author: PITTMAN, Judge.

text:
    A.M.B. v. J.M.S.
    2070783.
    Court of Civil Appeals of Alabama.
    Jan. 9, 2009.
    Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellant.
    W. Allen Grocholoski, Fayette, for ap-pellee.
   PITTMAN, Judge.

In December 2007, the State of Alabama, on the relation of A.M.B. (“the mother”), the mother of a minor child, B.R.S. (“the child”), brought a civil action in the Fayette Juvenile Court against the alleged father of the child, J.M.S. (“the father”); the complaint alleged that the mother had received public assistance toward the support of the child from the Alabama Department of Human Resources and sought, among other things, a judgment declaring the father’s paternity of the child and directing him to pay child support. The father filed an answer and counterclaim in which the father sought, among other things, to “be allowed to claim the ... child for income tax purposes” as a dependent.

The juvenile court entered orders in January 2008 determining the father’s paternity of the child, awarding the mother primary physical custody of the child subject to the father’s visitation rights, and directing the father to pay child support in the amount of $283 per month pursuant to the provisions of Rule 32, Ala. R. Jud. Admin.; however, the juvenile court did not determine the income-tax-deduction issue until April 2, 2008, after having held a hearing on that issue. In its April 2, 2008, order, the juvenile court, without stating reasons therefor, directed that the mother claim the dependency exemption as to the child in odd-numbered years and that the father claim that exemption in even-numbered years for the purposes of both state and federal income taxation. After the denial of her postjudgment motion challenging the correctness of the allocation of the dependency exemption, the mother timely appealed.

On appeal, the mother renews her contention that the partial award of the dependency exemption to the father represents a deviation from the guidelines set forth in Rule 32, Ala. R. Jud. Admin. The mother’s contention is well taken. Numerous cases decided by this court stand for the proposition that, under the Rule 32 child-support guidelines, the primary custodial parent is ordinarily the proper party to be allocated income-tax dependency exemptions as to that parent’s minor children, although a trial court has discretion to deviate from those guidelines and effect a different allocation if that court enters a written finding, supported by the evidence, that the application of the guidelines would be unjust or inequitable (see Rule 32(A)(i) and (ii), Ala. R. Jud. Admin.). Among those cases are: Langley v. Langley, 895 So.2d 971, 975 (Ala.Civ.App.2004); Hallum v. Hallum, 893 So.2d 1192, 1196 (Ala.Civ.App.2004); Walls v. Walls, 860 So.2d 352, 359 (Ala.Civ.App.2003); DeYoung v. DeYoung, 853 So.2d 967, 971 (Ala.Civ.App.2002); Fountain v. Fountain, 829 So.2d 763, 766-67 (Ala.Civ.App.2002); K.H.L. v. K.G.M., 782 So.2d 804, 807 (Ala.Civ.App.2000); Stone v. McLaughlin, 752 So.2d 522, 524-25 (Ala.Civ.App.1999); Washington v. Washington, 738 So.2d 1283, 1284 (Ala.Civ.App.1999); K.T.W.P. v. D.R.W., 721 So.2d 699, 703 (Ala.Civ.App.1998); and Flanagan v. Flanagan, 656 So.2d 1228, 1232 (Ala.Civ.App.1995).

The most direct analogy is provided by K.H.L., in which a juvenile court determined the paternity of a child, awarded sole custody of that child to that child’s mother, and directed that child’s father to pay child support; that court later amended its judgment to allow “each parent to claim the child as a dependent for income tax purposes in alternating years,” as was ordered in this case. 782 So.2d at 806. In reversing that aspect of the judgment under review, we stated:

“This court has consistently held that the allocation of the dependency exemption is a matter within the discretion of the trial court. Flanagan v. Flanagan, 656 So.2d 1228 (Ala.Civ.App.1995). However, the Comment to Rule 32, under the heading ‘Tax Exemptions’ states, ‘The Schedule of Basic Child Support Obligations assumes that the custodial parent will take the federal and state income tax exemptions for the children in his or her custody.’ Therefore, we instruct the court to enter a statement explaining its deviation from the guidelines in awarding the father the tax-dependency exemption in alternating years. Flanagan, supra.

782 So.2d at 807.

Based upon the foregoing authorities, we reverse the judgment of the juvenile court in this case and remand the case to the juvenile court for that court to either (1) “enter a statement explaining its deviation from the guidelines in awarding the father the tax-dependency exemption in alternating years” (K.H.L., 782 So.2d at 807) or (2) amend its judgment to fully conform to the guidelines by awarding the dependency exemption to the mother as the primary custodial parent (see Walls, 860 So.2d at 359).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Larry Wade RYLAND v. Gwendolyn Pauline RYLAND.
    2070146.
    Court of Civil Appeals of Alabama.
    Jan. 9, 2009.

      James D. Hamlett, Montgomery, for appellant.
    Linda S. James, Andalusia, for appellee.
   THOMPSON, Presiding Judge.

On May 19, 2004, after 29 years of marriage, Gwendolyn Pauline Ryland (“the wife”) filed a complaint against Larry Wade Ryland (“the husband”) seeking a divorce. Three children were born of the parties’ marriage — two daughters and a son. At the time the wife filed her complaint for divorce, the parties’ two daughters had reached the age of majority. The parties’ son reached the age of majority in March 2006, before the entry of the judgment in this action. In her complaint for a divorce, the wife requested, among other things, that the trial court order the husband to pay $500 per month in temporary child support pending the final hearing in the matter. On May 25, 2004, the husband answered the complaint. On June 1, 2004, the trial court ordered the husband to pay $500 per month in temporary child support. Following a hearing, the parties agreed to raise the amount of temporary-child support paid by the husband to $725 per month; the trial court entered an order on June 30, 2004, adopting the parties’ agreement and ordering the husband to pay $725 per month in temporary child support.

The trial court conducted an ore tenus hearing over the course of five days. After the second day of testimony, the trial court entered an order on September 20, 2005, in which it, among other things, ordered the husband to pay the wife $5,000, ordered the husband to continue to pay $725 per month in child support, and continued the case. The final hearing concluded on October 12, 2005, and on October 18, 2007, the trial court entered a judgment divorcing the parties, ordering the husband to pay periodic alimony, and fashioning a property division. The husband timely appealed.

When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The lengthy trial transcript and the numerous exhibits admitted into evidence at trial reveal the following pertinent facts. The husband and the wife married on June 7, 1975. At the time of the final hearing, the husband was 58 years old and the wife was 56 years old. The parties’ two daughters and son were ages 26, 24, and 18, respectively. The wife worked full-time after the parties married while the husband pursued a doctorate in education. The wife has a masters degree in business education. After the parties’ second daughter was born, the wife did not return to work. In 1998, the wife returned to work at the Andalusia Chamber of Commerce. At the time of the final hearing, the wife was employed full-time as an office manager at the Andalusia Chamber of Commerce earning $9.25 per hour. The wife stated that her net monthly income is $1,200. The wife testified that she receives no benefits through her employer. The wife testified that she had applied for a teaching position in Covington County and surrounding counties but that she had had no success in finding a teaching position.

