text:
    Robert Lanier TATE III et al. v. WATER WORKS AND SEWER BOARD OF THE CITY OF OXFORD.
    2150190.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2016.

      Chad Lee, Wedowee, for appellants.
    C. David Stubbs of Stubbs, Sills & Frye, P.C., Anniston; and Tonnie Boice Turner, Jr., Anniston, for appellee.
   MOORE, Judge.

Robert Lanier Tate III, Deborah Ann Tate Lewis, and Mary Denise Tate Spires (hereinafter referred to collectively as “the heirs”) appeal from a summary judgment entered by the Calhoun Circuit Court (“the trial court”) in favor of the Water Works and Sewer Board of the City of Oxford (“the Board”) on the heirs’ claims against the Board, and on some of the Board’s claims against the heirs, regarding a parcel of real property in Calhoun County (“the disputed property”). We affirm the trial court’s judgment.

Facts and Procedural History

The following facts are undisputed. Robert L. Tate, Jr. (“Robert”), died intestate on December 24, 1972, and he was survived by his wife, Mary Bernice Ginn Tate (“the widow”), and the hems, who were minors at the time of Robert’s death. Before Robert’s death, Robert and the widow owned, as joint tenants with a right of survivorship, a parcel of property on Ingram Street in Oxford, where the family resided (“the home property”). The widow claimed the home property as her homestead following Robert’s death. Robert also owned, at the time of his death and in his name alone, property located west of Stephens Avenue in Oxford (“the Stephens Avenue property”); the Stephens Avenue property had been conveyed to Robert under three separate deeds. The disputed property is an approximately 2.3-acre portion of the Stephens Avenue property. The widow never sought to administer Robert’s estate, and she never claimed or asserted her dower rights or any other rights of a widow with regard to the Stephens Avenue property.

In 1987, the Board began making plans to acquire a site upon which to build a water tower to service the water needs of the citizens of Oxford, and, having determined that the disputed property was an appropriate location, the Board filed a condemnation proceeding in the Calhoun Probate Court against the widow, seeking to condemn the disputed property. The probate court entered an order of condemnation of the disputed property in favor of the Board on December 4, 1987. The Board filed a notice of appeal from that order, disputing the amount it had been ordered to pay for the property; however, after the notice of appeal was filed, the Board entered into a settlement with the widow, and, on June 23, 1988, the widow executed a deed purporting to convey the disputed property to the Board. Construction of the water tower was completed in approximately February 1989, at which time the Board erected a fence along the boundaries of the disputed property; the fence remains in the same location where it was originally erected. The widow died in October 2012.

The heirs filed a complaint against the Board on July 15, 2014, seeking to quiet title to the disputed property; they also sought injunctive relief and a judgment declaring that they own the disputed property in fee simple and that the Board has no interest in the property. The heirs also asserted claims of ejectment and trespass against the Board. The Board filed an answer, which included a number of affirmative defenses, and it counterclaimed against the heirs. The Board contended, among other things, that it owned the disputed property by virtue of statutory adverse possession and/or adverse possession by prescription, and it sought to quiet title to the disputed property and a judgment declaring that the Board owns the disputed property. The heirs filed a reply to the Board’s counterclaim and later amended their complaint, asserting additional claims of inverse condemnation and unjust enrichment against the Board. The heirs and the Board filed competing summary-judgment motions, and, on October 2, 2015, the trial court entered a summary judgment in favor of the Board on the heirs’ claims; quieted title to the disputed property “in the exclusive fee simple ownership of the Board”; enjoined the heirs from obstructing and/or interfering with the Board’s quiet enjoyment and property rights in the disputed property; and dismissed without prejudice the remainder of the Board’s claims against the heirs. The heirs timely appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Standard of Review

[1-4] “Our standard of review is straightforward when, as here, the facts are undisputed:

“‘An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, “[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.” Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 816 (Ala.1995). Here, in reviewing the [entry] of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.’ ”

McKinney v. Nationwide Mut. Fire Ins. Co., 33 So.3d 1203, 1206-07 (Ala.2009) (quoting Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005)).

Discussion

The trial court issued a 37-page judgment in this case, in which it determined, among other things, that the Board had acquired title to the disputed property by statutory adverse possession and/or adverse possession by prescription; that the rights of dower, quarantine, and homestead with regard to the widow’s purported interest in the disputed property were inapplicable; and that the heirs had failed to prove the elements of their claims of inverse condemnation and unjust enrichment. The heirs dispute each of those findings on appeal.

The heirs first argue that the Board, as a governmental entity, could not have acquired the disputed property by adverse possession after having secured a deed from the widow.

“Alabama recognizes two types of adverse possession: (1) statutory adverse possession pursuant to § 6-5-200, Ala. Code 1975, and (2) adverse possession by prescription. Sparks v. Byrd, 562 So.2d 211 (Ala.1990). Specifically,
“ ‘ “[a]dverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. [Ala.] Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).” ’
562 So.2d at 214 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980) (emphasis omitted)).”

Henderson v. Dunn, 871 So.2d 807, 810 (Ala.Civ.App.2001).

Specifically, the heirs assert that, following Robert’s death, the widow inherited a life estate in the disputed property and that, as a result, the deed purporting to convey the disputed property to the Board granted only the widow’s life-estate interest in the disputed property to the Board. Thus, the heirs claim, the Board’s use of the disputed property was permissive based on the widow’s deed granting the Board use of the property and, as a result, the prescriptive period did not begin to run until the widow’s death in October 2012. We conclude, however, as explained further below, that the widow did not have a life estate in the disputed property.

At the time of Robert’s death, the real estate of a man dying intestate descended first to any children of the intestate in equal parts in fee simple, subject to the widow’s dower and homestead rights. See Title 16, § 1, Ala.Code 1940 (Recomp.1958), Mitchell v. Mitchell, 278 Ala. 670, 671, 180 So.2d 266, 267 (1965), and Loeb v. Callaway, 250 Ala. 524, 526, 35 So.2d 198, 200 (1948). The heirs first argue that the widow inherited a life estate in the disputed property pursuant to her right to claim it in lieu of a homestead. “The homestead rights of a widow and minor children are determined by the law in force at the time of the decedent’s death.” Stroud v. Stroud, 505 So.2d 1209, 1210 (Ala.1987). In Mordecai v. Scott, 294 Ala. 626, 629-30, 320 So.2d 642, 644-45 (1975), our supreme court discussed the law regarding homestead rights applicable at the time of Robert’s death:

“In general, the homestead law provides to named survivors a homestead not exceeding 160 acres in area which is exempt from administration and the payment of debts. Title 7, Sections 661, 663, 697, Code of Alabama, 1940 (Recompiled 1958). Although the term ‘homestead’ is not defined in the statute, this court has stated that ‘[a] homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.’ Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595 (1936). It has been further defined as ‘the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family....’ Moseley v. Neville, 221 Ala. 429, 431, 129 So. 12, 14 (1930), quoted in Griffin v. Ayers, supra. Normally the land must have been occupied by decedent prior to his death. Turner v. Turner, 107 Ala. 465, 18 So. 210 (1895). Contiguous real estate used for rental or commercial purposes and not used by the homeowner or his family is not within the ‘homestead.’ Griffin v. Ayers, supra; Turner v. Turner, supra. But see Cade v. Graffo, 227 Ala. 11, 148 So. 591 (1933), where contiguous property rented to others was determined to be part of the homestead because it was also used by the owner in connection with the homeplace.
“If the decedent owned no homestead or if the homestead cannot be reduced to statutory value, the widow and minor children may receive an exemption in lieu of homestead in decedent’s other lands. Title 7, Section 662, Code of Alabama, 1940 (Recompiled 1958).”

In the present case, at the time of Robert’s death, Robert, the widow, and the heirs resided on the home property. Because the home property was owned by Robert and the widow jointly with the right of survivorship, the home property vested in the widow as the sole owner at the time of Robert’s death. As a result, the home property never devolved into Robert’s estate. The widow thereafter claimed the home property as her homestead and, thus, could not claim a homestead exemption in any property owned solely by Robert at the time of his death. See Ala.Code 1940 (Recomp.1958), Tit. 47, § 19; and Skipworth v. Skipworth, 383 So.2d 524, 527 (Ala.1980) (concluding that, when the family had resided on property belonging to the widow at the time of her husband’s death, the widow was not entitled to a homestead exemption in the other property of her husband).

The only property owned solely by Robert at the time of his death was the Stephens Avenue property. The heirs argue that the widow could have claimed an “exemption in lieu of homestead” with regard to the Stephens Avenue property following Robert’s death, pursuant to Ala. Code 1940 (Recomp.1958), Tit. 7, § 662. In Drummond Co. v. Gunter, 588 So.2d 465, 467 (Ala.Civ.App.1991), this court explained:

“Section 662[ of Title 7, Ala.Code 1940 (Recomp.1958),] provides that, if the decedent had no actual homestead at the time of his death, the widow is then entitled to an ‘exemption in lieu of homestead’ of $6,000 out of other real estate owned by the decedent. However, § 662 expressly conditions the widow’s entitlement to this exemption upon her filing a petition, in the probate court or by bill in equity, ‘before a final distribution of the assets of decedent’s estate has been made.’ ”

It is undisputed that the widow in the present case failed, at any time before her death, to seek, either through a petition filed in probate court or through a bill in equity, to have an exemption in lieu of homestead set aside for her with regard to the Stephens Avenue property. Because the widow failed to comply with the statutory requirements of § 662, the widow never possessed an interest in the Stephens Avenue property pursuant to her right to an exemption in lieu of homestead. See Drummond, supra.

