text:
    T.B. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2140832.
    Court of Civil Appeals of Alabama.
    May 20, 2016.
    Certiorari Denied Aug. 26, 2016
    Alabama Supreme Court 1150923.

      Jodi C. Dykes, Auburn, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of February 12, 2016, is withdrawn, and the following is substituted therefor.

T.B. (“the father”) appeals from a judgment entered by the Lee Juvenile Court (“the juvenile court”) adjudicating C.L. (“the child”) dependent, awarding custody of the child to M.G. and J.G. (“the custodians”), and finding that the Lee County Department of Human Resources (“DHR”) had “made reasonable efforts to prevent removal and/or reunite [the] child and [the] parents.” We affirm.

Procedural History

On August 13, 2014, DHR filed a petition alleging that the child was dependent (case no, JU-14-317.01), On August 21, 2014, the father was adjudicated the father of the child. On September 9, 2014, the father petitioned for custody of the child (case no. JU-14-317.02). After a trial, the juvenile court entered a judgment pertaining to both petitions on June 22, 2015, adjudicating the child dependent, awarding custody of the child to the custodians, and awarding the father unsupervised visitation with the child on the first, third, and fifth weekends of every month, as well as on certain holidays. The juvenile court also ordered that, beginning October 16, 2015, the father’s visitation would increase to “every other Friday from 5 pm until the following Wednesday at 9am” and that DHR was to continue to provide supervision services.

On July 1, 2015, the father filed a post-judgment motion. The juvenile court entered an order on July 20, 2015, purporting to deny the father’s postjudgment motion; however, that order was a nullity because the motion was deemed denied by operation of law on July 15, 2015. See Rule 1(B), Ala. R. Juv. P.; Rule 59.1, Ala. R. Civ. P. On July 6, 2015, the father filed his notice of appeal.

Fads

The child was born on July 29, 2011. The child’s mother testified that she had allowed A.L., who was her boyfriend at the time, to sign the child’s birth certificate as the child’s father. She testified that the father had come and seen the child when she was born and that he had seen the child approximately three times from the time the child was six months old until the child was a year old. The mother testified that the father had known that he was the child’s father. The father testified that he had thought he could be the child’s father but that he had not known for sure that he was the father until he had taken a DNA test that confirmed his paternity. The father admitted that he had failed to take any initiative to confirm whether the child was his. The father testified that he had lost contact with the mother and the child for approximately a year after the child turned one.

The mother testified that, on July 12, 2012, she and the child began living with her boyfriend, M.G., Jr., and his parents, who are the custodians. The mother testified that, sometime thereafter, the father began visiting with the child again at the father’s mother’s home for a few hours at a time and that he had maintained that visitation schedule for approximately three months, at which time, she said, she told him that he could no longer visit the child until he began paying child support. She testified that, on some occasions, the child had returned from visits with the father and her diaper would not have not been changed. The mother also testified that, sometime shortly before the trial, the custodians had kicked their son and her out of their house because they were using drugs. She testified that the father had not been aware of her drug problem. She testified that she had entered into a safety plan with DHR, pursuant to which she agreed that the child would live with the custodians. The mother testified that the father had never paid child support for the child.

Mindy Carter, a DHR caseworker, testified that she had met with the father in December 2014 at his house. She testified that the father’s house was very clean, that there was a room set up for the child, that there was plenty of food in the house, and that the utilities were active. She testified that the father had failed to show up for a subsequent meeting with her. She also testified that she had not been able to make contact with the father but that there had been no proven concerns about the child being with the father. She testified that, during a visitation exchange, she had observed the child showing no fear of going with the father. The mother also admitted that DHR’s court report indicated that the father was forming a strong bond with the child. Carter testified that no services had been offered to the father. She testified that, at the time of the trial, it was her recommendation that the father complete a parenting class to help him with co-parenting as well as with age-appropriate parenting skills for the child.

At the time of the trial, the father had been exercising unsupervised visitation with the child on the first, third, and fifth weekends of each month since February 2015 pursuant to a pendente lite order. He testified that he had missed two visitations with the child because he had had to work. The mother testified that the father’s weekend visitations had been going “ok” but that the child had returned from visitations sweaty and with ant bites all over her.

The father testified that he had moved approximately one month before the trial. He testified that the child has her own bedroom and toys and that the house has food and working utilities. He testified that he is employed and that he also receives food stamps. He testified that he is able to provide for the child. He admitted that, although the juvenile court had, during the pendency of the underlying actions, ordered him to put aside $300 per month to prove that he could afford to take care of the child, he had failed to do so. He testified that he had passed all drug tests. He admitted that his 17-year~old girlfriend had spent the night at his house when the child was present.

Discussion

On appeal, the father argues that the juvenile court erred in determining that the child was dependent. According to Ala.Code 1975, § 12-15-102(8), a part of the Alabama Juvenile Justice Act (“the AJJA”), Ala.Code 1975, § 12-15-101 et seq., a “dependent child” is

“a. A child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.”

The father points out that because he demonstrated his financial commitment to the child, his maturity, and his parenting ability sufficiently for the juvenile court to award him extensive unsupervised parenting time with the child, the juvenile court must have determined that he was a fit and proper custodian. See J.W. v. T.D., 58 So.3d 782, 793-94 (Ala.Civ.App.2010) (Moore, J., dissenting) (arguing that a judgment adjudicating a child dependent but awarding a noncustodial parent long periods of unsupervised visitation is inconsistent). The father argues that, if he is fit to parent the child, as the award of unsupervised visitation implies, then the child cannot be considered a dependent child.

In G.H. v. Cleburne County Department of Human Resources, 62 So.3d 540, 544 (Ala.Civ.App.2010), this court held “that a child with a fit noncustodial parent willing to assume custody can properly be declared dependent” if the child is dependent as to the custodial parent. Although this writer does not agree that the legislature intended that result in drafting § 12-15-102(8), see also Ex parte W.E., 64 So.3d 637, 638 (Ala.2010) (Murdock, J., concurring specially) (“A child cannot be dependent vis-a-vis one parent but not dependent as to the other parent. If the child is not dependent ‘as to one parent,’ then the child is not dependent.), neither G.H. nor any other cases with similar holdings, see, e.g., T.K v. M.G., 82 So.3d 1 (Ala.Civ.App. 2011), has ever been overruled. In this case, the child was born out of wedlock and, as such, into the legal and physical custody of the mother. See Rainer v. Feldman, 568 So.2d 1226 (Ala.1990). The father does not challenge the juvenile court’s judgment to the extent that it found that the mother was unable or unwilling to provide adequate care and supervision for the child and that the child was dependent as to the mother, as she stipulated. Therefore, the juvenile court did not en* in adjudicating the child to be dependent.

We recognize that the juvenile court did not base its dependency determination solely on the dependency of the child as to the mother. The juvenile court also found that the child was dependent as to the father, who is described in the judgment as “unprepared financially” and lacking in “terms of general parenting/maturity.” The juvenile court also concluded that the father had made “insufficient efforts.” Even if the juvenile court erred in finding the child dependent as to father, as he argues, we may still affirm the judgment on the legal ground explained above, namely, that the child was dependent as to the mother. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (“[TJhis Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.”). Hence, we do not consider whether the evidence supports the juvenile court’s factual determinations regarding the father or whether those factual determinations support a legal conclusion that the child was dependent as to the father.

The father next argues that the juvenile court erred by finding that DHR had made reasonable efforts to unite him with the child. A judgment terminating parental rights based on an erroneous finding that DHR made reasonable efforts may be subject to reversal. See H.H. v. Baldwin Cty. Dep’t of Human Res., 989 So.2d 1094, 1108-09 (Ala.Civ.App.2007) (opinion on return to remand) (Per Moore, J., with two judges concurring in the result). However, based on due-process concerns, a state ordinarily must exhaust all viable alternatives before terminating parental rights, see Ex parte Beasley, 564 So.2d 950 (Ala.1990), which, except in extraordinary circumstances, see 12-15-312(c), Ala.Code 1975, requires the state to prove that reasonable efforts to save the family have failed. See 12-15-319(a)(7), Ala.Code 1975. On the other hand, the AJJA does not provide that a juvenile court must exhaust all reasonable efforts before finding a child dependent such that an erroneous finding on that point generally would require reversal of a dependency judgment.

Section 12-15-312, Ala.Code 1975, provides, in pertinent part:

“(a) When the juvenile court enters an order removing a child from his or her home and places the child into foster care or custody of the Department of Human Resources pursuant to this chapter [i.e., the AJJA], the order shall contain specific findings, if warranted by the evidence, within the following time periods while making child safety the paramount concern:
“(1) In the first order of the juvenile court that sanctions the removal, whether continuation of the residence of the child in the home would be contrary to the welfare of the child. This order may be the pick-up order that the juvenile court issues on the filing of a dependency petition.
“(2) Within 60 days after the child is removed from the home of the child, whether reasonable efforts have been made to prevent removal of the child or whether reasonable efforts were not required to be made.
“(3) Within 12 months after the child is removed from the home of the child and not less than every 12 months thereafter during the continuation of the child in out-of-home care, whether reasonable efforts have been made to finalize the existing permanency plan.
“(b) As used in this chapter, reasonable efforts refers to efforts made to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the home of the child, and to make it possible, for a child to return safely to the home of the child....”