The husband testified that he has an “education specialist” degree. In 1990, the husband applied for and received a commercial driver’s license. The husband testified that he is also certified in emergency-management training. In May 2000, the husband retired from a position as an instructor at Lurleen B. Wallace Junior College (“LBW”). At the time of the final hearing, the husband received $2,743.55 in gross monthly retirement benefits. The husband testified that in June 2000 he began driving an 18-wheel tractor-trailer to generate income. According to the husband, the income he earned as a commercial truck driver varied each month. The husband estimated that he earned an average of $8,000 per month in gross income as a commercial truck driver but that he had to deduct his monthly work expenses (e.g., food and truck maintenance) from that amount. According to the husband, he earned gross income of $96,000, at most, one year as a commercial truck driver. The husband stated that, once his expenses were subtracted from that amount, he earned a net yearly income of only $26,000. The husband testified that in March 2004 he stopped driving the 18-wheel tractor-trailer for medical reasons and that he had not been able to resume driving commercially since that time. The husband later admitted on cross-examination that he had driven the 18-wheel tractor-trailer several months before the final hearing, even though it physically hurt him to do so. The husband testified that he was not employed at the time of the final hearing.

The wife testified that she has no retirement accounts of her own and that she receives no retirement benefits from her current employer. The husband testified that he had a severance plan through his former employer, LBW, valued at $84,707.21. The husband stated that he would not have access to his severance plan, without penalty, until he reached the age of 59’A years.

The husband testified that he believed that he was disabled; he had not applied for disability benefits at the time of the final hearing. The husband testified that he had been diagnosed with diabetes in 1990, that he had suffered from fibromyal-gia for the past 15 years, and that he had suffered from depression for the last 25 years. The husband testified that he also suffered from arthritis and had bone spurs in his heels. The husband stated that he had undergone surgery on his shoulders twice and that he intended to have back surgery in the near future. The record does not reveal the nature of the husband’s back problems.

Over the course of the parties’ marriage, the husband and the wife either purchased or inherited several pieces of real property. In or about 1987, the parties purchased a house on Faulkenberry Street in Andalusia (hereinafter “the Faulkenberry property”). The wife testified that she and the husband had purchased the property for $13,000. According to the wife, the property had been appraised to be worth $26,400. The husband estimated that the Faulkenberry property was worth $49,000.

Also, in 1987, the husband inherited a 22-acre pecan orchard in Conecuh County (hereinafter “the farm”) from his parents. The wife testified that the farm had a tax appraised value of $20,380. However, the wife explained that she believed that the farm was more valuable, given the money that could be earned from the pecans, and estimated that the farm was worth $40,000. The husband estimated the value of the farm to be $30,000. The husband admitted that the farm, on occasion, generates income, but he testified that the farm had generated less income in the last two years because of hurricane damage to the pecan trees. The record does not indicate the specific amount of income generated from the production of pecans on the farm.

The wife testified that, during the parties’ marriage, the Faulkenberry property had fallen into disrepair. According to the wife, the property had sustained substantial damage following Hurricane Opal in 1995. The wife testified that the husband had declined to use $6,000 in insurance proceeds to make the necessary repairs to the Faulkenberry property but that he instead had chosen to use the money towards improvements on the farm. The wife testified that she had applied for, and received, a loan in the amount of $6,731 to make the necessary repairs to the Faulk-enberry property. At the time of the final hearing, the wife continued to make monthly payments on the balance of that loan. The wife estimated that she owed $4,000 on the loan at the time of the final hearing. The wife testified that she also had used, at the behest of her oldest daughter, an income-tax refund check in 2000 in the amount of $1,200 to make necessary repairs to the Faulkenberry property. The record indicates that the money was used to paint the interior of the house, to repair the floors, and to replace the stove.

The wife testified at length regarding the husband’s expenditures for the farm and the investments he had made for the benefit of the farm. According to the wife, after the husband inherited the farm, he made improvements that included adding an irrigation system and pump houses, building two ponds, and planting additional pecan trees. The wife estimated that the husband also had purchased in excess of $50,000 worth of equipment to use on the farm. The husband estimated that he had spent $50,000 on the farm over approximately 15 years. The wife testified that she and the children had worked on the farm almost every weekend. The wife testified that the parties had used money from their joint checking account to fund operations on the farm and that the parties’ income-tax refund checks had been deposited in the farm bank account. According to the wife, the husband had assured her throughout the marriage that the farm was their “retirement” and was their “future.” The husband denied telling the wife that the farm was part of her retirement.

In addition to the Faulkenberry property and the farm, in December 1996 the husband also purchased property from Sara Owens (hereinafter “the Owens property”) that was located near the farm. The wife testified that the Owens property consists of approximately 60 acres of land, and, the record indicates, it has two houses on it. The husband lived in one of the houses at the time of the final hearing, and the other house remained vacant. The record does not indicate the value of the Owens property.

The wife testified that in 1982 she and the husband had purchased property in Monroe County consisting of five acres of land with a house on the land (hereinafter “the Monroe County property”) for $10,000. The wife testified that she and the husband had rented the Monroe County property and had used the rental income that was deposited into a joint bank account to make any necessary repairs to the property, as well as to pay for some of the children’s expenses. The wife testified that the Monroe County property had not generated any rental income since 2001. The wife stated that she had closed the rental bank account, which at the time it was closed had a balance of $1,500, and that she had placed that money in her personal checking account.

According to the wife, the house on the Monroe County property burned in February 2004. The wife testified that the house had been insured for $10,000 with State Farm Insurance Company at the time. According to the wife, the husband had declined to sign a release at the time of the final hearing, so State Farm had not yet paid the money owed under the policy. The wife estimated that the Monroe County property was worth $8,000 to $5,000 after the house on the property had sustained damage from the fire.

The husband testified that he and the wife had purchased the Monroe County property for $16,000. The husband testified that he and the wife had made improvements to the property and began to rent the property to others in 1983. The husband testified that the wife had received all the rental income from the Monroe County property. The husband estimated that the wife had received $3,600 per year in rental income from the property. The husband admitted that he had refused to sign the release for the insurance funds needed to repair the house on the Monroe County property.

Over the course of the parties’ marriage, the husband had purchased approximately 20 pieces of property at tax sales in Cov-ington County and Conecuh County. The husband’s testimony reveals that the cumulative appraised value of the property he had purchased totaled $142,470. The husband testified that the property he had purchased at tax sales included a house valued at $50,000. The husband explained that a “trespasser” was living in the house at the time of the final hearing and that, therefore, he was unable to rent the house. The husband testified that he had initiated legal proceedings against the trespasser but had had no success.

In 1990, the wife’s parents deeded to the wife a one-third interest in certain real property located in Monroe County. The wife testified that she had not considered the property to be hers at the time her parents deeded a one-third interest in the property to her because her parents were still living at the time and continued to use the property. The husband estimated the fair market value of that property to be $60,000. The record does not indicate if the husband was referring to the total value of the property or the value of the wife’s interest in the property.