The heirs cite Hicks v. Huggins, 405 So.2d 1324, 1327 (Ala.Civ.App.1981), however, for the proposition that “[t]here is no statute of limitation which prescribes the time within which a widow must present her petition to have the homestead set aside where there has been no administration of decedent’s estate.” It is undisputed that, in the present case, there has been no administration of Robert’s estate. The heirs assert that the widow’s failure to file a petition to set aside her homestead exemption does not change the fact that the Board acquired her rights in the disputed property for the remainder of the widow’s life and that her right to assert an interest in the disputed property in lieu of homestead is what was conveyed to the Board by the widow. The heirs fail, however, to cite any authority indicating that the widow’s right to apply for an exemption in lieu of homestead was an assignable property right. The heirs also fail to cite any authority providing that the specific holding in Hicks v. Huggins—i.e., that there is no statute of limitations within which a widow may apply for her homestead exemption— applies also to exemptions in lieu of homestead. See Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990) (“Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.”). Accordingly, we decline to reverse the trial court’s judgment on that basis.

The heirs next argue that Tit. 7, § 663, Ala.Code 1940 (Recomp.1958), applies in the present case such that the widow and the hens each acquired equal interests as tenants in common in the disputed property upon Robert’s death. Section 663 provided, in pertinent part, that “[w]hen the homestead set apart to the widow and minor children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, whether there be administration on the estate or not and whether the estate be solvent or insolvent, the title to such homestead vests absolutely in the widow, the children (minors and adults) and the descendants of deceased children.” Section 663, “however, works to vest title in the widow, children (minors and adults), and descendants of deceased children absolutely only after the homestead has been set apart by a proceeding in a court of proper jurisdiction.” Rodgers v. Bradley, 533 So.2d 546, 550 (Ala.1988). Because there had been no setting apart of a homestead at any time in the present case, § 663 did not operate to vest title in the disputed property in the widow and the heirs. See id.

The heirs next argue on appeal that the widow possessed a life estate in the disputed property based on her dower interest. Section 40 of Title 34, Ala.Code 1940 (Recomp.1958), defined “dower” as “an estate for the life of the widow in a certain portion of,” among other things, “all lands of which the husband was seized in fee during the marriage.” According to Title 34, § 41, Ala. Code 1940 (Recomp.1958), because Robert had “lineal descendants,” the widow’s dower interest was limited to one-third of Robert’s real property. However,

“[a]s pointed out in Gillian v. Gillian, 340 So.2d 785 (Ala.1976), ‘Dower does not vest automatically in the widow but is allocated only on petition of widow, heirs or other interested parties.’ Continuing, the court noted, ‘Dower right is a chose in action or an equity and does not become a property interest until there has been an assignment thereof.’ Gillian v. Gillian, 340 So.2d at 787, 788.”

Land v. Lawyer, 437 So.2d 524, 527 (Ala.1983). In the present case, the widow never petitioned for an allocation of her dower interest in the Stephens Avenue property.

The trial court also determined that, because the widow in the present case failed to file a petition to have her dower interest judicially assigned within 10 years of Robert’s death, the statute of limitations had run. Section 63 of Title 34, Ala.Code 1940 (Recomp.1958), provided:

“All proceedings or suits for dower, when the claim or rights of a voluntary or involuntary alienee of the husband, or any one claiming under such alienee, are involved in such suit or proceedings, must be commenced within three years after the death of the husband, and not after; and in all other cases the proceedings must be commenced within ten years after the death of the husband and not after.”

The heirs argue, however, that the statute of limitations did not bar the widow’s right to dower because, they argue, she remained in possession of the disputed property until she conveyed it to the Board and, they assert, she continued to remain in possession of the disputed property “via her conveyance” to the Board and the Board’s possession thereof until her death in 2012. In Williams v. Anthony, 219 Ala. 98, 99, 121 So. 89, 90 (1929), our supreme court observed that the statute of limitations expressed in § 63 “do[es] not apply to prevent a widow from claiming dower, when she has been in possession of the land since her husband died.” The heirs fail to cite any legal authority indicating that the widow continued to remain in possession of the disputed property by virtue of the Board’s possession following the widow’s purported conveyance of the property to the Board. See Sea Calm Shipping Co., supra. Thus, this court may affirm the trial court’s judgment as to that issue. Moreover, assuming, without deciding, that the widow had remained in possession of the disputed property until the time of her purported conveyance to the Board, we conclude that the widow’s purported conveyance of the disputed property to the Board would have operated to extinguish the widow’s dower right. See Brandon v. Wilkinson, 92 Ala. 530, 530-31, 9 So. 187, 188 (1891); Leddon v. Strickland, 218 Ala. 436, 439, 118 So. 651, 653 (1928); and Aniton v. Robinson, 273 Ala. 76, 84, 134 So.2d 764, 770 (1961). Thus, even assuming that the widow had remained in possession of the disputed property following Robert’s death such that her right to claim a dower interest therein continued beyond the 10-year period set out in § 63, her dower right was extinguished at the time of her purported conveyance of the disputed property to the Board on June 23, 1988, and no dower rights remained that could have been assigned to the Board.

The heirs argue on appeal that, “[e]ven if the specific dower interest was not allotted to her during her lifetime, [the widow] could convey her interest in the [disputed property]” to the Board. The heirs assert that, “in some instances, this is referred to as the quarantine or right to quarantine.” Our supreme court, in Marino v. Smith, 454 So.2d 1380, 1382 (Ala.1984), explained the following with regard to quarantine:

“The widow is entitled to quarantine as an incidental right to dower. Hale v. Cox, 240 Ala. 622, 200 So. 772 (1941), The right of quarantine exists before dower is assigned and continues during the widow’s lifetime. Id. Failure to have dower assigned, and permitting the widow to retain possession without more, does not deprive the owner of the fee in the land. Lynch v. Jackson, 235 Ala. 90, 177 So. 347 (1937).”

The right to quarantine allows the widow to “retain possession of the dwelling house where her husband most usually resided next before his death, with the offices and buildings, appurtenant thereto, and the plantation connected therewith, until her dower is assigned her, free from the payment of rent.” Title 34, § 50, Ala.Code 1940 (Recomp.1958).

It is undisputed that Robert’s dwelling house at the time of his death was not located on the disputed property. The heirs argue, however, that the disputed property falls within the definition in § 50 of “the plantation connected therewith” because, they argue, the disputed property was located “only two streets and only a few hundred feet from the dwelling house.” The heirs fail, however, to cite any authority for the proposition that a parcel of property that is not contiguous to, but is in close proximity to, the property containing the dwelling house, even if it had belonged to the decedent at the time of his death, is a part of the “plantation connected” with the dwelling house for purposes of quarantine rights. See id. Regardless, our supreme court has determined that a plantation belonging to the deceased husband located several miles from his residence is not connected to the dwelling house so as to entitle a widow to quarantine rights thereto. See Clary v. Sanders, 43 Ala. 287, 294-95 (1869); and Waters v. Williams, 38 Ala. 680, 683-84 (1863). Additionally, our supreme court confirmed in Hayden v. Robinson, 472 So.2d 606, 609-10 (Ala.1985), that “[t]he failure of the evidence to show conclusively that the second parcel is connected to the first within the meaning of § 50, Title 34, [Ala.Code 1940 (Recomp.1958) ], precludes a determination that [the widow] was entitled to possession of the second parcel under her right to quarantine.” Thus, the heirs failed to show that the widow was entitled to exercise her right to quarantine in the disputed property.

Citing Aniton, supra, the heirs argue that the Board was granted the right to have the widow’s dower interest judicially assigned to it by virtue of the 1988 deed from the widow to the Board and that, as a result, the heirs had no right to possess the disputed property after that interest was transferred and the Board could not adversely possess the disputed property against them until the widow’s death in 2012. We disagree. In Aniton, a widow had purported to convey a portion of her deceased husband’s property to a married couple, although the widow had not yet had any of that property assigned to her by the courts as her dower interest. 273 Ala. at 82, 134 So.2d at 768-69. Our supreme court determined that the married couple had, in equity, a right of action that, when assigned, could give them a life estate in at least a part of the tract deeded by the widow and that, as a result, the heirs of the deceased husband could not be said to have a right to possession of the tract as long as the married couple’s right existed. 273 Ala. at 84, 134 So.2d at 771. In Ambon, the purported conveyance to the married couple by the widow occurred within 10 years of the death of the deceased husband. Id. In the present case, however, the widow’s conveyance to the Board occurred outside the 10-year period to claim her dower interest expressed in § 63; thus, any right in the widow to have a dower interest judicially assigned continued only as long as the widow remained in possession of the property. See Williams, supra. We have already determined that the widow’s purported conveyance of the disputed property to the Board extinguished any continuing right held by the widow to have her dower interest judicially assigned and, thus, unlike in Aniton, the widow’s purported conveyance of the disputed property to the Board did not convey to the Board a right in equity to have the widow’s dower interest judicially assigned because any such right was extinguished as a result of that purported conveyance.

