author: PITTMAN, Judge. DONALDSON, Judge,

text:
    Antoinette Cahill SMITH v. Shannon CAHILL.
    2110666.
    Court of Civil Appeals of Alabama.
    April 19, 2013.
    Certiorari Denied Sept. 13, 2013 Alabama Supreme Court 1120907.

      Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham; and Clint L. Maze of Burke, Beuoy & Maze, PC, Arab, for appellant.
    Jeffrey P. Montgomery and A. Davis Bailey of Montgomery Law Group, Gadsden, for appellee.
   PITTMAN, Judge.

Antoinette Cahill Smith (“the former wife”) appeals from a judgment in a post-divorce proceeding. We affirm in part, reverse in part, and remand with instructions.

This is the second time these parties have been before this court. In Smith v. Cahill, 72 So.3d 692 (Ala.Civ.App.2011), we (1) reversed a judgment on partial findings in favor of Shannon Cahill (“the former husband”) with respect to some of the claims asserted by the former wife in a postdivorce proceeding she had filed in 2009 and (2) remanded the cause.

Factual Background and Procedural History

The parties married in 1986 and divorced in 1993. During the marriage, they used marital funds to purchase a poultry farm. The former husband subsequently operated the poultry farm pursuant to an agreement with Gold Kist, which was then a cooperative association. Under the terms of that agreement, Gold Kist, while it was a cooperative association, assigned value to an equity account in the former husband’s name (“the equity account”) based on Gold Kist’s profits. The parties’ 1993 divorce judgment (“the divorce judgment”), which incorporated an agreement between the parties regarding the division of the marital property, awarded the former husband the tangible assets of the poultry farm but did not dispose of the equity account.

In approximately 2004, Gold Kist converted from a cooperative association to a corporation and offered its shares for sale to the public. When it converted to a corporation, Gold Kist notified the former husband that the equity account had a value of $337,134.76 and that, based on that value, he was entitled to 36,472 shares of Gold Kist stock. Gold Kist subsequently issued the former husband the 36,472 shares, and the former husband liquidated those shares and deposited the proceeds in a brokerage account.

In 2005, the husband brought a postdi-vorce proceeding against the former wife in which he sought a reduction in the child support he had been ordered to pay in the divorce judgment. During discovery in that postdivorce proceeding, the former wife propounded discovery requests seeking a list of all the former husband’s assets. The former husband’s responses to those discovery requests did not list among his assets the equity account or the funds that had resulted from the conversion of Gold Kist from a cooperative asso- . ciation to a corporation and the subsequent liquidation of the Gold Kist shares issued to the former husband (“the funds attributable to the equity account”).

In 2009, the former wife brought a post-divorce proceeding against the former husband. The former wife alleged, among other things, that the equity account had been marital property when the parties divorced; that the former husband had not revealed the existence of the equity account before the parties agreed on the division of the marital property; that the divorce judgment had not disposed of the equity account; and that, therefore, she owned a share of the equity account and the funds attributable to the equity account. Based on those allegations, the former wife claimed, among other things, (1) that she was entitled to a determination that she owned a share of the equity account and the funds attributable to the equity account and a judgment awarding her that share (“the equity-account claim”) and (2) that she was entitled to an award of damages for fraudulent suppression and conversion. In response, the former husband asserted that the equity account had never been marital property because, he said, that account had been titled in his name and, therefore, had been his separate property when the parties divorced. He also asserted that the former wife’s equity-account claim was barred because, he said, it constituted (1) an improper attempt to modify the division of the parties’ marital property in the divorce judgment more than 30 days after the entry of that judgment and (2) an improper attempt to obtain a share of his retirement account based on a marriage that had lasted less than 10 years. Moreover, he asserted that the equity-account claim was barred by (1) the doctrine of laches, (2) the doctrine of res judicata, and (3) the time limits for seeking relief from a judgment contained in Rule 60(b), Ala. R. Civ. P. In addition, he asserted that he was not liable for fraudulent suppression and conversion.

The trial court conducted a bench trial. At the close of the former’s wife’s evidence, the trial court granted the former husband’s motion for a judgment on partial findings as to the equity-account claim, the fraudulent-suppression claim, and the conversion claim (“the judgment on partial findings”). The parties subsequently settled the former wife’s other claims. The former wife then filed a postjudgment motion challenging the judgment on partial findings, which the trial court denied. Thereafter, the former wife appealed to this court.

As noted above, in Smith v. Cahill, this court reversed the judgment on partial findings and remanded the cause. Although a majority of the judges of this court did not join in the main opinion in Smith v. Cahill, an examination of the main opinion and the special writing concurring in the result reached by the main opinion indicates that four judges concurred in holding (1) that the equity account was marital property when the parties divorced despite the fact that it was titled in the former husband’s name, 72 So.3d at 698 and 700; (2) that the divorce judgment had not disposed of the equity account, id,.; and (3) that, because the divorce judgment had not disposed of the equity account, the former wife’s equity-account claim did not seek an improper modification of the property division in the divorce judgment, id. Moreover, an examination of the main opinion and the special writing indicates that four judges concurred in rejecting the former husband’s other defenses to the former wife’s equity-account claim, although a majority of the court did not agree on the rationales for rejecting those defenses. All the judges concurred in the judgment of this court (1) reversing the judgment on partial findings and (2) remanding the cause. 72 So.3d at 699-700. However, an examination of the main opinion and the special writing indicates that a majority of the judges did not join in giving the trial court specific instructions regarding how the cause was to proceed on remand. See id.

After this court remanded the cause, the former wife amended her complaint to allege that the divorce judgment had not disposed of the good will of the poultry farm (“the good will”) and to claim that she was entitled to a determination of the value of her share of the good will and a judgment awarding her that share of the good will (“the good-will claim”). The trial court subsequently entered an order providing that the issues to be tried included the former wife’s good-will claim. Subsequently, the former wife filed an amendment to her complaint stating a fraudulent-transfer claim against not only the former husband but also the former husband’s present wife; however, the former wife did not obtain leave of the trial court to file that amendment as required by Rule 15(a), Ala. R. Civ. P. The former husband and his present wife filed separate motions to dismiss the amendment adding the fraudulent-transfer claim. Following a hearing, the trial court entered an order disallowing the amendment adding the fraudulent-transfer claim, stating: “The Court declines to expand litigation in this matter beyond the parameters previously set.”

The trial court then resumed the bench trial, which had been terminated at the close of the former wife’s evidence by (1) the granting of the judgment on partial findings and (2) the parties’ settlement regarding the former wife’s claims that were not disposed of by the judgment on partial findings. After the trial, the trial court entered a judgment in favor of the former husband as to the former wife’s equity-account claim, good-will claim, fraudulent-suppression claim, and conversion claim. In pertinent part, the trial court’s judgment stated:

“[I]t is hereby ORDERED, ADJUDGED AND DECREED as follows:
“1. It is apparent that the Court of Civil Appeals desired that the undersigned allow the [former wife] to pursue a division of an undivided marital asset, the Gold Kist Equity Account. It is also apparent the [former wife] interprets the appella[te] decision to allow [the former wife] to pursue a division of both the Equity Account and ‘On-Going Concern’ portion of the poultry business owned when the parties divorced long ago. After consideration of the evidence presented, the Court awards any rights to the Gold Kist Equity Account, any right to any value of the ‘On-Going Concern’ portion of the parties[’] previous poultry business, and any asset associated with that former business, tangible or intangible, to the [former husband], Shannon Cahill. The Court also finds from the evidence presented that such was the intent of the parties when they executed the settlement agreement prepared by the [former wife’s] attorney long ago.
“2. The Court finds no conversion or fraud on the part of the [former husband].”

Following the trial court’s entry of its judgment, the former wife appealed.

Standard of Review

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, 985 So.2d 924, 929 (Ala.2007). Moreover, when the trial court in a nonjury ease enters a judgment without making specific findings of fact regarding a disputed issue, the appellate court

“will assume that the trial judge made those findings necessary to support the judgment. Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061 (Ala.1991). Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless ‘found to be plainly and palpably wrong.’ Fitzner, 578 So.2d at 1063. ‘The trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989); see, also, Norman v. Schwartz, 594 So.2d 45 (Ala.1991).”

Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).

Analysis

The former wife argues that the trial court erred in declining to award her a share of the equity account, the funds attributable to the equity account, and the goodwill. We agree.

“ ‘[W]hen a specific asset of the parties to a divorce action is not disposed of by the decree, the parties are left in the same position relative to that asset as they were in prior to the decree. Ex parte Davis, [495 So.2d 672 (Ala.1986) ].’ Johnson v. Johnson, 585 So.2d 89, 90 (Ala.Civ.App.1991).
“ ‘[W]hen a divorce decree is granted without any mention of the division of the parties’ jointly owned property, each party retains the same right, title, claim, or interest therein which they held prior to the divorce. In essence, when the trial judge does not alter ownership that, in and of itself, disposes of the issue, and title to the property is left undisturbed by the judgment.’
“Hocutt v. Hocutt, 491 So.2d 247, 249 (Ala.Civ.App.1986). See also Dominex, Inc. v. Key, 456 So.2d 1047, 1059-60 (Ala.1984).”

Smith v. Smith, 892 So.2d 384, 389 (Ala.Civ.App.2003).