At the time of the final heai'ing, the husband and the wife had been living apart for approximately five years. The wife testified that in May 2000 the husband had moved off of the Faulkenberry property and had moved onto the Owens property. The husband lived on the Owens property at the time of the final hearing in this matter. According to the wife, the husband moved out of the Faulkenberry property — a two bedroom house — after she rearranged the living arrangements so that the two children still living in the house could each have their own room, requiring the husband and her to sleep in the living room.

The wife testified that, after the husband had moved to the Owens property, she had continued to visit the husband on the weekends. The wife stated that she had worked at the farm on the weekends, cooking, cleaning, and washing clothes. The wife testified that she had last visited the farm in March 2003; according to the wife, at that time she had found evidence indicating that the husband was having an affair. The wife testified that the husband had never inquired as to why she had not returned to the farm after March 2003.

The wife testified that in early November 2003 the husband had asked her to sign a deed divesting her of any interest in the Owens property. According to the wife, the husband had explained that he intended to convey the property to the parties’ son. The wife testified that she had signed the deed on that basis. The wife testified that the husband also had asked her to sign a deed transferring ownership of the Monroe County property but that she had refused to do so. According to the wife, approximately two weeks later, on November 24, 2003, the husband asked her for a divorce.

The wife testified at length regarding her monthly expenses. The wife estimated that her monthly living expenses were $1,567. Included in that amount, among other things, was $140 for electricity, $125 for gas for her vehicle, $154 for the son’s car insurance, $55 a month for her car insurance, $33 a month for home telephone service, $35 a month for cellular-telephone service, $155 towards the payment of a loan for home repairs, and $200 in miscellaneous expenses. The wife testified that her brother typically gives her $30 to $40 a week to help her buy groceries. The wife explained that she used a credit card to pay for monthly expenses that her employment income would not cover. She testified that she owed approximately $400 on a gas credit card. The wife further testified that she owed the parties’ oldest child $5,000 that she had borrowed to pay her attorney fees and that she intended to reimburse the oldest child for the money loaned for the attorney fees.

The wife testified that the husband owed a child-support arrearage in the amount of $9,425. According to the wife, since the trial court entered its June 2004 child-support order, the husband has paid $240 for the son’s high-school graduation materials and $465 in uncovered medical expenses for the son. The wife testified that the husband had purchased the son a 1994 Toyota pickup truck for $1,900 during the period that he was not paying child support for the son. The wife estimated the value of the Toyota truck to be $4,000. The wife testified that the truck was the second vehicle the husband had purchased for the parties’ son. The wife explained that the husband had also purchased a 2001 Pontiac Firebird for the parties’ son. The wife did not testify regarding the value of the 2001 Pontiac vehicle. The wife testified that she drives a 1996 Honda Accord that her oldest child gave to her. According to the wife, the vehicle is titled in the oldest child’s name. The wife owns a 1969 Buick Skylark. The husband testified that the Buick is in mint condition and estimated its value to be $10,000.

The wife testified that the husband had numerous guns, a gun vault, and two gun cabinets that she estimated were worth $50,000. The husband explained that the parties’ son had taken the guns and declared them to be his and that, therefore, the guns belonged to the son. The wife testified that the husband also had an extensive collection of Craftsmen brand tools that she estimated were worth $5,000.

The wife testified that the parties’ son attends community college at LBW and lives with her. According to the wife, at the time of the final hearing the son was a freshman and was working toward a degree in business administration. The wife explained that the son wanted to attend LBW for two years before transferring to another college. The wife testified that the son intends to continue to live with her until he completes his courses at LBW. The wife testified that the son’s grades consisted of B’s and a couple of C’s. According to the wife, the son receives a small band scholarship and is not receiving student loans. The wife testified that the husband has paid for the son’s tuition, books, and supplies.

The record contains extensive testimony regarding the husband’s sale of the parties’ marital assets, including real property and equipment, after the wife initiated divorce proceedings. The husband testified that he had not deeded, as he had told the wife he would, the Owens property to the parties’ son. The husband explained that he had sold the Owens property to Joseph Hornady on December 23, 2003, one month after he had asked the wife for a divorce. The husband testified that Hornady had paid $10 and “other valuable consideration” for the Owens property. The husband explained that the other consideration for the Sara property included the reservation of hunting and fishing rights for the husband and permission for the husband to continue to reside in one of the houses on the Owens property until his death. According to the husband, the sale of the Owens property to Hornady also had relieved him of $60,000 in mortgage indebtedness on that property. The husband estimated that the Owens property had been worth $140,000 at the time he had purchased the property in December 1996. The husband denied that an agreement with Hornady existed that provided for Hornady to deed the property back to the husband once the parties’ divorce was final. The husband testified, however, that after the sale he had continued to pay insurance premiums on the two houses on the Owens property, had maintained the property by paying $8,400 to replace the roof on one of the houses, and had paid for the utilities and other expenses. The record indicates that the husband also had paid the monthly mortgage on the Owens property on at least two occasions after he had sold the Owens property to Hornady.

In addition to the Owens property, the husband sold farming equipment that included three tractors, a “bushhog,” a trailer, pecan-harvesting equipment, a sprayer, and a backhoe to Francis Windham, whom the husband described as a “real good friend,” for $10. The husband testified that Windham was one of his neighbors. According to the husband, Windham let him store the equipment under a shed on the farm and continue to use the equipment. The husband denied having an agreement with Windham to purchase the tractors back after the divorce is finalized. The husband testified that if the three tractors he sold were purchased by someone other than his friend, they would probably sell collectively for $20,000 to $25,000.

In or about 1999, the husband purchased a 1995 International brand 18-wheel tractor-trailer for $21,000. The husband estimated the value of the tractor-trailer to be $6,000 at the time of the final hearing. In 2003, the husband sold the tractor-trailer to Nathan Robinson for $100. The husband testified that he leased the tractor-trailer from Robinson after selling it and that he continued to pay the insurance premiums on the tractor-trailer. The husband explained that he also spent $20,590.26 to make necessary repairs to the tractor-trailer after he had sold it to Robinson.

Income-tax returns for the parties for the tax years 1998, 1999, 2000, 2001, and 2002, were admitted into evidence. The tax returns .contain a depreciation schedule that estimated the value of the farm equipment to be $159,000 in 1998, $167,103 in 1999, $134,040 in 2000, $151,660 in 2001, and $139,164 in 2002. The 2000 income-tax return also included a separate depreciation schedule for the tractor trailer and listed its value at $27,847.

The husband testified that he also had sold a travel trailer in the summer of 2003 to Pat Hennigan for $10. The husband testified that after he had sold the trailer he had continued to pay rent for a lot to park the trailer. The husband explained that the trailer was being stored at Wind-ham’s house for Hennigan to pick up.

