author: STUART, Justice. SHAW, Justice

text:
    Ex parte USA WATER SKI, INC. (In re Joy King Ewing f/k/a Joy King, as personal representative of the estate of Stewart Arthur Bieber, and Rachel K. Bieber v. Colonel Biggs Water Ski Show Team et al.).
    1120744.
    Supreme Court of Alabama.
    June 21, 2013.

      William A. Scott, Jr., and M. Jansen Voss of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioner.
    Clark R. Hammond, Daniel J. Martin, Don B. Long III, and Zachary D. Trotter of Johnston Barton Proctor & Rose LLP, Birmingham, for respondents.
   STUART, Justice.

USA Water Ski, Inc., petitions this Court for a writ of mandamus directing the trial court to vacate its discovery order compelling the production of a report that it says is privileged under the work-product doctrine. We grant the petition and issue the writ.

Facts

Colonel Biggs Water Ski Show Team (“Colonel Biggs”) is a member of USA Water Ski, the national governing body for organized competitive water skiing in the United States. Stewart Arthur Bieber was a skier for Colonel Biggs. On April 17, 2010, while skiing backwards and barefoot at a Colonel Biggs practice at Gateway Park Lake in Montgomery, Bieber collided with a stationary dock and suffered injuries that caused his death.

On February 29, 2012, Joy King Ewing f/k/a Joy King, as personal representative of Bieber’s estate, and Rachel K. Bieber (hereinafter referred to collectively as “Ewing”), filed a wrongful-death action against Colonel Biggs, USA Water Ski, and the following individual members of Colonel Biggs: Michael Robinson, the driver of the boat Bieber was skiing behind at the time of the accident, and Joel Langer, the safety observer in the boat. The complaint alleged negligence and wantonness in operating the boat, failure to provide adequate protection to Bieber, and failure to notify the Marine Police of the ski practice, as required by law.

During discovery, USA Water Ski produced to Ewing a 24-page privilege log, the last item on which is described as

“correspondence from Mark Neuberger to J.R. Wilson regarding Stewart Bie-ber’s incident. Jerry Leiting was carbon-copied on the communication. Neu-berger, Wilson, and Leiting are all members of USA Water Ski. Mr. Wilson asked Mr. Neuberger to prepare the correspondence due, in part, to his (Mr. Wilson’s) belief that there was a significant likelihood a lawsuit would be filed following Stewart’s death. Thus, we have withheld this correspondence. Please see affidavit from Mr. Wilson (attached).”

In the affidavit Wilson averred:

“1. My name is John Robert (J.R.) Wilson. I am over the age of nineteen years, and I have personal knowledge of the facts asserted herein.
“2. I am a U.S.A. Water Ski Life Member and was in April 2010.
“3. In April 2010,1 was Chairman of U.S.A. Water Ski, Inc.’s National Ski Show Association (NSSA) Drivers’ Committee.
“4. By Monday, April 19, 2010, I had been informed of the April 17, 2010, incident involving Stewart Bieber. My understanding as of April 19th was Stewart Bieber struck a dock while water skiing backwards. My understanding was he was practicing his show run at the time of the incident.
“5. I asked Mark Neuberger to prepare a report concerning Stewart Bie-ber’s incident. Mr. Neuberger’s report, dated April 19, 2010, was forwarded to me. Jerry Leiting was copied on the report.
“6. In April 2010, Mr. Neuberger was Chief Driver Examiner for U.S.A. Water Ski’s National Show Ski Association’s Southern Region. In April 2010, Mr. Leiting was President of U.S.A. Water Ski’s National Show Ski Association.
“7. In light of the serious nature of the incident as reported to me, I expected Mr. Bieber’s family to file a lawsuit even though I did not believe U.S.A. Water Ski, the National Show Ski Association or Colonel Bigg’s [sic] Water Ski Show Team had done anything improper. Furthermore, my former wife is an attorney. Based on my familiarity with the legal system (through conversations with her over the years), I believed it was likely that Mr. Bieber’s family would file a lawsuit.
“8. I asked Mr. Neuberger to prepare the report in an effort to assist in the defense of an expected lawsuit. Neither I nor anyone at U.S.A. Water Ski routinely perform investigations, prepare incident reports nor interview witnesses in the normal course of business.
“9. I requested the report with the expectation that it would be confidential and shared only with attorneys in the court of defending an expected lawsuit. In fact, the report itself indicates that it should be kept confidential between Mr. Neuberger, Mr. Wilson and Mr. Leiting, all of which are U.S.A. Water Ski members.”

Ewing moved to compel production of Neuberger’s post-incident report, referred to in the privilege log as “correspondence.” In her motion, Ewing argued that USA Water Ski failed to carry its burden of establishing that the report met the elements of the work-product privilege. USA Water Ski responded, maintaining that Wilson’s affidavit provided sufficient evidence that Neuberger’s post-incident report was created in anticipation of litigation and, consequently, that it was privileged under the work-product doctrine. After conducting a hearing and reviewing the briefs filed by the parties, the trial court granted Ewing’s motion and ordered production of the report. USA Water Ski petitions this Court for a writ of mandamus directing the trial court to vacate its order.

Standard of Review
“ ‘Mandamus is an extraordinary remedy and will be granted only when there is “(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 828 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (e) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).’
“Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136-37 (Ala.2003).”

Ex parte Zoghby, 958 So.2d 314, 319-20 (Ala.2006).

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003).

Discussion

USA Water Ski contends that the trial court clearly exceeded its discretion in ordering production of Neuberger’s post-incident report because, it says, the report is privileged under the work-product doctrine. USA Water Ski maintains, and Ewing does not deny, that the element at issue in this case is whether the post-incident report was “prepared in anticipation of litigation.”

“ ‘ “Under Rule 26(b)(3), [Ala. R. Civ. P.,] the party objecting to discovery bears the burden of establishing the elements of the work-product exception.” ’ Ex parte Cummings, 776 So.2d 771, 774 (Ala.2000) (quoting Ex parte Garrick, 642 So.2d 951, 952-53 (Ala.1994)). Those elements are ‘that (1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.’ Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan.2000); see also 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2024, at 336 (1994).
“Once ‘ “the parties are ‘at issue as to whether the documents] sought [were], in fact, prepared in anticipation of litigation,’ ” ’ the objecting party must make ‘ “[a]n evidentiary showing.” ’ Ex parte Cummings, 776 So.2d at 774 (quoting Ex parte State Farm [Mut.] Auto. Ins. Co., 761 So.2d 1000, 1002-03 (Ala.2000), quoting in turn Ex parte Garrick, 642 So.2d at 953 (emphasis added))....
“[When the determinative issue is whether the discovery to be produced was prepared in anticipation of litigation] ‘[a] “blanket claim” as to the applicability of the work product doctrine does not satisfy the [objecting parties’] burden of proof.’ Disidore v. Mail Contractors of America, Inc., 196 F.R.D. 410, 413 (D.Kan.2000). ‘“That burden cannot be discharged by mere conclusory or ipse dixit assertions.” ’ Id. (quoting McCoo v. Denny’s, Inc., 192 F.R.D. 675, 680 (D.Kan.2000)). Where the record contains ‘no affidavits, memorandums, or reports to support the [objecting parties’ contentions],’ the court can only ‘speculate’ as to whether the materials ‘fall under the work-product exception.’ Ex parte Fuller, 600 So.2d 214, 216 (Ala.1992). See also Nutmeg Ins. Co. v. Atwell, Vogel & Sterling, A Div. of Equifax Servs., Inc., 120 F.R.D. 504, 510 (W.D.La.1988) (‘A clear showing must be made which sets forth the items or categories objected to and the reason for that objection.... Accordingly, the proponent must provide the court with enough information to enable the court to determine privilege, and the proponent must show by affidavit that precise facts exist to support the claim of privilege.’).”

Ex parte Meadowbrook Ins. Group, Inc., 987 So.2d 540, 548 (Ala.2007).

USA Water Ski contends that it satisfied its burden of establishing that Neuberger’s post-incident report was privileged under the work-product doctrine because, it says, the evidence established that the report was prepared in anticipation of litigation. In support of its claim of privilege, USA Water Ski submitted an affidavit from Wilson, the chairman of USA Water Ski’s Drivers Committee, who asked Neuberger to prepare the report. In the affidavit, Wilson stated that because he was familiar with the legal system and in light of the serious nature of the accident that occurred while a skier was practicing for a USA Water Ski affiliated show, he believed that the skier’s family would file a lawsuit. He explained that he asked Neuberger, the chief driver examiner, to prepare a report about the accident for the purpose of assisting in the defense of a potential lawsuit. He further explained that an accident report is not routinely prepared by USA Water Ski personnel following an accident. USA Water Ski maintains that Wilson’s affidavit establishes that the report was prepared in anticipation of litigation and establishes that the report is protected by the work-product privilege.

