author: IRVING, P.J.,

text:
    James R. MAULDIN Jr., Appellant v. Donna MAULDIN, Appellee.
    No. 2011-CA-01079-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.

      Elliot G. Mestayer, Pascagoula, attorney for appellant.
    Patricia L. Beale, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On January 20, 2011, the Jackson County Chancery Court granted James R. Mauldin Jr. (Jim) and Donna Mauldin a divorce on the ground of irreconcilable differences. The chancery court also divided the marital estate. Feeling aggrieved, Jim appeals and asserts that the chancery court erred in its classification and valuation of marital assets and in its award of alimony and attorney’s fees to Donna.

¶ 2. Based on the facts of this case, we find that the chancery court did not err in its classification of the couple’s marital assets or in awarding alimony to Donna. However, the chancery court’s valuation of the marital assets assigned to Jim should have accounted for the outstanding debts on the property. Therefore, we affirm the chancery court’s judgment as modified.

FACTS

¶ 3. Jim and Donna were married on June 23, 1998, in Jackson County, Mississippi. Donna had two children from her previous marriage. She and Jim had no children together. The couple separated in June 2007. On February 12, 2009, the chancery court entered a temporary order prohibiting the “dissipation of any marital assets.” The order did not award temporary support to either party.

¶4. Donna owned her home prior to marrying Jim. She had paid off the mortgage on the home with her late husband’s death benefits. After Donna married Jim, her home became the marital residence. When Donna married Jim, she was approximately $80,000 in debt.

¶ 5. Jim and Donna refinanced the marital home in 1999, and Jim’s name was added to the mortgage. They used the refinancing proceeds to pay Donna’s outstanding debts. The couple agreed to sell the home prior to their separation in 2007; however, the home did not sell until after the couple had separated. Donna and Jim made a profit of $34,012 from the sale of the house and agreed to split the proceeds as follows: Jim received $4,500, and Donna retained $29,512 — $20,000 of which she deposited into her daughter’s guardianship account to assist with college expenses.

¶ 6. During the marriage, Jim worked for Northrup Grumman (Northrup) and British Petroleum (BP). He maintained a retirement account with Northrup with a balance of $33,172, which he later transferred into his BP retirement account. At the time of trial, Jim’s BP retirement account balance was $48,048.27. Throughout the marriage, Donna worked part time as a substitute teacher, a teacher’s aide, and a records clerk. She maintains a retirement account with the Public Employees Retirement System (PERS) valued at $4,352. Donna currently works as an office manager for CableOne.

¶7. At trial, Jim testified that he felt that the marriage was over two years prior to the separation. However, he stayed with Donna because of his connection to her children. Jim stated that when he left Donna, he took a 1998 Dodge truck and a 2002 Alumacraft boat. Jim sold the truck for $7,000 and allegedly used $5,000 of the proceeds to pay off a lien on the truck. He used the remaining funds as a down payment on his new truck. Jim also sold the boat for $8,500, which he used to pay off the lien on the boat. Jim purchased a new home, a new motorcycle, and the new truck mentioned above after his separation from Donna. He financed these purchases by withdrawing/borrowing money from his retirement account. He withdrew $18,178.08 in August 2008 and also borrowed $20,895 against the account. Jim withdrew an additional $8,000 from his retirement account in the summer of 2009.

¶8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. Domestic-relations matters are reviewed under the substantial-evidence/manifest-error standard. Wheat v. Wheat, 37 So.3d 632, 636 (¶ 11) (Miss.2010). Thus, a chancery court’s findings will not be disturbed on appeal unless the findings are manifestly wrong, clearly erroneous, or the court applied an erroneous legal standard. Id.

1. Classification and Valuation of Assets

¶ 10. Jim contends that the chancery court erred in its classification and valuation of the couple’s marital and separate assets. Specifically, Jim argues that the court erroneously classified his motorcycle, his new truck, and the increase in his retirement account as marital property. Additionally, Jim alleges that the chancery court incorrectly valued his new truck and the boat and truck that he sold after his separation from Donna.

a. Classification of Assets

¶ 11. Marital property includes “any and all property acquired or accumulated during the marriage.” Id. at 637 (¶ 14) (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). “Generally, ... the marriage runs from the date of marriage until the [date of the] final judgment of divorce.” Id. at (¶ 15). However, the entry of a temporary-support order or a separate-maintenance order may serve as a line of demarcation to signal the end of the accumulation of marital property. Id.

¶ 12. Jim asserts that the accumulation of marital assets ended with the entry of the 2009 temporary order prohibiting the dissipation of marital assets. Donna contends that because the order did not provide for temporary support, the accumulation of marital assets continued until the date of divorce.

¶ 13. Although the divorce decree did not specifically state the date that the marriage ended for purposes of classifying marital and separate property, it is clear that the chancery court used the date of divorce rather than the date of the temporary order. As previously stated, absent the entry of a separate-maintenance or temporary-support order, marital property continues to accumulate until the date of divorce. Although the chancery court entered a temporary order in this case, the order did not provide for temporary support. Therefore, Jim and Donna’s marital assets continued to accumulate until the date of their divorce. Accordingly, even though Jim purchased his motorcycle and his truck after his separation from Donna, the chancery court properly classified these assets as marital property. Additionally, the increase in Jim’s retirement account since his separation from Donna is marital property because the increase occurred during the marriage. This issue is without merit.

b. Valuation of Assets

¶ 14. Jim also argues that the chancery court incorrectly valued the assets assigned to him during the distribution of the marital estate. He contends that the chancery court should have conducted its own investigation into the value of the assets and accounted for the debts on the assets. This Court, however, has recognized the principle that “findings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ [Uniform Chancery Court Rule] 8.05 financial disclosures, in the testimony, or in other evidence.” Jenkins v. Jenkins, 67 So.3d 5, 13 (¶ 19) (Miss.Ct.App.2011) (citations omitted).

¶ 15. Here, the chancery court adopted the values that Jim and Donna had assigned to their assets in their Rule 8.05 financial statements. As such, we find that the chancery court did not err in considering the value of the couple’s marital property as listed on their Rule 8.05 financial statements without conducting an independent investigation. However, the court should have accounted for the indebtedness on the property, as listed in Jim’s Rule 8.05 statement and his Hemsley statement, in its valuation of the marital assets assigned to Jim. We find that the court should have credited Jim with only the equity in these assets.

¶ 16. In its order, the chancery court valued the Mauldins’ entire marital estate at $241,101.88. After factoring in the couple’s debt, excluding the indebtedness on the assets that were awarded to Jim, the chancery court determined the value of the estate to be $214,803.86. The chancery court stated that the marital estate and indebtedness should be divided equally between Jim and Donna. The chancery court then determined that Jim’s net share of the marital estate was $141,850.21 and Donna’s net share was $72,953.65.

¶ 17. Included in the award to Jim were his 2007 F-150 Ford truck, valued at $18,800 with an indebtedness of $15,500; his Harley Davidson motorcycle valued at $14,600; his 2000 Keystone Trailer, valued at $3,800 with an indebtedness of $2,500; a 2002 Alumacraft boat and motor, valued at $8,500 with an indebtedness of $8,500; a 1998 Dodge truck, valued at $7,000 with an indebtedness of $5,000; and a 1998 Chevrolet Tahoe, valued at $5,900 with an indebtedness of $3,865.