The husband testified that he has several life-insurance policies, a couple of annuities, and a deductible-employee-contribution account with the Retirement Systems of Alabama (“the RSA”). The husband’s testimony revealed that he had withdrawn substantial sums from his annuities and the RSA account and had borrowed substantial sums against his life-insurance policies after the wife filed her complaint for divorce. On December 19, 2003, the husband withdrew $17,551.87 from his AIG Valic account. A September 27, 2005, AIG Valic statement shows a balance in that account of $23,236.84. The husband borrowed $39,746.26 from his Merrill Lynch life-insurance policy on December 22, 2003. He also borrowed $14,713 from his Zurich Kemper account on January 6, 2004, and he withdrew $8,300.63 from his RSA account on December 23, 2003. The husband testified that he also has an account with Nationwide Western Life Insurance Company valued at $14,384.24.

The husband testified that he considered the amounts that he had withdrawn to be loans, and, at the time of the final hearing, he was making quarterly payments to replenish the moneys he had borrowed from the accounts. The husband acknowledged that he was not required to repay the moneys he had withdrawn from those accounts.

The husband was questioned extensively regarding how he had used the money he had withdrawn from his annuities and life-insurance policies. The husband testified that he had spent $4,590 for a prepaid burial policy and $8,000 on a grave marker. The wife submitted copies of numerous checks that the husband had written to “cash.” The wife submitted copies of six checks written to “cash” in the amount of $8,000 each. On most of the checks submitted into evidence, the husband had labeled the check as a “gift.” The husband testified that, at one point, he had withdrawn $14,000 in cash “put it in [his] pocket” and “went out and had a good time” because he “thought [he] deserved it.” The husband testified that he could not recall how he had spent the money, but testified that the money was gone. When asked if he believed it was okay to give money away to prevent the wife from having any part of it, the husband responded “I guess so.”

The husband testified that his monthly expenses included $1,889.53 in payments on loans taken against his life-insurance policies and annuities, approximately $200 per month for gas for his vehicles, $107 in auto insurance, approximately $361.94 in health-related expenses, $55 for his cellular-telephone bill, $75 a month for his home telephone service, $163 for his credit-card bill, $70.50 per month for homeowner’s insurance, and $94 a month for miscellaneous personal expenses. In addition to those monthly expenses, the husband also included expenses associated with the farm equipment that he no longer owned. The husband testified that he paid $170 per month to Farm Plan, a credit account used to cover repairs made on farm equipment; $34 a month for replacement parts for farm equipment; approximately $105 for welding repairs to the farm equipment; and $62.30 per month for welding supplies.

The husband testified that he owns several vehicles. The husband owns a 1974 Chevrolet pickup truck that was inoperable at the time of the final hearing. The husband testified that the 1974 truck was worth nothing. The husband testified that he also owns a 1978 Chevrolet truck that he values at $100, a 1984 Chevrolet Impala that he values at $100, a 1986 Toyota pickup truck worth approximately $400, and a 1991 Chevrolet Suburban that he believed to be worth $1,000. The husband testified that he primarily drives a 1993 Dodge Caravan that he valued at $1,500. According to the husband, no indebtedness remained on the vehicles.

Kimberly Ryland, the parties’ oldest child, testified that she had encouraged the mother to use the 2000 income-tax refund to pay for necessary repairs to the Faulk-enberry property. According to Kimberly, the father did not use his money to support the family. Kimberly explained that she had helped pay several household bills while working and living at the Faulken-berry property. Kimberly testified that the family’s money went to paying for the upkeep of the farm. Kimberly testified that the family worked on the farm every weekend.

The husband presented testimony from several witnesses who testified that the wife and the children did not work on the farm every weekend. Patricia Windham, one of the husband’s neighbors, testified the children did not work on the farm every weekend and that she rarely observed the wife at the farm for more than one hour. Similarly, Daniel Padgett, the husband’s nephew, testified that the children and the wife did not spend every weekend working at the farm.

In its October 18, 2007, judgment, the trial court made the following findings of fact:

“The court finds that the parties were married for over 30 years, with three children, two of which were adults at the time of the hearing, and one a minor (who is now over the age of 19, as well); that the family was supported primarily by the husband, who worked outside the home, while the wife was the homemaker, who worked outside the home very little. Throughout the marriage, the husband systematically entered into investments or purchases of property, both real and personal, at the sacrifice of using the same funds to support his family in a more comfortable fashion. In the instance of the Conecuh County property deeded by the husband’s parents, the husband encouraged the wife to believe that it was intended as their retirement and marital funds were used to make expensive improvements, such as building a lake and/or improving a lake, adding an irrigation system, tree planting and the like. The husband led the wife to believe that since this property was intended to fund their retirement, the sacrifice of time, money and energy spent on the Conecuh County property, rather than the family and the family home, was justified. The husband also invested in various brokerage accounts in his name alone consistently during the marriage. While building an estate is admirable, in this instance it was done at the sacrifice of the family’s comfort, while they continued to live in a small, crowded, ill furnished home. The court finds that the wife and the two older daughters occasionally used deceitful tactics to make small improvements to the marital home and to their comfort; necessitated by the husband’s insistence on building a retirement estate.
“The court further finds that the property in Monroe County in which the wife was deeded a one third interest, along with her brother and sister, is true inherited property and is not a marital asset. As the husband and the wife both testified, neither knew of the existence of the deed until the divorce hearing; the property was in no way co-mingled or used by the parties during the course of the marriage, unlike the Conecuh County property deeded to the couple by the husband’s parents, which the Court finds to be marital property.
“Additionally, the court finds that the husband’s actions in selling various valuable pieces of land, equipment and vehicles were an obvious sham intended to preclude the wife from claiming any interest in them; and that the husband will be able to re-acquire any interest he may have conveyed to Nathan Robinson, Francis Windham, Joseph Hornady and Pat Hennigan by returning the various $10 and $100 considerations paid by them to him in an effort to defraud the wife. The court finds that he, shortly after asking for the divorce, cashed in all accounts and insurance policies that he could, in an effort to convert them to cash, which he has attempted to hide from the wife. The unknown checks made payable to himself in cash total over $78,800. In contrast, the wife closed out two accounts, each with approximately $1,500 in them, and opened new bank accounts in her name alone, totaling $3,000.
“The court further finds that the marital separation occurred after the wife suspected the husband of adultery, a claim which he never denied during the trial.
“The court finds that the marital assets total $791,322.72 and that same should be divided equally between the parties.”

Based on those findings, the trial court awarded the wife $395,661.36 of the marital assets. Included in her $395,661.36 portion of marital assets were, among other things, the Faulkenberry house, the Monroe County property, the balance of the AIG Vahe account, the State Farm insurance check in the amount of $10,000, the 1969 Buick Skylark, and $3,000 she had withdrawn from two joint bank accounts. The trial court ordered the husband to pay the wife the remaining balance of her portion of the marital assets in cash. The remaining half of the marital assets were awarded to the husband subject to his executing a mortgage on all the property he owns an interest in, or acquires an interest in, to the wife until all payments due the wife under the divorce judgment are paid in full.

The trial court ordered the husband to pay the wife $5,034.75 as a child-support arrearage. Regarding postminority support, the trial court ordered “[tjhat the husband pay postminority support for his son, Corey, including tuition, books, school supplies, fees, medical and dental expenses, room, board, transportation, and reasonable extra-curricular expenses for four continuous years, exclusive of summers.”