See also § 12-15-301(10), Ala.Code 1975 (defining “reasonable efforts” similarly to § 12-15-312(b)).

Section 12-15-312 does not impose upon DHR a general duty to exert reasonable efforts upon the commencement of every dependency action. By its plain language, § 12-15-312 applies only “[w]hen the juvenile court enters an order removing a child from his or her home and places the child into foster care or custody of the Department of Human Resources pursuant to this chapter [i.e., the AJJA].” § 12-15-312(a). See R.T.B. v. Calhoun Cty. Dep’t of Human Res., 19 So.3d 198, 204 (Ala.Civ.App.2009) {“When a child is removed from the custody of his or her parents due to dependency, the juvenile court has a duty in most cases to exert reasonable efforts to reunite the family as quickly and safely as possible.” (emphasis added)). In this case, the child has been residing with the custodians since she was 11 months old. Throughout the dependency proceedings, the juvenile court has maintained the child in the same home. The child was never placed into foster care or into the custody of DHR. See H.H., 989 So.2d at 1107-08 (explaining that the federal Adoption and Safe Families Act of 1997, Public L. No. 105-89, 111 Stat. 2115 (1997), codified at 42 U.S.C. § 670 et seq., requires states to make reasonable efforts to prevent or reduce the need for foster-care programs financed, in part, by the federal government). Hence, the juvenile court had no duty under § 12-15-312 to make any specific findings regarding reasonable efforts.

A juvenile court may, for the best interests of the child, order DHR to make reasonable efforts in order to assist a noncustodial parent in gaining custody of his or her child, but the juvenile court did not enter any such order in this case. Section 12-15-101(b)(3), Ala.Code 1975, establishes as one of the goals of juvenile courts

“reuniting] a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the custody of his or her parent or parents unless reunification is judicially determined not to be in the best interests of the child.”

Section 12—15—101(b)(3) does not apply in this case because the child has never been “removed” from the “custody” of the father so that the juvenile court should have ordered DHR to make reasonable efforts to “reunite” the father with the child. The father has never exercised custody of the child. The father and the child have never resided together in a shared family home. Until this litigation, the father had only sporadically associated with the child. The father and the child have never been separated by an order of a court or other state intervention. Even the broad policy goal embodied in § 12—15—101 (b)(3) does not require the juvenile court to order DHR to make reasonable efforts to assist the father in gaining custody of the child in this case.

In the final judgment, the juvenile-court judge checked a box on a preprinted form to indicate that “DHR made reasonable efforts to prevent removal and/or reunite [the] child and [the] parents.” The father argues that the evidence does not support that finding. Assuming, without deciding, that the father is correct on this point, the father has failed to show that such error prejudices his substantial rights. See Rule 45, Ala. R.App. P. (“No judgment may be reversed ,.., unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”). The father has not shown that he had any legal right, whether arising by statute, caselaw, or court order, to the reasonable efforts of DHR. Therefore, any error committed by the juvenile court as to this issue would constitute no more than harmless error that does not mandate reversal of the juvenile court’s judgment.

Finally, the father argues that the juvenile court erred in awarding custody of the child to the custodians because, he says, that award violates Ala.Code 1975, § 12-15-314(a)(3)c. That Code section provides:

“(a) If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
“(3) Transfer legal custody to any of the following:
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.”

(Emphasis added.) The plain language of § 12-15-314(a)(3)c. requires a juvenile court to award custody to an appropriate relative over a nonrelative unless the juvenile court finds it is not in the best interest of the child. See C.K.L. v. C.L.M., 192 So.3d 18 (Ala.Civ.App.2015). In this case, the juvenile court impliedly found that, at the time of the trial, it was in the best interest of the child to remain in the custody of the custodians with whom the child had been living for the three years preceding the trial. Based on our review of the record, we cannot say that the juvenile court exceeded its discretion in making its custodial disposition. See F.W. v. T.M., 140 So.3d 950, 960 (Ala.Civ.App.2013) (holding that custodial disposition of dependent child to a nonrelative is a discretionary ruling).

Conclusion

Based on the foregoing, we affirm the judgment of the juvenile court.

APPLICATION GRANTED; OPINION OF FEBRUARY 12, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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

      . The father’s notice of appeal was held in abeyance and was deemed filed upon the denial, by operation of law, of the father's post-judgment motion on July 15, 2015. See Rule 4, Ala. R.App. P.

        . On application for rehearing, the father argues that, pursuant to Rule 25(D), Ala. R. Juv. P., the juvenile court was required to make specific findings regarding its disposition of the child. This court does not consider arguments made for the first time on rehearing. See Ex parte Lovejoy, 790 So.2d 933, 938-39 (Ala.2000). Nevertheless, we determine that the juvenile court substantially complied with Rule 25(D) by setting out its custody and visitation awards in writing.

      . We note that the juvenile court awarded the father escalating visitation with the child, ordered DHR to continue supervising the case, and stated at the trial that it would consider changing custody to the father in the future.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Eric Maurice JACKSON v. Debbie Maria JACKSON.
    2150005.
    Court of Civil Appeals of Alabama.
    May 20, 2016.
    Rehearing Denied Aug. 5, 2016.
    Derrick Collins, Birmingham, for appellant.
    Shane M. Oncale of The Oncale Firm, P.C., Birmingham, for appellee.
   MOORE, Judge.

Eric Maurice Jackson (“the husband”) appeals from a divorce judgment entered by the Bessemer Division of the Jefferson Circuit Court (“the trial court”) on the ground that the judgment inequitably divides the marital estate. We affirm the trial court’s judgment.

The divorce judgment awards Debbie Maria Jackson (“the wife”) the marital home; a 2014 Chevrolet Cruz; her clothing, jewelry, and other personal property in her possession; specific personal property, identified on a list; and the financial accounts maintained in her name. The divorce judgment awards the husband a lot in Pleasant Grove, a 2004 Lincoln Navigator (subject to the condition that he transfer the title to his own name within 30 days), and the financial accounts maintained in his name. The divorce judgment does not place any values on the property awarded. The husband filed a motion to alter, amend, or vacate the divorce judgment, arguing that the trial court had erred in awarding the wife the marital home. The trial court denied the post-judgment motion, and the husband timely appealed.

The appellate record, which the clerk of the trial court certified as complete on December 16, 2015, does not contain a transcript of the ore tenus trial proceedings. The husband contends that no court reporter attended the trial to transcribe the testimony. The husband filed a motion to supplement the record to include discussion of, and citation to, the exhibits introduced at trial, which this court granted on March 22, 2016. Because the husband had already filed his brief on March 8, 2016, the court ordered that he could amend his brief to include the evidence contained in the exhibits. After the trial-court clerk supplemented the record with the exhibits, the husband did not amend his brief. Instead, on April 13, 2016, he filed a motion for leave of this court to file out of time a statement of the evidence pursuant to Rule 10(d), Ala. R.App. P. This court denied that motion. Thus, the record contains neither a transcript nor a statement of the evidence as established by the testimony and exhibits introduced at trial.

The husband argues on appeal that the trial court exceeded its discretion by failing to award the husband any interest in the marital home, by awarding him only the Pleasant Grove lot in its division of the real property, and by awarding the wife an inequitable share of the marital estate. In making those arguments, the husband maintains that the equity in the marital home is $235,000, that the Pleasant Grove lot is an abandoned lot with a net equity of $8,000, and that he received only 5% of the value of all the property in the marital estate. Due to the absence of a transcript or a Rule 10(d) statement of the evidence, the husband does not cite any evidence that supports those assertions or valuations.

In Falkenburg v. Falkenburg, 549 So.2d 502 (Ala.Civ.App.1989), this court faced a similar situation. The court stated:

“The principle that property division is discretionary with the trial court is well established. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App. 1987); Carnaggio v. Carnaggio, 475 So,2d 861 (Ala.Civ.App.1985). The trial court has the power to use any reasonable means to effect a just distribution of property. West v. West, 437 So.2d 583 (Ala.Civ.App.1983). The only requirement governing its exercise of discretion in this area is that the division of property must be equitable. Equal distribution is not mandated. Camaggio, supra. Furthermore, even though this court might have reached a different decision than that reached by the trial court, such does not constitute a basis for our reversal of the trial court, which heard the evidence and observed the witnesses. Jordan v. Jordan, 523 So.2d 1,078 (Ala.Civ.App.1988). The wife argues that the trial court’s failure here to award the residence to her constituted error. This court is authorized to disturb the trial court’s decision in that regard only if it is unsupported by the evidence and, therefore, is unjust and palpably wrong. Austin v. Austin, 408 So.2d 138 (Ala.Civ.App.1981).
“Unfortunately, the testimony in this ■case is not before us. No court reporter was present at the trial; consequently, there is no transcript. Even so, the wife could have prepared a statement of the evidence or proceedings in accordance with the procedure outlined in Rule 10(d),. Alabama Rules of Appellate Procedure, but she did not do so. The record on appeal contains only the clerk’s record.
“Nevertheless, the wife argues on appeal that the trial court’s decree, which is based, at least in part, on evidence presented ore tenus, is plainly and palpably wrong; therefore, appellate reversal on such ground must be based on the conclusion that the evidence virtually compels a result inconsistent with the trial court’s decision. Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976), We find, however, that we cannot make such a determination where none of the oral testimony is communicated to us. When oral testimony was considered by the trial court in reaching its decision and this testimony is not present in the record as either a transcript or Rule 10(d) statement, it must be conclusively presumed that the testimony is sufficient to support affirmance. Adams, supra. We agree with the following conclusion as stated in Adams:
“ ‘Under [the Alabama Rules of Appellate Procedure] it is not necessary to submit the entire transcript; however, there is a minimum below which an appellant who bases his argument on the weight and sufficiency of the evidence may not fall and still present a reviewable issue. The complete absence of any transcript or 10(d) statement of oral testimony falls below such a minimum.’
335 So.2d at 177.
“In view of the foregoing, we cannot say that the trial court’s division of property in this case is inequitable so as to constitute a palpable abuse of discretion. The judgment of the trial court is due to be affirmed.”