“‘Under Rule 26(b)(3), [Ala. R. Civ. P.,] the party objecting to discovery bears the burden of establishing the elements of the work-production exception.’ Ex parte Garrick, 642 So.2d 951 (Ala.1994). The mere fact that litigation does eventually ensue does not, by itself, cloak materials with the protection of the work-product privilege. Sims v. Knollwood Park Hosp., 511 So.2d 154 (Ala.1987). ‘ “[T]he test should be whether, in light of the nature of the document and factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” ’ Sims, 511 So.2d at 157 (quoting Binks Mfg. Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1119 (7th Cir.1983)). The word (and concept) because is critical.”

Ex parte State Farm, Mut. Auto. Ins. Co., 761 So.2d 1000, 1002 (Ala.2000).

Here, USA Water Ski adequately explained that Neuberger’s post-incident report was prepared because of prospective litigation. Wilson explained that he asked Neuberger to prepare the report, which was not ordinarily prepared by USA Water Ski personnel following an accident, in anticipation of assisting in the defense of a lawsuit. None of the evidence before us indicates that Neuberger’s post-incident report was prepared for any reason other than in preparation for eventual litigation. Therefore, USA Water Ski established a causal relationship between the anticipation of litigation and the production or use of the report.

Ewing maintains that Neuberger’s post-incident report is not protected by the work-product privilege. First, she argues that the evidence does not establish that the report was prepared in anticipation of litigation because Wilson’s affidavit does not specifically state that the report was prepared in anticipation of litigation to be brought against USA Water Ski. In support of her argument, Ewing cites Ex parte State Farm, supra. In that case, the plaintiff requested the production of documents from State Farm’s claims file that had been prepared before the lawsuit was filed. State Farm objected, arguing that the file was work product prepared in anticipation of litigation and therefore privileged. State Farm submitted an affidavit stating that it “ Vas under the impression and took the position that [the plaintiff] had planned to be involved in litigation regarding this accident.’ ” 761 So.2d at 1003. This Court held that the affidavit merely provided that State Farm generally anticipated litigation and did not establish that State Farm anticipated that litigation would be brought against it. Because State Farm did not present evidence indicating that the documents sought were prepared specifically in anticipation of litigation against State Farm, the Court held that the documents were not protected by the work-product privilege.

Here, Wilson’s affidavit adequately establishes that Neuberger’s post-incident report was prepared in anticipation of litigation against USA Water Ski. In his affidavit, Wilson explained his role and Neuberger’s role in the USA Water Ski organization, explained that the accident occurred during a practice for a USA Water Ski show, and explained that, although he “did not believe USA Water Ski, the National Show Ski Association or Colonel Bigg’s [sic] Water Ski Show Team had done anything improper,” he believed litigation was likely and that the report would be helpful to the defense. Although Wilson does not specifically state in his affidavit that he anticipated litigation to be initiated against USA Water Ski, that is a fair inference from a reading of his affidavit. Therefore, USA Water Ski adequately established that Neuberger’s post-incident report was created in anticipation of litigation against it.

Next, Ewing maintains that Neuberger’s post-incident report was not prepared in anticipation of litigation because the correspondence constituting the report was between non-attorney members of USA Water Ski, was not drafted at the direction of an attorney or in response to any notice that Ewing had retained an attorney, and was written two years before a lawsuit was filed. The evidence that the report was not prepared at the request of an attorney and that the report was prepared two years before a lawsuit was filed are factors to consider when determining whether the report was prepared in anticipation of litigation. However, the determinative question to be resolved in this case is whether Neuberger’s post-incident report “can fairly be said to have been prepared or obtained because of the prospect of litigation.” Sims v. Knollwood Park Hosp., 511 So.2d 154, 158 (Ala.1987). Cf. Ex parte Meadowbrook Ins. Group, 987 So.2d at 549 (“Thus, ‘the purpose for which a party created a document is the fundamental requirement of the Rule, and [regardless of whether] litigation is reasonably anticipated, certain, or even underway, a court must still undertake an examination of why a document was produced.’ Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 661 (S.D.Ind.1991) (some emphasis added).”). Wilson’s affidavit establishes that, at the time he asked for the report, he recognized that the incident had resulted in the death of a skier while the skier was preparing for a USA Water Ski show and that litigation would ensue; it also establishes that this report was not created in the ordinary course of business. The facts and circumstances of this case support a conclusion that the report was prepared in anticipation of eventual litigation and, consequently, is protected by the work-product privilege.

“While the trial court, under the Alabama Rules of Civil Procedure, has broad discretionary authority regarding discovery matters, that authority is not unlimited. Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.1991).” Ex parte Fuller, 600 So.2d 214, 216 (Ala.1992). USA Water Ski has shown that the trial court clearly exceeded its discretion in ordering the production of Neuberger’s post-incident report because the report is privileged under the work-produet doctrine.

Conclusion

Based on the foregoing, we grant USA Water Ski’s petition and issue a writ of mandamus directing the trial court to vacate its order compelling USA Water Ski to produce Neuberger’s post-incident report.

PETITION GRANTED; WRIT ISSUED.

BOLIN, PARKER, MURDOCK, WISE, and BRYAN, JJ., concur.

SHAW, J., concurs specially.

MOORE, C.J., dissents.

SHAW, Justice

(concurring specially).

I concur in granting the petition and issuing the writ. I write specially to address an argument made by the respondents, Joy King Ewing and Rachel K. Bie-ber (hereinafter referred to collectively as “Ewing”).

Ewing contends that the decisions in Ex parte Cummings, 776 So.2d 771 (Ala.2000), and Ex parte Cryer, 814 So.2d 239 (Ala.2001), dictate that Mark Neuberger’s post-incident report cannot be considered to have been “prepared in anticipation of litigation.” Both of those decisions note the settled rule paraphrased as follows: In determining whether a document is privileged work product, the test is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an “in house” report as work product.

The document in question in Cummings was a worker’s compensation case file. Although a worker’s compensation claim might ultimately result in litigation, the case file in Cummings was prepared in the ordinary course of business and not in anticipation of litigation. 776 So.2d at 775. Cryer involved a document prepared by a doctor relating to a birth where injury to the baby occurred. There was no evidence indicating that the preparer of the document knew of impending litigation, and, on the contrary, there was some evidence indicating that the document was prepared for another purpose. 814 So.2d at 247-48

The facts and evidence surrounding the preparation of Neuberger’s report here are clearly distinguishable from those in the cases cited by Ewing. It was not an “in house” document that was routinely created in the ordinary course of business; instead, for all that appears, Neuberger’s report was a unique document created for the sole purpose of preparing a defense in anticipated litigation. I see this as different from a document produced merely in the ordinary course of business under the cloud of possible litigation.

      . The name of this entity also appears in the materials before this Court as "U.S.A. Water Ski, Inc."

      . "Even if the work-product privilege applies, Rule 26(b)(3), Ala. R. Civ. P., recognizes an exception when the party requesting the material can show substantial need coupled with undue hardship.” Ex parte Norfolk Southern Ry., 897 So.2d 290, 295 (Ala.2004). Ewing, however, does not argue that this exception applies here.


source: Caselaw Access Project

author: PITTMAN, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    David CALL v. Danielle CALL.
    2110497.
    Court of Civil Appeals of Alabama.
    June 28, 2013.

      Clatus Junkin and Charles E. Harrison of Junkin, Pearson, Harrison, Junkin & Pate, LLC, Tuscaloosa, for appellant.
    Laurie A. Brantley of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellee.
   PITTMAN, Judge.

David Call (“the husband”) appeals from a judgment divorcing him and Danielle Call (“the wife”). We affirm in part, reverse in part, and remand.

The parties, who are both in their early forties, married in 1994 and have four children (“the children”), who were born in 2000, 2003, 2005, and 2007. The husband is a physician and is board certified as a hospitalist. He is presently employed at St. Vincent’s Hospital, and his base compensation is $265,000 per year. The wife was employed as the manager of a retail store until the birth of the parties’ first child in 2000; since 2000, by mutual agreement of the parties, she has been a stay-at-home mother.

In April 2010, the parties separated, and the husband sued the wife for a divorce, seeking an equitable division of the parties’ property. The wife filed an answer and counterclaim, seeking a divorce, primary physical custody of the children, child support, alimony, and an equitable division of the parties’ property. Upon the motion of the wife, the trial court appointed a guardian ad litem for the children. The wife filed a motion seeking the entry of a pen-dente lite order regarding custody, visitation, child support, possession of the parties’ house, and alimony. That motion was heard in August 2010 when the husband was employed as a hospitalist at DCH Northport Hospital (“Northport Hospital”) and was moonlighting as a hospitalist for another health-care entity. At the hearing, the parties informed the trial court that they had reached an agreement regarding the terms of the pendente lite order, recited the terms of the agreement on the record, and confirmed that those terms constituted their agreement. The trial court subsequently entered a written order (“the pendente lite order”) based on that agreement. The provisions of the pendente lite order that are pertinent to this appeal (1) awarded the wife primary physical custody of the children; (2) ordered the parties not to allow the children to be in the presence of three individuals, one of whom was then, and is now, the husband’s girlfriend (“the girlfriend”); and (3) stated: “The [husband] shall continue to deposit his check from Northport Hospital, or an equivalent amount, in the parties’ joint checking account as family support, as was the normal custom during the marriage.” The husband testified at the trial of this action that, when the pendente lite order was entered, the net amount of his paycheck from Northport Hospital was approximately $5,200 and that he received such a paycheck every two weeks.