The trial court also ordered the husband to pay the wife $375 per month in periodic alimony for the next four years, or until the son leaves school, and ordered the husband to pay $1,000 in periodic alimony to the wife after the child leaves school, or after October 23, 2009, whichever comes first. The trial court further ordered the husband to pay the wife’s attorney $16,920 as attorney fees.

On appeal, the husband contends that the trial court exceeded its discretion by awarding the wife one-half of the marital assets and periodic alimony. Specifically, the husband argues that the trial court disregarded that he had been primarily responsible for the size and value of the marital estate and that the wife had contributed little to the value of the marital estate. The husband further argues, albeit briefly, that the trial court failed to consider his ability to pay when it provided that the wife’s monthly periodic-alimony award be increased by $625 after the parties’ son leaves college or after October 23, 2009, whichever comes first.

The issues of property division and alimony are interrelated, and, therefore, they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996). When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish v. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001).

The evidence presented to the trial court revealed that the parties had been married almost 30 years at the time the wife filed a complaint for divorce. At the time of the final hearing, the husband was 58 years old and the wife was 56 years old. Although the husband claimed to be in poor health, evidence presented at the final hearing revealed that the husband continued to drive tractors and work on the farm, as well as occasionally drive an 18-wheel tractor-trailer. The wife’s gross monthly income is approximately $1,480, whereas the husband earns a gross monthly income of $2,743.55. While the wife has no retirement accounts in her name and receives no retirement benefits from her current employer, the husband has access to several retirement accounts, as evidenced by the multiple withdrawals he made from those accounts after the wife filed for divorce. The trial court heard conflicting testimony at trial from which it could have concluded that the husband had represented to the wife that the farm was “her retirement.”

The evidence presented at the final hearing called into question the husband’s conduct leading up to the day the wife filed her divorce complaint and his conduct following the wife’s initiation of divorce proceedings. The trial court heard evidence from which it could have concluded that the husband knew the marriage was in trouble and systematically began removing the wife’s name from assets. The record indicates that the husband, under false pretenses, successfully had the wife deed her interest in the Owens property to him under the belief that the parties’ son would receive the property, and when the wife did not agree to sign the deed to the Monroe County property, the husband informed her that the marriage was over. After the wife filed for divorce, the husband withdrew large sums from his investment accounts and borrowed from the cash value of his life-insurance policies in an effort to decrease the marital estate. The husband could not explain where the money he had withdrawn went; he testified only that he no longer had that money. The husband sold real property and equipment to friends and neighbors for significantly less than the market value of those assets. Although the husband denied having ulterior motives, the record reveals that the husband sold real property and equipment that were considered marital assets for substantially less than what they were worth. The trial court could have concluded, based on the evidence, that the husband intended to retrieve the property after the parties’ divorce was finalized.

Regarding the trial court’s award of periodic alimony, the evidence presented to the trial court revealed that many of the husband’s monthly expenses were questionable. The bulk of the husband’s monthly expenses consisted of the repayment of loans taken by the husband from annuities and life-insurance policies in an attempt to prevent the wife from receiving a share of the money in those accounts. The husband acknowledged that he was not required to repay the money he had withdrawn from those accounts. The husband’s monthly expenses also consisted of expenses associated with the maintenance of property and equipment that he had sold. The trial court could have disregarded the husband’s claimed monthly expenses for repaying the loans and the maintenance of property that he purportedly did not own. The trial court could have determined that an increased periodic-alimony obligation would not financially cripple the husband given his reduced monthly expenses.

In its judgment, the trial court made specific findings of fact that are supported by the record on appeal. This court will not reweigh the evidence on appeal. Somers v. McCoy, supra. Given the age of the parties; the length of the parties’ marriage; the source, value, and type of marital property; and the conduct of the husband, we cannot say that the trial court exceeded its discretion. Robinson v. Robinson, supra.

The husband also contends that the trial court erred when it ordered him to execute mortgages on all the property he owns an interest in, or acquires an interest in, to the wife until all payments due the wife under the divorce judgment are paid in full. The husband contends that this provision of the trial court’s judgment effectively gives the wife total control of the marital estate and that the provision is an “abuse of jurisdiction.” The husband cites two cases for the general proposition that matters of property division and alimony rest within the sound discretion of the trial court. The husband, however, cites no caselaw in support of his contention that the trial court erred by ordering him to execute mortgages to property he currently owns and to property he might acquire in the future to the wife. “ ‘[I]t is neither our duty nor [our] function to perform all of the legal research for an appellant.’ ” McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992) (quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)).

As noted by the husband, it is within the trial court’s discretion to fashion a property division in a divorce judgment. Given the evidence elicited at trial indicating that the husband had sold marital property in an effort to prevent the wife from receiving any of that property and the evidence indicating that the husband had attempted to hide marital property, we cannot say that the trial court exceeded its discretion by requiring the husband to mortgage his properties to the wife until he fulfills his obligations under the divorce judgment.

The husband further contends on appeal that the trial court erred by not conditioning the husband’s postminority-support obligation on the son’s performance in college. In its October 18, 2007, divorce judgment, the trial court ordered “[t]hat the husband pay postminority support for his son, Corey, including tuition, books, school supplies, fees, medical and dental expenses, room, board, transportation, and reasonable extra-curricular expenses for four continuous years, exclusive of summers.”

“[T]his court has held that the trial court must set reasonable limitations on the parent’s responsibility for postmi-nority education support, because a failure to do so may impose an undue hardship on the paying parent. See Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Hocutt v. Hocutt, 591 So.2d 881, 882 (Ala.Civ.App.1991); Kent v. Kent, 587 So.2d 409, 412 (Ala.Civ.App.1991). These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring that the child be enrolled as a full-time student. Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Ullrich v. Ullrich, 736 So.2d 639, 643 (Ala.Civ.App.1999) (quoting Bahri v. Bahri, 678 So.2d 1179, 1181 (Ala.Civ.App.1996)).”

Penney v. Penney, 785 So.2d 376, 379 (Ala.Civ.App.2000).

The trial court’s October 18, 2007, judgment placed no academic restrictions on the husband’s obligation to pay postmi-nority educational support. We note that the trial court also failed to require the son to be enrolled as a full-time student; however, the husband fails to argue this as a basis for reversal of the trial court’s judgment on appeal, and, therefore, any argument as to this issue is waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”). Because the trial court failed to place academic restrictions on the husband’s obligation to pay postminority educational support, we must reverse the trial court’s judgment as to this issue and remand the case for the trial court to enter an order consistent with this opinion.

The wife’s request for an attorney fee on appeal is granted in the amount of $2,500.

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

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . We note that custody of the parties' minor son was not an issue in the case; the parties agreed that the son would continue to live with the wife until he reached the age of majority.

      . The record contains no explanation for the delay between the conclusion of the final hearing and the trial court’s entry of the final judgment.

      . The husband does not challenge on appeal the trial court's calculation of the parties’ marital assets.