In the present case, the divorce judgment did not dispose of either the equity account or the good will. In Smith v. Cahill, a majority of this court held that the equity account was a marital asset when the parties divorced because the poultry farm had been purchased during the marriage using marital funds. The good will, which was an intangible asset of the poultry farm, was also a marital asset when the parties divorced for the same reason. Because the divorce judgment did not dispose of either the equity account or the good will, the former husband and the former wife continued to jointly own the equity account and the good will after the entry of the divorce judgment. Smith v. Smith, supra. When a divorce judgment does not dispose of a jointly owned asset, such as the equity account and the good will in the present case, and more than 30 days have elapsed since the entry of the divorce judgment, a trial court has jurisdiction to award each of the parties his or her ownership interest in that jointly owned asset; however, the trial court does not have jurisdiction to alter the ownership interest of either party in that jointly owned asset because that would constitute a modification of the property division in the divorce judgment more than 30 days after the entry of the divorce judgment, which the trial court is prohibited from doing. See Ex parte Davis, 495 So.2d 672, 674 (Ala.1986).

Thus, in the present case, because more than 30 days had elapsed since the entry of the divorce judgment, the trial court had jurisdiction to award each party his or her ownership interest in the jointly owned equity account, the funds attributable to the equity account, and the good will; however, the trial court did not have jurisdiction to alter the ownership interest of either party. Id. By awarding the former husband the ownership interest of both parties in the equity account, the funds attributable to the equity account, and the good will, the trial court altered their ownership interests in those assets, which it did not have jurisdiction to do. Id. Accordingly, we reverse the judgment of the trial court with respect to the equity account, the funds attributable to the equity account, and the good will, and we remand the cause with instructions to the trial court to determine the monetary value of those assets based on the evidence already introduced and to award each of the parties one-half of the monetary value of those assets.

The former wife also argues that the trial court erred in finding in favor of the former husband with respect to her conversion claim. The undisputed evidence established that the former wife owned a one-half interest in the equity account, the funds attributable to the equity account, and the good will and that the former husband wrongfully detained her ownership interest in those assets after the entry of the divorce judgment.

“‘To sustain a claim of conversion, there must be (1) a wrongful taking; (2) an illegal assertion of ownership; (3) an illegal use or misuse of another’s property; or (4) a wrongful detention or interference with another’s property. Gray v. Liberty Nat’l Life Ins. Co., 623 So.2d 1156 (Ala.1993); Driver v. Hice, 618 So.2d 129 (Ala.Civ.App.1993); Gillis v. Benefit Trust Life Ins. Co., 601 So.2d 951 (Ala.1992).’ ”

Penttala v. David Hobbs BMW, 698 So.2d 137, 139 (Ala.Civ.App.1997) (quoting Drennen Land & Timber Co. v. Privett, 643 So.2d 1347, 1349 (Ala.1994)). Thus, the undisputed evidence established the former wife’s conversion claim. Accordingly, we reverse the judgment of the trial court with respect to the conversion claim, and we remand the cause with instructions to the trial court to determine the amount of damages the former wife is entitled to recover for conversion and to enter a judgment awarding the former wife that amount of damages. In determining the amount of damages the former wife is entitled to recover, the trial court may consider the award to the former wife of her one-half ownership interest in the equity account, the funds attributable to the equity account, and the good will in mitigation of those damages. See Pike v. Reed, 47 So.3d 253, 261 (Ala.Civ.App.2009) (“ ‘[I]t has ever been the law that when property has been wrongfully converted, and after such conversion such property again comes into the possession of its owner, this fact may be shown by the -wrongdoer, if the owner of the property brings an action in trover against him for such conversion, not as a complete defense to the action, but in mitigation of damages.’ ” (quoting Plummer v. Hardison, 6 Ala.App. 525, 535, 60 So. 502, 505 (1912))).

The former wife also argues that the trial court erred in finding in favor of the former husband with respect to her fraudulent-suppression claim. The main opinion in Smith v. Cahill, supra, noted that the former wife had introduced substantial evidence tending to prove that the former husband had fraudulently suppressed the fact that the equity account existed. However, reasonable reliance is an essential element of a claim of fraudulent suppression, see Johnson v. Sorensen, 914 So.2d 830, 837 (Ala.2005), and, after the cause was remanded, the former husband introduced substantial evidence tending to prove that the former wife could not have reasonably relied on his alleged fraudulent suppression of the fact that the equity account existed. The former husband testified that, before he and the former wife purchased the poultry farm in 1988, he and the former wife had met with the sellers of the poultry farm and that the sellers had told the former husband and the former wife that they would have a Gold Kist equity account if they purchased the poultry farm and participated in the Gold Kist cooperative.

Jean Fowler testified that she and her then husband, who is now deceased, had sold the poultry farm to the former husband and the former wife in 1988. She further testified that she and her late husband had met with the former husband and the former -wife before they purchased the poultry farm and that Fowler and her late husband had told both the former husband and the former wife that they would have a Gold Kist equity account if they purchased the poultry farm and participated in the Gold Kist cooperative. In addition, Fowler testified that she and her late husband had explained how Gold Kist equity accounts worked and that she and her late husband had taken both the former husband and the former wife to a Gold Kist growers’ meeting where Gold Kist equity accounts were discussed.

As noted above, the former wife introduced substantial evidence tending to prove her claim of fraudulent suppression; however, based on the testimony of the former husband and Fowler, the trial court as the trier of fact could have found from the conflicting evidence that the former wife had known about the existence of the equity , account since 1988. See Woods v. Woods, 658 So.2d 312, 314 (Ala.Civ.App.1994) (“In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief.”). Because such a finding would support the trial court’s judgment in favor of the former husband with respect to the fraudulent-suppression claim, we must assume that the trial court made such a finding. See Transamerica, supra. That factual finding, in turn, would support a determination that the former wife could not have reasonably relied on the former husband’s allegedly suppressing the fact that the equity account existed and, therefore, that the former husband was entitled to a judgment in his favor with respect to the fraudulent-suppression claim. Accordingly, we affirm the judgment of the trial court with respect to the fraudulent-suppression claim.

Finally, the former wife argues that the trial court erred in disallowing the amendment to her complaint adding a fraudulent-transfer claim against the former husband and his present wife. The former wife argues that the trial court dismissed that amendment for failure to state a claim pursuant to Rule 12(b)(6), Ala. R. Civ. P., and that that dismissal was erroneous because, she says, that amendment stated a valid claim. However, although the trial court’s ruling disallowing the amendment was prompted by the motions to dismiss filed by the former husband and his present wife, the language of the order disallowing the amendment makes it clear that the trial court was disallowing the amendment pursuant to Rule 15(a), Ala. R. Civ. P., rather than dismissing it pursuant to Rule 12(b)(6). In Rector v. Better Houses, Inc., 820 So.2d 75, 77-78 (Ala.2001), the supreme court stated:

“Rule 15(a), Ala. R. Civ. P., governs amendments to pleadings. It provides, in pertinent part:
“ ‘Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.’
“(Emphasis added.) In Boros v. Baxley, 621 So.2d 240 (Ala.1993), we explained:
“ ‘Although Rule 15(a) itself calls for liberal amendment, this Court has held consistently that “the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.’
621 So.2d at 245 (citations omitted). Thus, ‘Rule 15, [Ala. R. Civ. P.], is not carte blanche authority to amend a complaint at any time.’ Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala.1980) (quoting Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975)). ‘[Ujndue delay in filing an amendment, when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.’ Puckett, Taul & Underwood, Inc. v. Sehreiber Corp., 551 So.2d 979, 984 (Ala.1989). ‘[I]f the court determines ... that a party has had sufficient opportunity to state a claim ... but has failed to do so, leave to amend may properly be denied.’ Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App.1977).”

In the present case, all the transactions challenged by the former wife’s fraudulent-transfer claim occurred, and were discoverable, before the former wife filed the amendment to her complaint adding the good-will claim, yet the former wife did not include the fraudulent-transfer claim in that amendment. Accordingly, the trial court’s disallowance of the amendment adding the fraudulent-transfer claim was a proper exercise of its discretion. Id.

In summary, we affirm the judgment of the trial court as to the fraudulent-suppression claim; we reverse the judgment of the trial court with respect to the equity-account claim, the good-will claim, and the conversion claim; and we remand the cause with instructions to the trial court (1) to determine the value of the equity account, the funds attributable to the equity account, and the good will based on the evidence already presented and to enter a judgment awarding the former wife one-half of that value and (2) to determine the amount of damages the former wife is entitled to recover on her conversion claim based on the evidence already presented and to enter a judgment finding in favor of the former wife on her conversion claim and awarding her that amount of damages.

The parties’ requests for the award of attorney fees on appeal are denied.

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

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

DONALDSON, J., dissents, with writing, which THOMPSON, P.J., joins.

DONALDSON, Judge,

dissenting.