549 So.2d at 503-04.

Unlike in Falkenburg, in this case the husband did file a motion for leave of court to file a statement of the evidence on April 13, 2016. However, he did not follow the procedure outlined in Rule 10(d), which provides, in pertinent part:

“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. If the appellant prepares such a statement, the appellant shall serve it on the appellee within 28 days (4 weeks) after filing the notice of appeal.... ”

The husband filed his notice of appeal on September 25, 2015, making his statement of the evidence due by October 23, 2015. This court may “for good cause shown” suspend the deadlines contained in Rule 10(d), see Rule 2(b), Ala. R.App. P.; however, in this case, the court did not find good cause for the failure of the husband to comply with Rule 10(d).

The court suspended the rules on March 22, 2016, when it ordered the clerk of the trial court to supplement the record to include the trial exhibits after the husband had already filed his appellant’s brief to this court. After reviewing the exhibits, the husband’s appellate counsel moved this court to suspend the rules again to allow the husband to file a Rule 10(d) statement of the evidence. In that motion, the husband’s appellate counsel stated that he had been misled by the husband and the husband’s trial counsel regarding the content of the exhibits, which did not contain the evidence appellate counsel had “anticipated” would prove the value of the marital property. However, the husband’s appellate counsel did not explain why, in light of the fact that no transcript of the trial proceedings was made, any confusion about the exhibits could not have been settled in time to comply with Rule 10(d). This court found no good cause to suspend the rules a second time to initiate the Rule 10(d) procedure.

The husband also argued in his April 13, 2016, motion, without citation to any authority, see Rule 27(a), Ala. R. Civ. P., that his right to due process would be violated if this court did not grant his untimely request to initiate the Rule 10(d) procedure. However, the husband had an opportunity to comply with Rule 10(d) and failed to do so without good reason. This court did not deprive the husband of due process by enforcing the appellate rules.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

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


text:
    J.M.S. v. STATE of Alabama ex rel. Y.R.S.
    2140950.
    Court of Civil Appeals of Alabama.
    June 10, 2016.
    Certiorari Denied Aug. 12, 2016
    Alabama Supreme Court 1150988.

      John L. Bodie, Trussville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

J.M.S. (“the father”) appeals from a judgment of the Bessemer Division of the Jefferson Juvenile Court (“the juvenile court”) holding him in contempt for refusing to pay child support as ordered by the Superior Court of Orange County, California. We affirm the juvenile court’s judgment.

Procedural History

On July 21, 2015, the State of Alabama, on behalf of Y.R.S. (“the mother”), filed a petition requesting the juvenile court to hold the father in contempt for refusing to pay child support in accordance with an order that had been entered by the Superi- or Court of Orange County, California, on June 19, 2006. The State attached to its petition a certified copy of the California order, as well as a certified copy of the payment record maintained by the California Department of Child Support Services.

On August 10, 2015, the juvenile court, through a referee, entered an order registering the California order and finding the father in contempt of court. The juvenile court subsequently appointed an attorney for the father, who requested a rehearing, which was granted. On August 18, 2015, the juvenile-court judge confirmed the referee’s findings, ordered the father incarcerated for 10 days, and directed that the father pay at least $1,200 in order to be released from jail. On August 20, 2015, the juvenile court released the father from jail after he paid the $1,200. That same day, the father filed a petition for a writ of mandamus with this court. On August 24, 2015, this court notified the parties that it was treating the father’s petition as an appeal.

Discussion

I.

The father contends that the juvenile court lacked jurisdiction to enforce the California child-support order because, he says, the order was not registered in Alabama before the contempt proceedings were initiated. Section 30-3D-602, Ala. Code 1975, a part of the Uniform Interstate Family Support Act (“the UIFSA”), § 30-3D-101 et seq., Ala.Code 1975, provides:

“(a) Except as otherwise provided in Section 30-3D-706, [Aa.Code 1975,] a support order or income-withholding orr der of another state or a foreign support order may be registered in this state by sending the following records to the appropriate tribunal in this state:
“(1) a letter of transmittal to the tribunal requesting registration and enforcement;
“(2) two copies, including one certified copy, of the order to be registered, including any modification of the order;
“(3) a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(A) the obligor’s address and Social Security number;
“(B) the name and address of the obligor’s employer and any other source of income of the obligor; and
“(C) a description and the location of property of the obligor in this state not exempt from execution; and
“(5) except as otherwise provided in Section 30-3D-312, [Aa.Code 1975,] the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.”

At the time of the filing of the petition in the juvenile court, our caselaw held that “[o]nly strict compliance with [the UIFSA] registration procedure conferred] subject-matter jurisdiction upon an Aabama circuit court to enforce ... a foreign child-support judgment.” Ex paute Ortiz, 108 So.3d 1046, 1050 (Aa.Civ.App.2012) (construing former § 30-3A-602, Aa.Code 1975, the predecessor to § 30-3D-602). During the pendency of this petition, however, this court has reconsidered that issue:

“[T]his court is no longer of the opinion that strict compliance with [§ 30-3D-602(a), Aa.Code 1975,] is required. No language in the statute itself mandates strict compliance with its provisions, and our previous opinions offer no analysis or discussion as to why strict compliance should be required.
“... [T]his court now overrules the line of cases requiring strict compliance with the registration requirements found in § 30-3D-602(a) and holds, instead, that substantial compliance with those requirements is sufficient.”

Ex parte Reynolds, 209 So.3d 1122, 1128 (Aa.Civ.App.2016).

“The general rule is that a case pending on appeal will be subject to any change in the substantive law.” Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 438 (Ala.2001). Therefore, in the present case, this court must determine if the State “substantially complied” with § 30-3D-602(a).

“‘Substantial compliance’ may be defined as ‘actual compliance in respect to substance essential to every reasonable objective,’ of a decree giving effect to equitable principles—equity—in the true meaning of that word. Application of Santore, 28 Wash.App. 319, 623 P.2d 702 (1981). Substantial compliance means compliance which substantially, essentially, in the main, for the most part, satisfies the means of accomplishing the objectives sought to be effected by the decree and at the same time does complete equity. See North Carolina Nat’l Bank v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979). What constitutes substantial compliance is a matter dependent upon the particular facts of each case, none ever quite a clone of any other. See Trussell v. Fish, 202 Ark. 956,154 S.W.2d 587 (1941).”

Pittman v. Pittman, 419 So.2d 1376, 1379 (Ala.1982).

In the present case, the State attached a “registration statement” to its petition, notifying the juvenile court that the State was requesting registration of the California order. The registration statement served as a functional equivalent of “a letter of transmittal to the tribunal requesting registration and enforcement.” § 30-3D-602(a)(l). See, e.g., Twaddell v. Anderson, 136 N.C.App. 56, 523 S.E.2d 710 (1999). The State filed only one certified copy of the California order, which effectively proved its authenticity so as to substantially comply with the purpose of § 30-3D-602(a)(2). See Ex parte Reynolds, supra. The State attached to its petition a sworn statement of the arrear-age by the “custodian of the records” as required by § 30-3D-602(a)(3). The name of the obligor and the obligor’s address and Social Security number also were included in compliance with § 30-3D-602(a)(4) and § 30-3D-602(a)(4)(A). The State did not comply with §§ 30-3D-602(a)(4)(B) and (C), which require “the name and address of the obligor’s employer and any other source of income of the obligor” and “a description and the location of property of the obligor in this state not exempt from execution”; however, those subsections are to be complied with only “if known.” Finally, the State provided “the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.” § 30-3D-602(a)(5).

Based on the foregoing, we conclude that the State “satisfie[d] the means of accomplishing the objectives sought to be effected,” Pittman, 419 So.2d at 1379, and, thus, that it substantially complied with § 30-3D-602(a) so that the California order was registered when filed with the juvenile court on July 21, 2015. See § 30-3D-603(a), Ala.Code 1975 (“A support order or income-withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state.”). At that point, the juvenile court acquired subject-matter jurisdiction to enforce the California order without the necessity of any further court action to confirm, ratify, adopt, or “domesticate” the California order. See Uniform Comment to § 30-3D-603, Ala.Code 1975 (“Conceptually, the responding tribunal is enforcing the order of a tribunal of another state or a foreign support order, not its own order.”).

The father has not cited any authority for the proposition that a contempt proceeding cannot be initiated simultaneously with the registration of a foreign child-support order. In fact, the UIFSA specifically provides that “[a] petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later.” § 30-3D-602(c). In this case, the State registered the California order by attaching the necessary documents to the contempt petition, which specified the remedy the State was seeking in accordance with § 30-3D-602(c). The juvenile court did not violate the UIFSA by accepting the contempt petition at the same time as the request for registration of the California order.