      . The husband does not argue on appeal that the wife failed to establish the actual costs of the son's postminority college expenses or that paying postminority expenses as ordered by the trial court creates an undue hardship on him. The husband also fails to challenge on appeal whether evidence was presented regarding the son's commitment to pursuing a college education.


author: BRYAN, Judge.

text:
    Mickie L. HAMILTON v. Horace Randall HAMILTON.
    2071126.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2009.

      Stephen P. Johnson and J. Byron Brac-kin III of Brackin, McGriff & Johnson, P.C., Foley, for appellant.
    Charles H. Dodson, Jr., of Dodson & Steadman, P.C., Mobile, for appellee.
   BRYAN, Judge.

Mickie L. Hamilton (“the wife”) appeals from a judgment of the Baldwin Circuit Court (“the trial court”) dismissing her divorce complaint against Horace Randall Hamilton (“the husband”). We reverse and remand.

The parties married on May 19, 2001, in Rockmart, Georgia. The parties’ relationship produced one child, a girl born in July 2000 (“the daughter”). In June 2007, the wife and the daughter relocated to Baldwin County, Alabama. On April 16, 2008, the wife filed with the trial court a complaint seeking a divorce from the husband; however, the wife was unable to perfect service of process on the husband. Therefore, on May 29, 2008, the wife again filed with the trial court a complaint seeking a divorce from the husband on the grounds of incompatibility, irretrievable breakdown of the marriage, and adultery. The wife’s complaint also alleged that the husband was both a “habitual drinker” and a “habitual drug user.”

On July 1, 2008, the husband, who was residing in Rome, Georgia, filed with the trial court a “limited special appearance and motion to dismiss for lack of subject matter jurisdiction” (“motion to dismiss”) asserting that the trial court lacked subject-matter jurisdiction over the wife’s complaint because, he argued, the wife was not “a bona fide resident of Alabama as required by Section 30 — 2—5[, Ala.Code 1975].” On July 1, 2008, and again on July 18, 2008, the wife moved the trial court to hold the husband in contempt for allegedly violating certain provisions of the trial court’s pretrial order; subsequently, the husband entered a “limited special appearance” to answer the wife’s contempt motions. On August 1, 2008, the trial court conducted an ore tenus proceeding, and, on the same day, the trial court entered a judgment granting the husband’s motion to dismiss. The wife appeals.

On appeal, the wife argues that the trial court erred in granting the husband’s motion to dismiss because, she alleges, she satisfied the residency requirement of § 30-2-5, Ala.Code 1975.

“ ‘Section 30-2-5, Ala.Code 1975, discusses the residency requirements for a plaintiff in a divorce action when the defendant is a nonresident of Alabama and states:
“ ‘ “When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.”
“ ‘If the residency requirements are not met, then a trial court does not have jurisdiction over the marital res and any judgment entered is void. Seymour v. Seymour, 597 So.2d 1368 (Ala.Civ.App.1992); Chavis v. Chavis, 394 So.2d 54 (Ala.Civ.App.1981). For the purposes of § 30-2-5, residence is the same thing as domicile. Seymour v. Seymour, supra. “Domicile is defined as residence at a particular place accompanied by an intention to stay there permanently, or for an indefinite length of time.” Nora v. Nora, 494 So.2d 16, 17 (Ala.1986). A person’s domicile continues until a new one is acquired. Id.’
“Fuller v. Fuller, 991 So.2d 285, 290 (Ala.Civ.App.2008). ‘[T]he burden is on the party who asserts a change of domicile to prove it.’ Richardson v. Richardson, 258 Ala. 423, 425, 63 So.2d 364, 366 (1953).”

Ex parte Ferguson, 15 So.3d 520, 521-22 (Ala.Civ.App.2008). Furthermore, we note that “[w]hen the trial court hears oral testimony regarding residence under § 30-2-5, ‘the judgment of the court is presumed correct and will not be set aside on appeal unless so contrary to the great weight of the evidence as to be palpably wrong.’ ” Livermore v. Livermore, 822 So.2d 437, 441 (Ala.Civ.App.2001) (quoting Chavis v. Chavis, 394 So.2d 54, 55 (Ala.Civ.App.1981)). “However, there is no presumption of correctness in the trial court’s application of law to the facts.” Robinson v. Robinson, 795 So.2d 729, 733 (Ala.Civ.App.2001) (citing Gaston v. Ames, 514 So.2d 877 (Ala.1987)).

It is undisputed that the husband was not a resident of Alabama when the wife filed her complaint for a divorce. Thus, the question before this court is whether the wife had been a bona fide resident of Alabama for the six months next preceding the filing of the wife’s May 29, 2008, complaint.

The wife was the only witness to offer testimony during the rather brief August 1, 2008, ore tenus proceeding. The wife testified, as noted above, that she had relocated with the daughter to Baldwin County in June 2007. Upon relocating, the wife and the daughter began residing in a vacation home that is owned by the husband. The wife testified that the husband had not objected to her relocating or to her bringing the child with her. The wife also testified that, since she and the daughter had relocated in June 2007, she had enrolled the daughter in school, she had been issued an Alabama driver’s license, she had been issued an Alabama motor-vehicle tag, she had registered to vote, and she had purchased a retail clothing business named “Wildflowers.”

Conversely, the husband argued that the wife had been “temporarily” residing in Alabama and that the wife had been “staying [in Alabama] to avoid the jurisdiction of the Floyd County, Georgia courts on two separate lawsuits.” More specifically, the husband argued that the wife, who was a defendant in two pending lawsuits filed by two corporations that are owned by the husband, had relocated for “fraudulent purposes and that to be a bona fide resident you cannot use fraud.” However, the wife testified that she had not been served with those lawsuits until July 3, 2008— which was more than one year after the wife had relocated to Alabama — and that she was aware that she would “have ... to go back to Georgia to defend the lawsuits].”

At the conclusion of the wife’s testimony, the trial judge stated that “I think it’s way easier for y’all to do this divorce in Georgia. I mean y’all are already litigating there.” The husband’s counsel responded by noting that “[w]e’ve already litigated here before that lawsuit was filed in Georgia.” After receiving additional argument, the trial court concluded that “[y]’all need to try this in Georgia. Y’all really do need to try this in Georgia.” The trial court offered no further indication on the record of its reasoning for granting the husband’s motion to dismiss, and the trial court’s judgment provides only that the husband’s “motion to dismiss [is] granted following testimony and argument.”

We conclude that the great weight of the evidence clearly establishes that the wife was a resident of or domiciled in Alabama at the time she filed her divorce complaint. At the time the trial court entered its judgment granting the husband’s motion to dismiss, the wife had been residing in Alabama for more than one year, the daughter had completed one entire school year, and the wife had purchased and begun operating her own retail clothing business. The wife presented substantial evidence indicating that she intended to stay in Alabama permanently or, at the very least, for an indefinite length of time.