¶ 18. Jim’s and Donna’s Hemsley statements agree as to the values and indebtedness of the 2007 Ford F-150, the 2004 Harley Davidson motorcycle, and the 2000 Keystone travel trailer. Also, Donna’s Hemsley statement and Jim’s Rule 8.05 statement agree as to the value and indebtedness of the 1998 Chevy Tahoe. Donna’s Hemsley statement lists a 2002 Alumacraft boat and motor valued at $8,500 and a 1998 Dodge truck valued at $7,000, with no indebtedness on either asset. While Jim did not list either the boat or the Dodge truck on his Rule 8.05 statement or his Hemsley statement, he did not substantially disagree with the value placed on either asset by Donna. However, he testified that there was an indebtedness on the boat and that he sold it for the amount of the indebtedness. He also testified that he had borrowed $5,000 and given the truck as collateral, that there was a balance owed of approximately $4,200, that he sold the truck for $7,000, and that he paid off the balance owed on it, with the remaining amount being used as a down payment on another vehicle that he did not describe. Further, Jim testified that he purchased the motorcycle with proceeds from a loan that he took out against his 401K. His Hemsley statement shows a value of $14,600 for the motorcycle, with a $13,000 lien against it. However, his Rule 8.05 statement shows no indebtedness on the motorcycle, indicating that it was paid in full from the 401K loan.

¶ 19. After subtracting the outstanding liens on the assets assigned to Jim to reflect their value in accordance with the parties’ Rule 8.05 and Hemsley statements, Jim’s gross share of the marital estate equals $108,334.21, while Donna’s gross share remains $86,102.66.

2. Alimony

¶ 20. As we have found error in the chancery court’s valuation of some of the marital assets subject to distribution, it is necessary to also adjust the chancery court’s alimony award to Donna. After the adjustment, the difference between Jim and Donna’s shares of the marital estate is $22,231.55.

¶ 21. The decision of whether to award alimony and the amount of the award are matters left to the chancery court’s discretion. Vaughn v. Vaughn, 798 So.2d 431, 436 (¶ 20) (Miss.2001). Thus, “[a]n alimony award will not be disturbed on appeal absent a finding of manifest error or abuse of discretion.” Sheffield v. Sheffield, 55 So.3d 1142, 1145 (¶ 19) (Miss.Ct.App.2011) (citing Voda v. Voda, 731 So.2d 1152, 1154 (¶ 7) (Miss.1999)). Alimony should only be considered when “an equitable division of marital property leaves a deficit for one party.” Rogillio v. Rogillio, 57 So.3d 1246, 1248 (¶ 8) (Miss.2011) (quoting Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)). Lump-sum alimony is specifically used to adjust the financial inequities remaining after property division. Id. at 1250 (¶ 12). Here, after adjusting the value of the assets assigned to Jim to reflect their outstanding debts, Donna is left with a deficit of $22,231.55.

¶ 22. Before it awarded lump-sum alimony, the chancery court examined the factors promulgated by the Mississippi Supreme Court in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). The factors include: (1) substantial contribution to the accumulation of the payor’s assets by quitting work to become a homemaker or assisting in business; (2) the length of the marriage; (3) whether the recipient spouse has separate income or the separate estate is meager by comparison to the payor’s separate estate; and (4) whether the recipient spouse would lack financial security without the lump-sum award. Id.

¶ 23. The chancery court noted that, although Donna had worked several part-time jobs, she had acted as a homemaker for most of her nine-year marriage to Jim. The court also noted Donna’s testimony that Jim never expressed a desire for her to work outside the home and the fact that Donna quit her job to become a stay-at-home mom. The court found that even though Donna now has a separate income, it is much less than Jim’s income. We agree with the chancery court that Donna would lack financial security without a lump-sum-alimony award. The court noted that a significant portion of Donna’s current income is used to cover her daily living expenses. Furthermore, the court acknowledged Donna’s heart condition, her reliance on medication, and her lack of medical insurance. Based on these findings, we cannot say that the chancery court erred in awarding lump-sum alimony to Donna.

¶ 24. As noted, the court stated that the assets and debts of the marital estate should be divided equally between the parties. Therefore, we see no need to remand this case to the chancery court for further proceedings. After making the adjustments in the value of the marital assets assigned to Jim, the corrected amount of Donna’s lump-sum alimony comes to $22,231.55, rather than the $70,000 awarded to her by the chancery court.

3. Attorney’s Fees

¶ 25. Jim also argues that the chancery court erred in awarding attorney’s fees to Donna. However, Jim is mistaken in this regard, as the chancery court did not award attorney’s fees to either party. Consequently, this issue is without merit.

¶ 26. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. GRIFFIS, P.J., BARNES AND FAIR, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . This debt consisted of a $60,000 home-equity line of credit and $20,000 in credit-card debt.

      . Guardianship accounts were established for Donna’s children after the death of their father.

      . Although the chancery court referred to the parties' nine-year marriage, the record reflects that the parties were married for almost twelve and one-half years before they were divorced.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Debra L. DAVIS, Appellant v. The ESTATE OF Kay TIBLIER, Deceased, Hannah Tiblier-Weiss, Administrator, Appellee.
    No. 2011-CP-01753-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.

      Debra L. Davis, appellant, pro se.
    Jeffrey Ward Bertucci, Biloxi, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Kay Tiblier, a resident of California, failed to pay the 2006 ad valorem taxes on real property in Jackson County, Mississippi. On August 27, 2007, Debra Davis purchased the property at a tax sale. Ti-blier, who had been suffering from Alzheimer’s disease, died on June 22, 2009. The chancery clerk mailed notice of the expiration of the redemption period to Ti-blier’s last known address on June 26, 2009. The notice was returned “unclaimed.” Davis subsequently received a tax deed to the property, and Tiblier’s estate filed this action to set it aside.

¶ 2. The chancery court granted summary judgment to the estate, finding that the chancery clerk had failed to strictly adhere to the statutory notice requirements. Davis appeals, and we affirm.

STANDARD OF REVIEW

¶ 3. We review the grant of a summary judgment de novo. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Evidence is viewed in the light most favorable to the party opposing the motion. Davis, 869 So.2d at 401 (¶ 10).

DISCUSSION

¶ 4. Mississippi Code Annotated section 27-43-1 (Rev.2010) states that in a tax sale:

The clerk of the chancery court shall, within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption ... be required to issue notice to the record owner of the land....

The requirements of the notice of redemption are laid out in Mississippi Code Annotated section 27-43-3 (Rev.2010). For non-resident owners, notice must be published in the county where the property is located. Notice must also be attempted by mail:

The clerk shall also mail a copy of [the notice] to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained....
Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered ... the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address. If the reputed owner’s street or post office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as hereinabove set out.... [I]f notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record.

Id.

¶5. At issue is the adequacy of the chancery clerk’s attempt to notify Tiblier by mail. The notice was timely mailed to Tiblier at an address in California she had used in the past. It was returned “unclaimed,” presumably because Tiblier had moved from that address some years before and had died before the notice was mailed. The chancery clerk treated the notice as “undelivered” per the statute but neglected to produce affidavits documenting any subsequent efforts to locate Tiblier.

¶ 6. Assuming the first mailing was properly treated as undelivered, the chancery clerk clearly failed to comply with the statute. “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners. Any deviation from the statutorily mandated procedure renders the sale void.” Reed v. Florimonte, 987 So.2d 967, 973 (¶ 15) (Miss.2008) (citations omitted).

¶ 7. Davis’s argument on appeal is that the notice, returned “unclaimed,” was not “undelivered” under the statute. Thus, she contends the statutory notice requirements were met and no affidavits were required. However, Davis has presented no authority to support her position. Our own review of the caselaw shows that we have repeatedly treated unclaimed mail as undelivered under the statute. See Johnson v. Ferguson, 58 So.3d 711, 713 (¶ 3) (Miss.Ct.App.2011); Moore v. Marathon Asset Mgmt., LLC, 973 So.2d 1017, 1021 (¶ 15) (Miss.Ct.App.2008); Lawrence v. Rankin, 870 So.2d 673, 675 (¶ 7) (Miss.Ct.App.2004). Moreover, we have no reason to believe that treating unclaimed as undelivered is unfair or inconsistent with the statute’s purpose: “ ‘[Unclaimed’ simply means that the Postal Service was unsuccessful in delivering the mailing ..., whether because delivery was attempted at the wrong address, the [addressee] simply was not home at the time the Postal Service attempted delivery, or some other reason.” Bloodgood v. Leatherwood, 25 So.3d 1047, 1050 (¶ 15) (Miss.2010). In fact, the United States Supreme Court has held that when the mailed notice of a tax sale is returned “unclaimed,” additional efforts to locate the owner are constitutionally required. Jones v. Flowers, 547 U.S. 220, 225, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (also equating unclaimed and undelivered). We find no merit to Davis’s argument on this issue.