Section 30-3D-603(b) provides: “A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” In this case, the juvenile court enforced the California order by finding the father in contempt and by ordering him incarcerated for 10 days unless he paid $1,200. In this state, before a court can issue an order holding an obligor parent in civil contempt of a child-support order, the court must follow the procedures set out in Rule 70(A), Ala. R. Civ. P. T.L.D. v. C.G., 849 So.2d 200, 204 (Ala.Civ.App.2002). In such cases, Rule 70(A)(c) requires the filing of a petition containing allegations of the facts constituting the contempt, Rule 70A(c)(l), and the issuance of process notifying the alleged contemnor of the hearing on the petition and the consequences of failing to appear at the hearing. Rule 70(A)(c)(2). In addition, an alleged contemnor, if determined to be indigent, must be appointed counsel in actions involving allegations of criminal contempt, unless he or she waives that right. Rule 70(A)(c)(3).

The record shows that the State filed a petition alleging that the father had the ability to pay the child support awarded in the California order but that he had willfully failed to comply with the California order. The petition further requested that the father be required to show cause why he should not be held in contempt of court. The juvenile court issued process, which notified the father that he had 14 days to respond to the petition or else a default judgment could be entered against him. That notice also informed the father of the date and time a hearing was scheduled on the matter before a referee. According to a subsequent order entered by the referee, the father waived his due-process rights at that hearing. Upon rehearing, the father did not object based on the juvenile court’s alleged failure to follow Rule 70(A) in any respect, and he did not request a new trial to correct any alleged deficiencies in the procedure leading to the contempt adjudication. “We do not consider issues which were not first raised in the trial court.” Sanders v. Mullins, 579 So.2d 1349, 1350 (Ala.Civ.App.1990). Accordingly, we find no merit in the father’s argument that the juvenile court failed to follow the proper procedure when adjudicating the contempt petition.

II.

The father also argues that the juvenile court violated his due-process rights by adjudicating him to be in criminal contempt of court. We note, however, that the father failed to make this argument to the juvenile court. Therefore, it was not preserved for review by this court. See, e.g., J.K v. N.J., 23 So.3d 57, 60 (Ala.Civ. App.2009).

III.

Lastly, we address the father’s argument that the juvenile court improperly incarcerated him for a debt in violation of Art. I, § 20, Ala. Const.1901. We have clearly held that Art. I, § 20, Ala. Const. 1901, is inapplicable to “the contemptuous failure to pay child support.” Dolberry v. Dolberry, 920 So.2d 573, 578 (Ala.Civ.App. 2005). Therefore, the father’s argument is without merit.

Conclusion

Based on the foregoing, we affirm the juvenile court’s judgment.

AFFIRMED.

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


author: DONALDSON, Judge.

text:
    Sabrina Gail WALKER v. Steve Allen WALKER.
    2140610.
    Court of Civil Appeals of Alabama.
    June 10, 2016.
    Certiorari Denied Aug. 12, 2016
    Alabama Supreme Court 1151013.

      Ralph K. Strawn, Jr., of Strawn & Robertson, LLC, Gadsden, for appellant.
    Stephen B. Bussman and Stanna Crowe Guice of Bussman & Guice, PC, Fort Payne, for appellee.
   On Rehearing Ex Mero Motu

DONALDSON, Judge.

This court’s opinion of May 6, 2016, is withdrawn, and the following is substituted therefor.

This case is before this court for the second time on appeal. In the first appeal, we reversed the judgment of the DeKalb Circuit Court (“the trial court”) divorcing Sabrina Gail Walker (“the wife”) and Steve Allen Walker (“the husband”) because the judgment had incorporated an unenforceable, purported settlement agreement between the parties, and we remanded the cause for further proceedings. Walker v. Walker, 144 So.3d 359 (Ala.Civ.App.2013). On remand, the trial court entered a divorce judgment after conducting a trial on all the issues. The wife appealed. In this second appeal, the wife fails to demonstrate any ground requiring reversal of the divorce judgment. We therefore affirm the divorce judgment.

Facts and Procedural History

The wife and the husband were married in 1994. Before the marriage, the wife owned what would become the marital residence on Sand Mountain and the husband owned 5.9 acres of land with a house and other land used as a trailer park in an area described as “Dug Out Valley.” Those properties became jointly owned by the parties after the marriage. During the marriage, the parties purchased 32 acres of land and another 1 acre of land on Sand Mountain (“the Sand Mountain properties”). The parties have a daughter (“the daughter”) who was 16 years old when the divorce proceedings commenced.

On September 14, 2011, the wife filed a complaint for a divorce. The husband filed an answer and a counterclaim for a divorce. The parties purportedly reached a settlement agreement; however, the wife refused to sign or approve the written settlement agreement prepared by the husband’s attorney, and the husband eventually filed a motion to enforce that agreement. On July 10, 2012, the trial court entered a divorce judgment, which incorporated the purported settlement agreement prepared by the husband’s attorney. Walker, 144 So.3d at 363. The judgment placed sole physical custody of the daughter with the wife and ordered the husband to pay $400 a month in child support. The trial court ordered the husband to pay the wife $600 a month for 24 months as alimony in gross. In accordance with the purported settlement agreement prepared by the husband’s attorney, the judgment divided the marital property as follows:

“15. The [wife] is hereby awarded the marital residence and one (1) acre of land and shall assume the indebtedness to Regions Bank and hold the [husband] harmless therefrom. The [wife] shall refinance the said marital residence within sixty (60) days from the date of this Order. The [husband] shall execute whatever documents are necessary to effectuate same.
“....
“18. The [wife] shall be awarded Chrysler Town & Country van. The [husband] shall execute whatever documents are necessary to effectuate same.
“19. [The husband] shall be awarded the BBQ grill, his rings, the dining room suite and all of his personal belongings.
“20. The [husband] shall be awarded the Dug Out Valley properties, the one (1) acre tract, and the 32 acre tract [i.e., the Sand Mountain properties]. The [wife] shall execute whatever documents are necessary to effectuate same. The [daughter] shall ultimately receive the one (1) acre tract and the 32 acre tract [i.e., the Sand Mountain properties].
“21. The [husband] shall also be awarded all of the assets of Steve Walker Construction and any mobile homes.”

The wife appealed to this court. See Walker, supra. We held that a meeting of the minds between the parties never occurred regarding the timing and the manner of conveyance of the Sand Mountain properties to the daughter. 144 So.3d at 365-66. Because, we held, the parties had only agreed to agree on that issue, we reversed the judgment. Id. We remanded the cause for a trial on all issues because of the interrelatedness of the provisions in the judgment regarding property division and alimony. 144 So.3d at 366.

On January 5, 2015, on remand, the trial court conducted a trial on all the issues. Testimony showed that, during the marriage, the husband owned a contracting business with his business partner, Ed Houstan. Their business involved using heavy construction equipment. They had one full-time employee, and they hired temporary workers as needed for projects. According to the wife’s testimony, the husband had also during the marriage purchased all of Houstan’s interest in the business. The wife testified that she and the husband had compiled a statement of assets in 2007 (“the 2007 statement”), when the husband was the sole owner of the business, and that she had prepared the 2007 statement with the husband in conjunction with an application for a loan. Referring to the 2007 statement, the wife testified to the following values of equipment that, according to her, the husband still used in his business: a Freightliner truck ($10,000), a Mack truck ($80,000), a Peterbilt dump truck ($50,000), a Case backhoe ($27,000), a Cat traekhoe ($38,-000), a Track loader ($7,000), a Case “doz-er” ($34,000), a portable trailer ($1,300), and a Chevrolet Silverado truck ($17,000).

Both parties testified that the Chevrolet Silverado was damaged beyond repair in an automobile accident. The husband testified that he no longer owned the Freight-liner truck and that he never owned a Track loader. He testified that he owed Danny Wagner $41,000 and that, pursuant to a business arrangement, he was allowed to use the following equipment while Wagner held a bill of sale on them: the Case backhoe, the Cat traekhoe, and the Case dozer. The husband testified to the following values for that equipment: the Case backhoe ($18,000), the Cat traekhoe ($7,000), and the Case dozer ($12,000). He testified to the current value of the equipment he still owns: the Mack truck ($25,-000), the Peterbilt dump truck ($20,000), and the portable trailer ($1,000 to $1,300). The husband testified that he owed $30,000 in the principal amount of a bank loan for the business. Houstan testified that the husband still owes him $35,000 and that business in the construction industry had been slow since 2008. The husband reported on his tax return in 2012 an adjusted gross income of $5,802 and a profit from the construction business of $6,037.

Both parties testified that the wife had deceived the husband in financial matters. The husband testified that, early in their marriage, the wife had incurred thousands of dollars in debt with credit cards despite an agreement that they would not have credit cards. The wife testified that, even after the husband found out about her credit-card debts and those debts were paid, she continued to incur thousands more in credit-card debt. The wife testified that she manipulated their checkbook register and cut and pasted bank statements so that certain bills, such as bills for dentist visits for their daughter, appeared to be completely paid when they were not. The husband testified that $38,000 was missing from their checking account when they separated. The husband testified that they had had to continuously obtain new loans to pay for the financial problems caused by the wife.

