author: MOORE, Judge.

text:
    Kenith BROWN and Laqunda Brown v. Ronnie BUTTS and Tammy Butts.
    2140962.
    Court of Civil Appeals of Alabama.
    Feb. 12, 2016.
    Certiorari Denied July 8, 2016
    Alabama Supreme Court 1150561.

      W. Allen Sheehan of Capell & Howard, P.C., Montgomery, for appellants.
    Faye A. Schofield of Schofield Legal Solutions, LLC, Lapine, for appellees.
   MOORE, Judge.

Kenith Brown and his wife, Laqunda Brown, appeal from a judgment of the Crenshaw Circuit Court (“the trial court”) reforming a “residential lease” (“the contract”) that they had entered into with Ronnie Butts and his wife, Tammy Butts, regarding the lease and purchase of real property and a mobile home located in Luverne. We reverse the trial court’s judgment.

Procedural History

On May 28, 2013, the Buttses filed a complaint against the Browns, seeking, pursuant to Ala.Code 1975, § 8-1-2, to reform the contract that they had entered into with the Browns. The Buttses attached a copy of the contract to their complaint as an exhibit; that contract identified the Buttses as “Lessor” and the Browns as “Lessee.” Pursuant to the contract, the Buttses agreed to lease to the Browns a mobile home and real property-located in Luverne for a lease term of 30 years—June 1, 2004, to June 30, 2034—for $728 per month. The contract also provided, among other things:

“12. Lessee agrees that Lessor shall have the right to attach ‘For Sale’ or ‘For Rent’ signs or placards on the premises during the last thirty days of the lease term and to show the premises to any person desiring to rent or purchase the premises.
“a) The Lessee hereby and herewith shall have an Option to buy the premises at anytime during the Lease period. Said purchase price shall be $85,000.00. Lessor agrees to apply the entire amount of all lease payments made by Lessee excluding late charges or fees toward a down payment for said purchase at the time of purchase.”

In their complaint, the Buttses asserted that the contract contained an error that was the result of either a mutual mistake of the parties or a mistake of the Buttses that, the Buttses asserted, the Browns knew of or should have suspected at the time the contract was drafted and executed. The Buttses also asserted that the contract had omitted certain necessary clauses and that, as a result, it further failed to properly express the intent of the parties. The Browns answered and counterclaimed, asserting claims of “fraud, misrepresentation, and deceit” and breach of contract against the Buttses. The Buttses filed a reply to the Browns’ counterclaims. Following a hearing on January 6, 2015, the trial court entered a judgment on March 13, 2015, providing, in pertinent part:

“The Court finds that the lease agreement by and between the parties dated May, 2004, is an ambiguous agreement in that it purports to be a thirty (30) year lease agreement but provides for an option price to be paid in full by applying the entire lease payments which would have provided for payment in full of the sales price after the 117th monthly payment. The Court further finds the contract to be ambiguous in allowing for the full amount of the purchase price to be paid after payment of less than one-third (1/3) of the number of lease payments which would have been made in the thirty (30) year life of the lease agreement; allowed for the [Buttses] to erect signs for sale or rent during the last thirty (30) days of the thirty (30) year term; failed to provide any method for the [Browns] to exercise their option rights; failed to provide any method of conveyance of the leased premises; failed to require the [Buttses] to convey a free and clear title to the [Browns] in the event the [Browns] exercised their option to purchase. The Court is further concerned about the validity of [the] lease agreement in that it was not recorded and would be void pursuant to Section 35-4-6, Code of Alabama, after a period of twenty (20) years.
"....
“Therefore, the Court finds that the contract between the [Buttses] and [the Browns] dated May, 2004, does not express the true intent of the parties and reforms the same to the extent that the [Browns] shall only be allowed to exercise their option to purchase the lease property by paying to the [Buttses] the balance due on their financing to Land Investment Group, LLC, on the real estate contract and the balance due CIT Group, or its assigns, at the time they elect to exercise their option to purchase.”

The Browns filed a postjudgment motion on April 10, 2015; that motion was denied by the trial court on June 16, 2015. The Browns filed their notice of appeal to the Alabama Supreme Court on July 28, 2015; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Facts

Ronnie testified that he and Tammy had purchased 18 acres of real property (“the real property”) in July 2000 for $21,000 from Land Investment Group, LLC. The sales contract indicated that the Buttses made a $2,000 down payment and agreed to make 180 monthly payments of $203.55, which included interest calculated at a rate of 10% per annum. The Buttses thereafter purchased a double-wide mobile home (“the mobile home”) in November 2000, which they placed on the real property in December 2000. The Buttses financed the purchase of the mobile home through CIT Group/Sales Financing, Inc. The terms of the security agreement from that purchase indicate that the Buttses made a down payment of $5,561.85 and agreed to pay a balance of $50,168 through 360 monthly payments of $426.25, which included interest at a rate of 9.62% per annum.

Ronnie stated that, at some point before September 2003, he and Tammy had decided to sell the real property and the mobile home and that the Browns had subsequently contacted him and expressed an interest in purchasing both the real property and the mobile home. Ronnie testified that he and Tammy offered to sell the real property and the mobile home together for a total price of $85,000. According to Ronnie, at that time, he and Tammy had owed a total of approximately $75,000 on the notes that were secured by the real property and the mobile home. The Buttses set the sales price at $85,000 because they had hoped to recover additional amounts that they had paid for improvements to the property and to make a small profit. On September 25, 2003, the parties executed a document entitled “Offer to Purchase Real Estate” in which the Browns agreed to purchase the real property and the mobile home for $85,000, subject to their ability to obtain a mortgage in an amount of not less than $85,000 with an interest rate not to exceed 7.5%.

The parties all testified that the Browns were unable to obtain third-party financing to cover the $85,000. Ronnie subsequently presented the Browns with a lease agreement, pursuant to which they could lease the mobile home for one year for $500 per month; the Browns, however, declined to sign that agreement. Ronnie testified that he had subsequently “come to terms” with the Browns to sell the real property and the mobile home to them for $728 per month to be paid over the course of 30 years. Ronnie testified that he had determined the monthly payment amount to be included in the contract by adding together $430, which was the approximate amount of his and Tammy’s monthly payment on the mobile home, plus $203, which was the approximate amount of his and Tammy’s monthly payment on the real property, plus monthly amounts for taxes and insurance costs. Ronnie testified that he had made the contract term 30 years because his and Tammy’s note on the mobile home was a 30-year note.

Ronnie testified that he did not want the purchase to go on for 30 years, but, rather, he wanted the Browns to acquire financing and to pay the purchase price sooner so he had agreed “to having the $85,000 put into the contract so that they could acquire financing on it at a later date.” Ronnie testified as follows on direct examination by counsel for the Buttses:

“Q: And did you agree for them to be able to apply any of the lease payments toward the purchase price should they be able to buy it?
“[Ronnie]: That’s right.
“Q: How was that to work? What was the agreement you had with Mr. Brown on that?
“A: I told him, Mr. Brown, you know, anything that they had paid up to it, that it would come off that amount, but we never really talked about any interest.
“Q: Okay. Was it your understanding with Mr. Brown that any—that he be able to buy at any time during the lease if he paid off the debts that you have?
“A: That’s correct.
“Q: Was that your understanding what Mr. Brown—
“A: Yes.
“Q: If he paid off whatever you owed on it, both to Land Investment Group and to the mobile home, then you would deed over to him and convey the mobile home?
“A: That’s right.
“Q: Did you ever agree to finance this property for him without any interest payments?
“A: No.”

Ronnie also testified:

“Q: And you were willing at any time from the contract to convey the property to the Browns once they paid off what you owed on it?
“A: Yes.
“Q: Was that your understanding from Mr. and Mrs. Brown from the beginning?
“A: Yes.”