In Leddon v. Strickland, 218 Ala. at 439, 118 So. at 653, a widow had failed to have property set aside pursuant to her rights of dower and homestead within the applicable 10-year limitations period. The supreme court explained that she had acquired no title or interest in her deceased husband’s property and could not convey the subject property to those claiming under her deed. Thus, our supreme court determined, those claiming under the widow’s deed purporting to convey the subject property were required to prove ownership of the land by adverse, possession in order to defeat the ownership rights of. the heirs of the widow’s deceased husband. Id. Similarly, in the present case, because the widow’s dower right expired with her purported conveyance of the disputed property to the Board, the Board could establish ownership of the disputed property, as against the heirs, by virtue of adverse possession.

The heirs cite St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858 (1926), for the proposition that “a grantee of a widow holding a quarantine acquires no greater right as to [the heirs] against whom the adverse possession period of limitations does not run during life of a life tenant ([the widow]).” In St. Clair Springs, the property owner died, leaving a widow and four children, two of whom later died without issue. 215 Ala. at 13, 108 So. at 859. With regard to the claims to the subject property in that case by one of the children’s heirs, our supreme court observed that “[t]he possession of a widow under her quarantine right is not adverse and confers no greater or superior title to her grantee” and-that her grantee under a purported conveyance has no greater right as to the reversioners “who had no right of action for the recovery of possession during the life of the life tenant, and during such time limitations do not run against them for the recovery of possession.” 215 Ala. at 14, 108 So. at 860. As noted, however, unlike in St. Clair Springs, the widow in the present case did not remain in possession of the disputed property, she abandoned any dower rights to the disputed property, and she did not possess quarantine rights in the disputed property at any time. Because the circumstances of St. Clair Springs are distinguishable from the circumstances of the present case, we conclude that the rules of law expressed in Leddon remain applicable here.

The trial court quoted in its judgment the following excerpt from Marino v. Smith:

“Upon the death of a husband, a widow has a right of dower, which is not a property right but an equity; and it does not become a property interest until there has been an assignment thereof. Gillian v. Gillian, 340 So.2d 785 (Ala.1976); United States v. Hiles, 318 F.2d 56 (5th Cir.1963); Alabama Code (1975), § 43-8-114. Dower does not vest automatically in the widow but is allocated only on petition of the widow, heirs, or other interested parties. Gillian, 340 So.2d at 787. Liddie not only failed to have her husband’s estate probated, but she also failed to have her dower set aside.
“The widow is entitled to quarantine as an incidental right to dower. Hale v. Cox, 240 Ala. 622, 200 So. 772 (1941). The right of quarantine exists before dower is assigned and continues during the widow’s lifetime. Id. Failure to have dower assigned, and permitting the widow to retain possession without more, does not deprive the owner of the fee in the land. Lynch v. Jackson, 235 Ala. 90, 177 So. 347 (1937).
“It has been recognized that a widow retaining possession by virtue of her quarantine rights may acquire title by adverse possession. Taylor v. Russell, 369 So.2d 537 (Ala.1979); White v. Williams, 260 Ala. 182, 69 So.2d 847 (1954); Branford v. Shirley, 241 Ala. 314, 2 So.2d 403 (1941). However, a widow whose dower remains unassigned cannot acquire title by adverse possession as against heirs simply by remaining in possession of her husband’s land. Taylor, 369 So.2d at 541.
“In order for the widow to obtain title by adverse possession she must repudiate the title of her husband and disavow any claim to such title and give notice of the disavowal, and that notice must be brought home to the heirs. Id. If possession is open, notorious, and visible, a presumption of notice may arise. Id. at 542. However, it should be noted that all presumptions are favorable to the title, and possessions are not presumed to be hostile to it. White, 260 Ala. at 187, 69 So.2d at 851. To change a permissive or otherwise nonhostile possession into one that is hostile, there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed. Id.”

454 So.2d at 1382 (footnote omitted).

The heirs argue that, in accordance with Marino, the widow’s possession of the disputed property could not deprive the heirs of their fee ownership of the disputed property, that the widow possessed the disputed property via the Board’s possession, and that the trial court erred in concluding otherwise. Again, the heirs fail to cite any authority indicating that the widow continued to be in possession of the disputed property following her purported conveyance of the property to the Board. In Wilder v. Mixon, 442 So.2d 922, 924 (Ala.1983), our supreme court observed that, until the date of the judicial assignment of dower, the widow “has no right ‘to enter and occupy any part of her deceased husband’s estate or to retain possession thereof as against the heirs or those claiming under them.’ ” (Quoting G. Thompson, Commentaries on the Modem Law of Real Property § 1919 (1979 Repl.).) The statutory right of quarantine does not apply to the disputed property, as discussed above. Thus, to the extent the Board “stepped into the shoes” of the widow, as argued by the heirs, the Board did not have any right to enter and occupy the disputed property despite the widow’s purported conveyance of the disputed property to the Board. Additionally, because, as we have determined, any remaining right held by the widow to claim her dower interest would have expired upon her purported conveyance of the property to the Board, the heirs could have brought an ejectment action against the Board as the result of its possession following that purported conveyance. See, e.g., Wallace v. Hall’s Heirs, 19 Ala. 367, 873 (1851).

The heirs next argue that the trial court erred in concluding that the Board’s possession of the disputed property was hostile and adverse to the heirs. They argue that the Board occupied and possessed the disputed property with the permission of the widow. The heirs cite no authority, however, in support of their assertion that the widow’s purported conveyance of 'the disputed property to the Board in fee simple resulted in the permissive occupancy by the Board that could not ripen into adverse possession. See Sea Calm Shipping Co., supra. Moreover, as discussed above, the widow’s purported conveyance would have amounted to an effective abandonment of the widow’s right to dower; thus, the widow cannot be said to have had any remaining rights to the disputed property such that she could allow its permissive use by the Board. “The burden of proving the possession adverse—that it was taken and held under a claim of title hostile to the title of the true owner—rests upon the party asserting it.” Dothard v. Denson, 72 Ala. 541, 545 (1882). In the present case, the widow was not the true owner of the disputed property at the time she purported to convey the property to the Board. In Smith v. Persons, 285 Ala. 48, 55, 228 So.2d 806, 811 (1968), our supreme court observed that, when the occupant of the land at issue in that ease went into possession with permission of a widow who was entitled to possession under her quarantine rights, the occupant’s possession would be regarded as continuing as permissive “unless disclaimed by declarations or acts unmistakably hostile, the equivalent of an abandonment or termination of the quarantine to which the widow was entitled, of which the heirs or cotenants had notice [or] knowledge, or which were so open and notorious that notice or knowledge must be imputed to them.” In the present case, in accordance with Smith, even if the widow had a right of dower in the disputed property, she abandoned that right upon her purported conveyance of the property to the Board, at which time any permission given by her to the Board to occupy the disputed property would have ripened into hostile possession against the heirs.

The heirs next argue that the trial court erred in entering a summary judgment in favor of the Board because, they say, a governmental entity cannot acquire title to real property by adverse possession without providing just compensation. The heirs fail, however, to cite any authority in support of that argument, see Sea Calm Shipping Co., supra, and state, instead, that they have found “[n]o Alabama case on point.” Moreover, we note that, in Morgan v. Alabama Power Co., 469 So.2d 100, 102-03 (Ala.1985), our supreme court determined that Alabama Power Company, an entity with the right of eminent domain, see Alabama Elec. Coop., Inc. v. Watson, 419 So.2d 1351 (Ala.1982), and Alabama Power Co. v. Taunton, 465 So.2d 1105, 1110 (Ala.1984) (Torbert, C.J., dissenting), had satisfied the common-law requirements of adverse possession such that it had acquired ownership of property previously belonging to a private citizen. Thus, the hems’ argument that the Board could not have acquired title to the disputed property by adverse possession is without merit.

We now turn to the heirs’ inverse-condemnation claim.

“A formal condemnation proceeding is a legal action brought by a condemning authority, such as the Government, in the exercise of its power of eminent domain. ‘Inverse condemnation’ refers to a legal action against a governmental authority to recover the value of property that has been taken by that governmental authority without exercising its power of eminent domain—it is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings. Condemnation proceedings require affirmative ‘taking1 action on the part of the condemning authority; the particular action required depends on the particular statute applicable. However, in inverse condemnation actions, a governmental authority need only occupy or injure the property in question; when that occurs and the property owner discovers the encroachment, the property owner has the burden of taking affirmative action to recover just compensation.”

Jefferson Cty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala.1993).

