author: DONALDSON, Judge.

text:
    Sabrina Gail WALKER v. Steve Allen WALKER.
    2111239.
    Court of Civil Appeals of Alabama.
    Nov. 1, 2013.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.
    Stephen Paul Bussman of Bussman & Guice, P.C., Fort Payne, for appellee.
   DONALDSON, Judge.

Sabrina Gail Walker (“the wife”) appeals from a divorce judgment of the DeKalb Circuit Court (“the trial court”), entered pursuant to a purported agreement between the wife and Steve Allen Walker (“the husband”), and from the denial of the wife’s postjudgment motion for a new trial or to alter, amend, vacate, or clarify the judgment. Because we hold that the parties failed to reach an enforceable agreement, we reverse and remand.

Facts and Procedural History

The wife filed a complaint for a divorce on September 14, 2011. The husband filed an answer and a counterclaim for a divorce. The wife and the husband have a daughter (“the daughter”) who was 16 years old at the time the divorce proceedings were initiated. Both parties were represented by counsel throughout the proceedings.

A bench trial was scheduled to begin on April 26, 2012. On that date, following discussions between counsel for the parties before the beginning of the trial, counsel informed the trial court that the parties had reached a settlement on all issues. In open court and on the record, the husband’s attorney announced the terms of the purported agreement in the presence of the husband, the wife, and the wife’s attorney. The statement addressed the custody of the daughter, child support, alimony, property distribution, allocation of debt, and other topics. Pursuant to the proposed property distribution, the wife was to be awarded an automobile, a shop, most of the parties’ household furnishings, and the marital residence, subject to the obligation of the wife to refinance the mortgage indebtedness on the residence within 60 days. The husband’s attorney described the wife’s obligation to refinance the mortgage as follows:

“The [wife] will be awarded the marital residence. There is some indebtedness owed to, I think, Regions Bank. She will refinance that within 60 days. And there is a shop on there, and the [husband] will have up to a year to remove [his belongings from] the shop.”

The husband was to be awarded a construction business, equipment, and real estate located in an area described as “Dug Out Valley.” The parties were to divide various personal effects. The husband was to execute a release absolving the wife of liability for her allegedly fraudulent conduct regarding a business. The wife was to forgive any debt the husband owed on the daughter’s automobile.

Separate from the Dug Out Valley real estate, the parties jointly own 2 parcels of real estate, a 32-acre tract and a 1.5 acre tract on Sand Mountain (“the Sand Mountain properties”). Regarding the distribution of the Sand Mountain properties, the husband’s attorney stated:

“[The husband] will be awarded the property that’s in [Dug Out V]alley. The 32 acres and the one and a half acres that are on Sand Mountain — those two properties will ultimately go to their daughter, and [the wife’s attorney] and I will work on the language to make that happen.”

In the postjudgment proceedings before the trial court and on appeal, the husband disputes the punctuation contained in the reporter’s transcript on this issue. According'to the husband, the court reporter, among other things, mistakenly inserted a period, instead of a comma, after the word “valley,” and, he asserts, the transcript should read as follows:

“[The husband] will be awarded the property that’s in [Dug Out V]alley, the 32 acres, and the 1 and a half acres that are on Sand Mountain. Those two properties, the last two, will ultimately go to their daughter, and [the wife’s attorney] and I will work on the language to make that happen.”

After the husband’s attorney stated the terms of the purported agreement, the trial court questioned each party as follows:

“THE COURT: All right. [Husband], you have heard your attorney state the settlement for the record. Is that, in fact, your agreement?
“[HUSBAND]: Yes.
“THE COURT: [Wife], is that your agreement?
“[WIFE]: Yes.
“THE COURT: All right, well, the attorneys will prepare an order for me, and they will both, you know, make sure that it’s correct and send it to me, and I’ll sign it.”

The wife then testified under oath to establish the grounds for granting the divorce.

Following the proceedings in court on April 26, counsel for the parties began corresponding with each other regarding the language of the proposed written order that would be submitted to the trial court for adoption as the final judgment of divorce. The husband’s attorney drafted a proposed written order that awarded title to the Sand Mountain properties to the husband. Paragraph 20 of that proposed order stated: “The [husband] cannot sell, transfer, or otherwise convey either tract to anyone other than the minor child. The [husband] may, however, encumber, mortgage, or otherwise pledge the two tracts as collateral as part of Steve Walker Construction.” The wife’s attorney responded to that proposal with a letter that, among other things, took issue with paragraph 20 and stated: “[The wife] didn’t agree that [the husband] could mortgage, pledge etc[.] the 32 acre tract and the 1 acre tract [presumably the Sand Mountain properties]. That is supposed to go to [the daughter] as soon as it is released from the current mortgage.” The husband’s attorney replied with a facsimile that stated, in part: “I deleted the fourth and fifth sentenced] in paragraph 20. There was never any mention that the property was going to [the daughter] as soon as it is released from the current mortgage. It was not stated in the court record.” The wife, through counsel, continued to object to the husband’s proposed order awarding him title to the Sand Mountain properties, and she refused to sign proposed deeds that would transfer title to the Sand Mountain properties to the husband. The husband then filed a “Motion to Enforce Final Decree” with the trial court, and he attached a proposed order containing the following language:

“20. The [husband] shall be awarded the Dug Out Valley properties, the one (1) acre tract, and the 32 acre tract. The [wife] shall execute whatever documents are necessary to effectuate same. The parties daughter, [C.M.W.], shall ultimately receive the one (1) acre tract and the 32 acre tract.”

On June 25, 2012, the trial court held a hearing on the husband’s motion to enforce. During the hearing, the husband testified that his understanding of the settlement agreement announced in court on the date of the trial was that he was to be awarded the Sand Mountain properties and that they were to be titled in his name only. He agreed that the intention of both parties was that the daughter would ultimately receive the Sand Mountain properties, but he testified that the transfer would occur only “when [he] thought it was time for her to have [them].” Under cross-examination, the husband testified that his understanding of the agreement was that the daughter would receive the Sand Mountain properties when she reached an unspecified “appropriate” age. He testified that he intended for “her to have [the Sand Mountain properties] when she’s of age and can take [them]. I don’t want [the wife] having nothing to do with it.” He admitted to having extracted topsoil from the Sand Mountain properties following the announcement of the agreement on April 26.

The wife retained a new attorney before the hearing on the motion to enforce, and the attorney who had represented the wife during the settlement negotiations testified for the wife at the hearing. The attorney testified that his understanding of the parties’ settlement agreement was that the parties had intended for the daughter to receive the Sand Mountain properties upon the refinancing of the mortgage on the marital residence, i.e., when the husband was released from the mortgage indebtedness. The attorney testified that the wife had not agreed to transfer title to the Sand Mountain properties to the husband at any time and that during the negotiations the parties had not discussed deferring the transfer to the daughter for a number of years or allowing the husband to use the land for extracting topsoil. He testified that the term “ultimately,” which qualified the transfer to the daughter in the purported agreement announced on April 26, was not otherwise defined by the parties in their negotiations.

The wife testified that her understanding of the settlement agreement was that the conveyance to the daughter would not be immediate because she needed to refinance the mortgage on the marital residence first. Her understanding was that the daughter would receive the Sand Mountain properties as soon as the refinancing of the marital residence occurred. The wife stated that she did not agree, and would not have agreed, to award the husband unencumbered real property (the Sand Mountain properties) while she received the marital residence encumbered with a refinanced mortgage. She also claimed that during the negotiations she had been under duress and heightened anxiety caused by a lack of medication and by allegations of fraud and embezzlement lodged against her by the husband.

On July 10, 2012, the trial court entered an order granting the husband’s motion to enforce, concluding that the parties had reached a binding, enforceable agreement at the April 26, 2012, hearing and that the proposed written order submitted by the husband “accurately sets out the agreement of the parties as stated on the record on April 26, 2012.” The trial court entered the proposed order submitted by the husband as its final judgment.

On August 9, 2012, the wife filed a motion for a new trial or to alter, amend, vacate, or clarify the judgment. The trial court subsequently denied the motion, and the wife timely appealed to this court. On appeal, the wife claims the trial court erred 1) by awarding the Sand Mountain properties to the husband and leaving him sole discretion over the timing of the conveyance of those properties to the daughter; 2) by not altering, amending, or' clarifying the divorce judgment to provide for a reasonable manner and time for conveying the Sand Mountain properties to the daughter; and/or 3) by not vacating the judgment on the ground that no “meeting of the minds occurred” and/or on the grounds of inequity or duress.

Standard of Review

“ ‘ “[A] settlement agreement which is incorporated into a divorce decree is in the nature of a contract.” ’ ” Egres v. Egres, 85 So.3d 1026, 1031 (Ala.Civ.App. 2011) (quoting R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000), quoting in turn Smith v. Smith, 568 So.2d 838, 839 (Ala. Civ.App.1990)). When the facts material to the question whether a contract was formed are in dispute, the fact-finder must resolve that dispute. Sunnyland Mobile Homes, Inc. v. Thompson, 384 So.2d 1111 (Ala.Civ.App.1980). However, when the facts material to the question whether a contract was formed are undisputed, the existence of a contract is a question of law for the court. See, e.g., Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 479, 144 So. 86, 91 (1932) (noting that whether an offer has been accepted is a question of law for the court when the facts are undisputed and a question of fact for the fact-finder when the facts are disputed or subject to inferences that could be drawn). Further, whether a contract fails for indefiniteness is a question of law. White Sands Grp., L.L.C. v. PRS II, LEG, 998 So.2d 1042, 1052 (Ala.2008). This court reviews a trial court’s legal conclusions de novo. Henderson v. Henderson, 978 So.2d 36, 39 (Ala.Civ.App.2007).