Ronnie testified that, when they were negotiating the sale, the Browns were aware of the encumbrances on the real property and the mobile home. However, Kenith testified that he did not know of the encumbrances. Although one portion of Laqunda’s testimony indicates that she was aware that the Buttses had a mortgage, in that she testified that the purpose of the contract had been for the Browns to finance the transaction through the Butts-es’ mortgage company, Laqunda also testified that she did not know about any loan the Buttses had on either the real property or the mobile home or the amount of any loan. Kenith testified that he had understood that the Browns would pay the Buttses $728 per month until the $85,000 was paid in full, at which point the Browns would own the real property and the mobile home, with no interest due. Kenith testified that he did not recall having ever discussed paying interest to the Buttses. Laqunda also testified that the parties had never discussed any interest payments and that the terms of their agreement solely contemplated payment of monthly installments of $728 with an option to purchase the real property and the mobile home for a total of $85,000.

Ronnie contacted John Folmar, a local attorney, to draft the contract. Folmar testified that, when he drafted the contract, it had been his understanding that the Browns intended to secure financing to purchase the real property and the mobile home “within a short period of time,” i.e., “one or two years.” He testified that, based on his understanding of the terms the parties wanted included in the contract, he had drafted the contract as a lease with an option to purchase, which he had included in Paragraph 12 of the contract. The contract does not specify any time limit for the exercise of the option to purchase. Folmar testified that he had left the 30-year lease term in the contract “just to try to protect the [Buttses] if something didn’t go through.” Folmar acknowledged that he had not included any provisions regarding interest in the contract although he was aware that the Buttses already had a mortgage on the real property. Ronnie testified that he had not instructed Folmar to include any provisions regarding interest or amortization of the payments in the contract. Ronnie testified on cross-examination as follows:

“Q: So you didn’t ask [Folmar] to put any language in there saying they would pay off your mortgages?
“A: No.
“Q: So Mr. Folmar put into the contract what you told him to put into the contract?
“A: Right.”

According to Folmar, all the parties read the contract before they signed it in May 2004. The contract includes the following clause:

“16. This Lease contains the entire agreement of the parties and there are no other agreement [sic], verbal or written, affecting this Lease that have not been incorporated herein or attached hereto.”

Kenith testified that the contract did not contain any mistakes.

Ronnie testified that, after the parties signed the contract, the Browns had taken possession of the real property and the mobile home and that they had made the monthly payments due under the contract since that time. He stated that he had applied those monthly payments to the payments that he and Tammy owed on the outstanding notes that were secured by the real property and the mobile home. Laqunda testified that, in February 2013, she and Kenith had chosen to exercise their option in the contract to purchase the real property and the mobile home and that she had sent Ronnie a letter notifying him that she and Kenith were prepared to pay the remaining balance of the $85,000 purchase price-$9,288-so that they could “assume the deed and the title.” The Buttses responded with a letter indicating that a balance of $51,757.74 remained owing on the notes securing the mobile home and the real property and that the Browns would have to pay that amount in order to satisfy the contract. Ronnie also discussed with the Browns on one or two occasions that they could purchase the property by paying off the balances owed on the Buttses’ notes on the real property and the mobile home. The Browns elected to continue making the $728 monthly payments even after having paid the Buttses $85,000. Ronnie testified that it would not be possible for him and Tammy to convey the real property and the mobile home to the Browns because they were both still subject to the notes that he and Tammy had executed when they had purchased them and that he and Tammy could not give the Browns a deed until such time as those notes were paid in full.

Analysis

The Browns argue on appeal that the trial court erred in concluding that the contract is ambiguous.

“Whether a contract is ambiguous is a question of law for the trial court to decide, a decision that we review de novo. See FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So.2d 344, 357 (Ala.2005). A contract is ambiguous- if it is ‘reasonably susceptible of more than one meaning.’ Id.”

Carroll v. LJC Defense Contracting, Inc., 24 So.3d 448, 455 (Ala.Civ.App.2009). In Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So.2d 932, 942 (Ala.1983), our supreme court explained:

“The threshold issue—whether or not the contract is ambiguous—is itself a question of law. Holt v. Davidson, 388 So.2d 548 (Ala.1980). In answering this threshold question, the trial court may consider extrinsic evidence in order to determine whether there is a latent ambiguity arising from some collateral matter outside the writing. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666, 672 (Ala.1981); Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692 (1957).”

The contract at issue in this case provides that the Browns shall have an option “to buy the premises at anytime during the Lease period” from June 1, 2004, until June 30, 2034, for the purchase price of $85,000 and that all payments made by the Browns under the contract, less “late charges or fees,” shall be applied to “a down payment for said purchase at the time of purchase.” Although the trial court might have questioned the need for a 30-year lease term when the full purchase price would be paid off in under 10 years, those terms are not mutually exclusive. Additionally, the terms of the contract are not inconsistent with the clause allowing the Buttses to erect signs for sale or rent during the last 30 days of the 30-year lease term. Thus, there was no patent ambiguity, which is an ambiguity “that is apparent upon the face of the instrument, arising by reason of inconsistency or uncertainty in the language employed,” Meyer v. Meyer, 952 So.2d 384, 391 (Ala.Civ.App.2006), in the contract.

“[A] latent ambiguity is one that ‘appear[s] only as the result of extrinsic or collateral evidence showing that a word, thought to have but one meaning, actually has two or more meanings.’ ” Meyer, 952 So.2d at 392 (quoting 11 Williston on Contracts § 33:40 at 816 (4th ed.2003)). The trial court allowed the parties to testify as to their understanding of the contract and their intentions with regard to their agreement. Based on that testimony, it appears that the parties had two different intentions with regard to the terms of the contract because Ronnie testified that he had intended for the Browns to own the real property and the mobile home upon satisfaction of the notes owed on both and because the Browns testified that they had understood the agreement to be in accordance with the terms as stated in the contract, i.e., that the entirety of their monthly lease payments would be applied to the purchase price and that, once they had paid the $85,000, they would own the property. The discrepancy in the parties’ intentions, however, does not create an ambiguity in the contract itself. See Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So.2d 837, 840 (1973) (“The mere fact that adverse parties contend for different constructions does not of itself force the conclusion that the disputed language is ambiguous.”).

To the extent the trial court also found that the contract was ambiguous because it failed to provide any method for the Browns to exercise their option rights, our supreme court has adopted language indicating that, “ ‘[i]n the absence of any provision in the option contract with reference to the manner by which an option can be exercised, it is the general rule that any manifestation, either oral or written, indicating an acceptance on the part of the optionee is sufficient.’ ” McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 23 (Ala.1986) (quoting Duprey v. Donahoe, 52 Wash.2d 129, 133-34, 323 P.2d 903, 905 (1958)). The trial court also noted as an ambiguity that the contract failed to provide any method of conveyance of the leased premises. We note, however, that “[w]here a contract is silent, usage or custom becomes a part of the contract.” Green Tree Fin. Corp. of Alabama v. Wampler, 749 So.2d 409, 415 (Ala.1999). Additionally, the “manner of performance as well as the terms of performance of a contract may be implied from the facts.” Watts Homes, Inc. v. Alonzo, 452 So.2d 1331, 1332 (Ala.Civ.App.1984). In the present case, it could be inferred, based on typical transactions involving the sale of property, that the method of conveyance would be by deed and transfer of title. To the extent the trial court concluded that the failure of the contract to require the Buttses to convey a free and clear title to the Browns in the event the Browns exercised their option to purchase also amounted to an ambiguity, we note that such a requirement “is usually implied when not otherwise stipulated.” Alabama Butane Gas Co. v. Tarrant Land Co., 245 Ala. 550, 552, 18 So.2d 91, 93 (1944).

The trial court also expressed its concern regarding the validity of the contract based on the fact that it was not recorded and that it “would be void pursuant to Section 35-4-6, Code of Alabama, after a period of twenty (20) years.” Section 35-4-6, Ala.Code 1975, provides, in pertinent part, that

“[ljeases for more than 20 years shall be void for the excess over said period unless the lease or a memorandum thereof is acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated.”

It is undisputed that the contract was signed in 2004. Because 20 years have not yet elapsed since the signing of the contract, § 35-4-6 would not yet apply.