Based on its determination that the Board had adversely possessed the disputed property such that it had acquired ownership thereof, the trial court concluded that, for purposes of inverse condemnation, there had been no taking of the disputed property by the Board. The trial court cited Texaco, Inc. v. Short, 454 U.S. 516, 530, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982), in which the United States Supreme Court observed that, after the abandonment of a mineral interest in property for a period of 20 years and “for which no statement of claim has been filed as abandoned,” the former owner retains no interest for which he or she may claim compensation and that, in such a case, there is “no ‘taking’ that requires compensation.” The trial court also cited a number of cases from other jurisdictions in support of its conclusion that there had been no taking, noting that the hems had failed to distinguish or disagree with any of the authority cited or to cite any authority in support of their position. Similarly, on appeal, the heirs fail to cite any authority indicating that, despite the Board’s adverse possession of the disputed property such that it had acquired ownership of the property, there had been a taking of the property for purposes of inverse condemnation. The hems cite Commonwealth v. Stephens, 407 S.W.2d 711 (Ky.1966), a case cited by the trial court as confirming the availability of ownership by adverse possession to a governmental entity in the Commonwealth of Kentucky, for the proposition that a private landowner whose land is claimed by the Commonwealth of Kentucky by adverse possession has “a remedy in the form of a reverse condemnation proceeding against the state.” 407 S.W.2d at 712-13. We note, however, that that statement was made to confirm that, before the governmental entity could acquire ownership by adverse possession, the private landowner has a remedy of “reverse condemnation” to stop the running of the statutory period for adverse possession. 407 S.W.2d at 712-13. In the present case, the heirs do not argue that they filed their inverse-condemnation claim before the statutory period for ownership by adverse possession had run with regard to the disputed property. Thus, any such argument is waived, see Gary v. Crouch, 923 So.2d 1130, 1136 (Ala.Civ.App.2005) (“arguments not raised by the parties [on appeal] are waived”), and Commonwealth v. Stephens does not support the heirs’ claim that the trial court erred in concluding that the Board had adversely possessed the disputed property in the present case.

The hems also argue on appeal that the trial court erred in concluding that the rule of .repose and the statute of limitations bar their inverse-condemnation claim. “[T]he rule of repose ‘bars actions that have not been commenced within 20 years from the time they could have been commenced.’ Tierce v. Ellis, 624 So.2d 553, 554 (Ala.1993) (emphasis added).” Willis v. Shadow Lawn Mem’l Park, 709 So.2d 1241, 1243 (Ala.Civ.App.1998). With regard to the rule of repose, the heirs argue that the Board’s taking of the disputed property by adverse possession would not be complete until the expiration of 10 or 20 years, depending on the type of adverse possession at issue, from the time the Board began possessing the disputed property in 1988, and, therefore, they argue, the rule of repose would not expire until 2018. We note, however, that 20 years from 1988 is 2008, not 2018. Because the heirs did not file their complaint until 2014, their argument that the rule of repose did not apply if it began to run in 1988 is without merit.

With regard to the statute of limitations, the heirs argue that their inverse-condemnation claim was filed as a counterclaim to the Board’s claim of ownership based on adverse possession. They argue that, based on Rule 13(c), Ala. R. Civ. P., which provides, in pertinent part, that “[a]ll counterclaims other than those maturing or acquired after a pleading shall relate back to the time the original plaintiffs claim arose,” their inverse-condemnation “counterclaim” relates back to the date the Board was entitled to claim the disputed property by adverse possession. The trial court concluded with regard to that argument, among other things, that the heirs’ inverse-condemnation claim cannot be construed as a counterclaim; that the heirs failed to cite any authority indicating that Rule 13(c) applies to property claims or equitable claims such as those at issue in the present case; that statutory adverse possession and adverse possession by prescription are not causes of action but rules of law that affirmatively establish title in the adverse possessor; that no cause of action was required to establish the Board’s ownership of the disputed property because it arose by operation of law; that adverse possession is not a separate cause of action; and that the heirs’ argument that their claim relates back to the date the Board could claim adverse possession of the disputed property would create absurd results. The heirs have failed to respond to any of those statements by the trial court in addressing their argument with regard to Rule 13(c). Because the heirs have failed to cite any authority on appeal indicating that Rule 13(c) applies to their claim or that their inverse-condemnation claim was properly classified as a counterclaim, we affirm the trial court’s judgment with regard to its conclusion that the statute of limitations bars the heirs’ inverse-condemnation claim. See Sea Calm Shipping Co., supra.

To the extent the heirs argue that federal law also prohibits a governmental entity from taking a private citizen’s property without providing just compensation, we note that the heirs have failed to cite any authority indicating that, because the Board acquired the disputed property pursuant to adverse possession, there had been a taking in accordance with federal law such that the heirs were entitled to compensation. Thus, that argument is waived, and the trial court’s judgment in favor of the Board on the heirs’ federal-law claim is affirmed. See Sea Calm Shipping Co., supra.

The heirs last argue on appeal that the trial court erred in entering a summary judgment in favor of the Board on the heirs’ unjust-enrichment claim.

“ ‘In order for a plaintiff to prevail on a claim of unjust enrichment, the plaintiff must show that
“ ‘ “the ‘ “defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.” ’ Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000) (quoting Hancock-Ha zlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)).... ‘The doctrine of unjust enrichment is an old equitable remedy permitting the court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.’ Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989).”
‘“Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala.2003). “ ‘One is unjustly enriched if his retention of a benefit would be unjust.’ ” Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837, 843 (Ala.2004) (quoting Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997)). The retention of a benefit is unjust if
“ ‘ “ ‘(1) the donor of the benefit ... acted under a mistake of fact or in misreliance on a right or duty, or (2) the recipient of the benefit ... engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misre-liance by the donor or wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched.’ ”
“‘Welch, 891 So.2d at 843 (quoting Jordan, 705 So.2d at 458). The success or failure of an unjust-enrichment claim depends on the particular facts and circumstances of each case. Heilman, supra.
“Mantiply v. Mantiply, 951 So.2d 638, 654-55 (Ala.2006) (emphasis omitted).”

Presley v. B.I.C. Constr., Inc., 64 So.3d 610, 625 (Ala.Civ.App.2009).

In Lewis v. Johnson, 507 So.2d 918, 919-21 (Ala.1987), our supreme court affirmed a judgment concluding that the plaintiffs in that case, whose deed to the property was invalid, had adversely possessed property for which the defendant had presented a deed claiming ownership. The defendant contended that he had an equitable lien on the property. Id. at 921. Our supreme court determined in Lems that the plaintiffs were “not guilty of wrongdoing or culpable conduct,” but that they had “merely been living on property that they thought they had a valid deed to,” and that they had “done nothing to bring about any hardship that [the defendant] may have to suffer.” Id. Similarly, in the present case, the Board was merely possessing property that it thought it had a valid deed to by virtue of the widow’s purported conveyance of the disputed property. Thus, we conclude, based on Lewis, that the heirs are not entitled to the equitable relief sought in their unjust-enrichment claim, and, therefore, we affirm the trial court’s judgment in favor of the Board on their unjust-enrichment claim.

Because the heirs have failed to raise any arguments on appeal that merit reversal of the trial court’s summary judgment, that judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: DONALDSON, Judge. THOMAS, Judge,

license: Public Domain

text:
    Aaron Christopher MITCHELL v. Shauna Lee CAMPBELL.
    2150003.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2016.

      Chip Cleveland of Cleveland, Riddle & Atchison, Attorneys at Law, LLC, Prat-ville, for appellant.
    Barry C. Leavell of Leavell & Associates, Attorney at Law, LLC, Montgomery, for appellee.
   DONALDSON, Judge.

Aaron Christopher Mitchell (“the husband”) appeals from the judgment of the Autauga Circuit Court (“the trial court”) divorcing him from Shauna Lee Campbell (“the wife”), dividing the parties’ property, and awarding alimony to the wife. Because the husband’s notice of appeal was not timely filed, this court has no jurisdiction to consider the husband’s appeal.

On March 28, 2011, the wife and the husband were married in Texas. The parties lived in various places during their marriage. In February 2014, the parties moved to North Dakota, where they separated in July 2014. On September 2, 2014, the wife filed a complaint for a divorce in the trial court. The husband was served on October 21, 2014.

On November 4, 2014, a pendente lite hearing was held by a special master appointed by the trial court. The wife, her attorney, and the husband’s attorney were present. The special master heard testimony and determined that the wife was a resident of Alabama. The special master also recommended that the husband pay $1,500 per month in pendente lite alimony to the wife. These findings were adopted by the trial court.

On December 31, 2014, the husband filed an answer and a counterclaim for a divorce. On January 5, 2015, the wife filed a motion to hold the husband in contempt for his failure to pay alimony as ordered by the court on November 4, 2014. The trial court entered an order on January 9, 2015, in which it stated that the wife’s contempt motion was required to be filed as a new petition with a new filing fee.

On January 5, 2015, the wife served the husband with a request for discovery. On February 20, 2015, the wife filed a motion to compel the husband to submit his discovery responses and a motion to set a final hearing. On February 20, 2015, counsel for the husband filed a motion to withdraw.

On February 23, 2015, the trial court entered an order allowing the husband’s counsel to withdraw and admonishing the husband to either retain counsel or to be prepared to proceed without counsel. On February 23, 2015, the trial court also entered an order in which it compelled the husband to respond to the wife’s discovery requests within 10 days, ordered the husband to pay $350 for the wife’s attorney’s fees for his failure to comply with the outstanding discovery requests, and warned the husband that failure to comply could result in the entry of a default judgment and the imposition of additional attorney fees. The trial court also entered an order setting the case for a final hearing on May 28, 2015, and ordered the parties to attend mediation.