Thereafter, the wife filed several contempt petitions alleging that the husband had violated the provision of the pendente lite order requiring him to pay family support and that an arrearage had accumulated. The husband filed written responses to those petitions. In January 2011, the trial court held a hearing regarding, among other things, the wife’s contempt petitions. The trial court ordered the husband to pay the wife $15,000 to satisfy the family-support arrearage that had accumulated up until then, and the husband paid the wife $15,000. Thereafter, the wife filed several more contempt petitions alleging that the husband had violated the provision of the pendente lite order requiring him to pay family support and that an arrearage had accumulated. The husband filed written responses to those petitions. In September 2011, the trial court held a hearing regarding those contempt petitions. The order entered after that hearing recited that an agreement had been reached by the parties regarding the contempt issues, that the agreement had been read into the record, and that the agreement had been confirmed by the parties. Based on the parties’ agreement, the order provided, in pertinent part:

“1. The [husband] acknowledges that he is in contempt of the Court’s prior order requiring him to pay family support to the [wife].
“2. The [husband] shall pay to the [wife] the sum of Ten Thousand Dollars ($10,000,00) prior to leaving court on September 21, 2011, said payment to be made in the form of a post-dated check, dated Friday, September 23, 2011. Said funds ($10,000.00) shall be ‘good’ and accessible by the [wife] on Friday, September 23, 2011. Said $10,000.00 payment represents a payment/credit toward the [husband’s] current support arrearage which the [wife] has alleged is approximately Sixty-Six Thousand Dollars ($66,000.00). However, the exact amount of said arrearage shall be determined by the Court at final hearing.
“3. Beginning Friday, October 7, 2011, and every other Friday thereafter, the [husband] shall pay directly to the [wife the] sum of Six Thousand Nine Hundred Twenty-Three Dollars and Seven Cents ($6,923.07). Said payments shall be made in ‘good funds’, i.e., accessible to the [wife] on each said every other Friday.
“4. The aforementioned bi-weekly payments to the [wife] represent a monthly support payment of Fifteen Thousand Dollars ($15,000.00), effective September 23, 2011, broken down as follows: Eleven Thousand One Hundred Ninety-Seven Dollars and Forty-Two Cents ($11,197.42) current support, and Three Thousand Eight Hundred Two Dollars and Fifty-Eight Cents ($3,802.58) towards the [husband’s] ar-rearage.
“5. In the event that any payment required herein is late, is not made, is not made in full, and/or is not made in good funds, the [wife] shall execute an Affidavit stating such which shall be filed with the Court. A writ for the [husband’s] arrest shall immediately be issued, and the [husband] shall be incarcerated until a subsequent hearing to determine any additional sanctions. The [husband] and his attorney acknowledged in court that a contempt does exist and that his failure to pay as ordered from the hearing date until final hearing would result in a writ being issued for the [husband’s] arrest.
“6. The [wife] has not waived any claims against the [husband] for contempt for said support non-payment; the same ... will be heard at final hearing.”

The action was tried ore tenus during three days in January 2012. After the first two days of trial, the trial court entered an order reciting that the parties had reached a temporary agreement regarding the husband’s payment of family support. Based on that agreement, the order provided, in pertinent part:

“2. By agreement of the parties, beginning with the first bi-weekly payment [of family support] following the entry of this Order, which should be the January 13, 2012 payment, the [husband] shall pay the [wife] the sum of $5,168.04 on a bi-weekly basis ($11,197.42 per month) for the current family support payment. The payment of $8,802.58 per month on the alleged arrearage is hereby suspended pending the Final Hearing.
“4. This Temporary Agreed Order shall not be considered a modification of the current support payment nor shall this Order constitute a waiver of any of the alleged arrears.
“The actual arrearage remains disputed and shall be determined and calculated by the Court as part of its ruling at the conclusion of the case.”

Upon the conclusion of the trial, the trial court entered a final judgment in February 2012. The provisions of the judgment pertinent to this appeal awarded the wife primary physical custody of the children; found that the parties’ gross income exceeded the uppermost level of the child-support schedule appended to Rule 32, Ala. R. Admin. P. (“the Rule 32 schedule”); ordered the husband to pay child support in the amount of $5,000 per month; awarded the wife alimony in gross in the amount of $35,000, to be paid in installments of $5,000 per year for 7 years; ordered the husband to pay periodic alimony in the amount of $3,000 per month; awarded the husband the parties’ 2010 Mercedes automobile, one-half of his retirement account, a debt receivable, and the other personal property in his possession; ordered the husband to pay a debt he owed for student loans and a debt he owed the Internal Revenue Service for unpaid income taxes; found that the husband owed a family-support arrearage in the amount of $49,390.08 and accrued interest thereon in the amount of $3,571.76; ordered the husband to pay the family-support arrearage and accrued interest at the rate of $1,000 per month; found the husband in contempt for willfully failing to pay family support for 4 months; sentenced the husband to 5 days in jail for each of the 4 months he had willfully failed to pay the family support; suspended his sentence pending his compliance with the judgment; and ordered the parties not to allow the children to be in the presence of the girlfriend.

On the eighth day after the entry of the judgment, the husband filed a notice of appeal. On the 29th day after the entry of the judgment, the wife filed a motion to revoke the suspension of the husband’s jail sentence, alleging that he had failed to comply with the provisions of the judgment requiring him to pay child support, periodic alimony, and the family-support arrearage. On the 30th day after the entry of the judgment, the wife filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment in which she requested relief that is not pertinent to this appeal. The filing of the "wife’s Rule 59(e) motion caused the husband’s notice of appeal to be held in abeyance until the disposition of that motion. See Rule 4(a)(5), Ala. R.App. P. While the wife’s motions were pending, the husband filed a motion to stay the judgment pending the resolution of his appeal, which the trial court denied.

Within 90 days after the filing of the wife’s Rule 59(e) motion, the trial court held a hearing regarding the wife’s motion to revoke the suspension of the husband’s jail sentence for contempt and her Rule 59(e) motion. Also within 90 days after the filing of the wife’s Rule 59(e) motion, the trial court entered two written orders. The first order revoked the suspension of the husband’s jail sentence and ordered him incarcerated for 20 days. The second order granted the wife’s Rule 59(e) motion in part and denied it in part. Upon the disposition of the wife’s Rule 59(e) motion, the husband’s notice of appeal became effective. Id.

Thereafter, the husband filed an emergency motion asking this court to issue a writ of mandamus directing the trial court to order the husband’s release from jail, which this court denied. The husband then filed a motion seeking the same relief from the supreme court. The supreme court treated the husband’s motion as a motion for a stay of execution of the judgment of contempt and of the order revoking the suspension of the husband’s jail sentence and granted that stay.

The husband first argues that the trial court improperly exercised its discretion in awarding the wife alimony in gross in the amount of $35,000 because, he says, that award violates the principle that an award of alimony in gross must be payable out of the present estate of the paying spouse as it exists at the time of the divorce. Specifically, the husband argues that the divorce judgment made him responsible for paying the debt he owes for student loans and the debt he owes the Internal Revenue Service for unpaid income taxes and that the aggregate amount of those debts far exceeds the value of the property he was awarded in the judgment.

In Ex parte Dickson, 29 So.3d 159, 162-63 (Ala.2009), the supreme court stated:

“In [Ex parte] Hager, [293 Ala. 47, 299 So.2d 743 (1974),] this Court defined alimony in gross and periodic alimony as follows:
“ ‘ “Alimony in gross” is the present value of the wife’s inchoate marital rights — dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce. Borton v. Borton, [230 Ala. 630, 162 So. 529 (1935).] On the other hand, “periodic alimony” is an allowance for the future support of the wife payable from the current earnings of the husband.’
293 Ala. at 55, 299 So.2d at 750 (emphasis added). The Hager Court also stated that the award at issue “was intended to be, as denominated, “alimony in gross,” a property settlement award, compensating the wife only for the loss of her rights in the husband’s estate.’ 293 Ala. at 55, 299 So.2d at 751 (emphasis added). See also Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App.2002) (alimony in gross is a form of property settlement and must be payable out of the present estate of the payor at the time of the divorce).”

(Footnote omitted.)