When these parties divorced in 1993, the Gold Kist equity account was held solely in the name of the former husband. Although the parties’ 1993 divorce settlement agreement divided certain specific property, it did not contain a provision addressing any unspecified assets, e.g., a “residuary” clause awarding all rights and interests in any other asset held solely in the name of a spouse to that spouse. In 2009, the former wife filed a complaint seeking, among other things, a determination that she was entitled to a portion of the equity account because, she asserted, it was a marital asset that had not been addressed in the 1993 divorce judgment. As noted in the original decision in this case:

“[T]he former wife insists that she has not improperly attempted to reopen the property-division aspects of the divorce judgment but that she is instead asserting a right to a claimed marital share of the equity that had accrued in the equity account during the parties’ marriage (i.e., from 1988-1993). She points out that the divorce judgment was silent as to that marital asset, and she claims that, therefore, her interest in that asset is the same as it was during the marriage. See Ex parte Davis, 495 So.2d [672] at 673 [ (Ala.1986) ], and McGuire [v. Horton ], 586 So.2d [9] at 9 [ (Ala.Civ.App.1991) ].”

Smith v. Cahill, 72 So.3d 692, 696 (Ala.Civ.App.2011).

The former wife appealed the trial court’s initial judgment denying her claim “to the extent that it preclude[d] her from claiming marital rights as to the equity account and from proceeding to trial against the former husband on claims of fraud and conversion relating to the equity account.” Id. at 695. The former husband did not appear to contest the designation of the equity account as a marital asset. His defenses were that the equity account was addressed in the settlement agreement and awarded to him and/or that the former wife’s claims were time-barred. The plurality opinion of this court remanded the case to the trial court so that the former wife could pursue her claim to the equity account as well as her fraud and conversion claims. Id. at 699. On remand, the trial court followed the mandate, and the former wife was permitted to present evidence regarding her claims through the adversarial process.

The former wife did not “own” one-half of the equity account at the time of the divorce in 1993 because that asset was held in the name of the former husband alone. This is not a case in which jointly owned property was not mentioned in a divorce judgment. For example, in Smith v. Smith, 892 So.2d 384 (Ala.Civ.App.2003), the husband and the wife were joint owners of certain real property, i.e., both the husband and the wife were listed as grantees on the deed. The divorce judgment did not specifically allocate the real property, and therefore, the wife remained a joint tenant and co-owner of the property because “‘the parties [were] left in the same position relative to that asset as they were in prior to the decree.’ ” Id. at 389 (quoting Johnson v. Johnson, 585 So.2d 89, 90 (Ala.Civ.App.1991), citing in turn Ex parte Davis, 495 So.2d 672 (Ala.1986)). Further, Alabama is not a “community property” state where each spouse is automatically entitled to half of the marital assets upon dissolution of the marriage. Wilkinson v. Wilkinson, 905 So.2d 1, 9, n. 2 (Ala.Civ.App.2004).

Instead, the equity account was a marital asset subject to allocation and/or division as part of the divorce proceedings. In determining the equitable distribution of the marital estate, a trial court’s allocation need not be equal:

“[A] trial court’s division of marital assets must be equitable; it need not be equal, and a determination of what is equitable rests within the sound discretion of the trial court. George v. George, 14 So.3d 180, 183 (Ala.Civ.App.2009); and Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996).”

Stone v. Stone, 26 So.3d 1232, 1237 (Ala.Civ.App.2009).

When dividing marital assets, a trial court need not apportion or divide each individual asset; rather, the division and award of all marital assets must be equitable when taken as a whole. The trial court certainly could have awarded the former wife all or a portion of the equity account, but it was not required to do so. The decision was for that court, not an appellate court, to make:

“We must remember that ‘[w]e are authorized to disturb the trial court’s decision only if it is unsupported by the evidence and, therefore, is unjust and palpably wrong.’ Grimsley v. Grimsley, 545 So.2d 75, 76 (Ala.Civ.App.1989). It is not for an appellate court to substitute its judgment for that of the trial court.”

Ex parte Durbin, 818 So.2d 404, 409 (Ala.2001).

The trial court properly considered the entire division of marital assets as contained in the 1993 divorce settlement agreement in making the determination required by the mandate of this court in Smith v. Cahill. Although the former wife presented evidence to the contrary, the trial court could have determined from the evidence presented at the adversarial proceeding that the equity account had limited value at the time of the parties’ divorce based on restrictions and conditions on its liquidation, the tax consequences of any liquidation, and prohibitions against continuing to do business with Gold Kist if the account was liquidated. The value of the account at the time it was converted to stock 11 years after the parties’ divorce would be relevant to a claim for damages for fraud or conversion had the former wife’s right to recover based on those claims been sustained by the trial court. It was within the sound discretion of the trial court to make an award of the equity account to the former husband, and that award cannot be disturbed on appeal based on the facts of this case.

After hearing all the testimony, the trial court found against the former wife on her claims of fraud and conversion. “The existence of fraud is a question for the trier of fact — in this case, the trial court — to determine.” Janda v. Janda, 984 So.2d 434, 436 (Ala.Civ.App.2007). The trial court’s determination that the former husband did not defraud the former wife regarding the equity account is, again, a matter within that court’s discretion. Because the trial court determined that the former husband is entitled to all rights, title, and interest in the equity account, a conversion claim cannot be sustained.

A different result could well have been reached on the facts of this case, but the decision was for the trial court to make. Because I find no abuse of discretion, I would affirm the judgment. Therefore, I respectfully dissent.

THOMPSON, P.J., concurs.

      . "[W]here the [appellate] court gives no precise directions as to how a cause is to proceed as to a certain matter on remand, the lower court may proceed in any manner that is not inconsistent with the [appellate] court’s opinion.” Durbin v. Durbin, 818 So.2d 409, 411 (Ala.Civ.App.2001).


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Ex parte ALABAMA DEPARTMENT of LABOR (formerly the Alabama Department of Industrial Relations). (In re Alabama Department of Labor (formerly the Alabama Department of Industrial Relations) v. Charter HR, Inc.).
    2120551.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2013.

      Joseph S. Ammons, gen. counsel, and Arthur F. Ray II, asst. gen. counsel, Alabama Department of Labor, for petitioner.
    Randall S. Haynes and Nancy L. Eady of Morris, Haynes, Hornsby, Wheeles & Knowles, Alexander City, for respondent.
   DONALDSON, Judge.

The Alabama Department of Labor (“ADOL”) petitions this court for the writ of mandamus directing the Tallapoosa Circuit Court (“trial court”) to grant its motion to dismiss the appeal filed by Charter HR, Inc. (“Charter”), seeking review of an administrative determination and final assessment finding Charter to be a “successor corporation,” which obligated Charter to pay unemployment-compensation taxes at a higher rate than it would be obligated to pay if it was a “new corporation.” Because ADOL fails to demonstrate a clear legal right to the relief it seeks, we deny the petition for the writ of mandamus.

Facts and Procedural History

The relevant facts before us are limited. A dispute existed between ADOL and Charter as to the proper assessment that should be imposed against Charter for unemployment-compensation tax purposes; that dispute centered on whether Charter is considered a new corporation, taxed at 2.70% of annual wages, or a successor corporation, taxed at 4.7% of annual wages. See generally § 25^4-8, Ala.Code 1975 (setting out the provisions for determining whether an employer qualifies as a successor corporation). An administrative determination and final assessment was entered finding Charter to be a successor corporation and calculating Charter’s unemployment-compensation tax rate as a successor corporation at 4.7% of annual wages. On January 18, 2013, Charter filed a notice of appeal to the trial court, seeking judicial review of the administrative determination pursuant to § 25-4-134(c)(3), Ala.Code 1975. Along with its notice of appeal, Charter filed a “Superse-deas Bond and Bond for Costs” (“the bond”). The bond was executed by Crystal Walters in her capacity as attorney-in-fact for the 3175 Children’s Trust, which described itself as “the principal owner of Charter HR, Inc.” The bond acknowledges that the signatory is bound to pay the obligations of Charter up to double the amount of the assessment plus costs should the appeal be unsuccessful. The bond shows that the trial court clerk approved it on January 18, 2013. On February 8, 2013, ADOL filed a motion to dismiss Charter’s appeal on the basis that the bond submitted by Charter was not sufficient and failed to comply with § 25-4-134(c)(3)b. and that, thereafter, the trial court lacked subject-matter jurisdiction. Charter responded to that motion on February 15, 2013, by asserting that the bond was sufficient, and the trial court denied ADOL’s motion to dismiss on February 22, 2013. ADOL petitioned this court for the writ of mandamus on April 5, 2013.

Standard of Review

“The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000); Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006). With regard to an appellate court’s consideration of a petition for a writ of mandamus, our supreme court has stated:
“ ‘This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987).’
“Ex parte Flint Constr. Co., 775 So.2d at 808.”

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala.Civ.App.2010).

Discussion

ADOL argues that the trial court lacked subject-matter jurisdiction over the appeal because the bond filed by Charter did not comply with the provisions of § 25^-134(c)(3)b., which provides, in pertinent part:

“If an employer against whom an assessment is made by the director is dissatisfied with the final assessment as fixed by the director under any of the provisions of subdivision (1) of this subsection (c) and duly protests the fixing of the same, he may appeal from said final assessment to the Circuit Court of Montgomery County, or to the circuit court of the county in which the employer resides or has his principal place of business, if the employer has within the state a permanent residence, at the option of the employer, by filing notice of appeal with the director and with the register of the circuit court of the county to which appeal shall be taken, within 30 days of the date of the final assessment made and entered on the minutes of the department, and in addition thereto by giving bond conditioned to pay all costs, to be filed with and approved by the register or clerk of the court to which the appeal shall be taken. The employer shall pay the assessment so made before the appeal is filed, or the court shall upon ntotion dismiss such appeal, unless at the time of taking the appeal the employer has executed a supersede-as bond with sufficient sureties to be approved by the register or clerk of the court to which the appeal shall be taken in double the amount of contributions, interest, and penalties, payable to the director, conditioned to pay all contributions, interest, penalties, and costs found to be due [ADOL]....”