On March 12, 2015, the wife filed a motion for contempt in which she asserted that the husband had failed to respond to the discovery requests as compelled by the trial court’s February 23, 2015, order, had failed to pay alimony, and had failed to otherwise comply with any requirements set out by the trial court in the divorce proceedings. On March 19, 2015, the trial court entered an order requiring the husband to fully comply with the court’s previous orders within seven days and allowing the wife to apply for the entry of a default judgment upon the husband’s failure to comply. On March 30, 2015, the wife filed a motion for the entry of a default judgment. On April 3, 2015, the trial court granted the wife’s motion, finding the husband in default but setting a hearing to be held on May 14, 2015, on the issues of the division of property and debt, alimony, and contempt of court. On May 11, 2015, the wife’s attorney filed a request to delay the hearing or, in the alternative, to allow the wife to submit an affidavit containing her testimony because she had a conflict on that date. On May 14, 2015, the trial court granted the wife’s motion by indefinitely postponing the hearing and allowing the wife to submit testimony by affidavit, On May 14, 2015, the wife filed a motion to allow her to submit an affidavit containing her testimony in lieu of a hearing and attached to it her affidavit. On May 17, 2015, the trial court ordered the wife to submit an amended motion for the entry of a default judgment, supported by her affidavit, and a proposed order.

On May 20, 2015, the wife filed an amended motion for the entry of a default judgment, her affidavit, a proposed qualified domestic relations order (“QDRO”), and a proposed final judgment. On May 30, 2015, the trial court entered a final divorce judgment. In its judgment, the trial court granted the divorce on the grounds of adultery and physical abuse; ordered the husband to pay, among other things, $3,000 per month in periodic alimony, $10,500 for an alimony arrearage, $10,718 toward the wife’s automobile loan, $6,440.27 for outstanding debts and liabilities, and $5,600 toward the wife’s attorney’s fees; and awarded the wife 50% of the husband’s retirement account.

On July 2, 2015, new counsel filed a notice of appearance on behalf of the husband. That same day, the husband filed a motion, pursuant to Rule 59, Ala. R. Civ. P., seeking to set aside, alter, amend, or vacate the final judgment and a new trial. In his motion, the husband asserted that he had been unaware that his previous counsel had withdrawn or that he had missed any hearings, and he specifically asked the trial court to set aside the default divorce judgment. On July 14, 2015, the wife filed a response to the husband’s postjudgment motion in which she asserted that the motion had not been filed within 30 days of the entry of the judgment and was therefore due to be denied. On July 22, 2015, the husband filed a reply to wife’s response to his postjudgment motion in which he asserted that a June 10, 2015, notation by the trial-court clerk on the ease-action summary reflects the entry of the final judgment and that his motion was filed within 30 days of the date of that notation on the case-action summary.

On August 31, 2015, after a hearing, the trial court entered an order purporting to deny the husband’s postjudgment motion. The record contains no testimony from the hearing. On August 31, 2015, the wife filed a motion seeking the entry of her previously submitted proposed QDRO. On September 4, 2015, the trial court entered a QDRO. On September 24, 2015, the wife filed a motion to amend the QDRO to reflect the proper account from which she sought to have the husband’s income withheld, and on September 28, 2015, the trial court entered the amended QDRO.

On September 28, 2015, another new counsel filed a notice of appearance on behalf of the husband. That same day, the husband filed a motion to vacate the QDRO entered on September 4, 2015. In that motion, the husband asserted that the division of retirement benefits contained in the divorce judgment was precluded by statute. On September 28, 2015, the husband filed his notice of appeal from the trial court’s May 30, 2015, divorce judgment.

On September 30, 2015, the husband filed in the trial court a “verified motion for relief from judgment.” In that motion, the husband alleged, among other things, that the divorce judgment was void for lack of subject-matter jurisdiction because, he asserted, the wife had not been a resident of Alabama for six months preceding the filing of her complaint. See § 30-2-5, Ala.Code 1975. The trial court set the husband’s motion to vacate the QDRO and his verified motion for relief from the judgment for a hearing on October 29, 2015.

On October 29, 2015, the trial court entered an “order on [the husband’s] motion to alter, vaeat[e] or amend” in which it found that it was without jurisdiction to enter any orders because this court had taken jurisdiction of the case on appeal.

On appeal, the husband challenges the divorce judgment entered on May 30, 2015. The husband first asserts that the judgment is void for lack of subject-matter jurisdiction. The husband asserts that the wife had not been a resident of Alabama for at least six months at the time she filed the complaint for a divorce. The husband also argues that the trial court’s award to the wife of half of the husband’s retirement account is precluded by statute, and, thus, is .void because the parties- had not been married for at least 10 years. See § 30-2-51(b), Ala.Code 1975. Finally, the husband challenges the trial court’s property division and award of alimony and its award of attorney’s fees to the wife. The husband does not challenge the trial court’s order declining to rule on his verified motion for relief from the judgment filed after he had filed his notice of appeal. The husband states in his appellate brief that, “even though the trial court did not consider the Husband’s Rule 60 Verified Motion for Relief from Judgment, such is of no consequence as ‘challenges to subject-matter jurisdiction may be raised for the first time on appeal...

Although we agree that subject-matter jurisdiction may be challenged for the first time on appeal, see, e.g., Ex parte Smith, 438 So.2d 766, 768 (Ala.1988), we must first determine whether this court has jurisdiction to consider the husband’s appeal. The wife asserts that this court lacks jurisdiction because, she asserts, the husband did not timely file his notice of appeal.

The trial court electronically rendered the divorce judgment and transmitted it to the court’s electronic-filing system on May 30, 2015. “An order or a judgment rendered electronically by the judge under subdivision (a)(5) of this rule shall be deemed ‘entered’ ... as of the date the order or judgment is electronically transmitted by the judge to the electronic-filing system.” Rule 58(c), Ala. R. Civ. P. The case-action summary sheet contains a notation by the trial-court clerk, dated June 10, 2015, listing the entry of the final judgment; however, the judgment electronically rendered by the trial court on May 30, 2015, shows that it was transmitted to the electronic-filing system that same date. The husband was required to file his Rule 59 postjudgment motion within 30 days of when the judgment was entered on May 30, 2015. See Rule 59(b), Ala. R. Civ. P. Pursuant to Rules 59(b) and Rule 6, Ala. R. Civ. P., the time to file such a motion began to run on May 31, 2015, and ended on Monday, June 29, 2015. On July 2, 2015, which was 33 days after the entry of the judgment, the husband filed a motion that he specifically described as being filed pursuant to Rule 59, Ala. R. Civ. P. The husband never contended in the trial court that his July 2, 2015, motion should have been construed as being filed pursuant to Rule 60, Ala. R. Civ. P., and he does not make that contention in his brief to this court. In her brief to this court, the wife specifically argues that the husband’s appeal should be dismissed because his July 2, 2015, motion was an untimely filed Rule 59 motion that did not toll the time for taking an appeal from the May 30, 2015, judgment. The husband did not file a reply brief and, thus, has not refuted that assertion.

Although, generally, appellate courts “look[ ] to the essence of a motion, rather than its title, to determine how that motion is to be considered under” the Alabama Rules of Civil Procedure, Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996), appellate courts should not construe a motion in a manner that helps a party’s position or changes the outcome of a case when the party has not argued for that construction in either the trial court or the appellate court. “Rule 28(a)(10), Ala. R.App. P., requires an appellant to present arguments in its brief supported by adequate legal authority. Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). It is not the duty of the appellate court to make arguments for the parties, nor is it the appellate court’s duty to conduct the parties’ legal research.” Woods v. Federated Mut. Ins. Co., 31 So.3d 701, 706 (Ala.Civ.App.2009).

Because the husband failed to timely file his postjudgment motion, the 42-day window in which to file his notice of appeal was not tolled pursuant to Rule 4(a)(3), Ala. R.App. P. Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002)(“Although a timely postjudgment motion will toll the 42-day time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so.”). The husband was therefore required to file his notice of appeal by July 13, 2015. The husband did not file his notice of appeal until September 28, 2015. The “[t]imely filing of a notice of appeal is necessary to invoke the jurisdiction of the appellate court and cannot be waived.” Asam v. City of Tuscaloosa, 585 So.2d 60, 60 (Ala.Civ.App.1991)(citing Rule 2(a)(1), Ala. R.App. P.). Therefore, this appeal is dismissed. Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court”).

APPEAL DISMISSED.

PITTMAN, J., concurs.

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

THOMAS, J., dissents, with writing, which MOORE, J., joins.

THOMAS, Judge,

dissenting.

I respectfully dissent. I cannot agree that the notice of appeal filed by Aaron Christopher Mitchell (“the husband”) was untimely filed. Because, based on my reading of the motion, I would construe the husband’s July 2, 2015, motion as a Rule 60(b), Ala. R. Civ. P., motion, I con-elude that the husband’s appeal was timely filed from the denial of that motion.