In the present case, the husband testified at trial that he owed approximately $80,000 to $90,000 on his student loans, and that testimony was undisputed. In addition, the husband testified at trial that he owed the Internal Revenue Service approximately $150,000 to $160,000 for unpaid income taxes, and that testimony was also undisputed. On the other hand, the evidence indicated that the 2010 Mercedes automobile awarded the husband in the judgment had a maximum value of approximately $60,000, that the share of the husband’s retirement account awarded him in the judgment had a value of approximately $12,500, and that the value of the debt receivable awarded the husband in the judgment had a value of approximately $30,000. The record does not contain any evidence regarding the value of the other items of personal property awarded the husband in the judgment. Thus, the evidence in the record indicates that the husband’s liabilities for debts, which totaled approximately $230,000 to $250,000, far exceeded the total value of the property awarded him in the judgment, which was approximately $102,500. Accordingly, we conclude that the trial court improperly exercised its discretion in awarding the wife alimony in gross in the amount of $35,000 because the husband’s estate at the time of the divorce was insufficient to pay that award. See Dickson, supra. Because an award of alimony in gross is considered to be a part of the division of property, see Dickson, supra, we must reverse the trial court’s judgment with respect to the entire division of property. Moreover, “because property-division and alimony awards are considered to be interrelated, we often reverse both aspects of the trial court’s judgment so that [the trial court] may consider the entire award again upon remand.” Redden v. Redden, 44 So.3d 508, 513 (Ala.Civ.App.2009). Accordingly, because we must reverse the trial court’s judgment with respect to the property division, we also reverse the trial court’s judgment with respect to the award of periodic alimony so that the trial court can consider both the division of property and the award of periodic alimony again on remand. See Redden, supra.

The husband also argues that the trial court improperly exercised its discretion in ordering him to pay child support in the amount of $5,000 per month. It is undisputed that the husband’s gross monthly income of approximately $22,000 exceeds the uppermost limit of the Rule 32 schedule.

“ ‘When the parties’ combined income exceeds the uppermost limit of the child-support schedule, the determination of a child-support obligation is within the trial court’s discretion. Floyd v. Abercrombie, 816 So.2d 1051, 1057 (Ala.Civ.App.2001); Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App.1995). “[A] trial court’s discretion is not unbridled and ... the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.” Dyas v. Dyas, 683 So.2d at 973.
“ ‘ “When the combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor’s ability to pay for those needs. [Anonymous v. Anonymous, 617 So.2d 694, 697 (Ala.Civ.App.1993) ]. To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.”
‘Dyas v. Dyas, 683 So.2d at 973-74 (footnote omitted).’ ”

Wright v. Wright, 19 So.3d 901, 906-07 (Ala.Civ.App.2009) (quoting McGowin v. McGowin, 991 So.2d 735, 741 (Ala.Civ.App.2008)).

Although the husband argues that the award of child support in the amount of $5,000 per month constitutes an award of a “disproportionate” amount of his income, he does not argue that he is financially unable to pay $5,000 per month in child support. Therefore, we conclude that the award of child support in the amount of $5,000 a month reasonably relates to the husband’s ability to pay. See Wright, supra.

With regard to the issue whether the award of child support in the amount of $5,000 is rationally related to the reasonable and necessary needs of the children, taking into account the lifestyle to which the children were accustomed and the standard of living the children enjoyed before the divorce, the evidence before the trial court included the wife’s testimony providing an itemized estimate of the living expenses for herself and the children that totaled $6,630 per month, an amount that did not include such things as Christmas presents for the children; birthday parties for the children; birthday gifts for the children’s friends; field trips; and annual vacations and trips to visit the children’s grandparents in Ohio, which the wife testified the family had taken during the marriage.

In Tompkins v. Tompkins, 843 So.2d 759 (Ala.Civ.App.2002), the parties’ gross monthly income exceeded the uppermost limit of the Rule 32 schedule, and the judgment of the trial court not only ordered the noncustodial parent to pay child support for one child in the amount of $2,500 per month but also ordered the noncustodial parent to pay the custodial parent a substantial amount of periodic alimony each month for 11 years. On appeal to this court, the noncustodial parent argued, among other things, that the award of child support in the amount of $2,500 per month was not rationally related to the reasonable and necessary needs of the child. Rejecting that argument, this court stated:

“The record reflects that at the time of trial the parties’ child was nine years of age and participated in several extracurricular activities, including horseback riding, gymnastics, and dance lessons. She has enjoyed the use of her parents’ two vacation homes in Florida. The record reflects that the child has had the benefit of a somewhat privileged lifestyle. The wife testified that she was considering enrolling the child in private school if she and the child moved to Montgomery. The wife provided an itemized estimate of living expenses for herself and the child that totaled $11,570 per month. Given the standard of living the child enjoyed before the divorce, the wife testified that she needed $3,000 per month for the child’s support.
“Under the ore tenus rule, the trial court’s judgment is presumed correct and this court will not reverse the judgment absent a showing that the trial court’s findings are plainly and palpably wrong or that the trial court abused its discretion. See Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). While we might have made a different child-support award in this case, this court ‘may not substitute its judgment for that of the trial court.’ Id. Based upon a careful review of the entire record in this case, we cannot say that the trial court abused its discretion when it ordered the husband to pay $2,500 per month in child support.”

843 So.2d at 763-64.

In Wright, supra, the parties’ gross monthly income exceeded the uppermost level of the Rule 32 schedule, and the trial court not only ordered the noncustodial parent to pay the custodial parent child support for three children in the amount of $3,000 per month but also ordered him to pay the custodial parent periodic alimony in the amount of $2,000 per month. On appeal to this court, the noncustodial parent argued, among other things, that the award of child support in the amount of $3,000 per month was not rationally related to the reasonable and necessary needs of his three children. Rejecting that argument, this court stated:

“At trial, the [custodial parent] offered and the trial court admitted as the [custodial parent’s] Exhibit 4 a document itemizing her monthly expenses that [totaled $4,335]. She testified that Exhibit 4 represented a compilation of her actual living expenses for the two years since the parties’ separation.... The [custodial parent] testified that she was requesting $2,500 per month in child support.
“The [noncustodial parent] in this case did not take issue with any of the items on the [custodial parent’s] list of expenses. Although only three items on the list specifically relate to the children — $200 for preschool tuition for the youngest child, $200 for the expense of extracurricular activities, and $30 for school lunches — the trial court could reasonably have concluded that the [custodial parent’s] expenses reflected the actual cost of housing, food, and other necessities for the [custodial parent] and the three children, with no extravagance. The [noncustodial parent] readily acknowledged at trial that the family had enjoyed ‘an upper-middle-class lifestyle’ during the parties’ marriage. Accordingly, we conclude that the child-support award does ‘relate to the reasonable and necessary needs of the ehild[ren], taking into account the lifestyle to which the child[ren were] accustomed and the standard of living the children] enjoyed before the divorce,’ as well as the [noncustodial parent’s] ability to pay for those needs. Dyas v. Dyas, 683 So.2d 971, 973 (Ala.Civ.App.1995).”

19 So.3d at 907.

In the present case, although only six of the items on the wife’s list of her and the children’s estimated monthly living expenses relate solely to the children — $600 for clothes and shoes, $140 for piano lessons, $120 for tennis lessons, $220 for baseball lessons, $300 for entertainment such as movies, and $250 for preschool tuition for the youngest child — “the trial court could reasonably have concluded that the wife’s expenses reflected the actual cost of housing, food, and other necessities for the wife and the [four] children, with no extravagance.” Id. “Accordingly, we conclude that the child-support award does ‘relate to the reasonable and necessary needs of the children], taking into account the lifestyle to which the child[ren were] accustomed and the standard of living the children] enjoyed before the divorce.’ ” Id. (quoting Dyas v. Dyas, 683 So.2d 971, 973 (Ala.Civ.App.1995)).

The husband next argues that the finding of contempt for his failure to pay family support as required by the penden-te lite order should be reversed because, he says, (1) the pendente lite order was not reasonably specific regarding the amount of the family support the husband was required to pay, (2) the judgment finding him in contempt did not indicate the conduct that was contemptuous with sufficient specificity, and (3) the wife failed to prove that he had the financial ability to pay the family support he had failed to pay. However, the record indicates that the husband never presented any of those arguments to the trial court either in his responses to the wife’s contempt petitions before the entry of the judgment finding him in contempt or in his response to the wife’s motion to revoke the suspension of his jail sentence after the entry of the divorce judgment. “[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [an appellate court’s] review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Therefore, we cannot consider the husband’s arguments regarding the finding of contempt. Id.

Finally, the husband argues that the trial court improperly exercised its discretion in admitting into evidence a written psychological evaluation (“the evaluation”) regarding the girlfriend, which had been performed by a licensed psychologist in response to a court order in the girlfriend’s divorce action. However, even if the admission of that evidence was erroneous, it would not constitute reversible error unless its admission probably injuriously affected substantial rights of the husband. See Rule 45, Ala. R.App. P. Rule 45 provides:

“No judgment may be reversed or set aside ... in any civil ... case on the ground of ... the improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

The only manner in which the husband contends that the admission of the evaluation may have injuriously affected his substantial rights is by possibly influencing the trial court to order the parties not to allow the children to be in the presence of the girlfriend. However, the husband has not argued on appeal that the trial court erred in ordering the parties not to allow the children to be in the presence of the girlfriend. “When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). Because the husband has waived the issue whether the trial court erred in ordering the parties not to allow the children to be in the presence of the girlfriend and because he has not argued that the admission of the evaluation injuriously affected his substantial rights in any other manner, we conclude that any error the trial court may have committed in admitting the evaluation was harmless. See Rule 45.