The Buttses argue on appeal that the exclusion of “late charges or fees” from the application of the lease payments to the purchase price creates an ambiguity because, they say, the contract does not define “fees.” We disagree. An undefined word or phrase does not create an inherent ambiguity. Hipsh v. Graham Creek Estates Owners Ass’n, 927 So.2d 846, 849 (Ala.Civ.App.2005). “To the contrary, where questions arise as to the meaning of an undefined word or phrase, the court should simply give the undefined word or phrase the same meaning that a person of ordinary intelligence would give it.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 692 (Ala.2001). In the present case, the contract refers to late charges for failure to pay rent on time, and, in that same paragraph, it refers to the Browns’ responsibility for paying all costs of collecting all rent payments, including reasonable attorney’s fees. We conclude that a reasonable interpretation of the reference to “fees” later in the contract was likely with regard to those fees referenced earlier in the contract itself or could have simply been reiterating that late charges or late fees were not to be included in the calculations. Similarly, the Buttses’ argument on appeal that the reference to “rent” payments in other portions of the contract, as opposed to the portion of the contract stating that “lease payments” are to be applied to the purchase price, is without merit. It is a reasonable interpretation of the contract to consider the reference to “lease payments” as the monthly “rent” payments discussed earlier in the contract, because those two terms are synonymous.

The Buttses also argue on appeal that the contract is ambiguous because the contract does not indicate what would happen with regard to payments made in excess of the $85,000 purchase price in the event the Browns paid the monthly lease payments for 20 years, then decided to exercise their option to purchase. Although the Browns attempted to exercise their option to purchase before the $85,000 purchase price had been paid, we conclude that the possibility of their having paid greater than $85,000 before exercising their option to purchase does not render the contract ambiguous. The contract states that the lease payments are to be applied to the purchase price pursuant to the option to purchase. The contract also states that the lease amount is $728 per month. Thus, any lease payments that were not applied to the purchase price remain lease payments in accordance with the terms of the contract itself.

Because the contract in the present case is not ambiguous, the trial court should have proceeded to ‘“determine the force and effect of the terms of the contract as a matter of law.’ ” Cherokee Farms, Inc. v. Fireman’s Fund Ins. Co., 526 So.2d 871, 873 (Ala.1988) (quoting Wigington v. Hill-Soberg Co., 396 So.2d 97, 98 (Ala.1981)). As discussed above, the contract, as written, provides for the application of each of the Browns’ lease payments toward the $85,000 purchase price stated in the contract. This is not the end of our inquiry, however. The Buttses also sought in their complaint to reform the contract based on mistake.

The Browns argue on appeal that the trial court erred in reforming the contract. We agree. Section 8-1-2, Ala. Code 1975, provides:

“When, through fraud, a mutual mistake of the parties or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, so far as it can be done without prejudice to the rights acquired by third persons in good faith and for value.”

The Browns argue on appeal that the trial court erred in determining that the contract did not express the intention of the parties.

“ ‘[WJhen a writing through mutual mistake of the parties, or mistake of one of the parties, and fraud or deception on the part of the other, or mistake of the scrivener who drew the contract for the parties, contains substantially more or less than the parties intended nr the intention of the parties is not expressed “due to inapt language” it will be reformed to express the true intention of the parties.’ Atlas Assur. Co., Ltd., of London, England v. Byrne, 235 Ala. 281, 282, 178 So. 451, 452 (1938). Alabama views scrivener’s errors as mutuality of mistake, and such errors are subject to reformation. Sherman v. Woerner Magnolia Farms, Inc., 565 So.2d 601, 604 (Ala.1990). A party seeking to have an instrument reformed must produce clear and convincing evidence that the .instrument does not express the intent of the parties. Pinson v. Veach, 388 So.2d 964 (Ala.1980). ‘[T]he parol evidence rule is no impediment when one seeks to reform a conveyance because of mutual mistake.’ West v. Law, 577 So.2d 445, 446 (Ala.1991); § 8-1-2, Ala. Code 1975. Generally, a unilateral mistake is not a ground for reformation. American Liberty Ins. Co. v. Leonard, 270 Ala. 17, 115 So.2d 470 (1959). Reformation is authorized when there is fraud or inequitable conduct on the part of the other party to the contract. Id.”

Pullum v. Pullum, 58 So.3d 752, 756-57 (Ala.2010).

In the present case, as discussed above, the testimony reveals that the parties had different intentions with regard to the purchase option in the contract. Although Folmar testified that the parties had intended for the Browns to exercise their option to purchase the real property and the mobile home earlier than they ultimately exercised that option, Folmar’s testimony did not indicate that the contract contained a mutual mistake or that the parties’ intentions regarding the terms of the agreement were not accurately expressed in the contract. Rather, his testimony spoke to the parties’ intentions regarding the timing of their actions after the contract was signed. Ronnie, Kenith, and Laqunda all testified that the parties had not discussed interest at any time with regard to the purchase of the real property and the mobile home or the drafting of the contract. Thus, there is no indication of mutual mistake or fraud in the contract.

To the extent that the contract fails to properly express the intention of the Buttses in memorializing their agreement with the Browns, our supreme court discussed the effect of such a unilateral mistake in Ex parte Perusini Construction Co., 242 Ala. 632, 635-36, 7 So.2d 576, 578 (1942):

“It has been declared that if, in the expression of the intention of one of the parties to an alleged contract, there is error, and that error is unknown to and unsuspected by the other party, that which was so expressed by the one party and agreed to by the other is valid and binding as a contract, which the party not in error may enforce. In other words, a party to a contract cannot avoid it on the ground that he made a mistake where there has been no misrepresentation, and there is no ambiguity in the terms of the contract, and the other contractor has no notice of such mistake and acts in perfect good faith. A unilateral error, it has been said does not avoid a contract. But this rule is by no means invariably applied in the cancellation of contracts. It is said that mistake may be a good defense when hardships amounting to injustice would be inflicted on a party by holding him to his apparent bargain, and where it is unreasonable to hold him to it. However, a unilateral mistake in the making of a contract, of which the other contracting party is entirely ignorant, and to which he in no way contributes, will not affect the contract, or afford ground for its avoidance or rescission, unless it be such a mistake as goes to the substance of the contract itself. Not only must the mistake be material to the transaction, but the person who made the mistake must show, when he applies to an equity court for a rescission of the contract, that his mistake is not due to want of care or diligence, although the conclusion warranted by the best considered authorities is that mere neglect may not be a bar to the setting aside of the contract unless it is such as amounts to the violation of a positive legal duty and such as prejudiced the other party. What has been said applies only to cases in which one of the parties is entirely innocent of the other’s mistake.
“If one of the parties, through mistake, names a consideration that is out of all proportion to the value of the subject of negotiation and the other party realizing that a mistake must have been committed, takes advantage of it and refuses to let the mistake be corrected when it is discovered, he cannot under these conditions claim an enforceable contract. Where there is a mistake that on its face is so palpable as to place a person of reasonable intelligence upon his guard, there is not a meeting of the minds of the parties, and consequently there can be no contract. 6 R.C.L. page 623, section 42; 12 Amer. Jur. 624, section 133, and cases there cited.”

The Browns argue that they had no reason to suspect that a mistake had been made in the drafting of the contract. We agree. Ronnie testified repeatedly that he had intended that the Browns would acquire the real property and the mobile home upon payment of the debts the Buttses owed on them, which, Ronnie testified, amounted to approximately $75,000 in 2004. Even assuming, for the sake of appellate review, that the Browns agreed to pay off the Buttses’ debts in order to acquire the property, the fact remains that the Buttses never disclosed the terms of those debts to the Browns. From their perspective, the $85,000 purchase price, which Ronnie testified he had calculated in order to clear the debts and to make a small profit, was sufficient to cover whatever debts the Buttses owed. The evidence is undisputed that at no point did the parties discuss interest payments or an amortization schedule, so the Browns could not have known that the $85,000 purchase price would be subject to change over time. Based on the circumstances, the Browns could not have known that the Buttses had made a mistake in calculating the purchase price by failing to account for interest.

The Buttses did not present clear and convincing evidence indicating that the contract failed to express the intent of the parties. See Pullum, supra. Moreover, it is clear that the trial court’s reformation would prejudice the Browns, who believed that they would receive the real property and the mobile home in accordance with the terms of the contract as written. See Ex parte Perusini, supra. Because the trial court erred in reforming the contract, which was the result, at best, of a unilateral mistake by the Buttses, we reverse the trial court’s judgment and remand the case for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . Laqunda signed the contract at issue in this case as "Laqunda Julian.” Subsequently, La-qunda and Kenith were married, and Laqun-da testified at the trial that her full name is now "Laqunda Julian Brown.”


source: Caselaw Access Project

author: PER CURIAM. MOORE, Judge,

license: Public Domain

text:
    Ex parte Byron STOUFFER (In re Byron Stouffer v. Heather Stouffer Wilson).
    2140981.
    Court of Civil Appeals of Alabama.
    March 25, 2016.
    Certiorari Denied July 8, 2016
    Alabama Supreme Court 1150726.