Discussion

The husband contends that the parties reached an enforceable agreement and that the trial court properly enforced the agreement by incorporating it into the divorce judgment. As one of her grounds challenging the judgment, the wife contends that there was no enforceable agreement reached on April 26, 2012, because, she says, no “meeting of the minds” occurred regarding the disposition of the Sand Mountain properties.

“The elements of a valid contract include: ‘ “an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’”” Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala.2009) (quoting Ex parte Grant, 711 So.2d 464, 465 (Ala.1997), quoting in turn Strength v. Alabama Dep’t of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). “The rule is that the minds of the parties must meet as to all the essential features of a contract.” Air Conditioning Eng’rs, Inc. v. Small, 259 Ala. 171, 175, 65 So.2d 698, 703 (1953)(cit-ing Cochran Lumber Co. v. Paterson & Edey Lumber Co., 202 Ala. 366, 80 So. 448 (1918); Bissinger v. Prince, 117 Ala. 480, 23 So. 67 (1898); and Hodges v. Sublett, 91 Ala. 588, 8 So. 800 (1891)). “Under Alabama law, ‘whether parties have entered a contract is determined 'by reference to the reasonable meaning of the parties’ external and objective actions’.... ” Consolidated Pipe & Supply Co. v. City of Bessemer, 69 So.3d 182, 190 (Ala.Civ.App. 2010) (quoting SGB Consto'. Servs., Inc. v. Ray Sumlin Cooistr. Co., 644 So.2d 892, 895 (Ala.1994)).

“[Settlement agreements, like other agreements, are not valid when there has been no meeting of the minds with regard to the final terms of the agreement or when the parties have merely agreed to later agree.” Grayson v. Hanson, 843 So.2d 146, 150 (Ala.2002) (citations omitted). “ ‘[A] contract that “ ‘leavfes] material portions open for future agreement is nugatory and void for indefiniteness.’ ” ’ ” White Sands Grp., 998 So.2d at 1051 (quoting Miller v. Rose, 138 N.C.App. 582, 587-88, 532 S.E.2d 228, 232 (2000), quoting in turn MCB Ltd. v. McGowan, 86 N.C.App. 607, 609, 359 S.E.2d 50, 51 (1987), quoting in turn Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974)).

The record indisputably shows that both parties intended for their daughter to receive title to the Sand Mountain properties, and, thus, a provision reflecting that intent was material to any agreement. Counsel for the husband stated on the record on April 26, 2012, that the daughter would “ultimately” receive the Sand Mountain properties, but that statement did not specify any other terms, including the proposed manner and timing for the conveyance. Instead, the husband’s counsel stated that counsel for both parties “will work on the language to make [the transfer] happen.” The subsequent correspondence between counsel established that the parties were in conflict at all times over the terms for conveyance in the proposed order. Although the fact-finder must resolve any issue of disputed fact, the undisputed evidence before the trial court showed that no meeting of the minds occurred regarding the Sand Mountain properties at the April 26, 2012, hearing. Parties commonly reach oral agreements that will subsequently be reduced to writing by counsel and submitted to the trial court for incorporation into a judgment. This common situation differs from the present case, in which the evidence reflects that the parties did not reach an enforceable agreement but, instead, expressed their intention to reach an agreement regarding the Sand Mountain properties. When considered in conjunction with the undefined term “ultimately,” the statement that counsel would subsequently “work on the language to make [the transfer] happen” constituted only an expression that the parties intended to reach a subsequent agreement that obtained the desired result of having the Sand Mountain properties conveyed to the daughter. “ ‘[A]n agreement to enter into an agreement upon terms to be afterwards settled between the parties, is a contradiction in terms, and amounts to nothing.’ ” Coley v. Lang, 339 So.2d 70, 74 (Ala.Civ.App.1976) (quoting Elmore, Quillian & Co. v. Parish Bros., 170 Ala. 499, 503, 54 So. 203, 204 (1911)). In Coley, this court quoted with approval from Onyx Oils & Resins v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 817 (1951):

“ ‘In Nicholls v. Granger, 1896, 7 App. Div. 113, [116,] 40 N.Y.S. 99, 101, the court pertinently stated, “It is undoubtedly true that a stipulation to reduce a valid contract to some other form does not affect its validity, and that although it is in contemplation of the parties that a more formal contract shall be executed.... But it is an essential to the enforcement of such an informal contract that the minds of the parties should meet upon all the terms, as well as the subject matter, of the contract .... ”
“‘We cannot enforce a portion of an agreement which failed to materialize; nor can we supply the terms of this contract.’ ”

Coley v. Lang, 339 So.2d at 74.

The undisputed facts do not support a finding that a meeting of the minds occurred between the parties on April 26, 2012, and, therefore, the husband’s motion to enforce should not have been granted. The placement of a comma or period in the reporter’s transcript does not affect the result because the parties’ clearly expressed intention to subsequently agree upon the timing of the conveyance to the daughter applies to either interpretation. The parties contemplated material and essential terms of an agreement, but they never reached an agreement on the essential elements of the timing and manner of conveyance of the Sand Mountain properties to the daughter. The purported settlement agreement was an unenforceable agreement to later agree. The parties’ correspondence and testimonies after the announcement of the purported agreement revealed different intentions regarding the timing and manner for conveying the Sand Mountain properties. For these reasons, we hold that the trial court erred in granting the husband’s motion to enforce the settlement agreement regarding the Sand Mountain properties because the parties never reached an enforceable agreement on that issue.

We turn next to the question whether the remaining portions of the agreement announced on April 26, 2012, can be separately enforced, leaving only the issue of disposition of the Sand Mountain properties to be tried, or whether the matter must be remanded for a trial on all issues. The wife submits on appeal that the testimony before the trial court at the hearing on the motion to enforce established that the disposition of the Sand Mountain properties was interrelated with the other provisions of the proposed settlement, including but not limited to the amount of alimony to be awarded and the disposition of other property. She argues in her brief:

“A failure to have a meeting of the minds results in an invalid contract. See Pirtle v. Harris, 338 So.2d 1018 (Ala.Civ.App.1976). Because the agreement meant One thing in the mind of the wife and another in the mind of the husband, there was no agreement. Id. The terms of the conveyance-of property to the daughter were of the highest significance to the parties. With no agreement on that primary issue[,] the judgment of the trial court should be reversed and the case sent back for a trial on the whole divorce.”

Testimony presented at the motion-to-enforce hearing supports this argument; there is no evidence in the record before us to the contrary; and the husband does not argue that the agreement was severa-ble. Accordingly, we reverse the trial court’s judgment and remand this cause for further proceedings consistent with this opinion.

The motions for attorney fees filed by both parties are denied.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    M.F. v. W.W.
    2120486.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2013.

      Amardo Wesley Pitters, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

M.F. appeals from a judgment of the Butler Circuit Court (“the trial court”) vacating a December 1, 2008, judgment (“the 2008 judgment”) of the Butler Juvenile Court (“the juvenile court”) on the ground that the juvenile court did not have subject-matter jurisdiction. The trial court’s judgment also ordered M.F. to relinquish custody of T.P. (“the child”) to W.W. (“the father”) after a two-month “transition” period. M.F. is not the child’s mother; from the record, we are unable to discern her relationship to the child or the child’s parents. The father did not favor this court with a brief on appeal.

The record on appeal is sparse. Documents in the record indicate that the child was born in January 2000, and W.W. was adjudicated the child’s father in January 2002. Pleadings in this case indicate that, in the 2008 judgment, which is not included in the record on appeal, the juvenile court awarded legal and physical custody of the child to M.F.

On October 24, 2011, the father filed in the trial court a petition to modify custody of the child. In the petition, the father alleged that M.F. had repeatedly denied him access to the child, thereby, he asserted, preventing him from “developing] a meaningful parent-child relationship.” The father also filed in the trial court a motion seeking relief from the 2008 judgment, pursuant to Rule 60(b), Ala. R. Civ. P. The Rule 60(b) motion is not contained in the record on appeal. In its judgment, the trial court indicated that the father’s Rule 60(b) motion alleged that the juvenile court did not have subject-matter jurisdiction when it entered the 2008 judgment. The record on appeal does not contain any of the pleadings that had been filed in the juvenile-court action, and the trial court’s judgment does not set forth the factual basis for its determination that the juvenile court did not have subject-matter jurisdiction to enter the 2008 judgment.

The trial court’s judgment in this matter indicates that the issues raised in the father’s Rule 60(b) motion were “discussed,” and an e-mail from Renny D. McNaughton to Renee Jones, which is contained in the record, states that M.F.’s attorney had requested a transcript of any hearing on the motion, but that nothing was put on the record “because there was no hearing.” The e-mail does not identify McNaughton or Jones.

On appeal, M.F. contends that the trial court erred in vacating the 2008 judgment. Specifically, she asserts that a circuit court cannot grant relief from a void judgment entered by a juvenile court. M.F. cites no authority to support her argument, and she fails to develop her argument further, in contravention of Rule 28(a)(10), Ala. R.App. P. It is not the function of the appellate courts to develop, research, and support an appellant’s arguments. Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007); Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003).