(Emphasis added.) ADOL does not argue that Charter failed to execute a supersede-as bond or that the clerk of the court did not accept the bond. Rather, ADOL argues that the bond is not valid. ADOL relies on State Department of Revenue v. Garner, 812 So.2d 380 (Ala.Civ.App.2001):

“The Garners sought review of the [administrative law judge’s] decision in the Circuit Court of Marion County. The Garners did not, at the time they appealed, pay the amount of the assessment in full; rather, they attached to their notice of appeal a document entitled ‘Supersedeas Bond By Appellants,’ which stated that it bound ‘R.L. and Saundria Garner, the principal obligors, and the undersigned sureties.’ The document was executed only by the Garners. The document was not executed by a surety company licensed to do business in Alabama, nor by any other third party. Nonetheless, the document was filed with, and approved by, the Marion County Circuit Clerk.”

Id. at 382. This court ruled:

“The supersedeas bond filed with the Garners’ notice of appeal was signed only by the taxpayers themselves; it did not comply with § 40-2A-9(g)(l) — it was not executed by a ‘surety company licensed to do business in Alabama’ as required by the plain language of § 40-2A-9(g)(l). Because the supersedeas bond did not comply with the unambiguous requirements of the statute, the circuit court lacked subject-matter jurisdiction over the Garners’ appeal.”

Id. at 384. ADOL argues that, as in Gamer, the trial court in this case erred in denying the motion to dismiss because, it alleges, Charter filed the bond “signed only by the employer themselves [sic]” and therefore failed to comply with § 25-4-134(c)(3). However, this argument and ADOL’s reliance on Gamer are misplaced. First, Gamer was decided entirely on the basis of the Garners’ noncompliance with § 40-2A-9(g)(l), Ala. Code 1975, which governs the procedure for appeals from a decision of an administrative law judge which was as enacted in 1992 as part of the Alabama Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act, Ala.Code 1975, § 40-2A-1 et seq. See Act No. 92-186, Ala. Acts 1992, § 8. Gamer deals with a personal-income-tax assessment arising from an inheritance. This matter does not arise under the procedures provided by § 40-2A-9(g)(l). ADOL concedes that it cites Gamer only for the proposition that a surety must be a third party. However, unlike § 40-2A-9(g)(l)b.2., which requires “a supersedeas bond, which shall be executed by a surety company licensed to do business in Alabama, for 125 percent of the amount stated as due in the final order of the administrative law judge,” § 25-4-134(c)(3)b. requires only “a super-sedeas bond with sufficient sureties to be approved by the register or clerk of the court to which the appeal shall be taken.” Section 25-4-134(c)(3)b. makes no additional requirement that the surety be issued by a third party or a licensed company and the amount of the surety contemplated by § 40-2A-9(g)(l)b.2. (125% of the assessment) is significantly smaller than the amount contemplated by § 25-4-134(c)(3)b. (“double the amount of contributions, interest, and penalties”).

Further, even if we were convinced by ADOL’s argument that a supersedeas bond cannot be issued pursuant to § 25-4-134(c)(3)b. except by a third party or a licensed, corporate surety, ADOL has not shown that the signer of the bond, 3175 Children’s Trust, is the same entity as Charter, nor has it argued that 3175 Children’s Trust is not licensed to issue bonds. The bond in question states that “3175 Children’s Trust is the principal owner of Charter HR, Inc.”; however, it does not state that 3175 Children’s Trust is the only owner of, or the same entity as, Charter. Further, ADOL does not argue that the supersedeas bond issued by 3175 Children’s Trust did not provide “sufficient sureties,” only that it was not valid because it was not issued by a third party surety. The plain language of § 25-4-134(c)(3)b. contains no such requirement.

The writ of mandamus is an extraordinary and drastic writ, and, to be entitled to the writ, a petitioner must demonstrate it has a clear legal right to the relief sought. ADOL has failed to meet that requirement. For all that appears in the materials properly before this court, Charter presented a “a supersedeas bond with sufficient sureties” that was “approved by the ... clerk of the court to which the appeal shall be taken.” § 25-4-134(e)(3)b. Because ADOL failed to demonstrate a clear legal right to the relief it seeks, we deny the petition.

• PETITION DENIED.

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


author: MOORE, Judge. PITTMAN, Judge,

text:
    W.B.B. v. H.M.S.
    2120501.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2013.

      Lucas J. Beaty, Athens, for appellant.
   MOORE, Judge.

W.B.B. (“the father”) appeals a judgment of the Limestone Juvenile Court (“the juvenile court”) terminating his parental rights to G.M.S. (“the child”). We dismiss the appeal as being from a void judgment.

The record reveals the following pertinent facts. H.M.S. (“the mother”) gave birth to the child in December 2007 while living in a nonmarital relationship with the father in Florida. After the mother ended her relationship with the father and she and the child moved to Alabama, the Circuit Court of Escambia County, Florida, adjudicated the father to be the biological father of the child and established a shared custodial arrangement between the mother and the father. On August 18, 2011, the Limestone Circuit Court modified the Florida custody judgment and awarded the mother sole legal and physical custody of the child and suspended the father’s visitation.

On September 11, 2012, the mother filed a petition in the juvenile court to terminate the father’s parental rights to the child. On February 26, 2013, the juvenile court held a trial on the mother’s petition to terminate the father’s parental rights at which it received ore tenus testimony from the parties. On February 27, 2013, the juvenile court entered a judgment terminating the father’s parental rights to the child. The father timely appealed.

On appeal, the father contends that the juvenile court lacked subject-matter jurisdiction over the action and, thus, that the juvenile court’s judgment terminating the father’s parental rights is void. We agree.

Section 12-15-114, Ala.Code 1975, a part of the Alabama Juvenile Justice Act of 2008 (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, provides, in pertinent part:

“(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents. Juvenile cases before the juvenile court shall be initiated through the juvenile court intake office pursuant to this chapter.
“(c) A juvenile court shall also exercise exclusive original jurisdiction of proceedings arising out of the above juvenile court proceedings, including, but not limited to, each of the following:
“(2) Proceedings for termination of parental rights, as this term is defined in subdivision (10) of Section 12-15-301[, Ala.Code 1975].”

Subsection (c) of § 12-12-114 clearly and unambiguously gives juvenile courts exclusive original jurisdiction of proceedings for the termination of parental rights “arising out of the ... juvenile court proceedings” listed in subsection (a), i.e., those proceedings “in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision.” Thus, unless the termination-of-parental-rights case arises out of one of the enumerated proceedings in subsection (a), the juvenile court cannot exercise jurisdiction over that case unless some other jurisdictional statute expressly so provides. See S.N.W. v. M.D.F.H., 127 So.Sd 1225 (Ala.Civ.App.2013) (holding that a juvenile court may adjudicate a petition to terminate parental rights under § 26-10A-3, Ala.Code 1975, a part of the Alabama Adoption Code, although the action does not arise out of the proceedings listed in § 12 — 15—114(a)).

Former § 12-15-30(b)(6), Ala.Code 1975, which was amended and renumbered as § 12-15-114 upon enactment of the AJJA, specifically provided:

“The [juvenile] court shall ... exercise exclusive original jurisdiction of the following proceedings, which shall be governed by the laws relating thereto:
“(6) Termination of parental rights.”

Former § 12-15-30(b)(6) clearly and unambiguously vested juvenile courts with exclusive original jurisdiction over all actions for the termination of parental rights. See N.W.S.S. v. S.D.S., 747 So.2d 339 (Ala.Civ.App.1999). The legislature did not simply carry over the language from former § 12 — 15—30(b)(6), but, rather, it modified the language of the jurisdictional statute to its present state when enacting § 12-15-114.

“It is well settled that when the legislature makes a ‘material change in the language of [an] original act,’ it is ‘presumed to indicate a change in legal rights.’ 1A Norman J. Singer, Statutes and Statutory Construction § 22:30 (6th ed. 2002) (footnote omitted). In other words, the ‘amendment of an unambiguous statute indicates an intention to change the law.’ Id. (emphasis added). See State v. Lammie, 164 Ariz. 377, 379, 793 P.2d 134, 136 (Ariz.Ct.App.1990) (‘when the legislature amends statutory language, it is presumed that it intends to make a change in existing law’); Matter of Stein, 131 A.D.2d 68, 72, 520 N.Y.S.2d 157, 159 (App.Div.1987) (‘When the Legislature amends a statute, it is presumed that the amendment was made to effect some purpose and make some change in the existing law.... By enacting an amendment of a statute and changing the language thereof, the Legislature is deemed to have intended a material change in the law.... Moreover, a statute will not be held to be a mere reenactment of a prior statute if any other reasonable interpretation is attainable....’), appeal dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 46 (1988).”

Pinigis v. Regions Bank, 977 So.2d 446, 452 (Ala.2007).