The wife testified that, early in the marriage, the marital residence had a mortgage balance of $46,000. The parties refinanced the mortgage to increase the balance to $150,000, which the wife testified funded the purchase of Houstan’s business interest and payment on a small note owed by the husband. A few years later, the parties refinanced the mortgage again in the amount of $155,000. Testimony showed that, in 2008, there was a principal amount of $134,000 owed on the mortgage encumbering the marital residence and $14,000 on a mortgage encumbering the Dug Out Valley properties when the parties obtained refinancing in the amount of $155,000. The new loan was to be used to pay for both mortgages. The wife handled the loan closing for the refinancing while working for a law firm. The wife altered the documentation so that the proceeds from the new loan paid for the mortgage on the marital residence but the mortgage on the Dug Out Valley properties remained outstanding. In 2009, the husband discovered that the mortgage on the Dug Out Valley properties was outstanding, and he paid that mortgage debt.

The wife testified that she neither, spent any of the missing money on luxury items nor kept the money hidden anywhere. The wife testified that her reasons for seeking a divorce on the ground of incompatibility included the husband’s temper tantrums, his control over all finances, and their fights over money. She testified that the husband had had an affair in 2002 or 2003. She testified that then- last fight before the separation was over the checking account. The husband testified that the wife was at fault for the divorce because of her financial mismanagement.

At the time of the trial, the wife was 51 years old and the husband was 54 years old. The wife testified that she had a high-school diploma and had attended college for several semesters. She testified to having experience working as a secretary, a legal assistant, a substitute teacher, and a rental-property manager. At the time of the trial, she was working sporadically at an automobile auction. The wife testified that she had submitted resumes to employers but that she had been unable to find full-time employment. She testified that she was living with her parents and was receiving food stamps.

The parties provided differing valuations regarding the Dug Out Valley properties and the Sand Mountain properties. Referring to the 2007 statement, the wife testified that the 5.9 acres with the house in Dug Out Valley was valued at $55,000 and that the other property, including the land and the trailers, in Dug Out Valley was valued at $200,000. The husband acknowledged that the wife might have prepared the 2007 statement, but he asserted that he did not assist in creating it. The husband testified that the value of the land with the house in Dug Out Valley was $24,000 to $25,000 and that, based on other land sold in the area, the value of the land with the trailer park in Dug Out Valley was $22,200 to $29,600. Houstan testified that he owned three trailers in the park and that the husband owned three trailers. Houstan testified that the trailers were valued at $1,200 each and that they were having difficulty generating rental income because of the closure of sock mills in the area.

Early in the marriage, the husband leased the 32-acre Sand Mountain property as pastureland. The wife testified that the husband recently had removed topsoil from that property for use in his business. The wife testified that, at the time of the trial, the value of the Sand Mountain properties was $125,000. The husband testified that the value of the Sand Mountain properties was $275,000. It is unclear from the record whether the Sand Mountain properties were assigned separate values.

The wife requested periodic alimony and the Town and Country van she was driving, but she did not request any items the husband had already taken from the marital residence, such as his BBQ grill. The husband requested a gun safe that was installed in the residence. Both parties testified that they owed the principal amount of $100,000 for the mortgage on the marital residence and that the husband had been making the mortgage payments since September 2012. The husband testified that the mortgage payments were $1,251 a month. The wife testified that the parties did not have any retirement assets.

By the time of the trial, the daughter was of the age of majority. The wife testified to supporting the daughter by helping her with college-scholarship and financial-aid applications. The wife requested that the husband pay a child-support arrearage accrued during the pendency of the divorce action. The husband testified that he did not pay child support, as ordered in the July 10, 2012, judgment, after the first appeal was filed.

On January 8, 2015, the trial court entered a judgment divorcing the parties. The judgment divided the marital property and adjudicated the issue of periodic alimony as follows:

“4. The [wife] is hereby awarded the marital residence and its furnishings, except as set out in paragraph (9) below, and one (1) acre of land and shall assume the indebtedness to Regions Bank and hold [the husband] harmless therefrom. The [wife] shall refinance the said marital residence within sixty (60) days from the date of this Final Decree. The [husband] shall execute whatever documents are necessary to effectuate the same.
“5. The [wife] is awarded the Chrysler Town <⅞ Country van. The [husband] shall execute whatever documents are necessary to effectuate the same.
“6. The [husband] is awarded the BBQ grill, his rings, the dining room suite and all of his personal belongings.
“7. The [husband] is awarded the Dugout Valley properties, the one (1) acre tract and the 32 acre tract. It is the Court’s intent that by this Final Decree the [husband] be awarded all of the parties’ property located on Sand Mountain except the marital residence and one (1) acre that is awarded in paragraph (4) above. The [wife] shall execute whatever documents are necessary to effectuate the same.
“8. The [husband] is awarded all of the assets of Steve Walker Construction and any mobile homes. He shall be responsible for any and all indebtedness for such business and shall hold the [wife] harmless from any such debt.
“9. The [husband] is awarded the gun safe that is in the marital residence. He shall be solely responsible for paying for any repairs necessary to the martial residence based on the gun safe’s removal. The [husband] shall ensure that after the safe is removed, the marital residence is repaired such that there is no evidence of the safe’s removal and that the house is in as good or better shape than it was before the removal. In the alternative, he may leave the safe in the house.
“10. Other than as set out herein, each party is hereby awarded the rights title and possession of the items of personal property in their respective possessions.
“11. Other than as set out herein, each party shall be solely liable for any and all debts incurred in their own name and shall hold the other party harmless from all such indebtedness.
“12. Upon consideration of the parties’ education, standard of living during the marriage, future employment prospects, potential for maintaining their standard of living after the divorce, ages and health, length of marriage, source of common property and conduct with reference to the cause of the divorce, the Court finds that an award of periodic alimony is not proper. Therefore, neither party is awarded periodic alimony.
“13. Each party shall maintain full right, title and interest in their own retirement account(s). Neither party is awarded any right, title or interest in any retirement account owned by, or in the name of, the other party.”

On February 9, 2015, the wife filed a motion to alter, amend, or vacate the judgment and for the recusal of the trial judge. In the motion, the wife asserted that the January 8, 2015, divorce judgment was substantially the same as the judgment that previously had been reversed by this court and that, therefore, the trial judge should recuse himself for allegedly failing to follow this court’s mandate upon remand. The wife also argued that the evidence did not support the property division in the judgment, that the husband owed unpaid child support, and that she was unable to refinance the mortgage on the marital residence as ordered.

On February 17, 2015, the husband filed a postjudgment motion seeking to sell the marital residence at public auction and seeking reimbursement for the mortgage payments on the marital residence that he had made during the pendency of the divorce action. The wife filed a response, asserting in part that the husband’s post-judgment motion was untimely. The husband then filed an amended postjudgment motion seeking to sell the marital residence, citing Rule 60(b)(2), Ala. R. Civ. P.

On March 3, 2015, the trial court conducted a hearing on the postjudgment motions. During the hearing, the trial court stated the following regarding the wife’s motion seeking the recusal of the trial judge:

“THE COURT: ... It seems to me that the premise of this is that I have entered an order that has been rejected—substantively been rejected by the Court of Civil Appeals. I don’t read their opinion that way, I don’t read their opinion as issuing any kind of decision relative to the merits of the decision.
“It seems to me that their decision is just saying that the provision relative to the couple of tracks of land would not— was simply an agreement to agree and that was not a meeting of the minds. So we’ve talked about this judgment that I’ve entered that is substantially similar to the one the parties have agreed upon, but is it not the case that basically what I did was enter an order that was in compliance with the agreement that they reached, and it’s undisputed about that, but for two tracks of land?
“....
“THE COURT: ... [I]s my reading of the Civil Appeals decision not right in that it seems to me that the premise for the recusal—and again, don’t take this personally. I’m just dissecting the issue, but it seems to me that the premise of that is that I have entered what has been a substantively rejected argument, substantively rejected agreement, and I don’t think that’s true. Civil Appeals didn’t look at this agreement and say it’s not fair, did they? They just said it was not an agreement.”

On March 25, 2015, the trial court entered an order amending the judgment to order the husband to be responsible for $10,000 in unpaid child support. In the order, the trial court denied the motion to recuse, stating as the rationale for its holding: “ ‘ “[A]dverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice.”’” (Quoting Baldtwin v. Baldwin, 160 So.3d 34, 38 (Ala.Civ.App.2014), quoting in turn Hartman v. Board of Trs. of the Univ. of Alabama, 436 So.2d 837, 841 (Ala,1983).) Regarding the mortgage payments, the trial court held:

“The testimony at trial was that the [husband] lived in the marital residence until December 2011. Since that time, neither party has lived there. The [husband] has made all of the mortgage payments. Those payments are $1,251.00 per month. Since December 2011, there have been 36 monthly mortgage payments made by the [husband], up until January 2015. That amounts to $45,036.00 paid by the [husband]. One-half (1/2) of that amount is $22,518.00.
“The Final Decree is AMENDED as follows: based on the property division made by the Court, it is equitable that the [wife] pay $10,000.00 to the [husband] as reimbursement for his payment of the mortgage. The remaining $12,518.00 of one-half (1/2) of such mortgage payments is credited toward the [wife] as part of the property division.”

(Capitalization in original.) The trial court denied the wife’s request to alter the division of the remaining assets and liabilities, stating:

“The Court finds that the mortgage assigned to the [the wife] is primarily the result of her financial misdeeds and therefore equitably her responsibility post-divorce. The [husband] contributed income during the marriage to help resolve financial problems incurred by the [wife] alone and such is credited to him. Also, her characterization of the rental property awarded to the [husband] is inaccurate. Such property is not nearly as productive as she claims. The Final Decree awarded the marital residence to the [wife].”