Conversely, the husband presented no evidence to rebut the evidence presented by the wife other than to argue, rather speciously, that the wife had been only temporarily residing in Alabama to avoid the jurisdiction of the Georgia trial courts with regard to lawsuits that had not been filed until more than one year after she had relocated to Alabama. Therefore, we conclude that the trial court erred in granting the husband’s motion to dismiss. See Webster v. Webster, 517 So.2d 5, 7 (Ala.Civ.App.1987) (concluding, in a divorce ease in which the husband argued that the trial court lacked jurisdiction because neither he nor his wife had been residents of Alabama for six months prior to the filing of the wife’s complaint, that the evidence “amply supported]” a finding that the husband was domiciled in Alabama because, among other reasons, the husband’s job was in Alabama, the home owned by the parties was in Alabama, and the parties’ children were enrolled in school in Alabama). Accordingly, we reverse the trial court’s judgment and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record on appeal reveals that the wife and her daughter-in-law had been sued by two corporations owned by the husband for allegedly converting approximately $427,000 of those corporations’ funds.


text:
    Drew D. RHODES v. Janette FULMER.
    2070664.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2009.

      Charles C. Turner, Anniston, for appellant.
    Sheila C. Field of Field, Field & Snyder, LLC, Anniston, for appellee.
   THOMPSON, Presiding Judge.

Drew D. Rhodes appeals from a judgment entered in favor of Janette Fulmer by the Calhoun Circuit Court. For the reasons stated herein, we dismiss the appeal as an untimely filed appeal.

Lennie P. Rhodes (“the decedent”) died testate on January 21, 1999. Her will named her son, Drew D. Rhodes (“Rhodes”), as the executor of her estate. In addition to Rhodes, the decedent had two other heirs, her daughters Janette Fulmer and Sandra Combs. The Calhoun Probate Court admitted the decedent’s will to probate on September 22,1999.

On October 3, 2005, Fulmer petitioned to have the administration of the decedent’s estate removed to the Calhoun Circuit Court. The circuit court granted Ful-mer’s petition, and the record from the probate court was thereafter delivered to it.

On May 5, 2006, Fulmer moved the circuit court to enter an order requiring Rhodes to account for how he had spent the funds of the estate, to carry out the terms of the will, and to make a final disposition of the estate. In her motion, she alleged that Rhodes had not accounted for several items in the estate and had converted to his own use estate funds that were due the beneficiaries of the will.

The circuit court held a hearing on Ful-mer’s motion on September 18, 2006. At the conclusion of the hearing, the circuit court left the record open for the parties to conduct more discovery and to submit additional evidence. On February 1, 2007, additional discovery having been completed, Fulmer moved the court to hold a second hearing on the matter and, following the hearing, to enter an order requiring Rhodes to file an inventory of the estate showing how he had disposed of the assets of the estate and requiring Rhodes to distribute to the beneficiaries of the will any estate assets that he had converted to his own use. In her motion, Fulmer alleged that Rhodes had committed perjury during the first hearing:

On May 7, 2007, the circuit court held a second hearing in the matter, at the conclusion of which the circuit court indicated that it was taking the case under submission. At that point in the litigation, the dispute centered on, among other things, the sale of certain securities. Fulmer argued that Rhodes, in the course of two separate transactions, had sold all the decedent’s stock in J.C. Penney Company, Inc. (“the JCPenney stock”), but that Rhodes had failed to account for and distribute to the' decedent’s heirs the proceeds of those two sales. She also argued that Rhodes had held back $10,000 from the sale of certain securities (“the Prudential securities”) that the decedent had owned from the decedent’s estate. Rhodes denied that the proceeds from the sales of the JCPenney stock had ever been in his possession or the possession of the estate. He also denied that he had held any proceeds back from the sale of the Prudential securities.

On October 3, 2007, the circuit court entered a judgment that read:

“This matter came to be heard on the Petition of Janette Fulmer for a final accounting of the Estate [of] Lennie P. Rhodes, deceased, and the Court having taken testimony in regard [to] her Petition and having listened to and/or read arguments presented by counsel, the Court is of the opinion that [Rhodes] has withheld certain sums of money that should have been part of this Estate and distributed to the Legatees to wit: $10,000 [Rhodes] held back from the sale of [the] Prudential [securities], $12,905 from the first sale of JCPenney stock and $5,905 from the second sale of JCPenney stock for a total amount of $23,810.
“The Court is therefore of the opinion that [Fulmer] is entitled to the following relief:
“It is therefore ORDERED, ADJUDGED AND DECREED as follows:
“1. [Rhodes] is hereby ORDERED to pay over to the Legatees of this Estate their One-Third (1/3) share of the sura of $28,810.
“2. [Rhodes] is further ORDERED to convey to [Fulmer] what is now his two-third (2/3) interest in the real estate still owned by the Estate in consideration for being paid by [Fulmer] two-thirds of the appraised value according to the last appraisal done on this real estate.
“3. [Rhodes] is further ORDERED to convey the Estate’s interest in the two cemetery lots to [Fulmer] in consideration of [Fulmer] paying the Estate the appraised value of said lots. In conjunction therewith, [Rhodes] is Ordered to disburse one-third of the amount paid for these lots to each of the Legatees, including himself.”

On October 30, 2007, Fulmer filed a motion to amend the circuit court’s judgment, arguing that the correct amount to be disbursed to her sister and her was one-third of $28,810 each, not one-third of $23,810. The circuit court granted Fulmer’s motion on November 1, 2007.

On December 7, 2007, Rhodes filed a “motion to amend” the judgment. He argued that the real estate the circuit court had ordered him to convey to Fulmer was not a part of the estate because it had been conveyed by the decedent to each of her three children before her death. He further argued that Fulmer had failed to prove that the proceeds of the sale of the Prudential securities and the first sale of JCPenney stock, which had occurred before the decedent’s death, had come into the decedent’s estate following her death. Finally, he argued that the circuit court’s order, in dividing certain assets of the estate, had failed to account for the expenses of the estate. As relief, he requested:

“A. That the court set aside its order to [Rhodes] requiring him to convey his 2/3 interest in the real property to [Ful-mer], on the grounds that the issue is not properly before this court.
“B. That the court set aside its order to pay over to the legatees the ‘hold back’ money and any other proceeds which were derived from the sale of assets prior to the death of Lennie P. Rhodes, as there has been no showing that those assets came into the possession of [Rhodes].
“C. That the court order [Fulmer] to immediately pay to [Rhodes] the purchase price of the cemetery lots at the value as presented to the court.
“D. That [Rhodes] be ordered to then account for the proceeds of the sale of the cemetery lots by adding such proceeds to the amount as reported to the court by [Rhodes] as those amounts coming into the estate and by subtracting those expenses reported to the court, including current expenses not yet reported.
“E. That after such additions and subtractions, the resulting sum, if any, be distributed equally to legatees and an updated accounting be submitted to this court.”

On December 13, 2007, Fulmer responded to Rhodes’s motion to amend, pointing out that it was untimely because it had not been filed within 30 days of the date of the court’s judgment.

