author: THOMPSON, Presiding Judge.

text:
    CITIZENS BANK & TRUST v. PIGGLY WIGGLY ALABAMA DISTRIBUTING COMPANY, INC.
    2150749
    Court of Civil Appeals of Alabama.
    January 20, 2017

      Jeffrey McLaughlin and Lea Mosley Hicks of McLaughlin & Edmondson, LLC, Guntersville, for appellant.
    Michael L.' Jackson, Gary W. Lee, and Lauren G. Walker of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for ap-pellee.
   THOMPSON, Presiding Judge.

•. Citizens, Bank. & Trust (“Citizens”) appeals from a judgment of the Bessemer Division of the Jefferson Circuit Court (“the trial court”) determining that a- security interest Citizens held in certain stock was subordinate to the rights Piggly Wiggly Alabama Distributing Company, Inc. (“Piggly Wiggly”), had in that same stock as a lien creditor. Because the amount of the lien far exceeded the'value 'of the stock, the trial court found, Citizens had no rights in the stock.

The record indicates the following facts relevant to this appeal. James David White was the president of DP Families, LLC (“DP Families”), and his brother, Patrick E. White, was its secretary. According to the affidavit of Matthew C, Peters, vice president and finance director of Piggly Wiggly, Piggly Wiggly entered into an agreement in November 2005 with DP Families to' supply DP Families with inventory for resale at its retail grocery stores. The Whites executed guaranty agreements in favor of Piggly Wiggly in November 2005 and again in November 2012.

On April 3, 2014, DP Families obtained a loan- in the amount of $180,000 from Citizens to buy into a grocery cooperative owned by Associated Wholesale Grocers (“AWG”). AWG is a wholesaler of grocery and supermarket products. In his affidavit, Patrick White said that the loan was primarily for the purchase of stock in AWG and to purchase inventory. He said that the stock purchase was a requirement under the membership agreement between AWG and -DP Families (“the membership agreement”), allowing DP Families to become an AWG retail member. The-Whites, in their respective roles with DP Families, signed a promissory note and a security agreement as collateral for the loan. The security agreement specifically defined the collateral as “Certificate Number 9945: 15 Shares of Class A Capital stock issued by [AWG].”

On April 4, 2014, DP Families and AWG executed the membership agreement! One of the terms of the membership agreement provided that AWG would retain possession of the stock purchased by DP Families as security for all DP Families’ obligations under the membership agreement. The provision also stated: “No third party shall' be given any security interest in any [AWG] equity without the prior written consent of [AWG].” In their respective affidavits, the Whites testified that on April 4, 2014, they gave handwritten instructions to Citizens to wire $26,550 to AWG for DP Families’ purchase of the 15 shares of stock represented by Stock Certificate Number 9945 (“the stock certificate”). AWG then provided DP -Families with a receipt (“the receipt”) for the stock certificate. The receipt provided that it was .given in lieu of the stock certificate, that the stock certificate was pledged to secure DP Families’ obligations to AWG, and that it would be held by AWG.

In his affidavit, David White testified that he took the receipt and delivered it to Citizens. He and his brother, Patrick White, both testified that it was their understanding that the AWG stock; was to serve as the collateral for the loan from Citizens to DP Families. Danny Riggs, vice president of Citizens, testified by affidavit that he received the receipt and that he, too, understood that the AWG stock was to serve as collateral for the loan to DP Families.

Meanwhile, DP Families defaulted' on its financial obligations to Piggly Wiggly. By a letter dated February 6, 2014, counsel for Piggly Wiggly gave notice of default and demand for' payment to DP Families and to the Whites as guarantors of DP'Families for the failure to pay the amounts owed to Piggly Wiggly. After failing to receive the payment demanded, Piggly Wiggly filed a civil action against DP Families and the Whites. Ultimately, Piggly Wiggly obtained a default judgment against DP Families in the amount. of $477,569.26. On December 5, 2014, Piggly Wiggly recorded the default judgment.

Piggly Wiggly filed a process of garnishment directed to AWG to collect the judgment against DP Families. AWG, as the garnishee, answered, stating that it was in possession of the following:

“Stock value upon redemption in January 2015: approximately $21,802,73; Patronage: (i) cash portion payable in March ' 2015: approximately $2,309.35, (ii) patronage certificate with estimated maturity in 2020 (or as determined by garnishee’s Board of Directors): approximately $1,539.57.”

Piggly Wiggly then filed a motion for an order bn the garnishment. On December 15, 2014, the trial court entered an- order on that motion, directing AWG to pay into court the amounts AWG had from the stock redemption in January 2015 and the cash otherwise due to DP Families for patronage value.

DP Families aiso defaulted on its financial obligations to Citizens. In his affidavit, Riggs said that- Citizens began collection efforts of its own and that, in February 2015, he contacted AWG to inquire about redeeming the.stock. That was when he learned that Piggly Wiggly had garnished the stock. On April 17, 2015, Citizens moved to intervene in Piggly Wiggly’s action against DP Families, asserting that it had a security interest in .the stock.. The motion to intervene was granted.

On February 10, 2016, after a hearing to determine who had priority, the trial court entered a final judgment in which it found that Citizens had not filed a filing statement on the stock, it had not taken “control” of the stock pursuant to § 7-9A-314, Ala. Code 1975, and it had not taken delivery of the stock certificate pursuant to §§ 7-9A-313 and 7-8-301, Ala. Code 1975. As to the issue of whether Citizens took delivery of the stock certificate, the trial court found that Citizens presented no evidence to support that AWG was holding the stock certificate for Citizens. In fact, the trial court found that “the undisputed facts support the conclusion that AWG held the Stock Certificate for its own benefit as a secured creditor” and concluded that AWG did not acknowledge that it held the stock certificate for Citizens. The trial court pointed out that the date of service of a writ of garnishment is the date on which priority among various claimants is determined. Accordingly, the trial court determined, Citizens did not perfect its security interest as required by § 7-8-301 and, thus, its rights were subordinate to Piggly Wiggly’s rights as a lien creditor. The trial court then denied Citizens any portion of the value of the stock.

