author: THOMPSON, Judge.

text:
    Cleveland HOLMES v. MACON COUNTY BOARD OF EDUCATION and Willie C. Thomas, in his official capacity as superintendent of education of the Macon County School District.
    2050967.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.
    Rehearing Denied Feb. 16, 2007.
    William F. Patty of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery; J. Cecil Gardner of Gardner, Mid-dlebrooks, Gibbons, Olsen & Walker, P.C., Mobile; and Sam Heldman of Gardner, Middlebrooks, Gibbons, Olsen & Walker, Washington D.C., for appellant.
    Deborah Hill Biggers, Tuskegee Institute, for appellees.
   THOMPSON, Judge.

Cleveland Holmes appeals from a summary judgment entered in favor of the Macon County Board of Education and Willie C. Thomas, in his official capacity as superintendent of education of the Macon County School District (hereinafter collectively referred to as “the defendants”) following the termination of his employment as a probationary principal during the 2004-2005 school year. We affirm.

On July 1, 2004, Holmes and the Macon County Board of Education entered into a “Principal Employment Contract” wherein Holmes was hired as the principal of the Tuskegee Institute Middle School. The contract provided, in pertinent part, as follows:

“The Contract Principal shall be employed as a probationary principal for a period of twelve months beginning on the 2nd day of August, 2004 and expiring on the 30th day of June 2005.... After completion of the probationary period, the board may terminate the Contract Principal for any reason or without a stated reason. The Contract Principal is not entitled to a hearing if the Contract Principal is terminated at the end of the probationary period. If the Contract Principal is not terminated at the end of the probationary period, the Contract Principal shall be employed for a period of 3 years beginning the day after completion of the probationary period.”

Willie C. Thomas, the superintendent, notified Holmes in a letter dated March 2, 2005, that Holmes’s employment contract would not be renewed following the expiration of Holmes’s probationary period on June 30, 2005. During an April 21, 2005, meeting of the Board, the Board voted unanimously not to extend Holmes’s employment contract beyond the completion of the probationary period. On May 9, 2005, Thomas notified Holmes, in compliance with § 16-24B-3, Ala.Code 1975, that the Board had voted not to extend Holmes’s employment contract.

On May 24, 2005, Holmes filed an action requesting injunctive relief and an expedited evidentiary hearing pursuant to § 16-24B-3(e)(2), Ala.Code 1975, for the purpose of presenting evidence in support of his allegation that his employment contract was not renewed for political and personal reasons. On June 23, 2005, the defendants moved to dismiss the cause of action pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that, given his status as a probationary principal, Holmes had failed to state a claim upon which relief could be granted.

On July 1, 2005, Holmes filed a motion for a summary judgment and a response to the defendants’ motion to dismiss. In support of his summary-judgment motion, Holmes attached his own affidavit, a copy of the manual for the Professional Education Personnel Evaluation System of Alabama (“PEPE”), a copy of Holmes’s May 26, 2005, PEPE, and a copy of a June 8, 2005, letter written by Holmes to Thomas objecting to the evaluation results. On August 1, 2005, the defendants filed an opposition to Holmes’s summary-judgment motion and filed documents in support of their motion to dismiss, seeking to convert their motion to dismiss to a motion for a summary judgment on Holmes’s claims. See American Trust Corp. v. Champion, 793 So.2d 811, 813 (Ala.Civ.App.2001) (“When a trial court considers matters outside the pleadings in ruling on a defendant’s motion to dismiss filed pursuant to Rule 12(b)(6), Ala. R. Civ. P., the motion is converted into a motion for a summary judgment.”).

In support of their summary-judgment motion, the defendants attached exhibits, including the affidavit of Thomas; Holmes’s probationary-employment contract for the 2004-2005 academic year; PEPE documents regarding Holmes; and copies of two grievances made in February 2005 and filed with the Alabama Education Association regarding Holmes’s performance as a principal. The defendants later supplemented their response and motion for a summary judgment with a second affidavit of Thomas; additional PEPE documents regarding Holmes; and a copy of this court’s decision in Gartman v. Limestone County Board of Education, 939 So.2d 926 (Ala.Civ.App.2006).

Following a hearing, the trial court entered a detailed judgment on June 20, 2006, granting the defendants’ motion for a summary judgment and denying Holmes’s motion for a summary judgment. Holmes appealed to our supreme court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Holmes contends on appeal that the trial court erred in entering a summary judgment in favor of the defendants. He argues that he presented evidence creating a genuine issue of material fact as to whether the Board completed a mandatory evaluation of him 90 days before the end of his probationary period; he contends that such an evaluation was required before his employment could be terminated.

In granting the defendants’ summary-judgment motion, the trial court found that this court’s decision in Gartman v. Limestone County Board of Education, supra, holding that a probationary principal is not entitled to 90 days’ notice of termination, was controlling. The trial court determined that Holmes was a probationary principal and, as such, was not entitled to 90 days’ notice prior to termination of his employment. Regarding Holmes’s evaluation, the trial court concluded that any delay in Holmes’s evaluation was proximately caused by Holmes.

