text:
    Mohammad HEYAT v. Anahita RAHNEMAEI. Anahita Rahnemaei v. Mohammad Heyat.
    2120256.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      John E. Medaris, Pelham, for appellant/cross-appellee Mohammad Heyat.
    Bruce L. Gordon and Jason E. Gilmore of Gordon, Dana, Knight & Gilmore, LLC, Birmingham, for appellee/cross-appellant Anahita Rahnemaei.
   PER CURIAM.

This is the second time these parties have appeared before this court. See Heyat v. Rahnemaei, 107 So.3d 216 (Ala.Civ. App.2012). In Heyat, we dismissed an appeal filed by Mohammad Heyat (“the husband”) and a cross-appeal filed by An-ahita Rahnemaei (“the wife”) from a judgment divorcing the parties because the trial court’s judgment was not final. Heyat, 107 So.3d at 218. The trial court has since rendered a final judgment, and the parties have again sought appellate review.

The husband and the wife were married in 1985 in Iran. At the time, the husband was a student in the United States. He had received his bachelor’s degree in civil engineering and planned to seek a master’s degree in the same subject matter; he worked as a waiter to support himself. He had traveled back to Iran for the purpose of meeting and marrying an Iranian woman. After a mutual friend of both the husband’s family and the wife’s family mentioned that the husband was seeking a wife and that the wife was of the appropriate age, the families met. After a few months, the husband asked the wife to marry him; she said that her parents had approved of the idea, so she agreed to marry the husband. After their marriage, it took nearly two years for the husband to secure a visa for the wife to enter the United States. During nearly all of that two-year period, the wife lived with her parents in Iran and the husband lived in Birmingham.

When the wife joined the husband in Birmingham in 1987, she could not speak English. She took classes at churches to learn the language, and, in 1989, she began classes in nuclear-medicine technology at a local junior college. In 1990, while she was a student, the wife gave birth to the parties’ first child, a daughter (“the daughter”). The parties first lived in an apartment, but they later purchased a home in Southside (“the Southside house”). The wife completed her bachelor’s degree in nuclear-medicine technology at the University of Alabama at Birmingham in 1995.

The wife began working in 1995. She worked full time for some period but then began working only part time, presumably when she gave birth to the parties’ second child, a son (“the son”), in 1998. The wife has continued to work since that time, but she has worked only three or four days per week since 2004. At the time of the trial in this matter in July 2011, the wife was earning $5,100 per month working four days per week.

During the first few years that the wife attended college, the husband continued working as a waiter and then began working as a construction superintendent for two separate contractors. Eventually, in 1992, the husband built his first house as a builder. He said that he purchased a lot, secured a construction loan, built the house, and sold it before construction was completed. He testified that he made a $31,000 “profit” on that home. The husband then began doing business as Brook-field Construction Company. The husband built a second house (“the Ridgewood house”) in the same neighborhood as the first. That second house, however, did not sell, and the parties moved into that house in approximately 1995. They then rented the Southside house.

-The husband next took on as a project the construction of a custom-built home in a neighborhood called Weatherly. According to the husband, he earned approximately $90,000 on that project, with which he paid off the mortgage on the Ridge-wood house. After completing the project in Weatherly, the husband built 13 “spec houses” in a neighborhood called Eagle Point (“the Eagle Point houses”). Those houses sold; however, one homeowner sued the husband over some issues concerning the construction of the house. That lawsuit was settled, but it cost the husband $100,000 in settlement funds and legal fees. The wife provided the husband the $100,000 from money she had saved for the daughter’s college education.

After the husband completed the Eagle Point houses, he began constructing the largest home he had ever built in the Greystone neighborhood, located in Shelby County (“the Greystone house”). According to the husband, he used the money he had earned from his other projects to fund the construction of the Greystone house and the construction was not funded by the proceeds of a construction loan. The husband testified that all of his money was tied up in the Greystone house and that, in fact, he ran out of money while completing the house. When the Greystone house did not sell immediately, the wife convinced the husband that they should move from the Ridgewood house to the Greystone house, which they did in December 2006.

The husband then began to remodel the Ridgewood house in order to sell it. He explained that he remodeled the kitchen in the Ridgewood house by tiling the floor, putting in marble countertops, changing cabinet doors, “updating the plumbing,” and replacing the fixtures and sink. According to the husband, the remodeling project cost approximately $55,000 and took more than a year to complete because he did not have the money to complete the project all at one time. The Ridgewood house sold in 2010 for approximately $203,000.

The Greystone house was the last house the husband built. After the parties moved into the Greystone house, the wife began having issues with the husband’s lack of remunerative employment. She said that she had urged him to get a job of some kind to provide support for the family but that, instead, the husband became more “fervent” in his religious beliefs and in his attendance at a mosque. She explained that, although both he and she were Muslim, they had not strictly complied with the tenets of their religion. However, the wife testified that, beginning in 2006 or 2007, the husband began to attend mosque much more frequently, sometimes even more than once per day, and that, in doing so, he neglected his responsibilities to his family.

The wife, her friend, Shahin Rogers, and the daughter testified that the husband had expressed anti-American sentiments. As examples, the wife and the daughter testified that the husband had celebrated the September 11, 2001, terrorist attacks and that he also would say, in his native Iranian language, Farsi, “God is good,” when he heard of the death of American soldiers on the television news. The daughter testified that the son had begun chanting “death to America” around the house, presumably as a result of the husband’s influence. The wife testified that she did not want the husband taking the son to the mosque several times a week because, according to her, “there is nothing you can do in the mosque, just sit there and be taught things I don’t want him to learn. Things that are part of how to become a terrorist.”

Rogers testified that she had had to ask the husband and others attending a party at her home to stop discussing politics when a discussion regarding the propriety of American involvement in the Middle East became heated; she did not, however, testify that she had overheard anti-American sentiments from the husband at that time. Under further cross-examination by the husband’s counsel, Rogers testified that the husband had said that he did not like living in America and that he desired to return to Iran. She also testified that the husband had said at other times that he would like to volunteer for either the North Korean or the Afghan army so that he could fight against America.

The husband denied having ever expressed anti-American sentiments. He also said that he had grieved the September 11, 2001, terrorist attacks and that he and his family had attended a candlelight vigil for the victims of those attacks. He said that he loved America, although he did admit that he did not support “the war.” He denied that he had ever said that he would like to return to Iran to live.

The wife testified that the husband had financed and supervised the building of two “flats” or apartments in Iran (“the Iranian apartments”). The husband denied having any interest in those apartments, although he admitted that he “thought” that he had “loaned” money to his family to assist with the construction of those apartments. The record contains ' two sets of documents purporting to show the ownership interests in those apartments. One set of documents indicates that the husband owned both of the apartments, while the other set indicates that, as of the time of trial, neither was owned by the husband.

The husband admitted that he had not sought other employment after his ability to make a living as a builder had ended. He blamed the economy for ending his ability to support his family through his home-building business. He said that he , had not advertised his business at any time. When questioned, he admitted that he had had a few jobs doing work like adding a porch or painting, but he said that he had not actively sought such work despite his ability to perform it. Upon further questioning regarding his income while he was building houses, the husband appeared confused regarding the income he reported on his tax returns; he stated that he had followed “the book of the I[nternal] R[evenue] S[ervice]” when computing his income and filling out his tax returns. Notably, the husband’s tax returns do not show that he earned significant income from his construction business.

The husband was also questioned about his ability to pay $800 per month in rent for his apartment and meet his other living expenses when he claimed that he did not earn any income. The husband’s rental application lists his income as $13,330 per month; the husband stated that he had not written that amount as. his income on the rental application. Despite the fact that the husband claimed that he had no income, the husband admitted that he was current on his $800 monthly rent payments. When asked how he paid his rent, the husband admitted having taken a few small jobs like painting or constructing a porch and also said that friends at his mosque had lent him money. The husband further explained that he had taken some money out of an account and had kept it hidden away because all of his accounts were frozen by court order when the wife instituted the divorce action; he said he used some of that money when needed to pay expenses. He also said that he had used the $500 per month that he was permitted to withdraw from one account to pay his rent; counsel for the wife reminded him that that account had been exhausted in May 2011. The husband admitted that he had purchased a video-game console, which cost over $400, for the son, instead of providing any support for the wife and the son during the pendency of the divorce action.

The incident that provoked the wife to file the divorce action took place in late July 2010. According to the wife, the husband became irate at a dinner. The wife’s mother (“the mother-in-law”) was visiting at the time, and she had been staying at the parties’ home for a few months. The wife said that the husband began being disrespectful toward the mother-in-law and threatened to have her arrested and handcuffed. The wife said that the husband began yelling about how the Greystone house had been built for four people and that the mother-in-law should not be living there. In addition, the wife testified, the husband said that he would not leave the house for the wife and the mother-in-law to live in and that he would burn down the house. When the wife began telling the husband that he should not treat the mother-in-law with such disrespect, she said that the husband threatened to take the wife to the backyard and cut off her head. During this same argument, the wife testified, the husband called the daughter, who was at least 21 years old at the time, a whore in Farsi and began complaining that she called “boys” on the telephone late at night and that she dressed inappropriately. Both Rogers and the daughter testified similarly to the wife.

