author: MOORE, Judge. DONALDSON, Judge,

text:
    L.R.S. v. M.J.
    2150454
    Court of Civil Appeals of Alabama.
    September 23, 2016
    Opinion Issued on Denial of Rehearing December 2, 2016.
    Certiorari Denied February 10, 2017
    Alabama Supreme Court 1160198

      Scott W. Hunter, Daphne, for appellant.
    Rhonda Kinard, Mobile, for appellee.
   MOORE, Judge.

This appeal arises from a judgment entered by the Mobile Juvenile Court (“the juvenile court”). Because we determine that the juvenile court lacked subject-matter jurisdiction, we dismiss the appeal.

The record shows that J.J. (“the child”) was born on February 27, 2007, of a non-marital relationship between M.J. (“the father”) and L.R.S. (“the mother”). The father and the mother lived separately in Mobile and shared child-rearing responsibilities for the child until 2011, when the father moved to Utah. No custody deter-mmation regarding the child had been made before the father moved.

In 2014, the mother initiated efforts to obtain child support from the father, which culminated in a March 17, 2015, administrative order from the Utah Department of Human Services requiring the father, to pay child support retroactively to September 1, 2014. Two months later, on May 27, 2015, the father filed a petition in the juvenile court seeking to obtain sole physical and legal custody of the child. In his petition, the father alleged, among other things, that the mother had neglected the child’s educational .needs, had .abused drugs, and had abandoned the child on more than one occasion. The clerk of the juvenile court assigned the- father’s petition case number CS-15-900545. Along with his petition, the father also filed an “instanter” motion for pendente lite custody of the child, which, the juvenile court granted on June 2, 2.015. The mother filed an answer on December 1,2015.

The juvenile court conducted a trial on January 27, 2016, after which it entered a judgment on February 1, 201.6, awarding the father sole physical and legal custody of the child. In its judgment, the juvenile court concluded that Utah did -not have jurisdiction to enter a custody order and-that “the current action is an. initial custody determination.” The juvenile court found that custody should be awarded to. the father based on-the best interests of the child/ that the mother should be awarded scheduled visitation, and that the mother should pay the- father child sup-, port. The mother filed a postjudgment motion on February 10, 2016, which the juvenile court .denied that same day. The mother timely appealed.

In their briefs to this court, neither party has raised a question as to the subject-matter jurisdiction of the juvenile court, but this court raises the issue ex mero motu. See K.R. v. Lauderdale Cty. Dep’t of Human Res., 133 So.3d 396, 403-04 (Ala.Civ.App.2013). On August 3, 2016, this court ordered the parties to submit additional letter briefs regarding whether the juvenile court, which had not adjudicated the child dependent, had subject-matter jurisdiction to enter its February 1, 2016, judgment. In their letter briefs, the parties- agree that the juvenile court did have subject-matter jurisdiction, but such jurisdiction cannot be conferred by consent of the parties. Patterson v. Gladwin Corp., 835 So.2d 137, 142-48 (Ala.2002), To the contrary, whether a juvenile court has sub-' ject-matter jurisdiction is exclusively a question of law for this court, L.L.M. v. J.M.T., 964 So.2d 66, 74 (Ala.Civ.App. 2007), dependent -entirely on the language of the statutes empowering the juvenile court to act. K.C.G. v. S.J.R., 46 So.3d 499, 500 (Ala.Civ.App.2010).