A motion for a summary judgment is properly granted where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (quoting Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Holmes contends that § 16-24B-3(i)(1), a part of the “Teacher Accountability Act,” § 16-24B-1 et seq., Ala.Code 1975 (“the Act”), requires that he be evaluated annually “in a manner prescribed by the State Board of Education.” Section 16-24B-3(i)(1), Ala.Code 1975, states in its entirety that “[t]he chief executive officer, or his or her designee, shall at least annually evaluate the performance of each contract principal. The evaluation shall be performed in a manner prescribed by the State Board of Education.” Pursuant to the PEPE manual published by the Alabama Department of Education, “[t]he evaluation for contract principals must be completed at least 90 days prior to the termination of the contract period.”

Section 16-24B-2, Ala.Code 1975, a part of the Act, defines both contract principals and probationary principals. Section 16-24B-2(2), Ala.Code 1975, defines a “contract principal” as “only those persons hired on or after July 1, 2000, and certified for the position of principal as prescribed by the State Board of Education and who are employed by an employing board as the chief administrator of a school, including a vocational center.” A “probationary principal” is defined as “[a]ny principal hired for the first time in any local school system as a principal on or after July 1, 2000.” § 16-24B-2(8), Ala.Code 1975.

In Gartman v. Limestone County Board of Education, supra, this court discussed the difference between a contract principal and a probationary principal while considering whether Gartman, a probationary principal, was entitled to a 90-day notice of her termination before the end of the school year pursuant to § 16-24B-3(c), Ala.Code 1975. Relying on principles of statutory construction, this court held that the Act distinguished contract principals from probationary principals and, when read as a whole, precluded the application of the 90-day notice requirement of § 16-24B-3(c) to probationary principals. In support of our holding in Gartman, we explained as follows:

“ ‘It is a well-settled rule of statutory construction that courts ascertain the Legislature’s intent in enacting a statute from the language used in the statute itself, as well as from the reason for the statute and the goals the Legislature seeks to accomplish through the statute.’ Alabama Bd. of Pardons & Paroles v. Brooks, 802 So.2d 242, 247 (Ala.Civ.App.2001) (citing McGuire Oil Co. v. Mapco, Inc., 612 So.2d 417 (Ala.1992)). Words used in a statute are to be given their natural, plain, ordinary, and commonly understood meaning. IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). ‘Further, it is well established that “ ‘[s]ections of the Code dealing with the same subject matter are in pan materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.’ ” ’ State v. Amerada Hess Corp., 788 So.2d 179, 183 (Ala.Civ.App.2000) (quoting New Joy Young Rest., Inc. v. State Dep’t of Revenue, 667 So.2d 1384, 1387 (Ala.Civ.App.1995) (quoting in turn Locke v. Wheat, 350 So.2d 451, 453 (Ala.1977))). ‘In construing a statute, the court must consider the entire statute and not an isolated part, giving to every clause effect in light of the subject matter and purpose of the enactment.’ Standard Oil Co. v. State, 55 Ala.App. 103, 111, 313 So.2d 532, 539 (Civ.1975). ‘Statutory construction dictates that in construing a statute, a court must, if possible, avoid a construction that would place statutes in conflict with other statutes, and statutes should be resolved in favor of each other, when possible, so as to form one harmonious plan.’ Bryce Hosp. Credit Union, Inc. v. Warrior Dodge, Inc., 50 Ala.App. 15, 21, 276 So.2d 602, 607 (Civ.1973).”

Gartman, 939 So.2d at 929. The same principles of statutory construction relied on by this court in Gariman apply in this case.

According to Holmes, the defendants did not complete an evaluation of him as mandated in § 16—24B—3(i)(1), and, thus, he asserts, pursuant to § 16-24B-2(m), Ala. Code 1975, his employment should have been extended by at least one year. However, both § 16—24B—3(i)(1) and the PEPE manual provide only for the evaluation of contract principals and not for the evaluation of probationary principals. The Act distinguishes between contract principals and probationary principals. By making this distinction, we must assume that the legislature intended to limit the application of § 16-24B-3(i)(1) to contract principals.

It is undisputed that Holmes entered into an employment contract with the Board wherein he was hired as a probationary principal for a period of one year. Because Holmes was a probationary principal, he was not entitled, pursuant to § 16-24B-3(i)(1), to an evaluation 90 days prior to the termination of his contract. Accordingly, the trial court’s summary judgment in favor of the defendants is due to be affirmed.

AFFIRMED.

CRAWLEY, P.J., and PITTMAN and BRYAN, JJ., concur.

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

      . Section 16-24B-3(e)(2)a., Ala.Code 1975, provides, in pertinent part, that, when the employing board decides not to renew the principal’s contract at the end of its current term, "the contract principal, by filing written notice with the chief executive officer, may request a nonjury, expedited evidentiary hearing to demonstrate that the chief executive officer’s or supervisor’s recommendation to nonrenew the contract was impermissibly based upon a personal or political reason. ...’’

      . Section 16-24B-3(m), Ala.Code 1975, states that "[i]f a contract principal is not evaluated as required by this section, his or her contract shall be extended one additional contract year for each contract year not evaluated up to three years.”


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    STATE ex rel. T.S.H. v. W.H.
    2050842.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., Department of Human Resources, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

This appeal concerns the propriety of a judgment denying relief under Rule 60(b), Ala. R. Civ. P., from certain provisions of a divorce judgment pertaining to issue of the marriage.