¶ 8. Davis also contends, apparently for the first time on appeal, that the estate’s suit to set aside the tax deed was not timely filed. The statute of limitations is an affirmative defense that was waived by the failure to timely raise it in the trial court. See Spann v. Diaz, 987 So.2d 443, 448 (¶¶ 13-15) (Miss.2008). This argument is also without merit-Davis confuses the statute of limitations for filing a lawsuit with the redemption period following a tax sale.

¶ 9. Davis next alleges impropriety in a Jackson County chancellor hearing the case because a former Jackson County supervisor—apparently a relative of Tiblier—was involved in the dispute. There is no evidence in the record to support these claims, and this contention is without merit. Moreover, motions for recusal of a chancellor must be filed within “30 days after the filing party could reasonably discover the facts underlying the grounds” for recusal. UCCR 1.11. Davis’s failure to object in the trial court waives any objection on appeal. See Foster v. State, 716 So.2d 538, 540 (¶ 7) (Miss.1998).

¶ 10. Finally, Davis argues that the result is simply unfair. She complains of the expense of this litigation and of her being blameless for the failure to provide notice, while having no recourse against the chancery clerk. On this point, we can only direct Davis to the decision of the Mississippi Supreme Court in Everett v. Williamson, 163 Miss. 848, 854-55, 143 So. 690, 692 (1932), where it was held:

At a tax sale the bidders or purchasers of the land or property offered for sale are chargeable with notice and knowledge of the existing statutory requirements for a valid sale, and the statutory conditions upon which a valid deed may be acquired; and must be held to have purchased subject to such statutory provisions.

It has also been said:

The rule of caveat emptor applies with all its force to a purchaser at [a tax sale], who pays his money voluntarily, with the expectation of procuring the property at a grossly inadequate price, or of securing an exorbitant profit upon the investment in case the property is redeemed. Knowing that tax titles are to some extent uncertain, and that they usually depend upon numerous contingencies, he engages his means in speculation, and assumes the liability of having his title prove to be worthless!.]

Foster v. Malberg, 119 Minn. 168, 137 N.W. 816, 817 (Minn.1912).

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

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


author: ROBERTS, J.,

text:
    James JENNINGS a/k/a James Antonio Jennings, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01824-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2013.

      James Jennings, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. James Jennings pled guilty to statutory rape and two counts of gratification of lust. For statutory rape, the Oktibbeha County Circuit Court sentenced Jennings to twenty years in the custody of the Mississippi Department of Corrections (MDOC) followed by five years of post-release supervision. For one of the two counts of gratification of lust, the circuit court sentenced Jennings to ten years in the custody of the MDOC, to run consecutively to Jennings’s sentence for statutory rape. For the other count of gratification of lust, the circuit court sentenced Jennings to ten years in the custody of the MDOC, to run concurrently with Jennings’s sentence for statutory rape.

¶2. Jennings filed a motion for post-conviction relief (PCR) and claimed that the statutory-rape charge of the indictment was defective in that it did not allege his age as of the time of the offense. Jennings also claimed he received ineffective assistance of counsel because his attorney had allowed him to plead guilty to a defective indictment. The circuit court summarily dismissed Jennings’s PCR motion without requiring a response from the State. Jennings appeals.

STANDARD OF REVIEW

¶ 3. “This Court will not disturb a trial court’s dismissal of a [motion] for post-conviction relief unless the trial court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App.2010). However, “[t]he issue of whether an indictment is so flawed as to warrant reversal is a question of law and allows this Court a broad standard of review.” Smith v. State, 989 So.2d 973, 978-79 (¶ 13) (Miss.Ct.App.2008) (citations omitted).

ANALYSIS

¶ 4. Jennings claims that the statutory-rape charge in the indictment was fatally defective. “The primary purpose of an indictment is to notify a defendant of the charges against him so as to allow him to prepare an adequate defense.” Id. at 979 (¶ 13). “All that is required is that the indictment provide a concise and clear statement of the elements of the crimes charged.” Id. (quotation marks omitted). Additionally, Rule 7.06 of the Uniform Rules of Circuit and County Court states that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Rule 7.06 further provides that “[fjormal and technical words are not necessary in an indictment, if the offense can be substantially described without them.”

¶ 5. According to Jennings, count one of the indictment was defective in that it failed to allege his age at the time of the offense. Jennings is mistaken. The indictment alleged that Jennings was born on March 19, 1983. Furthermore, the indictment claimed that on April 8, 2008, Jennings had intercourse with a child who was born on February 9, 1995. In other words, the indictment alleged that Jennings was twenty-five years old when he had intercourse with a thirteen-year-old girl. Count one of the indictment was not fatally flawed, because it included Jennings’s birth date, the victim’s birth date, and the date of the offense. See Smith, 989 So.2d at 979 (¶ 17).

¶ 6. Jennings’s claim is based on the differences between two subsections of Mississippi Code Annotated section 97-3-65 (Rev.2006). Count one of the indictment alleged, in pertinent part, that Jennings had intercourse with a child “under the age of 14 years [who was] 24 or more months younger than [him].” The indictment also stated that Jennings’s birth date was March 19, 1983. Even so, the indictment did not specifically allege that Jennings acted in violation of any particular subsection of section 97-3-65.

¶ 7. Section 97-3-65 fixes various penalties for statutory rape based on the age of the victim and the age of the perpetrator. Section 97 — 3—65(1)(a) applies when someone who is at least seventeen years old has sexual intercourse with a child who is fourteen to sixteen years old. Additionally, the victim must be at least thirty-six months younger than the perpetrator. Id. The victim in this case was thirteen years old. Consequently, Jennings was ineligible to be convicted under section 97-3-65(l)(a).

¶ 8. Section 97 — 3—65(l)(b) applies when someone of any age has sexual intercourse with a child who is younger than fourteen years old. Additionally, the victim must be at least twenty-four months younger than the perpetrator. Id. Jennings was twenty-five years old when he had intercourse -with a thirteen-year-old girl. Consequently, Jennings was eligible to be convicted under section 97-3-65(1)03).

¶ 9. Mississippi Code Annotated section 97-3-65(3) provides for a range of potential penalties for a conviction for statutory rape. Again, the variables involved include the victim’s age and the perpetrator’s age. Section 97-3-65(3)(e) provides that a perpetrator who is at least eighteen years old and who was convicted under section 97-3-65(l)(b) shall be sentenced “to imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.”

¶ 10. According to the transcript of Jennings’s guilty plea, Jennings’s petition originally indicated that the sentencing range for a conviction under count one was “[thirty years] to life” and that the prosecution would recommend that the circuit court sentence Jennings to twenty years in the custody of the MDOC in exchange for his guilty plea to count one. During Jennings’s guilty-plea hearing, the circuit court pointed out the inconsistency in Jennings’s guilty-plea petition. After a brief discussion, the circuit court informed Jennings that he did not qualify for a possible sentence of thirty years to life in the custody of the MDOC. Consequently, the circuit court allowed Jennings’s attorney to modify Jennings’s guilty-plea petition to correctly show that the possible sentencing range for count one was between twenty years in the custody of the MDOC and life imprisonment, rather than thirty years to life.

¶ 11. Jennings received the exact sentence for which he bargained. Jennings seems to argue that he should have faced a minimum possible sentence of thirty years rather than twenty years. First and foremost, it enures to Jennings’s benefit to serve twenty years rather than thirty years. Second, Jennings could not have been sentenced under section 97-3-65(3)(b). Section 97 — 3—65(3)(b) contemplates sentencing a perpetrator who is convicted under section 97-3-65(l)(a), and section 97-3-65(l)(a) only applies if the ■victim was between fourteen and sixteen years old. The victim in this case was thirteen years old. And finally, even if Jennings had been convicted under section 97-3-65(l)(a), based on Jennings’s age and the fact that there is no indication that this is a subsequent offense, thirty years is the maximum sentence he could have received under section 97-3-65(3)(b), rather than the minimum sentence.