The assertions in the father’s petition cotild be construed as allegátions of the dependency of the child to the extent the father claimed that the mother, who was exercising sole physical and legal custody of the child at the time, see Ex parte L.E.O., 61 So.3d 1042 (Ala.2010) (holding that, in determining dependency, juvenile court should determine whether legal custodian of child is providing adequate care),' was failing to assure that the child attended school as required, see Ala. Code 1975, § 12-15-102(8)4., had abandoned the child, see Ala. Code 1975, § 12-15-102(8)5., and was abusing drugs, see Ala. Code 1975, § 12-15-102(8)8. A juvenile court has exclusive original jurisdiction over petitions alleging the dependency of a child, Ala. Code 1975, § 12—15—114(a), even when the dependency petition involves a custody dispute between parents. See T.K. v. M.G., 82 So.3d 1 (Ala.Civ.App.2011). However, in this case, the juvenile court did not find the child dependent. This court has consistently held that a juvenile court cannot use its dependency jurisdiction to dispose of the'custody of a child unless the juvehile court finds the child to be dependent, see K.C.G., 46 So.3d at 501-02 (citing, among other cases, Ex parte K.S.G., 645 So.2d 297 (Ala.Civ.App.1992), Ex parte J.R.W., 630 So.2d 447 (Ala.Civ.App.1992), E.H. v. N.L., 992 So.2d 740 (Ala.Civ.App.2008), and T.B. v. T.H., 30 So.3d 429 (Ala.Civ.App.2009)), because a juvenile court has jurisdiction only to dismiss a dependency petition if the. child at issue is not adjudicated to be dependent. See Ala. Code 1975, § 12-15-310(b). - Thus, the- juvenile court did not have the authority under § 12—15— 114(a) to enter its judgment.

■ The clerk of the juvenile court assigned the case a “CS” designation. This court has routinely treated cases with a “CS” designation as falling within the jurisdiction of the juvenile court. See, e.g., H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278-79 (Ala.Civ.App.2009); C.W.S. v. C.M.P., 99 So.3d 864, 866 n. 1 (Ala.Civ.App.2012); and R.P.M. v. P.D.A., 112 So.3d 49, 50 (Ala.Civ.App.2012). However, the “CS” designation, which is merely a classification description created by the Alabama Administrative Office of Courts (“AOC”) for administrative purposes, does not in and of itself confer jurisdiction on a juvenile court. To qualify as a “CS” case, the case must arise out of a child-support action otherwise within the statutory jurisdiction of the juvenile court. See “Child Support Uniform Filing Policies & Procedures” (issued by AOC July 2013). By statute, juvenile courts have jurisdiction to award child support in a variety of contexts, including in parentage actions, see Ala. Code 1975, § 12-15-115(a)(6), § 26-17-104, and § 26-17-636(g), in certain dependency actions, see Ala. Code 1975, § 12-15-314(e), and in actions brought under the Child Support Act of 1979, see Ala. Code 1975, § 38-10-7, but, in awarding child support in this case, the juvenile court did not rely on any of its statutory bases for doing, so. The erroneous designation of the case as a “CS” case did . not bestow subject-matter- jurisdiction on the juvenile court.

A juvenile court does have jurisdiction to decide the parentage of a child under Ala. Code 1975, § 12-15-115(a)(6), which, by reference to the Alabama Uniform Parentage Act, Ala. Code 1975, § 26-17-101 ét seq., gives the juvenile court jurisdiction to decide the custody of the subject child and to assess child support. See Ala. Code 1975, § ‘26-17-636(g>. However, in its judgment, the juvenile court determined that the paternity of the father had been previously established in the Utah 'child-support action, so it did not' adjudicate the parentage of the child. Hence, the juvenile court did not have jurisdiction to decide the custody of the child and to award child support to the father under § 12-15-115(a)(6).

The father argues that the juvenile court had subject-matter jurisdiction under Ala. Code 1975, former § 12-15-30, and Ala. Code 1975, former § 12-15-l(10)(c), a proposition to which the mother largely agrees. The legislature repealed those Code sections when it adopted the Alabama Juvenile Justice Act of 2008 (“the AJJA”), Ala. Code 1975, § 12-15-101 et seq, No similar provisions appear in the AJJA. Contrary to the father’s assertion, the AJJA does not contain any current provision that confers subject-matter jurisdiction on juvenile courts specifically to decide custody controversies between unmarried parents.

“[A] judgment entered without subject-matter jurisdiction is void, ... and ... a void judgment will not support an appeal.” K.R. v. D.H., 988 So.2d 1050, 1052 (Ala.Civ.App.2008). Therefore, we dismiss this appeal as being from a void judgment, albeit with instructions to the juvenile court to set aside its void , judgment entered on February 1, 2016. ;

APPEAL DISMISSED WITH INSTRUCTIONS.