The legislature evidently intended to change the law when it amended former § 12 — 15—30(b)(6) by excising the language giving juvenile courts jurisdiction over all termination-of-parental-rights proceedings and replacing it with more limited jurisdiction over only certain types of termination-of-parental-rights proceedings, i.e., those arising out of the proceedings listed in § 12-15-114(a). Any other reading would render superfluous and meaningless the changes the legislature incorporated in § 12-15-114.

“ ‘ “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.” ’ ”

Ex parte Wilson, 854 So.2d 1106, 1110 (Ala.2002) (quoting Ex parte Welch, 519 So.2d 517, 519 (Ala.1987), quoting in turn 2A Norman J. Singer, Sutherland Statutes and Statutory Construction § 46.06 (4th ed. 1984)).

In this case, the mother filed a petition to terminate the parental rights of the father to the child in the juvenile court. The petition did not arise out of any earlier or separate proceeding in which the child was alleged to be dependent, to have committed a delinquent act, or to need supervision. The facts show that, before the mother filed her petition to terminate the parental rights of the father, the custody of the child had been adjudicated through ordinary domestic-relations cases in Escambia County, Florida, and the Limestone Circuit Court.

Moreover, the petition did not initiate any of the types of proceedings listed in § 12-15-114(a). Hence, the juvenile court did not acquire jurisdiction over the petition pursuant to § 12-15-114(c). The mother did not allege that she was seeking to have the child adopted without the consent of the father, as would invoke the juvenile court’s jurisdiction under § 26-10A-3. Additionally, the mother does not cite any other jurisdictional statute authorizing the juvenile court to adjudicate her petition. Consequently, the judgment terminating the father’s parental rights was entered by the juvenile court without subject-matter jurisdiction and is therefore void; a void judgment will not support an appeal. See generally A.C. v. In re E.C.N., 89 So.3d 777 (Ala.Civ.App.2012).

The appeal is dismissed, albeit with instructions for the juvenile court to vacate its judgment terminating the parental rights of the father.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMAS and DONALDSON, JJ., concur.

PITTMAN, J., dissents, with writing, which THOMPSON, P.J., joins.

PITTMAN, Judge,

dissenting.

Consistent with the views I have expressed in my dissenting opinion in C.C. v. L.J., [Ms. 2120534, Sept. 6, 2013] — So.3d -, - (Ala.Civ.App.2013) (Pittman, J., dissenting), I respectfully dissent from the dismissal of the appeal.

THOMPSON, P.J., concurs.

      . We have repeatedly held that juvenile courts, as purely statutory creatures, have only such jurisdiction as their jurisdictional statute explicitly grants. See, e.g., Montgomery Cnty. Dep’t of Human Res. v. McDermott, 74 So.3d 455, 457 (Ala.Civ.App.2011). Thus, we reject any notion that § 12-15-114 or any other part of the AJJA impliedly bestows jurisdiction over all termination-of-parental-rights cases on the juvenile courts.

      . In her petition, the mother alleged that she was the legal custodian of the child; she did not allege that she was incapable of providing adequate care and supervision of the child. Although the mother sought to have the child declared dependent as to the father, the AJJA does not recognize such a proceeding; rather, it only authorizes dependency petitions by noncustodial parents against abusive or neglectful custodial parents. See T.K. v. M.G., 82 So.3d 1 (Ala.Civ.App.2011). Additionally, the juvenile court did not treat the matter as a dependency proceeding.

      .Because we conclude that the juvenile court lacked subject-matter jurisdiction over the mother’s petition, we find no need to address the father’s other argument that the juvenile court did not have territorial jurisdiction over the petition.


text:
    D.B. v. D.G.
    2120217.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2013.

      John Eric Burnum, Moulton, for appellant.
    Donald A. Chapman, Decatur, for appel-lee.
   DONALDSON, Judge.

D.B. (“the mother”) appeals from a default judgment entered by the Morgan Juvenile Court (“the juvenile court”) in favor of D.G. (“the father”), awarding custody of S.G. (“the child”), the parties’ minor child, to the father and ordering the mother to pay child support. We affirm the juvenile court’s determination that it attained jurisdiction over the mother; however, because we find that the mother was entitled to a hearing on her motion to set aside the default judgment, we reverse the denial by operation of law of her motion to set aside the judgment and remand the case.

The child was born on September 26, 2009. The mother and the father were never married, but they lived together in the same residence in Morgan County until April 2012, when the father temporarily moved out of the house. On April 16, 2012, the father filed a complaint to establish paternity in the juvenile court. The father also sought custody of the child, subject to the mother’s right to visitation, as well as child support from the mother. The record reveals that the clerk issued a summons for the mother with the complaint on April 27, 2012. The return of service in the record indicates that the mother was personally served with the complaint by private process server on May 1, 2012, in Morgan County. The street address for the mother, provided to the juvenile court by the father, was the location of the house where the mother and the father had resided together until April 2012. The record reveals that the mother moved out of the house sometime in June or July 2012, but that the juvenile court was never provided a different address for her until after the entry of the default judgment.

On April 27, 2012, the juvenile court set a trial date for June 6, 2012, to address the issue of paternity. The record does not clearly establish that notice of the hearing was sent out with the summons and complaint. The juvenile court’s order required the parties to submit to genetic testing and directed the mother to appear on June 6 with the child. On June 6, 2012, the father appeared for the paternity trial and submitted to the test. The mother failed to appear. Subsequently, the juvenile court issued an order for the mother to appear before the court for genetic testing on July 10, 2012. The mother appeared with the child on July 10, 2012. She asserts on appeal that she received oral notice of the hearing from the father and did not receive the written order. On the client-authorization form, which she was required to complete before submitting to the genetic test, the mother failed to provide an address. On July 10, 2012, the juvenile court set another hearing for August 27, 2012. Notice of the hearing was presumably sent to the mother at the address initially provided by the father when the complaint was filed. The father appeared with counsel on that date, but the mother did not appear. Following the hearing, the juvenile court entered an order adjudicating D.G. to be the father of the child and awarding him visitation. The juvenile court set the issues of custody, visitation, and child support for trial on November 8, 2012. The record indicates that the juvenile court sent notice of the trial setting to the mother and the father on August 27, 2012.

The juvenile court held trial as scheduled on November 8, 2012. The father appeared, represented by counsel, and the trial court received his testimony. The mother, again, failed to appear. The father testified that the mother had moved out of the residence at some point in June or July 2012 and that at the time of trial she was living in a trailer park. The juvenile court entered a default judgment on November 8, 2012, awarding the father sole physical and legal custody of the child. The mother was awarded unsupervised visitation and was ordered to pay child support. The juvenile court ordered the mother to provide the court and the father with an address where she resided.

On November 14, 2012, the father filed a motion for a “pick up order,” in which he alleged that the mother, with the father’s permission, had picked up the child on November 12, 2012, at the father’s place of business, but that she had failed to return the child to the father pursuant to the custody order. The father’s motion also contained an assertion that the mother was not aware that the November 8, 2012, custody judgment had been entered until the father informed her of the judgment when she picked up the child on November 12.

On November 14, 2012, an attorney entered an appearance in the case on behalf of the mother. On the same date, the mother filed a motion styled “Verified Motion to Alter, Amend, and Vacate 11/8/12 Default Judgment for Custody Due to Improper Service/Lack of Notice and Request for New Trial.” In the body of the motion, the mother averred, under oath, that she had not been served with the summons and complaint and that she had not received notice of the November 8, 2012, trial date. The mother also filed a response in opposition to the father’s motion for a pick up order.

On November 14, 2012, the juvenile court granted the father’s motion for a pick up order, authorizing any law-enforcement officer in the State of Alabama to pick up the child and return the child to the custody of the father. On November 30, 2012,16 days after the mother filed her postjudgment motion and without conducting a hearing on the motion, the juvenile court purported to enter an order denying the mother’s motion to alter, amend, or vacate the judgment.

On November 29, 2012, the father filed a motion requesting that the mother’s visitation to be supervised, which the juvenile court granted on November 30, 2012, without a hearing.

On December 4, 2012, the mother filed a notice of appeal to the Morgan Circuit Court. On December 7, 2012, the juvenile court certified the record as sufficient for a direct appeal to this court. Thereafter, the mother filed a notice of appeal to this court on December 10, 2012.

On appeal, the mother argues that she was not properly served with the complaint. If her assertion is true, the juvenile court would not have attained personal jurisdiction over the mother to enter the default judgment, thus rendering the judgment void. “““ “When the service of process on a defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” ”” ” LVNV Funding, LLC v. Boyles, 70 So.3d 1221, 1227 (Ala.Civ.App.2009) (quoting Dennis v. Still Waters Residential Ass’n, 18 So.3d 959, 961 (Ala.Civ.App.2009), quoting in turn Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003), quoting in turn Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993), quoting in turn Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983)). However, the completion and filing of a return of service is prima facie evidence that the party to whom the service was sent has been properly served. Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 658 (Ala.2001). See also Hooie v. Barksdale, 93 So.3d 942, 945 (Ala.Civ.App.2012).