¶ 12. The indictment in this case was not defective. Jennings’s confusion is related to an error in his guilty-plea petition. That error was corrected before the circuit court accepted Jennings’s guilty plea and sentenced Jennings. Moreover, Jennings did not experience any prejudice as a result of the initial error in his guilty-plea petition. The circuit court sentenced Jennings precisely according to the prosecution’s original recommendation. We find no error in the circuit court’s decision to summarily dismiss Jennings’s PCR motion.

¶ 13. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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

      . No provision under section 97-3-65 provides a possible sentencing range of thirty years to life in the custody of the MDOC.


author: STUART, Justice.

text:
    LIMESTONE CREEK DEVELOPERS, LLC v. Stuart TRAPP et al.
    1110838.
    Supreme Court of Alabama.
    Aug. 17, 2012.
    Rehearing Denied Oct. 12, 2012.
    Jeff Johnson, Madison, for appellant.
    R. Wayne Wolfe and Marcia St. Louis of Wolfe, Jones, Conchin, Wolfe, Hancock & Daniel, LLC, Huntsville, for appellees.
   STUART, Justice.

Limestone Creek Developers, LLC (“LCD”), sued Stuart Trapp and two companies in which Trapp had a controlling interest — Kyvest, Ltd., and Redesign, Inc. (these two companies are hereinafter referred to collectively as “the Trapp companies,” while all the defendants are referred to collectively as “the Trapp defendants”) — in the Madison Circuit Court after Trapp was unable or unwilling to close on a contract he had personally entered into agreeing to purchase all the lots in a new subdivision owned by LCD. The trial court entered a summary judgment in favor of the Trapp defendants, and LCD appeals. We affirm.

I.

Sometime in late 2007, Mark Yarbrough and Terry McDonald were contacted by Joe William Hulsey to gauge their interest in purchasing some property that Hulsey’s mother, Margaret B. Hulsey, owned in Toney. Joe Hulsey was aware that Yar-brough and McDonald had previous experience related to developing subdivisions, and he believed his mother’s property might be suited for such a project. Yar-brough and McDonald had never before personally purchased property and overseen its subsequent development into a subdivision; however, over a period of approximately 20 years they had done extensive site work for Trapp in connection with subdivisions his companies had developed, and they accordingly contacted him to discuss this opportunity. Trapp was in the midst of developing another subdivision, The Landings, less than five miles from Hulsey’s property, and, after visiting Mrs. Hulsey’s property, he expressed an interest in working with Yarbrough and McDonald to construct houses on the property if they subsequently purchased it. Yarbrough, McDonald, and Trapp thereafter had discussions with a bank official who orally agreed to lend money to fund both Yarbrough and McDonald’s initial purchase of Hulsey’s property and Trapp’s subsequent purchase of lots from them once the initial development of the proposed subdivision was complete.

Mrs. Hulsey thereafter visited The Landings to verify that she was comfortable with the general types of houses Trapp expected to build on the property, and she, Yarbrough and McDonald, and Trapp collectively agreed to certain restrictions and covenants that would govern the property. At some point, Yarbrough and McDonald created the entity known as LCD. On January 9, 2008, Yarbrough and McDonald formally signed a contract with Mrs. Hul-sey on behalf of LCD agreeing to purchase approximately 28 acres for $560,000. The contract was contingent on an engineer examining the property and conducting soil tests to confirm that the property was suitable for residential development, and Yarbrough and McDonald thereafter hired Nash Engineering, LLC, to complete those tests. Nash Engineering also drafted an initial layout for the subdivision, dividing the property into 51 lots based on Trapp’s request that each lot be approximately 100 feet wide. LCD thereafter closed on the property. LCD engaged in further negotiations with Trapp regarding the property, and Trapp eventually agreed to purchase the 51 lots from LCD for $30,000 each. The $30,000 price was a slight increase from the initial price discussed between the parties of approximately $29,000 because Trapp also wanted LCD to construct a decorative sign for the entrance to the subdivision comparable to the sign outside The Landings. Trapp also created the name for the new subdivision — Heritage Landings.

On March 7, 2008, Trapp signed a contract agreeing to purchase the 51 lots in Heritage Landings from LCD for $30,000 each. Pursuant to the terms of the contract, Trapp agreed to purchase 10 lots once initial development of the subdivision was completed and then to purchase an additional 7 lots within the next 6 months. For all lots other than the first 10, Trapp was obligated to pay the corresponding interest on LCD’s bank loan along with the $30,000 lot price.

Following the execution of the contract, LCD commenced site work on the property, such as clearing the land and laying out streets. When it was discovered that 12 of the lots would need engineered septic systems, Trapp paid an engineer to complete the necessary work. On or about June 15, 2009, the initial development of Heritage Landings was completed, and LCD thereafter sought to have Trapp finalize his purchase of lots pursuant to the terms of the contract; however, Trapp would not do so, asserting that he no longer had the ability to finalize the purchase because of prevailing economic conditions that had negatively affected his home-building business.

On June 15, 2010, LCD sued Trapp, asserting fraud and breach-of-contract claims and seeking specific performance of the contract as well as damages, including attorney fees. LCD also sought a judgment from the trial court estopping Trapp from denying the validity of the contract. Trapp filed an answer on August 27, 2010, generally denying the allegations of LCD’s complaint. On August 16, 2011, LCD filed an amended complaint, adding the Trapp companies as defendants and asserting an alter ego theory and seeking “to pierce the veil” of the Trapp companies. LCD subsequently filed a motion for a summary judgment. The Trapp defendants filed a response and thereafter filed their own summary-judgment motion, arguing that Trapp’s contract with LCD was void because it purported to sell lots in a new subdivision before the county issued the permit to develop the subdivision, in violation of § ll-24-2(a), Ala.Code 1975, part of the county subdivision-control statutes, § 11-24-1 et seq., Ala.Code 1975, and in violation of various provisions in the Madison County Subdivision Regulations (“MCSR”).

On December 27, 2011, the trial court entered an order holding that the contract between LCD and Trapp violated § 11— 24-2(a) and was therefore void. Accordingly, the trial court entered a summary judgment in favor of the Trapp defendants on LCD’s breach-of-contract claim, as well as on LCD’s other claims, which, the trial court held, were all dependent on the contract, which was void. LCD’s subsequent motion to alter, amend, or vacate the judgment was denied, and, on March 29, 2012, LCD filed its notice of appeal to this Court.

II.

LCD argues that the trial court erred in entering a summary judgment in favor of the Trapp defendants. We review this argument pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wil son v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

The gravamen of LCD’s argument on appeal is that its contract with Trapp did not violate § ll-24-2(a) or the MCSR and that the trial court accordingly erred by declaring that contract void and entering a summary judgment in favor of the Trapp defendants. Section ll-24-2(a) states, in relevant part:

“It shall be the duty of the owner and developer of each subdivision to have all construction completed in conformity with this chapter and, prior to beginning any construction or development, to submit the proposed plat to the county commission for approval and obtain a permit to develop as required in this section. The permit to develop shall be obtained before the actual sale, offering for sale, transfer, or lease of any lots from the subdivision or addition to the public, it must include a plan to deliver utilities including water, and shall only be issued upon approval of the proposed plat by the county commission.”

(Emphasis added.) LCD argues that its contract with Trapp did not violate § 11— 24-2(a) because, LCD argues, Trapp is not “the public” as that term is used in the statute. The term “the public” is not defined in § ll-24-2(a), and LCD argues that the term is not intended to encompass a business partner with whom the owner and/or developer of a subdivision is engaged in a joint venture; rather, LCD argues, “the public” generally refers to the ultimate purchaser of a lot once initial development of the subdivision is complete. The Trapp defendants, however, urge us to apply a broader definition of the term “the public” to include, essentially, anyone. Ultimately, however, it is unnecessary for us to define the term “the public” because, regardless of the definition we ascribe to the term, the contract between LCD and Trapp would nonetheless be void because it violates a prohibition in the MCSR.

