence City Board of Education (‘the Board’) from January 2001 through June 2010. Prior to becoming Superintendent, I was employed by the Board as an Assistant Superintendent from 1999 to January 2001. Prior to becoming Assistant Superintendent, I was employed by the Board as Federal Programs Coordinator from 1993 to 1999.
“4. Through my service for the Board as Federal Programs Coordinator, Assistant Superintendent, and Superintendent, I became knowledgeable about the Early Head Start and Head Start programs.
“6. Head Start is a federally funded program designed to assist underprivileged 3 and J year old children and their families with academic preparedness before the children begin school. Early Head Start is a federally funded program where employees go to the homes of eligible children ages 0-3 and provide services similar to those in the Head Start program.
“7. Head Start and Early Head Start are administered by the Department of Health and Human Services. The Department of Health and Human Services issues grants to local agencies to administer the Head Start and Early Head Start programs locally. The Department of Health and Human Services issues regulations which govern the Head Start and Early Head Start programs. For instance, these regulations require that decisions affecting a local Head Start or Early Head Start program be approved by a Policy Council which is comprised of parents and community leaders.
“8. Head Start and Early Head Start are not Kindergarten through twelfth grade (‘K-12’) programs required by the State of Alabama. Head Start and Early Head Start are not governed or funded by the State Board of Education. Rather, Head Start and Early Head Start are funded by a grant from the [Department ofl Heath and Human Services. The Head Start and Early Head Start programs follow regulations promulgated by the [Department of] Health and Human Services in concert with its Atlanta office.
“9. The duties of the employees in the Head Start and Early Head Start programs are dictated by these federal regulations.
“10. Prior to 1997, the Community Action Agency of Northwest Alabama (‘Community Action Agency’) administered the Head Start grant. During this time, the Board allowed Community Action Agency to use the Handy Head Start Center for the Head Start program.
“11. After the Board received the Head Start grant, it continued to administer the Head Start program at the Handy Head Start Center. However, there are a few Head Start classes in the buildings which also contain Weeden Elementary School and Harlan Elementary School.
“12. While the Board’s K-12 schools only serve the children in the city of Florence, the Head Start and Early Head Start programs serve approximately 280 eligible children, ages 0-4, in Lauderdale County.
“18. Other than three instructors who receive a supplement from the Office of School Readiness[] (‘OSR’), the instructors in the Early Head Start and the Head Start programs are not required to be certified by the State. Teachers in K-12 must be certified by the State.
“14. Head Start and Early Head Start programs are governed differently than K-12. Head Start and Early Head Start are governed in accordance with [Department ofl Health and Human Services regulations and decisions must be approved by a Policy Council. Head Start and Early Head Start are not governed by the State Department of Education. K-12 schools, on the other hand, are regulated by the Alabama State Department of Education.
“15. As Head Start Health and Data Entry Coordinator, Diana Massey’s job performance was reviewed pursuant to a Monitoring and Protocol Guide developed by the Department of Health and Human Services. The Monitoring and Protocol Guide is based on federal regulations and standards which govern the Head Start program.... ”

(Emphasis added.)

The board members also filed an affidavit signed by Dr. Janet Womack, who has been the superintendent since July 1, 2010, in support of their summary-judgment motion. In pertinent part that affidavit states:

“6. The Board owns and operates 7 schools. It operates three elementary schools, Forest Hills Elementary, Wee-den Elementary and Harlan Elementary. The Board has two middle schools, Florence Middle School and Hibbett Middle School. The Board also operates the Florence Freshman Center and Florence High School.
“7. The Board also owns the Handy Head Start Family Service Center (‘Handy Head Start Center’). The Handy Head Start Center was an elementary school until 1972. Now, it is a family service center which houses the Lauderdale County Head Start and Early Head Start programs.
“8. The Board receives grants from the United States Department of Health and Human Services to administer the Early Head Start and Head Start programs to the children of Lauderdale County.
9. The Head Start program is not a Kindergarten through twelfth grade (‘K-12) program required by the State of Alabama. Head Start is not governed or funded by the State Board of Education. Rather, Head Start is funded by a grant from the [Department of] Heath and Human Services. The Head Start program follows regulations promulgated by the Department of Health and Human Services.”