The husband remembered certain details of that incident differently. He said that he had been fasting as part of his observance of Ramadan, a month-long Muslim religious observance, when the wife had called him to the table. Because he was fasting and the time to break his fast had not yet come, the husband said, he went to the table to speak with the guests in his home but not to eat dinner. He referred to the incident as an “ambush.” He said that he was questioned regarding his thoughts about women and that the wife announced that she wanted a divorce and that she should be awarded the Greystone house in the divorce. The husband said he became very upset and that he had said some things in anger, including, quite possibly, that he could cut off the wife’s head; however, he testified that it was not in his nature to do such a thing. He denied saying that he would burn down the Greystone house; instead, he said, he had been saying that he would not act like someone on the news who had burned down his house.

When questioned regarding the allegation that he had called the daughter a whore, the husband denied having called the daughter “such a thing.” He admitted that he had had concerns about the daughter’s behavior and dress. He said that he had never addressed his concerns over the daughter’s behavior or dress with her directly. He said that he had always gone to the wife and urged her, as the female role model for the daughter, to lead the daughter to behave more modestly. To have addressed such things directly with the daughter, said the husband, would have embarrassed her or made her uncomfortable. Although the wife had testified that the husband had said that he hoped the daughter would get breast cancer because she wore clothing that revealed her cleavage, the husband denied having ever made such a statement.

The son testified in camera. He testified that he would prefer to live with the husband. He denied that the husband had expressed anti-American sentiments or that the husband wanted to return to Iran to live. The son said that the husband wanted to visit Iran and that the son wanted to go with him; the son said that he had visited Iran before. When asked why he would prefer to live with the husband, the son explained that he was 13 years old and that he thought he needed a fatherly influence at his age. The son also testified that he liked living with the wife; he said that the worst thing about living with her was that when she became angry she “lost control” and yelled. The son testified that he was involved in math team, Scholar’s Bowl, and Science Olympiad at school.

The wife filed a complaint seeking a divorce on August 26, 2010. In her complaint, the wife requested custody of the parties’ son, child support, alimony, an award of all the parties’ joint property, to be held harmless of all debts of the parties, and an attorney fee. The wife, by motion, also sought ex parte pendente lite custody of the son, possession of the marital residence pendente lite, and pendente lite child support; the trial court granted the wife’s motion on August 27, 2010. The husband filed an answer and a counterclaim. In his answer, the husband specifically stated that he did not want a divorce; however, in the event one was granted, the husband sought custody of the parties’ son, child support, alimony, an equitable division of the parties’ property, to be held harmless from all debts of the parties, and an attorney fee.

On the husband’s motion, the trial court set aside the ex parte custody order, and the parties entered into a pendente lite agreement, which the trial court adopted in an order, concerning custody of the son and payment of certain of the parties’ expenses and debts; the agreement did not require the husband to pay child support. In addition, three accounts owned by the parties were “frozen” by the pendente lite order. As noted above, the parties agreed to an arrangement permitting the husband to withdraw $500 per month for living expenses and $450 per month to pay the mortgage on the Southside house.

After the trial in July 2011, the trial court entered a judgment divorcing the parties. The judgment awarded custody of the son to the wife and awarded the husband specified visitation; the husband was also ordered to pay $991 per month in child support. Pursuant to the judgment, the wife was awarded exclusive possession of the Greystone house, which was to be sold and the proceeds divided equally, after a deduction from the proceeds of $100,000, an amount that the husband agreed he owed the wife. The wife was given the option of purchasing the husband’s interest in the Greystone house for $150,000. The husband was awarded the Southside house and ordered to assume the indebtedness associated with that house. Finally, the trial court awarded the wife “a one half (1/2) interest in and to any real estate owned by the [husband] in Iran, should such ownership exist.” The judgment ordered that the attorney fees for the parties’ respective attorneys be paid out of a particular bank account of the parties. The remaining funds in that account were to be divided, with the wife receiving 75% of the remaining funds and the husband receiving 25%.

The husband and the wife each filed a postjudgment motion. The trial court amended its judgment by permitting the husband the opportunity to purchase the wife’s interest in the Greystone house for $250,000 if the wife chose not exercise her right to purchase his interest in the house within 18 months of the entry of the divorce judgment. The husband timely appealed, and the wife timely cross-appealed. As noted above, we dismissed the parties’ appeals because the trial court’s judgment failed to determine whether the husband owned real estate in Iran and, thus, was nonfinal. Heyat, 107 So.3d at 218. The trial court entered an amended judgment on December 6, 2012, in which it stated that the husband and the wife “are each awarded and vested with all right, title, and interest in and to a one-half (1/2) undivided interest in all real estate owned by the [husband] in Iran.” The husband appealed, and the wife filed a cross-appeal. The parties requested that this court incorporate the record from the previous appeals, which we did, and both rely on the briefs they submitted in the previous appeals as well.

On appeal, the husband raises several issues. He first argues that the trial court erred in admitting testimony that the husband was a religious fanatic and a “terrorist.” The husband then argues that the trial court’s failure to award him at least joint custody of the son was an abuse of the trial court’s discretion. The husband next challenges the trial court’s division of the parties’ property. Finally, the husband argues that the trial court abused its discretion in calculating his child-support obligation when it imputed to the husband a monthly income of $5,000 despite there being a lack of evidence to support that amount and in light of the fact that the trial court’s award of the Greystone house to the wife “eliminated” the husband’s ability to earn. On cross-appeal, the wife challenges the trial court’s award to her of an undivided one-half interest in the Iranian apartments, arguing that the husband no longer owns the Iranian apartments and that she would be unable, as a woman, to enforce that property right in Iran. We will first address the issue raised by the wife in her cross-appeal.

The Wife’s Cross-Appeal

The wife has filed a cross-appeal in which she challenges only that aspect of the trial court’s judgment awarding her an undivided one-half interest in the Iranian apartments. At trial, the wife attempted to establish that the husband owned two apartments in Iran. The wife presented documents purporting to show that the husband owned the Iranian apartments; those documents, according to the wife, show that the husband still owned one apartment on December 18, 2010, and that he still owned the other apartment on January 31, 2011. However, similar documents dated April 6, 2011, and April 9, 2011, show that the Iranian apartments were, on those dates, each owned by someone other than the husband. The wife complains that the trial court’s award to her of an undivided one-half interest in the Iranian apartments is unenforceable because (1) the undisputed evidence proved that the husband no longer owns the Iranian apartments because he has transferred ownership to other people and (2) that, even if the husband still owns the Iranian apartments, she will be unable to enforce any property rights awarded her in the divorce in Iran, because neither the United States nor Iran are signatories to the Hague Convention on the Recognition of Divorces and Legal Separations of June 1, 1970, or the Hague Convention on the Law Applicable to Matrimonial Property Regimes of March 14,1978. According to the wife, because the trial court determined that she was entitled to an undivided one-half interest in the Iranian apartments, which she had testified at trial were worth $500,000, the trial court’s property division is inequitable to her because she will not be able to realize $250,000 of the property awarded to her in the divorce judgment.

In general, when reviewing any division of property, we must be mindful that the trial court has wide discretion over the division of property and that it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989).' The trial court’s judgment is presumed to be correct and will not be reversed unless it is so unsupported by the evidence as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. In making a property division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174, 1176 (Ala.Civ.App. 1986). Because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).

The wife does not merely argue that, as a factual matter, the property division is inequitable, however. She argues that the legal and practical result of the award to her of an undivided one-half interest in the Iranian apartments is that she will not realize a portion of the property the trial court decided to award to her. Although the wife presented evidence tending to prove that the husband had owned the Iranian apartments, the other evidence at trial indicated that the apartments are currently owned by persons other than the husband. The wife testified, when confronted with those documents, that the husband must have transferred ownership of the Iranian apartments during the pendency of the divorce action, commenting that it was easy to do so in Iran.

As the wife points out, the trial court was permitted to determine that the Iranian apartments were marital property and that any transfer of the apartments during the pendency of the divorce was voidable. See Pattillo v. Pattillo, 414 So.2d 915, 916 (Ala.1982) (determining that a trial court should have set aside transfers of cash and certificates of deposit from a husband to his daughters because the evidence established that the transfer of those assets were made with the intent to defeat the wife’s rights and ordering the trial court to set aside those transfers and to consider those assets in its property division). However, the wife contends, the trial court could not award her an interest in the property owned by third parties. Thus, the wife explains, she will have no way of realizing her interest in the Iranian apartments. We agree.