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

On Application for Rehearing

As set forth in our opinion released on original submission, M.J. (“the father”) filed a civil action against L.R.S. (“the mother”) alleging a dispute as to the custody of J.J., the child of their nonmari-tal relationship. L.R.S. v. M.J., 229 So.3d 772, 774-75 (Ala. Civ. App. 2016). That civil action actually was-originally filed in the Mobile Circuit Court. The clerk of that court assigned the action case number “CS-2015-900545.00” and referred the case .to Judge George A. Brown, a Mobile District Court judge, who sits as the presiding judge of the Mobile Juvenile Court. In our opinion on original submission, this court concluded that the Mobile Juvenile Court did not have jurisdiction, over the custody dispute, and we dismissed the appeal as arising from a void judgment, with instructions to vacate the judgment. 229 So.3d at 777.

On application for rehearing, the father attaches a standing order entered by the presiding judge of the Mobile Circuit Court on January 2, 2009 (“the standing order”), which provides as follows:

“By‘ order of the Presiding Judge of the Circuit- Court of Mobile, Alabama, all custody and visitation cases in this jurisdiction that do not arise out of a divorce action of modification or a divorce judgment shall be assigned to the District Court Judge who is currently also assigned to the Juvenile Court. This is the longstanding practice in.this jurisdiction and shall continue to be handled: this way, via Circuit Court clerk assignment, pending further orders.- .The Circuit Court clerk shall accept filings in the Circuit Court civil division and assign the cases as set out herein.”

The father asserts that, pursuant to the standing order, Judge Brown was.acting in his capacity as a “special appointed judge” when adjudicating the underlying custody dispute, and, thus, he says, Judge Brown entered a valid judgment and this court erred in dismissing the mother’s appeal.

Rule 13(A), Ala. R. Jud. Admin., authorizes the presiding judge of a judicial circuit to “temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.” Our supreme court has interpreted Rule 13 as permitting a-standing order providing for a district-court judge “to temporarily sit in the circuit court when needed.” Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006). When acting pursuant to such a standing order, a district-court judge acts as an ex officio circuit-court judge with' the authority to perform any judicial action within the jurisdiction of the circuit court." See Ex parte Griffith, 178 So.3d 885 (Ala. Civ. App. 2015). A judgment entered by a district-court judge when acting in an ex offi-cio capacity as a circuit-court judge pursuant to Rule Í3(A) would bé as valid as any other judgment entered by a circuit-court judge. See State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala. 1977).

However, in this case, the standing order does not merely authorize a district-court judge to act.as an ex officio circuit-court judge “temporarily ... when needed.” Ex parte Atchley, 936 So.2d at 516. The standing order purports to assign an entire class of circuit-court cases, i.e., “all custody and visitation cases in this jurisdiction that do not arise out of a divorce action of modification or a divorce judgment,” to the “District Court Judge who is currently also assigned to- the Juvenile Court.” The -standing order further expresses the intent of the presiding judge to continue a “longstanding practice” “pending further orders.” As a practical matter, under the standing order, in the 13th Judicial Circuit, each and every child-custody and visitation case arising outside the divorce context is adjudicated by the Mobile Juvenile Court.

In promulgating Rule 13(A), pur supreme court delegated the power of judicial reassignment to the presiding judges of the various judicial circuits. Sweeney, 349 So.2d at 1148. That power comes subject to the constitutional limita-tiop that any eourt-made rule “shall not ... affect the jurisdiction of circuit and district courts.” .Amendment No. 328, § 6.11 (Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.)).

“Subject-matter jurisdiction concerns a court’s power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (‘ “By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.” ’ (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)(subject-matter jurisdiction refers to a court’s ‘statutory or constitutional power’ to adjudicate a case).”

Ex parte Seymour, 946 So.2d 536, 538 (Ala. 2006) (emphasis omitted).

In Sweeney, supra, our supreme court determined that Rule 13(A) does not violate § 6.11 in permitting a presiding circuit-court judge to reassign a district-court judge temporarily to the circuit court in order to hear a criminal case. The court specifically noted as follows:

“The jurisdiction of neither the Circuit nor the District Court of Mobile County is affected by the temporary assignment of a judge from one to the other. The jurisdiction of both courts remains the same, as does the venue of causes in either.”