“A party’s uncorroborated statement denying service upon him is not adequate proof to authorize the invalidation of a [process server’s] return. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). Stated differently, the burden of proof to overcome the presumption of the correctness of a [process server’s] return is not met by a bare denial of service by a contesting party, but it is required that additional evidence be presented to strengthen or confirm such a denial before the required burden is met. Such is the definition of ‘corroborating evidence.’ Smith v. Smith, 268 Ala. 348, 106 So.2d 260 (1958).”

Nolan v. Nolan, 429 So.2d 596, 598 (Ala.Civ.App.1982).

In the present case, the service return in the record indicates that the mother was served by private process server on May 1, 2012, thus establishing pri-ma facie evidence that the mother was served. The mother has offered no corroborating evidence to substantiate her denial of service of process. In fact, the father’s testimony indicates that the mother lived at the residence noted on the summons until June or July 2012. Without further proof having been offered to substantiate the mother’s argument, we conclude that the juvenile court was correct in rejecting the mother’s assertion that service was not proper. Further, the mother waived any defect in service of process by submitting herself to the jurisdiction of the juvenile court when she appeared for genetic testing.

“In Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 53 (Ala.2003), the Alabama Supreme Court quoted approvingly from Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972), for the proposition that:
“ ‘ “The rules which govern our consideration of this case are well established. The filing of a pleading is a general appearance. Rule 65(c), Rules of Civil Procedure. Jurisdiction of the person in a civil case may be acquired by service of notice in the manner and form prescribed by law, or by defendant’s general appearance. Boyer v. Iowa High School Athletic Association, 258 Iowa 285, 138 N.W.2d 914 (1965); Emery Transportation Company v. Baker, 257 Iowa 1260, 186 N.W.2d 529 (1965); Baker v. Baker, [248 Iowa 361, 81 N.W.2d 1 (1957) ]. A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court. Humboldt Livestock Auction, Inc. v. B & H Cattle Co., 261 Iowa 419, 155 N.W.2d 478 (1967); O’Connor v. Youngblade, 250 Iowa 808, 96 N.W.2d 457 (1959). He may not thereafter avoid that jurisdiction by special appearance. Gardner v. Beck, 195 Iowa 62, 189 N.W. 962 (1922); 5 Am.Jur.2d, Appearance § 16, pp. 491-92; 6 C.J.S., Appearances § 24, p. 67.” ’ ”

Klaeser v. Milton, 47 So.3d 817, 821 (Ala.Civ.App.2010). The record reveals that the mother personally appeared with the child before the juvenile court in July 2012 to submit the child to the paternity test as ordered by the court. Thus, the mother voluntarily appeared in the case when she complied with the court’s order without objection, and the trial court attained personal jurisdiction over her. Any argument concerning alleged defects in service of process have, therefore, been waived.

The mother next contends that the juvenile court erred to reversal by failing to vacate the default judgment. The record shows that the mother failed to answer the complaint and that she failed to appear at the time of trial. We initially note that a default judgment is warranted where a defendant fails to appear at trial. As this court has previously recognized:

“While a failure to answer a complaint is a common basis for the entry of a default, a default may be entered on other grounds, including ... failure to appear at trial. See Rule 55(a)[, Ala. R. Civ. P.] (providing for entry of a default when a party fails to ‘otherwise defend’); Rule 55(b)(1) (referring to the entry of a default for a party’s ‘failure to appear’); Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So.2d 869 (Ala.2002) (note 2 and accompanying text). Where a default is entered because of the failure of the defendant to answer the complaint, there would naturally be a focus on the defendant’s motion for relief from the default judgment in the effort to find an articulation of a meritorious defense. See, e.g., Rudolph v. Philyaw, 909 So.2d 200 (Ala.Civ.App.2005).”

Sumlin v. Sumlin, 931 So.2d 40, 46 n. 2 (Ala.Civ.App.2005).

Pursuant to Rule 55(c), Ala. R. Civ. P., “[t]he court may ... set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.” Rule 55(dc) shortens the prescriptive period to 14 days in cases before the district court. In Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), our supreme court established an analysis for trial judges to follow when exercising the discretionary authority conferred under Rule 55(c). As this court recently summarized in Brantley v. Glover, 84 So.3d 77 (Ala.Civ.App.2011):

“ ‘A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). In reviewing an appeal from a trial court’s order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.
“ ‘We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala.1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” 524 So.2d at 605.’
“Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala.2006).
“As we stated in Richardson v. Integrity Bible Church, Inc., 897 So.2d 345 (Ala.Civ.App.2004):
“ ‘Because of the importance of the interest of preserving a party’s right to a trial on the merits, this court has held that where a trial court does not demonstrate that it has considered the mandatory Kirtland factors in denying a motion to set aside a default judgment, such as where a Rule 55(c)[, Ala. R. Civ. P.,] motion is denied by operation of law, the denial of the motion to set aside the default judgment will be reversed and the cause remanded for the trial court to address the Kirtland factors.’
897 So.2d at 349. However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors. See Carroll v. Williams, 6 So.3d 463, 468 (Ala.2008) (‘Because Carroll has failed to satisfy his initial burden under the Kirt-land analysis [of providing allegations and evidence relating to all three Kirt-land factors], we will not hold the trial court in error for allowing Carroll’s motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis.’). See also Maiden v. Federal Nat’l Mortg. Ass’n, 69 So.3d 860, 867 n. 3 (Ala.Civ.App.2011) (noting that we will not reverse the denial by operation of law of a motion to set aside a default judgment when the movant fails to argue the existence of the Kirtland factors in his or her motion).”

84 So.3d at 80-81 (footnote omitted). As such, the defaulting party has the initial burden of demonstrating the existence of the three Kirtland factors. As our supreme court stated in Carroll v. Williams, 6 So.3d 463 (Ala.2008):

“The law is well settled in Alabama that the defaulting party has the initial burden of demonstrating the existence of the three Kirtland factors. Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 899-900 (Ala.2005); Phil lips v. Randolph, 828 So.2d 269, 278 (Ala.2002); and Kirtland, 524 So.2d at 605-08.... With regard to a meritorious defense in the context of a Kirtland analysis, this Court has stated:
“ ‘[A] defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury....
“ ‘The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity — namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a “plausible defense.” ’
“Kirtland, 524 So.2d at 606 (emphasis added).”

6 So.3d at 467-68. See also Baker v. Jones, 614 So.2d 450, 451 (Ala.1993).

In the present case, the mother’s verified motion triggered the court’s obligation to conduct a Kirtland analysis by alleging, under oath and with supporting facts and arguments, (1) that she has a meritorious defense; (2) that the father will not be unfairly prejudiced if the default judgment is set aside; and (3) that she was not culpable in failing to appear, because she did not receive adequate notice of the trial date. The mother’s contention that she has a meritorious defense to the father’s custody claim is supported by her verified motion, in which she avers that she has no criminal record, that the minor child has lived with her since the child’s birth, that the father abandoned the child in April 2012 without offering any support for the child, that the father has a criminal record, and that the child is accustomed to living with her two older siblings. The mother also averred in her motion that the father would not be unfairly prejudiced by the delay. She further asserts under oath in the verified motion that the default was not a result of her culpable conduct, because, she contends, she had moved out of the house she had shared with the father in late May 2012, the notices from the juvenile court were mailed to that old address, and she did not receive notice of the November 8, 2012, trial date.

The mother’s motion to set aside the default judgment was denied by operation of law on November 28, 2012. The order entered by the juvenile court two days following the denial by operation of law, in which the court purportedly denied the mother’s motion, provides no indication that the juvenile court had considered the Kirtland factors. Because the mother met the initial burden by providing sufficient facts and arguments to apply the Kirtland factors and because the record does not indicate that the juvenile court considered the motion by applying a Kirtland analysis, we reverse the juvenile court’s denial by operation of law of the mother’s motion to set aside the default judgment and remand the cause with instructions to the juvenile court to hold an evidentiary hearing on the mother’s motion and to consider the Kirtland factors in determining whether to set aside the default judgment. We note, however, that “our mandate in this case ‘is not to be construed to mean that the trial court must set aside the default judgment, [but] only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment.’ ” Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 349 (Ala.Civ.App.2004), quoting White v. Westmoreland, 680 So.2d 348, 349 (Ala.Civ.App.1996).

This holding pretermits discussion of the mother’s other argument concerning the award of custody of the child to the father.

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

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

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


author: THOMPSON, Presiding Judge. THOMAS, Judge,

text:
    Timothy Edward STEPHENS v. Kathryn NELSON. Rebecca Lynn Stephens Kimbrough v. Kathryn Nelson.
    2111181 and 2120111.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2013.

      James E. Deshler II, Thomasville, for appellant Timothy Edward Stephens.
    James E. Kimbrough, Jr., Mobile, for appellant Rebecca Lynn Kimbrough.
    Lamar C. Johnson of Gilmore Law Firm, Grove Hill, for appellee.
   THOMPSON, Presiding Judge.

In 2005, Kathryn Nelson filed an action in the Clarke Circuit Court (“the trial court”) against Timothy Edward Stephens and Rebecca Lynn Stephens Kimbrough seeking a sale for division of certain real property owned by Nelson, Stephens, and Kimbrough. Nelson later amended her 2005 complaint and added Larry Whatley as a defendant.