In summary, we reverse the judgment of the trial court with respect to the division of property and the award of periodic alimony, we affirm the judgment in all other respects, and we remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMAS and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, with writing.

DONALDSON, J., recuses himself.

THOMPSON, Presiding Judge,

concurring in the result.

I agree with the application of the holding in Ex parte Dickson, 29 So.3d 159 (Ala.2009), to the facts of this case. I write specially to note, however, that I do not believe that, in reaching its holding in that case, our supreme court intended that the evidence presented by the parties be allowed to supplant the trial court’s discretion in determining the amount of the pay- or spouse’s estate. The determination of a right to alimony in gross and whether a payor spouse’s estate is sufficient for a payment of alimony in gross are matters within the discretion of the trial court. Shirley v. Shirley, 600 So.2d 284, 286 (Ala.Civ.App.1992); Grimsley v. Grimsley, 586 So.2d 20, 21 (Ala.Civ.App.1991); and Waid v. Waid, 540 So.2d 764, 765-66 (Ala.Civ.App.1989). In this case, I agree that the trial court erred in concluding that the husband’s current estate was sufficient to pay the alimony-in-gross award.

      . The record indicates that a hospitalist is a physician who specializes in treating hospitalized patients of other physicians in order to minimize the number of hospital visits those other physicians must make.

      . Specifically, the judgment ordered the noncustodial parent to pay the custodial parent periodic alimony in the following amounts: “$5,000 per month for 24 consecutive months following the divorce, $4,000 per month for each of the next 36 consecutive months, $3,000 per month for each of the next 36 consecutive months, and $2,000 per month for each of the next 36 consecutive months.” 843 So.2d at 761 n. 2.


text:
    Karon CLORE v. Gregory CLORE.
    2110967.
    Court of Civil Appeals of Alabama.
    June 28, 2013.

      William Eric Colley, Fort Payne; and Robert K. Jordan, Fort Payne, for appellant.
    Gary W. Lackey of The Lackey Law Firm, Scottsboro, for appellee.
   PITTMAN, Judge.

Karon Clore (“the wife”) appeals from a judgment of the DeKalb Circuit Court dissolving her marriage to Gregory Clore (“the husband”), challenging the alimony and property-division aspects thereof, and also seeks review of a postjudgment order of that court that, among other things, denied the wife’s requests for a new trial and for recusal of the trial judge because of his social-networking connection to the parties’ adult daughter. We affirm.

In September 2010, the husband initiated a divorce action alleging that the parties had married in 1984, that they had separated, that no children of the parties remained minors, and that the marriage should be dissolved on multiple grounds, including incompatibility of the parties, an irretrievable breakdown of the marriage, and the wife’s “adultery with diverse persons.” The wife answered and asserted a counterclaim seeking a divorce solely on no-fault grounds. In October 2010, the parties reached an agreement, pursuant to which the trial court ordered the husband to pay the wife the sum of $11,000 “as ...

a portion of any final property division between the parties” incident to the parties’ divorce and also ordered the husband to pay the wife $400 every two weeks.

An ore tenus proceeding in the cause was held on March 9, 2012, after which the trial court entered a judgment divorcing the parties, without specifying a particular statutory ground for granting that relief. The judgment contains the following pertinent findings of fact:

“The parties were married on July 21, 1984. At that time, the [wife] was employed as a teacher, teaching the subjects of typing and shorthand. She received her bachelor’s degree from Radford University and had been teaching for about one year as of the date of the marriage. The [husband] also received his bachelor’s degree from Rad-ford University. He has been continuously employed during the marriage.
“The parties’ have one child who is now an adult. She was born in 1987. In 1988, the parties decided that the [wife] should quit her job and raise their child full time. At that time, the parties moved from Virginia to Alabama. The [wife] never received tenure as a teacher. She has no pension plan or retirement fund.
“The [husband] testified that over the years he had encouraged and/or asked the [wife] to find employment. He stated that she told him that she did not want to work. The [wife] denied that he had asked her to return to work. She stated that her degree is now obsolete and that she will have to return to college in order to prepare to reenter the workforce. She stated repeatedly at trial that she had not sought employment since the parties separated in September 2010 because she wants ‘a career, not a job.’
“Throughout the marriage, the [husband’s] employment caused him to travel. He was on the road anywhere from two to five days per week. He still travels for work, averaging approximately two days per week. He earns a salary of approximately $104,000.00 per year. In addition, he receives quarterly commissions that average anywhere from $8,000.00 to as high as $10,000.00 per quarter. He stated that his 2010 compensation was approximately $115,000.00 to $118,000.00. He was unable to give an accurate salary range for other years. It is undisputed that the [wife] does not have a job and has not had a job for a number of years.
“The parties’ assets consist of: a house they built 11 years ago, the furnishings of that house, a retirement account in the [husband’s] name with a balance of approximately $520,000.00, and a 2004 Toyota Sequoia [automobile] that the [wife] drives. The [husband] does not own a vehicle as he is provided a car by his employer. The [husband] testified that at the time of the parties’ separation, his retirement account had a balance of approximately $450,000.00.
“The parties have two debts: the first mortgage on the marital residence in the approximate amount of $278,000.00 and a second mortgage on the house, taken out as a home-equity line of credit, in the approximate amount of $95,000.00.
“The [husband] lays the blame for the breakdown of the marriage primarily on the [wife]. He alleged, and she admitted, that the [wife had] had an affair in 2010 that, when he found out for certain that such had occurred, caused the separation and caused him to file for divorce. Despite her admission to having an affair with another man, the [wife] lays the blame primarily on the [husband], claiming that he was mentally and physically abusive to her during the marriage. The [husband] denies any such abuse. Other than the [wife’s] testimony to said abuse, the [trial court] was presented with no evidence to substantiate it.
“The [husband] states that the marital home would not sell on the real estate market for more than the combined mortgages, a total of approximately $873,000.00. He stated that the house at one time appraised for $450,000.00 but that it would not bring that sum in the current market. The house has been for sale, without a real estate company or agent contracted to sell it, for two and one-half years. The [husband] testified that currently there is no one looking at the house and that there have been no calls about the house in some time. The house is 5,972 square feet with five bedrooms and five and one-half baths. The [wife] claims that the house is worth approximately $650,000.00.
“The [wife] claims that she has lost $917,000.00 during the marriage by not being employed. She stated that at a minimum it would cost her $74,000.00 to obtain a degree that would allow her to reenter the workforce. She caused to be admitted [her] Exhibit ‘5’ which is a list of her estimated monthly expenses. She estimates that her expenses are $4,070.00 per month. This figure includes an estimate of $1,200.00 per month for rent. Her current rent is $710.00 per month, with her water service included. However, she wants to move to a nicer apartment and speculates that it will cost $1,200.00 per month.
“Pursuant to [the trial court’s order] of October 26, 2010, the [husband] has paid $800.00 per month to the [wife] in temporary spousal support. That Order also required him to pay to the [wife] $11,000.00 as a property settlement, the amount of which is to be considered by the [trial court] during its final property division.
“The [husband] caused to be admitted [his] Exhibit ‘1’ which is a list of his monthly expenses, showing $5,276.94 in expenses. That same Exhibit shows a monthly net income of $5,118.82. The [husband] acknowledged that this income figure did not include the quarterly commissions that he is paid. The expenses include the temporary spousal support as well as payments on both of the mortgages. The mortgage payments total $2,720.00 per month.
“[The husband’s] Exhibit ‘2’ is a list of home furnishings still in the marital residence. That Exhibit shows that the items are worth a total of $55,145.00. [His] Exhibit ‘3’ is a list of items that [he] claims the [wife] removed from the marital residence, totaling $13,828.00. [The wife] stated that she did not remove any furnishings from the home upon the separation. However, she did admit to taking a $3,800.00 painting of her daughter because [the wife’s] mother paid for it. She gave it back to her mother. She also took a couple of wreaths [and] a television that had been given to the parties’ daughter for graduation, which the [wife] then gave to her mother. She stated that she did not take any of her daughter’s clothes.
“[The husband’s] Exhibit ‘2’ also lists $2,283.36 in expenses paid by the [wife] for hotel stays and meals that the [husband] alleged were for ‘affair trip expenses.’ The testimony at trial was that the [husband] found credit card charges for multiple hotel stays, as well as meals, that he alleged were for the [wife] and her paramour. The [wife] testified that she met her paramour in a hotel only one time.
“[The husband’s] Exhibit ‘3’ also displays expenses related to home repairs, utility costs and to the [wife’s] medical expenses in the amount of $5,164.00.
“The [wife] caused to be admitted [her] Exhibit ‘4’ which is two lists she compiled of the household furnishings. She requested the [trial court] to award the contents of one list to her and the other to the [husband]. She stated that the contents of both lists are approximately equal in value. The [husband] does not want the [trial court] to divide the furnishings in this manner.
“The [husband] initially stated that the [wife] should receive no value from the house. Eventually, he stated that the [wife] should be entitled to some of the equity in the home, if any exists, but that the division should not be equal between the parties. He stated that the [wife] should not be provided any of the funds he has in retirement. His reason for his position on these assets is that the [wife] had an affair and caused the breakdown of the marriage.
“The [wife] wants a share of the equity in the home, a share of the [husband’s] retirement fund, and alimony. The [husband] is 53 years old. The [wife] is 50 years old. The [wife] testified that she worked in the home for the vast majority of the marriage so that the [husband] could advance in his employment. She is healthy and is physically able to work. She has not applied to any schools, or for any employment, since the parties’ separation. She has been waiting for the divorce to be made final. She stated that she is willing to pay her own living expenses once she completes her re-education.
“The [wife] stated that the [husband] should be allowed to live in the marital home, but that it should be listed for sale with a real estate agent. She stated that the [husband] should pay all the payments on the house, as he has been doing, until it is sold. She has no intentions to return to DeKalb County.
“The parties bought a [Lexus] SUV [automobile] in 2007. The [husband] stated that this was bought for their daughter and that he sold it once she moved to London, UK, with her husband. The [wife] stated that she did not know, until it was said in court, that the [Lexus] was sold. She wanted the [trial court] to award it to her. Instead, she wants the [trial court] to consider the fact that that vehicle has been sold when it makes a property division. The [trial court] does so consider the sale of that vehicle.
“The parties both testified that, other than the retirement account, they have no other investment accounts. The [husband] stated that he had a checking account with a balance of approximately $646.00. He stated that he had no cash. He stated that if he had to pay more than $800.00 per month in alimony, then he would not be able to make the mortgage payments on the marital residence.”