Furthermore, easelaw indicates that a circuit court can vacate a judgment of another court in a subsequent independent action. See EB Invs., LLC v. Atlantis Dev., Inc., 930 So.2d 502, 508 (Ala.2005); McSween v. McSween, 366 So.2d 293, 295 (Ala.Civ.App.1979); and the Committee Comments on 1973 Adoption of Rule 60, Ala. R. Civ. P. (“The normal procedure to attack a judgment under this rule will be by motion in the court which rendered the judgment.... [I]f relief from the judgment is sought in some other court than the court which rendered the judgment, the party should bring an independent proceeding.”).

M.F. also argues that the trial court erred in granting the father’s petition to modify custody without holding an evidentiary hearing. As mentioned, the child was born in January 2000; therefore, he is approaching his 14th birthday. In her brief, M.F. states that the child has lived with M.F. since he was an infant. However, “this [c]ourt is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995).” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002). Moreover, in awarding custody to the father, the trial court stated that “it is undisputed that [the child’s mother, L.P.S.,] was [the child’s] custodial parent prior to the juvenile court’s order of December 1, 2008.” The trial court also noted that, in the present action, L.P.S. (“the mother”) had filed a pleading requesting that the father be awarded physical custody of the child and that the mother and the father be awarded joint legal custody of the child. Regardless, until the entry of the trial court’s judgment in this case, the father had never had custody of the child.

The procedural posture of this case is complicated. In its judgment, the trial court stated that, because it had granted the father’s Rule 60(b) motion for relief from the 2008 judgment, the hearing on the father’s petition to modify custody became “moot and no longer necessary.” The trial court further stated:

“[T]he circumstances presented in this matter do present [the trial court] with a few issues in regards to the when and how to get the minor child to [the] father. Further, this court is aware that the child has resided with [M.F.] for a substantial amount of time and has probably developed a relationship with [M.F.] significant enough to warrant visitation.”

The trial court crafted a “transition” schedule for the child. The judgment then provided:

“Once the minor child has transitioned into the home of [the father], [M.F.] will be entitled to whatever reasonable visitation upon which the parties can agree. Said visitation shall not interfere with the visitation privileges granted to the minor child’s mother, ... as set out by the document she filed with [the trial court] on or about January 27, 2012, unless the parties involved agree otherwise, in writing.”

It is axiomatic that the primary concern in cases involving child custody is determining the best interests of the child. See Hodgins v. Hodgins, 84 So.3d 116, 127-28 (Ala.Civ.App.2011). More than 60 years ago, our supreme court stated that “[i]n all [child-custody] proceedings the question of custody rests at last upon the determination of wherein lies the best interest of the children, the conflicting parental rights being secondary in importance.” Ex parte Ingalls, 256 Ala. 305, 309, 54 So.2d 288, 291 (1951). It has long been the law in Alabama that, regardless of the irregular or peculiar nature of the proceedings, once a dispute as to custody of a child comes within the equitable jurisdiction of the court, the court must, consistent with due process and our Rules of Civil Procedure, decide the custody dispute based on its determination as to the present and future welfare of the child. See, e.g., Jones v. Bryant, 214 Ala. 348,108 So. 68 (1926). That observation appears especially relevant in this case, in which the trial court assumed that, by vacating the 2008 judgment, it had eliminated any controversy regarding custody.

Before custody of a child can be awarded to a parent with whom the child — in this case, a 13-year-old child— has never resided or with whom the child has never developed a relationship, evidence must be adduced from which the trial court can determine whether such an award is in the child’s best interest. In a case involving a custody dispute, this court held:

A parent must have notice of the issues the court will decide in order to adduce evidence on those issues before the court, to give the court a basis from which a determination most beneficial to the child can be made. Otherwise, the child, rather than being helped, might even be harmed.’ ”

Ex parte Franks, 7 So.3d 391, 395 (Ala. Civ.App.2008) (quoting Thome v. Thome, 344 So.2d 165, 170 (Ala.Civ.App.1977)) (emphasis added). Furthermore, the desires of the father are not the paramount consideration. Even in cases in which a noncustodial parent has sought pendente lite custody, this court has held

“that due process requires that, in an action seeking to modify custody, the party seeking an award of pendente lite custody must ‘introduce evidence establishing that an award of pendente lite custody to him [or her is] in the best interest of the child.’ Ex parte Russell, 911 So.2d [719] at 725 [(Ala.Civ.App. 2005)]. See also Ex parte Norlander, 90 So.3d 183 (Ala.Civ.App.2012); Ex parte Couey, 110 So.3d 378 (Ala.Civ.App. 2012) (the allegations in the father’s motion for pendente lite custody were insufficient to warrant a transfer of pen-dente lite custody without first affording the mother notice and an opportunity to be heard).”

Ex parte Dean, 137 So.3d 341, 346 (Ala. Civ.App.2013) (footnote omitted).

We recognize that the circumstances in this case created a difficulty for the trial court in resolving the issues before it. Nonetheless, the trial court made a permanent award of custody of the child to the father without receiving evidence from which to determine that such an award was in the best interests of the child. This is not a case in which the mother and the father were married when the child was born, subsequently divorced, and then agreed to a change in custody to benefit the child. Despite knowing he was the father of the child for nearly 11 years, the father had never had custody of the child before filing his modification petition. Based on the allegations in that petition, it appears that the father had not yet “develop[ed) a meaningful parent-child relationship” with the child, even though the child was 11 years old at the time the petition was filed. Furthermore, based on the pleadings in the record, it is unclear whether the child has ever lived with the mother.

As this court noted in Franks, supra, without evidence from which to determine whether the award of custody to the father was in the child’s best interest, it is unclear whether the award could harm the child rather than benefit him. The trial court erred in awarding custody of the child to the father without first holding an evidentiary hearing.

For the reasons set forth above, we reverse that portion of the judgment awarding custody of the child to the father, and we remand the cause to the trial court for further proceedings. Based on the record before us, we are required to affirm that portion of the judgment vacating the 2008 judgment of the juvenile court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The Committee Comments on 1973 Adoption of Rule 60 state that an erroneous choice between filing a motion in the trial court that rendered the judgment from which relief is sought or bringing a separate action for relief from that judgment in another court "is not fatal to the party attacking the judgment. There is little procedural difference between the two methods of attack, and since nomenclature is unimportant, courts have consistently treated a proceeding in form an independent action as if it were a motion, and vice versa, where one but not the other was technically appropriate, and any procedural difference between them was immaterial in the case."


author: PITTMAN, Judge. MOORE, Judge,

text:
    C.M.R. v. L.W.
    2120626.
    Court of Civil Appeals of Aabama.
    Jan. 10, 2014.

      J.D. Hawke, Fairhope, for appellant.

      William E. Hollingsworth IV, Talladega, for appellee.
   PITTMAN, Judge.

C.M.R. (“the mother”), the mother of A.N.R. and A.C.R. (collectively referred to as “the children”), appeals from judgments entered by the Talladega Juvenile Court (“the juvenile court”) that, among' other things, determined that the children were dependent; awarded L.W., a woman who is not related to the mother or the children, custody of the children; and awarded the mother supervised visitation. We affirm.

Procedural History

In January 2013, C.J., the children’s maternal grandmother (“the maternal grandmother”), filed separate petitions alleging that each of the children was dependent and seeking custody. The maternal grandmother alleged that the children were dependent because, she said, the mother was unemployed and was unable to provide for the children financially; the father of the children (“the father”) had abandoned the children; and the Talladega County Department of Human Resources (“DHR”) had placed the children under a safety plan because, the maternal grandmother said, R.S., the mother’s boyfriend (“the boyfriend”), had been accused of sexually molesting the children. Later in January 2013, L.W. also filed separate petitions alleging that each of the children was dependent and seeking custody. L.W. alleged that the children were dependent because, she said, the mother had allowed the boyfriend to be around the children after he had been accused of sexually molesting the children and the mother had subjected the children to neglect by living in a residence with no electrical or water service for three months.

Although each of the four dependency petitions was docketed as a separate action, the juvenile court appointed a single guardian ad litem to protect the interests of the children in all four actions. The four actions were tried together in a single bench trial at which the juvenile court received evidence ore tenus. All the parties except the father appeared at trial and presented evidence. In April 2013, the juvenile court entered a judgment in each of the four actions; those judgments were, in all material respects, identical. The judgments determined that the children were dependent, awarded L.W. custody of the children, awarded the mother supervised visitation with the children, and denied the maternal grandmother’s custody claim. The juvenile court did not make any specific findings of fact or state its rationale for determining that the children were dependent. Following the entry of the judgments, the mother timely appealed. Thereafter, the juvenile court certified that the record was adequate for appellate review pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P.

Factual Background

The children are both girls. A.N.R., the older child, was born in 2004, and A.C.R., the younger child, was born in 2006. The mother testified that, when she was pregnant with the older child, she had waited until three days after her water had broken before she went to a hospital and that the older child had been delivered by emergency Cesarian section. The mother also testified that DHR had become involved with the family when the mother was leaving the hospital with the older child following her birth because someone had reported to DHR that the mother was taking the older child to an unsafe environment. According to the mother, DHR again became involved with the mother, the father, and the older child in 2005 because the mother and the father were both abusing drugs. The mother admitted that she had continued to abuse drugs while she was pregnant with the younger child and that she had left Talladega County before DHR completed its investigation regarding her drug use. The mother further testified that the younger child had been born in Limestone County and that the father had never been involved in the younger child’s life.