      Eric B. Funderburk of Funderburk & Lane, Phenix City, for petitioner.
    Edward F. Berry, Columbus, Georgia, for respondent.
   On Application for Rehearing

PER CURIAM.

This court’s opinion of November 6, 2015, is withdrawn, and the following is substituted therefor.

Byron Stouffer (“the father”) petitions this court for a writ of mandamus directing the Russell Circuit Court (“the trial court”) to enter an order vacating its August 26, 2015, order and all other orders issued in case no. DR-14-53.01 based on its purported lack of subject-matter jurisdiction. We deny the petition.

Procedural History

The father and Heather Stouffer Wilson (“the mother”) were divorced by a judgment entered by the Hoke County District Court in North Carolina (“the North Carolina court”) on August 25, 2003; that judgment incorporated a settlement agreement entered into by the parties that, among other things, awarded the parties joint , legal custody of the parties’ child, C.J.S. (“the child”), and awarded the father primary physical custody of the child, subject to the mother’s visitation. On August 15, 2007, ,the North Carolina court entered a judgment incorporating an agreement of the parties that, among other things, awarded the parties “joint permanent custody ... with the [mother] having the primary custody and the [father] having the secondary custody” and also awarded standard visitation to the father (“the North Carolina modification judgment”).

The mother and the father were previously before this court in appeal no. 2140061, in which we affirmed, without an opinion, a September 19,2014, judgment of the trial court declining to modify custody of the child pursuant to the father’s custody-modification petition following the trial court’s domestication of the North Carolina modification judgment. See Stouffer v. Wilson (No. 2140061, July 10, 2015), — So.3d - (Ala.Civ.App.2015) (table). This court entered its certificate of judgment in Stouffer on July 29, 2015. We note that, although the trial court, in its September 19, 2014, judgment, declined to transfer sole physical custody of the child to the father, as requested in the father’s petition, the trial court awarded the father “liberal visitation to be agreed between the parties.” Because that award differed from the North Carolina modification judgment, which had awarded the father specified visitation, the trial court’s September 19, 2014, judgment modified the North Carolina modification judgment in accordance with Ala.Code 1975, § 30-3B-102(H), a part of Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), Ala. Code 1975, § 30-BB-101 et seq. The father did not challenge that part of the trial court’s judgment in Stouffer modifying his visitation with the child.

On July 22, 2015, the mother filed in the trial court a petition for a finding of contempt against the father. She asserted, among other things, that, at that time, she was a resident of Colorado, having recently moved from Alabama to that state, and that, on July 19, 2015, the date on which the father’s summer visitation with the child in Pennsylvania, where the father resides, was to end, the mother had received a text message from the father informing her that he was not returning the child to her custody. The mother sought the issuance of an instanter order requiring the father to return the child to her custody, an award of temporary and exclusive custody of the child to the mother, and pendente Kte relief. The trial court filed an instanter order on July 22, 2015, ordering law-enforcement authorities to dispatch a deputy to facilitate the orderly transfer of the child from any person who had custody of the child to the mother. On that same date, the trial court entered an order denying the mother’s request for pendente lite relief. Also on July 22, 2015, the father filed an answer to the mother’s contempt petition and a custody-modification petition, seeking primary physical custody of the child.

On July 27, 2015, the mother filed in the Franklin County Branch of the Court of Common Pleas of the 39th Judicial District of Pennsylvania (“the Pennsylvania court”) a petition for registration of the trial court’s September 19, 2014, judgment and its July 22, 2015, instanter order and for the “expedited enforcement” of both. In her petition, the mother asserted, among other things, that Pennsylvania law-enforcement authorities had been unwilling to facilitate the transfer of the child without first having the trial court’s July 22, 2015, instanter order registered in Pennsylvania. She sought attorney’s fees, an expedited hearing, immediate custody of the child pursuant to the orders of the trial court, and an order requiring law-enforcement authorities to assist her in obtaining physical custody of the child. On July 28, 2015, the Pennsylvania court entered an order registering the trial court’s September 19, 2014, judgment and its July 22, 2015, instanter order; awarding the mother sole physical custody of the child; and ordering Pennsylvania law-enforcement authorities to enforce the terms of the Pennsylvania court’s order. - The mother filed a petition for a finding of contempt against. the father in the Pennsylvania court on August 4, 2015; she asserted therein, among other things, that the child had refused to leave the father’s home despite the best efforts of the Franklin County Sheriffs Department (“the Pennsylvania sheriffs department”). The mother requested that the Pennsylvania court set a contempt hearing, that it order the father to appear in court with the child, and that it enter an order directing the Pennsylvania sheriffs department to physically remove the child from the father’s home and transfer him to the mother’s custody. On August 6, 2015, the father filed in the Pennsylvania court an emergency petition for special relief. The father sought sole physical custody of the child based on his concerns for the child’s safety and best interests.

On August 13, 2015, the Pennsylvania court entered an order finding that temporary emergency jurisdiction existed under Pennsylvania’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa. Cons.Stat. Ann. § 5401 et seq., concluding that, due to safety concerns for the child, an emergency situation existed and suspending enforcement of its July 28, 2015, order directing that the child be returned to the mother’s custody. The Pennsylvania court, repeatedly noting the temporary nature of its emergency order, further indicated that it was “in no way assuming permanent jurisdiction” and that the trial court would be contacted and advised of the emergency order. The Pennsylvania court entered a second order on August 13, 2015, concluding that the father’s actions had not been willful with regard to the child’s failure to return to the mother and denying the mother’s contempt petition. On August 14, 2015, the Pennsylvania court entered an order indicating, among other things, that it had conducted an emergency hearing pursuant to the father’s request that it exercise temporary emergency jurisdiction as to the child; that the Pennsylvania court had contacted the trial court; and that, “for the six months prior to the filing of [the] proceedings [in the Pennsylvania court] the child’s home state for jurisdictional purposes remains ... Alabama.” The Pennsylvania court ordered that its August 13, 2015, emergency custody order would terminate on November 11, 2015, and it directed the parties to resume proceedings in the trial court within that period.

On August 19, 2015, the mother filed a motion in the trial court seeking an emergency order from the trial court setting a hearing and awarding her “sole permanent and exclusive custody” of the child. The trial court entered an order setting the mother’s motion for a hearing on August 26, 2015. On August 21, 2015, the father filed in the trial court an objection to the setting of an emergency hearing and a motion seeking to “transfer jurisdiction”— i.e., to cede jurisdiction to determine issues relating to the child’s custody—to Pennsylvania. In his motion to transfer jurisdiction, the father admitted that, for purposes of the present case, Alabama would be the home state of the child, although he also argued that, as between Alabama, Pennsylvania, and Colorado, it would also be the least convenient forum. The trial court entered an order on August 26, 2015, noting that, at the healing on that date, the father had appeared through counsel and that the father’s counsel had moved to dismiss the father’s request to modify custody, which the trial court had granted. The trial court stated, in pertinent part:

“[The father] submitted himself to the jurisdiction of this Court on July 22, 2015, by seeking yet another modification of custody then decided, once he got a favorable ruling in [the] Pennsylvania [court] that [this court] no longer had jurisdiction.
“This Court does not find it necessary to decide whether or not it had continuing jurisdiction to modify custody since there is no request to modify pending before it. The only issue is whether this court has jurisdiction to enforce its Order.
“Further the Court found jurisdiction at the commencement of the action.
“The argument of the [father] is essentially that [neither] this court, nor any other court, can enforce the custody order of September 29, 2014. This court finds such a position to be untenable. Courts have inherent power to enforce its own orders.”