In July 2001, T.S.H. (“the wife”) filed a complaint in the Jefferson Circuit Court seeking a judgment of divorce against W.H. (“the husband”) on the grounds of an irretrievable breakdown of the marriage and incompatibility. In her complaint, the wife alleged, among other things, that “[n]o children were born during the marriage of the parties”; she also filed a Form CS-47 “Child Support Information Sheet” bearing a checked box indicating that there were “[n]o minor children) ... subject to this action” and an affidavit in which she testified that “[n]o children were born to me during my marriage to [the husband].” The trial court entered a one-page final judgment divorcing the parties in September 2001.

In February 2005, the State of Alabama, styling itself as petitioner, filed in the trial court a “Petition to Amend and Extend Pursuant to Rule 60(b)(6) of [the Alabama Rules of Civil Procedure].” In that petition, the State alleged that a minor child, D.K.H. (“the child”), had been “born ... to the parties during the marriage”; that the wife had received support services from Alabama’s Department of Human Resources (“DHR”) pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.); and that there had been a change in circumstances since the entry of the July 2001 divorce judgment in that the wife allegedly was now in need of support from the husband for the child. The State requested, among other things, that the trial court “amend and extend” the divorce judgment so as to award the wife a “reasonable amount” of child support; to award retroactive child support pursuant to § 30-3-110 et seq., Ala.Code 1975; and to direct the husband to pay support through the State’s child-support-collection agent.

After denying a motion to enter a default judgment against the husband, who had failed to appear, the trial court entered an order that provided, in pertinent part:

“This matter came on to be heard on the state’s Motion to Intervene and other pleadings as noted in the file. The Court, having reviewed the file does hereby issue the following Order based on that review. It is therefore,
“Ordered and adjudged by the Court as follows:
“That the petition herein is denied.
“The Court finds that the [wife] by sworn affidavit in the original divorce case herein specifically denied that there were any children born of the marriage, that she was not pregnant and no children were adopted during [her] marriage to the [husband].
“This Court will not permit the [wife] to now come before it and seek to set aside that sworn testimony.
“If in fact she desires to pursue [the husband] as the father, she may do so in another Court but not this one.”

The trial court subsequently denied the State’s motion to alter, amend, or vacate the order, and the State now appeals.

‘“The decision to grant or deny a Rule 60(b)(6) motion is within the discretion of the trial judge. The only issue we consider on an appeal from the denial of a Rule 60(b) motion is whether, by denying the motion, the trial court abused its discretion. Therefore, an appeal from the denial of a Rule 60(b)(6) motion “does not present for review the correctness of the judgment that the movant seeks to set aside, but presents for review only the correctness of the order from which the appeal is taken.”
“ ‘Rule 60(b)(6) is an extreme remedy and relief under Rule 60(b)(6) will be granted only “in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.” The purpose of Rule 60(b)(6) is not to relieve a party from a free and deliberate choice the party has previously made.’ ”

Ex parte Phillips, 900 So.2d 412, 418-19 (Ala.2004) (quoting Wood v. Wade, 853 So.2d 909, 912-13 (Ala.2002)) (citations omitted).

Did the trial court act outside the limits of its discretion in denying the State’s motion? To answer that question, we accept the applicability of, but must look beyond, the general principles asserted in the State’s brief: that the husband is presumed to be the father of a child born during his marriage to the mother, that a parent’s duty to provide support and a child’s entitlement to support are fundamental, that a child should not be bastardized upon technicalities, and that circuit courts have the power to modify child-support judgments. The pertinent substantive question presented in this case is whether the trial court properly concluded, as it did, that it should not grant relief under Rule 60(b)(6) to a party asserting a position that is contrary to a previously asserted position, ie., that the husband and the wife did not have any children.

In seeking a divorce from the husband, the wife, proceeding through counsel, filed a complaint in the trial court that stated that “[n]o children were born during the marriage of the parties.” The wife’s affidavit, given under oath and filed in support of her complaint, explicitly states that the facts she set forth therein' — including that “[n]o children were born to [her] during [her] marriage to the [husband]”— were “true and correct[ ] according to the best of her knowledge, information and belief.” The wife’s complaint was not opposed by the husband, and the trial court, acting on the allegations of the wife in her complaint and the statements in her affidavit, entered a judgment that did not address custody of or support for any children of the marriage. The State’s motion, in contrast, asserted a wholly contradictory position on the wife’s behalf: that the child was actually a child of the parties’ marriage as to which support should have been awarded at the time of the parties’ divorce.

Although the trial court did not, in so many words, invoke any particular legal doctrine in reaching its conclusions, we conclude that the trial court’s denial of relief is supported by the doctrine of judicial estoppel. As noted in Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992), judicial estoppel “ ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted,’ ” and “ ‘looks to the connection between the litigant and the judicial system.’ ” Id. (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988)). Although “ ‘ “[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” ’ ” Ex parte First Alabama Bank, 883 So.2d 1236, 1244 (Ala.2003) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)), several factors are said to govern the applicability of the doctrine of judicial estoppel:

“ ‘(1) a party’s later position must be “clearly inconsistent” with its earlier position’; (2) the party must have been successful in the prior proceeding so that ‘judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or second court was misled” ’; and (3) the party seeking to assert an inconsistent position must ‘derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ”

Id. at 1244-45 (citations omitted). In this case, the trial court could properly have determined that the wife’s assertion that no children were born to her during the marriage was clearly inconsistent with the later assertion that the child was born to her and to the husband during the marriage; that the trial court had entered a divorce judgment that contained no custody or support provisions in reliance upon the wife’s representations; and that to allow the wife to now contradict her original complaint and her previous sworn affidavit testimony several years after a judgment had been entered would unfairly work to her advantage and the husband’s detriment.