Despite awarding the husband reimbursement for his having paid the mortgage on the marital residence during the pendency of the divorce action, apparently on its own initiative, see discussion infra, the trial court construed the husband’s post-judgment motion as having been filed pursuant to Rule 59, Ala. R. Civ. P., and it denied the motion on the ground that it lacked jurisdiction to grant the relief ré-quested because the motion was filed more than 30 days after the entry of the judgment. See Rule 59(e), Ala. R. Civ. P.

On May 5,2015, the wife filed a notice of appeal to this court. The husband did not file a notice of cross-appeal. On appeal, the wife contends that the trial court exceeded its scope on remand from our decision in Walker, supra, that the trial judge should have recused himself, that the property division in the judgment is inequitable, that she should have received periodic alimony, and that the trial court improperly amended the judgment to order the wife to pay the husband $10,000.

Discussion

The wife first argues that the January 8, 2015, divorce judgment is inconsistent with this court’s remand instructions in Walker, supra, because, she asserts, that judgment is substantially similar to the previous judgment that this court reversed in Walker. Our remand in Walker was based on our reversal of the trial court’s judgment because of a lack of an enforceable agreement that could be incorporated into a final judgment. Walker, 144 So.3d at 366. We remanded the cause for a trial on all the issues because the provisions of the parties’ purported agreement were not severable. Following remand, the trial court conducted a trial on all the issues and then entered a judgment. The wife fails to establish how the trial court failed to follow any instructions of this court on remand. Further, we note that the two judgments are similar only in the division of property and that the judgments differ in the disposition of the Sand Mountain properties.

The wife further asserts that the trial court intended to enter a judgment in compliance with the purported settlement agreement that we held unenforceable in Walker, Our opinion in Walker, however, did not reach the merits of the property division in the purported settlement agreement. The wife imputes an intent on the part of the trial court to enter a judgment containing provisions similar to the property-division provisions in the purported settlement agreement, which were indisputably agreed upon by the parties except in regards to the provision regarding the disposition of the Sand Mountain properties. Such an intent is not necessarily inconsistent with an intent to enter a judgment on the merits. Our instructions on remand did not restrict the trial court from entering a judgment that was both similar to the purported settlement agreement and supported by the evidence elicited at the trial. To the extent that the wife’s argument as to this issue can be construed as attacking the sufficiency of the evidence to support the property-division provisions of the judgment, we discuss that issue in further detail, infra; however, such a contention has no bearing on whether the trial court complied with our remand instructions in Walker.

The wife’s argument for the trial judge’s recusal is likewise based on her allegation that the trial judge intended to enter a second divorce judgment resembling the first judgment that this court reversed in Walker. We do not discern any assertion of bias or prejudice by the trial judge in that allegation. The wife’s argument is merely based on a disagreement with an adverse ruling. “[A]dverse rulings are insufficient to establish bias by the trial judge that would necessitate recu-sal....” Landry v. Landry, 182 So.3d 553, 556 (Ala.Civ.App.2014); see Jadick v. Nationwide Prop. & Cas. Ins. Co., 98 So.3d 5, 10 (Ala.Civ.App.2011) (“[R]ecusal is not a remedy to be sought merely when a judgment is not in one’s favor ...; moreover, a judgment adverse to the movant [for recu-sal] does not imply the existence of the trial judge’s personal prejudice or bias.”). We conclude that the trial court properly denied the wife’s motion to recuse.

The wife argues next that the property division was inequitable and that she should have been awarded periodic alimony.

“ ‘Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are “unsupported by the evidence or [are] otherwise palpably wrong.” ’ Ex parte Bland, 796 So.2d 340, 344 (Ala. 2000) (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990)). Also, when, as in this case, a trial court’s judgment is based on ore tenus evidence, the judgment is presumed correct. Kennedy v. Kennedy, 743 So.2d 487 (Ala.Civ.App. 1999). The presumption of correctness under the ore tenus rule ‘is based on the trial court’s unique position to observe the witnesses and to assess their demeanor and credibility.’ Glazner v. Glazner, 807 So.2d 555, 559 (Ala.Civ. App.2001); see also Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).
“Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drum-mond, 785 So.2d 358 (Ala.2000); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App. 1993); and Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App. 1996).
“In dividing property and awarding alimony, a trial court should consider ‘the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties’] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce.’ Russell v. Russell, 777 So.2d 731, 733 (Ala.Civ.App.2000). Also, a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996); and Brewer v. Brewer, 695 So.2d 1 (Ala.Civ. App.1996). ‘A property division that favors one party over another does not necessarily indicate an abuse of discretion.’ Fell v. Fell, 869 So.2d 486, 496 (Ala.Civ.App.2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala.Civ.App. 1988)).”

Turnbo v. Turnbo, 938 So.2d 425, 429-30 (Ala.Civ.App.2006).

“This court and our supreme court have enumerated the many factors trial courts must consider when weighing the propriety of an award of periodic alimony, Edwards v. Edwards, 26 So.3d 1254, 1259 (Ala.Civ.App.2009), which include: the length of the marriage, Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App. 2009); the standard of living to which the parties became accustomed during the marriage, Washington v. Washington, 24 So.3d 1126, 1135-36 (Ala.Civ. App.2009); the relative fault of the parties for the breakdown of the marriage, Lackey v. Lackey, 18 So.3d 393, 401 (Ala.Civ.App.2009); the age and health of the parties, Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000); and the future employment prospects of the parties, Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003). In weighing those factors, a trial court essentially determines whether the petitioning spouse has demonstrated a need for continuing monetary’ support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet. See Gates v. Gates, 830 So.2d 746, 749-50 (Ala.Civ. App.2002); Hewitt v. Hewitt, 637 So.2d 1382, 1384 (Ala.Civ.App.1994) (‘The failure to award alimony, although discretionary, is arbitrary and capricious when the needs of the wife are shown to merit an award and the husband has the ability to pay.’).”

Shewbart v. Shewbart, 64 So.3d 1080, 1087 (Ala.Civ.App.2010).

The wife asserts that, under the divorce judgment, the husband receives virtually all the marital assets and the wife is obligated to pay all the debt on the marital residence despite, she alleges, a vast disparity in income. The husband’s tax returns show $5,802 in adjusted gross income in 2012. According to the husband’s testimony, the assets of his construction business total approximately $83,000, but his business debts total $106,000. The husband testified that the Dug Out Valley properties and his trailers have a total value of $49,800 to $58,200. The parties agree that the mortgage debt on the marital residence is $100,000. However, the parties appear to have testified regarding the value of the Sand Mountain properties as a whole and not regarding the values of each property separately. Thus, the equity value of the marital residence and the value of the Sand Mountain properties the husband received under the divorce judgment is not clear. Evidence from both parties supports the trial court’s finding that the husband has paid for the portion of the mortgage on the marital residence attributable to him and that the remainder of the debt is due to the financial misdeeds of the wife. The parties were married for 17 years before then-separation. Neither party presented evidence indicating that their ages or health should be a factor in the property division. We conclude that the wife has failed to show that the property division was inequitable or that an award of periodic alimony to her was required.

Furthermore, a preponderance of the evidence shows that the wife’s financial misconduct was the cause of the breakdown in the marriage. According to the husband’s testimony, the wife was at fault for the separation because of her financial mismanagement, and the wife admitted to deceiving the husband over financial matters. Although the husband had an affair eight or nine years before the parties separated, testimony shows that the parties reconciled afterward and that the parties’ last fight concerned the wife’s conduct with their checking account. On appeal, the wife fails to argue that she had established the financial costs associated with the parties’ standard of living during the marriage, see Shewbart, 64 So.3d at 1088 (“As a necessary condition to an award of periodic alimony, a petitioning spouse should first establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life.”), or the ability of the husband to pay periodic alimony. See id. (“[T]he trial court should consider the ability of the responding spouse to meet [the financial need of the spouse petitioning for periodic alimony].”). We therefore conclude that the wife further fails to establish that an award of periodic alimony to her was required. See Turnbo, 938 So.2d at 430 (“[A] trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case.”).

The wife also contends that the trial court improperly amended the divorce judgment to grant the husband $10,000 as a partial reimbursement for the mortgage payments that he had been making since September 2012. She argues that only her postjudgment motion was timely filed and that the husband’s postjudgment motion was untimely filed 40 days after the entry of the divorce judgment; in support of her argument, she cites Rule 59(e), Ala. R. Civ. P., which provides: “A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.” The trial court, however, denied the husband’s untimely postjudgment motion for lack of jurisdiction pursuant to Rule 59(e). While the wife’s postjudgment motion was still pending, the trial court apparently amended, on its own initiative, the divorce judgment to grant the husband $10,000 as reimbursement for money he had paid on the mortgage for the marital residence during the pendency of the divorce action.

“Although a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment (see Ex parte Oioen, 420 So.2d 80, 81 (Ala.1982)), a trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party’s Rule 59(e) motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not alleged in the motion. See, e.g., Varley v. Tampax, Inc., 855 F.2d 696, 699 (10th Cir.1988); Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986); Arnold v. Sullivan, 131 F.R.D. 129, 133 (N.D.Ind.1990).”