The husband’s July 2, 2015, motion directed to the trial court’s May 30, 2015, default judgment divorcing him from Shauna Lee Campbell (“the wife”) was filed more than 30 days after the entry of the judgment. Thus, the husband’s motion could not have been a timely post-judgment motion under Rule 55(c), Ala. R. Civ. P., which requires that a motion seeking to have a default judgment set aside be filed within 30 days of the entry of the default judgment. Thus, although it erroneously construes the husband’s motion as one pursuant to Rule 59, Ala. R. Civ. P., rather than Rule 55(c), the main opinion reasons that the husband’s motion was not timely filed and did not toll the time for taking an appeal from the May 30, 2015, default divorce judgment.

It is well settled that an appellate court “looks to the essence of a motion, rather than its title, to determine how that motion is to be considered under” the Alabama Rules of Civil Procedure. Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996); see also Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969) (explaining that “the character of a pleading is determined and interpreted from its essential substance, and not from its descriptive name or title”). Our supreme court has construed a motion indicating that it was an amendment to a Rule 55(c) motion seeking to set aside a default judgment as a Rule 60(b)(1) motion based on the language contained in the motion alleging “‘mistake, inadvertence, surprise, or excusable neglect.’ ” Ex parte Lang, 500 So.2d 3, 4 (Ala.1986). The court explained:

“It is clear that under our Rules of Civil Procedure the nomenclature of a motion is not controlling. Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala.1981). Notwithstanding the designation in its title, the document filed on October 7, 1985, was clearly a Rule 60(b) motion ... seeking relief under grounds (1) and (6)....”

Ex parte Lang, 500 So.2d at 4.

The allegations in the husband’s motion are, to my mind, allegations invoking Rule 60(b)(1). Rule 60(b) provides: “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” The husband alleges in his motion that he had been unaware that his former counsel withdrew from representation, that he had believed that he was being competently represented by that counsel during the course of the proceedings, and that he had not been made aware of certain orders of the trial court. He then requests that the trial court set aside the default judgment based, at least in part, on his excusable neglect. Thus, the husband’s motion seeks relief under Rule 60(b)(1).

Because I conclude that the husband’s motion was a Rule 60(b)(1) motion, I further conclude that the motion was not untimely filed. A Rule 60(b)(1) motion is required to be filed within four months of the entry of judgment from which the party seeks relief. See Rule 60(b). The denial of a Rule 60(b)(1) motion is a judgment from which an appeal lies. See Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005). The husband’s notice of appeal, which was filed on September 28, 2015, was filed within 42 days of the trial court’s order denying his Rule 60(b)(1) motion, and, therefore, this court does not lack jurisdiction over the husband’s appeal.

That being determined, I will now turn to the merits of the husband’s appeal. “[T]he only matter renewable in ... an appeal [from the denial of a Rule 60(b) motion] is the propriety of the denial.” Williams, 910 So.2d at 1286. On appeal, the husband argues first that the trial court lacked subject-matter jurisdiction over the wife’s divorce complaint because the wife had not been a resident of the state for at least six months before she filed her divorce complaint. See Ala. Code 1975, § 30-2-5 (“When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved.”). The husband then argues that the default divorce judgment improperly awarded the wife certain retirement moneys and that the trial court’s award to the wife of certain property, alimony, and an attorney fee was an abuse of the trial court’s discretion.

The husband’s latter two arguments attack the propriety of the underlying default divorce judgment. However, “[a] Rule 60(b)(1) motion does not serve as a substitute for appeal, and therefore does not present for review the underlying judgment....” Metropolitan Life Ins. Co. v. Akins, 388 So.2d 999, 1000-01 (Ala.Civ.App.1980); see also Hilbish v. Hilbish, 415 So.2d 1114, 1115-16 (Ala.Civ.App.1982) (“Initially, we note that the only matter renewable on this appeal is the order overruling the defendant’s motions and not the 1975 final judgment itself.”). This court cannot consider the propriety of any aspect of the default divorce judgment; thus, those arguments cannot form the basis of a reversal of the order denying the husband’s Rule 60(b)(1) motion.

The husband’s other argument on appeal involves the subject-matter jurisdiction of the trial court. Although the husband’s failure to make that argument to the trial court is typically not fatal to an appellate court’s consideration of subject-matter jurisdiction on appeal, see Carter v. Hilliard, 838 So.2d 1062, 1063 (Ala.Civ.App.2002), this appeal is concerned only with the correctness of the order denying the husband’s Rule 60(b)(1) motion, which did not assert the subject-matter-jurisdiction argument to the trial court, and the subject-matter-jurisdiction argument is therefore not within the scope of appellate review of that order. The argument on appeal is not that the trial court lacked jurisdiction over the Rule 60(b) motion but, instead, that the trial court lacked jurisdiction over the underlying divorce action. An appellate court cannot entertain arguments directed to the underlying judgment, so, again, this court cannot reverse the order denying the Rule 60(b)(1) motion based on the husband’s argument.

In conclusion, in my opinion, the husband’s July 2, 2015, motion was a Rule 60(b)(1) motion seeking relief from the May 30, 2015, default divorce judgment. Because I consider the husband’s motion to be a Rule 60(b)(1) motion, I conclude that it was not untimely filed. Because I conclude that the husband’s appeal from the August 31, 2015, denial of his Rule 60(b)(1) motion was timely, I further conclude that this court has jurisdiction to entertain the husband’s appeal. However, because appellate review of an appeal from an order denying a Rule 60(b)(1) motion is limited to the propriety of the order denying that motion, this court cannot consider the arguments asserted by the husband on appeal, which attack the underlying default divorce judgment. I would, therefore, affirm the August 31, 2015, order denying the husband’s motion.

MOORE, J., concurs.

      . The 42d day following the entry of the divorce judgment on May 30, 2015, was July 11, 2015, a Saturday. Therefore, pursuant to Rule 26(a), Ala. R.App. P., the husband had until Monday, July 13, 2015, to timely file his notice of appeal.

      . The trial court acted within its discretionary authority to enter a default judgment against the husband based on his failure to answer the discovery propounded by the wife after the trial court entered an order compelling discovery. See Rule 37(b)(2)(C), Ala. R. Civ. P.; Johnson v. Johnson, 168 So.3d 61, 63 (Ala.Civ.App.2014) (noting that, when "a party fails to obey an order to provide or permit discovery,” Rule 37(b)(2), "Rule 37(b)(2)(C) ... authorizes a sanctioning court to enter ‘[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party' ").

      . Although, as I will explain, infra, I construe the husband's motion as a Rule 60(b) motion, I note that the main opinion improperly construes the husband’s motion as a Rule 59, Ala. R. Civ. P., motion. The proper vehicle for requesting that a default judgment be set aside is Rule 55(c) motion, and the husband titled his motion as both a “motion to set aside” and as a "motion to alter, amend or vacate" the default judgment. See B.E.H. v. State ex rel. M.E.C., 71 So.3d 689, 692 n. 1 (Ala.Civ.App.2011) ("Although the father titled his motion as one seeking ‘reconsideration’ of the judgment pursuant to Rule 59, Ala. R. Civ. P., the substance of the motion indicates that the father was seeking to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P.”); see also Austin v. Austin, 159 So.3d 753, 756 n. 2 (Ala.Civ.App.2013), and R.J.G. v. S.S.W., 42 So.3d 747, 753 (Ala.Civ.App.2009). As the main opinion correctly notes, a Rule 59 motion also must be filed within 30 days of the judgment to which it is directed. See 217 So.3d at 924; Rule 59(b).

      . I note that "[a] party seeking to set aside a default judgment under Rule 60(b)(1) not only must prove excusable neglect, but also must satisfy the trial court that the factors enunciated in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), weigh in favor of setting aside the judgment. See generally DaLee v. Crosby Lumber Co., 561 So.2d 1086 (Ala.1990).” Marks v. Marks, 181 So.3d 361, 364 (Ala.Civ.App.2015). In fact, we have held that, "in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the parly filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors.” Brantley v. Glover, 84 So.3d 77, 81 (Ala.Civ.App.2011). Although the husband's Rule 60(b)(1) motion at least asserts generally that he might have a meritorious defense, it does not mention the second or the third of the Kirtland factors, which are "whether the plaintiff will be unfairly prejudiced if the default judgment is set aside” and "whether the default judgment was a result of the defendant's own culpable conduct.” Kirtland, 524 So.2d at 605. However, the husband’s failure to properly argue the Kirtland factors in his motion does not impact my conclusion that the motion is a Rule 60(b)(1) motion.


author: MOORE, Judge.

text:
    Connie F. LITTLEPAGE III v. Virginia O. LITTLEPAGE. Virginia O. Littlepage v. Connie F. Littlepage III.
    2140956.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.

      James T. Sasser, Birmingham, for appellant/cross-appellee Connie F. Little-page III.

      Kenneth R. Raines and W. Lee Webb of Raines Law Firm, Fairhope, for appel-lee/cross-appellant Virginia 0. Littlepage.
   MOORE, Judge.