Moreover, the primary authorities cited by the State do not compel reversal. In Bishop v. Robinson, 516 So.2d 723 (Ala.Civ.App.1987), we affirmed a judgment entered in a paternity proceeding brought by a former husband after a divorce judgment had been entered on pleadings in which the question whether there had been any children of the marriage had not been settled, i.e., the former husband had denied the pertinent allegation of the wife’s divorce complaint. The alleged child of the divorced husband and wife in Tatum v. Kelley, 481 So.2d 1132 (Ala.1985), was held to be entitled to litigate the question of her paternity in an inheritance setting because the child had not been a party to the divorce proceeding and had not been in privity with either party thereto; here, the wife has been a party since the action was filed. Finally, we can read our affirmance in Coburn v. Coburn, 474 So.2d 728 (Ala.Civ.App.1985), only as authorizing, not compelling, a trial court under certain circumstances to exercise its discretion under Rule 60(b)(6) to reopen a judgment of divorce so as to reconsider the paternity of a child allegedly born to the parties during their marriage.

Based upon the procedural setting and the facts of this case, we are compelled to conclude that the trial court did not act outside its discretion in denying the Rule 60(b) motion. For that reason, the order from which the State has appealed is due to be affirmed. We emphasize, however, that our affirmance does not, and is not intended to, forever preclude all consideration of the paternity of the child at issue in this case. As we stated in State ex rel. T.L.K. v. T.K., 723 So.2d 69, 71 (Ala.Civ.App.1998), “the State’s ability to seek to recoup the public assistance benefits paid for the benefit of a child whose paternity has not been determined is derivative of the rights of the mother and the child” (emphasis added). There is no indication that the child was made a party to the divorce proceeding at issue, nor that a guardian ad litem was appointed to represent any children of the parties; thus, under current Alabama law, the child would be free to assert a separate paternity claim against the husband notwithstanding the trial court’s order in this case. See Harris v. Mitchell, 958 So.2d 884 (Ala.Civ.App.2006). Additionally, under § 30-3-110 et seq. and § 38-10-1 et seq., Ala. Code 1975, DHR may have standing to bring an action in its own name to obtain a judgment for retroactive support.

AFFIRMED.

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

BRYAN and MOORE, JJ., concur in the result, without writing.

      . The denial of relief under Rule 60(b) is appealable. See Ex parte King, 821 So.2d 205, 209 (Ala.2001).


author: MOORE, Judge.

text:
    Joy B. McCARTNEY v. Michael Henry McCARTNEY.
    2041048.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      L. Stephen Wright, Jr., and Sara J. Senesac of Najjar Denaburg, P.C., Birmingham, for appellant.
    Jack W. Torbert of Torbert & Torbert, P.A., Gadsden, for appellee.
   On Application for Rehearing.

MOORE, Judge.

This court’s opinion issued on March 9, 2007, is withdrawn, and the following is substituted therefor.

Joy B. McCartney (“the wife”) appeals from the trial court’s final judgment divorcing her from Michael Henry McCartney (“the husband”). We affirm in part, reverse in part, and remand.

The husband filed a complaint for divorce on December 8, 1998. In his complaint, he requested joint custody of the three children born of the marriage: a daughter born on October 14, 1981, a daughter born on November 5,1984, and a son born on June 23, 1988. On December 16, 1998, the wife filed an answer and a counterclaim for divorce in which she requested custody of the children. On September 26, 2000, the husband amended his complaint to request custody of the children. On October 10, 2000, the wife filed an amendment to her counterclaim, stating: “Plaintiff amends her complaint to request that she be provided support for the oldest child of the parties who will reach the age of 19 on October 14, 2000, due to the child’s current disability.”

On October 27, 2000, April 16, 2001, and April 17, 2001, the trial court held a trial in which it received ore tenus evidence. On April 19, 2005, the trial court divorced the parties. In the divorce judgment, the trial court found that the husband’s misconduct had caused the irretrievable breakdown of the marriage.

In pertinent part, the divorce judgment awarded the parties joint custody of the son and awarded the husband primary physical custody of the son; the wife was granted visitation with the son. The trial court ordered the husband to pay all medical, dental, orthodontic, visual, or psychological expenses for the son, and it required the husband to maintain an insurance policy for the benefit of the son. There was no provision in the divorce judgment regarding postminority support for the older daughter.

Pursuant to the divorce judgment, the wife was awarded the marital residence, and the husband was ordered to pay the monthly mortgage payment on the marital residence until it is paid in full. There was no testimony regarding the value of the marital residence, but the evidence showed that the residence was insured for $222,200. The wife was also awarded the household goods, furniture, fixtures, and appliances at the marital residence; her automobile; her retirement benefits; and her shares of stock in Ok, Inc. The evidence showed that the wife’s retirement accounts were valued at $71,644.40 and that her stock was valued at $250,000. The court also awarded the wife alimony in gross in the amount of $150,000 and $2,000 per month in periodic alimony.