(Emphasis added.)

In opposition to the board members’ summary-judgment motion, Massey filed, among other things, an affidavit signed by her. In pertinent part, that affidavit states:

“16. Handy Head Start serves Head Start children who are Pre-KJHead Start. In addition, Head Start children with special needs and Florence City children that do not qualify for Head Start and are not age appropriate for the school system are served. The State[ Office of School Readiness] children are also at Handy School. Non-Head Start children are referred to as ‘community children.’ While at Handy I was called upon and required to treat ‘community children,’ [Office of School Readiness] students and children with special needs who are not eligible for Head Start.”

(Emphasis added.)

The plain language of § 16-22-16 requires the employment of school nurses in local public-school systems and provides that “amounts necessary to meet the requirements of this section shall be appropriated in the annual budget act for the public schools.” Section 16-11-16 grants the board authority to establish and maintain a system of public schools that serve children in kindergarten and in grades 1 through 12 (“K-12”). It is undisputed that all the children served by Handy Head Start are under the age of 5, which is the minimum age for a child to enter kindergarten, see § 16 — 11—16(c), and that Handy Head Start does not serve children in K-12. Moreover, it is undisputed that no funds were appropriated for a school-nurse position at Handy Head Start in the annual budget acts for the public schools. Thus, we conclude that Handy Head Start is not a public K-12 school and, therefore, is not part of the local public-school system in the City of Florence. Consequently, neither § 16-22-16 nor the minimum-salary schedules apply to Handy Head Start. Moreover, because neither § 16-22-16 nor the minimum-salary schedules apply to Handy Head Start, Massey was not entitled to be paid in accordance with the minimum-salary schedules while she served as the Head Start Health and Data Entry Coordinator at Handy Head Start.

Massey argues that she was entitled to be paid in accordance with the minimum-salary schedules because, she says, the State Superintendent of Education issued a letter dated August 26, 2008, in which he stated:

“[T]he Department of Education’s position on paying nurse salaries is as follows:

“‘Any licensed nurse employed by a local board of education in Alabama should be paid, at a minimum, the amount listed in the F[iscal] Y[ear] 2009 Education Budget. A person performing LPN [Licensed Practical Nurse] duties and hired for such a position should be paid according to the Nurse Salary Matrix for LPNs. A person performing RN [Registered Nurse] duties and hired for such a position should be paid according to the Nurse Salary Matrix for RNs....’”

However, the State Department of Education is responsible for “the direction and supervision of public kindergarten through twelfth grade schools.” Alabama Administrative Code (State Bd. of Education), Rule 290-010-010-.01. Handy Head Start is not a public K-12 school. Consequently, the policies of the State Department of Education do not apply to Handy Head Start and, therefore, do not apply to Massey’s service as Head Start Health and Data Entry Coordinator at Handy Head Start.

Moreover, because Handy Head Start does not serve children in K-12 and is not part of the local public-school system in the City of Florence, Massey was not entitled to be paid in accordance with the K-12 salary schedule while she served as Head Start Health and Data Entry Coordinator at Handy Head Start. Accordingly, we affirm the summary judgment with respect to Massey’s claims seeking to compel the board members to pay her the claimed back pay and benefits.

AFFIRMED.

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

      . The board members are Vicki Kirkman, Tom Wissert, Bill Jordan, MaLeah Chaney, Laura Hardeman, and Jim Fisher.

      . When Massey Hied her action, the superintendent was Dr. Kendy Behrends. While the action was pending in the trial court, Beh-rends retired and her successor, Dr. Janet Womack, was automatically substituted for Behrends pursuant to Rule 25(d)(1), Ala. R. Civ. P.

      . The Office of School Readiness administers a prekindergarten program. See § 26-24-23, Ala.Code 1975.

      . See supra note 3.


author: PITTMAN, Judge.

text:
    Michael Aaron GRIFFITH v. Beverly Ann AMES.
    2110115.
    Court of Civil Appeals of Alabama.
    Sept. 7, 2012.

      Regina B. Edwards, Wetumpka, for appellant.
    James R. Bowles, Tallassee, for appel-lee.
   PITTMAN, Judge.