On December 18, 2007, Rhodes filed a second “motion to amend” the judgment and a response to Fulmer’s argument that the December 7, 2007, motion was untimely. In it, Rhodes indicated that he was filing the motion pursuant to Rule 60, Ala. R. Civ. P., and that he had not become aware of the circuit court’s judgment and amended judgment until November 26, 2007, when he checked on the case, because he had not received proper notice of them through the State’s “E-notice” system. Rhodes incorporated by reference the arguments set forth in his December 7, 2007, “motion to amend,” and he asked the court to consider those arguments on the basis that, because of the problems with notification, he could not have filed his December 7, 2007, motion to amend in a timely manner.

The circuit court held a hearing on Rhodes’s December 18, 2007, motion on February 20, 2008. At the hearing, the parties agreed that the portion of the order referencing the “real estate still owned by the Estate” was referring to the decedent’s house and that, because the house was not part of the decedent’s estate, the circuit court should not have ordered Rhodes to sell his two-thirds interest in the house to Fulmer.

On March 10, 2008, the circuit court entered an order granting in part and denying in part Rhodes’s December 18, 2007, motion. Specifically, it removed from its judgment the paragraph requiring Rhodes to sell his two-thirds interest in the decedent’s house to Fulmer. It left the other two paragraphs related to the $28,810 and the two cemetery lots intact. On April 15, 2008, Rhodes appealed. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala Code 1975.

Rhodes raises three issues on appeal. However, before we reach those issues, we first consider whether this court has jurisdiction over Rhodes’s appeal “because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

In the present case, Rhodes had 42 days from the date of the November 1, 2007, amended judgment in which to file an appeal. See Rule 4(a)(1), Ala. R.App. P. Although the filing of a motion to amend a judgment pursuant to Rule 59(e), Ala. R. Civ. P., tolls the 42-day time limit by which to appeal the judgment, see Rule 4(a)(3), Ala. R.App. P., such a motion must be filed within 30 days of the judgment, see Rule 59(e), Ala. R. Civ. P. A trial court cannot extend the 30-day time limit for filing a Rule 59(e) motion to amend a judgment. See Ex parte Patterson, 853 So.2d 260, 262 (Ala.Civ.App.2002).

Rhodes did not file his motion to amend the judgment until December 7, 2007, which is beyond the 30-day deadline by which he was to have filed any such motion under Rule 59. Thus, it was untimely and did not toll the time for appealing the circuit court’s judgment. Thus, Rhodes’s time to appeal from the circuit court’s judgment ran several months before he filed the present appeal on April 15, 2008.

The fact that Rhodes’s appeal is untimely is not altered by the fact that he filed a motion on December 18, 2007, purportedly pursuant to Rule 60, Ala. R. Civ. P. First, the filing of a Rule 60 motion does not toll the time for taking an appeal. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala.1983) (“[A] motion made under Rule 60, [Ala. R. Civ. P.], is an attack on the judgment and does not affect the finality of the judgment or toll the time for appeal.”). Furthermore, the specific procedural relief Rhodes sought in his December 18, 2007, motion- — -i.e., that the circuit court consider his December 7, 2007, motion to amend the final judgment on the basis that he did not learn of the judgment until November 26, 2007 — is not available under Rule 60. See Ireland v. Piggly Wiggly Alabama Distrib. Co., 719 So.2d 844, 845 (Ala.Civ.App.1998) (“[T]he lack of notice from the clerk’s office [of the entry of a judgment] is not a ground for relief under Rule 60(b), Ala. R. Civ. P.”).

Finally, in his appeal, Rhodes raises only one of the three substantive grounds that he incorporated into his December 18, 2007, motion from his December 7, 2007, Rule 59(e) motion. However, that ground — that the circuit court erred when it held that Rhodes had to return to the estate the proceeds of the sale of the Prudential stock and the first sale of JCPenney stock — was not properly before the circuit court as a basis for granting relief pursuant to Rule 60(b). Instead, that contention merely charges that the circuit court made an error of law in its judgment, which is the type of contention that must be raised either in a timely Rule 59(e) motion or in a timely appeal from the judgment. See Higgins v. Douglas, 572 So.2d 1259, 1260 (Ala.1990) (A trial court’s alleged mistake of law is not a basis for seeking relief under Rule 60(b).). As a result, we treat the contention as having been untimely raised and, therefore, outside the scope of the circuit court’s jurisdiction when it ruled on Rhodes’s December 18, 2007, motion. See Morrison v. Phillips, 992 So.2d 743, 744 (Ala.Civ.App.2008) (A motion purportedly filed pursuant to Rule 60(b) that fails to “allege any ground justifying relief under Rule 60(b), Ala. R. Civ. P.,” is “in both form and substance, a Rule 59(e), Ala. R. Civ. P., motion,” over which the trial court cannot exercise jurisdiction if not timely filed.). Cf Harwell v. Merritt Oil Co., 541 So.2d 564, 566 (Ala.Civ.App.1989) (A motion that “fails to allege or establish any ground justifying relief under Rule 60(b)” is “a Rule 59(e) motion in both form and substance.”). As a result, it cannot be said that Rhodes’s appeal is from the circuit court’s March 10, 2008, order granting in part and denying in part his December 18, 2007, motion; instead, his appeal is solely from the circuit court’s amended judgment of November 1, 2007.

For the foregoing reasons, we conclude that Rhodes’s appeal is not timely, and, as a result, this court lacks jurisdiction to consider it. Therefore, his appeal is dismissed.

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Rhodes did not indicate the subsection of Rule 60 under which he sought relief. We assume, however, that he sought relief pursuant to Rule 60(b) because Rule 60(a) applies only to clerical mistakes within a judgment, which Rhodes did not allege.

      . Rhodes retained new counsel on appeal.

      . We need not resolve whether the 30-day time limit to file his postjudgment motion began to run on the date of the original judgment or on the date of the amended judgment. When, as in this case, a trial court enters an amended judgment on the basis of a party's postjudgment motion, a party that is newly aggrieved by the amended judgment may then file its own postjudgment motion under Rule 59(e) to alter, amend, or vacate the amended judgment. See Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985). Although, in some sense, Rhodes was aggrieved by the amended judgment because it required him to return an additional $5,000 to the estate for distribution to the decedent’s heirs, he was not aggrieved in any manner for which he sought relief in his December 7, 2007, motion. Regardless, however, the outcome of this case does not depend on whether his December 7, 2007, motion was 35 days late or 4 days late.

      . Rule 60 provides, in pertinent part:
      "(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to tire appellate court in response to a writ of certiorari or like writ.
      "(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation .... ”

      . Rhodes's argument that the circuit court improperly included the decedent's house within the estate, which he incorporated in the December 18, 2007, motion, was properly before the circuit court as a ground for seeking Rule 60 relief. See Rule 60(b)(1), Ala. R. Civ. P. (A trial court's mistake, though not one of law (see City of Birmingham v. Fair-field, 396 So.2d 692, 695-96 (Ala.1981)) can be the basis of a motion to set aside the trial court's judgment.). Thus, this opinion should not be construed as affecting the circuit court's March 10, 2008, order striking that portion of its judgment requiring Rhodes to sell his two-thirds interest in the decedent’s house to Fulmer.