The husband was awarded his retirement accounts, which were valued at $446,209.04. He was also awarded “all other property in his possession and control including real estate, furniture, appliances, automobile(s) and corporate stock.” The record reveals that the father had a Merrill Lynch CMA account valued at $46,973 and an interest in McCartney Construction Co., LLC, valued at $116,000. The court found that the husband’s stock interests in “McCartney Construction Co.,” Calhoun Asphalt Company, Inc., and SouthTrust Bank were part of his separate estate and were not marital assets.

On May 12, 2005, the wife filed a motion to alter, amend, or vacate the divorce judgment or, in the alternative, for a new trial. The trial court held a hearing on the wife’s motion on June 28, 2005; the motion was denied by operation of law on August 10, 2005. On September 2, 2005, the wife filed her notice of appeal.

Property Division/Alimony

The wife first contends that the trial court erred in its property division and its award of alimony.

“In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment based on those findings will be presumed to be correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). This presumption of correctness is based on the trial court’s unique position to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Additionally, matters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). Factors the trial court should consider in its award of alimony and its division of property include the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; them station in life; the marital properties and their sources, values and types; and the conduct of the parties in relation to the marriage. Id., at 1067. Further, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Id.”

Henderson v. Henderson, 800 So.2d 595, 597 (Ala.Civ.App.2000).

The wife specifically argues that the trial court should have considered the husband’s stock in McCartney Construction Co., Inc., Calhoun Asphalt Company, Inc., and SouthTrust Bank in dividing the property and awarding alimony. The trial court, however, found that the husband’s stock interest in McCartney Construction Co., Inc., Calhoun Asphalt Company, Inc., and SouthTrust Bank were part of his “separate estate” and were not marital assets.

In Nichols v. Nichols, this court explained what is meant by the term “separate estate”:

“A party’s ‘ “separate estate” is that property over which [he or] she exercises exclusive control and from which the [spouse] ... derives no benefit by reason of the marital relationship.’ Gartman v. Gartman, 376 So.2d 711, 713 (Ala.Civ.App.1978). The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage. § 30-2-51 (a), Ala.Code 1975. Although marital property generally includes property' purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during their marriage. See § 30-2-51(a), Ala.Code 1975.”

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

Section 30-2-51(a), Ala.Code 1975, provides:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

On appeal, the wife does not dispute that the stock in McCartney Construction Co., Inc., Calhoun Asphalt Company, Inc., and SouthTrust Bank were gifts to the husband. She argues, however, that the income from those stocks was regularly used “for the common benefit of the parties during their marriage.” 30-2-51(a), Ala.Code 1975.

After reviewing the record, we find no evidence indicating that the husband used the stock in McCartney Construction Co., Inc., and Calhoun Asphalt Company, Inc., for the common benefit of the parties. Accordingly, the trial court properly concluded that those stocks should not be included in the property-division award.

With regard to the SouthTrust Bank stock, it was undisputed that the husband received dividends from that stock. At trial, however, the parties disputed whether the dividends had regularly been used for the common benefit of the parties during the marriage. There was evidence in support of both sides. The husband testified that the SouthTrust Bank dividends were reserved for his own personal use. The wife testified, however, that the SouthTrust Bank dividends were deposited into the parties’ joint checking account to pay household expenses until several years before the hearing. She also presented documentation purporting to show that portions of the dividends had been deposited into the joint checking account five times between 1987 and 1990.

Because it is the duty of the trial court, and not this court, to weigh the evidence, we conclude that the trial court could properly have found that the dividends had not been regularly used for the common benefit of the parties during the marriage. Nichols v. Nichols, 824 So.2d at 802 (“The trial judge is granted broad discretion in determining whether property purchased before the parties’ marriage or received by gift or inheritance was used ‘regularly for the common benefit of the parties during the marriage.’ ” (quoting § 30-2-51)). Accordingly, the trial court did not err in failing to award the wife a portion of the SouthTrust Bank stock. Campbell v. Campbell, 494 So.2d 101, 102 (Ala.Civ.App.1986) (holding that “the trial court could have concluded that the evidence was insufficient to prove that the interest income from the certificates of deposit had been used regularly for the benefit of the parties .... Therefore, the trial court did not err by refusing to award the wife a part of the husband’s certificates of deposit.”).

Even if the trial court had determined that the dividends from the South-Trust Bank stock had been regularly used for the common benefit of the parties during the marriage, it was not required to award the wife a portion of the stock. Instead, the trial court had the discretion whether to consider the stock in making its property-division award. Ex parte Drummmond, 785 So.2d 358, 362 (Ala.2000) (“Nothing in [§ 30-2-51] states that if one party’s inheritance or gifts are used for the parties’ common benefit then the trial judge must consider the inheritance or gifts when making the property division. In fact, the statute leaves such a determination to the discretion of the trial judge.”). Based on the entire property division and the award of alimony, as well as other relevant factors, the trial court acted within its discretion in awarding the SouthTrust Bank stock to the husband.

Finally, in light of our affirmance of the trial court’s judgment insofar as it found that the husband’s stock interests in McCartney Construction Co., Inc., Calhoun Asphalt Company, Inc., and South-Trust Bank were not marital assets, we must determine whether the trial court exceeded its discretion in its division of property and its award of alimony.

In this case, both parties were employed. The husband’s net monthly employment income was between $7,721.09 and $7,955.90. According to the husband’s most recent tax return, his gross monthly interest and dividend income was $1,578.83. The wife’s gross monthly income from her employment as a teacher and from her OK stock dividends was $3,264.