The trial court then directed the father to return the child to the mother within seven days of the entry of the order and noted that his failure to do so would constitute contempt of court for which the father would be placed in jail until he purged himself of the contempt. On September 1, 2015, the father filed a motion to alter, amend, or vacate the trial court’s August 26, 2015, order, arguing that the trial court lacked jurisdiction over the child-custody determination. The trial court entered an order denying the father’s motion on September 2, 2015. On that same date, the trial court entered an order denying a motion for a stay that had been filed by the father. The father filed a petition for a writ of mandamus in this court on that same date. The father also filed a request for a stay, which this court granted pending further order by this court.

Analysis

“ ‘A writ of mandamus is an extraordinary remedy, and it “will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).

The father argues in his petition that the trial court did not have subject-matter jurisdiction to enter its August 26, 2015, order. He asserts that Ala.Code 1975, § 30-3B-202, a part of the UC-CJEA, applies to enforcement of a child-custody determination in addition to modifications of a child-custody determination. Section 30-3B-202 provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201[, Ala.Code 1975,] or Section 30-3B-203[, Ala.Code 1975,] has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
“(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
“(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.”

The father argues that, because § 30-3B-202(a) provides that a court of this state “has continuing, exclusive jurisdiction over the [child-custody] determination” until such time as specified in the statute, that section applies to the enforcement of the child-custody determination as well as to the modification of that determination. We disagree. Rather, § 30-3B-202(a) refers only to the continuing, exclusive jurisdiction of a court to modify the determination. That Code section does not address the jurisdiction of a court of this state to enforce its own orders and judgments. See In re Marriage of Medill, 179 Or.App. 630, 646, 40 P.3d 1087, 1096 (2002) (“The UCCJEA does not expressly address the enforcement of a custody determination made ... by a court of a state that no longer has jurisdiction to modify that determination, .. .”). “A trial court has the inherent power to enforce its judgments ‘and to make such orders and issue such process as may be necessary to render [the judgments] effective.’ ” Goetsch v. Goetsch, 990 So.2d 403, 413 (Ala.Civ.App.2008) (quoting Dial v. Morgan, 515 So.2d 14, 15 (Ala.Civ.App.1987)). To the extent that § 30-3B-202(a) implicates a trial court’s power to enforce its judgments by observing that it continues to have “exclusive jurisdiction over the determination,” it refers only to a court’s power to enforce and interpret its judgments as that power is derived from state law. See In re Marriage of Medill, 179 Or.App. at 647, 40 P.3d at 1097 (recognizing that a trial court’s loss of jurisdiction to modify the existing custody determination under the UCCJEA does not, by force of logic, render that determination unenforceable); Heilig v. Heilig (No. W2013-01232-COA-R3-CV, Feb. 28, 2014) (Tenn.Ct.App.2014) (not reported in S.W.3d); and Nelson v. Norys (No.2004-CA-001725-ME, July 29, 2006) (Ky.Ct.App.2005) (not reported in S.W.3d).

The father also argues that the trial court’s August 26, 2015, order was a modification of the trial court’s September 19, 2014, judgment because, he says, that order superseded the September 19, 2014, judgment by requiring that the child be returned to the mother within seven days. We disagree. The September 19, 2014, judgment allowed for the father’s visitation with the child as agreed between the mother and the father. Because it is clear from the proceedings below that the mother and the father had not agreed for the child to continue visiting the father at the time the mother filed her contempt petition on July 22, 2015, the trial court was merely enforcing its judgment and returning the child to the mother’s physical custody, which she was awarded in the September 19, 2014, judgment. We note further that, even if the trial court’s August 26, 2015, order was, in fact, a modification of the September 19, 2014, judgment, the trial court was within its jurisdiction'to modify that judgment pursuant to § 30-3B-202(b).

Pursuant to Ala.Code 1975, § 30-3B-201(a), a court of this state has jurisdiction to make an initial child-custody determination only if:

“(1) This state' is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207[, Ala.Code 1975,] or 30-3B-208, [Ala. Code 1975,] and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(8) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

The father argues that the tidal court lost jurisdiction to modify the child-custody determination when the mother moved to Colorado. He cites Peterson v. Peterson, 965 So.2d 1096, 1101 (Ala.Civ.App. 2007), in which this court affirmed a judgment of the Mobile Circuit Court deferring to the jurisdiction of a North Carolina court with regard to issues of custody and visitation regarding the children at issue in that case. In Peterson, the Mobile Circuit Court had entered a judgment divorcing the parties and awarding the father sole physical custody of the parties’ children. Id. at 1097. Following the entry of the divorce judgment, the father took the children to live with him in North Carolina; although the children returned to Alabama and resided with their maternal grandparents from August 2003 until July 2004, they had remained with the father in North Carolina since July 2004. Id. The mother resided in North Carolina from December 2003 until January 2005; during that time, on December 21, 2004, the mother filed a petition in Alabama seeking a modification of the divorce judgment. Id. This court concluded that the evidence justified a determination that, pursuant to § 30-3B-202(a)(2), the Mobile Circuit Court did not have continuing, exclusive jurisdiction to adjudicate the mother’s petition because neither the children, nor the children’s parents, nor any person acting as a parent were residing in Alabama at the time the mother filed her petition for modification. Id. at 1099-1100. We further determined that § 30-3B-201 did not confer subject-matter jurisdiction upon the Mobile Circuit Court because the record established that the mother, the father, and the children were all residing in North Carolina when the mother filed her modification petition and there was no evidence in the record indicating that'a North Carolina court had declined to exercise jurisdiction. Id. at 1100.

In the present case, like in Peterson, neither the mother, nor the father,, nor the child, nor any person acting as a parent were residing in Alabama at the time the mother filed her motion for an emergency hearing on August. 19, 2015. Unlike in Peterson, however, § 30-3B-201 confers jurisdiction on the trial court in the present case. The “home state” of a child is defined in § 30-3B-102(7) as “[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Because the child was visiting the father at the time the mother moved to Colorado, it is clear that Colorado was not the child’s home state at any time. Additionally, Pennsylvania is clearly not the child’s home state because the child has not lived in Pennsylvania for at least six consecutive months at any time of which this court is aware. Thus, no court of any other state would have jurisdiction pursuant to § 30-3B-201(a)(l). Indeed, the father admitted in his August 21, 2015, motion before the trial court that," for purposes of the present case, Alabama would be the home state of the child. To the extent that Pennsylvania could assert jurisdiction over an initial custody determination in the present case based on the father’s residing in that state and the child’s presence therein, we note that the Pennsylvania court declined jurisdiction. Specifically, the Pennsylvania court stated in its August 14, 2015, order, that it “is of the opinion that for the six months prior to the filing of these proceedings the child’s home state for jurisdictional purposes remains ... Alabama.” Thus, Alabama would have jurisdiction to make an initial child-custody determination pursuant to § 30-3B-201(a)(3). To the extent that the Pennsylvania court could not assert jurisdiction in the present case to make an initial child-custody determination, Alabama would have jurisdiction to make such a determination pursuant to § 30-3B-201(a)(4). We conclude therefore that, because the trial court would have jurisdiction to make an initial child-custody determination in the present case, the father’s argument that the trial court did not have jurisdiction to enforce its September 2014 judgment or to modify that judgment based on the operation of § 30-3B-202 is without merit.

Because the father has failed to prove a clear legal right to the order sought in his petition for a writ of mandamus, we deny the petition.

APPLICATION GRANTED; OPINION OF NOVEMBER 6, 2015, WITHDRAWN; OPINION SUBSTITUTED; PETITION DENIED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent. The sole question before this court is whether the Russell Circuit Court (“the trial court”) had subject-matter jurisdiction to enter its August 26, 2015, order. In that order, the trial court commanded Byron Stouffer (“the father”) to return C.J.S. (“the child”) to the physical custody of Heather Stouf-fer Wilson (“the mother”). In doing so, the trial court, as it expressly stated, was acting to enforce its own judgment entered on September 19, 2014 (“the 2014 judgment”), not to modify it. The father asserts that the trial court did not have jurisdiction to enforce the 2014 judgment because neither he, nor the mother, nor the child were residing in Alabama on July 22, 2015, when the mother commenced her action to enforce the 2014 judgment. I agree.