This appeal arises from an action filed in the Elmore Circuit Court by Beverly Ann Ames, one of two owners of real property located in Elmore County, in which Ames alleged that the property could not be equitably divided and sought a judicial sale of the property and an equal division of the proceeds thereof. The other owner, Michael Aaron Griffith, who is Ames’s brother, answered the complaint and denied that the property could not be equitably divided; he further claimed that the parties’ brother held an equitable interest in the property. A guardian ad litem was appointed for the brother, who appeared in the action and disclaimed any interest in the property, whereupon Griffith withdrew his contention regarding the brother’s potential interest. After an ore tenus proceeding, at which the parties, Griffith’s wife, and an attorney versed in real-property law each testified, the trial court entered a judgment that, in pertinent part, (1) declared that a mobile home located on the property had become a fixture and (2) directed that the property be sold. Griffith appealed from that judgment following the denial of his postjudgment motion to alter, amend, or vacate the judgment; that appeal was transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

The first two issues raised by Griffith concern the status of the mobile home located on the property. According to Griffith, the mobile home was improperly determined by the trial court to be a “fixture” such that it had merged with the real property made the basis of Ames’s action so as to become a component part thereof such that it would be subject to being sold and the proceeds therefrom divided between the parties. At trial, Griffith submitted into evidence several documents issued by the Alabama Department of Revenue indicating that the mobile home was a 1992-model Horton house trailer that had been titled in the name of the parties’ parents and had been conveyed by the parties’ mother (the survivor of the two parents) to Griffith alone via transfer of the former title certificate in 2007. Although the trailer was used by the parties’ parents as their residence during their lifetimes and assessed for taxes as such, was connected to plumbing lines, and was the site of a number of semi-permanent improvements such as porches and additions, Griffith testified that he had had a new certificate of title issued in 2011 indicating his ownership.

Notwithstanding the actions of the parties’ parents to render the mobile home on the property at issue a semi-permanent feature of the property, we agree with Griffith that the record does not support the trial court’s fixture determination as a matter of law. This court recently held, in Green Tree-AL LLC v. Dominion Resources, L.L.C., 104 So.3d 177 (Ala.Civ.App.2011), that a manufactured home subject to Alabama title laws (i.e., one manufactured in 1990 or later), such as the mobile home placed on the subject property by the parties’ parents, “is personal property unless and until the certificate of title is canceled.” 104 So.3d at 177. That holding is consistent with the trial testimony of the real-estate attorney called as an expert witness in this case. That position is also consistent with Ames’s concession, in her appellate brief, that she “does not dispute that [Griffith] was given the mobile home by his mother and as such is free to remove the mobile home at any time he wishes.” As a result, we conclude that the trial court’s determination regarding the status of the mobile home as a component of the real property at issue was erroneous, and we reverse that portion of the judgment; on remand, the trial court is directed to delete from its judgment its findings regarding the nature of the mobile home so that Griffith will be able to exercise his sole ownership rights as to it.

The remaining issue concerns the trial court’s direction that the property at issue be sold. Under Alabama law, the right of a joint tenant or a tenant in common to have lands sold for division is statutory in nature, conditioned upon pleading and showing that the property at issue cannot be equitably divided. See, e.cj., Irons v. Le Sueur, 487 So.2d 1352, 1355-56 (Ala.1986). In this case, the trial court’s direction that the land at issue be sold implies a determination that the land cannot be equitably divided; such a determination need not, under our law, be express. See Murphy v. Dees, 293 Ala. 529, 532, 307 So.2d 1, 3 (1975). Further, “[t]he ore tenus rule” — under which the trial court’s judgment and implicit findings necessary to support it are clothed in a presumption of correctness — “applies to a trial court’s determination of whether land should be sold for division because it cannot be equitably partitioned in kind.” English v. Barnes, 387 So.2d 128, 129 (Ala.1980). We must thus consider whether the trial court’s judgment is supported by substantial evidence. See Shewbart v. Shewbart, 64 So.3d 1080, 1089 (Ala.Civ.App.2010) (citing Ala.Code 1975, § 12-21-12(a)).