349 So.2d at 1148. The holding in Sweeney does not apply here because the standing order in this case does more, than appoint the Mobile Juvenile Court judges temporarily to the Mobile Circuit Court. The standing order in this case effectively enlarges the jurisdiction of the Mobile Juvenile Court to include all nondivorce child-custody and visitation cases, even those, like the one in this case, that do not fall within the statutory jurisdiction of a juvenile court. We do not believe Rule 13(A) authorizes the standing order at issue in this case because it “affects” the jurisdiction of the Mobile Juvenile Court in a manner that violates the constitutional limitation on the judicial rule-making power, and, hence, we find the standing order to be void ab initio. See Ex parte Ward, 540 So.2d 1350 (Ala. 1988) (holding resolution and order promulgated by supreme court that violated constitutional prohibition against suspension of laws- to be void ab initio).

The father relies solely on the standing order to support his argument that Judge Brown had .the authority to enter the custody determination in the underlying case. Because we have determined that the standing order lacks any legal effect, we conclude that Judge Brown was not acting as a properly appointed circuit-court judge when he 'entered the judgment. We maintain our holding that the judgment is void for lack of subject-matter jurisdiction and that the appeal was correctly dismissed on original submission. Thus, we overrule the application for rehearing.

APPLICATION .OVERRULED.

Thompson, P.J., and Pittman, J., concur.

Donaldson, J., concurs in the result, with writing, which Thomas, J., joins.

DONALDSON, Judge,

concurring in the result.

In his application for rehearing,- M.J. submitted an unsigned document purporting to be a “Standing Administrative Order” of the Mobile Circuit Court.' This document was not part of the record on appeal in this case, nor was it provided in response to our order on original submission for the .parties to submit additional briefs regarding the jurisdiction of the Mobile Juvenile Court in this case. Although I would not consider or analyze the unsigned document first submitted in the application for rehearing, I - concur in overruling the application.

Thomas, J., concurs.

      . The record indicates that the juvenile court granted the motion solely upon a review of the verified petition of the father and that the juvenile court indicated that it would give the mother a hearing on the matter if she so requested, which she did not. Thus, the juvenile court was acting pursuant to Ala. Code 1975, § 12-15-141, which provides:
      "The juvenile court may enter an ex parte order of protection or restraint on an emergency basis, without prior notice and a hearing, upon a showing of verified written or verbal evidence of abuse or neglect injurious to the health or safety of a child subject to a juvenile court proceeding.- and the likelihood that the abuse or neglect will continue unless the order is issued. If an emergency order is issued, a hearing, after notice, shall be held within 72 hours of the written evidence or the next judicial business day thereafter, to either dissolve, continue, or modify the order.”
      The mother did not file a petition for a writ of •mandamus to contest the juvenile court's ex parte order, and this court cannot now consider her position that that order was not justified by the allegations in the father’s petition. See Strickland v. McClendon, 193 So.3d 740, 742 (Ala.Civ.App.2015) (holding that emergency order changing custody of child pending later trial could be reviewed only by way of a petition for a writ of mandamus). Even if the mother is- correct, the juvenile court still had subject-matter jurisdiction to enter the order. See Ex parte Butler, 972 So.2d 821, 825 (Ala.2007) ("Subject-matter jurisdiction concerns a court’s power to adjudicate a case, not the merits of the court’s decision in.the case.”); M.B. v. R.P., 3 So.3d 237, 255 (Ala.Civ.App.2008) (Moore, J., concurring in part and concurring in the result in part) (reasoning that any error juvenile court may have committed in determining that emergency situation existed that endangered the child did not affect its subject-matter jurisdiction). Nothing in our opinion should be construed as affecting the validity of that order.

      . See note 1, supra.

      . We take judicial notice that the Mobile Juvenile Court is a division of the Mobile District Court in the 13th Judicial District.

      . Although the standing order is not a part of the appellate record, we consider its contents for' the limited purpose of deciding the jurisdictional issue before us. See Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006).

      . Rule 40(a), Ala. R. App. P., provides: “A party who has not prevailed may apply for a rehearing by filing an application for rehearing.” In dismissing the mother's appeal, we ordered the Mobile Juvenile Court to vacate the judgment awarding the father custody of the child. Because our opinion adversely affected the father’s custody rights, we consider him "[a] party who has not prevailed” within the meaning of Rule 40(a).