On September 22, 2008, the trial court entered a judgment that incorporated an agreement reached by the parties. That judgment divided the property but specified that the exact location of the various parcels would be determined by a survey to be conducted later. In addition, the judgment provided that “each party to this proceeding shall be granted a non-exclusive easement for ingress and egress along the existing roadways which transverse the subject property.” Paragraph 8 of the September 22, 2008, judgment further stated:

“8. That [Nelson] shall have the option of closing the existing roadway which enters the subject property from the Northwest side of the property, provided a roadway of equal or greater width and quality is first constructed across the property of [Nelson], which roadway connects with the roadway which is presently being used to access the property to be received by [Stephens], [Kimbrough], and Larry What-ley.”

On June 26, 2009, Nelson filed a “motion for contempt,” seeking to have Kimbrough held in contempt for failing to comply with some provisions of the September 22, 2008, judgment pertaining to the payment for the survey required under that judgment. Kimbrough later moved to dismiss that motion on the ground that she had paid for her portion of the survey cost, and, on July 16, 2009, the trial court entered an order dismissing Nelson’s motion for contempt.

Also on July 16, 2009, Nelson filed a “motion to compel,” seeking an order requiring Kimbrough to execute the deeds based on the survey ordered in the September 22, 2008, judgment. On August 3, 2010, the trial court entered an order requiring Kimbrough to execute those deeds.

On June 22, 2011, Stephens filed a “motion to compel and for temporary relief and for specific acts,” alleging that Nelson had closed the existing roadway (hereinafter “the old road”) used by Stephens to access his property and had constructed a new road (“the new road”) across her property to allow access to Stephens’s property. Stephens alleged that the new road did not comply with the requirements of paragraph 8 of the September 22, 2008, judgment. On October 14, 2011, Kim-brough filed a motion similar in substance to that filed by Stephens on June 22, 2011.

The record indicates that the trial court conducted a hearing during which the parties agreed not to submit the testimony of witnesses. Rather, the parties’ attorneys argued the matter before the trial court, and the trial court traveled to the property at issue to view both the old road and the new road. The record on appeal does not contain a transcript of that hearing.

On May 24, 2012, the trial court entered a judgment in favor of Nelson. That order provided, in pertinent part:

“Upon consideration of the motions, [Nelson’s] response, arguments of counsel, and the Court having gone to the property and viewed the roads in question, the Court makes the following findings of fact:
“1. That the new road constructed by [Nelson] across her property is of greater width and quality than the ‘plantation road’ or old road that she closed.
“2. That the new road constructed by [Nelson] fully complies with paragraph 8 of the [judgment] entered on September 22, 2008.
“3. That [Nelson] has closed the old road or ‘plantation road’ across her property by constructing the new road across her property, which is of greater width and quality than the old road or ‘plantation road.’ ”

Based on those findings, the trial court denied the relief sought by Stephens and Kimbrough.

Stephens and Kimbrough each filed a postjudgment motion. In support of his motion, Stephens submitted his own affidavit and an affidavit by Debra J. Stephens. Kimbrough submitted in support of her postjudgment motion certain deeds and an affidavit of a surveyor.

Nelson responded to the postjudgment motions by pointing out that the parties had agreed during the hearing on the merits that testimony was unnecessary. Nelson also asserted arguments disputing certain “facts” as alleged by Stephens and Nelson. Nelson also moved to strike the evidence submitted by Stephens and Nelson in support of their postjudgment motions.

The trial court denied the postjudgment motions on August 10, 2012, stating:

“Whereas a hearing was held on July 27, 2012, on said [postjudgment] motions. At said hearing each attorney presented arguments, and some photographs and other exhibits were presented.
“Upon consideration of the motions, [Nelson’s] response, arguments of counsel, exhibits and the Court having gone to the property and viewed the roads in question....
“It is ORDERED, ADJUDGED, and DECREED as follows:
“1. The motions filed by [Stephens and Kimbrough] to alter, amend or vacate are hereby denied.”

(Emphasis added.) The trial court did not rule on Nelson’s motion to strike.

Stephens and Kimbrough each. timely appealed. Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Initially, we note that the dissent has questioned the subject-matter jurisdiction of the trial court to consider this matter because of an administrative failure on the part of the trial-court clerk to collect a filing fee and because of a lack of personal service on Nelson. The 2011 “motions to compel” filed by Stephens and Kimbrough sought a determination as to whether Nelson had properly complied with paragraph 8 of the September 22, 2008, judgment by constructing the new road before exercising her option under the September 22, 2008, judgment to close the old road. A trial court retains jurisdiction to interpret and enforce its owns judgments.

“A trial court has inherent authority to interpret, clarify, and enforce its own final judgments. See Helms v. Helms’ Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994) (‘a trial court does have residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment’); Gild v. Holmes, 680 So.2d 326, 329 (Ala.Civ.App.1996) (‘A trial court possesses an inherent power over its own judgments that authorizes it to interpret, clarify, implement, or enforce those judgments.’). Thus, even after this Court, on the direct appeal, affirm[s] the trial court’s ... judgment, [the trial] court retain[s] jurisdiction to interpret and clarify that judgment.”

State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000).

In Garris v. Garris, 643 So.2d 993 (Ala.Civ.App.1994), and Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981), this court explained that a final judgment that supports an appeal may also be interlocutory in the sense that the trial court retains jurisdiction to implement, enforce, or clarify its judgment. In Garris v. Ganis, 643 So.2d at 995, this court explained the trial court’s retention of jurisdiction to enforce or clarify its judgment:

“[Although the motion is entitled as one for modification, the actual relief sought is for the trial court to clarify and enforce its original judgment, which ‘equally divided’ the remaining funds. For appeal purposes, the divorce judgment was a final judgment; however, it also continued to be interlocutory in nature in the event it became essential to augment, refine, clarify, or enforce provisions regarding the final disposition of property and the division of the proceeds. Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981).”

(Emphasis added.)

In Mayhan, supra, cited in Garris v. Garris, supra, this court explained that a trial court retains jurisdiction over its judgments:

“We concur with the husband that a divorce judgment dividing property between the parties is not subject to modification as to such property division on account of changed conditions. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980); Russell v. Russell, 386 So.2d 758 (Ala.Civ.App.1980). However, the 1980 judgment did not modify the 1979 agreement and judgment. The agreement authorized an equal division of [the parties’] equity in the property should the house be sold and no alteration as to such provision was made by the latest judgment. The agreement was ambiguous since it did not state how, when, by whom or in what manner the house would be sold, and the judgment clarified such matters. By virtue of the agreement of the parties, the court originally had jurisdiction of the property. By operation of law, the circuit court retained jurisdiction for any further judgments which might be subsequently required in order to enforce, implement or make a final disposition of the matter. For the purposes of appeal, the 1979 divorce judgment was final; yet, it was also interlocutory in nature ‘insofar as necessary to implement or enforce the provisions as to final disposition of the property by sale and division of the proceeds. (Citations omitted).’ Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973). In Haney the husband raised the same issue as is here involved and it was there decided contra to him.”

Mayhan v. Mayhan, 395 So.2d at 1023-24 (emphasis added). See also Boyd v. Boyd, 447 So.2d 790, 793 (Ala.Civ.App.1984) (“For appeal purposes the 1979 divorce judgment was a final judgment, but it also continued to be interlocutory in nature in the event it became essential to augment, refine, clarify, or enforce its provisions regarding a sale of the marital residence.... The trial court, by operation of law, retained jurisdiction so that any future orders or judgments could be entered as might be prudent in order to enforce, implement, or finally dispose of the entire case by effecting a sale of the home of the parties.”).

The September 22, 2008, judgment was a final judgment, but that judgment was also interlocutory in the sense that the trial court might need to clarify or enforce paragraph 8 of that judgment. Thus, the trial court in this case retained jurisdiction to consider the dispute between the parties regarding whether Nelson had properly complied with paragraph 8 of the September 22, 2008, judgment.

Also, the dissent’s concern about any defect in service of process implicates personal jurisdiction rather than subject-matter jurisdiction. Nelson did not raise an argument pertaining to service of process either in the trial court or in this court. Therefore, any such error was waived. Rule 12(h)(1), Ala. R. Civ. P. (“A defense of ... insufficiency of process [ ] or insufficiency of service of process is waived” if not raised in a responsive pleading or motion.). Accordingly, we reach the merits of the appeal.

On appeal, Kimbrough contends that the trial court erred “as a matter of law” in ruling in favor of Nelson. Kim-brough alleges that the new road does not comply with the terms of paragraph 8 of the September 22, 2008, judgment, and she alleges that the new road crosses the property of a third party rather than the property belonging to Nelson. Kim-brough asserts arguments and cites case-law pertaining to easements.

Stephens argues that the May 24, 2012, judgment constituted an impermissible modification of the original, September 22, 2008, judgment more than 30 days after the entry of that judgment. See George v. Sims, 888 So.2d 1224, 1227 (Ala.2004) (“Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors.”). Stephens also argues that the trial court failed to address certain arguments pertaining to an implied or apparent easement and that the trial court erred, after inspecting the property, in determining that the new road met the requirements of paragraph 8 of the September 22, 2008, judgment.