In this case, the record reveals that the property at issue is a 2.56-acre lot located on McCain Road near the shoreline of Lake Martin, a large impoundment of the Tallapoosa River located in east-central Alabama. Although the property’s southeastern border, according to exhibits mapping the property boundaries and those of adjacent parcels, consists of approximately 283 feet of frontage along McCain Road, the shape of the lot, as one moves northwest, tapers as it approaches Lake Martin to a rough triangle leading to a point approximately 600 feet away from McCain Road, forming the shape of an obelisk. The northwest border of the lot, which is approximately 246 feet long, is close to the lake shoreline, proceeding from a slough in the south to a more open expanse of water as one moves north.

During her direct examination, Ames testified that she did not believe that the land at issue could be equitably divided in part because of the presence of the mobile home, which, as we have discussed, is movable personal property belonging to Griffith; presumably, Griffith could, if the property were partitioned rather than sold, move the mobile home to his allocated parcel. However, Ames also cited the shape of the property as a factor in her opinion. Although Ames did testify, during cross-examination, that she would view a division of the land “down the middle” as a fair division if she were offered the choice of which portion to select, that testimony does not foreclose the issue in the manner that Griffith has suggested. Rather, “[i]t was within the province of the trial court to consider the credibility of the witnesses, to draw reasonable inferences from their testimony and from the documentary evidence introduced at trial, and to assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate.” Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala.Civ.App.2005) (emphasis added). The trial court could properly have inferred, as Ames suggests in her appellate brief, that the “equal” division of the property suggested by Griffith in his testimony, starting from a point in the middle of the property’s northwest boundary facing Lake Martin and proceeding back to McCain Road, would result in one parcel facing the main body of the lake and one parcel facing the slough. Griffith suggested no other proposed equitable-division basis, and the trial court could properly have determined from the testimony of Ames and the documentary evidence, as it implicitly did, that the shape of the property and its geographic location would not allow for an equitable partition on the basis proposed by Griffith. Thus, we cannot conclude that that portion of the trial court’s judgment ordering a judicial sale of the land at issue is not supported by the evidence.

Based upon the foregoing facts and authorities, we reverse that portion of the trial court’s judgment determining that the mobile home on the parties’ real property is a fixture; we remand the cause for that determination to be excised from the remainder of its judgment, which we affirm.

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

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


text:
    Roger D. SHERRILL v. Selina Kay SHERRILL.
    2100681.
    Court of Civil Appeals of Alabama.
    Sept. 7, 2012.

      Gary L. Jester of Jester & Holmes, Florence, for appellant.
    Henri B. McDaniel and Marcus Hel-stowski of McDaniel & McDaniel, Huntsville, for appellee.
   PITTMAN, Judge.

Roger D. Sherrill (“the husband”) appeals from a judgment of the Limestone Circuit Court divorcing him from Selina Kay Sherrill (“the wife”), dividing the parties’ assets and liabilities, ordering him to pay the wife periodic alimony, finding him in contempt for willful violations of four provisions of the trial court’s pendente lite order, and ordering him to pay the wife an attorney’s fee.

Factual and Procedural Background

In September 2009, the parties separated after 25 years of marriage. The wife filed a complaint for a divorce, alleging that the husband had been physically, emotionally, and verbally abusive. The husband counterclaimed, also seeking a divorce and alleging that the wife had committed adultery. Both parties moved for pendente lite relief; the wife sought spousal support and the husband sought, among other things, possession of the marital home. The evidence presented at a hearing in October 2009 indicated that the wife had been self-employed as a hairdresser for the last 15 years of the marriage and that the husband had worked the third shift as an hourly employee at Navistar Diesel of Alabama for the last 5 years of the marriage. Two years before they separated, the parties purchased a 100-year-old historic building in Anderson. The wife’s beauty salon, known as “Anderson Family Hair Care,” was located in one room of the historic building; the other rooms in the building were designated as “Country Porch Antiques” and were used to display antique furniture and furnishings for sale. The premises also included a detached garage and a garage apartment in which the parties’ adult son lived.