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Harold LANCASTER and Candy Lancaster v. Walter S. EVANS and Traci E. Evans
    2150627
    Court of Civil Appeals of Alabama.
    November 18, 2016
    Certiorari Denied February 10, 2017
    Alabama Supreme Court 1160170

      Robin F. Reynolds, Dadeville, for appellants. ■
    Chip Cleveland of Cleveland, Riddle & Atchison, Attorneys at Law, LLC,'Pratt-ville; and Thomas A. Radney of Radney, Radney &. Jackson, LLC, Alexander. City, for appellees.
   DONALDSON, Judge.

Harold Lancaster and Candy Lancaster appeal from a summary judgment of the Tallapoosa Circuit Court (“the trial court”) denying their claim- seeking an injunction against Walter S. Evans and Traci E. Evans. The Lancasters alleged that the Ev-anses had violated restrictive covenants applicable to certain property by building a boathouse (“the boathouse”) and by planting trees and erecting a sign in the border area between the parties’ properties. The trial court entered a summary judgment in favor of the'Evanses, finding that the boathouse was built on a third party’s property and that a latent ambiguity existed in the restrictive covenants preventing enforcement of the covenants in the manner requested by the Lancasters.

We hold that the Evanses’ construction of the boathouse was subject to the restrictive covenants because the provisions of the restrictive covenants regarding boathouses touched and concerned the Ev-anses’ property.: We also hold that the restrictive covenants prohibited the boathouse built by the Evanses. However, the Lancasters waived on .appeal any issue regarding the planting of the trees and the erection of the sign in the border area between the parties’ properties. We therefore affirm the summary judgment in part, reverse the summary judgment in part, and remand the cause to'the-trial court for further proceedings.

Facts and Procedural History

The Lancasters and the Evanses are owners of adjoining properties that abut Lake Martin. Both properties are located in the Clearwaters Subdivision (“the subdivision”) that consists of 6 lots. In 1995, the Lancasters purchased their property, which is located in the rear of a slough. The Evanses purchased their property in December 2013. It is undisputed that the properties in the subdivision are subject to the provisions in the “Protective Covenants Plat” (“the restrictive covenants”) recorded in the Tallapoosa Probate Court. In January 2015, the Evanses began the replacement of a pier extending outward from their property into Lake Martin and the construction of the boathouse at the end of the pier over the water of Lake Martin.

On February 2, 2015, the Lancasters filed a complaint alleging that the Evanses had violated the restrictive covenants by beginning construction of the boathouse. The Lancasters alleged that the boathouse did not have their approval or the approval of an Architectural Control Committee for the subdivision. According to the Lancas-ters’ allegations, no Architectural Control Committee had been formed as required by the restrictive covenants. The Lancas-ters claimed that they were pursuing enforcement of the restrictive covenants as adjacent-property owners. The Lancasters sought a temporary restraining order, a preliminary injunction, and a permanent injunction ordering that construction on the boathouse cease and that the boathouse be removed. The Lancasters later amended the complaint to allege additional violations of the restrictive covenants by the Evanses along the adjoining border line between the parties’ properties— namely, the Evanses’ posting of a “no trespassing” sign and the Evanses’ planting of trees obstructing the Lancasters’ view. In the amended complaint, the Lancasters also alleged that construction of the boathouse had been completed.

The Evanses filed an answer denying the allegations that they had violated the restrictive covenants. The Evanses asserted various affirmative defenses, including that the claims against them are barred by the unclean-hands doctrine. The Evanses asserted counterclaims against the Lancas-ters, alleging trespass and invasion of riparian rights. According to the Evanses’ allegations, the Lancasters had tied a water vessel to a cleat on their property and had walked across their property without their permission in the summer of 2014 and had installed a water line that diverted water from the inlet adjacent to the Ev-anses’ property.