Citizens filed a timely motion to alter, amend, or vacate the judgment, which the trial court denied on April 19, 2016. Citizens then appealed to this Court.

On appeal, Citizens contends that the trial court erred in finding that Piggly Wiggly’s security interest in the stock was superior to its own security interest. Specifically, ' Citizens asserts that it had perfected its security interest in the stock because, it says, it was a purchaser of the stock and because, it says, AWG acknowledged that it was bolding the stock for Citizens.

The facts in this case are largely undisputed.

“Where material facts are not in dispute and the ‘appeal focuses on the application of the. law to. the facts, no presumption of correctness] is accorded to the trial'court’s judgment. Therefore, we review de novo the application of the law to the facts.... ’ Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996).”

Continental Cas. Co. v. Plantation Pipe Line Co., 902 So.2d 36, 45 (Ala. 2004).

Citizens argues that it perfected its security interest in the stock certificate on April 4, 2014, when.the .Whites, who are officers of DP Families, delivered the receipt they had received from AWG to Riggs. Upon perfection of its security interest, 'Citizens says, its interest in the stock became superior to 'that of Piggly Wiggly’s lien, which was not effective until the writ of garnishment issued in December 2014.

Because the stock was represented by a certificate, it is known as a “certificated security.” § 7-8-102(a)(4), Ala. Code 1975. “A security interest in a certificated security in registered form is perfected by delivery when delivery of the certificated security occurs under Section 7-8-301 and remains perfected by. delivery until the debtor obtains possession of the security certificate.” § 7-9A-313(e), Ala. Code 1975.

Section 7-8-301 provides, in part:

“(a) Delivery of a certificated security to a purchaser occurs when: • '
“(1) the purchaser acquires possession of the security certificate;
“(2) another person, other than a securities intermediary, either acquires possession of the security certificate on behalf of the purchaser or, having previously acquired possession of the certificate, acknowledges that it holds for the purchaser; or
“(3) a securities intermediary acting on behalf of the purchaser acquires possession of the security certificate, only if the certificate is in registered form and is (i) registered in'thé name of the purchaser, (ii) payable to the order of the purchaser, or (iii) specially indorsed to the purchaser by an effective indorsement and has not been indorsed to the securities intermediary or in blank.”

(Emphasis added.) The Official Comment to § 7-8-301 states: “Paragraph (2) contains the general rule that a purchaser can take delivery through another person, so long as the other person is actually acting on behalf of the purchaser or acknowledges that it is holding on behalf of the purchaser.”

Citizens asserts that delivery was complete, and thus its interest was perfected, when the Whites gave the receipt to Riggs. In support of its assertion, Citizens contends that equitable principles require that, under the circumstances of this case, the receipt is to be treated as the equivalent of the stock certificate. We find the two opinions it cites as authority for that contention—Andrews v. Troy Bank & Trust Co., 529 So.2d 987 (Ala. 1988), and Johnson v. Johnson, 273 Ala. 688, 144 So.2d 12 (1962)—inapposite, however.

In Butler v. MaxiStorage, Inc., 33 So.3d 1221 (Ala. Civ. App. 2009), a case in which delivery of securities was at issue, this court discussed the holdings of Andrews and Johnson.

“In Andrews, John Andress, who owned shares of common stock in Troy Bank and Trust Company (‘the Troy bank’), wished to establish joint ownership in the stock with his wife, Lessie. Andress took the stock certificates to the Troy bank, which added ‘Mr. or Mrs.’ to the original certificates issued to Andress. The Troy bank also changed its stockholders’ register and dividend records to reflect that the stock was owned by Mr. or Mrs. Andress. When John Andress died, Lessie indorsed and surrendered the certificates to, the Troy bank and had them reissued in her name. The Troy bank, believing that the certificates were ‘joint survivorship’ certificates, did so. Andrews, 529 So.2d at 988-89.
“Andrews was the executor of John Andress’s estate. He sued Lessie An-dress and the Troy bank seeking a declaration of ownership of the stock. Our supreme court determined that the actions taken by John Andréss in having Lessie Andress added as a co-owner of the stocks constituted an equitable assignment of an interest in the stock to Lessie ‘even though' he never actually indorsed the certificates and never physically delivered the certificates,’ Id. at 992 (footnote omitted). The supreme court specifically found that ‘[t]he evidence clearly supports the trial court’s finding that it was the intent of Mr. Andress to make Mrs. Andress a' co-owner of the stock in question.’ Id.
“The supreme court also held that there had been a constructive delivery of the stock to Lessie Andress, quoting favorably an Idaho Supreme Court case holding that,
“ ‘ “[w]hile the requirement of physical delivery contained in [Uniform Commercial Code] Article 8 may serve a valid evidentiary purpose in the case of a sole owner, where,- as here, there is more than one listed owner, the requirement that the new owners personally receive physical possession of the stock certificates to' constitute a valid transfer is not applicable because both joint tenants cannot enjoy possession simultaneously.... This result is especially appealing because possession by. one co-owner is deemed possession by all.” ’
“Andrews, 529 So.2d at 991, quoting Ogilvie v. Idaho Bank & Trust Co., 99 Idaho 361, 365, 582 P.2d 215, 219 (1978).
“Johnson, the other case the trial court in this case relied upon in determining that delivery of the stock certificates to Brazelton or BP was not required, involved an action in equity by an alleged joint owner of corporate stock to compel the sale of the stock and the division of the proceeds among the alleged joint owners, all of whom were siblings attempting to determine the ownership interest of stock held by their deceased parents and their uncle. At issue was whether there had been a valid transfer of stock pursuant to the Uniform Stock Transfer Act (‘the USTA’), which, at-the time Johnson was decided, was codified at-Title 10, § 48, Ala. Code 1940 (Recomp. 1958).
“The Johnson court held that the transfer of corporate stock, in the strict or technical sense, was not involved in that.case, and that the USTA was without controlling influence. The court concluded that, as a matter of law, the rule of equitable assignment of corporate stock was not abrogated by the adoption of the USTA. Accordingly, Alabama law continues to recognize the equitable principle that, as between the parties, there may be a transfer of ownership of stock in a corporation when the owner presently intends to make such a transfer even though there is some technical defect in the mode of transfer. See Johnson, supra; and Nashville Trust Co. v. Cleage, 246 Ala. 513, 21 So.2d 441 (1945)."