The county subdivision-control statutes contemplate the adoption of additional regulations by the different counties governing the manner in which subdivisions are approved and developed in their jurisdiction. See, e.g., § ll-24-l(c), Ala.Code 1975 (“The county commission or like governing body of each county in the state may establish a board of developers to make suggestions to the commission regarding the development and division of subdivisions. The board may advise the commission on the contents of the regulations, revisions that need to be made to the regulations, and assist in resolving disputes between the commission and developers.”); § ll-24-2(b), Ala.Code 1975 (“No proposed plat shall be approved or disapproved by the county commission without first being reviewed by the county engineer or his or her designee. Following the review, the county engineer or his or her designee shall certify to the commission whether the proposed plat meets the county’s regulations. If the proposed plat meets the regulations, it shall be approved by the commission.”); and § 11-24-3(c), AIa.Code 1975 (“The county commission may employ inspectors and may request the county license inspector to see that its rules and regulations are not violated. ...”).

Madison County has in fact enacted such regulations and a complete copy of the MCSR was submitted into the record by LCD along with its summary-judgment motion. Like § ll-24-2(a), § 4.3 of the MCSR provides that a permit to develop a subdivision may be obtained after a proposed plat is submitted to and approved by the county; § 4.3 further details the procedure for seeking approval of that proposed plat. However, unlike § ll-24-2(a), the MCSR prohibit the offering, sale, transfer, or lease of lots to the public even after the proposed subdivision plat is approved; such activity is prohibited until a final plat is submitted and approved once the owner or developer decides to proceed with the proposed subdivision. See § 4.1 of the MCSR (providing that no lot shall “be offered for sale, sold, transferred or leased to the public until the final plat has been submitted to and approved by the commission and the final plat has been recorded in the office of the probate judge”); and § 4.4 of the MCSR (describing the procedure for submitting and getting approval of the final plat).

Aside from this distinction, however, the MCSR contain another prohibition that is applicable in this case. Section 1.2.3 of the MCSR provides:

“Prior to the actual sale, offering for sale, transfer or lease of any lots as defined herein for the purpose of creating, establishing or modifying a subdivision as defined herein, any owner or developer of a subdivision ... which lies within the subdivision jurisdiction of the county shall submit the proposed plat of the proposed subdivision ... to the commission and obtain for [sic] approval of the proposed plat in accordance with the procedures prescribed by [§ 11-24-1 et seq., Ala.Code 1975,] as amended, and set out in these regulations.”

Thus, this regulation requires an owner or developer of a subdivision to submit and gain approval of a proposed subdivision plat before the sale or offering for sale of any lots “for the purpose of creating, establishing or modifying a subdivision.” Notably, there is no language barring only those sales or offerings made to “the public.”

It has been LCD’s position throughout this litigation that Trapp is not part of “the public” because he was essentially a partner in a joint venture created to develop Heritage Landings. Regardless of whether we agree that he is a member of “the public,” LCD cannot, in light of its position, maintain that its attempt to sell him lots was done for any purpose other than “creating, establishing or modifying a subdivision,” and whether he was a member of “the public” is immaterial to that inquiry. Accordingly, because the contract LCD entered into required LCD to sell lots to Trapp before the proposed plat for Heritage Landings was approved, that contract was in violation of § 1.2.3 of the MCSR.

The summary judgment in favor of the Trapp defendants was therefore proper because the judicial system may not be used to enforce illegal contracts. See, e.g., Ex parte W.D.J., 785 So.2d 390, 393 (Ala.2000) (“Moreover, this Court has held that ‘[a] person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party.’ Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So.2d 417, 421 (1942). In Oden v. Pepsi Cola Bottling Co., 621 So.2d 953 (Ala.1993), this Court stated that the purpose of the Hinkle rule is to ensure that ‘ “those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.” ’ 621 So.2d at 955.... ” (emphasis omitted)). See also Kilgore Dev., Inc. v. Woodland Place, LLC, 47 So.3d 267, 271 (Ala.Civ.App.2009) (holding that subdivision-control statutes were implemented to protect the public, not to raise revenue, and that contracts violating those statutes are accordingly void).

Indeed, the policy behind this principle has been deemed to be of such importance that contracts found to violate the law will not be enforced even if, as has been alleged in this case, the defaulting party failed to properly plead the affirmative defense of illegality. Brown v. Mountain Lakes Resort, Inc., 521 So.2d 24, 26 (Ala.1988) (“ ‘ “It is the rule ... in Alabama and a few other jurisdictions to not enforce a contract in violation of the law and to deny the plaintiff the right to recover upon a transaction contrary to public policy, even if the invalidity of the contract or transaction be not specially pleaded and is developed by the defendant’s evidence.” ’ ” (quoting National Life & Accident Ins. Co. v. Middlebrooks, 27 Ala.App. 247, 249, 170 So. 84, 86 (1936), quoting in turn Shearin v. Pizitz, 208 Ala. 244, 246, 94 So. 92, 93 (1922))).

IV.

LCD sued the Trapp defendants after Trapp failed to close on the purchase of 51 lots in a new subdivision LCD was developing, as required by the contract entered into by LCD and Trapp. The trial court entered a summary judgment in favor of the Trapp defendants after holding that LCD’s contract with Trapp was void because it violated § ll-24-2(a). While expressing no opinion with regard to whether that contract violated § ll-24-2(a), we nevertheless hold that the contract was void because it violated § 1.2.3 of the MCSR. Accordingly, the trial court correctly entered a summary judgment in favor of the Trapp defendants on LCD’s breach-of-contract claim, as well as LCD’s other claims, which were dependent on that contract. The judgment of the trial court is accordingly affirmed.

AFFIRMED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.


author: PITTMAN, Judge. MOORE, Judge,

text:
    William Clyde ADAMS, Sr. v. Phoebe Nicole ADAMS.
    2100787.
    Court of Civil Appeals of Alabama.
    April 20, 2012.
    Rehearing Denied June 15, 2012.
    Certiorari Denied Oct. 12, 2012. Alabama Supreme Court 1111246.

      Bernard Harwood of Rosen Harwood, P.A., Tuscaloosa, for appellant.
    Jaime Webb Conger of The Fisher Law Firm, P.C., Tuscaloosa, for appellee.
   PITTMAN, Judge.

This appeal, which arises from a postdi-vorce proceeding between William Clyde Adams, Sr. (“the father”), and Phoebe Nicole Adams (“the mother”), presents a question of first impression: whether a noncustodial father who is required by the terms of a divorce judgment to pay child support, and who later reaches retirement age and receives Social Security retirement benefits, is entitled to credit against his child-support obligation the child’s Social Security dependent benefits. The circuit court disallowed the credit; we reverse and remand.

Facts and Procedural History

The parties were divorced in March 2007, when the child was less than two years old. At the time of the divorce, the mother’s gross monthly income was $4,166.67, and the father’s gross monthly income was $100,000; their combined incomes exceeded the uppermost income level of the child-support schedule in effect. See Rule 32, Ala. R. Jud. Admin. (Appendix). The divorce judgment incorporated the parties’ agreement, which, among other things, provided that the father would pay $2,000 per month in child support, an amount that, the parties stipulated, had not been calculated according to the child-support schedule but, they agreed, was “fair and reasonable” and “sufficient to provide appropriately for the minor child’s care and support.” The parties also agreed that the father would (a) pay for private-school tuition, books, fees, and other school-related expenses beginning when the child enrolled in kindergarten, (b) provide health-insurance coverage for the child, (c) establish a trust fund for the child, and (d) establish a “529” college-savings plan for the child. It is undisputed that, since the time of the divorce, the father has been paying $2,000 per month in child support, $892 per month for a family health-insurance plan that covers the child, and annual school-related expenses totaling $6,294.50 for the child. In addition, he has been regularly contributing to the child’s trust fund and 529 plan.