The exhibits regarding the Iranian apartments indicate, and the testimony at trial further supports, the inescapable conclusion that, at the time of the trial, the husband no longer owned the Iranian apartments. By virtue of its award to the wife, the trial court implicitly determined that the husband had owned the Iranian apartments during the marriage and that the wife was entitled to an undivided one-half interest in the apartments, which the wife valued at $500,000. The trial court must have also determined that the transfer of the Iranian apartments was done for the purpose of defeating the wife’s rights in that property and that the apartments should be considered marital property. See Prestwood v. Prestwood, 523 So.2d 1071, 1074 (Ala.Civ.App.1988) (noting that the issue whether a transfer is made to defeat a spouse’s property rights is a question of fact). We note that the husband does not challenge the trial court’s implicit findings on these matters. Despite having made those implicit findings, however, the trial court in the present case could not have gone further and declared the transfer void because the present owners of the Iranian apartments were not parties to the divorce action. See Capps v. Capps, 699 So.2d 183 (Ala.Civ.App.1997) (reversing that portion of a trial court’s judgment setting aside as fraudulent a transfer of an undivided one-half interest in property from a husband to his mother because the mother was not a party to the action); see also Prestwood, 523 So.2d at 1074 (affirming a judgment declaring certain property that the husband had transferred to defeat the wife’s property rights to be marital property and noting that the children to whom the father had transferred the ownership interests in a marital asset were defendants in the action). In light of the facts that the apartments are located in Iran and, presumably, that the new owners are Iranian citizens, the possibility of making those new owners parties to the divorce action is remote at best. Without their being parties, the trial court cannot set aside the transfer of the Iranian apartments, and the trial court cannot award the wife any interest in those apartments because they are no longer owned by the husband.

We therefore reverse the property-division aspects of the judgment of divorce, and we remand the cause for the trial court to determine an appropriate and equitable division of the parties’ property. Because the trial court cannot set aside the transfer of ownership of the Iranian apartments, the trial court’s award to the wife must be adjusted to award her assets equal to the one-half interest in the Iranian apartments the trial court has attempted to award. We note that the trial court did not determine the value of the Iranian apartments, and, thus, on remand, the trial court is free to set that value based upon the evidence adduced at the July 2011 trial.

The Husband’s Appeal

The husband first argues that the trial court erred in admitting testimony concerning his being a religious fanatic, his alleged anti-American sentiments, and his being a “terrorist.”

“Two fundamental principles govern the standard by which this Court reviews a trial court’s rulings on the admission of evidence. Middleton v. Lightfoot, 885 So.2d 111, 113 (Ala.2003). ‘ “ ‘The first grants trial judges wide discretion to exclude or admit evidence.’ ” ’ 885 So.2d at 118 (quoting Mock v. Allen, 783 So.2d 828, 835 (Ala. 2000), quoting in turn Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998)). However, ‘a trial court exceeds its discretion where it admits prejudicial evidence that has no probative value.’ 885 So.2d at 113 (citing Powell v. State, 796 So.2d 404, 419 (Ala.Crim. App.1999), aff'd, 796 So.2d 434 (Ala. 2001)).
“ ‘ “ ‘The second principle “is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” ’ ” ’ Middleton, 885 So.2d at 113 (quoting Mock, 783 So.2d at 835, quoting in turn Wal-Mart Stores, 726 So.2d at 655). See also Rule 45, Ala. R.App. P. “‘The burden of establishing that an erroneous ruling was prejudicial is on the appellant.” ’ Middleton, 885 So.2d at 113-14 (quoting Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991)).”

Baldwin Cnty. Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 453 (Ala. 2008).

We note that, despite a seven-page plea to this court regarding the emotionally charged atmospheres of both a divorce and of this country in the wake of the terrorist attacks of September 11, 2001, the husband cites only general authority regarding the trial court’s ability to exclude relevant evidence because its effect will be too prejudicial. See Charles W. Gamble, Gamble’s Alabama Rules of Evidence § 401 (2d ed.2002). The wife contends that the testimony regarding the husband’s religious practices and alleged anti-American sentiment was relevant to the issue of custody, especially because she alleged that the husband intended to take the son and move to Iran. The wife also argues that the husband waived his objection to such testimony because he objected only once to testimony that he had expressed anti-American sentiments, because the husband did not object to other testimony of a similar nature during the trial, and because his counsel elicited further testimony on whether the husband had expressed such sentiments and regarding the husband’s religious practices from the same and other witnesses. We agree with the wife that the husband waived his objection to the testimony.

The husband first objected to Rogers’s testimony concerning what she had overheard the husband say when she interrupted his conversation with two other men with whom he had been discussing the United States’ involvement in Afghanistan, Iraq, and Iran. The following exchange occurred:

“Q. And could you hear any of the words that [the husband] was saying to this other gentleman on that occasion?
“A. Yes, I did.
“Q. And what did you hear?
“A. He was — he said that he — if he was in Iran, he would have him arrested and have him killed.
“[Counsel for the husband]: Your Honor, I object. I think this is simply a poison to relevance [sic]. It has nothing to do with their domestic matters here. And by — as far as him being Iranian, I think it is simply to try to poison any opinion the Court may have of this gentleman and it is varied upon very stipulations [sic].
“THE COURT: Want to speak to the relevance of it?
“[Counsel for the wife]: Yes, sir, it does. One of the allegations, there’s a request that custody — currently, custody is vested in my client, and there’s a request of custody to be changed to [the husband] and part of the theme of our case is that [the husband] is somewhat of a — and I’m not sure how to say it — religious or Iranian fanatic, anti-American, and that I think this is a foundation or a predicate to be laid for later testimony for the Court to consider as to whether or not the child who was born and lived in America for 18 years as part of the consideration as to whether it ought to be turned over to [the husband].
“[Counsel for the husband]: Your Honor, I think it’s just throwing — it’s like playing a race car[d] in a case. It’s certainly to defame this gentleman and. has no bearing on this case.
“THE COURT: Well, I can see the relevance where you’re coming from, so I’m going to have to overrule it. I’m going to have to allow it in. Okay.”

Later, during the husband’s counsel’s cross-examination of Rogers, the following testimony was elicited:

“Q. So the argument — you heard Mr. Gordon say that [the husband is] anti-American. And that — is that what you gathered out of that argument?
“A. Out of that argument, no, because I was the — no, I didn’t.
“Q. Has [the husband] lived here longer than you?
“A. I’m not sure.
“Q. Okay. You’re not anti-American, are you?
“A. No.
“Q. You don’t have to always agree •with the politics of our government, do we, in America?
“A. No.
“Q. That doesn’t mean — does that make you anti-American, in your opinion?
“A. No.
“Q. So are you telling the Court that you believe him to be anti-American?
“A. It’s other conversation that I’ve had, I’ve heard him say different things, that he doesn’t like to live in America, he wants to go home. And several years ago, he wanted to move to Iran, and [the "wife] didn’t want to. And I was there, that I told him, you know, you don’t need to go there, you’re going to have to buy a house, and he actually said that he — he went up there and built a house on his mother’s — what—what he explained—
“Q. That he did or he will?
“A. That he did. That he did build a house, you know, two flats.”

On redirect, counsel for the wife elicited further testimony regarding the husband’s anti-American sentiment from Rogers without objection.

“Q. Also, you — he asked you questions about [the husband], whether or not you had ever heard or been around in any conversations where he was — talked about anti-American cinema [sic]. Do you remember that?
“A. Yes.
“Q. Do you recall, specifically, any conversations that you’ve had or been around, other than ones you’ve testified to, where [the husband] has expressed anything anti-American?
“A. Well, this is during the Bush era. When we were — we would be at our house and have a conversation, and he had said that he wanted to go to North — you know, volunteer for North Korea and fight against America and that he want to go home and fight against America or go to Afghanistan. But I don’t remember the particular — ”

The husband’s first objection to Rogers’s testimony came after the answer to the question was given. That alone makes the objection insufficient to preserve error. Crowne Invs., Inc. v. Reid, 740 So.2d 400, 408 (Ala.1999) (stating that “[o]ne cannot preserve error by objecting to a question after the witness has given a responsive answer” and noting that, in order to preserve error in such a situation, the belated objection should be accompanied by a motion to strike or a motion to exclude the question and answer). However, even if this court were to consider the husband’s counsel’s belated objection sufficient, the fact that other testimony about the husband’s anti-American sentiments was elicited and given by both Rogers and other witnesses without objection would preclude reversal on this issue. B & M Homes, Inc. v. Hogan, 376 So.2d 667, 673 (Ala. 1979) (“In Alabama the rule is that prejudicial error may not be predicated upon the admission of evidence which has been admitted at some other stage of the trial without objection or motion to exclude.”); see also Baldwin Cnty. Elec. Membership Corp., 999 So.2d at 453.