Butler, 33 So.3d at 1225-26 (footnote omitted).

After considering the opinions in Andrews and Johnson, this court wrote the following:

“The holdings in Andrews and Johnson lead us to conclude that the transferee still must obtain physical possession of securities such as shares of stock for the transfer to be valid, with two exceptions: (1) when the transferor attempts to transfer only partial ownership so that he or she becomes a co-owner with his or her transferee, and (2) when an identified security to be delivered is still in the possession of a third person when that third person acknowledges that he or she holds the security for the purchaser.”

Id. at 1227-28.

The evidence is undisputed that Citizens did not have physical possession of the stock certificate. It is also undisputed that Citizens, was not a co-owner .of the stock. The Whites, DP Families, and Citizens all recognized that the value of the stock was collateral for the loan from Citizens to DP Families.

Citizens contends that, because the receipt reflects that it was given in lieu of the stock certificate, AWG “acknowledged” that it was holding the.stock for DP Families. There is absolutely no evidence, however, that AWG gave any type of acknowledgment that it was holding the stock for Citizens. In fact, the evidence tends to demonstrate that AWG was not holding the stock for Citizens or any other third party. As mentioned, the membership agreement between AWG and DP Families provided that AWG would retain possession of the stock purchased by DP Families as security for all obligations DP Families owed to it and stated: “No third party shall be given any security interest in any [AWG] equity without the prior written consent of [AWG].” There is no evidence that AWG gave consent, either written or verbal, to allow Citizens to have a security interest in the stock.

Furthermore, the receipt that AWG provided to DP Families provided that it was given in lieu of the stock certificate, that the stock certificate was pledged to secure DP Families’ obligations to AWG, and that the stock certificate would be held' by AWG. Based on the record before us, we conclude that the record supports the trial court’s determination that AWG was not holding the stock for Citizens. Thus, neither Andrews nor Johnson is applicable in this case, and Citizens could not properly claim that it had received delivery of the stock.

We have found no legal support for Citizens’ contention that delivery of the receipt to Citizens was the equivalent of delivery of the stock certificate itself. We conclude that the trial court’s finding that Citizens did not perfect its security interest pursuant to §. 7-8-301(a) was correct and that Piggly Wiggly’s security interest in the stock was therefore superior to - Citizens’ interest..

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      . Citizens has made no argument before the trial court or on appeal that it perfected its security interest in the stock by any other means, including by filing a financing statement that included the stock, § 7-9A-310, Ala. Code 1975, or by taking control of the stock, § 7-9A-314, Ala. Code 1975. Any argument that Citizens could have made on appeal asserting' other methods of perfection of a security interest in the stock is deemed waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.”); see also Brady v. State Pilotage Comm'n, 208 So.3d 1136, 1143, (Ala. Civ. App. 2015).

      . Piggly Wiggly concedes that, because DP Families offered Citizens the stock as collateral for the loan, Citizens was a "purchaser” for purposes of determining whether the requirements for delivery were met. See § 7-1-201(29) and (30), Ala. Code 1975.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Parichat SUTCHALEO v. Somboon SUTCHALEO
    2150785
    Court of Civil Appeals of Alabama.
    January 20, 2017

      Adrienne LaBudde Mathison, Mobile, for appellant.
    Shaun L. Quinlan, Anniston, for appel-lee.
   MOORE, Judge.

. Parichat Sutchaleo (“the wife”) appeals from a judgment of the Calhoun Circuit Court (“the trial court”) divorcing her from Somboon Sutchaleo (“the husband”). We affirm the judgment in part and reverse it in part.

Procedural Background

In the judgment at issue, the trial court awarded the parties joint legal custody of the parties’ minor child and stated, with regard to the “placement” of the child:

“The [wife] shall have the placement of the ... child ... during the week beginning each Sunday at 6:00 p.m. and continuing through Eriday at 6:00 p.m.
“The [husband] shall have placement of the child ... each weekend beginning every Friday at 6:00 p.m. and continuing through Sunday at 6:00 p.m.”

The trial court also ordered the husband to pay to the wife $500 per month as child support. The judgment directed that the wife shall have the right to claim the child as a tax dependent for income-tax purposes in even-numbered tax years and that the husband shall have the right to claim the child as a tax dependent for income-tax purposes in odd-numbered tax years.

The trial court awarded the husband the full right, title, ownership, interest, possession, and control in and to the parties’ restaurant. The. husband also received a 1998 Mercedes automobile and a 1998 Ford F-150 truck. The wife received a 2008 Mazda automobile. The judgment also awarded various other personal property and assets to each party. In addition, the trial court ordered the husband to pay to the wife $22,000 in monthly increments of $1,000. The judgment reserved the issue of alimony pending the payment of the $22,000 to the wife.

The wife filed a postjudgment motion on April 27, 2Q16; the trial court entered an order denying that motion on May 18, 2016. The wife timely filed a notice of appeal to this- court on June 18, 2016.

Discussion

I. Visitation

The wife first argues on appeal that the trial court erred in fashioning the husband’s visitation schedule with the child. She asserts that, during the trial, she testified that she wanted sole physical custody of the child and that the 'husband be awarded standard visitation. Although the wife testified at the trial that she wanted sole physical custody of the child, the wife did not state that she wanted the husband to have standard visitation. On the contrary, the parties agreed that the husband would have “consistent visitation” with the child, which included visitation every weekend- while the divorce action was pending. At the close of the trial, the following exchange between the trial court and fhe wife occurred:

“The Court: Do you agree with [the] husband on the visitation? Does he have the child every weekend?
“[The wife].: That’s fine. The regular visitation that I have for him right now is fine.”