On October 23, 2015, the Evanses filed a motion for a summary judgment. The Ev-anses contended that the provisions of the restrictive covenants regarding the use of Lake Martin were not enforceable against them because those covenants do not touch or concern the property that had been conveyed to them. The Evanses asserted that Lake Martin is owned by Alabama Power Company (“Alabama Power”) and that they had obtained a use permit from Alabama Power to build the boathouse on December 4, 2014. In support of their motion, the Evanses submitted the use permit from Alabama Power allowing for the replacement of their pier and the construction of the boathouse at the end of the new pier. The permit indicated that Alabama Power owned the “pool property” of Lake Martin.

The Evanses conceded that if the boathouse was subject to the restrictive covenants, those covenants prohibited the construction of any structure other than a pier or a dock without the approval of adjacent-property owners, an Architectural Control Committee, and Alabama Power. The Ev-anses asserted that uncertainty as to the existence of an Architectural Control Committee created a latent ambiguity in the restrictive covenants regarding the approval of the boathouse and that, therefore, only the approval of Alabama Power was needed. In support of their assertion that an ambiguity existed, the Evanses referred to the allegation in the Lancas-ters’ complaint that an Architectural Control Committee did not exist and the Lan-casters’ responses to interrogatories in which they listed 11 individuals they stated were a part of an Architectural Control Committee.

The Evanses additionally argued that enforcing the restrictive covenants would create an unjust hardship on them, asserting that the expense of -removing the boathouse outweighed the benefits to-the Lancasters of doing so. The Evanses also argued that the claims against them were barred by the unclean-hands doctrine. They asserted that the Lancasters had violated the approval provisions of the restrictive covenants.by constructing a pier within 15 feet of the Evanses’ extended interior property line without their express written approval as adjacent-property owners. No evidence was submitted by the Evanses to support those assertions.

On November' 11, 2015, the Lancasters filed a brief in opposition to the motion for a summary- judgment, contending that the restrictive covenants prohibited the construction of the boathouse. The Lancasters submitted, among other exhibits, the following: the use permit from Alabama Power, the restrictive covenants, the deed conveying the property to the Evanses, and affidavits from Harold Lancaster, George Hammond, and Walter Lowery, Jr. In his affidavit, Harold Lancaster testified that construction of the boathouse began on January 5, 2015, and that, on the next day, he met with Walter Evans, objected to the structure, and personally delivered to Walter a copy of the restrictive covenants. Harold testified that a week later Walter stated that he would comply with the covenants and build' only a 'pier with boat lifts but that, on January 29, 2015, it became apparent that the Evanses were building a boathouse. He further testified that construction of the-boathouse and an adjoining gazebo was completed by February 7, 2015, after the Lancasters had filed their complaint. He additionally testified that, on March 29, 2015, the Evanses planted pine, .trees and. magnolia trees along the parties’ property line and placed a “no trespassing” sign facing the front of the Lancasters’ house.

The Lancasters argued that the use permit’ from Alabama Power was insufficient to meet the approval requirements in the' restrictive covenants to build a boathouse. The use permit - states the; following regarding covenants:

“Covenant Design Scheme: Alabama Power' Company cooperates with developers on these lakes and encourages compliance with covenants and/or other regulatory/de‘sign schemes put in place by the developers in order to encourage best practices for shoreline management within the developments. It is your responsibility to obtain the necessary architectural board approvals, if such approval is a requirement prior to construction.”

The restrictive covenants contain the following provisions regarding piers and boathouses:- ■