The husband next argues that the trial court erred in failing to award him sole custody or joint custody of the son. The husband correctly observes that a trial court considering the issue of custody should have as its focus the best interest of the child. However, he argues that the trial court erred by not awarding him sole custody despite the son’s stated preference that he live with the husband and despite testimony from the son that the wife loses control and yells a lot when she is angry. Furthermore, he argues that, pursuant to Ala.Code 1975, § 30-3-150 et seq., the Alabama joint-custody statute, joint custody is preferred in Alabama and that the trial court failed to explain why joint custody was not awarded in this case. The husband misapprehends both the scope of the joint-custody preference and the weight a trial court is required give to a child’s stated preference for custody.

An appellate court’s review of a trial court’s custody determination is limited by the ore tenus standard of review.

“A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong...’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ. App.1998) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”

Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001).

“ ‘Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala.1994). The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id.’

Martin v. Martin, 85 So.3d 414, 419 (Ala. Civ.App.2011) (quoting Ex parte Byars, 794 So.2d 345, 347 (Ala.2001)).

The appellate courts have often explained what factors a trial court facing a question of custody should consider.

“ ‘In Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), the Alabama Supreme Court set forth a list of factors a trial court may consider in making an initial award of custody based on the best interest of the children, including
“ ‘ “[t]he sex and age of the children ...; ... the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.” ’ ”

Martin, 85 So.3d at 420 (quoting Williams v. Williams, 75 So.3d 132, 139 (Ala.Civ. App.2011)). Although the stated preference of a child regarding custody is to be considered by a trial court, the child’s desires are not controlling. Terry v. Ragland, 666 So.2d 539, 541 (Ala.Civ.App. 1995); Hattrick v. Hattrick, 52 Ala.App. 539, 295 So.2d 260 (1974).

Additionally, the Alabama legislature has stated that “[i]t is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.” Ala.Code 1975, § 30-3-150. To that end, a trial court is required to consider awarding joint custody in every case involving a child’s custody, but a trial court must award that form of custody that is in the best interest of the child. § 30-3-152; see also Cleveland v. Cleveland, 18 So.3d 950, 952-53 (Ala. Civ. App.2009). Pursuant to § 30-3-152(a), a trial court should consider the following factors when determining whether joint custody is in the best interest of the child:

“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.”

Although the son testified that he desired to live with the husband and said that the wife would sometimes become upset and yell and that he did not like that, the trial court was not required to accede to the son’s preference as to custody. The fact that the trial court did not award the husband custody is not proof that the trial court did not consider the son’s preference when weighing the many factors that it must consider when making a custody determination. Nor is the fact that the trial court chose not to award the parties joint custody proof that the trial court did not consider the factors set out in § 30-3-152. As the wife points out, she presented evidence indicating that the husband had expressed a desire to return to Iran to live and that he had desired to take the son with him. This evidence could have convinced the trial court that awarding the wife sole physical custody would be in the son’s best interest. We cannot conclude that the trial court erred by awarding the wife sole physical custody of the son.

The husband next argues that the trial court erred in dividing the parties’ property. He complains that the award favors the wife and is grossly inequitable. He says that the wife was awarded the Grey-stone house, all the household furnishings, $100,000 to be paid by the husband, over $200,000 in “frozen” bank accounts, two motor vehicles, and attorneys fees, which, he says, is an award of “no less than $800,000.” Although we are not convinced that the award to the wife was inequitable under the facts of this case, in light of the fact that we have reversed the trial court’s judgment on the wife’s cross-appeal so that it may readjust the property division to award the wife the value of her one-half interest in the Iranian apartments, the trial court is free on remand to adjust the equities as it sees fit based on the testimony and evidence it received at the July 2011 trial.

Finally, the husband argues that the trial court erred in determining his child-support obligation. The trial court imputed $5,000 per month in income to the husband in order to calculate his child-support obligation. The husband complains that the evidence does not support the conclusion that he has the ability to earn $5,000 per month.

“Rule 32(B)(5), Ala. R. Jud. Admin., provides, in pertinent part:
“ ‘If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.’
“In cases of voluntary underemployment, the amount of income to be imputed to the parent is a question of fact to be decided based on the evidence presented to the trial court. See G.B. v. J.H., [915 So.2d 570 (Ala.Civ.App.2005) ]; see also Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992)) (‘The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed “is to be made from the facts presented according to the judicial discretion of the trial court.” ’). We may reverse a judgment imputing income to a voluntarily underemployed parent that is based on ore tenus evidence only if that judgment is so unsupported by the evidence as to be plainly and palpably wrong. G.B. v. J.H., 915 So.2d at 575.”

Stone v. Stone, 26 So.3d 1228, 1230-31 (Ala.Civ.App.2009) (footnote omitted).

Although we understand the trial court’s implicit decision that the husband was voluntarily unemployed, we must agree with the husband that the trial court’s decision to impute $5,000 per month in income to the husband does not appear to be supported by any evidence. In fact, based on the evidence adduced by the wife, the husband never made any large profit from his business, perhaps because he used the profit from one sale to fund the purchase of a lot for the next project. Although the husband has a bachelor’s degree in civil engineering, the testimony at trial indicated that he had never held a job using that degree. The husband is 58 years old, and he has spent the majority of his life building houses. He has not built a house since 2006, and the last house he built he could not sell. Although we agree with the trial court’s conclusion that the husband can and should seek some sort or remunerative employment, we cannot agree that the evidence reflected that the husband is able to earn $5,000 per month. We therefore reverse the trial court’s child-support award, and we remand the cause with instructions that the trial court recalculate child support based on an amount of imputed income for the husband supported by the evidence at the July 2011 trial or from new evidence concerning the husband’s present income that the parties may present on remand.

Conclusion

Based on our review of the record and the contentions of the parties on appeal, we have determined that the trial court did not err by failing to exclude certain evidence regarding the husband’s anti-American leanings or sentiments. We have further concluded that the evidence supports the award of sole physical custody of the son to the wife. However, because the wife will be unable to realize the one-half interest in the Iranian apartments awarded to her because the evidence at trial proves that the property is no longer owned by the husband, we reverse the property division so that the trial court may make adjustments to the award to provide the wife the value of that portion of the marital estate the trial court has concluded she should receive. Because the evidence does not support the conclusion that the husband is capable of earning $5,000 per month, we also reverse the trial court’s judgment insofar as it computed the husband’s child-support obligation; on remand, the trial court is to determine the amount of income to be imputed to the husband based on the evidence.

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

CROSS-APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Although the husband argues throughout his brief that the wife presented evidence indicating that he was a terrorist, the wife’s reference to terrorists was in regard to members of the mosque, whom she feared would teach the son how to be a terrorist, and was not an accusation that the husband was or is a terrorist. The record does not reflect that the wife testified that the husband was “a member of a para-military terrorist cell,” that he was a "terrorist-in-training,” or that he is "some type of terrorist soldier determined to ruin the American way of life,” and we are disappointed by the use of such hyperbole and inflammatory statements in the husband’s brief.

      . Notably, the husband does not include in his argument on the property-division aspect of the trial court’s judgment any statement regarding the value of the award of the undivided one-half interest in the Iranian apartments to the wife. This is understandable if one considers the fact that the husband has submitted unchanged his brief from the original appeal, in which the trial court’s judgment awarded the wife a one-half interest in those apartments "if” they were owned by the husband. However, the trial court has since determined that the husband owned those apartments, a ruling that the husband has not challenged on appeal.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    S.N.W. v. M.D.F.H.
    2120120.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      John M. Mastín, Albertville, for appellant.
    J. Thomas Conwell, Jr., of Conwell & Conwell, LLC, Huntsville, for appellee.
   MOORE, Judge.

S.N.W. (“the father”) appeals from a judgment of the Marshall Juvenile Court (“the juvenile court”) terminating his parental rights to D.W. (“the child”).

Procedural History

V.W.H., the child’s stepfather, filed a petition in the Marshall Probate Court to adopt the child. After receiving an interlocutory order of adoption, the stepfather and M.D.F.H. (“the mother”) filed a motion to transfer the adoption proceedings to the juvenile court for the purposes of obtaining termination of the parental rights of the father to the child. The mother then filed a petition to terminate the father’s parental rights, and the father answered the petition on February 22, 2012, and did not object to the motion to transfer or otherwise contest the jurisdiction of the juvenile court. After a trial, the juvenile court entered a judgment on October 2, 2012, terminating the father’s parental rights. On October 10, 2012, the father filed a postjudgment motion. The juvenile court purported to enter an order on October 25, 2012, denying that motion; however, the motion had been denied by operation of law on October 24, 2012. See Rule 1(B), Ala. R. Juv. P. On October 29, 2012, the father filed his notice of appeal.