The trial court confirmed at the May 18, 2016, hearing on the wife’s postjudgment motion that the wife had testified that she was satisfied with the existing visitation schedule.

“The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. ‘A party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled the trial court.” ’ Atkins v. Lee, 603 So.2d 937, 945 (Ala. 1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). ‘That doctrine [of invited error] provides that a party may- not complain of error into which he has led the court.’ Ex parte King, 643 So.2d 1364, 1366 (Ala. 1993). ‘A party cannot win a reversal on an error that party has invited the trial court to commit.’ Neal v. Neal, 856 So.2d 766, 784 (Ala. 2002), See also Liberty Nat’l Life Ins. Co. v. Beasley, 466 So.2d 935, 937 (Ala. 1985); State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974).”

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala. 2003). In the present case, because the wife specifically, represented to the trial court that the existing visitation schedule, which the parties had agreed to pendente lite, was “fine,” this court will not reverse - the trial court’s judgment to the extent it continúes that visitation schedule.

The wife asserts on appeal that her testimony indicating that she approved of continuing the pendente lite visitation schedule was the result of a “misunderstanding and the language barrier.” The wife failed, however, to assert before the trial court at any time that she had misunderstood the trial court’s questioning or that a language barrier had led her to indicate that the visitation schedule - was satisfactory. “[An appellate cjourt cannot consider arguments raised for the first time on appeal; rather, [an appellate court’s] review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992). Thus, we decline to consider the wife’s assertion on appeal that her testimony should have been discounted based on her misunderstanding.

The wife cites DuBois v. DuBois, 714 So.2d 308 (Ala. Civ. App. 1998), for the proposition that a trial court exceeds its discretion by awarding visitation every weekend to the noncustodial parent' because such an award prevents the custodial parent from spending any quality time With the child. However, in-DuBois the mother did not represent to the trial court that the every-weekend visitation schedule would be appropriate, as occurred in the present case. Accordingly, DuBois is not controlling and the trial court’s judgment with regard to its award of visitation is due to be affirmed.

II. Child Support

The wife next argues on appeal that the trial court erred in fashioning its child-support award. The husband testified that he' operates a restaurant formed by the parties as a closely held corporation. The husband testified, and an exhibit showed, that he had deposited $42,621 into his personal bank account betvveen January and the end of November 2015. The husband also' completed a CS-41 child-support income affidavit form, see Rule 32, Ala. R. Jud. Admin., indicating that he had earned a gross income of $3,850 per month in 2015. The trial court used the $3,850 figure when computing the husband’s basic monthly child-support obligation. The trial court determined that the husband owed $584.25 per month in child support, but it ordered the husband to pay only $500 per month “due to the child being in the [husband’s] care every weekend.”

The wife asserts that the trial- court failed to follow the child-support guidelines of Rule 32 in determining the gross income of the husband. Although the trial court expressed that it was deviating from the child-support guidelines, the trial court has a mandatory duty to first correctly determine the basic monthly child-support obligation of the husband in order to ascertain the extent of its deviation. See T.C.S. v. D.O., 156 So.3d 418, 421 (Ala. Civ. App. 2014). Thus, we address the wife’s argument that the trial court did not properly calculate the gross income of the husband.

Rule 32(B)(3), Ala. R. Jud. Admin., provides, in pertinent part:

“(a) For income from self-employment, rent, royalties, proprietorship of business, or joint ownership of partnership or closely held, corporation, ‘gross income’ means gross receipts minus ordinary and necessary expenses required to produce this income ,...”

Rule 32(B)(4), Ala. R. Jud. Admin., provides that “[ejxpense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal-living expenses.” The wife argues that the trial court failed to include significant payments made by the business that reduced the husband’s personal-living expenses. Specifically, the wife argues that the husband had used the business, checking account to pay for his cellular-telephone service, his monthly rent, his monthly bankruptcy-plan payments, his gambling debts, and gifts for his girlfriend and that those amounts should have been considered in the husband’s gross income.

The husband testified that he had paid his rent and his Chapter 13 bankruptcy payments out of his personal account, although, he said, he had not done that “in the beginning.” The husband also testified that he paid for his cellular-telephone service from the business account, but, he stated, he uses that telephone for business as well as personal reasons. The husband testified that payments from the business account to Coach, a retailer, on July 24, July 27, and July 30, 2015, that totaled $400.46 had been for gifts for his then girlfriend. The husband also testified that, in addition to the $42,621 he had deposited from the business account into his personal bank account, he had occasionally paid additional personal expenses, such as gambling expenses, from the business bank account. The husband did not recall the exact amount of those payments, but he testified that an approximate total of $7,350 for those payments was “[p]robably right;” When asked about an' additional $9,112 cash withdrawal from the business account, the husband stated: “I- don’t know. Maybe I did play some poker that night. I don’t know.”

The' trial court reasonably could have concluded that the business was not paying the husband’s rent and bankruptcy payments and that the cellular-telephone bill was a business expense rather than a personal-living expense. The trial court could not, however, have considered the remaining expenditures, which totaled $16,862.46, as anything other than income to the husband because those significant payments from the business had reduced the husband’s personal-living expenses. Notably, the husband did not prove that any of those payments had been used for business purposes so as to be excluded from his gross income. See Rule 32(B)(3). Therefore, we reverse the trial court’s judgment with regard to the child-support award, and we remand the cause to the trial court for that court to recalculate the husband’s monthly child-support obligation. In recalculating, the basic monthly child-support obligation of the husband, we instruct the trial court to include in the husband’s gross income the $16,862.46 in additional expenditures paid by the business, which would yield a gross income of $59,483.46 for the first 11 months of 2015, or a monthly gross income of $5,408, not $3,850 as the trial court found. Furthermore, we instruct the trial court to reconsider its award of $500 in child support in light of this opinion. If the trial court decides to deviate from the basic monthly child-support obligation as established by application of the child-support guidelines, the trial court shall comply with Rule 32(A), Ala. R. Jud. Admin., by entering a written finding on the record indicating why application of the child-support guidelines would be unjust or inappropriate.