In the divorce judgment, the husband was awarded, among other things, his interest in McCartney Construction Co., LLC, his CMA account, and his retirement accounts; these assets had a total value of $609,182.04. The wife was awarded, among other things, the marital residence, her OK stock, and her retirement accounts; these assets had a total value of $543,844.40. In addition, the wife was awarded alimony in gross in the amount of $150,000, which the husband was allowed to pay in monthly installments of $2,500. The husband was also ordered to pay the monthly mortgage payments in the amount of $1,112 on the marital residence that was awarded to the wife and was ordered to pay the wife periodic alimony in the amount of $2,000 per month. When considering all the factors that a trial court must consider, including the disparity in the parties’ incomes and the fault of the husband in the failure of the marriage, we conclude that the trial court did not exceed its discretion in fashioning its division of property and its award of alimony.

Postminority Support

The wife next argues that the trial court exceeded its discretion in failing to award postminority support for the parties’ oldest child.

“In Alabama, the general rule is that a trial court has no jurisdiction to require a parent to provide support for a child who has reached the age of majority. See Beavers v. Beavers, 717 So.2d 373 (Ala.Civ.App.1997); Whitten v. Whitten, 592 So.2d 183 (Ala.1991). However, there are exceptions to the general rule. The first exception is where the noncustodial parent has agreed to provide support for the child past the age of majority. Beavers, supra (citing Andrews v. Andrews, 437 So.2d 1306 (Ala.Civ.App.1983)). Another exception is that a parent may be required to provide postminority support where the adult child is so mentally or physically disabled that he cannot support himself or herself. Beavers, supra (citing Ex parte Brewington, 445 So.2d 294 (Ala.1983)). Last, a parent may be required to provide postminority support when application for postminority educational support is made before the child reaches the age of majority.”

Penney v. Penney, 785 So.2d 376, 378 (Ala.Civ.App.2000) (quoting Ex parte Cohen, 763 So.2d 253, 256 (Ala.1999)).

“In order to determine whether a[ ] disabled adult child is entitled to postmi-nority support, the ‘trial court must (1) determine that the adult child is not capable of earning an income sufficient to provide for his or her reasonable living expenses and (2) that the adult child’s mental or physical disability is the cause of his or her inability to earn that income.’ ”

Lightel v. Myers, 791 So.2d 955, 958 (Ala.Civ.App.2000).

In this case, the wife testified that the parties’ oldest child had been diagnosed with major depression with psychotic features. It was undisputed that the child had been committed to a mental institution for two months beginning in December 2000. There was conflicting evidence regarding whether the child was capable of earning an income sufficient to provide for her reasonable living expenses.

“[T]he matter of post-minority support rests soundly within the discretion of the trial court after consideration of the appropriate factors.” Abernathy v. Sullivan, 676 So.2d 939, 941 (Ala.Civ.App.1996). In this case, we are unable to review this issue because it is clear that the trial court did not consider “the appropriate factors.” In the hearing on the wife’s postjudgment motion, the following exchange took place:

“THE COURT: ... Is there anywhere in the pleadings where either side asked that there be a determination about [the oldest child’s] disability that the parties should be responsible for them past the age of nineteen?
“MR. LIVINGSTON [attorney for the wife]: I know that we did ask for post-minority support for [the oldest child].
“THE COURT: Well, that would be dealing with college and stuff. It is a whole different ballgame supporting a child because of physical or mental disability. Postminority support is created by a case for educational purposes. It has nothing to do with whether you are responsible for supporting a child past the age of minority.”

The court then made it clear that it had not considered awarding postminority support for the oldest child because it did not believe that the wife had properly presented the issue.

The trial court’s conclusion in this regard was incorrect. As previously noted, postminority support can be for educational purposes or for the purpose of supporting a disabled child who is unable to support himself or herself. Penney, supra; Lightel, supra. The wife properly requested postminority support, asserting that the oldest child was disabled. Evidence was presented on the issue whether the child was disabled and whether any disability caused her to be incapable of earning an income sufficient to provide for her reasonable living expenses. The trial court then had a duty to determine whether, in light of the evidence presented, an award of postminority support was appropriate. We hold that the trial court’s failure to consider the issue of postminority support was error.

Custody

Finally, the wife argues that the trial court exceeded its discretion in awarding custody of the parties’ 16-year-old son to the husband. “A trial court’s custody determination following the presentation of ore tenus evidence is presumed correct, and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong.” Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003). “This court may not substitute its judgment for that of the trial court.” Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). “The controlling consideration in child-custody matters is always the best interests of the child.” Patrick v. Williams, 952 So.2d 1131, 1140 (Ala.Civ.App.2006).

The testimony established that the son had a good relationship with both parties and that both parties were good parents. The son did testify, however, that the wife would often leave him at home with the parties’ younger daughter overnight unsupervised. The son testified at trial that he wanted to live with the husband; however, after the trial, the parties stipulated that the son had changed his mind and wanted to live with the wife. The son’s preference in this matter, however, is not controlling. Estrada v. Redford, 855 So.2d 551, 556 (Ala.Civ.App.2003). We find that there was evidence to support a custody determination in favor of either the wife or the husband. Thus, the trial court did not exceed its discretion in awarding custody of the son to the husband.