The parties jointly owned the antique store; the wife was the sole owner of the beauty salon. The parties maintained a joint checking account for household expenses; they had separate checking accounts and separate cash registers for each business. The wife paid overhead expenses of $800 per month for the beauty salon and contributed $200 per week toward the overhead expenses of the antique store. The wife’s net income from the beauty salon was approximately $400 per month, of which, she said, she had received $40 to $60 per week in cash payments and the remainder in checks from her customers. She testified that she had always deposited customers’ checks in her checking account; she had not, however, deposited the cash payments but had used them to pay for incidental expenses. The evidence indicated that the husband’s net income in 2008 was approximately $60,000.

Following the hearing, the trial court entered a pendente lite order requiring the husband to pay all family indebtedness that he had previously been paying; ordering the husband to pay the wife $500 per month in spousal support “due to the disparity in income of the parties”; awarding the husband temporary possession of the marital home; prohibiting each party from harassing or intimidating the other; ordering that the antique store be closed; and prohibiting the parties from selling, removing, transferring, or concealing the store’s inventory and assets. After the entry of the pendente lite order, the wife moved her beauty salon to a different location for which she paid rent of $250 per month.

In January 2010, the husband moved to terminate his pendente lite alimony obligation, alleging that he had experienced a significant reduction in income as a consequence of his employer’s having lost contracts. The husband asserted that he was no longer receiving overtime or bonuses and that his gross annual wages were $47,985.60 (resulting, he said, in a net monthly income of $3,460.63, which income did not allow him to meet his monthly expenses of $4,327.56). In March 2010, the wife moved the trial court to find the husband in contempt for violating that portion of the pendente lite order that enjoined the parties from harassing, threatening, or intimidating each other. The wife attached to her motion a letter allegedly written to her by the husband, in which the husband called her a “white trash whore” and suggested that she commit suicide. In May 2010, the wife moved the trial court to place in escrow $24,000, the existing cash value of the parties’ life-insurance policies that the husband had obtained from Tennessee Farmer’s Insurance Company. The trial court deferred ruling on the three motions.

The case was tried over two days in November 2010. At that time, the husband was 50 years old and the wife was 45 years old. The wife testified that she had left the marital residence in August 2009, following an argument with the husband during which he had accused her of adultery, had lifted the mattress on which she was sleeping, and had “dumped” her on the floor. The wife stated that she had been afraid of the husband and had climbed out the bedroom window to escape from him.

After the parties’ separation, the wife lived with her sister and brother-in-law, who resided on the street where the marital residence was located. Between the sister’s house and the marital residence was a lot on which a mobile home had been placed. The husband testified that, during the six-month period preceding the parties’ separation, the wife had spent virtually every weekend night away from home and, he concluded, was having an affair with the man who lived in the mobile home on the lot between the marital residence and the residence of the wife’s sister. The wife denied that she had been having an affair. She stated that when she had spent the night away from home she had been with her female cousin, a graphic artist in Florence, working on a scrapbook for the parties’ granddaughter. According to the wife, she and her cousin had been engaged in “scrapbooking” until late at night, and the wife had sometimes decided to spend the night with her cousin in Florence rather than drive back to Anderson in the early hours of the morning. The wife testified that the husband was jealous and possessive, that he did not like the fact that she enjoyed spending time with anyone other than him, and that he had often hidden her keys so that she could not leave the marital home.

The evidence established that the parties had purchased the historic building in which the antique store was located for $105,000, that they had made a $25,000 down payment on that purchase, and that the building was encumbered by mortgage indebtedness of $74,000. The wife testified that the down payment had come from the parties’ joint checking account. The husband insisted that he alone had provided the funds for the down payment; he said the funds had come from the sale of stock that had been a gift from his mother in 1995. The parties agreed that the historic building was still valued at $105,000 at the time of trial. They also agreed that the marital home was worth $147,500 and was subject to a debt from a $30,000 home-equity line of credit. The husband acknowledged that, during the pendency of the action and without the wife’s knowledge or consent, he had obtained both the home-equity line of credit on the marital residence and the existing cash value of the parties’ life-insurance policies. The husband testified that he had used those funds to pay off the existing mortgage indebtedness on the marital residence, to pay off the indebtedness on his truck, to pay other bills, and to purchase a “four-wheeler.”