Henderson v. Koveleski, 717 So.2d 803, 806 (Ala.Civ.App.1998). See Parker v. Parker, 10 So.3d 567, 569 (Ala.Civ.App.2008) (noting that the trial court retained jurisdiction to correct an error in its judgment while a party’s postjudgment motion was pending); Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986) (“A judge may enlarge the issues to be considered in acting on a timely motion under Rule 59[, Fed.R.Civ. P.].”); and Varley v. Tampax, Inc., 855 F.2d 696, 699 (10th Cir.1988) (“The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial court] the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.”). See also Ex parte DiGeronimo, 195 So.3d 963, 964 (Ala.Civ.App.2015).

A trial court’s jurisdiction to amend its judgment while a party’s post-judgment motion is pending does not extend to granting new relief that was requested after the judgment had already been entered, Burgess v. Burgess, 99 So.3d 1237 (Ala.Civ.App.2012). In Burgess, we stated:

“In [Henderson ], the trial court amended its order to correct the judgment. That amendment afforded one of the parties relief she had originally requested. In this case, however, in its October 24, 2011, order, the trial court afforded the wife new relief. Before it entered its July 29, 2011, divorce judgment incorporating the agreement of the parties, the trial court received testimony from the husband and the wife that each understood the terms of the proposed settlement agreement and that that agreement resolved all the pending issues and claims between the parties. In her August 30, 2011, motion, the wife specifically stated that she was seeking reimbursement for amounts the husband apparently should have paid before the entry of the divorce judgment. Thus, in that motion, the wife sought to recover amounts that could have been, but were not, addressed in the settlement agreement and divorce judgment. In other words, the reimbursement amount for debts or expenses the wife attempted to recover in her August 30, 2011, motion was not sought as a result of an error in the divorce judgment. Rather, the wife’s claim for relief was caused by an apparent failure to recognize before the entry of the divorce judgment that there existed outstanding debts or expenses on the property at issue that could have been addressed in that original divorce judgment. Accordingly, we cannot say that the fact that the husband’s post-judgment motion was pending allowed the trial court to amend the divorce judgment so as to award the wife monetary relief based upon new claims.”

Id. at 1240-41.

In his counterclaim for a divorce, the husband sought an equitable division of the marital property, an equitable division of the marital debts, and additional relief as may be just and proper. At trial, he raised the issue of the unreimbursed mortgage payments. Unlike in Burgess, the divorce judgment in this case does not incorporate an agreement of the parties that resolved all pending claims between the parties. Therefore, the trial court did not grant relief upon a new claim when it amended of the divorce judgment. The divorce judgment lacked any mention of the mortgage payments despite testimony from both parties that the husband had been making the mortgage payments. As a result, the trial court was allowed to correct that omission in the divorce judgment in conjunction with its ruling on the wife’s timely postjudgment motion; therefore, the wife’s argument regarding the timeliness of the husband’s postjudgment motion fails to present a ground for reversal of the divorce judgment.

For the foregoing reasons, we affirm the divorce judgment entered by the trial court.

ON REHEARING EX MERO MOTU: OPINION OF MAY 6, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . In Walker, the 1-acre parcel that is part of the Sand Mountain properties was described as a "1.5 acre tract.” 144 So.3d at 361.

      . The divorce judgment was entered on January 8, 2015. Rule 59(e), Ala. R. Civ. P., requires that a postjudgment motion be filed within 30 days of the entry of the judgment. The 30th day following the entry of the judgment was Saturday, February 7, 2015; therefore, the wife's motion, filed on Monday, February 9, 2015, was timely. See Rule 6(a), Ala. R. Civ. P.

      . We note that neither party asserts that the assets of the construction business were not subject to division as marital property.

      . The husband also filed an amended post-judgment motion to sell the marital residence under Rule 60(b)(2), Ala. R. Civ. P„ alleging newly discovered evidence of the wife’s inability to refinance the mortgage. However, “ ‘[t]here can be no Rule 60(b)(2) relief for evidence which has come into existence after the trial is over simply because such a procedure would allow all trials perpetual life.' ” Wal-Mart Stores, Inc. v. Pitts, 900 So.2d 1240, 1245 (Ala.Civ.App.2004) (quoting Moody v. State ex rel. Payne, 344 So.2d 160, 163 (Ala. 1977)). Because evidence of the wife’s inability to refinance the mortgage arose after the entry of the judgment, we do not consider the husband’s motion as seeking relief that is cognizable under Rule 60(b)(2).

      . " ‘[S]ince the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when we are called upon to construe the Alabama rules.’” Henderson, 111 So.2d at 806 n. 4 (quoting City of Birmingham v. City of Fairfield, 396 So,2d 692, 696 (Ala. 1981)), We note that Rule 59, Ala. R. Civ, P„ is substantially similar to its federal counterpart.


author: THOMAS, Judge.

text:
    Jeffrey B. HALL v. Daniel J. HALL et al.
    2150266.
    Court of Civil Appeals of Alabama.
    June 24, 2016.
    Rehearing Denied Aug. 5, 2016.

      Carl Dalton NeSmith, Jr., Oneonta, for appellant.

      Thomas E. Drake II of The Drake Law Firm, Cullman, for appellees.
   THOMAS, Judge.

Joe Hall and his wife, Jean Hall, acquired a tract of land in the 1940s or the 1950s. Joe and Jean are the parents of Daniel J. Hall, David Hall, and Jeffrey B. Hall, each of whom were or are married. In 1979 Joe and Jean conveyed all but two acres of the tract, dividing the conveyed portion into three separate parcels—one parcel to each son and his wife. We refer to the parcel conveyed to Daniel and his wife, Patricia, as “parcel A,” to the parcel conveyed to David and his wife, Susan, as “parcel B,” and to the parcel conveyed to Jeffrey and his wife, Glenda, as “parcel C.” In the deeds pertaining to parcel A and parcel B, Joe and Jean had included a reservation of an easement over “the old road bed” for access to their two-acre parcel. The old road bed is Hall Road, which is an unpaved, private road.

In 1996 Jeffrey and David acquired another parcel (“the river parcel”). The only access to river parcel was by Hall Road. In 2000 Jeffrey acquired David’s interest in the river parcel. In 2003, Daniel caused obstructions to be placed across Hall Road on parcel A that prevented Jeffrey’s access to the river parcel.

On March 7, 2011, Jeffrey filed a complaint in the Blount Circuit Court against Daniel and Patricia, asserting that he was entitled to an easement by implication or by necessity across the portion of Hall Road on parcel A that led to the river parcel. Jeffrey also requested injunctive relief. On March 31, 2011, Daniel and Patricia conveyed approximately half of parcel A, dividing that half into three separate parcels—one parcel to each of them three adult children, who are Ashlee Hall Leahey, Laura Hall, and Joshua Hall. We refer to the parcel conveyed to Leahey and her husband as “parcel A-l.” Hall Road runs through parcel A-l but not through any other part of parcel A owned by Daniel and Patricia, Laura, or Joshua.

Daniel and Patricia filed motions to dismiss Jeffrey’s complaint in which they asserted that they did not own any property through which Hall Road ran and that Jeffrey had failed to join certain indispensable parties—specifically, other landowners on or near Hall Road. Jeffrey filed a response in which he argued that Daniel and Patricia were the owners of all of parcel A at the time his complaint was filed and that the alleged “indispensable parties” were unnecessary because each person referenced in one of Daniel and Patricia’s motions to dismiss had consented to his use of the portions of Hall Road that crossed their respective properties.

On July 8, 2011, Jeffrey filed an amended complaint in which he named Leahey as a defendant. On August 16, 2011, Leahey filed a motion to dismiss in which she asserted that the portion of Hall Road on parcel A-l had been destroyed by a tornado. She also filed an answer to Jeffrey’s amended complaint in which she asserted that she could not afford to clear the debris from and repair the damage to the portion of Hall Road on parcel A-l and, furthermore, that, if she decided to clear the road, she would then require access to the portion of Hall Road on parcel C to do so.

On September 20, 2011, Daniel and Patricia filed an answer to the amended complaint, a counterclaim, and a cross-claim in which they asserted that, if the circuit court determined that Jeffrey was entitled to an easement across the portion of Hall Road on parcel A, Daniel and Patricia were also entitled to an easement across the portion of Hall Road on parcel C and across the properties of seven other owners of property traversed by Hall Road. Daniel and Patricia added as cross-claim defendants Ronald Levon Stone, Margaret Collen Bunn, Amy S. Campen, Dean Alan Sticher, Jean, David, and Susan (“the cross-claim defendants”). In March 2013, Laura and Joshua were named as defendants. A trial was held on November 24, 2014.

On August 14, 2015, the circuit court entered a judgment, determining that Hall Road had been used by “all parties” for over 50 years and, without indicating what specific type or types of easements had been created, that Hall Road would “remain a mutual easement for all parties to use to access their respective tracts of land.” The circuit court denied all other relief requested in Jeffrey’s complaint and in Daniel and Patricia’s counterclaim and cross-claim. The record contains an undated copy of a counterclaim against Jeffrey in which Leahey claims that she had a right to an easement by necessity across the portion of Hall Road on parcel C. However, there is no indication in the record that the counterclaim was filed or that service of that pleading was perfected. On September 9, 2015, Jeffrey filed a postjudgment motion, which was denied on October 2, 2015. On November 12, 2015, Jeffrey filed a timely notice of appeal to our supreme court. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975. Jeffrey seeks our review of whether the circuit court erred by granting Daniel, Patricia, Leahey, Laura, and Joshua (“the defendants”) an easement across the portion of Hall Road on parcel C.

“ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Phil-pot v. State, 843 So.2d 122, 125 (Ala. 2002). However, ‘the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005). ‘Questions of law are reviewed de novo.’ Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Butterworth v. Morgan, 22 So.3d 473, 474-75 (Ala.Civ.App.2008).

As explained by Jeffrey in his appellate brief:

“An unpaved road bed runs from County Road 5, in a northwesterly direction, first crossing the property of Ronald Stone. Then the old road crosses the property of Jean, Jeffrey, David, Daniel, and Ashlee (Leahey) Hall, in that order, before reaching Jeffrey Hall’s second parcel: the ‘river property.’ ... All of the property crossed by the old road was once part of the Hall Estate except Mr. Stone’s property.”

Jeffrey testified that he had used Hall Road all of his life until 2003, when the Alabama Power Company (“Alabama Power”) put up a gate and iron stakes on Hall Road on parcel A at Daniel’s request. Daniel testified that he had put up a cable and no-trespassing signs in 2003 because trees and topsoil had been removed from parcel A without his permission. Daniel testified that he had accused Alabama Power of removing the trees and topsoil; however, Alabama Power had denied that it had done so, and, Daniel said, he had accepted its offer to build a gate. Jeffrey testified that, after the gate was installed, he could still access parcel C but could not access the river parcel.

Daniel testified that he and his immediate family had ceased using Hall Road to access parcel A in 1984. At that time, Daniel and Patricia purchased Heavenly Drive, which they used to access parcel A. Leahey, who was born after Daniel and Patricia purchased Heavenly Drive, testified that she had never used Hall Road. She testified that she wanted to build a house on parcel A-l; however, other than by Hall Road, parcel A-l could be accessed only by foot. Leahey testified that she had not accessed parcel A-l since she had acquired it because it had been too dangerous to walk to parcel A-l after a walking trail had been destroyed by a tornado in 2011 and, moreover, because she had been pregnant twice since 2011. Leahey said: “I want an easement because there is already an existing road, whereas I would have to build a road if I couldn’t have an easement.” According to Leahey, it was cost prohibitive and “too much trouble” to build a new road through parcel A, so, she said, she needed an easement across the portion of Hall Road on parcel C. Daniel, who is a civil engineer, testified that it would cost no less than $30,000 to build a new road to parcel A-l due to the topography of the land.

On appeal Jeffrey argues that the circuit court correctly recognized that he had presented clear and convincing evidence demonstrating his need of an easement across the portion of Hall Road on parcel A or parcel A-l; however, he contends, the circuit court incorrectly concluded that “Daniel Hall and his children” had presented clear and convincing evidence demonstrating their need of, or right to, an easement across Hall Road through parcel C. Jeffrey points to the evidence demonstrating that Daniel and Patricia had not used Hall Road since 1984 and that Leahey had never used Hall Road; thus, Jeffrey argues, the defendants failed to demonstrate a right to an easement by prescription, by necessity, or by implication.

Easement by Prescription

Because the circuit court included the finding that Hall Road had been “used by all parties for over 50 years,” it appears likely that the circuit court concluded that an easement by prescription across Hall Road on parcel C had been acquired by the parties.

“To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner. Cotton v. May, [293 Ala. 212, 301 So.2d 168 (1974) ]; Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969); West v. West, 252 Ala. 296, 40 So.2d 873 (1949).”

Bull v. Salsman, 435 So.2d 27, 29 (Ala. 1983). In this case, there was no testimony offered demonstrating that anyone had, under claim of right, made exclusive, continuous, and uninterrupted adverse use of the portion of Hall Road on parcel C. To the contrary, Jeffrey testified that he had not permitted the defendants to use the road on his property and that they had not done so. Leahey, who was 28 years old, confirmed that, although she had wanted to use the portion of Hall Road on parcel C, she had never been allowed to do so. Daniel testified that he and Patricia had not used any portion of Hall Road since 1984. Neither Laura nor Joshua testified. Therefore, the evidence presented does not support the circuit court’s conclusion that “Hall Road had been used by all parties for over 50 years” or that an easement by prescription across the portion of Hall Road on parcel C had been created.

Easement by Necessity

“The rationale for allowing an easement by necessity is that public policy demands that land not be rendered unusable. R. Powell, [Powell on Real Property] ¶410 [(abr. ed.1968)]. Under Alabama law, however, there must be a genuine necessity; mere convenience is not enough. Benedict v. Little, 288 Ala. 638, 264 So.2d 491 (1972); Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492 (1954); Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559 (1930). The burden is on the one seeking to establish the easement to prove the easement is ‘reasonably necessary for the enjoyment’ of the land. Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492 (1954). Easements by necessity almost always involve access roads across the servient tenement connecting the dominant tenement to a public road or highway. See, Kirkland v. Kirkland, 281 Ala. 42, 198 So.2d 771 (1967); Greenwood v. West, 171 Ala. 463, 54 So. 694 (1911); Trump v. McDonnell, 120 Ala. 200, 24 So. 353 (1898). Original unity of ownership of the dominant and servient tenements is always required for an easement by necessity. Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411 (1953).”

Helms v. Tullis, 398 So.2d 253, 255 (Ala. 1981).

Jeffrey is correct that the testimony and documentary evidence presented would not support a determination that the defendants could properly acquire an easement by necessity across the portion of Hall Road on parcel C to access parcel Al. Instead, the evidence presented demonstrated that parcel A-l and parcel C do not have a common grantor; therefore, there is no original unity of ownership of parcel A-l and parcel C. (Daniel and Patricia are the grantors of parcel A-l; Joe and Jean are the grantors of parcel C.) Furthermore, David testified that, although it would be inconvenient and expensive, it was possible to build a road to parcel A-l. Regardless, we note that nothing in the circuit court’s judgment leads us to the conclusion that the circuit court determined that anyone was entitled to an easement by necessity across the portion of Hall Road on parcel C.

Easement by Implication

“An easement by implication ‘requires not only original unity of ownership ... but also that the use be open, visible, continuous, and reasonably necessary to the estate granted.’ Helms [v. Tullís], 398 So.2d [253,] 255 [ (Ala.1981) ](citations omitted). Our supreme court has held that the ‘implication is that the parties implied such an easement because the grantee, having seen the use the grantor made of the property, can reasonably expect a continuance of the former manner of use.’ Id.”

Arp v. Edmonds, 706 So.2d 736, 738 (Ala. Civ.App.1997). Because there is no original unity of ownership of parcel A-l and parcel C, it also appears unlikely that the circuit court concluded that an easement by implication had been created. Furthermore, although parcel A and parcel C have a common grantor and, therefore, original unity of ownership, Daniel testified that neither he nor Patricia had exercised continuous use of Hall Road, and Leahey testified that she had never used Hall Road. Thus, if it did so, the circuit court erred by concluding that the defendants had acquired an easement by implication to the portion of Hall Road on parcel C to access parcel A or parcel A-l.

In conclusion, the judgment of the circuit court is reversed insofar as it granted an easement across the portion of Hall Road on parcel C to the defendants. See supra note 1. The cause is remanded for the circuit court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, J., concurs in the result, without writing.

      . Although the circuit court granted an easement to “all the parties,” Jeffrey does not seek our review of the judgment insofar as it awards to the cross-claim defendants an easement across the portion of Hall Road on parcel C. The notice of appeal names as ap-pellees only: "Daniel J. Hall, Patricia Hall, Ashlee Leahey, Laura Hall, and Joshua Hall,” and Jeffrey's arguments on appeal are focused on the "trial defendants” or "Daniel and his children.” Therefore, Jeffrey has not sought our review of whether the circuit court erred by determining that the cross-claim defendants were entitled to an easement across the portion of Hall Road on parcel C, and we do not address the propriety of the judgment insofar as it awards the cross-claim defendants an easement across the portion of Hall Road on parcel C.
      " 'It is settled law that notice of appeal from a judgment in favor of two or more parties must specifically name each party whose judgment the appellant wishes to overturn.’ Sperau v. Ford Motor Co., 674 So.2d 24, 40 (Ala, 1995), judgment vacated, Ford Motor Co. v. Sperau, 517 U.S. 1217, 116 S.Ct. 1843, 134 L.Ed.2d 945 (1996)(cit-ing Edmondson [v. Blakey, 341 So.2d 481 (Ala. 1976),] and Threadgill [v. Birmingham Bd. of Educ„ 407 So.2d 129 (Ala.1981)], and an opinion of the United States Court of Appeals for the Fifth Circuit).”

        Veteto v. Swanson Serve. Corp., 886 So.2d 756, 763 (Ala.2003).

      . A map included in the record confirms that parcel A-l can be accessed by Hall Road but cannot be accessed by Heavenly Drive. However, that same map appears to depict another road or roads that provide access to parcel A-l (and the parcels conveyed to Laura and Joshua) but not to parcel A.

      . In reaching this conclusion, we need not consider the testimony regarding the cross-claim defendants' alleged use of the portion of Hall Road on parcel C. See supra note 1.

      . We assume that Jeffrey is referring to the improper creation of an easement by necessity over parcel C for access to only parcel A-l because the remainder of parcel A is not landlocked.