Based on the foregoing, we affirm the trial court’s judgment as to the division of property and its award of alimony. We also affirm the trial court’s judgment insofar as it awards custody of the parties’ son to the husband. We reverse the judgment insofar as it failed to address the issue of postminority support for the parties’ oldest child, and we remand the cause for the trial court to make a determination as to whether an award of postminority support should be made for the parties’ oldest child.

APPLICATION GRANTED; OPINION OF MARCH 9, 2007, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The parties' two oldest children had reached the age of majority by the time the trial court entered the divorce judgment.

      . Because there is no stock interest in an LLC, it appears that the trial court did not include the husband's interest in McCartney Construction Co., LLC, in the list of items that were found to be part of the husband's separate property; therefore, the trial court must have found the husband's interest in McCartney Construction Co., LLC, to be marital property. Because this property was not specifically mentioned in the divorce judgment, it was awarded to the husband by virtue of the provision awarding "all other property in his possession and control" to the husband.

      . In the husband's brief in support of his application for rehearing, he raises an argument for the first time that the wife invited the trial court’s error in failing to address the issue of postminority support. Because arguments made for the first time on rehearing are not entitled to consideration, however, we need not address the husband’s argument. Osorio v. K & D Erectors, Inc., 882 So.2d 347, 355 (Ala.Civ.App.2003).
      The husband also argues that this court has placed the trial court in error for not awarding postminority support. The husband misunderstands our holding, which merely directs the trial court to rule as to whether the wife is entitled to postminority support for the oldest daughter.


author: BRYAN, Judge. PITTMAN, Judge,

text:
    EX PARTE ALABAMA STATE BOARD OF CHIROPRACTIC EXAMINERS et al. (In re John Sparks, D.C.; Todd Sayers, D.C.; and Donovan S. Harper, D.C. v. Alabama State Board of Chiropractic Examiners et al.)
    2060864.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2007.

      James S. Ward of Ward & Wilson, L.L.C., Birmingham, for petitioners.
    Glen David King, Auburn; and Randolph P. Reaves, Montgomery, for respondents.
   BRYAN, Judge.

The Alabama State Board of Chiropractic Examiners (“the Board”) and its individual members, Carl E. Nelson, D.C.; Gilíes X. Beaumont, D.C.; Jerry L. Schreiner, D.C.; Ronald F. Ivie, D.C.; Robert Brian Wells, D.C.; Paula D. Gilliam, D.C.; Merritt G. Lett, D.C.; and Jeanett A. Green (“the Board members”) petition this court for a writ of mandamus directing the trial court to grant their motion to dismiss or, in the alternative, for a summary judgment with respect to the action filed against them by John Sparks, D.C.; Todd Sayers, D.C.; and Donovan S. Harper, D.C. (“the plaintiffs”). The Board and the Board members claim that we should issue the writ of mandamus because, they say, the Board and the Board members are entitled to immunity, the plaintiffs lack standing to bring the action, and the plaintiffs’ claims have no merit. We grant the petition in part, deny the petition in part, and issue the writ.

The Board, which was created by the Alabama Legislature, § 34-24-140, Ala. Code 1975, is authorized to control the licensing of chiropractors, § 34-24-161, and is charged with regulating the chiropractic profession, § 34-24-166. Mooneyham v. State Bd. of Chiropractic Exam’rs, 802 So.2d 200, 204 (Ala.2001). The plaintiffs, all of whom are chiropractors, sued the Board and the Board members in their official capacities only, claiming that the Board’s rules governing advertising by chiropractors were unconstitutional and seeking the following relief:

“40. Pursuant to Rule 65 of the Alabama Rules of Civil Procedure, the plaintiffs request this Court to set the matter for a hearing and upon such hearing grant unto them a preliminary injunction enjoining the Board from enforcing its advertising rules until a trial can be had in this cause.
“41. Further, the plaintiffs request this Court to issue a permanent injunction barring the Board from enforcing the advertising rules until they are amended to remove the uncertainty of what chiropractors can advertise and allowing the use of common place words that are used in everyday advertising across Alabama and the rest of the United States.
“42. Upon a trial of this cause, the plaintiffs request a declaratory judgment against the defendants holding the Board’s advertising rules unconstitutional or unconstitutionally applied to the plaintiffs.
“43. The plaintiffs also respectfully request, pursuant to Code of Alabama 1975, Section 6-6-231 attorneys’ fees and costs and point out to the Court that they have shouldered the burden for many other chiropractors across the state of Alabama.”

The Board and the Board members filed a motion to dismiss, or, in the alternative, for a summary judgment based on the grounds, among others, (1) that the Board and the Board members were entitled to immunity, (2) that the plaintiffs lacked standing to bring the action, and (3) that the complaint failed to state a claim upon which relief could be granted. The trial court denied that motion. Thereafter, the Board and the Board members petitioned the supreme court for a writ of mandamus directing the trial court to grant their motion to dismiss or, in the alternative, for a summary judgment. Concluding that the petition for a writ of mandamus was within this court’s jurisdiction, the supreme court transferred the petition to this court. We ordered the filing of an answer and briefs and stayed the trial court’s proceedings, pending our consideration of the petition.

A party seeking a writ of mandamus “must demonstrate: ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (quoting Ex parte Ridgeview Health Care Ctr., Inc., 786 So.2d 1112, 1115 (Ala.2000)).

The issue whether a defendant is entitled to State immunity under Article I, § 14, Ala. Const. of 1901, is jurisdictional. Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala.2002).

“ ‘This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action.’ Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 ([Ala.] 2001). Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.”