The wife testified that she had worked longer hours and earned more income in 2010 after the parties had separated. The parties’ joint federal income-tax return for 2008 reflected that the wife’s beauty salon had gross receipts of $14,891. The wife’s individual federal income-tax return for 2009, however, reflected that the beauty salon had gross receipts of $25,312. The wife testified that she was currently earning a gross income of approximately $2,380 per month, from which she paid $850 per month in business expenses. She submitted no evidence of her personal living expenses.

The husband testified that, after the parties’ separation, he had realized that the wife had been underreporting her income since 2007. He explained that he had obtained the wife’s beauty-salon appointment book for 2007; that he had compared the appointments with the wife’s price list for various services offered by the salon (which information he had obtained in discovery, e.g., $10 for a man’s haircut, $12 for a woman’s haircut, $35 for “color,” and $75 for “foils”); and that he had assigned a value for each of the wife’s appointments in 2007. The husband testified that the grand total of gross receipts that the wife would have received in 2007 based on her appointment book was $49,093. Based upon the wife’s testimony that she had earned more in 2009 than she had earned in either 2007 or 2008, the husband concluded that the wife was currently earning more than he was earning and that she was, therefore, not entitled to alimony.

When the husband’s counsel moved to admit the appointment book and the husband’s notations into evidence, the wife’s counsel objected on the ground that the husband’s extrapolations were speculative:

“We don’t have a problem with the book. The book speaks for itself, but [it] doesn’t tell you the services rendered or what was actually done or who even showed up.”

The trial court then posed a question to the husband:

“THE COURT: Let me ask this question of the witness. In other words, I’m looking at May the 3rd, Thursday, and I’m seeing at 9:00 [Customer A] is coming in. At 9:30, [Customer B] is coming in. How do we know how much money [Customer A and B] spent? ... In other words, how do you know what service [Customer A] was rendered?”
The following then occurred:
“THE WITNESS: If [Customer A] was a regular customer, ... you would go back until you would find what [the wife] had done for [Customer A in the past], because a lot of it, she had regular customers come every Friday or every other Friday or every Wednesday, every other Wednesday.
“THE COURT: So what I hear you to be saying is you have gone back on [Customer A] and you have found at some point in time ... some [description] of what [the wife] did for [Customer A] and you’re extrapolating that to determine that [Customer A] got that exact service every time?
“THE WITNESS: Right.”

The husband also took issue with the wife’s testimony that, in addition to payments by check from her customers, she had also regularly received between $40 and $60 per week in cash payments. The husband testified, without any supporting documentation, that the wife had actually received over $150 per week in cash payments. When asked by the wife’s counsel whether, after having come to the realization that the parties’ incomes had been underreported on their joint returns in 2007 and 2008, the husband had sought to file amended tax returns, the husband answered in the negative, stating that the wife had given him “the numbers” for her business and that he had reported those numbers to the parties’ accountant, but that he did not know anything about the wife’s business.

The husband’s federal income-tax returns reflect gross income for him in the following amounts: $60,817 in 2007; $63,003 in 2008; and $68,917 in 2009. The husband submitted a pay stub from his employer that reflected year-to-date gross pay as of October 31, 2010, of $46,226, or gross monthly income of $4,622 (which amount, he said, was equivalent to a net monthly income of $3,460.63, and represented a reduction in net income of $1,200 per month from the previous year). The husband stated that his monthly expenses totaled approximately $4,327.56, which included the following: $900 for food; approximately $697 for the mortgage payment on the historic building; $600 for payments to “Wal-mart”; $500 for periodic alimony; $93 for the home-equity line of credit for the marital residence; and payments on three credit cards, and for utilities, satellite television, insurance, and pest control. When questioned about the “food” expense, the husband explained that he did not cook and that he ate out three meals a day, seven days a week. When asked about the “Wal-mart” expense, the husband stated that he had bought “whatever [he] need[ed]” at that store.

Each party accused the other of removing inventory from the antique store and disposing of it. The wife stated that she had taken photographs of the contents of the store before the pendente lite order had been entered in October 2009 and that she had compared those photographs with the inventory that remained at the time of trial. She concluded that the husband had disposed of approximately $20,000 worth of inventory. The husband acknowledged that he had sold several items of inventory to pay bills, but, he said, he had seen the wife loading a truck with furniture from the antique store before she had filed her divorce complaint.