III. Dependency Tax Exemption

The wife next argues that the trial court erred in allowing the husband, as the noncustodial parent, to claim the child as a dependent for income-tax purposes in alternating years without explaining its deviation from the child-support guidelines. In light of our reversal of the child-support award, the trial court may reconsider its decision on this point on remand. Therefore, we pretermit any discussion of this aspect of the wife’s appeal.

IV. Property Division

The wife last argues on appeal that the trial court’s division of property is inequitable.

“When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala. Civ. App. 2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala. Civ. App. 1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala. Civ. App. 2001). ‘[W]e note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.’ Yohey v. Yohey, 890 So.2d 160, 164 (Ala. Civ. App. 2004).”

Stone v. Stone, 26 So.3d 1232, 1236 (Ala. Civ. App. 2009). “[T]he trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility .... ” Baggett v. Baggett, 855 So.2d 556, 559 (Ala. Civ. App. 2003).

The trial court awarded the husband the restaurant business, which the parties stipulated was worth $25,000, but ordered the husband to pay the wife $22,000 as “her equity in and to said restaurant.” The trial court also awarded each party his or her personal vehicles. The wife has not directed this court to any evidence as to the value of the vehicles. The wife also has not informed this court of the value of any of the other assets each party was awarded in the judgment. Based on the lack of that critical financial information, this court cannot conclude that the wife received an unfair portion of the marital estate, see Cameron v. Cameron, [Ms. 2150546, Nov. 10, 2016] — So. 3d - (Ala. Civ. App. 2016), even if we could conclude that the husband’s conduct led to the breakdown of the marriage, as the wife insists.

The wife argues that the trial court should have awarded her the restaurant. The evidence shows that the wife operated the restaurant with the husband after it first opened in 2012. In November 2013, the wife terminated the employment of the husband because of his misconduct regarding the management of the restaurant. Afterward, the wife managed the restaurant alone, resulting in a financial loss. In 2014, the wife became physically and emotionally exhausted from operating the restaurant and raising the parties’ child, who had been born on April 16, 2012. At that time, the husband offered to take over management of the restaurant by himself, and the wife agreed. The wife admitted that the husband had saved the restaurant and that he had been better at operating the business. The evidence also shows that the husband earned more from operating the restaurant than he had earned previously while working1 as a manager of a chain restaurant. Based on that evidence, the trial court could have been convinced that- it would be-more equitable for the husband to continue to operate the restaurant and to award the wife her equity in the restaurant, the value .of which the wife does not dispute. .The wife has failed to show that the decision to award the husband the restaurant was plainly and palpably wrong.. Based on the foregoing, we affirm that part of the tidal .court’s judgment dividing the parties’ marital property. •

, Conclusion

Based on the foregoing, we reverse the trial court’s judgment with regard to the child-support and tax-exemption awards and we remand the cause for the entry of a judgment consistent-with this opinion. We affirm the trial court’s judgment in all other respects,-

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

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ„ concur.

      . The wife complains that the trial court did not use the terminology established in Ala. Code 1975, § 30-3-151, to describe its custody/visitation award. That error is harmless, ,.however, because the judgment can be interpreted only as awarding the wife sole physical custody of the child subject to the husband’s specified rights of visitation. See Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).


author: PER CURIAM. DONALDSON, Judge,

text:
    Margaret Ann HARRISON v. Boyde Jerome HARRISON
    2150883
    Court of Civil Appeals of Alabama.
    January 20, 2017

      Paige P. Yarbrough, Judith S. Critten-den, Kelli Hogue Mauro, and Fred Wood, Birmingham, for appellant.
    Jonathan B. Lowe and Matthew LeDuke of Lowe Mobley Lowe & LeDuke, Haley-ville, for appellee.
   PER CURIAM.

Margaret Ann Harrison (“the wife”) appeals from a June 25, 2015, order of the Winston Circuit Court (“the trial court”) declaring a prenuptial agreement (“the agreement”) entered into between the wife and Boyde Jerome Harrison (“the husband”) to be enforceable in a pending divorce proceeding between the parties. We affirm the judgment of the trial court.

Facts and Procedural History

The parties were married December 11, 1985. They signed the agreement on the morning of their wedding. In August 2011, the wife filed a complaint for a divorce in the trial court. The husband filed his answer, asserting various affirmative defenses, and a counterclaim for a divorce. In his answer and counterclaim, the husband asserted that the agreement controlled .the division of assets and debts in the divorce proceeding. The wife filed a reply to the husband’s counterclaim in which she asserted that the agreement had been made void on May 22, 2010. The husband filed a motion to bifurcate the trial on the issue of the validity of the agreement from the divorce trial, which was granted. ■

On April 11, 2014, the trial court held a trial on the issue of the validity of the agreement. During the trial, the husband filed a “motion for a judgmént as a matter of law” pursuant to “Rule 50(a).” We noté that Rule 50(a), Ala. R. Civ. P., is applicable only in cases involving a jury trial and, therefore, would not apply in this case. We presume that the husband intended to file a motion for a judgment on partial findings, pursuant to Rule 52(c), Ala.. R. Civ. P., but it does not appear that the trial court ruled on that motion.

The testimony and other evidence indicated the following. According to the wife, in 2010 she found inappropriate text messages between the husband and another woman. The wife found the husband and the. other woman at the husband’s office after working hours one night. The wife testified that the husband asked her not to leave him. The wife, unbeknownst to the husband at that time, sought the advice of an attorney regarding how to void the agreement. The wife testified that she then prepared a list of items that she believed were necessary for the, parties to .stay married (“the list”). The last item ,on\the list read, in pertinent part:

“I am willing to do this and put things behind us if you will show me that you are committed to the future of our marriage by doing away with the [agreement]; This will be a sign to me that you mean what you say and that you are committed to making our marriage .work. I also want my name on everything with yours, like other married couples .... ”

The wife testified that she presented the list to the husband while both parties were at home, that the husband wrote “I agree to this” on the list, and that they both signed and dated the list after they had discussed each item. The-wife testified that the husband then retrieved the agreement from a safe and that the husband drew an “X” across the front of the, agreement. The wife testified that she wrote “voided 5/22/10” on the agreement and that both she and the husband wrote their initials on the front page of the agreement. On the signature page of the agreement, the wife wrote: “This agreement is voided as of 5/22/10 per Jerry Harrison, M.D. and Margaret Harrison. This copy and all other copies voided.” The wife testified that she signed her name to that portion of the agreement and that the husband placed his initials where she had signed.