Ex parte Alabama Dep’t of Mental Health, 837 So.2d at 810.

Accordingly, although the Board and the Board members primarily argue that they are entitled to a writ of mandamus based on types of immunity other than State immunity under Art. I, § 14, we first consider whether the Board and the Board members are entitled to a writ of mandamus based on State immunity under Art. I, § 14.

“[T]he Board is a State agency and, consequently, is entitled to [Art. I,] § 14 immunity.” Mooneyham, 802 So.2d at 204. The Board members, who have been sued in their official capacities only, are also entitled to Art. I, § 14, immunity. See Burqoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002) (“State agents enjoy absolute immunity from suit in them official capacities.”).

“Article I, § 14, provides that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ The courts have construed this provision to mean that the State of Alabama and its agencies are immune from suit in any court. Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277 (Ala.1996). The provision ‘affords the State and its agencies an “absolute” immunity from suit in any court.’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004). This absolute immunity extends to the State’s agencies. Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000). ...”

Ex parte Walley, 950 So.2d 1172, 1178 (Ala.2006). This absolute immunity from suit also bars suits for relief by way of mandamus or injunction. Ex parte Troy Univ., 961 So.2d 105, 108 (Ala.2006). In addition, Art. I, § 14, also bars claims seeking the recovery of attorney fees and expenses. Ex parte Town of Lowndesboro, 950 So.2d 1203, 1212 (Ala.2006).

“There are exceptions to the State’s sovereign immunity.
“ ‘A state official is not immune from an action that (1) seeks to compel a state official to perform his or her legal duties, (2) seeks to enjoin a state official from enforcing unconstitutional laws, (3) seeks to compel a state official to perform ministerial acts, or (4) seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.’
“Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005). Other actions that are not prohibited by § 14 include:
“ ‘(5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.’
“Drummond Co. [v. Alabama Dep’t of Transp.], 937 So.2d [56] at 58 [ (Ala.2006) ] (emphasis omitted).”

Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007) (footnote omitted). Moreover, § 41-22-10, Ala.Code 1975, provides as follows:

“The validity or applicability of a [State agency’s] rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. In passing on such rules the court shall declare the rule invalid only if it finds that it violates constitutional protections or exceeds the statutory authority of the agency or was adopted without substantial compliance with rule-making procedures provided for in this chapter.”

(Emphasis added.)

In the case now before us, Art. I, § 14, bars the plaintiffs’ claims insofar as they seek an award of attorney fees and costs. See Ex parte Town of Lowndesboro, 950 So.2d at 1212. However, Art. I, § 14, does not bar the plaintiffs’ claims insofar as they seek injunctive and declaratory relief. See § 41-22-10.

The Board and the Board members also argue that they are entitled to a writ of mandamus based on types of immunity other than Art. I, § 14, immunity; however, they have not cited any legal authority holding that those other types of immunity constitute exceptions to the general rule “that, because an ‘adequate remedy’ exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d at 761-62. Therefore, we do not consider their arguments regarding those other types of immunity.

The Board and the Board members also argue that they are entitled to a writ of mandamus because, they say, the plaintiffs lack standing to bring their action because they have never been disciplined for violating the advertising rules of the Board. The Alabama Supreme Court has reviewed the denial of a motion to dismiss or, in the alternative, for a summary judgment grounded on lack of standing on a petition for a writ of mandamus. E.q., Ex parte Sterilite Corp. of Alabama, 837 So.2d 815 (Ala.2002). Therefore, we will consider the argument of the Board and the Board members regarding the plaintiffs’ lack of standing.

Section 41-22-10 authorizes an action for declaratory or injunctive relief by a plaintiff if the “threatened application” of an administrative rule “threatens to interfere with or impair, the legal rights or privileges of the plaintiff.” In this case, the plaintiffs are all chiropractors and, as such, are subject to the Board’s advertising rules. Thus, the Board’s advertising rules threaten to interfere with the plaintiffs’ rights or privileges even though they have not yet been disciplined under those rules. Cf. Medical Ass’n of Alabama v. Shoemake, 656 So.2d 863 (Ala.Civ.App.1995) (holding that four physicians had standing under § 41-22-10 to challenge an amendment to a rule of the Alabama Board of Physical Therapy because the rule would indirectly affect them medical practices). Therefore, we conclude that the plaintiffs have standing to challenge those rules in an action seeking injunctive and declaratory relief pursuant to § 41-22-10.

The Board and the Board members also argue that they are entitled to a writ of mandamus because, they say, the plaintiffs’ claims have no merit. However, the Board and the Board members have not cited any legal authority holding that they are entitled to appellate review of the merits of the plaintiffs’ claims on a petition for writ of mandamus. See Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d at 761-62. Therefore, we do not consider them argument that they are entitled to a writ of mandamus on the ground that the plaintiffs’ claims have no merit.

In conclusion, we grant the petition insofar as the plaintiffs’ claims seek an award of attorney fees and costs, and we deny the petition in all other respects. We express no opinion regarding whether the plaintiffs will ultimately prevail on their claims seeking injunctive and declaratory relief.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

PITTMAN, J., concurs in part and concurs in the result, with writing.

PITTMAN, Judge,

concurring in part and concurring in the result.

I concur in that portion of the main opinion concluding that the mandamus petition should be granted insofar as the plaintiffs seek an award of attorney fees and costs, and I concur in the result.