Facts

At the trial, the parties stipulated that the stepfather had filed a petition to adopt the child in the Marshall Probate Court and that an interlocutory order for adoption had been entered. The parties also stipulated that, on or about January 13, 2002, the father stabbed the mother in the presence of the child at a visitation exchange in Jackson County. They further stipulated that the mother had suffered severe trauma as a result of her injuries and had incurred medical expenses in excess of $79,000 as a result of that incident. The parties stipulated further that the father had been arrested on charges of attempted murder and first-degree domestic violence, but had subsequently been convicted of only first-degree domestic violence on May 15, 2002, and had been sentenced to 20 years in prison. The parties also stipulated that, at the time of the trial, the father was serving that prison sentence and was incarcerated at the Decatur Work Release Center. The parties stipulated further that the father had not had any contact with the child since the stabbing incident and had not paid any child support since the date of his sentencing in May 2002.

The mother testified that, since the stabbing incident, she had had custody of the child, who was 12 years old at the time of the trial. She testified that the child was progressing normally as a student and had made mostly A’s and B’s her entire life.

The mother testified that the child does not know the father. She testified further that she and the stepfather have been together since 2004, that she is a phlebo-tomist, and that the stepfather owns a moving business. She testified that, if the stepfather were allowed to adopt the child, the child could be covered by the stepfather’s insurance and could receive college-tuition assistance due to the stepfather’s status as a veteran. The mother testified further that, regardless of whether the stepfather were allowed to adopt the child, he would continue to provide for the child as he had done for the previous eight years. She later testified that the child has insurance through the stepfather and that they have a savings account for the child’s college tuition.

The mother testified that the father had had a parole hearing two or three years before the trial and that he had been denied parole. She testified that she had not been notified since then that he was up for parole again. She also testified that she had not received any information from the father about whether he was earning any income at the work-release center. She testified that she previously had had to take the father to court to get him to pay child support and that he or his mother had paid support for about four months before he was sentenced. She testified that the father’s child-support obligation had been suspended once he was sentenced. She testified that, at the time of the stabbing incident, the parties had been going through a divorce.

The stepfather testified that he had been with the mother for eight years and that, during that time, the child had resided with him and the mother and he had supported the child. He testified that the child is well-rounded and wants to go to college. He testified that he did not know of any contact the child had had with the father or any of the father’s family or of any attempts the father had made to contact the child. He testified that, to his knowledge, the father had not provided •anything toward the child’s support. The stepfather testified that, if he were allowed to adopt the child, the Veterans’ Administration would pay for four years of college for the child.

The father testified that the parties had divorced because the mother had been “cheating” on him. He testified that, at the time of the stabbing incident, he had temporary custody of the child and was under the influence of and addicted to cocaine. He testified that he had been using cocaine for three or four months at the time of the stabbing incident. He testified that he had attended a 12-week drug-treatment program, “SAP,” in prison 2 years before the trial. He also testified that, while he was out on bond before he was sentenced, he had gone to treatment programs at the Huntsville Mental Health Center and at New Horizon but that he had not completed the programs because he was sentenced to prison. He testified that his treatment had been focused on depression and drug use. He testified that he had not used illegal drugs since the date of the stabbing incident.

The father testified further that, while in prison, he had obtained his general equivalency diploma, had become certified as an automotive technician, and had been working full time since March 2012. He testified that he had not been disciplined while he was in prison and that he had been moved to the work-release center in January 2012. He testified that, before the stabbing incident, he had not been convicted of any felony or other violent crime. He testified further that he would again be eligible for parole in August 2013. He testified at trial that he was not taking medication for any mental-health issues but that he had attended group-counseling sessions for depression, which sessions, he said, had also dealt with anger issues.

The father testified that he had tried to contact the child by writing a letter to the mother’s mother but that he had not received a reply.

Discussion

A.

On appeal, the father first argues that the juvenile court lacked jurisdiction to terminate his parental rights. 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 (10) of Section 12-15-301 [, Ala. Code 1975].”

The father argues that, based on the foregoing language, a juvenile court has jurisdiction over a petition to terminate parental rights only if that petition is one “arising out of’ a prior dependency proceeding. The father maintains that, because the underlying action did not begin as a dependency matter, or arise out of any dependency proceeding, the juvenile court lacked subject-matter jurisdiction to terminate his parental rights.

We agree that § 12-15-114 bestows upon juvenile courts exclusive original jurisdiction of termination-of-parental-rights proceedings arising out of dependency proceedings, but we do not agree that juvenile courts lack jurisdiction to adjudicate petitions to terminate parental rights that do not arise out of dependency proceedings.

Section 26-10A-S, Ala.Code 1975, a part of the Alabama Adoption Code, provides:

“The probate court shall have original jurisdiction over proceedings brought under the chapter. If any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights. The provisions of this chapter shall be applicable to proceedings in the court having jurisdiction over juvenile matters.”

That section specifically empowers juvenile courts to terminate parental rights in order to facilitate the adoption of a child. Section 26-10A-3 does not mandate that the termination-of-parental-rights proceeding be predicated on a dependency proceeding or a dependency finding. Consistent with § 26-10A-3, the mother and the stepfather moved the juvenile court to accept a transfer of the adoption proceeding in order to terminate the parental rights of the father, thereby invoking the subject-matter jurisdiction of the juvenile court.

Because the issue is not before us, we make no comment on whether a juvenile court can exercise subject-matter jurisdiction over a petition to terminate parental rights that does not arise out of dependency or adoption proceedings. We hold only that, because the underlying petition arose out of an adoption proceeding, the juvenile court had subject-matter jurisdiction, pursuant to § 26-10A-3, to adjudicate the petition without first adjudicating the child to be dependent.

B.

Before a juvenile court can terminate parental rights it must receive clear and convincing evidence of grounds for termination, see § 12-15-319, Ala.Code 1975, and determine that no other viable alternative exists that protects the best interests and welfare of the child. See Ex parte Beasley, 564 So.2d 950 (Ala.1990). In this case, the juvenile court found numerous grounds for termination, findings the father does not contest on appeal. The juvenile court also stated in its judgment:

“[Mjaintenance of the status quo in this case, where the father has had no contact or visitation with the subject child for almost ten (10) years is viable, but is not an alternative to terminating his parental rights, in that it is practically and functionally no different than termination.”

The father contends that the juvenile court erred in finding maintenance of the status quo to be viable but, nevertheless, terminating his parental rights.

In T.D.K. v. L.A.W., 78 So.3d 1006, 1011 (Ala.Civ.App.2011), cited by the father in his brief to this court, this court stated:

“[I]f some less drastic alternative to termination of parental rights can be used that will simultaneously protect the children from parental harm and preserve the beneficial aspects of the family relationship, then a juvenile court must explore whether that alternative can be successfully employed instead of terminating parental rights.”

As that excerpt illustrates, maintaining the status quo is a viable option to terminating parental rights when the parent and the child enjoy a relationship with some beneficial aspects that should be preserved such that it would be in the child’s best interests to continue that relationship.

In this case, the father, due to his drug dependency, his violent and brutal actions against the mother, and his resultant incarceration, has not had any relationship with the child since the child’s infancy. The father currently remains in a work-release program and is eligible for parole, but the juvenile court concluded that he is unlikely to be paroled and is more likely to be serving time until the child reaches the age of majority, during which time the father will continue to have no contact with the child. As the juvenile court correctly determined, maintaining the status quo will not harm the child, but it certainly will do nothing to preserve any beneficial aspect of her relationship with the father, which is nonexistent. On the other hand, preserving the status quo will prevent the child from accessing the benefits available to her if she is allowed to be adopted by the stepfather and, consequently, would not be in her best interest. Thus, the juvenile court correctly concluded that maintaining the status quo is not a viable alternative to termination of the father’s parental rights.

Conclusion

Based on the foregoing, the juvenile court’s judgment is affirmed.

AFFIRMED.

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

      . We note that, ordinarily, a petitioner in an adoption proceeding moves the probate court to transfer the proceeding to the juvenile court in order to obtain a termination of parental rights; however, we find nothing in the language of § 26-10A-3 that prevents a petitioner from moving the juvenile court to accept a transfer. Furthermore, because the father did not object to the manner in which the transfer occurred, we have no basis for holding the juvenile court in error for following the procedure by which it obtained jurisdiction.


author: THOMAS, Judge.

text:
    GRAND HARBOUR DEVELOPMENT, LLC v. Mitchell G. LATTOF, Jr., individually and as trustee under the Will of Frankie T. Lattof, deceased, and Walter Trent Marina, Inc.
    2120036.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellant.
    Mitchell G. Lattof, Jr., of Lattof & Lat-tof, P.C., Mobile, for appellees.
   THOMAS, Judge.