Section 30-3B-202, Ala.Code 1975, provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201[, Ala.Code 1975,] or Section 30-3B-203[, Ala.Code 1975,] has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
' “(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

By its unambiguous language, § 30-3B-202 grants a court of this state that has made a child-custody determination “continuing, exclusive jurisdiction” over that determination. Such jurisdiction inherently would include the power to enforce the judgment by any lawful means, not just the power to modify the judgment. Equally unambiguously, § 30-3B-202(a)(2) provides that the continuing, exclusive jurisdiction of the court ends when “the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

In this case, it is undisputed that the child and the child’s parents did not reside in Alabama on July 22, 2015, the date the mother commenced her enforcement action. See Peterson v. Peterson, 965 So.2d 1096, 1099 (Ala.Civ.App.2007) (holding that the continuing, exclusive jurisdiction of a court over a child-custody determination depends on the circumstances existing at the time an action seeking to invoke that jurisdiction is commenced). The mother had moved her residence from Alabama to Colorado a month before she commenced the enforcement action. The father was a resident of Pennsylvania when the mother commenced her enforcement action. The child was supposed to move with the mother to Colorado, but declined, expressing an intention to reside with the father in Pennsylvania. Regardless of the ultimate disposition as to his custody, the child no longer resided in Alabama in July 2015. Hence, pursuant to § 30-3B-202(a), the trial court had lost continuing, exclusive jurisdiction and, with it, the power to enforce the 2014 judgment.

Because the trial court did not have jurisdiction to enforce the 2014 judgment, this court should issue the writ of mandamus for which the father petitions.

      . Although the father argues on rehearing that the trial court had modified the child’s custody by awarding “sole physical custody” to the mother, in contrast to the North Carolina modification judgment, which awarded the parties "joint permanent custody,” we note that that aspect of the trial court’s September 19, 2014, judgment was not a departure from the North Carolina modification judgment and, thus, did not amount to a modification thereof. The trial court's judgment specified that the parties were awarded joint legal custody of the child, with the mother being awarded sole physical custody of the child, subject to the father’s visitation. Because that award merely reaffirmed the North Carolina modification judgment regarding custody of the child, albeit using different terminology, that aspect of the custody award did not amount to a modification of custody pursuant to Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, Ala.Code 1975, § 30-3B-101 et seq. See Smith v. Smith, 887 So.2d 257, 262 (Ala.Civ.App.2003) ("there is but one way to interpret a judgment that awards ‘joint custody’ with an award of ‘primary physical custody’ to one parent—such a judgment must be interpreted as awarding the parents joint legal custody and awarding one parent sole physical custody, the term used by [Ala.Code 1975, § 30-3-151,] to denote a parent being favored with the right of custody over the other parent, who will receive visitation”).

      . A "modification’ is defined in § 30-3B-102(11) as "[a] child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.” A "child custody determination” is defined in Ala.Code 1975, § 30-3B-102(3), in pertinent part, as "[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” Because the trial court’s September 19, 2014, judgment modified the father’s visitation with the child, that order was a "modification” as defined in Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, Ala. Code 1975, § 30-3B-101 et seq.

      . We note that nothing in this opinion should be interpreted as indicating that, where the UCCJEA bestows jurisdiction (other than temporary emergency jurisdiction) upon a court of another state in a child-custody proceeding and the jurisdiction of that other state’s court is duly invoked, a court of this state may continue to exercise its jurisdiction over a child-custody determination.

      . Thus, I find no need to discuss the jurisdiction of the trial court to modify the 2014 judgment.


text:
    FREEMANVILLE WATER SYSTEM, INC. v. Wayne DREW and Johnny Shell.
    2140569.
    Court of Civil Appeals of Alabama.
    April 1, 2016.
    Rehearing Denied May 30, 2016.
    Certiorari Denied July 8,2016
    Alabama Supreme Court 1150937.

      H. William Wasden and Taylor Barr Johnson of Burr & Forman LLP, Mobile, for appellant.
    Charles E. Johns, Jr., Brewton, for ap-pellees.
   MOORE, Judge.

Freemanville Water System, Inc. (“FWS”), appeals from a judgment of the Escambia Circuit Court (“the trial court”) in favor of Wayne Drew and Johnny Shell. We affirm the trial court’s judgment.

Background

FWS is a voluntary incorporated association that was formed to construct, maintain, and operate a water system to supply its members with water. The bylaws of FWS provide, in pertinent part, that special meetings of the members of FWS must be called whenever a petition requesting such meeting is signed by at least 10 percent of the members and presented to the secretary or to the board of directors of FWS. In December 2013, Drew and Shell, acting as members of FWS, presented a petition to FWS requesting a special meeting and calling for the removal of Edward Adams as the president and chairman of the board of FWS. That petition bore 120 signatures purportedly of different members of FWS, more than enough to surpass the 10 percent threshold required for the calling of a special meeting of FWS’s members.

Adams and Jethro Dailey, a member of the FWS board of directors, reviewed the petition and questioned the legibility and legitimacy of some of the signatures. They submitted the petition to Mark Ryan, an attorney. Based on Ryan’s advice, the FWS board resolved to hire Ryan and his law firm to perform an investigation into the signatures on the petition. Based on that investigation, Ryan and his law firm determined that the petition was not supported by a sufficient number of signatures because, for various reasons, 25 of the signatures on the petition were invalid. Ryan recommended that the board deny the request for a special meeting and that it require Drew and Shell to pay the costs of the investigation through a special assessment. The FWS board voted to follow Ryan’s recommendations and issued a resolution ordering Drew and Shell to pay $29,796.40 to cover the costs of the investigation by May 15, 2014, or else lose then-water services.

On May 15, 2014, Drew and Shell filed a complaint in the trial court seeking a declaratory judgment and injunctive relief against FWS. Drew and Shell requested that the trial court declare that the FWS board did not have the authority to issue a special assessment against them for the payment of the legal fees or to take any action to affect their membership status as a result of their refusal to pay that special assessment. Drew and Shell prayed that the trial court enter a permanent injunction to prevent the FWS board from enforcing the special assessment and from otherwise adversely affecting their membership status and rights.

The trial court conducted a trial on January 8,2015, at which it received ore tenus evidence and reviewed exhibits, including the corporate charter and bylaws of FWS. Article VII of the Declaration of Incorporation of FWS (“the corporate charter”) provides:

“Liability of Members: The private property of the members of this corporation shall not be subject to the payment of the debts of this' corporation to any extent whatsoever.”

Article IX, Section l(i), of the bylaws of FWS grants to the board the power

“[t]o levy assessments against the members of the corporation in such manner and upon .such proportionate basis as the directors deem equitable, and to enforce collection of such assessments by the suspension of water service or other legal methods.”

That same subsection further provides, in pertinent part:

“The board of'directors shall have the option to suspend the service of any member who has not paid such assessment within 30 days from the date the assessment was due, provided the corporation must give the member at least 15 days’ written notice at the address of the member on the books of the corporation of its intention to suspend such service if the assessment is not paid....”

On March 10, 2015, the trial court entered a final judgment, providing, in pertinent part:

“[TJhis Court is of the opinion that [Drew and Shell] are entitled to the relief sought based on three separate and independent reasons.
“First of all, it is clear from the evidence that the $29,796.40 legal bill from [the law firm] Ryan and Wilkes to conduct the investigation of the signatures was a debt or obligation incurred, authorized, and created by the Board of Directors and thus constitutes a ‘corporate debt.’ Director Jethro Dailey testified it was the intent of the Board of Directors to pass this debt on to [Drew and Shell] for payment. However, the Court here declares that the passing of this corporate debt on to [Drew and Shell] for payment is expressly prohibited by Article VII of the Charter of Incorporation. This Court further declares that any provision of the By-laws that is inconsistent with Article VII, particularly Article IX, Section l(i), when utilized to seek payment of corporate debts from the members, is void.
“Secondly, this Court declares that even if Article IX, Section 1(i) of the Bylaws was not voided by operation of Article VII of the Charter of Incorporation, the $29,796.40 assessment made against [Drew and Shell] thereunder was nevertheless improper, it is apparent that [FWS] has erroneously construed this provision of the By-laws to mean it is free to pick and choose among the membership what member it desires to pay its bills and then assess the chosen member accordingly. It is here noted that By-laws of a voluntary association like [FWS] constitute a contract between the association and its members. Wells v. Mobile County Board of Realtors[, Inc.], 387 So.2d 140 [(Ala. 1980)], and that under Alabama law, contracts will not be construed so as to render them oppressive or inequitable as to either party or so as to place one of the parties at the mercy of the other. Dawkins v. Walker, 794 So.2d 333 [ (Ala. 2001) ]. Applying these principles of law to the facts of this case, the Court is of the opinion that [FWS] ’s construction or interpretation of Article IX, Section l(i) of the By-laws is erroneous because it not only places one party to the contract at the mercy of the other, but it also twists and contorts the general understanding or common meaning of the term ‘assessment.’ This Court notes that ordinarily an ‘assessment’ is viewed as a charge levied on each member of an association in the nature of a tax or some other burden for a special purpose not having the character of being susceptible of anticipation as a regularly recurring obligation as in the case of periodic dues. National Labor Relations Board v. Food Fair Stores, Inc., et al., 307 F.2d 3 [ (3d Cir.1962) ]. Similarly, 6 Am.Jur.2d., Associations and Clubs, § 25, states that, ‘[a]n assessment is a charge of a non-recurring nature upon all members of an association.... ’ (emphasis added). It is the opinion of this Court that the wording of Section l(i) of Article IX of the By-laws, if construed correctly, is entirely consistent with these definitions, i.e., ‘To levy assessments against the members of the corporation....’ (emphasis added). Accordingly, if an assessment is to be made, it must be made to all members. Otherwise, a targeted member will end up in the oppressive or inequitable situation in which [Drew and Shell] now find themselves.
“Thirdly, even assuming that [FWS] had the authority to pick and choose among the membership whom it wanted to pay a corporate debt or obligation, its decision in that regard must nevertheless be equitable. Section l(i) of Article IX of the By-laws may provide some discretion to the [FWS] Board of Directors to levy assessments, but it is not unbridled discretion. It is the opinion of this Court that fundamental fairness and equity dictate that there must be some reasonable basis for assessing [Drew and Shell] $29,796.40. The Court is of the opinion that, based on the evidence, the Board of Directors’ decision was not fundamentally fair and equitable in this regard.
“The Court recalls and here notes that the attorney for [Drew and Shell] asked each director who testified at trial what evidence did he have at the time he voted to assess [Drew and Shell] that either [Drew or Shell] forged someone’s name on the petition or misrepresented its true purpose to anyone or did anything wrong. Every director, without exception, testified he had none. Every director recognized that each member, including [Drew and Shell], had the right to petition the Board of Directors to call a meeting for the purpose of removing an officer. Every director testified that there was no provision in the corporate Charter, By-laws, or membership application that would place a member on notice that he would be responsible for paying all costs associated with a petition under Section 6 of Article VIII of the By-laws in the event the petition failed. Furthermore, there was no witness called by [FWS] who offered any evidence of wrongdoing by [Drew or Shell]. Moreover, the state of the evidence in the record is such that this Court cannot even determine whether any forgeries or misrepresentations in fact took place, much less who committed them. What is known by the Court is that there is a total disconnect between any wrongful conduct by [Drew and Shell] and their being called upon to pay this $29,796.40 assessment. When all the evidence of record is reconciled and considered as a whole, the decision of the Board of Directors to impose this assessment against [Drew and Shell] was an arbitrary and capricious act; was inconsistent with, and unsupported by, its governing documents; was neither equitable nor fundamentally fair; and has and will cause irreparable injury and damage to [Drew and Shell].”

The trial court permanently enjoined FWS from taking any action against Drew or Shell to enforce the “special assessment” and from taking any adverse action affecting Drew and Shell’s membership status and rights. FWS filed its notice of appeal to the Alabama Supreme Court on April 21, 2015; that court transferred the appeal to this court, pursuant to § 12-7-6(6), Ala. Code 1975.

Analysis

On appeal, FWS argues that the trial court erred in issuing the permanent injunction.

“‘To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not disserve the public interest.’
“TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala.1999), overruled on another point of law, Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008).”

Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So.3d 90, 93 (Ala.2010). FWS challenges each of the trial court’s grounds for issuing the permanent injunction, essentially arguing that Drew and Shell should not have prevailed on the merits.

“The entry of a permanent injunction is reviewed de novo, TFT, Inc.[ v. Warning Sys., Inc.], 751 So.2d [1238] at 1241 [(Ala.1999)]; however, this Court has recognized that ‘a trial court’s consideration of ore tenus testimony has a bearing upon the standard of review we apply to the entry of a permanent injunction.’ Classroomdirect.com, LLC v. Draphix, LLC, 992 So.2d 692, 701 (Ala.2008). See also Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683 (Ala.2009)(according a presumption of correctness to portions of the trial court’s decision based on representations of counsel regarding a settlement agreement where a permanent injunction was issued).”

Sycamore Mgmt. Grp., LLC, 42 So.3d at 93.

As it did at trial, FWS maintains on appeal that it had the authority to issue a special assessment against Drew and Shell pursuant to Article IX, Section l(i), of its bylaws. The trial court initially determined that FWS could not rely on Article IX, Section l(i), to recover the legal fees from Drew and Shell because Article VII of the corporate charter prohibits FWS from subjecting the personal property of its members to collection of the debts of the corporation.

Section 10A-3-2.31, Ala.Code 1975, provides, in pertinent part, that “[t]he bylaws may contain any provisions for the regulation and management of the affairs of a corporation not inconsistent with law or the certificate of formation.” A bylaw is invalid and may not be given any effect to the extent the bylaw conflicts with the corporate charter. See Roach v. Bynum, 403 So.2d 187 (Ala.1981). FWS does not quarrel with that basic principle, but, rather, it maintains that the trial court erred in determining that the legal fees constituted a debt of the corporation within the meaning of Article VII of the corporate charter.

Under Alabama law, the corporate charter of a voluntary association, such as FWS, is deemed to be in the nature of a binding contract between the association and its members. Brotherhood’s Relief & Comp. Fund v. Rafferty, 91 So.3d 693 (Ala.Civ.App.2011) (citing Mackey v. Moss, 278 Ala. 55, 175 So.2d 749, 752 (1965)). The terms of that agreement govern the relationship between the association and its members. Id. The construction of undefined terms in the association’s charter “ ‘belongs, not to the court, but to the board, council, or other tribunal provided for the purpose in the organization, if any.’ ” Shaup v. Grand Int’l Bhd. of Locomotive Eng’rs, 223 Ala. 202, 204, 135 So. 327, 328 (1931) (quoting Simpson v. Grand Int’l Bhd. of Locomotive Eng’rs, 83 W.Va. 355, 98 S.E. 580, 587 (1919)). However, a court may interfere if the governing body, in exercising its interpretive powers, “ ‘transgresses the bounds of reason, common sense or fairness.’ ” Id.

In its brief to this court, FWS does not set forth any general definition of the phrase “debts of this corporation.” In ordinary parlance, a “debt” refers to “[l]iability on a claim; a specific sum of money due by agreement or otherwise.” Black’s Law Dictionary 488 (10th ed.2014). FWS does not disagree with the trial court’s legal conclusion that a debt is a “corporate debt” if it is incurred under the authority, and on behalf, of the corporate entity. See generally Wright v. Alan Mills, Inc., 567 So.2d 1318, 1319 (Ala.1990) (“At the outset, we note that a corporation is a distinct entity to be considered apart from the individuals who operate it, and that a corporation’s obligations and transactions are to be considered separately from those of the corporation’s stockholders.”). Furthermore, as the trial court correctly found, the undisputed evidence shows that FWS, through its board, contracted with Ryan and his law firm to pay the legal fees at issue. As such, the legal fees would be considered a “corporate debt” in the usual meaning of that phrase.