Connie F. Littlepage III (“the husband”) appeals from a judgment entered by the Baldwin Circuit Court (“the trial court”) divorcing him from Virginia 0. Littlepage (“the wife”) to the extent that that judgment awarded the wife periodic alimony, awarded the wife “family support arrear-ages,” and divided the marital property. The wife cross-appeals from the divorce judgment insofar as the trial court awarded the husband one-half of the wife’s retirement accounts and failed to award her attorney’s fees. With regard to the appeal, we affirm the trial court’s judgment in part, reverse the judgment in part, and remand the case for further proceedings. With regard to the cross-appeal, we affirm the judgment in part, reverse the judgment in part, and remand the case for further proceedings.

Procedural History

On August 8, 2011, the wife filed a complaint seeking a divorce from the husband. On September 28, 2011, the trial court entered a pendente lite order, based on the agreement of the parties, providing, among other things, that the wife would have pendente lite custody of the parties’ two children and that “[t]he Status Quo shall remain in full force and effect as to payment of all bills and expenses of the marriage.” In response to various motions, the trial court entered a subsequent pen-dente lite order on October 1, 2013, providing, in pertinent part:

“1. [The wife] is to have sole authority to lease and collect proceeds from the Spanish Fort, Alabama property referred to as the trailer and the two Butler Alabama rental properties. [The wife] is to pay for the debts, repairs, monthly obligations and bills on these properties at this time.
“2. [The husband] is to be given notice of the identity of the individual or individuals that are to be tenants in these properties.
“3. [The husband] will pay to [the wife] the sum of $2,500.00 a month beginning September, 2013.
“4. [The husband] is to pay $5,600.00 to [the wife], prior to the date of trial on the merits, toward any back support ... that the Court may, at trial, determine[ ] due. This amount is not a final calculation of back support owed, if any. A final determination on back support due, if any, shall be made at trial of this matter.”

After a trial, the trial court entered a judgment on April 16, 2015, that, among other things, divorced the parties, ordered the husband to pay “$74,550.00 as family support arrearages through February 2015,” found that “all properties/accounts are indeed marital property and subject to division” and divided those properties and accounts, and ordered the husband to pay $1,000 a month in periodic alimony. On May 15, 2015, the husband and the wife filed separate postjudgment motions. On July 13, 2015, the trial court amended the judgment with regard to certain issues not related to this appeal. On August 19, 2015, the husband filed his notice of appeal. On September 2, 2015, the wife cross-appealed.

Standard of Review

“ ‘In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.’ Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991). ‘Furthermore, where the trial court does not make findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.’ Ex parte Walters, 580 So.2d 1352, 1354 (Ala.1991).”

Brown v. Brown, 26 So.3d 1210, 1213-14 (Ala.Civ.App.2007).

Discussion

On appeal, the husband argues that the trial court erred in determining that certain properties were marital property, in awarding the wife periodic alimony, and in awarding the wife “family support arrear-ages.” On cross-appeal, the wife argues that the trial court erred in determining that certain of her financial accounts were marital property, in dividing those accounts between the parties, and by not awarding her attorney’s fees.

I. Determination of and Division of , Marital Property and Award of Periodic Alimony

Section 30-2-51, Ala.Code 1975, provides:

“(a) If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or 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.
“(b) 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, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits, acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

A. Mellen Creek, LLP, and Littlepage Properties, LLP

The undisputed evidence presented at the' trial indicates that, during the marriage, the husband’s father had gifted to the husband and the husband’s sister a partnership interest in Mellen Creek, LLP, and Littlepage Properties, LLP. Once it has been demonstrated that property was acquired by gift or inheritance, pursuant to § 30-2-51(a), in "order to make a division of that property, the trial court must find from the evidence that the" property was used" regularly for the common benefit of the parties during the marriage. See Shirley v. Shirley, 600 So.2d 284 (Ala.Civ.App.1992).

In the present case, the record contains no evidence indicating that Mellen Creek, which owns a subdivision referred to as “Sterling Hills,” had produced any income for the husband or that the husband had put his partnership interest in Mellen Creek to some use that had benefited the parties during the marriage. Thus, the trial court erred to the extent that it determined that the husband’s partnership interest in Mellen Creek was marital property.

With regard to the husband’s interest in Littlepage Properties, the evidence indicates that Littlepage Properties owns several properties that are used as rental property. The wife testified that she, as a real-estate agent, had assisted Littlepage Properties by procuring tenants for those rental properties and that she had done so without taking a fee for her services. She testified further that Littlepage Properties had received most of the proceeds generated from renting those properties but that, “[o]ccasionally,” during the parties’ 15-year marriage, she and the husband would receive money from the rental of those properties.

This court has held that “frequent or periodic use of the gift or inheritance property to satisfy the needs of the family [is] sufficient to amount to regular use under [§ 30-2-51(a), Ala.Code 1975].” Hull v. Hull, 887 So.2d 904, 908 (Ala.Civ.App.2003). In Hull, this court discussed the case of Bushnell v. Bushnell, 713 So.2d 962, 964 (Ala.Civ.App.1997), noting that this court had determined that certain inherited funds had been used “frequently” or “periodically” “to satisfy the needs of the family” and that that was “sufficient to amount to regular use under [30-2-51(a) ].” Hull, 887 So.2d at 908. This court noted that, in Bushnell, the evidence had indicated that the funds

“had been used throughout the marriage to pay the parties’ mortgage payment on occasion; to pay taxes on the parties’ real property; to pay income taxes on six occasions in 1994 and on other occasions in 1993; to purchase a furnace for the marital residence; to purchase a van for the wife; to purchase a piano for the daughter; and to purchase a vacuum cleaner.”

Id. The court further noted that the use of the funds was “documented in the account history the wife presented as evidence at trial.” Id. In addressing the evidence presented in Hull, this court stated that

“the wife used $10,000 of the inheritance funds to remodel the kitchen while the parties undertook to remodel the marital residence as a result of hurricane damage [but that] [t]he record in this case does not include, as it did in Bushnell, the wife’s bank records reflecting periodic transfers of her funds into the parties’ .joint account or checks written by the wife from her separate accounts to pay for the parties’ household or other expenses.”

Id. This court determined that the onetime use of the inherited funds was insufficient to show that they had been regularly used for the common benefit of the parties during the marriage. Id.

In the present case, the evidence indicating that rent checks had been made out to the husband and the wife clearly does not rise to the level of the extensive evidence set forth in Bushnell concerning the regular use of the inherited funds for the common benefit of the parties during the marriage. There is no evidence indicating the frequency at which the husband and the wife received those rental proceeds. Moreover, the record contains no evidence indicating what was done with those checks once the husband and the wife received them—whether the parties deposited the checks into a joint account to be used for the common benefit of the parties or whether the checks were perhaps endorsed and deposited back into the Littlepage Properties account. Unlike in Bushnell, where there was evidence of periodic transfers originating from the inherited funds and evidence that those funds had been used specifically for the common benefit of the parties during the marriage, in the present case the evidence merely indicates that on “occasion” the husband and the wife received rental proceeds from Littlepage Properties’ rental property. We conclude that the evidence in this case was insufficient to show that the rental income from Littlepage Properties had been used regularly, frequently, or periodically for the common benefit of the parties during the marriage.

The wife also testified that Little-page Properties had given the husband’s construction company, CFL Construction, LLC, capital, mostly in the form of lumber and materials, and that the parties had benefited from the income the husband had earned through CFL Construction. However, the wife did not specify when those contributions had been made, i.e., before or after the husband gained his interest in Littlepage Properties. In fact, her testimony implies that the gifts from Littlepage Properties to CFL Construction were made at a time when the husband’s father controlled Littlepage Properties. The wife also did not testify as to the frequency of those gifts. Therefore, we conclude that the trial court did not have sufficient evidence to classify Little-page Properties as marital property.

For the foregoing reasons, we reverse the judgment insofar as it treated the husband’s interests in Mellen Creek and Lit-tlepage Properties as marital property subject to equitable division.

B. The Wife’s “Vanguard” Investment Account and Individual-Retirement Account

In her cross-appeal, the wife argues that the trial court erred in including her “Vanguard” investment account and her individual-retirement account in the marital estate and in dividing them equally between the parties.

The wife testified that she had had the Vanguard account before she married the husband and that, during the marriage, she had not contributed to, nor withdrawn any funds from, that account. Additionally, the husband did not present any evidence indicating that funds from that account had been used regularly for the common benefit of the parties during the marriage. See 30-2-51(a). Thus, the trial court erred in determining the wife’s Vanguard investment account to be marital property subject to division.

With regard to her individual-retirement account, the wife testified that she had had that account before the parties married in 1999, but that she had made additional contributions to the account during the marriage, although she did not testify regarding the amount of those contributions. She specifically testified that she did not know the balance of the account at the time of the parties’ marriage. The husband also did not attempt to prove the amount of the contributions made to the wife’s individual-retirement account during the marriage or the interest that had accrued on those contributions during the marriage.

“In cases in which the spouse seeking the award of benefits has not proven the amount of retirement benefits accrued during the marriage, we have held that that failure of proof prevents a trial court from exercising its discretion to award retirement benefits under the statute.” Ford v. Ford, 3 So.3d 872, 874 (Ala.Civ.App.2008); see also Smith v. Smith, 964 So.2d 663, 669 (Ala.Civ.App.2005) (holding that the trial court had erred in dividing retirement accounts when, among other things, the wife had “presented no evidence of the interest or appreciation on the premarriage benefits that accrued after the date of the parties’ marriage”). Because the husband failed to present evidence indicating the amount of the wife’s contributions to her individual-retirement account during the marriage, we conclude that the trial court erred in determining that account to be marital property subject to division.