(Emphasis added.)

The trial court’s division of property incident to its judgment divorcing the parties is expressly stated to have been determined after the trial court had “considered] all relevant factors under Alabama law, including the respective fault of the parties for the breakdoum of the marriage ” (emphasis added). The judgment directs the marital home to be placed for sale with a real-estate agency within 80 days and that, if the home does not sell within 1 year thereafter, the parties may seek a judicial sale of the home; under the judgment, a two-thirds share of the net proceeds of any sale remaining after satisfaction of outstanding mortgages is to be allocated to the husband and a one-third share of the proceeds is to be allocated to the wife. The wife was similarly awarded $150,000 of the husband’s retirement account, an amount that represents one-third of the value of that account as of the parties’ separation. The wife further received the 2004-model Toyota Sequoia automobile and all personal effects in her apartment; the husband received all household furnishings in the marital home, the painting of the parties’ daughter that had been removed from the home, certain antique vases, and the right to occupy the home until its sale (with the corresponding duty to make all mortgage payments).

The trial court also awarded the wife 18 months of rehabilitative alimony in the amount of $800 per month after having considered “the parties’ standard of living during the marriage, future prospects, potential for maintaining their standard of living after the divorce, ages and health, education, length of marriage, source of common property and conduct with reference to the cause of the divorce ” (emphasis added). The trial court expressly reserved the right to award “further periodic alimony” for future consideration to the extent that such a reservation might have formerly been necessary to preserve the power to make such an award upon a proper modification request (but see Enzor v. Enzor, 98 So.3d 15, 22 (Ala.Civ.App.2011) (holding that a time-delineated award of rehabilitative alimony, a subclass of periodic alimony, preserves judicial power to consider granting further periodic alimony “at any time, on petition of either party, before the award expires”)).

The wife filed a postjudgment motion seeking a new trial that, among other things, assailed the equity of the trial court’s property division and alimony award and asserted, for the first time, that the existence of a social-networking connection between the parties’ adult daughter and the trial judge warranted the grant of a new trial and the recusal of the trial judge. The trial court, in its subsequent dispositive order, made certain adjustments to the mechanics of the sale of the marital residence, but otherwise it denied the wife’s motion.

The first issue raised by the wife concerns the propriety of the alimony and property-division provisions of the divorce judgment, as to which the following review principles apply:

“Generally, the trial court has wide discretion over the award of alimony and the division of property, and it may use whatever means are reasonable and necessary to divide the parties’ property equitably. In dividing property and awarding alimony, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and their health, their conduct, the duration of the marriage, and the value and type of marital property. This court must consider the issues of property division and alimony together when reviewing the judgment of the trial court. The trial court’s property division and alimony award will not be set aside on appeal absent an abuse of discretion.”

Daniel v. Daniel, 841 So.2d 1246, 1249 (Ala.Civ.App.2002) (emphasis added; citations omitted).

In this case, both parties are college-educated adults in their early fifties and in relatively good health. Although the wife had not been involved in the workforce since 1988, during the infancy of the parties’ now-adult child, she continues to hold a business-education degree and she has previous experience teaching keyboarding skills and accounting at the post-secondary level; the trial court could well have credited the husband’s testimony to the effect that the -wife could refresh her teaching credentials with relative ease by taking teacher-certification classes or could, with some additional education, enter some different profession.

The principal properties of any worth held by the parties are the marital home, which is subject to significant indebtedness and, according to the husband’s testimony, would not yield significant net proceeds, and the husband’s retirement account, which as we have stated was worth $450,000 at the time of the parties’ separation in September 2010 (the same month during which the divorce action was filed). The wife was awarded one-third of any net proceeds from the sale of the home and one-third of the retirement benefits within the trial court’s consideration. To the extent that the wife intimates in her brief on appeal that approximately $70,000, representing the appreciation in value of the husband’s retirement account after the filing of the divorce complaint, is to be considered in determining the equity of the property division, our caselaw is to the contrary. See Smith v. Smith, 964 So.2d 663, 669 (Ala.Civ.App.2005) (under Ala. Code 1975, § 30-2-51 (b), a retirement-benefits award incident to a divorce may not properly include “postcomplaint retirement benefits[] and income and appreciation thereon”). Further, the inclusion of a sports-utility vehicle, apartment furnishings, and a previous payment of $11,000 in the wife’s estate and the inclusion of marital-home furnishings in the husband’s estate has not been shown to have substantially affected the trial court’s apparent design to award the wife one-third of the parties’ divisible assets.

The wife points to a number of cases in her brief in which we determined to be inequitable awards of marital property to divorcing spouses of between 19 and 29 percent of the marital assets available to be considered for division. However, as we have noted, the trial court is also permitted to take into consideration, in dividing marital property, the conduct of the parties with respect to the dissolution of the marriage. Daniel, 841 So.2d at 1249. Although the trial court did not state that it was divorcing the parties on the basis of the wife’s adultery, which is a ground that will support a determination that parties to a marriage should be divorced, see Ala. Code 1975, § 30 — 2—1 (a)(2), we have squarely held that “the trial court may ... consider the conduct of the parties with regard to the breakdown of the marriage, even where ... the trial court failed to specify the grounds upon which it based its divorce judgment.” Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002) (affirming award of less than half of marital assets to adulterous divorcing spouse).

The trial court’s judgment, before noting that “the respective fault of the parties for the breakdown of the marriage” had been taken into consideration by the trial court, refers specifically to both the husband’s testimony regarding his discovery of the wife’s having had a sexual liaison with another man (which liaison she admitted having had) and the presentation of documentary evidence detailing, the husband alleged, the wife’s credit-card charges for multiple hotel stays and shared meals with her paramour; in contrast, the judgment indicates the trial court’s disbelief of the wife’s suggestions that the husband was guilty of misconduct in the form of mental and physical abuse, noting that “[ojther than the [wife’s] testimony to said abuse, [the trial court] was presented with no evidence to substantiate it.” We conclude that the trial court could properly have determined that the wife, having engaged in the conduct that precipitated the dissolution of the marriage, should receive a smaller proportion of the fruits thereof.

Similarly, we find no error with respect to the $800-per-month award of rehabilitative periodic alimony for 18 months. Although the wife testified that she expected to incur monthly expenses of over $4,000, the trial court noted that some of those expenses were somewhat inflated by her expectation of relocation from her current apartment in Tennessee; further, the wife declined to seek or obtain work during the pendency of the action, indicating her ability to subsist upon the $800-per-month pendente lite alimony award that matched the monthly monetary level of the alimony award in the final judgment. Also, as we have noted, the wife’s relative health and educational background also make her a candidate to reenter the workforce so as to support herself. Finally, the wife’s adultery leading to the dissolution of the marriage supports the trial court’s judgment as to this issue, given that under Alabama law misconduct of a recipient spouse may be considered as abridging that spouse’s alimony claim even when that misconduct is not recited as a ground for the divorce. Plaskett v. Plaskett, 348 So.2d 784, 788 (Ala.Civ.App.1977). We conclude that the trial court did not act outside its discretion awarding periodic alimony to the wife.