Facts and Procedural History

On December 13, 2005, Grand Harbour Development, LLC (“GHD”), entered into a sales contract to purchase approximately 13 acres of waterfront property in Orange Beach (“the property”) from Mitchell G. Lattof, Jr., individually and as trustee under the Will of Frankie T. Lattof, deceased, and Walter Trent Marina, Inc. (hereinafter referred to collectively as “Lattof’). The record indicates that GHD intended to construct a 462-unit condominium development (“the development”) on the property. In addition to the purchase price of $25,000,000, the contract included a number of terms, including covenants and easements. Paragraph 14 of the contract, the construction of which serves as the underlying dispute in this action, reads as follows:

“14. Sellers’Purchase of Units.
“(A) Sellers shall receive, in the aggregate, a credit of $1,500,000.00 against pre[-]construction opening list prices on up to three (3) condominium units with Sellers being given the absolute first choice for one of such units and being given the 20th and the 35th choices for the others of such units. Sellers shall notify Buyer of Sellers’ first choice within fifteen (15) days of being provided with floor plans, site plan and tentative pricing, and Sellers shall, promptly upon Buyer’s request, execute Buyer’s standard pre-construction purchase agreement and post a cash pre-construction earnest money deposit equal to whatever percentage of the purchase price is required of all other pre[-]construction purchasers of units in the development. Sellers acknowledge that the cash deposit may be used by Buyer for construction purposes in accordance with the Alabama Condominium Act, as amended. At the time that Sellers designate their first choice, Sellers shall also identify to Buyer the unit Sellers hope to purchase with their 20th choice and 35th choice. Sellers acknowledge that floor plans, site plan and pricing provided to Sellers are not necessarily final, and, until the pre-construction purchase agreement is executed by both parties (or thereafter as may be permitted by such pre[-]construction purchase agreement), Buyer may make such change as Buyer deems best fit in Buyer’s sole and absolute discretion. For example, if tentative pricing for a unit chosen by Sellers is $1,000,000.00, but Buyer later increases all prices by 10% for substantially all of the units or all of the units of the type chosen by Sellers, then the price for the unit chosen by Sellers shall also be increased commensurately. Sellers shall not be entitled to purchase any boat slips with these units. In lieu of providing all or part of this credit to Sellers, as a buy-out of all or some of Sellers’ under this paragraph 14(A), Buyer may pay to Sellers in cash at any ... time prior to the execution of pre-construction purchase agreements using the entirety of the credit, the amount of the then remaining credit plus the sum of $25,000.00.
“(B) In addition to the rights of Sellers under subparagraph 14(A) above, Sellers shall have thirty (30) days following Buyer’s delivery to Sellers of its pre-construction pricing and building grid to elect to purchase up to twenty-five (25) units on a ‘first-come, first-served’ basis; Sellers’ election and selection of then available units must be set forth in writing faxed, prior to the expiration of such thirty (30) day period, to all of the following: (i) ... to Randy Davis/Frank Malone, (ii) ... to Skip Davis, (iii) ... to Richard Davis, and (iv) ... to Jim Defoe. Upon Sellers’ giving notice of their election and selection as aforesaid, this Agreement shall be deemed amended to require Sellers, promptly upon Buyer’s request, to execute Buyer’s standard pre-construction purchase agreement and to post a cash pre[-]construction deposit. Buyer shall have no obligation to ‘hold’ any units for Sellers during this thirty (30) day period, and if any unit desired to be purchased by Sellers pursuant to this subparagraph 14(B) has been committed to another buyer prior to Sellers’ fixing their selections as aforesaid, Sellers shall not be entitled to purchase such unit. Buyer is not required to offer these units with boat slips.”

The parties closed on the sale of the property two days after executing the contract; GHD began clearing the property and constructing marine improvements on the waterfront. GHD also submitted its development plans to the City of Orange Beach (“the City”) and received zoning and site-plan approval of those plans. However, according to GHD, “[i]n the months following closing, the real estate market at Orange Beach suffered a dramatic decline.” Due to the decline in the real-estate market, GHD had not begun construction on the development by the time of this appeal.

Lattof filed a complaint in the Baldwin Circuit Court (“the trial court”) on October 28, 2011, alleging that GHD had not performed in accordance with paragraph 14(A) of the contract and asking the trial court to interpret the provisions of the contract and to determine that a reasonable time for performance had elapsed. On January 10, 2012, GHD filed an answer and a counterclaim in which it raised several defenses and asked the trial court to declare the contract “illegal and void”; Lattof filed an answer to the counterclaim on February 1, 2012.

Lattof filed a motion for a summary judgment on April 20, 2012, arguing that, because the contract did not include a specific time for GHD to perform in accordance with paragraph 14(A) of the contract, as a matter of law, GHD had been required to perform within a reasonable time and that that time had elapsed. On June 6, 2012, GHD filed a motion for a summary judgment on its counterclaims and an opposition to Lattofs motion for a summary judgment. In its motion for a summary judgment, GHD contended that the contract violated § 11-52-30 et seq., Ala.Code 1975, and the City’s subdivision regulations and was, therefore, void. Alternatively, GHD requested that the trial court find that paragraph 14(A) was void for vagueness or that that section of the contract contained a condition precedent that had not yet occurred.

The trial court entered two judgments on June 22, 2012 — one granting Lattofs motion for a summary judgment and the other denying GHD’s motion for a summary judgment. GHD filed a motion to alter, amend, or vacate both judgments on July 18, 2012; the trial court denied GHD’s postjudgment motion on July 19, 2012. On July 25, 2012, GHD filed an appeal with our supreme court. However, Lattof filed in the trial court a motion for further relief, seeking entry of judgment and/or requesting that the trial court require the posting of a supersedeas bond on August 20, 2012; GHD filed a motion in opposition on August 28, 2012. The appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975. On November 1, 2012, this court reinvested the trial court with jurisdiction to “consider and enter, if it ch[ose], a final judgment that addresses all claims and forms of relief requested”; Lattof filed a renewed motion for further relief, seeking entry of judgment and/or requesting that the trial court require the posting of a supersedeas bond.

The trial court entered a judgment on November 1, 2012, finding, among other things, that GHD had breached the contract, that a reasonable time for performance in accordance with paragraph 14(A) had elapsed, and that the sale of the property did not violate state statutes or the City’s regulations regarding the sale of subdivided property. The judgment granted Lattofs motion for a summary judgment and denied GHD’s motion for a summary judgment on its counterclaims. Subsequently, on November 16, 2012, this court again reinvested the trial court with jurisdiction to enter an amended final judgment. Lattof filed in the trial court a motion styled as a request for modification of judgment on November 19, 2012, which requested that the trial court set out its calculations of prejudgment interest and include that amount in the final judgment. The trial court entered an amended final judgment on November 26, 2012; GHD filed a postjudgment motion on that same day. This court then issued an order stating:

“The trial court having rendered and entered a final Judgment in accordance with this Court’s remands of November 1 and 16, 2012, and a Rule 59, Ala R. Civ. P., motion having been filed, this appeal is held in abeyance pursuant to Rule 4(a)(5), Ala. R.App. P.”

GHD filed a motion to stay enforcement of the judgment and a supersedeas bond in the trial court on November 28, 2012. The trial court denied GHD’s postjudgment motion but granted its motion to stay, on January 17, 2013, at which time GHD’s appeal to this court became effective. See Rule 4(a)(5), Ala. R.App. P. (“[A] notice of appeal shall become effective upon the date of disposition of the last of all [post-judgment] motions.”).

GHD asserts the following issues in its brief on appeal: whether the contract violates subdivision-control statutes and regulations, thereby rendering it void and unenforceable; whether the contract is vague and indefinite; whether there are conditions precedent to GHD’s obligation to perform in accordance with paragraph 14(A) that have not yet occurred; and whether the award of money damages was proper.

Standard of Review

“We review a trial court’s summary judgment under a de novo standard of review. Specifically,
“ ‘[a] summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994).”

Walker v. North American Sav. Bank, [Ms. 2110055, March 8, 2013] - So.3d -, -(Ala.Civ.App.2013).

Analysis

I.

We first address GHD’s argument that the contract violated § 11-52-30 et seq., Ala.Code 1975, and the City’s subdivision regulations. Specifically, GHD maintains that the sale of the property, which was a portion of a larger parcel, constituted a subdivision and that a contract to convey real estate situated within a subdivision is illegal unless the real estate subject to the contract has been subdivided in compliance with the subdivision-control statutes. Section 11 — 24—1(a)(4), Ala.Code 1975, defines “subdivision” as

“[t]he development and division of a lot, tract, or parcel of land into two or more lots, plats, sites, or otherwise for the purpose of establishing or creating a subdivision through the sale, lease, or building development. Development includes, but is not limited to, the design work of lot layout, the construction of drainage structures, the construction of buildings or public use areas, the planning and construction of public streets and public roads, and the placement of public utilities. A subdivision does not include the construction or development of roads or buildings on private property to be used for agricultural purposes.”