In contrast, the' husband testified that the wife had presented the list to him while he was busy at work. The husband testified that, at the time, the parties were preparing to go on an extended vacation to Italy and he was attempting to complete his review of medical charts of patients of his medical practice and of patients of núrsing homes for which he provided services. The husband also testified that the parties had attended the funeral of a- close friend that day. The husband testified that it was the wife’s (and his) normal practice to prepare lists to discuss issues, -and the husband testified that he signed the list so that the wife would leave and he could finish his work. The husband testified that he had no memory of signing or initialing the agreement at that time. The husband testified that, had he known that the wife had consulted an attorney, that his marriage was in jeopardy, or that the wife was attempting to modify or void the agreement, he would have consulted an attorney as well. The husband denied that he agreed to void or modify the agreement. The parties continued to live together until August 2011, which is when the wife asserts that she discovered that the husband was having an affair with another woman. The wife, without notifying the husband of her intentions, filed a complaint for a divorce in the trial court. The wife testified that she and the husband then met and discussed the possibility of reconciliation. Each party brought a list of talking points to that meeting. One item on the wife’s list read: “Pre-nup before lawyer and notarized (null and void).” Regarding that statement, the wife testified: “It’s not for it to be done. It had already been done.... [The husband] requested it be done before a lawyer and notarized. He had requested that of me.” The husband testified that, at that meeting, the wife told him that she wanted to “take the prenuptial, get lawyers, rescind it, and have it notarized.” The husband testified that he first learned that the wife was claiming that the agreement had purportedly been voided in 2010 after the wife had filed a complaint for a divorce in 2011.

Dr. Richard Roper testified as an expert in forensic document examination on behalf of the wife. Dr. Roper testified that the wife provided him documents that were identified as containing “known signatures and initials” of the husband. Dr. Roper testified that he performed a comparison study between the handwriting on the agreement and the “known” sources of the husband’s handwriting. Dr. Roper testified that the “known” samples that were provided to him all had variations. Dr. Roper’s opinion was that the husband’s handwritten initials on the first page and on the signature page .of the agreement were “very probably written by the writer of the known signatures or initials,” although he agreed that there were a range of opinions that a document examiner could give in comparing handwriting samples. On cross-examination, Dr. Roper testified that, if a person “made a study and worked toward that end, they could do a pretty good rendition [of another person’s handwriting].’’ Dr. Roper also testified that he could not completely rule out that the handwritten initials of the husband were written by someone other than .the husband. Dr. Roper further admitted that the handwritten initials of the husband on the front of the agreement appeared different from the handwritten initials of the husband on the signature page of the agreement.

■ On June 25, 2015, the trial court entered an order finding the agreement to be valid and enforceable in the divorce proceeding. On July 23, 2015, the wife filed a motion to alter, amend, or vacate the trial court’s order. On October 5, 2015, the trial court entered an order denying the wife’s motion. On November 4, 2015, the wife filed her first notice of appeal to this court.

On June 10, 2016, this court issued an opinion holding that the wife’s appeal was from a nonfinal judgment and remanding the cause to the trial court to determine if certification of the June 25, 2015, order pursuant to Rule 54(b), Ala. R. Civ. P., would be appropriate. Harrison v. Harrison, 213 So.3d 584 (Ala. Civ. App. 2016). We ordered that unless such a certification was made within 14 days, the appeal would be dismissed. On June 10, 2016, the wife filed a motion requesting that the trial court enter an order, pursuant to Rule 54(b), certifying its June 25, 2015, order as final. The husband filed a response opposing Rule 54(b) certification. On June 28, 2016, .having received no. certification order, this court dismissed the appeal. On July 5, 2016, the. trial court entered an order certifying the June 25, 2015, order as final pursuant to Rule 54(b). The wife timely filed a notice of appeal to this court on July 26, 2016.

Discussion

The facts presented to the trial court regarding the issue whether the agreement had. been voided were disputed. Because the trial court entered its order following a trial at .which testimony was received, the ore tenus standard of review applies to the resolution of any disputed factual issues. “When evidence is presented ore tenus in a divorce case, the judgment of the trial court premised on findings of fact that were based on that evidence is presumed correct and will not be set .aside on appeal absent plain .and palpable error.” Garrett v. Garrett, 637 So.2d 1376, 1378 (Ala. Civ. App. 1994) (citing Bailey v. Bailey, 594 So.2d 166 (Ala. Civ. App. 1992)).

The trial court’s detailed order essentially found that the wife did not prove that the parties had agreed in 2010 to void the agreement and that the parties had failed to enter into a valid postnuptial agreement in 2010 that would have voided the agreement. The order stated, in pertinent part, as follows:

“The parties married in 1985, and signed an antenuptial agreement shortly before the marriage. -Throughout the marriage, the parties experienced marital difficulties. In May 2010, the parties were again having difficulties. [The wife] claims that [the] husband was involved in an extramarital affair with another woman. The [husband] denies the claim, but this point is irrelevant because the only issue before this Court, at this time, is whether the antenuptial agreement signed by the parties in 1985 was canceled, voided, or revoked by the parties; There 'is no contention that the 1985 prenuptial agreement was not valid when created. However, [the wife] claims that it was voided on May 22, 2010.
“In May 2010, the parties were preparing to travel to Italy for a two week vacation. During this period [the husband] spent more time at work than he normally did hi order to be certain all his paperwork was completed such that he was able to be away from his medical practice for two weeks. On May 22,2010, after attending a funeral for a close friend, [the husband] went to his office. Unbeknownst to [the husband], [the wife] had compiled a list of concerns that ... she wanted addressed in' order for the parties to remain married. Item number seven on. [the wife’s] list was that the parties must void the then-existing antenuptial ■ agreement. When [the husband] returned home from his office, [the wife] approached [the husband] with the list. This was a common practice used by both parties to address concerns ’ and issues throughout their marriage. Thé [wife] produced a copy of said list, at the bottom of the [list], below the handwritten words T agrée to this,’ is what the [wife] purports to be the [husband’s] signature. In addition, the [wife] produced a copy of the 1985 antenuptial agreement which has been ‘crossed through, marked with the words ‘Voided '5/22/2010’ and the parties’ initials. On the signature page of the ante-nuptial agreement, underneath the notary, is written, ‘This agreement is voided as of 5/22/2010 per Jerry' Harrison, M.D., and Margaret Harrison. This copy and all other copies voided,’ under which the parties’ initials appear again, along with the date.
“[The wife] testified that, prior to presenting her list to [the husband], she had met with her lawyer but did' not disclose this fact to [the husband]. [The husband] testified he did not believe that the marriage was in jeopardy, and further testified that he has no memory of voiding the antenuptial agreement, but may have in fact signed [the wife’s] list in an effort to pacify her before they left on then- two week vacation to Italy. [The husband] testified that he never believed that the antenuptial agreement had been nullified. It wasn’t until after August 2011, when [the wife] filed for divorce, that [the husband] first learned that [the wife] claimed the antenuptial agreement had been voided.
“I. THE . 1985 ANTENUPTIAL AGREEMENT WAS NEVER VOIDED BY THE PARTIES
“The handwriting on the documents presented by the [wife] was examined by expert witness Dr. Richard A. Roper though a comparison study, • using ' ‘known sources’ of [the husband’s] writing. It is Dr. Roper’s qualified opinion that the questioned signatures were very probably written by the writer -of the known signatures or initials- on the purported ‘voided antenuptial agreement.’ [The wife] provided Dr. Roper -with the ‘known handwriting samples.’ While, this fact does not make Dr, Roper’s testimony inadmissible, the fact that [the wife] provided the samples to Dr. Roper coupled with the .fact that Dr. Roper never saw [the husband] , actually write the ‘known samples’ lessens the evidentiary ‘weight' of Dr. Roper’s testi-:mony in the view of this Court. .This Court is not fully convinced that .the known handwriting samples provided by [the wife] to Dr. Roper are in fact [the husband’s] own handwriting.
“[The wife] testified that in September 2011, after her complaint for divorce was'filed she and [the husband] met for dinner where she presented [the husband] with another list which .contained the item ‘Pre-nup before lawyer and notarized, (null .and void).’ Even after filing for divorce and asserting that the ante-nuptial agreement had been voided, [the wife] still had in her possession a list asking that the antenuptial [agreement] be voided before a lawyer and subscribed by a notary. The Court finds that if the parties had manifested an intent to void the antenuptial agreement on May 22, 2010, the discussion of the antenuptial agreement and the suggestion of a lawyer and a notary would have been unnecessary, and its very‘existence supports [the husband’s] position that the antenuptial [agreement] had not been voided.
“II. THE PARTIES FAILED TO CREATE Af] POSTNUPT[I]AL AGREEMENT WHICH VOIDED OR MODIFIED THE 1985 ANTENUPTIAL AGREEMENT.
“Antenuptial agreements are valid in the State of Alabama. Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App. 1980). However, in order for these agreements to be valid, the agreement must be shown to be ‘just and reasonable.’ Id. Barnhill lays out the standard for determining the validity of an antenuptial agreement:
“‘An antenuptial agreement will be held valid as just and reasonable if the [party seeking to enforce the agreement] is able to show that certain conditions have been met. [The party seeking to enforce] has the burden to show that the - consideration was adequate and that the entire transaction was fair,-just and equitable from the [charged party’s] point of view or that the agreement was freely and. voluntarily entered into by the [charged party] with competent independent' advice and full knowledge of [that party’s] interest in the estate and its approximate value.’.
“This same two-prong standard is used in determining the validity of post-nuptial agreements. Tibbs v. Anderson, 580 So.2d 1337 (Ala. 1991).
“This Court finds that the May ,2010 document fails prong one of the Barnhill test because the evidence is insufficient to support the contention that adequate consideration existed in the creation of the; purported postnuptial agreement. [The wife]'argues that the act of staying married to [the husband] constituted consideration sufficient to sustain the transaction. Howeyer, [the husband] has testified that he was unaware that the marriage was in jeopardy.
“This Court finds that the May 2010 document fails prong two of the Barnhill test because the evidence is insufficient to support the contention that consideration was adequate and that the entire transaction in the present case was fair, just and equitable from the husband’s point of view.
“In Mayer v. Mayer, 628 So.2d 744 (Ala. Civ. App. 1993), the parties involved entered into a postnuptial agreement after twelve years of a stressful, distrustful, and unhappy marriage.' Furthermore, the agreement was entered into after an intense argument between the parties, and. the husband testified that he had signed the document in an attempt at reconciliation-. The court in that case determined that, due to the circumstances surrounding the creation of the agreement, insufficient evidence existed to prove that the agreement was fair and just from the husband’s^ point of view.
“Similarly, the facts surrounding the present case do not provide sufficient evidence that the agreement was fair and just from [the husband’s] point of view. The time period during which the agreement was created was fraught with the wife’s allegations of an extra-marital affair, the death of a close friend and funeral on the day the antenuptial [agreement] was allegedly voided, plus [the husband was] spending longer hours than normal at work preparing to leave the country on a two week vacation with [the] wife. Like the husband in Mayer, [the husband here] has testified that he may have signed what [the] wife asked him to sign without the opportunity to fully understand what she was asking of him. Due to the similarities [between] Mayer and the case at hand, this Court is convinced that the agreement was not ‘fair, just and equitable’ from [the husband’s] point of view, and thus also fails the second prong of the Barnhill standard. The purported post-nuptial agreement fails the Barnhill standard as a whole, and the Court finds the agreement to be invalid.
“It is the finding of this Court that the antenuptial agreement entered into by the parties in this case prior to their marriage in 1985 is valid. Any attempts to void the agreement failed and the 1985 prenuptial agreement remains i[n] full force and effect.”