Nevertheless, FWS ■ maintains that it was within the board’s authority to characterize the legal fees as something other than a corporate debt. FWS points out that its contract with Ryan and his law firm was not made in the usual course of FWS’s business to supply water service to its-members, that the board used its business. judgment to determine that the debt should be incurred to assure the validity of the signatures before acting on the petition,. and that it was Drew’s and Shell’s alleged “improper actions” that led the FWS board to incur the debt. FWS maintains that the legal fees do not constitute a corporate debt because the fees did not arise from the ordinary corporate business of providing water service. However, regardless of the reason FWS incurred the debt, it remains undisputed that it did so in its corporate capacity and in furtherance of the internal governance of the corporation itself. FWS fails to explain how, under these circumstances, the debt reasonably can be considered anything other than a corporate debt. Accordingly, the trial court did not err in concluding that the legal fees constituted a corporate debt within the meaning of Article VII of the FWS corporate charter.

Conclusion

Under Article VII of its corporate charter, FWS could not make any of its members personally liable for corporate debt. We agree with the trial court that Article VII of the corporate charter supersedes Article IX, Section l(i), of FWS’s bylaws and that it prevents FWS from passing its corporate debt onto its individual members. Because the facts and the law conclusively show that the legal fees at issue are a debt of FWS, that debt could not be recovered from Drew and Shell. The trial court correctly enjoined FWS from enforcing its special assessment against Drew and Shell and from taking any adverse action against Drew and Shell for their nonpayment of that special assessment. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

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

      . Because we affirm the judgment on the first ground stated by the trial court, we do not address the remaining grounds.


text:
    Sharon Swims KNIGHT v. Burice Vann KNIGHT.
    2150137.
    Court of Civil Appeals of Alabama.
    May 20, 2016.
    Certiorari Denied July 8,2016
    Aabama Supreme Court 1150935.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Morgan & Alvis, Florence, for appellant.
    Jonathan B. Lowe and Matthew LeDuke of Lowe Mobley Lowe & LeDuke, Haley-ville, for appellee.
   MOORE, Judge.

Sharon Swims Knight (“the wife”) appeals from a judgment entered by the Winston Circuit Court (“the trial court”) divorcing her from Burice Vann Knight (“the husband”). We affirm the trial court’s judgment.

According to § 30-2-51(a), Ala.Code 1975, when equitably dividing property in a divorce proceeding, a trial court may not consider property of the parties acquired

“by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

In this ease, the trial court, relying on § 30-2-51(a), determined that the only real property owned by the parties that could be divided consisted of the marital residence. The trial court, again relying on § 30-2-51(a), determined that certain financial assets owned by the husband should be excluded from the marital estate. The wife argues that the trial court erred in its determinations, resulting in an inequitable division of property.

The trial court received evidence indicating that the parties married in 1983 and separated in 2013. The parties resided throughout the marriage in a house in Haleyville that is located on 40 acres that was gifted to the husband by his parents just before the parties married. In 1990, the husband’s parents purchased 20 acres of land adjoining the 40 acres, which they gifted to the husband, but which he and the wife had never used. During the marriage, the husband acquired two other parcels of real property in Winston County—a 1.4-acre parcel and a 2.9-acre parcel— from which he derived rental income. In the years leading up to the divorce, the husband operated a restaurant in a building that is owned by his mother, Carolyn Knight; that building is situated on land that is also owned by Carolyn. Two other tenants share the building, and the husband collects the rent of $825 per month from those tenants. Since 2010, Carolyn has given the husband the rent with instructions that he use the proceeds to fund his individual health insurance.

The trial court found that none of the foregoing real property, other than the marital residence, comprising 40 acres and the marital home, could be considered as marital property because the husband acquired all the other real property through gift or inheritance and none of that property had been used regularly for the common benefit of the parties during the marriage. Although it appears that the record contains no evidence indicating that the 1.4-acre and the 2.9-acre parcels of real property had been acquired by gift or inheritance, the wife does not specifically argue that the trial court erred in finding that they were. See Galaxy Cable, Inc. v. Davis, 58 So.3d 93, 99 (Ala.2010) (“Failure by an appellant to argue an issue in its brief waives that issue and precludes it from consideration on appeal”). The wife argues only that the husband had reported the rental income from the properties on the parties’ joint income-tax returns. The wife, however, does not explain through citation to legal authority how reporting rental income on property acquired through gift or inheritance on a joint income-tax return constitutes regular use of the property for the common benefit of the parties during the marriage. See Rule 28(a)(10), Ala. R.App. P. It is not the function of this court to perform the wife’s legal research to substantiate this crucial point. See Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984) (“Where an appellant fails to cite an authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.”).

Before and during the parties’ marriage, Carolyn purchased United States savings bonds payable to her or the husband that were worth $50,000 at the time of the trial, which she has maintained in her possession. In 2010, the husband’s parents also funded an investment account for the husband by depositing $58,000 into the account from their own savings. Through accrual of interest, the investment account had accumulated a value of $71,800 at the time of trial. Carolyn also purchased two life-insurance policies covering the husband, one from Woodmen of the World Life Insurance Society, which, at the time of trial had a cash value of $28,099.65, and another from New York Life Insurance Company with a $20,000 benefit.

The trial court found that “all bank accounts, investment accounts, life insurance policies, annuities, U.S. Savings Bonds or any other financial asset owned separately or jointly by the [husband] are hereby awarded to the [husband], including but not limited to all such items introduced into evidence at the trial of this case. The Court finds as a matter of law that these financial assets of the [husband] are his separate property in that they were acquired pri- or to the marriage of the parties or were gifted to him or inherited by him from his parents.... ”

The wife does not argue that insufficient evidence supports the above findings or that any of the financial assets owned separately by the husband to which the foregoing provision refers had been used regularly for the common benefit of the parties during the marriage. By failing to make any legal argument on those points, the wife essentially concedes that those financial assets could not be considered as marital property subject to equitable division. See Galaxy Cable, Inc., supra. The wife does argue that the trial court could have awarded her part of the investment account, which the husband described as a “retirement account,” which could be divisible under § 30-2-51(b), Ala.Code 1975, but the wife overlooks that the retirement account was funded entirely by a gift from the husband’s parents such that § 30-2-51(a) prevented the trial court from considering that account as a marital asset:

Putting aside the separate property of the husband, as it was required to do by § 30-2-51(a), the trial court equitably divided the remaining property of the parties. The trial court valued the marital residence at $160,000 and ordered the husband to pay the wife $80,000 in exchange for the wife’s executing a quitclaim deed of her interest in the residence.. The wife received her 2006 Toyota Avalon valued at $10,000, while the husband received five vehicles, four of which were inoperable, with an aggregate value of approximately $18,500. The trial court also awarded the parties various personal property within the marital home, which each had requested during the trial without objection. The record contains no evidence of the value of that personal property, but the wife does not argue any error in regard to that aspect of the property division. The property division appears generally equal, if slightly favoring the husband. “A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court.” Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003), The wife erroneously argues that the husband received an inequitable share of 83% of the marital property by including the separate property of the husband in her calculations. We conclude that the trial court did not exceed its discretion in dividing the marital property. See Clements v. Clements, 990 So.2d 383, 390 (Ala.Civ.App.2007) (applying abuse-of-discretion standard of review to property division).

The wife last argues that the trial court erred by not awarding her any periodic alimony or by not at least reserving jurisdiction to award her periodic alimony in the future. The wife does not develop the first point at all. “It is not the function of the appellate courts to develop, research, and support an appellant’s arguments.” M.F. v. W.W., 144 So.3d 366, 368 (Ala.Civ.App.2013) (citing Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007), and Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003)). As to the second point, the wife argues that the trial court exceeded its discretion by failing to reserve jurisdiction to award her periodic alimony in the-future “[gjiven the disparity in the award of assets accumulated during the course of the parties’ marriage.” However, as we have shown, the trial court did not inequitably divide the marital property. Moreover, the evidence sustains the trial court’s finding of “no real disparity in earnings” between the parties during the marriage. The wife has faded to demonstrate error in the failure of the trial court to reserve jurisdiction to award her periodic alimony in the future.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The wife also argues that the husband reported the income received from his operation of the restaurant on the parties' joint tax return. However, the evidence is undisputed that the husband does not own any part of the restaurant property, which solely belongs to his mother. See Bonner v. Bonner, 170 So.3d 697 (Ala.Civ.App.2015) (holding that trial court cannot divide real property owned solely by third party witness).

      . Section 30-2-51(b) provides that, subject to certain conditions not relevant here: “The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed....”