The mother testified that, sometime before October 2011, her paternal grandparents had purchased a mobile home (“the first mobile home”) in Sylaeauga and had allowed her, the children, and the boyfriend to live in it. The mother further testified that, in October 2011, DHR had placed the children under a safety plan because someone had accused the boyfriend of sexually molesting the children and that the safety plan had required the boyfriend to move out of the first mobile home and had prohibited the mother from allowing the boyfriend to be around the children pending the completion of DHR’s investigation of the accusations against him. The mother also testified that, sometime after the boyfriend had moved out of the first mobile home and before May 2012, she had become unemployed and that, for several months, the only source of electricity at the first mobile home was an extension cord running from a neighbor’s house to the first mobile home.

The mother testified that, sometime before May 2012, DHR had orally informed her that it had closed its investigation regarding the accusations against the boyfriend and that she would receive written confirmation that DHR had closed its investigation in the mail; however, she admitted that she had never received written confirmation that DHR had closed its investigation regarding those accusations. The mother further testified that, in May 2012, her paternal grandparents had “kicked [her] out” of the first mobile home. The mother initially testified that she did not know why her paternal grandparents had compelled her to vacate the first mobile home in May 2012. However, she subsequently admitted that they had done so because the boyfriend had been coming there, although she insisted that he had been coming there “to get his things” and that “[h]e was not living there.” According to the mother, when her paternal grandparents compelled her to vacate the first mobile home, “nobody would take [her] in” except the boyfriend, so she and the children moved into the boyfriend’s mobile home in May 2012. The mother testified that she and the children had lived with the boyfriend at his mobile home from May 2012 until someone accused the boyfriend of molesting the children again in early December 2012.

The mother testified that, as a result of the December 2012 accusations that the boyfriend was sexually molesting the children, DHR had again become involved with the family and that the mother had asked L.W., a Mend from church with whom the mother had been close until the mother had moved into the boyfriend’s mobile home, to care for the children pursuant to a safety plan developed by DHR until the mother “could get on [her] feet.” The mother also testified that, in early December 2012, she had moved out of the boyfriend’s mobile home; that, when she moved out of the boyfriend’s mobile home, “[her] family would not help [her]” and had “abandoned” her; and that, for a couple of months after she had moved out of the boyfriend’s mobile home, she had been “on the streets living from couch to couch with church members and friends.” However, according to the mother, in February 2013, the maternal grandmother, who lives in Mobile County, came to Talladega County and took the mother to the maternal grandmother’s house to live. The mother testified that she was still living with the maternal grandmother when the actions were tried in March 2013, that she had gotten a job working as a housekeeper for the same company that employed the maternal grandmother, and that she was earning $10 per hour when the actions were tried.

Analysis

We will consider the mother’s second argument before considering her first argument. The mother’s second argument is that the judgments of the juvenile court should be reversed because, she says, the juvenile court’s determination that the children were dependent is not supported by clear and convincing evidence.

“ ‘Our standard of review of dependency determinations is well settled.
“ ‘ “A finding of dependency must be supported by clear and convincing evidence. § 12 — 15—65(f)[, Ala.Code 1975] []; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”
‘J.S.M. v. P.J., 902 So.2d 89, 95 (Ala. Civ.App.2004). This court has stated that clear and convincing evidence is
“ ‘ “ ‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
““‘§ 6-ll-20[ (b) ](4), Ala.Code 1975.”
‘L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App.2002).’
“L.A.C. v. T.S.C., 8 So.3d 322, 326-27 (Ala.Civ.App.2008).
“ “We are not allowed to substitute our judgment for that of the trial court, even when this court might have reached a different result, unless the trial court’s resolution of the facts is plainly and palpably wrong. L.R.M. v. DM., 962 So.2d 864, 873-74 (Ala.Civ.App.2007) (citing Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala. Civ.App.1994), quoting in turn Young v. Young, 376 So.2d 737, 739 (Ala.Civ. App.1979)). “‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ ” Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004) (quoting Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003)). When addressing the inability of an appellate court to reweigh the evidence and substitute its judgment for that of the trial court, our supreme court recognized:
““The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited — factfinding.”
“Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000).’
“J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 39-40 (Ala.Civ. App.2008).
“Section 12-15-102(8)a., Ala.Code 1975, defines a dependent child as:
“‘[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“ ‘1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“ ‘2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“ ‘6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“In determining whether a child is dependent, the juvenile court
‘“may consider any competent evidence relevant to the ability or willingness of the parent to discharge his or her responsibilities to the child
“M.E. v. Shelby County Dep’t of Human Res., 972 So.2d 89, 100-01 (Ala.Civ.App. 2007).

J.L. v. W.E., 64 So.3d 631, 634-36 (Ala.Civ. App.2010).

Section 12-15-102(8)a.l, Ala.Code 1975, provides, among other things, that a child whose parent allows the child to be subjected to abuse is a dependent child. The record establishes that, after the boyfriend had been accused of sexually molesting the children in October 2011, the mother moved into the boyfriend’s mobile home with the children in May 2012 and that the boyfriend was again accused of sexually molesting the children in December 2012. However, the record contains no evidence tending to prove that either the October 2011 or December 2012 accusations that the boyfriend had sexually molested the children were true.

None of the parties called the DHR employees who had investigated the allegations that the boyfriend had sexually molested the children to testify. L.W. did call Jennifer Howard, the DHR social worker who had been assigned to handle the children’s cases in February 2013, to testify. However, Howard did not have personal knowledge regarding DHR’s investigation of the accusations against the boyfriend. Although Howard had reviewed all DHR’s records regarding the children, an objection to her testifying to information that she had gleaned from her review of those records was sustained:

“THE COURT: This is the way I’ve always understood the law, and if I’m wrong on the law, then I’m wrong on it, but when you want to go into DHR’s records, you’re supposed to subpoena [the records] before court. There’s supposed to be a motion for protective order filed. We’re supposed to have a hearing on that motion before trial. The Court’s supposed to take all the records back into his office, go through it, do an in camera inspection and make a determination of what’s relevant and what’s not relevant. And then everybody in the case is supposed to have an opportunity to review all those records that the Court has deemed to be relevant before the trial of the case. Has that happened? Then it’s not allowed.”

Moreover, none of the parties called the boyfriend or the children to testify. The mother was the only witness called to testify who might have had personal knowledge concerning whether the boyfriend had sexually molested the children, and she testified that she did not have any knowledge regarding whether the allegations that the boyfriend had molested the children were true or false. Accordingly, because the record does not contain any evidence tending to prove that the boyfriend had indeed sexually molested the children, the record necessarily does not contain any evidence tending to prove that the mother had allowed the children to be subjected to sexual molestation by the boyfriend. Therefore, insofar as the dependency petitions alleged that the children were dependent on the ground that the mother had allowed the children to be subjected to sexual molestation by the boyfriend, the juvenile court could not have properly concluded that the children’s dependency had been established by clear and convincing evidence.

Section 12-15-102(8)a.2, Ala.Code 1975, provides, among other things, that a child who is without a parent able to provide for the care and support of the child is a dependent child. Moreover, § 12-15-102(8)a.6, Ala.Code 1975, provides that a child whose parent is unable to discharge his or her responsibilities to and for the child is a dependent child. The mother admitted that she had been unemployed from at least the spring of 2012 through January 2013; that, when she had moved out of the boyfriend’s mobile home in December 2012, “[her] family would not help [her]” and had “abandoned” her; and that, consequently, from approximately the first week in December 2012 until the maternal grandmother took her to the maternal grandmother’s house sometime in February 2013, the mother had been “on the streets living from couch to couch with church members and friends.” Moreover, the mother admitted that, in December 2012, she had asked L.W. to take the children and care for them pursuant to a safety plan developed by DHR until the mother “could get on [her] feet.” Furthermore, although the mother asserted at trial that the children had never been dependent, she has conceded on appeal “that the children were dependent at the time the [dependency] petitions were filed [in January 2013]” (The mother’s principal brief at pp. 35 and 40), and merely asserts that the children were no longer dependent when the actions were tried in March 2013.

Although a party claiming that a child is dependent must prove that the child is dependent by clear and convincing evidence, an appellate court applies the ore tenus rule in reviewing a juvenile court’s judgment regarding a claim that a child is dependent. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1185 (Ala.Civ. App.2007) (“[I]n eases involving the termination of parental rights our appellate courts do not apply the clear-and-convincing-evidence standard of proof utilized by trial courts but, instead, use a settled standard of appellate review — the ore tenus rule.”). “Applying that standard of review, we address the question whether the juvenile court could have concluded that the children’s dependency had been established by clear and convincing evidence.” P.D. v. S.S., 67 So.3d 128, 132 (Ala.Civ. App.2011).

“Because appellate courts do not weigh evidence, particularly when ‘the assessment of the credibility of witnesses is involved,’ Knight[ v. Beverly Health Care Bay Manor Health Care Ctr.], 820 So.2d [92] at 102 [ (Ala.2001) ], we defer to the trial court’s factual findings. ‘The ore tenus rule reflects this deference; it accords a presumption of correctness to the trial court’s findings because of that court’s unique ability to observe the demeanor of witnesses.’ Id.; see also Fitzgerald v. Jeter, 428 So.2d 84, 85 (Ala.Civ.App.1983), and Ex parte Farm, 810 So.2d 631, 633 (Ala.2001).”