Based on the foregoing, we reverse the judgment insofar as it treated the wife’s Vanguard and individual-retirement accounts as marital property subject to equitable division.

In light of our holding that the trial court erred in determining the husband’s interests in Mellen Creek and Littlepage Properties, as well as the wife’s Vanguard and individual retirement accounts, to be marital property, we also reverse the trial court’s judgment with regard to its division of the remainder of the marital property and its award of periodic alimony to the wife. See Redden v. Redden, 44 So.3d 508, 513 (Ala.Civ.App.2009) (“[BJecause property-division and alimony awards are considered to be interrelated, we often reverse both aspects of the trial court’s judgment so that [the trial court] may consider the entire award again upon remand.”). We remand the cause for the trial court to reconsider its division of the marital property and its award of periodic alimony in compliance with this opinion.

II. Failure to Award Attorney’s Fees

The wife also argues in her cross-appeal that the trial court erred by not awarding her attorney’s fees.

“‘Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.’ White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008); see also Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987) (quoting Thoman Eng’g, Inc. v. McDonald, 57 Ala.App. 287, 290, 328 So.2d 293, 294 (Civ.App.1976)) (noting that an appellant should ‘present his issues “with clarity and without ambiguity”’ and ‘fully express his position on the enumerated issues’ in the argument section of his brief); accord United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (‘It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.’).”

Hudson v. Hudson, 178 So.3d 861, 865 (Ala.Civ.App.2014).

In the present case, the wife has failed to meet the requirements of Rule 28(a)(10) with regard to the trial court’s failure to award her attorney’s fees. The wife merely mentions the issue in her brief to this court, and she fails to cite relevant legal authorities and to develop an argument applying the law to the facts on this issue. Therefore, we consider this argument waived. Hudson, 178 So.3d at 865.

III. Family-Support Arrearages

In his appeal, the husband also argues that the trial court erred in determining his “family support” arrearages.

A.

The husband specifically argues that, from “October 1, 2013, through the [date of the final hearing in this matter] in February 2015, the Husband’s family-support obligation [totaled only] $48,000[] ($2,500 per month for 17 months plus the $5,600 in arrearage).” According to the husband, he “paid a total of $51,374 directly to or on behalf of the Wife through October 2014 as ‘family support’ expenses.” We note, however, that the husband testified that, in calculating the amount of family support that he was claiming he had paid, he had included amounts that he had not paid directly to the wife. Specifically, he testified that the following payments constituted family support: paying off the parties’ home-equity line-of-credit account, paying bills associated with one of the parties’ rental houses, paying the balance owed on a credit card for charges that had been made by the wife, paying the health-insurance premium for the wife and the parties’ two children, and spending $7,000 renovating one of the parties’ rental properties. The husband also contends that he should be given credit against his family-support arrearages for bills that he paid that the wife was obligated to pay, such as the bills for the rental properties.

In the present case, the trial court’s October 1, 2013, order directed the husband to “pay to [the wife] the sum of $2,500.00 a month beginning September, 2013.”

“Courts are to construe judgments as they construe written contracts, apply-tag the same rules of construction they apply to written contracts. Whether a judgment is ambiguous is a question of law to be determined by the court. If the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their ‘legal effect must be declared in the light of the literal meaning of the language used’ in the judgment.”

State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000) (quoting Wise v. Watson, 286 Ala. 22, 27, 236 So.2d 681, 686 (1970)) (citations omitted). We conclude that the October 1, 2013, order unambiguously required the husband to pay $2,500 directly to the wife; it does not allow for the husband to unilaterally offset his support obligation for payments that he made and that he contends the wife should have made. Indeed, the trial court made it clear that the husband was obligated to pay the $2,500 monthly support obligation regardless of whether the wife paid the bills that she was obligated to pay, and it stated specifically that it would settle any failure to pay certain bills when it balanced “the equities” in the final judgment. Therefore, we find the husband’s argument that the payments he claimed he had made on behalf of the wife should be considered as satisfying his family-support obligation to be without merit.

B.

The husband also specifically argues that the trial court determined in its October 1, 2013, order that his arrearage up to that point was only $5,600, and, he asserts, he paid that amount plus the amount he was ordered to pay thereafter up until the trial. We note, however, that the trial court stated that the $5,600 amount was “not a final calculation of back support owed” and that “[a] final determination on back support due, if any, shall be made at trial of this matter.” We conclude that the trial court’s order unambiguously provided that the $5,600 arrearage amount was subject to change pending the presentation of evidence at the trial. Akers, 797 So.2d at 424. Therefore, the husband’s position that the trial court was limited to a $5,600 arrearage amount for the period before October 13, 2013, is without merit.

C.

Finally, the husband contends that he had no obligation to pay any amount to the wife before the entry of the October 1, 2013, order despite the existence of the status quo order. Although the status quo order, which was entered by agreement of the parties on September 28, 2011, did not provide a specific amount that the husband was to pay to the wife each month, “[w]hen the intent of the parties to an agreement in a divorce case is uncertain, the trial court determines the intent ‘by reading the agreement in light of the surrounding circumstances and the situation of the parties at the time of execution.’ ” Drescher v. Drescher, 621 So.2d 304, 306 (Ala.Civ.App.1993) (quoting Oliver v. Oliver, 504 So.2d 308, 309 (Ala.Civ.App.1987)). In the present case, the wife testified that the husband had paid her $3,000 per month in September, October, and November 2011. Based on those circumstances, we conclude that the husband clearly understood at the time of executing the status quo agreement that paying $3,000 per month in support would maintain the status quo. Drescher, 621 So.2d at 306.

The wife testified at the trial that, during the marriage, the primary source of income for the family was the husband’s employment income from CFL Construction, that she had also worked part-time as a real-estate agent, that the parties had various rental properties from which she collected rent, and that the parties also had a home-equity line-of-credit account that she was able to use for day-to-day cash shortfalls. The wife testified that, after the status quo order was entered in September 2011, the husband had paid her $3,000 per month from September through November 2011, that he had paid her $1,500 in December 2011 and January 2012, that he had paid her $500 in February 2012, and that he had paid her $200 in May 2012. She also testified that the husband had not paid any support between May 2012 and September 2013. The wife also testified that the husband had interfered with her ability to rent the parties’ rental properties and that he had closed the home-equity line-of-credit account. Based on those facts, the trial court could have clearly found that the husband had failed to maintain the status quo by failing to support the wife and the children with his income as he had done during the marriage. Moreover, the evidence indicates that the husband had actively prevented the wife from accessing other funds that had been used during the marriage to support the family. We also note that the wife testified that the husband’s family-support arrearages amounted to at least $80,000.

Considering the above-mentioned evidence, we have calculated the husband’s arrearage amount to be $75,300, which is an amount slightly greater than the $74,550 determined by the trial court. Therefore, we conclude that the trial court did not exceed its discretion in determining the amount of the husband’s family-support arrearages.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment to the extent that it determined the husband’s interests in Mel-len Creek and Littlepage Properties, as well as the wife’s Vanguard investment account and her individual-retirement account, to be marital property, and we remand the cause for the trial court to reconsider the division of the marital property and its award of periodic alimony to the wife in light of this opinion. The judgment is affirmed with regard to the trial court’s determination of the husband’s family-support arrearages and its denial of attorney’s fees to the wife.

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

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

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

      . "Occasionally” is defined as "on occasion: NOW AND THEN.” Merriam-Webster’s Collegiate Dictionary 858 (11th ed.2003). "Frequently” is defined as "at frequent or short intervals.” Id. at 500. "Periodically” is defined as "at regular intervals of time” or "from time to time.” Id. at 921. "Regularly” is defined as "on a regular basis: at regular intervals.” Id. at 1049.

      . The questioning was as follows:
      "Q. Did [the husband’s father] give [the husband] some money for capital for CFL, LLC?
      "A Yes.
      "Q Okay. Are you familiar with any particular amounts of sums that he gave for [the husband] to use as capital for CFL, LLC?
      "A. No. It was mostly in the form of lumber and materials.
      "Q Did—was [the husband] able to get materials to use to help work?
      "A. Yes.”

      . We note that $2,500 x 17 = $48,000; $42,500 + $5,600 totals $48,100, not $48,000.

      . The wife testified that, after the status quo order was entered in September 2011, the husband paid her $3,000 per month in September, October, and November 2011. She testified that the husband had paid her $1,500 in December 2011 and January 2012 ($1,500 shortfall per month x 2 months = $3,000 shortfall); $500 in February 2012 ($2,500 shortfall); and $200 in May 2012 ($2,800 shortfall). She also testified that the husband had not paid any support in March and April 2012 ($3,000 shortfall per month x 2 months = $6,000 shortfall) or between June 2012 and August 2013 ($3,000 shortfall per month x 15 months = $45,000 shortfall). The wife testified further that the husband had paid her a total of only $4,000 during the months of January 2014 through August 2014, leaving a $16,000 shortfall for that period ($2,500 per month x 8 months = $20,000 - $4,000 = $16,000).