The parties did not present evidence to the trial court during the hearing on the merits. The record on appeal contains no transcript of the hearing on the merits or of the postjudgment-motion hearing. Thus, this court is unable to determine what arguments were presented to the trial court. The only evidence considered by the trial court before it entered its May 24, 2012, judgment was its own observation of the property and the roads at issue. We note that, in situations in which a trial court has received ore tenus evidence and also has traveled to the disputed property to observe the property, the presumption in favor of the trial court’s judgment is enhanced by the court’s having viewed the property. Bell v. Jackson, 530 So.2d 42, 44 (Ala.1988); Wallace v. Putman, 495 So.2d 1072, 1075 (Ala.1986). In this case, because the trial court received no other evidence, the presumption of correctness in favor of the trial court’s May 24, 2012, judgment arises based on its having viewed the property.

In his brief to this court, Stephens cites, as support for his arguments, the affidavits he submitted in support of his post-judgment motion. It is not clear whether the trial court considered that evidence, especially given Nelson’s motion to strike the evidence Stephens and Kimbrough had submitted in support of their post-judgment motions. See J.S.M. v. P.J., 902 So.2d 89, 91 n. 2 (Ala.Civ.App.2004) (noting that this court had not considered evidence submitted in support of a postjudgment motion when the record did not indicate whether the trial court had considered that evidence). We note that neither Stephens nor Kimbrough has offered an explanation regarding why the evidence they sought to offer after the entry of the judgment on the merits could not have been submitted to the trial court to assist it in reaching its judgment.

In this case, it is clear that, during the postjudgment-motion hearing, the trial court did allow the parties to submit some evidence. In its August 10, 2012, post-judgment order, the trial court stated that it had considered “some photographs and other exhibits.” The parties did not submit to this court a transcript or a statement of the evidence or proceedings from the hearing on the merits or the hearing on the postjudgment motions. See Rule 10(d), Ala. R.App. P. (“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.”). Therefore, this court is unable to determine whether the trial court considered exhibits submitted in support of the postjudgment motions or whether other, or additional, exhibits were submitted by the parties. Regardless, none of the parties submitted in support of their arguments any photographs, and, therefore, none of the photographs considered by the trial court during the postjudgment-motion hearing are contained in the record on appeal. Accordingly, because it is clear that the trial court considered evidence not set forth in the record on appeal, this court must presume that that evidence supported its postjudgment order. Berryhill v. Mutual of Omaha Ins. Co., 479 So.2d 1250, 1251 (Ala.1985) (“Where all the evidence is not in the record, it will be presumed that the evidence was sufficient to sustain the verdict or judgment.”); Henning v. Henning, 26 So.3d 450, 453 (Ala.Civ.App.2009) (“ Where ... evidence before the trial court ... is not preserved for the appellate court, the evidence is conclusively presumed to support the trial court’s [judgment].’ ” (quoting White v. White, 589 So.2d 740, 743 (Ala.Civ.App.1991))).

This court is unable to review the arguments set forth by Kimbrough and Stephens in their appellate briefs. Although Kimbrough has maintained that the trial court erred “as a matter of law,” the record lacks evidence that would enable this court to determine whether the facts upon which Stephens and Kimbrough base their purported legal arguments are accurate. Thus, this court is unable to discern, based on the record presented to it, whether the trial court correctly determined that the new road complies with paragraph 8 of the September 22, 2008, judgment, whether the May 24, 2012, judgment constituted an impermissible modification of the earlier judgment, or whether the trial court erred with regard to some aspect of the law pertaining to easements. “[I]t is well settled that the appellant has the burden of ensuring that the record on appeal contains sufficient evidence to warrant a reversal.” Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000). Also, it is clear that in reaching its May 24, 2012, judgment and its postjudgment order, the trial court relied on evidence not available to this court. Accordingly, we cannot say that Kimbrough or Stephens has demonstrated error on appeal. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN and DONALDSON, JJ„ concur.

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

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I respectfully dissent from the main opinion. Timothy Edward Stephens and Rebecca Lynn Stephens Kimbrough both filed a “motion to compel and for temporary relief and for specific acts” and asserted that the motions were filed pursuant to Rule 70, Ala. R. Civ. P. However, ‘[i]t is well settled that “[t]his Court will look at the substance of a motion rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.” ’ ” Turner v. Moore, 76 So.3d 842, 844 (Ala.Civ.App.2011) (quoting Brasfield & Gorrie, LLC v. Soho Partners, LLC, 35 So.3d 601, 604 (Ala.2009) (quoting in turn Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005))).

Rule 70 recognizes a trial court’s authority to enforce its own judgment; however, “Rule 70 is intended primarily to prevent recalcitrant parties from frustrating court orders for the performance of specific acts.” 13 James W. Moore et al., Moore’s Federal Practice ¶ 70.02[1] (3d ed. 2013). See also 12 Charles A Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3021 (2d ed. 1997)(“Rule 70 gives the courts ample power to deal with parties who seek to thwart judgments by refusals to comply with orders to perform specific acts.”); 2 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated 867 (4d ed. 2004)(“0nce a party has been ordered to do specific acts, and fails, five different remedies ... are available.... ”).

Based on my review of the record, I conclude that Rule 70 was not the appropriate remedy to compel Kathryn Nelson to remove the gates from the disputed roadway. Instead, the “motions] to compel” filed by Stephens and Kimbrough should be considered motions for contempt. See T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002) (quoting State v. Thomas, 550 So.2d 1067, 1072 (Ala.1989))(“ ‘Civil contempt seeks to compel or coerce compliance with orders of the court....’”). It is well settled that the filing of a contempt motion subsequent to the entry of a final judgment initiates a new proceeding, see generally Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007), which requires the payment of a filing fee. See Kaufman v. Kaufman, 934 So.2d 1073, 1082 (Ala.Civ.App.2005); Farmer v. Farmer, 842 So.2d 679, 680 (Ala.Civ.App.2002).

I further note that Stephens and Kim-brough requested that the trial court order Nelson to permanently remove the gates or to construct a road that complied with the requirements set out in the trial court’s September 22, 2008, judgment. In its September 22, 2008, judgment, the trial court granted each party “a nonexclusive easement across the existing roadways which transverse the subject property.” That judgment ‘“ascertain[ed] and declare[d] the rights of the parties and settle[d] the equities,’ ” McCulloch v. Roberts, 290 Ala. 303, 305, 276 So.2d 425, 426 (1973) (quoting Carter v. Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932)), and was therefore a final judgment. The gates across the disputed road were not erected until well after the entry of the trial court’s September 22, 2008, judgment; therefore, this issue was clearly raised for the first time in the “motion[s] to compel.” Thus, Stephens and Kimbrough purported to initiate new claims for an injunction against Nelson. See Bates v. Stewart, 99 So.3d 837, 851 (Ala.2012) (quoting Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 689-90 (Ala.2009)(quoting in turn Black’s Law Dictionary 788 (7th ed. 1999))) (“[A]n injunction is defined as ‘ “[a] court order commanding or preventing an action.” ’ ”).

Although Stephens and Kimbrough attempted to initiate new causes of action for contempt and injunctive relief via motions filed pursuant to Rule 70, and although the trial court purported to consider and rule upon the new causes of action, I conclude that the trial court’s May 24, 2012, judgment was void because the new actions for contempt and an injunction should have been assigned a “.01” suffix by the trial court’s clerk and would have required the payment of a new filing fee and new service of process pursuant to Rule 4, Ala. R. Civ. P. See Johnson v. Hetzel, 100 So.3d 1056, 1057 (Ala.2012) (holding that because there was neither payment of a filing fee nor filing of a court-approved verified statement of substantial hardship the circuit court did not have jurisdiction to enter a judgment); M.M. v. B.L., 926 So.2d 1038, 1041-42 (Ala.Civ.App.2005) (dismissing the father’s appeal taken from a judgment purportedly entered on grandparents’ adoption petition because the petition was not properly filed in the action pending at that time before the juvenile court, the petition was not served on the father as required by the Alabama Rules of Civil Procedure, and no filing fee was paid, which was required to initiate a new action; as a result, the juvenile court lacked subject-matter jurisdiction to grant the adoption petition).

In my opinion, because no filing fee was paid and because Nelson was not served the trial court lacked subject-matter jurisdiction to consider the motions filed after the final judgment was entered. Therefore, I conclude that the trial court’s judgment entered on May 24, 2012, is void and will not support an appeal. Consequently, I would dismiss this appeal with instructions to the trial court to vacate all orders stemming from the filing of Stephens’s and Kimbrough’s “motions] to compel and for temporary relief and for specific acts.” See Vann v. Cook, 989 So.2d 556, 559-60 (Ala.Civ.App.2008).

      . The record indicates that Debra J. Stephens is Stephens’s wife, but she is not a party to this action or to the September 22, 2008, judgment.

      . Each of the two 2011 “motions to compel” was in the nature of a motion for contempt. Therefore, a filing fee was due for those motions. However, we disagree with the dissent's conclusion that the payment of a filing fee was a requirement implicating the subject-matter jurisdiction of the trial court.

      . In her response to Stephens’s and Kim-brough's postjudgment motions, Nelson disputed the allegation that the new road was placed on the property of a third party. Instead, she alleged that the new road was on property formerly owned by a third party and that that property is now owned by Stephens and Kimbrough.

      . Nelson contends that those arguments were not raised before the trial court entered its May 24, 2012, judgment.

      . Rule 70, Ala. R. Civ. P„ is substantially similar to Rule 70, Fed. R. Civ. P.