The trial court divorced the parties on the ground of incompatibility and divided the parties’ assets and liabilities as follows. The wife was awarded the marital residence and ordered to pay the $30,000 indebtedness associated therewith; the husband was awarded the historic building in which the parties had operated their businesses and ordered either to pay the $74,000 mortgage indebtedness thereon, to refinance the mortgage in his own name within 45 days, or to sell the property. The husband was awarded the inventory of the antique store valued at $53,154, and the wife was awarded an interest therein; the husband was ordered to pay the wife $20,000 for her share of the equity in the inventory. The wife was awarded $18,364, representing half the value of the husband’s T. Rowe Price retirement account; the husband was awarded a separate investment account containing $23,126.32; and the wife was awarded her Morgan Stanley investment account containing $10,603. The wife was awarded the vehicle in her possession; the husband was awarded the three vehicles in his possession and made responsible for any indebtedness thereon. The husband was ordered to pay the $900 balance on the parties’ Sam’s Club credit card, which he had used to purchase a computer, a printer, and a fax machine for himself. He was also ordered to pay the $2,000 balance on the parties’ Discover credit card that he alone had been using for the past few years and for which he had been making only the minimum payments. The trial court also ordered the husband to pay the wife $500 per month in periodic alimony and to continue the wife’s medical and health-insurance coverage for the time allowed by the Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. §§ 1161-1169.

Standard of Review

“When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001). ‘[W]e note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.’ Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004).”

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

I. Periodic Alimony

The husband argues that the trial court erred in awarding the wife periodic alimony because, he says, the wife was self-supporting and earning a greater income than he was earning at the time of trial. In the alternative, he contends that the evidence established that he did not have the financial ability to pay the wife periodic alimony.

The trial court was free to accord little or no weight to the husband’s assessment of the wife’s income based on his extrapolations from her salon appointment book. The court was also authorized to find that some of the husband’s monthly living expenses were, if not unbelievable, at least improvident and ill-advised under the circumstances.

“‘“It was within the province of the trial court to consider the credibility of the witnesses, to draw reasonable inferences from their testimony and from the documentary evidence introduced at trial, and to assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate.... In order to reverse the trial court ..., we would have to make our own credibility determinations and we would have to reweigh the evidence, neither of which we are allowed to do.” ’ ”

Faellaci v. Faellaci, [Ms. 2100752, May 4, 2012] 98 So.3d 521, 536 (Ala.Civ.App.2012) (quoting Vestlake Cmtys. Prop. Owners’ Ass’n v. Moon, 86 So.3d 359, 367 (Ala.Civ.App.2011), quoting in turn Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala.Civ.App.2005)). The trial court was presented with evidence indicating that, even after the husband’s reduction in pay, his monthly gross income of $4,622 was almost twice the wife’s monthly gross income of $2,380 — an amount from which, the wife said, she paid $850 per month in business expenses. Notably, the wife did not present any evidence of her personal living expenses, perhaps because she had been living with her sister during the pen-dency of the divorce action. Nevertheless, the trial court heard evidence from which it could reasonably have determined that, once the wife began to live in the marital residence again after the divorce, she would not be able to pay customary living expenses on the income she was earning.

II. Division of Marital Assets and Liabilities

The husband contends that the trial court’s property division is inequitable because, he says, the wife was awarded a disproportionate share of the assets that were subject to division. He contends that the wife’s share was approximately 75% and that his share was approximately 25%.

We cannot say that the property division is inequitable. Each party was awarded one real-property asset and was allocated its associated indebtedness. Each party was awarded one investment account; the wife was awarded half of the husband’s retirement account. Each party was awarded the vehicles in his or her possession. The husband was ordered to pay credit-card debts for purchases he alone had made. The wife requested that the husband be awarded all the inventory of the antique store, but that she, as a joint owner of the store, be awarded half the value of the inventory. The trial court awarded her $20,000 (less than half of $53,154, the value of the inventory), thus implicitly crediting her testimony that the husband had disposed of inventory worth $20,000 after the pendente lite order prohibiting the dissipation of assets.