J.C., 986 So.2d at 1185. When, as in the present case, a juvenile court makes no specific findings of fact, “[an appellate court] will assume that the [juvenile court] made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Moreover, “[t]he ore tenus rule applies to those implicit findings, and, therefore, we must presume that those implicit findings are correct unless they are plainly and palpably wrong.” Engineered Cooling Seros., Inc. v. Star Serv., Inc. of Mobile, 108 So.3d 1022, 1027 (Ala.Civ.App.2012) (citing Transamerica, 608 So.2d at 378). Furthermore, under the ore tenus rule, “appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.” Ex parte Pie-lach, 681 So.2d 154,155 (Ala.1996).

The mother and the maternal grandmother both testified that the mother had gotten a job with the maternal grandmother’s employer sometime after she had begun living with the maternal grandmother in February 2013. The mother testified that she was earning $10 per hour when the actions were tried in March 2013, and both the mother and the maternal grandmother testified that the maternal grandmother had been providing the mother with a place to live since sometime in February 2013. That testimony (“the rehabilitation testimony”) tends to prove that the mother, with the assistance of the maternal grandmother, was financially able to care for and support the children and to provide them with a place to live when the actions were tried in March 2013.

However, the juvenile court was entitled to evaluate the credibility of the rehabilitation testimony.

“In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief. Os- trander v. Ostrander, 517 So.2d 3 (Ala. Civ.App.1987). Further, in determining the weight to be accorded to the testimony of any witness, the trial court may consider the demeanor of the witness and the witness’s apparent candor or evasiveness. Ostrander, supra-It is not the province of this court to override the trial court’s observations. Brown[ v. Brown, 586 So.2d 919 (Ala.Civ.App. 1991) ].”

Woods v. Woods, 653 So.2d 312, 314 (Ala. Civ.App.1994). Thus, the juvenile court, as the sole judge of the facts and of the credibility of the witnesses, see Woods, supra, could have found that none of the rehabilitation testimony was credible and could have rejected it on that ground. In that regard, we note that none of the rehabilitation testimony was corroborated by any other evidence. If the juvenile court rejected all the rehabilitation testimony on the ground that it was not credible, it could have found that the mother was still unemployed and was still “on the streets living from couch to couch with church members and Mends” as she had been when the dependency petitions were filed in January 2013. The mother has conceded on appeal that the children were dependent due to the circumstances existing when the dependency petitions were filed. Thus, if the juvenile court rejected all the rehabilitation testimony on the ground that it was not credible, the juvenile court could have properly concluded that the circumstances existing when the actions were tried were no different than they had been in January 2013, when, the mother has conceded, the children were dependent. Accordingly, if the juvenile court rejected all the rehabilitation testimony on the ground that it was not credible, the juvenile court could properly have concluded that the record established by clear and convincing evidence that the children were dependent not only when the dependency petitions were filed but also when the actions were tried. See § 12-15-102(8)a.2; § 12-15-102(8)a.6; J.L., supra; J.C., supra; and Woods, supra.

Moreover, even if the juvenile court did not reject all the rehabilitation testimony on the ground that it was not credible, the juvenile court was entitled to “ ‘ “consider the past history of the family as well as the evidence pertaining to current conditions” ’ ” in determining whether the children were dependent when the actions were tried, A.M.F. v. Tuscaloosa Cnty. Dep’t of Human Res., 75 So.3d 1206, 1213 (Ala.Civ.App.2011) (quoting earlier cases), and, based on the evidence regarding the past history of the family, the juvenile court “could have determined that, to the extent the mother may have allegedly improved her [ability to provide care, support, and housing for the children], those efforts were merely last-minute efforts undertaken in anticipation of the impending [dependency] trial,” id., that would not continue following the entry of the judgments in the dependency actions. For example, the mother testified that, when her paternal grandparents compelled her to vacate the first mobile home in May 2012, “nobody would take [her] in” except the boyfriend. The juvenile court could have found from that testimony that the mother had asked the maternal grandmother to let the mother and the children live with the maternal grandmother in May 2012 and that the maternal grandmother had refused, which would indicate that the mother and the maternal grandmother have a very poor relationship. Moreover, the mother testified that, when she moved out of the boyfriend’s mobile home in December 2012, “[her] family would not help [her]” and had “abandoned” her and that, consequently, she had been “on the streets living from couch to couch with church members and friends” in December 2012 and January 2013. The juvenile court could have found from that testimony that, in December 2012, the mother had asked the maternal grandmother to let the mother live with the maternal grandmother and that the maternal grandmother had refused, which would indicate that the mother and the maternal grandmother have a very poor relationship. In addition, it is undisputed that, in December 2012, instead of asking the maternal grandmother, the mother had asked L.W. to care for the children pursuant to a safety plan developed by DHR, which tends to prove that the mother and the maternal grandmother have a very poor relationship.

Furthermore, although the maternal grandmother testified that she had a great relationship with the mother and the children, she subsequently admitted that the mother had not told the maternal grandmother where the mother and the children had moved when they had vacated the first mobile home, that the mother had not told the maternal grandmother how the maternal grandmother could contact the mother after the mother and the children vacated the first mobile home, and that the children had never spent the night at the maternal grandmother’s house. When the juvenile court confronted the maternal grandmother with the discrepancy between her testimony that she had a great relationship with the mother and the children, on the one hand, and her testimony that she neither knew where the mother and the children had gone after they had vacated the first mobile home nor knew how to contact them and that the children had never spent the night at the maternal grandmother’s house, on the other hand, the maternal grandmother ultimately admitted that she and the mother did not have a good relationship:

“THE COURT: ... [Yjou’re testifying to these things that just don’t make any sense to me.
“THE WITNESS: You’re right, it doesn’t make sense.
“THE COURT: And when it doesn’t make sense to me, I have to call you out on it. I don’t like when people get up here and testify to things that just don’t seem normal to me. They don’t add up. I add two and two together and come up with four, and your testimony is like adding two and 11 together and coming up with four. All I asked was did you think it was normal for you to have such a good relationship with your daughter and such a good relationship with your grandchildren for you not to know where they’re living? And you said you didn’t think it was normal, and then you started making excuses. And I asked you do you still live in the same place being that they could have bought a stamp and wrote you a letter. They could have spent a dollar at a convenience store and called you. Don’t make excuses for your daughter’s behavior when all it takes is a dollar to correct it. I don’t know anybody who has a great relationship with their child and their grandchildren that if they’re going to move they’re not going to let their parents know where they’re going. That’s a strained relationship at best, and that’s not what you’ve testified to up here....
“THE COURT: My question to you is ... how can you testify in court that you have an outstanding relationship with your grandchildren if they’ve never spent the night in your home?
“THE WITNESS: I just never thought of that as a requirement.
“THE COURT: Then how do you establish that outstanding relationship? I mean, do you know how many teeth the tooth fairy has put up under their pillow?
“THE WITNESS: I can’t even count the number of teeth that my other grandchildren that I’m with all the time.
“THE COURT: But that’s what I’m saying. You see the changes in your other grandchildren. You know when they lose their front teeth and they’ve got a gap that makes them look funny. Do you know that about these grandchildren?
“THE WITNESS: I know they lose their teeth.
“THE COURT: But do you know that when it occurs?
■ “THE WITNESS: I might in the future if they could come and live with me.
“THE COURT: Well, now, you testified in the past. We’re not fortune tellers. I’m talking about the past here.
“THE WITNESS: I just don’t consider our relationship like strained or anything.
“THE COURT: So when your child moves with your two grandchildren and you don’t know where they live and you don’t have a contact number with them, you think that’s a good relationship.
“THE WITNESS: No, probably not.
“THE COURT: Probably?
“THE WITNESS: Okay, no.”

The juvenile court also could have considered the timing of the mother’s going to live with the maternal grandmother and the timing of the maternal grandmother’s assisting the mother in obtaining a job with the company that employed the maternal grandmother. The mother testified that, in May 2012, she and the children had needed a place to live, yet she testified that “nobody would take [her] in” except the boyfriend. The mother testified that, in May 2012, she was unemployed, yet there is no evidence in the record indicating that the maternal grandmother attempted to assist the mother in obtaining a job with the maternal grandmother’s employer in May 2012. Likewise, the mother testified that she was unemployed and had nowhere to live when she moved out of the boyfriend’s mobile home in December 2012, yet “[her] family would not help [her]” and had “abandoned” her. The mother further testified that, because her family would not help her, she had been “on the streets living from couch to couch with church members and friends” in December 2012 and January 2013, yet, in February 2013, shortly after L.W. had filed her dependency petitions, the mother suddenly went to live with the maternal grandmother and the maternal grandmother assisted the mother in obtaining a job with the maternal grandmother’s employer. The juvenile court could have found from the timing of the mother’s going to live with the maternal grandmother and the timing of the maternal grandmother’s assisting the mother with obtaining a job with the maternal grandmother’s employer that the mother and the maternal grandmother acted as they did in February 2013 as a last-minute effort to defeat L.W.’s custody claim.