Regarding the finding that the parties did not agree in 2010 to void the agreement, the evidence was in conflict. The wife argues that the trial court’s finding is plainly and palpably wrong. The wife argues that her testimony, in conjunction with the testimony of the handwriting expert, was credible and “should have been sufficient for the court to determine that the parties had intentionally and successfully voided the[ ] agreement.” Credibility determinations, however, are for the trial court. See Lee v. Jackson Cty. Dep’t of Pensions & Sec., 470 So.2d 1294, 1296 (Ala. Civ. App. 1985) (“One primary function of a trial court is to determine the credibility and the weight of any and all of the evidence in its effort to attempt to the best of its ability to' ascertain the truth of the matter in a non-jury trial.”).

The evidence surrounding the alleged voiding of the agreement was disputed. The wife testified that the husband voluntarily initialed the agreement in 2010 to indicate his intent to void the agreement. In contrast, the husband testified that he did not remember signing or initialing the agreement in 2010 and that he would have consulted with an attorney, as the wife had done, before agreeing to void the agreement. In weighing the conflicting evidence, the trial court found:

“Even after filing for divorce and asserting that the antenuptial agreement had been voided, [the wife] still had in her possession a list asking that the ante-nuptial [agreement] be voided before a lawyer and subscribed by a notary. The Court finds that if the parties had manifested an intent to void the antenuptial agreement on May 22, 2010, the discussion of the antenuptial agreement and the suggestion of a lawyer and a notary would have been unnecessary, and its very existence supports [the husband’s] position that the antenuptial [agreement] had not been voided.”

With regard to the handwriting expert’s testimony, the trial court specifically found:

“[T]he fact that [the wife] provided the samples to Dr. Roper coupled with the fact that Dr. Roper never saw [the husband] actually write the ‘known samples’ lessens the evidentiary “weight’ of Dr. Roper’s testimony in the view of this Court. This Court is not fully convinced that the known handwriting samples provided by [the wife] to Dr. Roper are in fact [the husband’s] own handwriting.”

The evidence further indicated that the “known samples” that Dr. Roper used to compare to the purported handwritten initials of the husband on the agreement were actually photocopies of signatures allegedly written by the husband. The trial court acted within its discretion in determining the credibility of the witnesses and the weight of the evidence presented to it. Lee, 470 So.2d at 1296.

The trial court did not find'sufficient credible evidence to establish a mutual intent of the parties to void the agreement. “[W]hen evidence of the contracting parties’ intent is in dispute, a question- of fact arises for the factfinder, and its findings are presumed to be correct unless plainly erroneous or manifestly unjust.” ISS Int’l Serv. Sys., Inc. v. Alabama Motor Exp., Inc., 686 So.2d 1184, 1187 (Ala. Civ. App. 1996) (citing Fouts v. Beall, 518 So.2d 1236 (Ala. 1987)). The trial court’s findings are not plainly or palpably wrong and are presumed to be correct. See Ex parte Foley, 864 So.2d 1094, 1099 (Ala. 2003)(“[A]n appellate court may not substitute its judgment for that of the trial court.... To do so' would be to reweigh the evidence, which Alabama law does not allow.”). “It is our duty to affirm the trial court’s judgment if it is fairly supported by credible evidence, ‘regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.’” Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala. Civ. App. 1994) (quoting Young v. Young, 376 So.2d 737, 739 (Ala. Civ. App. 1979)).

The wife also argues that the parties entered into a “rescission agreement” in which, she says, the parties intended only to void the agreement but not to enter into a postnuptial agreement. The wife argues that the trial court erroneously applied the factors contained in Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App. 1980), to their purported postnuptial rescission of the agreement.

“In Barnhill, [this court] established the either/or test that we use here in determining whether the subject agreement is valid. This test may be applied in postnuptial agreements, as well as prenuptial agreements, and it states that, in order for an agreement to be valid, the one seeking to enforce the agreement ‘has the burden of showing that the consideration was adequate and that the entire transaction was fair, just and equitable’ from the other party’s point of view or ‘that the agreement was freely and voluntarily entered into ... with competent, independent advice and full knowledge of [any] interest in the estate and its approximate value.’ Barnhill, 386 So.2d at 751.”

Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala. 1991).

We need not address whether the enforceability of a postnuptial rescission of a prenuptial agreement requires satisfaction of the Barnhill requirements, because the trial court found that the wife did not prove that the parties had mutually agreed to take any action regarding the agreement in 2010 and that finding is supported by the evidence.

As we explained above, the trial court acted within its discretion in determining that the parties did not void the agreement and that the agreement is valid and enforceable. The wife does not assert that the agreement is invalid for a failure to comply with the requirements set forth in Barnhill, supra. Because the trial court’s findings of fact were supported by the evidence and, therefore, are presumed correct, we affirm the judgment of the trial court. Garrett, 637 So.2d at 1378.

AFFIRMED.

Pittman and Thomas, JJ., concur.

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

Donaldson, J., dissents, with writing, which Moore, J,, joins. ;

DONALDSON, Judge,

dissenting.

I do not believe that the certification of the June 25, 2015, order as final pursuant to Rule 54(b), Ala. R. Civ. P., was appropriate. Therefore, I dissent; I would dismiss the appeal. See Ex parte Williams, 218 So.3d 792, 793 (Ala. 2016) (Murdock, J., concurring specially); Harrison v. Harrison, 213 So.3d 584 (Ala. Civ. App. 2016) (Donaldson, J., dissenting); and Williams v. Williams, 218 So.3d 781, 791 (Ala. Civ. App. 2014) (Moore, J. dissenting).

Moore, J., concurs.