In December 2009, the father filed a petition seeking to modify the divorce judgment, asserting various grievances that are not at issue on appeal and seeking a finding of contempt against the mother. The mother answered and counterclaimed, seeking, among other relief, an increase in child support. In 2010, the father, who was still working and earning income, reached 66 years of age and began receiving Social Security retirement benefits in the amount of $2,326 per month. Pursuant to 42 U.S.C. § 402(d)(2), the child became eligible for Social Security dependent benefits equal to one-half of the father’s benefits. In November 2010, the mother, as the child’s representative payee, began receiving Social Security dependent benefits in the amount of $1,163 per month for the child.

In December 2010, the father filed a petition to modify the child-support provision of the divorce judgment, asserting that he was entitled to a dollar-for-dollar reduction in his child-support obligation corresponding to the amount of the child’s dependent-benefits payment. The mother answered and denied that the father was entitled to a child-support credit.

On February 1, 2011, the parties reached a settlement of all disputed matters except child support; they agreed to submit that issue to the circuit court for resolution upon stipulations and documentary evidence. The parties stipulated to the following matters: the father’s current gross monthly income, including employment income, nonemployment income, and Social Security retirement benefits, was $101,485 — an increase of $1,485 since the date of the divorce; the mother’s current gross monthly employment income was $2,666 — a decrease of $1,500.67 since the date of the divorce; the mother’s monthly expenses were $5,205.50 — an amount that had not increased since the time of the divorce and that included monthly payments totaling $899 on 7 credit cards; the father’s annual expenditures for the child, over and above his monthly child-support obligation and excluding his trust-fund and 529-plan contributions, amounted to $8,294.50 — $2,400 of which he attributed to clothing, shoes, and toys for the child, with the remainder being school-related expenses.

The circuit court received no testimonial evidence. It decided the case on the briefs and arguments of counsel. On March 11, 2011, the circuit court entered a judgment denying the mother’s request for an increase in child support and denying the father’s request to credit the child’s dependent benefits against his child-support obligation, following which the father timely appealed.

Standard of Review

“The trial court in this case applied the law to undisputed, stipulated facts. Our review therefore is de novo.

“ ‘ “When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness. Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989); Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). When [an appellate court] must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997). In this case the trial court based its decision upon the stipulations, briefs, writings, and arguments of the parties’ attorneys. No testimony was presented. Therefore, we must sit in judgment of the evidence, and the trial court’s ruling carries no presumption of correctness.” ’ ”

Town of Westover v. Bynum, 68 So.3d 840, 842 (Ala.Civ.App.2011) (quoting American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 872-73 (Ala.2006), quoting in turn Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516-17 (Ala.2003)).

Discussion

This court has held that a child-support obligor is entitled to credit, against his or her child-support obligation, the Social Security dependent benefits that a child receives on account of the obligor’s disability. See Harbison v. Harbison, 688 So.2d 876 (Ala.Civ.App.1997); Self v. Self, 685 So.2d 732 (Ala.Civ.App.1996); and Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (Civ.App.1976). We have also held that the estate of a child-support obligor is entitled to a credit for Social Security benefits that a child receives on account of the obligor’s death. See Bowden v. Bowden, 426 So.2d 448 (Ala.Civ.App.1983). We have not, however, addressed the issue presented in this case — whether a child-support obligor is entitled to a credit for Social Security dependent benefits that a child receives on account of the obligor’s receiving Social Security retirement benefits.

There is a split of authority on that issue, with a majority of states holding that an obligor is entitled, as a matter of law, to a credit for dependent benefits, irrespective of whether those benefits are paid on account of the obligor’s death, disability, or retirement. See generally Michael A. DiSabatino, Annot., Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child, 34 A.L.R.5& 447, §§ 9-11 (1995). “The rationale for [the majority] view is that such benefits have been generated by the obligor parent’s own earnings. If Social Security benefits are viewed as a parent’s own earnings, the payments should be properly applied as a substitute for support payments from the obligor’s wage earnings.” Rebecca Spencer, Comment, Using Social Security Benefits as a Credit Towards a Child Support Obligation, 16 J. Am. Acad. Matrimonial Law. 223, 223 (1999). See also Tori R.A. Kricken, Child Support and Social Security Dependent Benefits: A Comprehensive Analysis and Proposal for Wyoming, 2 Wyo. L.Rev. 39, 62-63 (2002) (stating that the “majority view regards social security benefits as ‘earnings’ of the contributing parent that have been ‘invested’ in an insurance-type system. For this reason, benefits paid to a child on the parent’s behalf should be credited toward child support obligations as would be an insurance payout.”). That rationale applies equally to dependent benefits paid on account of the obligor’s death, disability, or retirement. See, e.g., In re Marriage of Belger, 654 N.W.2d 902, 907 (Iowa 2002) (noting that “ ‘[although most of the relevant cases from other states have addressed the issue in the context of social security disability benefits rather than retirement benefits — the type of benefits at issue here — there appears to be no theoretical basis for distinguishing between the two types of payment’ ”) (quoting Miller v. Miller, 890 P.2d 574, 577 (Alaska 1995)).

Alabama cases have adopted the “earnings” and “insurance” rationale for allowing a credit against child support for Social Security dependent disability or death benefits. In Binns, supra, we stated:

“ ‘Social Security disability payments represent money which an employee has earned during his employment and also that which his employer has paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301 et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income.’...”

57 Ala.App. at 233, 327 So.2d at 728 (quoting Horton v. Horton, 219 Ga. 177, 178, 132 S.E.2d 200, 201 (1963)). In Bowden, supra, we stated:

“[T]he purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a parent insures against death or loss of physical ability to fulfill moral and legal obligations to dependent children. The premiums on such insurance may be said to have been paid either by the parent or by the parent and [the] employer. The benefits of Social Security are not gratuitous. The terms of ‘insured,’ ‘insurance,’ and ‘beneficiary’ are used throughout the Social Security Act. 42 U.S.C.A. Chapt. 7.
“The Supreme Court of the United States has referred to the Social Security system as social insurance and has said the right to the benefits is in one sense earned. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (I960).”

426 So.2d at 450. See also Brazeal v. Brazeal, 756 So.2d 889, 891 (Ala.Civ.App.1999); Self, 685 So.2d at 734. Accord Miller v. Miller, supra:

“Courts have been careful to point out that, unlike welfare and other forms of public assistance, social security benefits represent contributions that a worker has made throughout the course of employment; in this sense, benefits represent earnings in much the same way as do annuities paid by an insurance policy.
“ ‘The payments prescribed by [the Social Security Act] are not gratuities or matters of grace; they are not public assistance; they are not welfare payments. On the contrary, the law created a contributory insurance system, under which what in effect constitute premiums are shared by employees and employers. Consequently, in spirit at least, if not strictly and technically, the employee, who throughout his working life has contributed part of the premiums in the form of deductions from his wages or salary, should be deemed to have a vested right to the payments prescribed by the statutory scheme, which in effect comprises the terms of the insurance policy. He has earned the benefits; he is not receiving a gift.”’

890 P.2d at 576-77 (quoting Schmiedigen v. Celebrezze, 245 F.Supp. 825, 827 (D.D.C.1965)).

There appear to be two minority views on the issue of whether an obligor is entitled to a child-support credit for dependent retirement benefits. Some states have adopted a case-by-case approach, leaving the matter to the discretion of the trial court. See, e.g., Thompson v. Thompson, 868 N.E.2d 862, 868-69 (Ind.Ct.App.2007) (stating that “the proper treatment of the Social Security retirement benefits received by a child in calculating child support should be left to the sound discretion of the trial court”); Anderson v. Anderson, 117 Md.App. 474, 476, 700 A.2d 844, 845 (1997), judgment vacated on other grounds, 349 Md. 294, 708 A.2d 296 (1998) (holding that Social Security benefits received directly by a dependent child as a result of the parent’s retirement do not offset such parent’s child-support obligation as a matter of law but that the trial court may consider such benefits when deciding whether to deviate from the child-support guidelines or in any case that “involves parents with above-guidelines income levels”). Other states take the position that there is a rebuttable presumption favoring a credit for Social Security dependent retirement benefits. See, e.g., Clark v. Clark, 110 Haw. 459, 134 P.3d 625 (Ct.App.2006); Preston v. Preston, 435 Pa.Super. 459, 646 A.2d 1186 (1994).