Thus, based on all the evidence regard7 ing the past history of the mother’s family, the juvenile court could have found that the mother and the maternal grandmother have a very poor relationship; that, in February 2013, they had a common goal, i.e., defeating L.W.’s custody claim; that, in an effort to defeat L.W.’s custody claim, the mother and the maternal grandmother had entered into an alliance of convenience pursuant to which the maternal grandmother had agreed to allow the mother to live with the maternal grandmother and to assist the mother in obtaining a job with the mother’s employer; and that, once the entry of the judgments in the dependency actions would eliminate the need for the alliance of convenience between the mother and the maternal grandmother, the alliance would dissolve, the maternal grandmother would no longer allow the mother to live in the maternal grandmother’s house, and the maternal grandmother would no longer provide the mother with financial assistance. See A.M.F., supra. Based on those findings, the juvenile court could have concluded that, despite the rehabilitation testimony, the record nonetheless established by clear and convincing evidence that the children were still dependent when the actions were tried. See § 12-15-102(8)a.2; § 12-16-102(8)a.6; A.M.F., supra; J.L., supra; J.C., supra; and Woods, supra.

We will now consider the mother’s first argument. The mother’s first argument is that the actions before us in this appeal were custody disputes rather than dependency actions and that, therefore, under Ex parte Terry, 494 So.2d 628 (AJa. 1986), she was entitled to custody of the children unless the evidence established that she was an unfit parent. In Terry, the supreme court stated:

“ ‘The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded in the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of such misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question. Hanlon v. Mooney, 407 So.2d 559 (AJa.1981).’ ”

494 So.2d at 632 (quoting Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983)). However, in P.D., 67 So.3d at 131-32, this court stated:

“Terry applies in child-custody disputes between a parent and nonparent; it does not apply if the child or children, the custody of whom is disputed, have been found to be dependent, as is the case here. See W.T.H. v. M.M.M., 915 So.2d 64, 70 (Ala.Civ.App.2005) (discussing the abundance of caselaw regarding the distinction between child-custody disputes and the dispositional phase of a dependency proceeding). Therefore, because the juvenile court found the children to be dependent, no finding of unfitness was necessary. See Anonymous v. Anonymous, 504 So.2d 289, 291 (Ala.Civ. App.1986) (stating that a determination that a parent is unfit is unnecessary to award custody to a nonparent after a finding that a child is dependent).”

(Emphasis added.)

The actions that are before us in the present appeal were initiated by dependency petitions in which the maternal grandmother and L.W. alleged that the children were dependent. L.W. asserted that the children were dependent at trial and introduced evidence at trial tending to prove that the children were dependent. Moreover, the juvenile court expressly determined in its judgments in all four actions that the children were dependent. In addition, the mother has conceded on appeal that the children were dependent when the four dependency petitions were filed. Finally, we have concluded that, based on the record that was before it, the juvenile court could reasonably have determined that the children’s dependency had been established by clear and convincing evidence. See §§ 12-15-102(8)a.2 and 12-15-102(8)a.6. Accordingly, the mother’s argument that the actions before us in the present appeal were custody disputes rather than dependency actions has no merit. See P.D., supra. Therefore, we affirm the judgments of the juvenile court.

AFFIRMED.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur in the result, without writings.

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

On appeal, C.M.R. (“the mother”) contends that the juvenile court used the wrong legal standard to determine the dependency of the children and that the record does not contain sufficient evidence to support the dependency findings made by the juvenile court. Taking the issues out of order, I first conclude that we cannot consider the issue as to the sufficiency of the evidence because the mother failed to file a postjudgment motion directed to that alleged error.

Rule 1(B), Ala. R. Juv. P., requires the filing of a postjudgment motion in a juvenile case when such a motion is required by the Alabama Rules of Civil Procedure. Under Rule 52(b), Ala. R. Civ. P., in cases in which a judge, sitting without a jury, enters a judgment containing no specific findings of fact, a litigant challenging the sufficiency of the evidence to support that judgment must file a postjudgment motion raising that issue in order to preserve it for appeal. See New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004).

In this case, the juvenile court did not make any specific findings of fact as to the grounds for its findings of dependency. The petitioners alleged several alternative grounds for dependency, and the juvenile court could have found the children dependent based on any of those grounds, or even on other grounds supported by the evidence that were not alleged in the petitions. See M.M.S. v. D.W., 735 So.2d 1230, 1232 (Ala.Civ.App.1999) (“However, contrary to the mother’s argument, the juvenile court can find a child dependent based upon grounds not asserted in the dependency petition. Martin v. State Dep’t of Human Resources, 502 So.2d 769, 770 (Ala.Civ.App.1987) (stating that this court did not need to ‘find that the Department [of Human Resources] proved the specific grounds alleged in the petitions because we [found] that the juvenile court had other sufficient grounds for determining that the children are dependent.’).”). By filing a postjudgment motion attacking the sufficiency of the evidence, the mother would have provided the juvenile court “an opportunity to carefully review the evidence and to perfect the issues for review on appeal.” Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986). Without a postjudgment motion, however, the juvenile court was not provided an opportunity to reconsider the evidence, to clarify its findings, to correct any errors made in its judgments, or to crystallize the issues for appellate review. See id.

In an analogous case from the Court of Criminal Appeals, N.L.H. v. State, 873 So.2d 258 (Ala.Crim.App.2003), a juvenile court adjudicated a child to be delinquent without making specific findings of fact. The juvenile filed a postjudgment motion but did not challenge the weight or sufficiency of the evidence of delinquency. The juvenile attempted to argue that point on appeal, but the Court of Criminal Appeals held that the failure of the juvenile to raise the issue in a postjudgment motion precluded appellate review. To support its position, the court cited Ex parte James, 764 So.2d 557 (Ala.1999), a plurality opinion, the reasoning and holding of which our supreme court later adopted in Stewart, 905 So.2d at 801-02. It follows that, under Stewart, a mere adjudication of dependency does not equate to a specific finding of fact that will excuse the filing of a post-judgment motion raising the issue of the sufficiency of the evidence to support the finding of dependency.

Although I do not agree with the standard of review used by the main opinion, see Ex parte Mclnish, 47 So.3d 767 (Ala. 2008) (establishing the standard of review for all judgments required to be supported by clear and convincing evidence), the manner in which it is applied, see Payne v. Payne, 48 So.3d 651 (Ala.Civ.App.2010) (holding that ore tenus rule requires party with burden of proof to present some positive evidence supporting claim and factual finding cannot be based solely on determination that opposing party did not testify credibly in denying the claim), or, for that matter, any of the analysis employed by the main opinion, I agree that the judgments cannot be reversed due to a lack of sufficient evidence because, as discussed above, the mother failed to file a post-judgment motion challenging the sufficiency of the evidence.

As to the mother’s second issue, I find río basis in the record for concluding that the juvenile court used the best-interests-of-the-child standard in' finding the children dependent, as the mother argues. The mother also incorrectly asserts that the juvenile court was required to make an express finding of unfitness under Ex parte Terry, 494 So.2d 628 (Ala.1986), in order to sustain a finding of dependency; however, our caselaw has consistently rejected that point, as the main opinion explains. 144 So.3d at 278. In many cases, such as this one, in which children are alleged to be dependent because of the conduct, condition, or circumstances of the custodial parent, a finding of unfitness is subsumed in a finding of dependency, so an express finding of unfitness would be superfluous. See F.G.W. v. S.W., 911 So.2d 1, 6-7 (Ala.Civ.App.2004) (Murdock, J., dissenting).

      . Neither the father nor the maternal grandmother filed a notice of appeal.

      .The record does not indicate who reported to DHR that the mother was taking the older child to an unsafe place, does not indicate where the mother intended to take the older child on that occasion, and does not indicate why the reporter considered that place unsafe. The record indicates that DHR removed the older child from the mother’s custody when the older child was a “toddler”; however, the word “toddler” implies that this occurred when the child was learning to walk rather than when she was a newborn baby. Assuming that is the case, the record does not indicate what, if any, action DHR took as a result of the report that the mother was taking the older child from the hospital to an unsafe place.

      . The record does not indicate who accused the boyfriend of sexually molesting the children in October 2011.

      . The record does not indicate who accused the boyfriend of sexually molesting the children in December 2012.

      “3The requirement that a finding of dependency must be supported by clear and convincing evidence before the dis-positional phase of a dependency proceeding is now codified at § 12-15-311(a), Ala.Code 1975.”

      . Later in the mother's testimony, the juvenile court asked the mother why she had not gone to live with the maternal grandmother in December 2012, and, in response, the mother testified that the maternal grandmother had tried to persuade the mother to come live with the maternal grandmother when the mother needed a place to live in December 2012 and that the mother had declined because she was afraid that DHR would accuse her of abandoning the children if she moved out of Talladega County. However, the mother’s testimony that the maternal grandmother had tried to persuade the mother to come live with the maternal grandmother in December 2012 is contradicted by the mother’s testimony that, when she needed a place to live in December 2012, “[her] family would not help [her]” and had "abandoned” her. The juvenile court, as the sole judge of the facts and of the credibility of the witnesses, see Woods, supra, could have resolved that conflict in the mother’s testimony by finding that the maternal grandmother had refused to help the mother in December 2012. Moreover, the mother’s moving from Talladega County to live with the maternal grandmother in February 2013 belies the mother’s testimony that she had not done so in December 2012 because she was afraid DHR would accuse her of abandoning the children.