The second issue raised by the wife concerns the trial court’s denial of the wife’s new-trial motion asserting, in pertinent part, that the trial judge’s social-networking connection to the parties’ adult daughter warranted the grant of a new trial and the recusal of the trial judge. The record reveals that, at the hearing on the wife’s motion for a new trial, counsel for the wife, for the first time, introduced a photocopy of an Internet Web page taken from his own account on the social-networking Web site facebook.com that showed that the parties’ daughter, who grew up in the trial venue but who now lives in London, England, and the trial judge are “Facebook friends.” The trial court, in explaining his decision to deny the motion, stated, in pertinent part:

“This [Facebook] is a social networking site where the word ‘friend’ is used [in a way] that doesn’t have anything to do with the way before this Face-book.com ever existed — the way we used the word ‘friend.’
“So just because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I’ve heard [the daughter’s] name before we came in here today.
“And in fact, in the course of living here, we have all run into each other before. It — and I can say the same for [the daughter], I can’t remember a specific time when that happened.
“But the establishment of an electronic friend over Facebook has absolutely no impact on what I have done and what I’m going to do.”

The parties, in their appellate briefs, devote considerable argument to various secondary authorities assessing the abstract propriety of a “Facebook friendship” between, for example, a trial judge and a practicing attorney. However, the husband points out that at the new-trial-motion hearing the wife “offered nothing beyond the bare status of the parties’ daughter as a ‘friend’ of the judge.” Notably, the record reveals that the wife did not make any sort of showing with respect to the second of the two elements necessary to warrant the granting of a new trial based upon newly discovered evidence of a trial judge’s potential bias: that the pertinent evidence indicating bias that was discovered after trial “could not have been discovered before trial by the exercise of due diligence.” Ex parte Kenneth D. McLeod, Sr., Family Ltd. P’ship XV, 725 So.2d 271, 278 (Ala.1998) (holding that denial of new-trial motion raising issue of party’s financial contribution to trial judge’s political campaign was proper because contribution had been publicly disclosed months before trial and “unquestionably could have been detected”).

For all that appears in the record in this case, the existence of the electronic connection between the parties’ daughter and the trial judge — whether indicative of a mere acquaintanceship as the trial judge noted on the record or something more private and sinister as insinuated by the wife — was discoverable by the wife’s counsel well before trial and does not amount to a basis for retroactively undoing the work of the trial court, especially given that under the law of Alabama “[prejudice on the part of a judge should not be presumed.” Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977) (stating principle and affirming denial of new-trial motion based upon allegation of bias stemming solely from fact that the plaintiff, a first-grade schoolteacher, had taught the judge’s daughter). We thus decline to reverse the judgment under review based upon the second and final issue raised by the wife.

Based upon the foregoing facts and authorities, the trial court’s judgment is affirmed. The wife’s request for an award of an attorney’s fee on appeal is denied.

AFFIRMED.

THOMAS, MOORE, and DONALDSON, JJ., concur.

THOMPSON, P.J., dissents, with writing.

THOMPSON, Presiding Judge,

dissenting.

I do not condone the conduct of the wife in this case. However, the conduct of the parties is only one of many factors the trial court must consider in dividing marital property and fashioning an alimony award. Slaughter v. Slaughter, 587 So.2d 1215, 1216 (Ala.Civ.App.1991). “In fashioning a property division and an award of alimony, the trial court must [also] consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property.” Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009) (citing Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001)). In this case, the parties had been married for 26 years. During most of the marriage, the wife worked in the home and raised the parties’ child. The wife’s college degree in vocational education enabled her to teach typing and shorthand, and, as she pointed out, that degree is now virtually obsolete. Even considering the wife’s conduct, I believe that the disparity between the parties’ incomes and future prospects in this case is so significant as to render the trial court’s property division and alimony award inequitable. For that reason, I respectfully dissent.


author: CANADY, J.

text:
    NORTH CARILLON, LLC, Appellant, v. CRC 603, LLC, et al., Appellees.
    No. SC12-75.
    Supreme Court of Florida.
    Jan. 23, 2014.
    Rehearing Denied March 12, 2014.

      Raoul G. Cantero, David P. Draigh, and Adam A. Sehwartzbaum of White & Case LLP, Jason R. Block of Rennert Vogel Mandler & Rodriguez, PA., Miami, FL, for Appellant.
    Lawrence R. Metsch of The Metsch Law Firm, P.A., Aventura, FL; Joseph E. Alt-schul of Joseph E. Altsehul, LLC, Fort Lauderdale, FL, for Appellee.
    Robert Goldman of Goldman Felcoski & Stone, P.A., Naples, FL; John W. Little, III of Gunster Yoakley & Stewart P.A., West Palm Beach, FL; and Kenneth B. Bell of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, FL, for Amicus Curiae The Real Property, Probate and Trust Law Section of the Florida Bar.
   CANADY, J.

In this case we consider whether contracts for the purchase of two condominium units were voidable by the purchasers on the ground that the seller/developer failed to maintain the deposits paid by the buyers in escrow in the manner required by the Condominium Act, §§ 718.101-.708, Fla. Stat. (2006). In CRC 603, LLC v. North Carillon, LLC, 77 So.3d 655 (Fla. 3d DCA 2011), the Third District Court of Appeal held that the contracts were voidable under the escrow provisions of the Condominium Act that were in force in 2006, when the contracts were entered. The Third District also held that the constitutional prohibition on the impairment of vested contractual rights was violated by the retroactive application of a 2010 amendment to the Condominium Act that was intended to have retroactive effect and that removed a statutory ground for determining that the contracts were voidable. The Third District therefore reversed the final judgments in favor of North Carillon, the seller/developer, which were based on dismissal for failure to state a claim. North Carillon appealed under article V, section 3(b)(1) of the Florida Constitution, which provides that this Court “[s]hall hear appeals ... from decisions of district courts of appeal declaring invalid a state statute....”

We agree with the view that the statutory provision providing for the retroactive effect of the 2010 amendment to the Condominium Act would be unconstitutional if the amendment substantively changed the prior law and impaired the existing right of the buyers to void contracts. See, e.g., Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 877 (Fla.2010) (“[E]ven where the Legislature has expressly stated that a statute will have retroactive application, this Court will reject such an application if the statute impairs a vested right....”). But we disagree with the Third District’s conclusion that the 2010 amendment made a substantive change in the law. We reverse the Third District’s decision because we conclude that the contracts were not voidable under the statutory provisions in force in 2006, when the contracts were entered.

I.

With respect to contracts for the sale of condominium units in condominiums that have not been substantially completed, the Condominium Act establishes two categories of deposits, both of which are subject to escrow requirements. The underlying question presented by this case is whether a developer may maintain the two different types of deposits in a single escrow account, as North Carillon contends, or must place them in separate escrow accounts, as the buyers argue. The issue is doubly significant: the Condominium Act provides not only that a developer’s failure to comply with the escrow requirements renders the contract voidable by the buyer but also that a developer’s willful failure to comply is a criminal offense — a felony of the third degree.

Section 718.202, Florida Statutes (2006), sets forth the pertinent provisions of the Condominium Act that were in force when the contracts at issue here were entered:

(1)If a developer contracts to sell a condominium parcel and the construction, furnishing, and landscaping of the property submitted or proposed to be submitted to condominium ownership has not been substantially completed in accordance with the plans and specifications and representations made by the developer in the disclosures required by this chapter, the developer shall pay into an escrow account all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price....
(2) All payments which are in excess of the 10 percent of the sale price described in subsection (1) and which have been received prior to completion of construction by the developer from the buyer on a contract for purchase of a condominium parcel shall be held in a special escrow account established as provided in subsection (1) and controlled by an escrow agent and may not be used by the developer prior to closing the transaction, except as provided in subsection (3)or except for refund to the buyer....
(3) If the contract for sale of the condominium unit so provides, the developer may withdraw escrow funds in excess of 10 percent of the purchase price from the special account required by subsection (2) when the construction of improvements has begun....
(5) The failure to comply with the provisions of this section renders the contract voidable by the buyer, and, if voided, all sums deposited or advanced under the contract shall be refunded with interest at the highest rate then being paid on savings accounts, excluding certificates of deposit, by savings and loan associations in the area in which the condominium property is located.
(7) Any developer who willfully fails to comply with the provisions of this section concerning establishment of an escrow account, deposits of funds into escrow, and withdrawal of funds from escrow is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, or the successor thereof. The failure to establish an escrow account or to place funds in an escrow account is prima facie evidence of an intentional and purposeful violation of this section.

(Emphasis added.)

In brief, section 718.202(1) requires the payment “into an escrow account” of “all-payments up to 10 percent of the sale price,” and section 718.202(2) provides that payments “which are in excess of the 10 percent of the sale price described in subsection (1)” “be held in a special escrow account established as provided in subsection (1) and controlled by the escrow agent.” Section 718.202(5) provides that the “failure to comply with the provisions of this section renders the contract voidable by the buyer,” and section 718.202(7) provides that a “developer who willfully fails to comply” with the escrow requirements of the section “is guilty of a felony of the third degree.”