In the present case, the circuit court’s judgment states:

“After careful consideration, this court believes that in Alabama no blanket rule should apply, and especially where the parties’ incomes exceed the guidelines set out in the Alabama Rules of Judicial Administration, a case-by-case determination should be made. Based on such individual review in this matter, this court finds from the evidence that the father has failed to meet his burden of proof in his claim. The father’s income is so much higher than the mother’s, [that] this court cannot see any compelling reason to give him the credit he demands without substantially more evidence demonstrating why, in fairness and equity in this instant case, he should be entitled to such credit. It appears that (1) the child would be receiving these social security benefits now if the parties were still married, (2) the income of the mother has been reduced since the date of the divorce, (3) the income of the father has increased, and (4) clearly, the child’s social security benefits are not exactly equivalent to child support, if for no reasons other than the additional limitations on the use of such funds, and the reporting requirements imposed on the [representative] payee.”

We agree with the circuit court that no “blanket rule” should apply in this case and that the decision whether to grant the father a credit for dependent retirement benefits was a matter within the circuit court’s discretion. It is settled law in Alabama that 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.” McGowin v. McGowin, 991 So.2d 735, 741 (Ala.Civ.App.2008). In order to determine whether the circuit court acted outside the limits of its discretion, we will analyze the four reasons the court offered in support of its decision to deny the father a credit.

First, the circuit court stated that “the child would be receiving these social security benefits now if the parties were still married.” The legal reasoning underlying that statement is not immediately apparent to this court, but if the circuit court intended to make a finding that, had the parties remained married, the child’s access to an additional $1,163 in dependent benefits every month would allow her to enjoy a more lavish lifestyle than her father’s child-support payments are currently providing for her, then such a finding is not germane to the issue presented on this appeal.

When the parties’ combined incomes exceed the uppermost limit of the child-support schedule, the focus of the inquiry in establishing an initial child-support award is whether the amount of child support awarded “rationally relate[s] 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.” Dyas v. Dyas, 683 So.2d 971, 973 (Ala.Civ.App.1995) (emphasis added; footnote omitted), affirmed but remanded, Ex parte Dyas, 683 So.2d 974 (Ala.1996). A hypothetically different lifestyle that the child might have enjoyed had there been no divorce is immaterial for purposes of modification proceedings because the focus of the inquiry in determining whether to modify child support is whether there has been a material change in circumstances since the date of the divorce — ie., for present purposes, whether the child’s “reasonable and necessary needs” have increased or whether such needs are still being met by the initial child-support award. See Poh v. Poh, 64 So.3d 49, 56 (Ala.Civ.App.2010). In the present case, the parties agreed at the time of the divorce that the initial child-support award was “fair and reasonable” and “sufficient to provide appropriately for the minor child’s care and support.” The mother presented no evidence indicating that the child’s needs had increased since the date of the divorce other than the fact that the child had enrolled in private-school kindergarten, and it is undisputed that the father has paid all school expenses for the child.

The circuit court’s second reason for denying the father a child-support credit— that “the income of the mother has been reduced since the date of the divorce” — is also not germane to the issue presented on appeal. Although the mother submitted documentary evidence indicating that her monthly expenses of $5,205.50 exceeded her net monthly income of $1,940, the circuit court specifically found that the mother had presented “no evidence of changes in [her] expenses since the date of the divorce, nor any benefit to the child from many if not most of her expenses.” Cf. Faellaci v. Faellaci, 98 So.3d 521, 535 (Ala.Civ.App.2012) (affirming a $4,000-per-month child-support award to the custodial mother, despite the mother’s testimony that “household expenses” for herself and the children amounted to $5,165, because the mother did not testify that the expenses “were related only to the needs of the children” and the trial court could have concluded that only a portion of the expenses were “attributable to the ... children”). Moreover, as previously stated, the mother presented no evidence indicating that, because of the reduction in her income, the father’s child-support payments were inadequate to meet the needs of the child.

Leaving aside for the moment the circuit court’s third reason for denying a credit, we turn to the fourth reason: that the child’s dependent benefits are not “exactly equivalent” to child support because of limitations on their use and the imposition of reporting requirements on the representative payee, ie., the mother. The circuit court stated that, in reaching that conclusion, it had taken judicial notice of applicable federal regulations as set out in A Guide for Representative Payees, Soc. Sec. Admin. Publ’n No. 05-10076, (hereinafter referred to as the “Guide for Payees”).

We are at a loss to understand why the circuit court determined that Social Security dependent retirement benefits are not equivalent, in their essential nature, to child support. The Guide for Payees specifies that the child’s representative payee must maintain the child’s benefits in a separate account, establish an interest-bearing account for saving any unused funds, and make an annual report (which is subject to audit) detailing how the payee has used the funds to benefit the child.

It is axiomatic that a custodial parent must use child-support payments for the benefit of the child. The fact that the Social Security Administration compels a representative payee to segregate the funds, to document and report on their use, and to be subject to a possible audit does not in any way serve to differentiate the essential nature of dependent-benefit payments from court-ordered child-support payments. Both kinds of payments must be used for the benefit of the child, see Introduction to the Guide for Payees (stating that “if you agree to be a representative payee, we pay you the person’s benefits to use on his or her behalf’), and the receipt of both kinds of payments subjects the custodial parent to potential liability to account for the use of the funds, cf. R.G. v. G.G., 771 So.2d 490 (Ala.Civ.App.2000) (noting that the trial court has discretion to order a custodial parent to provide an accounting of child-support payments, but affirming the denial of a noncustodial father’s request for an accounting because the father neither sought a modification of child support nor made a showing that his payments were too high).

In the present case, the mother contends that it would be inequitable to allow the father a child-support credit for benefits the child receives on account of the father’s retirement because, she says, the father is still working and earning a substantial income and his Social Security retirement benefits, therefore, are not a substitute for “lost” income. Citing Lightel v. Myers, 791 So.2d 955 (Ala.Civ.App.2000), the mother argues that Alabama caselaw allows a child-support obligation to be offset by third-party payments to a child only to the extent that such payments constitute a substitute for income the obligor is no longer earning, as in the case of disability or death benefits, or retirement benefits that are being paid to an obligor who is no longer working and earning an income. But, she says, when an obligor like the father receives Social Security retirement benefits and continues to earn income from other sources, the Social Security dependent benefits that the obligor’s child receives are not a substitute for the obligor’s lost earnings and, therefore, are not due to be credited against the obligor’s child-support obligation.

The mother overreads Lightel. In that case, this court held that a father’s child-support obligation could not be offset by the Supplemental Security Income (“SSI”) benefits that his children were receiving on account of their own mental disabilities because, as we explained, SSI benefits are not a substitute for the obligor’s income but, rather, are a supplement to the recipient’s income. We stated:

“In Alabama, a parent’s child-support obligation may be offset by payments by a third-party source where those payments constitute a substitute income source. See Self v. Self, [685 So.2d 732 (Ala.Civ.App.1996) ]; Binns v. Maddox, [57 Ala.App. 230, 327 So.2d 726 (Civ.App.1996) ]. However, SSI benefits are a supplement to income, not a substitute for it. Therefore, we conclude that the trial court correctly refused to offset the father’s obligation to provide for the children’s reasonable living expenses by the amount of SSI benefits the children receive.”