“These covenants are to run with the land and shall be binding on all parties and all persons claiming under them
“The following restrictions apply to all lots:
“6. Separate Structure. The structures specified in this paragraph are permitted to be erected only if such structures are permanent in nature and blend into the architectural harmony of the main dwelling of the land.
“(a) Piers and Ramps. Piers and ramps shall not be located nearer than fifteen (15) feet to an extended, interior lot line without the express written authority from the adjoining lot owner.
(b) Gazebos on Piers. No structure will be built'over the water other than-a stationary pier and/or floating dock; provided, however, that gazebos on piers will be allowed only if approved by the adjacent lot owners', the Architectural Control Committee, and only if said gazebo does not interfere with the view of other lot owners. Any gazebos on piers cannot have more than 150 square feet of covered area and must be open-air only. All construction . affecting - the shoreline of Lake Martin and. the lake area itself must have approval of [Alabama Power].
“(c) Gazebos on Land. A covered gazebo on land will only be allowed if approved by the adjacent lot owners, the Architectural Control Committee, and only if said gazebo does not interfere with the view of other lot owners. Any gazebos on land' cannot have more than 150 square feet of covered area and must be open-air only.
“(d) Boathouses, Separate Garages, and Guest Houses. Boathouses, separate garages and guest houses must be at least 15 ft. from lot lines and must have the written approval of the Architectural Control Committee,- adjacent lot owners, and [Alabama Power], .
“Detached garages and carports must be of material and design compatible with the main house, must be within setback lines, and have approval of the Architectural Control Committee.
“Guest houses may be built only with approval of the Architectural Control, Committee, must be of material and design compatible-with the main house. Guest houses may have no more than 450 sq. ft., not less than 380 sq. ft.
“No lot may have more than one building (other than boat houses) detached from the house, that building must be appearance compatible with the house. No metal prefab storage buildings are allowed. Architectural Control Committee approval required for all detached structures.”

The restrictive covenants contain the following provision regarding the Architectural Control Committee:

“16. ARCHITECTURAL CONTROL: Architectural Control Committee shall consist of. three property owners. Architectural Control Committee must make available to all property owners .all plans for construction, Notice must be placed on any lot with request for approval for at least ten days prior to approval unless waived in writing by all property owners.”

In response to the Evanses’ assertion that there is a latent ambiguity in' the restrictive covenants, the Lancasters argued that the developers drafting the restrictive covenants clearly intended that a decision by the Architectural Control Committee was not needed if an adjacent-property owner refused to grant permission to a proposed boathouse.

In his affidavit, Hammond testified that he, along with three others, developed the subdivision. He' further testified, in pertinent part:

“4. To protect each lot owner’s view, use and enjoyment of the beauty of Lake Martin, the covenants were' written to require a lot owner to obtain permission from the adjoining lot owner and the Architectural Review Committee for any project that would affect the view or enjoyment of Lake Martin.
“5. It was our intent that if an adjoining landowner reasonably objected to a proposed project that submission to the Architectural Review Committee would not be available to the lot owner.
“6; As the developer of the subdivision, all building construction plans were submitted-to the developer by. each lot owner for compliance and approval untiball lots were sold, thereafter the Restrictive Covenants controlled.” ■

The Lancasters conceded that no formal Architectural Control Committee had been formed at the time the Evanses began construction of the boathouse. They asserted that a “de facto” committee was observed by the property owners for approval of construction within the subdivision.

In response to the Evanses’ argument that removing the boathouse .would create an unjust hardship, the Lancasters-argued-that the Evanses had notice of the requirements in the restrictive covenants and that the boathouse has had a negative impact on the value of their property. In his affidavit, Lowery testified that he had inspected the Lancasters’ property and the-subdivision and had found the following:

“The' Lancaster lot' is located in the slough area of the subdivision and it appears that the develópér of this area wished to keep this lot as valuable as possible in the beginning by protecting it with restrictions on other properties. Because of the location of the lot and the narrowing of the slough, the neighbor’s covered boat dock narrows the slough even'inore. Boating in and out of the slough is now inhibited by the narrowing of the water access. Therefore the restrictions and covenants were written' in a way to maximize the value of [the Lancasters’ lot] and for the other lots in the area. The blocking of the view by the boat dock and the trees will depreciate the value of the subject property, but how. much is difficult to prove. The subject property has been depreciated by the blocking of the view with the covered boat dock and if the trees are allowed to mature. It will be devalued even more in the future.”

In response to the Evanses’ argument that the Lancasters’ claims were barred by the unclean-hands doctrine, the Lancasters argued that they had not violated the approval requirements of the restrictive covenants because they had obtained approval from the previous owners of the Evanses’ property before constructing a pier. In support of their argument, the Lancasters submitted a document purportedly signed by.the previous owners of the Evanses’ property that, pursuant to the restrictive covenants, reflected their agreement to allow the' Lancasters to construct a pier within the 15-foot-setback'area.