The trial court was presented with evidence indicating that the husband’s conduct was the primary reason for the breakdown of the marriage, and it was authorized to consider that evidence in dividing the property. “‘Even where the parties are divorced on the grounds of incompatibility, the conduct of the parties and fault with regard to the breakdown of the marriage are factors for the trial court to consider in fashioning its property division.’” Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000) (quoting Myrick v. Myrick, 714 So.2d 311, 315 (Ala.Civ.App.1998)). The wife presented evidence indicating that the husband had been obsessive about not paying for anything that did not directly benefit him. For example, when the wife testified that she wanted the court to award her the marital residence, she was asked whether she was capable of taking care of the 3.2-acre lot on which the residence was situated. She replied that she had been taking care of the yard for 25 years. The wife, an ovarian-cancer surviv- or, testified that the husband would not cut the grass, even during the time that she was undergoing chemotherapy, and, further, that he had “griped about the chemotherapy bills and cancer-surgery bills.” The wife stated that she had asked the husband “who he was going to blame his problems on when [she] was dead and gone and he said when [she] was dead and gone he wouldn’t have any more problems.”

The wife testified that the husband had allowed her to use his credit card for the family shopping but that, when she returned from shopping, he routinely examined the receipts and marked the items for which he demanded reimbursement from the wife, even de minimis items such as diet soda for her and socks for the parties’ son. The wife testified that the husband had been violent in the past and that she was afraid of him. The evidence was undisputed that, during the pendency of the divorce action, the husband had been arrested for a domestic-violence offense against the parties’ son.

III. Contempt and Attorney’s Fee

The trial court found the husband in contempt of four provisions of the pendente lite order. The divorce judgment states:

“This court finds that the husband willfully violated several provisions of the pendente lite order issued by this court on October 27, 2009. The husband violated provision (1) of said order by enclosing a typed and handwritten letter with his February spousal support payment in which he repeatedly referred to the wife as a ‘whore’ and encouraged her to commit suicide. Said letter was clearly intended for the purpose [of] harassing, threatening, and intimidating her. The husband violated provision (3) of said order by selling, assigning, transferring and removing items from the antique store. This court further finds that the husband violat[ed] provision (5) of said Order by refusing to pay the utility bill for the property located at 7700 Highway 207 in Anderson, Alabama, which was part of the family indebtedness that he previously paid. Finally, this Court finds that the husband is in violation of provision (4) by his failure to pay the -wife the sum of $500.00 per month in temporary spousal support for the month of December 2010. Therefore, it is Ordered that within forty-five (45) days after the entry of the final decree of divorce, the husband shall pay to the wife the sum of $10,000.00 for payment of the services rendered by her attorney in this case.”

The husband challenges the finding of contempt with respect to the violation of provision (4) of the pendente lite order: that he failed to pay the wife temporary spousal support for the month of December 2010. He argues that the trial court heard no evidence indicating that the husband had not paid his December 2010 support obligation. The husband is correct.

“The determination of whether a party is in contempt of court rests entirely within the sound discretion of the trial court, and, ‘ “absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.” ’ Gordon v. Gordon, 804 So.2d 241, 243 (Ala.Civ.App.2001) (quoting Stack v. Stack, 646 So.2d 51, 56 (AJa.Civ.App.1994)).”

Miller v. Miller, 47 So.3d 262, 264 (Ala.Civ.App.2009). This case was tried on two separate dates, November 16 and November 23, 2010. The wife testified on November 16 that the husband was “current” on all pendente lite alimony payments. Between that date and the entry of the divorce judgment on January 6, 2011, the trial court heard no further evidence regarding the husband’s payment of spousal support. Therefore, the trial court’s determination that the husband was in contempt of provision (4) is not supported by the evidence of record and is plainly and palpably wrong.

Conclusion

The judgment is affirmed in all respects except one. The finding that the husband was in contempt of provision (4) of the pendente lite order is reversed, and the cause is remanded with instructions to vacate that finding of contempt and to determine whether to amend the award of an attorney’s fee to the wife.

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

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

      . The wife acknowledged that she had signed "some papers” relating to the marital residence, but, she said, the husband had told her that she was signing a termite bond.

      . The son later dropped the charges against the husband.