Lightel, 791 So.2d at 960. As can be discerned from the foregoing quote, this court used the phrase “substitute income source” in contradistinction to the phrase “supplement to income” in Lightel; we did not hold or imply that Social Security retirement benefits are a “substitute income source” only if the recipient is no longer working and earning income. Granted, it is more often than not the case that, when a child-support obligor seeks a child-support credit for the dependent retirement benefits his or her child is receiving, the obligor is no longer employed and his or her Social Security retirement benefits constitute a substantial, if not the sole, source of his or her income. But such circumstances need not exist in order to make an obligor’s Social Security retirement benefits a “substitute income source.” See Childerson v. Hess, 198 Ill.App.3d 395, 399, 555 N.E.2d 1070, 1073, 144 Ill.Dec. 551, 554 (1990) (stating that, “[sjince the amount of child support required to be paid is determined largely by income, this court can see no reason why, in discharging the obligation to pay child support, social security payments should not be credited because often social security substitutes for lost income” (emphasis added)); Spencer, Using Social Security Benefits as a Credit Towards a Child Support Obligation, 16 J. Am. Acad. Matrimonial Law. at 223 (stating that “[i]f Social Security benefits are viewed as a parent’s own earnings, the payments should be properly applied as a substitute for support payments from the obligor’s wage earnings”).

We conclude that the mother’s inequita-bleness argument is without merit. Granting the father a credit is not unfair to the child because, with or without the credit, the child will be receiving the same amount of child support that was ordered in the divorce judgment, an amount that is undisputedly sufficient to meet her reasonable and necessary needs. Granting the father a credit is not unfair to the mother because,

“[fjrom a purely economic perspective, the actual source of the payments is not important to the custodial parent as long as the payments continue to be made in conformance with the [divorce judgment]. See Miller [v. Miller ], 890 P.2d [574,] 577 [ (Alaska 1995) ] (quoting Davis v. Davis, 141 Vt. 398, 449 A.2d 947, 948 (1982)); see also Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726, 728 (Ala.Civ.App.1976) (because support order is for benefit of the child, even though custodial parent receives the payment, if the sum to be paid by the non-custodial parent is paid by the government via social security benefits, the real purpose of the child support order has been accomplished).”

In re Marriage of Belger, 654 N.W.2d at 908.

As previously discussed, the circuit court’s first, second, and fourth reasons for denying the father a child-support credit are invalid. That brings us to the circuit court’s third reason for denying the father’s request for a credit — that the “father’s income is so much higher than the mother’s” and has increased since the time of the divorce. In Dyas v. Dyas, supra, this court stated:

“This court has held ... that a trial court’s discretion [in determining child support in circumstances where combined adjusted gross income exceeds the uppermost levels of the child-support schedule] is not unbridled and that 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....
“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.... To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.
“In this case, the amount awarded totally fails on the first prong; it is abundantly clear from the record that the child support awarded was based solely on the husband’s perceived ability to pay and does not rationally relate to the reasonable and necessary needs of the two minor children. This is contrary to established case law; consequently, we find an abuse of discretion on the part of the trial court.”

683 So.2d at 973-74 (some emphasis added; footnote omitted). We conclude that, by denying the father’s request to credit his child-support obligation with the dependent retirement benefits that the mother is receiving as representative payee for the child, the circuit court violated the rule of Dyas and thereby acted outside the limits of its discretion. See Earheart v. Earheart, 842 So.2d 695, 698 (Ala.Civ.App.2002) (holding that “a child-support payment based solely on the ability of the noncustodial parent to pay is impermissible, and ... a judgment ordering such a payment is an abuse of discretion by the trial court”).

The judgment of the Tuscaloosa Circuit Court is reversed and the cause is remanded for the rendition and entry of a judgment in favor of the father.

REVERSED AND REMANDED.

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

MOORE, J., concurs in the result, with writing, which BRYAN, J., joins.

MOORE, Judge,

concurring in the result.

Rule 32, Ala. R. Jud. Admin., provides that child support is payable from the income of parents. “Gross income,” for child-support purposes, includes Social Security benefits. Rule 32(B)(2)(a), Ala. R. Jud. Admin. By federal law, Social Security “child’s insurance benefits” are payable to minor children who are dependent upon an individual entitled to old-age insurance benefits. 42 U.S.C. § 402(d)(1). Child’s insurance benefits may be made payable to the child’s custodial parent as a “representative payee,” see 42 U.S.C. 405(j)(l)(A) and 20 C.F.R. § 416.621(a)(1), but the custodial parent may expend those funds only for the use and benefit of the child, 20 C.F.R. § 416.635, including the current maintenance of the child. 20 C.F.R. § 416.640. Binding Alabama case-law holds that Social Security child’s insurance benefits should be included as income of the parent on whose account the dependent benefits are paid. Dinkel v. Dinkel, 598 So.2d 918, 920 (Ala.Civ.App.1991). It naturally follows that, when a child receives Social Security child’s insurance benefits on account of the old age of the noncustodial parent, those benefits, as a matter of law, should be considered child support paid from the income of that parent and should be applied to the child-support obligation of that parent.

Rule 32(C)(1), Ala. R. Jud. Admin., allows a trial court to use its “discretion” in “determining” child support when the combined adjusted gross income of a child’s parents exceeds $20,000 per month. As previously construed by this court, that language refers to the power of a trial court to use equitable principles to calculate an amount of child support that would allow the child to maintain the lifestyle the child would have enjoyed if not for the divorce of the parents. See Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala.Civ.App.1995). So construed, the discretion afforded to a trial court by Rule 32(C)(1) relates solely to its decision as to the establishment of a parent’s child-support obligation. That discretion does not extend to the separate question regarding the satisfaction of the established child-support obligation.

In this case, William Clyde Adams, Sr. (“the father”), and Phoebe Nicole Adams (“the mother”) agreed in their divorce proceedings in 2007 that the father would pay $2,000 in monthly child support for the benefit of E.A. (“the child”), would provide medical insurance for the child, would pay the child’s private-school tuition, and would contribute to the child’s trust fund and college-savings fund. In that agreement, which was incorporated into the parties’ divorce judgment, the parties stipulated “that the child support Ordered herein is a fair and reasonable amount and is sufficient to provide appropriately for the minor child’s care and support.” As part of the underlying proceedings, the mother petitioned the Tuscaloosa Circuit Court (“the trial court”) to increase the father’s child-support obligation, but the trial court denied that petition on the ground that the mother had failed to show any material change in the needs of the child since the entry of the original child-support order.

In ruling on the separate question whether the father should receive a credit for the Social Security child’s insurance benefits the child receives, the trial court was not “determining” child support, an issue that it had already decided adversely to the mother based on the evidence. The trial court was deciding a question of law regarding whether the Social Security child’s insurance benefits received by the child should be considered a form of child support that should be credited against the father’s already established child-support obligation. The “discretion” in Rule 32(C)(1) does not relate to the credit inquiry undertaken by the trial court and does not provide any basis for holding that Social Security child’s insurance benefits cannot be considered child support in cases in which the income of the parents exceeds the uppermost limits in the child-support schedule.

In my opinion, the judgment of the trial court is due to be reversed because, as a matter of Alabama law, the father is entitled to a credit against his $2,000 monthly child-support obligation for the $1,163 in child’s insurance benefits paid monthly to the child on account of her entitlement to a portion of the father’s old-age Social Security insurance benefits.

BRYAN, J., concurs.

      . Congress created a tax exemption found in 26 U.S.C. § 529 in order to encourage taxpayers to save for future college expenses. See S.Rep. No. 104-281, 106, Pub.L. No. 104-188, 1996 U.S.S.C.A.N. 1474, 1580 (stating that the reason for the change in the law was to "clarify the tax treatment of State-sponsored prepaid tuition programs and educational savings programs in order to encourage persons to save to meet post-secondary educational expenses”).

      . "[T]he retired parent pays no additional premiums in order to entitle his or her child to benefits — the amount of social security contributions paid by the retired parent and his or her employer are the same whether the parent is married or single and whether he or she has children or not.... [T]he retired parent's own social security retirement benefits are not reduced or changed by the benefits his or her children receive.”

        Stultz v. Stultz, 659 N.E.2d 125, 130 (Ind.1995).