Section ll-52-33(a), Ala.Code 1975, further provides:

“Where the regulation of a subdivision development is the responsibility of the municipal planning commission, if the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to or exhibition of or by other use of a plat of a subdivision before the plat has been approved by the municipal planning commission and recorded or filed in the office of the appropriate county probate office, the owner or agent shall forfeit and pay a penalty of one hundred dollars ($100) for each lot or parcel so transferred or sold or agreed or negotiated to be sold, and the description of the lot or parcel by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring shall not exempt the transaction from the penalties or from the remedies provided in this section.”

The City has enacted similar provisions pursuant to the authority granted by § 11-52-30 et seq. Section 1.04 of the City’s subdivision regulations defines a subdivision as

“[a]ny land, vacant or improved, which is divided or proposed to be divided into 2 or more lots, parcels, sites, plots, tracts or interests for the purpose of offer, sale, or lease whether immediate or future, either on the installment plan or upon any and all other plans, terms, and conditions. Subdivision includes the division or development of residentially and non-residentially zoned land, whether by deed, metes and bounds description, devise, intestacy, lease, map or plat, or other recorded instrument.”

Section 5.02 of the City’s subdivision regulations provides:

“Whomever transfers or sells, or agrees to sell, or negotiates to sell any land by reference to, or exhibition of, or by other use of a plat of a subdivision before such plat has received final approval of the Orange Beach Planning Commission and recorded/filed in the Office of the Probate Judge, Baldwin County, Alabama, shall forfeit and pay a penalty to the City of $500 for each lot or parcel so transferred or sold or agreed or negotiated to be sold. The City may enjoin such transfer or sale or agreement by action for injunction brought in any court of equity jurisdiction, and/or may recover the same penalty by civil action in any court of competent jurisdiction.”

GHD maintains that the contract violated § ll-52-33(a), Ala.Code 1975, and § 5.02 of the City’s subdivision regulations in two ways. First, GHD contends, because the sale of the 13 acres resulted in a subdivision of the larger parcel, and because an approved plat of the subdivision was not recorded, the sale of the property violated the statute and regulations quoted above, thereby rendering the contract void. Second, GHD argues that paragraph 14(A) of the contract violated the statute and regulations quoted above because it contemplated the sale of condominium units, a further subdivision of the property. It is true that “[i]t has long been the law in Alabama that when a contract is made in violation of a statute, that contract is generally void and unenforceable.” Kilgore Dev., Inc. v. Woodland Place, LLC, 47 So.3d 267, 270 (Ala. Civ.App.2009). The resolution of this issue turns on the meaning of the statute and regulations quoted above; however, there is little authority to guide our interpretation. We must therefore turn to the rules of statutory construction.

“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 844, 846 (Ala.1992). “ ‘However, when possible, the intent of the legislature should be gathered from the language of the statute itself.’ ” Perry v. City of Birmingham, 906 So.2d 174, 176 (Ala.2005) (quoting Beavers v. Walker County, 645 So.2d 1365, 1376 (Ala.1994)); Ex parte Lamar Advertising Co., 849 So.2d 928, 930 (Ala.2002). Therefore, in “determining the meaning of a statute, we must begin by analyzing the language of the statute.” Holcomb v. Carraway, 945 So.2d 1009, 1018 (Ala.2006).
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”
‘IMED Corp., 602 So.2d at 346; see also Wynn v. Kovar, 963 So.2d 84 (Ala.Civ.App.2007). Stated differently, when “the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997); see also Perry, 906 So.2d at 176; Ex parte Lamar Advertising Co., 849 So.2d at 930; Beavers, 645 So.2d at 1376-77; Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993); and IMED Corp., 602 So.2d at 344.’
“Alabama Dep’t of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 973 So.2d 369, 376 (Ala.Civ.App.2007).”

Boone v. Birmingham Bd. of Educ., 45 So.3d 757, 761-62 (Ala.Civ.App.2008).

GHD cites Kilgore in support of its argument. The parties in Kilgore executed a contract for the sale of lots in a subdivision before the recordation of the subdivision plat. Id. at 268. This court, citing § ll-52-30(b) and § 11-52-33, held that the contract was void and that the buyer was entitled to rescind the contract. Id. at 272. In concluding that the contract was void, this court noted that the contract provided that the buyer would purchase 44 lots of the proposed subdivision that were “ ‘more particularly described on the unrecorded map or plat’ of the subdivision” and that the unrecorded plat was attached to the contract as an exhibit. Id.

Similarly, our supreme court held in Limestone Creek Developers, LLC v. Trapp, 107 So.3d 189, 193 (Ala.2012), that a contract to purchase lots within a subdivision was void because it violated the county subdivision regulation that required approval of the subdivision plat “ ‘[p]rior to the actual sale, offering for sale, [or] transfer or lease of any lots.’ ” The buyer was involved in the initial development of the subdivision and provided input as to the layout of the subdivision, which was divided into 51 lots per the buyer’s request. Id. at 190. In the contract at issue in Limestone Creek, the buyer agreed to “purchase the 51 lots in Heritage Landings from LCD for $30,000 each.” Id. at 190— 91. Our supreme court concluded that that action violated the county subdivision regulations.

GHD asserts that the contract in this case was void both on the basis of the sale of the property from Lattof to GHD and on the basis of the anticipated conveyance of condominiums described in paragraph 14(A). We disagree. In both Kil-gore and Limestone Creek, the contracts that were determined to be void specified that the sellers were selling lots within a subdivision and referenced unrecorded plats that had not yet received approval from the proper authorities. However, the contract in the present case conveyed the property from Lattof to GHD in one parcel. A review of the contract does not yield any reference to a plat or lots within a subdivision. Additionally, although it is true that we have previously held that condominiums are subdivisions and are subject to relevant subdivision statutes and regulations, see Dyess v. Bay John Developers II, LLC 13 So.3d 390 (Ala.Civ. App.2007), we note that the language of paragraph 14(A) did not reference a subdivision plat or map, a lot, or even a specific condominium unit. Paragraph 14(A), instead, merely established that Lattof would have the option to acquire, and established the procedure for the acquisition of, the condominium units GHD would build in the future. We, therefore, cannot conclude that either the conveyance executed by the contract or the future conveyances contemplated by the contract violated § 11-52-33 or the City’s subdivision regulations.

II.

We now address GHD’s second and third issues: that the contract, and paragraph 14(A) specifically, was so vague and indefinite that paragraph 14(A) is effectively only an agreement to agree and that there are conditions precedent to GHD’s obligation to perform in accordance with paragraph 14(A) that have not yet occurred.

“In interpreting a contract, a trial court must heed the following principles:
“ ‘If a contract is unambiguous on its face, there is no room for construction and it must be enforced as written. See Thompson Tractor Co. v. Fair Contracting Co., 757 So.2d 396, 398 (Ala.2000); Ex parte Hagan, 721 So.2d 167, 173 (Ala.1998). A court may not twist the plain meaning of the terms in the contract to create an ambiguity under the guise of interpretation. See [Universal Underwriters Life Ins. Co. v.] Dutton, 736 So.2d [564,] 570 [ (Ala.1999) ]. The primary source for deciding whether a contract is clear is the text of the document itself. “It is well established in Alabama that when an instrument is unambiguous its construction and legal effect will be based upon what is found within its four corners. The determination of whether an instrument is ambiguous is a question of law for the court to decide.” Austin v. Cox, 523 So.2d 376, 379 (Ala.1988). Even if some ambiguity does exist in a contract, a court has the duty to accept a construction that will uphold the contract, rather than one that will make it invalid. See Wilson v. World Omni Leasing, Inc., 540 So.2d 713, 716 (Ala.1989).’
“Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000).”

Booth v. Newport Television, LLC, 111 So.3d 719, 724 (Ala.Civ.App.2011).

The trial court does not explain its reasoning for concluding that “[pferagraph 14(A) ... [was not] so vague as to be unenforceable or void.” However, in its brief to this court, Lattof contends that paragraph 14(A) was enforceable because “there is absolutely nothing left for the parties to agree upon.” A careful reading of the plain language of paragraph 14(A) indicates, in pertinent part, that, upon commencement of preconstruction sales of the condominium units, GHD would provide Lattof with floor plans, site plans, and tentative pricing. Lattof was guaranteed a credit of $1,500,000 to be used against the purchase price of the condominium units of which Lattof would have the 1st, 20th, and 35th choice. The contract further established when Lattof must notify GHD of its choices and the documents that were to be executed.