In 2010, the Legislature amended the Condominium Act by adding the following provision, which was first codified in section 718.202(11), Florida Statutes (2010):

(11) All funds deposited into escrow pursuant to subsection (1) or subsection (2) may be held in one or more escrow accounts by the escrow agent. If only one escrow account is used, the escrow agent must maintain separate accounting records for each purchaser and for amounts separately covered under subsections (1) and (2) and, if applicable, released to the developer pursuant to subsection (3). Separate accounting by the escrow agent of the escrow funds constitutes compliance with this section even if the funds are held by the escrow agent in a single escrow account. It is the intent of this .subsection to clarify existing law.

(Emphasis added.) This 2010 amendment to the Condominium Act was adopted shortly after a federal district court decision was issued interpreting the escrow requirements of section 718.202. In Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F.Supp.2d 1344, 1350 (S.D.Fla.2009), the court had held that “the plain language of the statute” “requires a developer to establish two separate escrow accounts if a buyer deposits more than 10 percent of the purchase price.”

II.

Both sides in this case acknowledge the plain meaning rule under which an unambiguous statutory text is ordinarily given effect according to the plain meaning of its terms. See Greenfield v. Daniels, 51 So.3d 421, 425 (Fla.2010) (“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984))). And both sides contend that the plain meaning of the text supports their respective divergent interpretations of the escrow provisions in the statute. Both sides also contend that the statutory history of section 718.202 supports their interpretation of the statute. In addition, North Carillon argues that because section 718.202 includes a criminal penalty for the violation of the statutory escrow requirements, any ambiguity must be resolved in favor of the developer under Florida’s statutory rule of lenity. The buyers respond that the rule of lenity has no application in a civil case.

In the analysis that follows, we first examine the relevant text of the statute and conclude that it is ambiguous. We then turn to the statutory history. For purposes of this analysis, we assume that we may look to statutory history to resolve an ambiguity in the statutory text before resorting to application of the rule of lenity. We conclude that the statutory history does not resolve the textual ambiguity, and then we explain why the statutory rule of lenity applies in this civil case.

A.

The interpretation adopted by the Third District — and the interpretation relied on by the buyers — turns on an understanding of the word “special” in the text of section 718.202. According to this interpretation, “ ‘special account’ and ‘special escrow account’ are terms mandating separate accounts for deposits under section 718.202(1) and (2).” North Carillon, 77 So.3d at 660. In this view, “special” means designated for a particular discrete purpose. Although this is a tenable interpretation because the reference to a “special” account occurs in subsection (2) but not in subsection (1), it is undercut by the fact that subsection (2) refers to “a special escrow account established as provided in subsection (1).” The use of the term “special” in subsection (2) suggests a separation of subsection (2) accounts from subsection (1) accounts, but the characterization of the subsection (2) account as “a special escrow account established as provided in subsection (1)” suggests an identity of the section (1) and (2) accounts. Because neither interpretation of the language of the text is unreasonable, we conclude that the text is ambiguous.

B.

The statutory history of section 718.202 is extensive and complex. The use of the phrase “special account” predated the statutory distinction between deposits up to a certain percentage of the selling price and deposits in excess of that percentage. The phrase also predated a statutory revision requiring that the initial deposit be held by an escrow agent and a later revision requiring that any excess deposits also be held by an escrow agent. The word “special” originally was employed in the statute to designate not an escrow account but an account of the seller/developer that was not comingled with the funds of the seller/developer.

Specifically, section 711.25(1), Florida Statutes (1973), the predecessor to section 718.202, Florida Statutes (2006), provided:

Whenever money shall be deposited or advanced on a contract for the purchase of a condominium unit prior to the filing of a notice of commencement ... such money shall be held in a special account by the seller or his duly authorized agent and shall not be commingled with the funds of the seller or his agent prior to the filing of the notice of commencement ....

(Emphasis added.) In 1974, the statute was amended to define two different types of buyer deposits and require that one of those types of deposits be held in a “special account.” The revised statute provided that “the developer shall establish an escrow ... [in which] shall be deposited all payments received by the developer from the buyer ... until the amount deposited shall equal 5 percent of the sale price.” § 711.67(1), Fla. Stat. (Supp.1974). The statute further provided that “such money in excess of 5 percent of the sale price of the parcel shall be held in a special account by the developer ... and shall not be used by developer prior to closing of the transaction” except in circumstances defined by subsection (3) of the statute. § 711.67(2), Fla. Stat. (Supp.1974).

In 1976, the Legislature adopted the Condominium Act and made revisions to the deposit statute. The dividing line between the two types of buyer deposits changed from five percent of the sale price to ten percent of the sale price, and the term “special account” in section 711.67(2), Florida Statutes (Supp.1974), became a “special escrow account” in section 718.202(2), Florida Statutes (Supp.1976). See ch. 76-222, § 1, Laws of Fla. Notwithstanding the addition of the word “escrow” to the account description in section 718.202(2), the statute continued to state that the account for deposits over ten percent of the sale price could be held “by the developer” subject to the condition that the funds were not to be used by the developer prior to closing. § 718.202(2), Fla. Stat. (Supp.1976).

The next pertinent revision was made in 1984. The Legislature removed the language permitting the “special escrow account” to be held by the developer and directed that “[ejvery escrow account required by this section shall be established with a bank, a savings and loan association, an attorney ..., a real estate broker ..., or any financial lending institution having a net worth in excess of $5 million” and that “[ejvery escrow agent shall be independent of the developer.” See §§ 718.202(2), (8), Fla. Stat. (Supp.1984).

From this historical background, the buyers argue that “special” has always denoted and continues to denote an account segregated for a particular purpose. From the same historical background, North Carillon contends that “special” means nothing more than that the deposits in the account were not to be commingled with the funds of the seller/developer.

The buyers’ argument, on the one hand, appears to stretch the meaning of “special” in the 2006 statute beyond what it originally denoted — that is, that the deposits were not to be commingled with the seller/developer’s funds. North Carillon’s argument, on the other hand, appears to reduce the term “special” in the 2006 statute to a cipher since it adds nothing to the term “escrow.” In short, the complex statutory history does not satisfactorily resolve the ambiguity in the text of the 2006 statute.

C.

We thus turn to North Carillon’s argument concerning the statutory rule of lenity. Section 775.021(1), Florida Statutes (2013), provides that the “provisions of the [Florida Criminal] [Cjode and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” The rule of lenity thus comes into play when the text of a statute is “subject to competing reasonable interpretations.” Paul v. State, 129 So.3d 1058, 1195 (Fla.2013). Section 718.202(7), which provides that the willful failure “to comply ■with the provisions of this section concerning the establishment of an escrow account, deposits of funds in escrow, and withdrawal of funds from escrow” is “a felony of the third degree,” triggers application of the rule of lenity because the statutory language establishing the basis for an offense prosecutable under section 718.202(7) “is susceptible of differing constructions.” The proper definition of the circumstances that constitute a violation of the statutory escrow requirements is necessary to establish not only a buyer’s right to void a contract but also the State’s ability to prosecute a developer for a criminal offense.

We reject the buyers’ argument that the rule of lenity can be applied only in a criminal case. The text of a statute that establishes the basis for both civil liability and criminal liability cannot have one meaning in civil cases and another meaning in criminal eases. As the United States Supreme Court has recognized, such statutes must be interpreted “consistently, whether we encounter [their] application in a criminal or noncriminal context.” Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). “The rule of lenity ... is a rule of statutory construction whose purpose is to help give authoritative meaning to statutory language. It is not a rule of administration calling for courts to refrain in criminal cases from applying statutory language that would have been held to apply if challenged in civil litigation.” United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 n. 10, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (plurality opinion); see also Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (holding, with respect to civil action to recover funds, “because the governing standard is set forth in a criminal statute, it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of the statute’s coverage”).

Given the ambiguity in the statute, we apply the rule of lenity, which requires that the statute “be construed most favorably to” the developer. § 775.021, Fla. Stat. Such a construction authorizes the maintenance of deposits required by both subsection (1) and subsection (2) of section 718.202 in a single escrow account. The buyers’ claims against North Carillon for the maintenance of deposits in a single escrow account therefore were properly dismissed by the trial court.

III.

Because we conclude that the Third District did not properly interpret the escrow requirements of section 718.202 and that the trial court properly dismissed the claims against North Carillon, we reverse the decision on review and remand for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., concurs in result.

QUINCE, J., dissents.


author: POLSTON, C.J.,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner(s) v. Robin CURRAN, Respondent(s).
    No. SC12-157.
    Supreme Court of Florida.
    March 13, 2014.

      PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
    POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.
   POLSTON, C.J.,

dissenting.

Because I would order the trial court to vacate the judgment against State Farm, I would deny Curran’s motion for attorney’s fees and grant State Farm’s Case No. SC12-157 Page 2 motion for attorney’s fees, conditioned upon the trial court’s finding that State Farm is entitled to fees pursuant to its proposal for settlement.

CANADY, J., concurs.