        . Although, in its judgments, the juvenile court expressly denied the petitions of the maternal grandmother, it is apparent from the overall substance of the judgments, as well as from comments made by the juvenile court during the dispositional phase of the dependency proceedings, that the juvenile court merely intended to deny the maternal grandmother’s claim for custody, not to dismiss her dependency allegations. See Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App. 1991) ("Judgments are to be construed like other written instruments. The rules applicable to the construction and interpretation of judgments are those applicable to the construction and interpretation of contracts. Hanson v. Hearn, 521 So.2d 953 (Ala.1988). Separate provisions of judgments, like provisions of contracts, should be construed in pari materia, and the entire judgment — all provisions considered — should be read as a whole in the light of all the circumstances, as well as of the conduct of the parties. Id.”).


author: DONALDSON, Judge. THOMAS, Judge, PITTMAN, Judge,

text:
    R.W.R., Jr. v. R.M.
    2121014.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2014.
    Krystal G. Padula of Padula Law Firm, P.C., Gadsden, for appellant.
    Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.
   DONALDSON, Judge.

R.W.R., Jr. (“the father”), appeals from a judgment of the Etowah Juvenile Court (“the juvenile court”) terminating his parental rights to M.N.R. (“the child”). Because the juvenile court lacked subject-matter jurisdiction to enter the judgment, we dismiss the appeal as being from a void judgment.

On April 17, 2013, R.M. (“the mother”) filed a petition to terminate the father’s parental rights to the child in the juvenile court. In the petition, the mother alleged that the father is a convicted sex offender, that he had abandoned the child, that he had failed to provide for the material needs of the child, that he had failed to maintain regular visits with the child, and that he had failed to adjust his circumstances to meet the needs of the child. The mother did not allege that the child was dependent, delinquent, or in need of supervision.

The juvenile court held an ore tenus hearing on July 23, 2013, at which it received the testimony of the mother, the father, and the child’s maternal grandmother. On July 31, 2013, the juvenile court entered a judgment terminating the father’s parental rights. The father filed a motion to alter, amend, or vacate the judgment on August 12, 2013. That motion was denied by operation of law on August 26, 2013. Thereafter, the father filed a timely appeal to this court.

Neither party has raised the issue whether the juvenile court had subject-matter jurisdiction to enter judgment on the mother’s petition to terminate the father’s parental rights to the child. However, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987).

Section 12-15-114, Ala.Code 1975, provides, in pertinent part:

“(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of . supervision. A dependency action shall not include a custody dispute between parents. Juvenile cases before the juvenile court shall be initiated through the juvenile court intake office pursuant to this chapter.
“(c) A juvenile court shall also exercise exclusive original jurisdiction of proceedings arising out of the above juvenile court proceedings, including, but not limited to, each of the following:
“(2) Proceedings for termination of parental rights, as this term is defined in subdivision [ (14) ] of Section 12-15-301 [, Ala.Code 1975].”

As this court has previously held, “unless the termination-of-parental-rights case arises out of one of the enumerated proceedings in [§ 12-15-114(a), Ala.Code 1975,] the juvenile court cannot exercise jurisdiction over that case unless some other jurisdictional statute expressly so provides.” W.B.B. v. H.M.S., 141 So.3d 1062, 1064 (Ala.Civ.App.2013).

In this case, the mother’s petition to terminate the parental rights of the father to the child did not arise out of juvenile-court proceedings in which the child was alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. In her petition, the mother did not allege that the child had committed a delinquent act, was dependent, or was in need of supervision. Rather, the mother’s petition asserted the grounds for termination of the father’s parental rights and alleged the existence of various factors for the juvenile court to consider in determining whether to terminate the father’s parental rights. See § 12-15-319(a)(l) through (12), Ala.Code 1975.

Because the juvenile court did not acquire jurisdiction over the mother’s petition pursuant to § 12-15-114(c), the juvenile court’s judgment terminating the father’s parental rights was entered without subject-matter jurisdiction. The judgment is, therefore, void. A void judgment will not support an appeal. See generally Russell Cnty. Dep’t of Human Res. v. K.W., 87 So.3d 1217 (Ala. Civ.App.2012). The appeal is dismissed with instructions for the juvenile court to vacate its judgment terminating the parental rights of the father.

APPEAL DISMISSED WITH INSTRUCTIONS.

MOORE, J., concurs.

THOMAS, J., concurs specially.

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

THOMAS, Judge,

concurring specially.

Consistent with the views I expressed my special writing in AH. v. B.C., [Ms. 2120877, Nov. 15, 2013] — So.3d -, - (Ala.Civ.App.2013)(Thomas, J., concurring specially), I concur specially.

PITTMAN, Judge,

dissenting.

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

THOMPSON, P.J., concurs.


author: MOORE, Judge.

text:
    Reba YARBROUGH v. D. Max YARBROUGH.
    2130003.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2014.

      Melody Brooks Walker, Anniston, for appellant.
    Wendy Ghee Draper of Ghee & Draper, Anniston, for appellee.
   MOORE, Judge.

Reba Yarbrough (“the wife”) appeals from a judgment of the Calhoun Circuit Court divorcing her from D. Max Yar-brough (“the husband”) and dividing the marital property pursuant to a prenuptial agreement entered into by the parties. We reverse the trial court’s judgment.

The parties have previously been before this court. In Yarbrough v. Yarbrough, 142 So.3d 637, 638 (Ala.Civ.App.2013), this court outlined the procedural history of the case as follows:

“On December 13, 2010, the wife filed a complaint for a divorce, asserting that she and the husband had married on December 6, 1996, that no children had been born of the marriage, that the husband had committed acts of adultery, and that the marriage was irretrievably broken. The wife requested that the trial court grant her a divorce, equitably divide the marital property, and award her alimony and attorney’s fees.
“The husband filed an answer and a counterclaim for a divorce, asserting, among other things, that, on December 2, 1996, the parties had entered into a prenuptial agreement and that it governed the distribution of the parties’ property. The husband requested that the trial court grant the parties a divorce based on the irretrievable breakdown of the marriage and incompatibility of temperament, ratify and confirm the prenuptial agreement and direct the parties to abide by that agreement, and award the husband attorney’s fees pursuant to the prenuptial agreement. The husband attached the prenuptial agreement as an exhibit to his pleading.
“On June 15, 2012, the trial court entered a judgment of divorce. In that judgment, the trial court found, among other things, that the prenuptial agreement was valid and enforceable, that, pursuant to the terms of the prenuptial agreement, the parties had agreed that their marriage would not alter their legal rights to dispose of their separate estates, that the parties had maintained separate checking accounts during the marriage, and that, before and during the marriage, the husband had owned and operated a business known as ‘Max Yarbrough Pools and Construction’ (‘the business’).
“Based on those findings, the trial court awarded the husband full right, title, ownership, possession, and control in and to the business, including the name, assets, accounts, investments, and receivables of the business and the inventory, vehicles, supplies, and equipment of the business. It awarded the wife a 2007 Honda Pilot automobile and the husband a 2009 Suzuki motorcycle, a 2007 Winnebago motor home, and red and silver Nissan trucks. Each party was awarded any checking and savings accounts, stocks, bonds, certificates of deposit, or 401k accounts that existed in his or her individual name, and the husband was awarded any such accounts in the name of the business. Both parties were awarded items of personal property and household furnishings pursuant to lists attached to the judgment. Additionally, the wife was instructed to prepare two lists of property from a third exhibit identifying, with certain exceptions, the parties’ jointly owned assets and to allow the husband to choose the list representing the items he elected to be awarded. Each party was directed . to pay and to be fully responsible for any debts in his or her name, and the husband was directed to be fully responsible for any debts in the name of his business. The trial court required each party to pay his or her own attorney’s fees and denied all other requests.
“The wife filed a motion requesting the trial court to reconsider its order, specifically disputing the award of assets acquired during the marriage. Both parties filed letter briefs with the court addressing the wife’s motion. The trial court granted the wife’s motion insofar as it requested that the Winnebago motor home be sold and the proceeds split equally between the parties; it otherwise denied the wife’s motion. On October 24, 2012, the husband-filed a motion for clarification regarding asserted errors in the wife’s property lists created from the third exhibit to the judgment. Specifically, the husband indicated that numerous items were omitted from the lists, that one item appeared on both lists, and that several items should not have appeared on the lists because they were tools of his business or because he had owned the items before the parties’ marriage.
“The wife filed an appeal to this court on November 13, 2012.”

In Yarbrough, before this court proceeded to the merits of the wife’s appeal, we determined that, because there had been no final disposition of the personal property, as evidenced by the husband’s motion requesting clarification regarding the wife’s proposed, lists of property and the lack of an order addressing that motion, the wife’s appeal was from a nonfinal judgment. 142 So.3d at 639. As a result, we dismissed the wife’s appeal. Id.

The trial court subsequently entered an order denying the husband’s motion for clarification and all other pending motions. The wife timely filed a notice of appeal to this court; this court has incorporated the record from Yarbrough into this appeal. That record reveals the following facts.