Our supreme court has held that “[a] document is unambiguous only if one reasonable meaning emerges from a reading of the document. Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314 (Ala.1993).” Drummond Co. v. Walter Indus., Inc., 962 So.2d 753, 780 (Ala.2006). GHD is correct that “ ‘ “[a] contract that ‘ “leav[es] material portions open for future agreement is nugatory and void for indeflniteness.” ”” ” Macon Cnty. Greyhound Park, Inc. v. Knowles, 39 So.3d 100, 108 (Ala.2009) (quoting White Sands Group, L.L.C. v. PRS II, L.L.C, 998 So.2d 1042, 1051 (Ala.2008), quoting in turn 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)). However, the intent of the parties is clear from the language of paragraph 14(A). In simplest terms, Lattof, using the $1,500,000 credit, will purchase condominium units pursuant to the same purchase agreement offered to all parties interested in purchasing a condominium unit from GHD. The language is not so ambiguous or vague that it relegates paragraph 14(A) to a mere agreement to agree, nor is there a material portion of the parties’ agreement subject to future negotiation.

We do, however, disagree with the trial court’s interpretation of paragraph 14(A) insofar as it interjected a “reasonable time for performance” for GHD to begin construction on the condominium units. In its judgment, the trial court stated:

“4. There was no time for performance of [GHD’s] obligation under [pferagraph 14(A) of the [contract] and therefore[,] as a matter of law, said obligation is due to be performed within a reasonable time.
“5. A reasonable time for performance of [GHD’s] obligation under [pferagraph 14(A) of the [contract] expired on December 15, 2008, which was three (3) years after the closing of the real estate transaction between the parties.”

The contract did not specify a time for GHD to begin construction of the condominium units, nor did it state that time was of the essence. The trial court is correct that “where a contractual obligation to perform exists, and no time is prescribed in the contract for performance, the law requires the obligated party to perform within a ‘reasonable time.’ ” Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992). However, the determination of a “reasonable time” is a question of fact and “‘depends upon the nature of the act to be done and all the circumstances relating to the act.’ ” Gray v. Reynolds, 553 So.2d 79, 82 (Ala.1989) (quoting Deupree v. Ruffino, 505 So.2d 1218, 1221 (Ala.1987)).

GHD argues that construction of the condominium units is a condition precedent to the fulfillment of its obligations pursuant to paragraph 14(A). Jimmy Langdon, an agent of GHD, testified by affidavit that GHD had immediately undertaken to improve the property and had expended “several million dollars.” However, according to Langdon, GHD suspended construction on the development due to the collapse of the real-estate market. Lang-don further testified that “[m]arket conditions at Orange Beach remain such that a project of this size and type is just not financially feasible.”

On the other hand, Lattof asserts that GHD’s obligations under paragraph 14(A) are due to be completed within a reasonable time and that GHD cannot escape from those obligations by preventing the construction of the condominium units. See Sims v. City of Birmingham, 256 Ala. 540, 55 So.2d 833, 837 (1952). Mitchell Lattof also testified via affidavit attached to Lattofs motion for a summary judgment. According to Mitchell Lattof, agents of GHD represented to him that the development would be completed in approximately three years.

We have carefully examined the contract in its entirety. We note that paragraphs 3 and 4 describe the options that were exercised under the contract, specifically that GHD exercised its option to purchase the property and that option fees paid up to that point were to be applied to the purchase price. We further note that paragraph 5 established the purchase price of $25,000,000, less the option fees GHD had already paid. The parties also agreed, pursuant to paragraph 5, that $1,000,000 of the purchase price would be allocated to improvement of a specific area of the property. The record indicates that the purchase price was tendered to Lattof; Lattof in turn tendered the deed to the property to GHD. Absent from the detailed language of the aforementioned paragraphs is a reference to any outstanding obligation of either party or a bargained-for option that could be exercised at a later date. In fact, we do not find any language within the four corners of the contract obligating GHD to perform under paragraph 14(A) before commencing the construction of the condominium units.

Viewing the evidence in a light most favorable to GHD, we conclude that a genuine issue of material fact exists regarding whether a reasonable time for performance was implied by the contract or whether the construction of the condominium units was a condition precedent to GHD’s obligations under paragraph 14(A).

III.

We next address whether the trial court incorrectly interpreted paragraph 14(A) when it awarded Lattof $1,525,000 plus 6% interest in damages. In its motion for a summary judgment, Lattof requested that the trial court award “court costs and such other relief as the [trial c]ourt deems appropriate.” Mitchell Lat-tof asserted in his affidavit that GHD “had the option to either provide [Lattof] with a credit of $1,500,000.00 towards the purchase of up to three (8) condominium units OR to provide [Lattof] a cash payment of $1,525,000.00.” (Capitalization in original.) The trial court, apparently adopting Lat-tofs interpretation of paragraph 14(A), stated in its judgment:

“6. As of the date of this Order, [GHD] has not performed under either option of [paragraph 14(A) of the [contract], and furthermore has not attempted to construct the condominium development so as to be able to perform the $1,500,000.00 credit option under said paragraph.
“8. [GHD] has been in breach of [pjaragraph 14(A) of the [contract] since December 15, 2008.”

The trial court awarded Lattof damages in the amount of $1,525,000 plus 6% interest accruing from the date the trial court determined that GHD had breached the contract, i.e., December 15, 2008.

' We are unpersuaded that paragraph 14(A) entitled Lattof to receive an award of $1,525,000 in lieu of the $1,500,000 credit toward the purchase of condominium units. In addition to describing the process by which condominium units would be conveyed from GHD to Lattof, paragraph 14(A) also provides:

“In lieu of providing all or part of this credit to Sellers, as a buy-out of all or some of Sellers’ under this paragraph 14(A), Buyer may pay to Sellers in cash at anytime prior to the execution of pre-construction purchase agreements using the entirety of the credit, the amount of the then remaining credit plus the sum of $25,000.00.”

We agree with Lattof that the above-quoted language vested GHD with the discretion to tender the money in lieu of conveying the condominium units. However, paragraph 14(A) contains no language vesting Lattof with the authority to demand the cash payment as a substitute for the condominium units. We therefore conclude that the plain language of paragraph 14(A) does not support an award of money damages to Lattof.

Conclusion

Based upon the foregoing, we hold that the trial court did not err insofar as it determined that the contract did not violate state statutes or the City’s subdivision regulations and that paragraph 14(A) was not so vague or ambiguous that it was effectively only an agreement to agree. However, we conclude that there was a genuine issue of material fact as to whether construction of the development was a condition precedent to GHD’s obligation to perform in accordance with paragraph 14(A) or, in the alternative, whether a reasonable time for such performance had elapsed. Accordingly, we reverse the summary judgment in favor of Lattof and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

THOMPSON, P.J., concurs in the result, without writing.

      . The legal description of the property in the contract referred to the "northeast corner of lot 3, Terry Cove Marina Planned Unit Development.” This is a point of reference from the adjoining development and is not a lot on the property at issue in the present case.

      . We recognize that "[i]t is a well-established rule of contract construction that any ambiguity in a contract must be construed against the drafter of the contract,” SouthTrust Bank v. Copeland One, L.L.C., 886 So.2d 38, 43 (Ala.2003); however, the contract in the present case incorporated the following agreement of the parties: "This [contract] shall not be construed against the drafter, as the parties acknowledge that both parties have been instrumental in the drafting hereof.”

      . GHD attached the affidavit of Sam Irby, an experienced real-estate attorney practicing in Baldwin County, in which Irby testified that it was his opinion that paragraph 14(A) was too vague and ambiguous to be enforceable. Lat-tof filed a motion to strike the Irby affidavit; the record does not indicate whether the trial court addressed the motion. However, because whether a contract is ambiguous is a question of law, see Booth, supra, Irby’s "expert" opinion does not create an issue of fact.

      . Lattof cites Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427 (1926), in support of the argument that a failing market does not excuse a party from a reasonable time for performance. Lattof’s interpretation of Murphy is overbroad. The issue in Murphy was whether an optionee had exercised an option to renew within the time specified in the contract. 215 Ala. at 414, 111 So. at 428-29. Tantamount to the Murphy court's analysis of the issue was its recognition that, "in option contracts, unless expressly negatived, time is always of the essence.” 215 Ala. at 415, 111 So. at 429. Due to its narrow focus on option contracts and the timber industry, we do not find Murphy instructive in the present case.

      . Because we have concluded that the contract was not vague or ambiguous, we will consider only the terms contained within the four corners of the contract. See McIntosh v. Livaudais, 979 So.2d 92, 95 (Ala.Civ.App. 2007) (quoting Strickland v. Rahaim, 549 So.2d 58, 60 (Ala. 1989)).