The husband testified that he and the wife were married in December 1996 and that there were no children of the marriage. The parties stipulated that they had signed a prenuptial agreement. The prenuptial agreement states that the husband has children by a prior marriage and that the wife has a child by a prior marriage; all the children had reached the age of majority at the time the prenuptial agreement was signed. The prenuptial agreement further states, in pertinent part:

“WHEREAS, it is desired by [the husband] and [the wife] separately and severally that their marriage shall not in any way change their presently-existing legal rights under the laws of the State of Alabama to dispose of their separate estates, and that, except as provided herein, the marriage of the parties shall not affect any rights of inheritance under the laws of the State of Alabama that the children of [the husband] may now have, whether by laws of intestacy, or testamentary disposition, or lifetime gifts in the property of [the husband]; and that the child of [the wife] may now have, whether by the laws of intestacy, or testamentary disposition, or lifetime gifts in the property of [the wife]; and “NOW THEREFORE, in consideration of the premises, and in consideration of the mutual covenants and agreements of each of the parties hereto, including their respective agreements to marry each other, and for other good and valuable consideration, receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
“1. The parties agree that all real and personal property listed in Exhibit ‘A’ shall be the property of [the wife] free and clear of any and all claims from [the husband] in the event of a divorce, death or legal separation.
“2. The parties agree that all real and personal property listed in Exhibit ‘B’ shall be the property of [the husband] free and clear of any and all claims from [the wife] in the event of a divorce, death or legal separation.
“3. The parties agree that in the event of a divorce or legal separation neither party shall pay alimony, periodic or lump sum to the other party.
“4. The parties agree that any and all real and personal] property acquired during this marriage shall be jointly owned and shall be subject to equal division in the event of divorce or legal separation.
“8. The parties agree that if either party contests this Agreement then, in that event, the contesting party or the estate of such party shall pay all expenses (including a reasonable attorney’s fee) of the party upholding this Agreement or attempting in good faith to uphold this Agreement.”

Exhibit “A” and Exhibit “B” are attached to the prenuptial agreement. Among those items listed as assets of the husband in Exhibit “B” are “Construction, Farm and Shop Equipment,” “House,” “Shop,” “John Deere Loader,” and a number of vehicles.

The husband testified that he no longer possessed several items listed in Exhibit “B.” For instance, he stated that a vehicle listed in Exhibit “B” had been traded for another vehicle. He testified that he still had some of the items, however. The husband testified that he had purchased a Winnebago motor home in 2007, that it was brand new at the time, and that he had purchased it for $65,000, although it had listed for $96,000. He testified that he operated his pool and construction business out of his house and that the motor home was located in one of the buildings at his house.

The husband also testified that he owned several vehicles of varying values. He stated that he owned a 2007 Kubota tractor and a 1997 John Deere backhoe, that they were used when he purchased them, and that he had purchased them after the parties married. He stated that he used those items for his business and at his farm.

The husband testified that he had a checking account for his pool and construction business; he stated that the amount in that account varied between $20,000 and $100,000. He testified that he also had a personal money-market account. The husband testified that he and the wife had never had joint accounts. He stated that the wife had never made a deposit into or a withdrawal from his accounts and that he had never made a deposit into or a withdrawal from the wife’s accounts. The husband testified that he had made all the contributions to the wife’s individual retirement account.

The wife testified that she had not been privy to the husband’s finances. She testified that the husband’s name had always been on her accounts. She admitted, however, that she had refused to show the husband her “stubs” because she did not think it was necessary. She stated that “housing works best when one has their own account and the business has its own account. It just works best when you don’t have two people working out of the same account.” She testified that she had purchased all the groceries for the household. She stated that she also had paid for decorating, entertainment, and travel expenses. She testified that the husband had purchased all the vehicles during the parties’ marriage. She testified that the husband uses the backhoe, but not the Kubota tractor, in his business. She stated that he “sometimes” uses a dump truck and front-end loader in his business.

Discussion

The wife argues on appeal that the trial court erred in failing to give effect to the plain language of the prenuptial agreement and in failing to equally divide all the items purchased or acquired during the marriage, including the motor home, the vehicles, the John Deere backhoe, the Kubota tractor, and other items. She further argues that the trial court erred in failing to equally divide the “personal property and finances/money.”

“Whether the parties’ antenuptial agreement is ambiguous is a question of law, which we review de novo. Sec Meyer v. Meyer, 952 So.2d 384, 391 (Ala.Civ.App. 2006).
“ ‘To determine whether the ante-nuptial agreement is ambiguous, the trial court was required to review the agreement to determine if “ ‘the intent of the parties c[ould] be fairly and reasonably gleaned from the four corners of the document.’ ” Stacey v. Saunders, 437 So.2d 1230, 1234 (Ala. 1983) (quoting Schmidt v. Ladner Constr. Co., 370 So.2d 970, 972 (Ala. 1979))....
“ ‘The interpretation of a provision in an antenuptial agreement, like the interpretation of any provision in any contract, is a question of law for the trial court. Laney v. Laney, 833 So.2d 644, 646 (Ala.Civ.App.2002).’
“Peden v. Peden, 972 So.2d 106, 110 (Ala.Civ.App.2007).
“ ‘An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id. Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous. Id.’
“R.G. v. G.G., 771 So.2d 490, 494 (Ala. Civ.App.2000).
“Furthermore, ‘Alabama appellate courts have stated that a court will not look beyond the four corners of a written instrument unless the instrument contains latent ambiguities.’ Judge v. Judge, 14 So.3d 162, 165 (Ala.Civ.App. 2009). See also Meyer v. Meyer, 952 So.2d at 391 (discussing the difference between latent and patent ambiguities).”

Hood v. Hood, 72 So.3d 666, 676-77 (Ala. Civ.App.2011).

The wife argues that the trial court failed to give effect to the plain language of the prenuptial agreement and that it failed to equally divide between the parties all the items that had been purchased or acquired during the marriage, in accordance with that agreement. We agree.

“Although the ore tenus presumption applies to the trial court’s findings of fact, no such presumption adheres to the trial court’s application of the law to those facts. Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). The [parties’] arguments are based upon the interpretation of certain provisions and terms in the parties’ antenuptial agreement; such interpretations, like the interpretation of unambiguous contracts, are questions of law. See Agee, 669 So.2d at 105; Stacey v. Saunders, 437 So.2d 1230, 1233 (Ala. 1983).”

Laney v. Laney, 833 So.2d 644, 646 (Ala. Civ.App.2002). Viewing the prenuptial agreement at issue in this case, the parties agreed in the first part to maintain their rights to their individual estates existing at the time the parties married. Those individual estates consisted of the items listed in Exhibit “A” for the wife and in Exhibit “B” for the husband. In accordance with paragraph 4 of the prenuptial agreement, those items not listed in Exhibit “A” or Exhibit “B” that were acquired during the marriage are to be treated as jointly owned property to be distributed equally between the parties in the event of the parties’ divorce.

In making its property division, the trial court obviously emphasized the language in the first part of the prenuptial agreement in which the parties expressed their intention that their marriage would not alter their rights to “dispose of their separate estates.” Viewed in isolation, that phrase could reasonably be interpreted to mean that the parties intended that whatever property they presently owned or later acquired as individuals would remain part of their respective separate estates upon divorce or separation. However, like other written instruments, prenuptial agreements must be construed as a whole, with every provision given the fullest possible effect according to the intentions of the parties. See Stacey v. Saunders, 437 So.2d 1230 (Ala.l983); and Hubbard v. Bentley, 17 So.3d 652 (Ala. Civ.App.2008). If the first part of the parties’ prenuptial agreement means that any property acquired during the marriage as part of a party’s separate estate remains that party’s separate property, that reading would render meaningless paragraph 4 of the prenuptial agreement, which specifically provides that “any and all real and person[al] property acquired during this marriage shall be jointly owned.” (Emphasis added.) That reading would also mean that the separate estates of the parties could not be divided, see Marsh v. Marsh, 496 So.2d 71 (Ala. Civ.App.1986) (court cannot divide property in separate estate of divorcing spouse), although paragraph 4 plainly states that the property the parties acquire during the marriage shall be “subject to equal division in the event of divorce or legal separation.” Our construction harmonizes the first part of the prenuptial agreement with paragraph 4 and makes all the terms operative.

The trial court correctly modified its judgment in response to the wife’s post-judgment motion to order the parties to sell the motor home and to divide the proceeds derived from the sale. With regard to the tractor, the backhoe, and four of the trucks owned by the husband, the trial court determined, based on the husband’s testimony and the portion of Exhibit “B” to the prenuptial agreement referring to “Construction, Farm and Shop Equipment,” “House,” “Shop,” “John Deere Loader,” and several named vehicles, that those items remained indivisible as part of the husband’s separate estate. The husband admitted, however, that those items had been purchased during the course of the marriage. Thus, they could not have been encompassed by the items listed in Exhibit “B,” but fell within the coverage of paragraph 4.

With regard to the remaining vehicles awarded, the wife received the Honda Pilot automobile, which the husband testified was worth approximately $13,000 to $15,000. The husband received a silver truck, which he testified was worth approximately $3,000, a red Nissan truck, which the wife alleged was worth $7,000, and a Suzuki motorcycle, which the husband testified was worth $4,000. The trial court equally divided those vehicles in accordance with the prenuptial agreement. The trial court erred, however, in failing to equally distribute the remaining assets of the parties that had been acquired during the marriage in accordance with paragraph 4 of the prenuptial agreement. See Hubbard, 17 So.3d at 654 (“[Tjrial courts may not dispose of property addressed in an antenuptial agreement in a manner that is inconsistent with that agreement.”). We therefore reverse the trial court’s judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ„ concur.