On March 7, 2016, the trial court entered a summary judgment in favor of the Evanses on the Lancasters’ claims, finding:

“1. The material facts are not in dispute. The issue before the Court is a legal issue relating to applicability and enforcement of restrictive covenants. The [Lancasters] contend that the covenants restrict the ability of the [Evanses] to construct a boathouse. The covenants are ambiguous and attempt to impose restrictions on the use of land owned by a third party.
2. The Court finds that covenants are disfavored and must be strictly, construed. [The Evanses’] Motion, for Summary Judgment is GRANTED. There is no issue of material fact; therefore, the [Evanses] are entitled .to a judgement as a matter of law. This is, a final order related to all of the [Lancasters’] claims.”

Upon the Evanses’ motion, the trial court entered an order dismissing, without prejudice, the Evanses’ counterclaims against the Lancasters.

On April 13, 2016, the Lancasters filed a notice of appeal with the supreme court. The supreme court transferred the appeal to this court pursuant to 12-2-7(6), Ala. Code 1975.

Standard of Review

We apply the following standard of review to a summary judgment:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

Discussion

As a threshold matter, we must first determine whether the Lancasters have appealed from a final’judgment. “[I]f there is not a final judgment then this court is without jurisdiction to hear the appeal.” Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala. Civ. App. 2010) (citing Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala. 2006)). “ ‘[Jurisdictional matters are of, such magnitude that we take notice of them at any time and do so even ex mero motu.’” Id. (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987)). The summary judgment entered by the trial court did not'address the Ev-anses’ counterclaims against the Lancas-ters. As a result, the summary judgment was not a final judgment. See id. (“A judgment is not final if it fails to completely adjudicate all issues between the parties.”). However, this court has held, and the supreme court has affirmed, that the subsequent dismissal of remaining counterclaims pursuant to Rule 41(a), AJa. R. Civ. P., in such a situation results in a final judgment in the action. Chesnut v. Board of Zoning Adjustment, 208 So. 3d 609, 630-31 (Ala. Civ. App. 2015), affirmed in part and reversed in part on other grounds by Ex parte Chesnut, 208 So.3d 624, 633-34 (Ala. 2016)(affirming this court’s determination as to the' finality of the judgment but reversing our decision on other grounds). Because the trial court entered an order dismissing the Evanses’ counterclaims pursuant to Rule 41(a), a final judgment resolving all controversies was entered in the action. The Lancasters therefore have appealed from a final judgment, and we proceed to consider the merits in this case.

The Lancasters contend that the Evanses’ construction of the boathouse was subject to the restrictive covenants.

“In order for a covenant to be enforced as one that ‘runs with the land,’ it must both (1) have been intended by the parties creating it to run with the land and (2) touch and concern the land. See, e.g., Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970); Smith v. First Sav. of Louisiana, FSA, 575 So.2d 1033 (Ala. 1991); Patterson v. Atlantic Coast Line R. Co., 202 Ala. 583, 589, 81 So. 85, 91 (1919) (noting that, in keeping with the seminal English case known as ‘Spencer’s case’ (5 Coke, 16), ‘a covenant will not run -with the land if it be merely collateral, and doth not touch or concern the thing demised’).1...
"1One commentator notes that the traditional requirements for a restrictive covenant to;‘run with the land’ at law are ,(1) that the covenant must ‘touch and concern’ the land, (2) that the parties must intend the covenant, to run with the land, and (3) that there must be privity of estate, and that the traditional requirements for a restrictive covenant to ‘run with the land’ in equity are (1) that the covenant must ‘touch and concern’ the land, (2) that the parties must intend the covenant to run with the land, and (3) that the successor to the ‘burden’ must have notice of the covenant. See 9 Richard R. Powell, Powell on Real Property § 60.04[2] (2004) (discussing the requirements and noting the merger of law and equity). We note that, as a practical matter, instruments creating covenants commonly do not express whether the parties intended the covenant to run with the land. Accordingly, the fact that a covenant does in fact touch and concern the land often is seen as the best available evidence of the parties’ intention that the covenant run with the land. See, e.g., Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970).
“The benefit or burden of a covenant ‘touches and concerns’ the benefited land or the burdened land when it affects the value of that land (Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451 (1973)) or, in the view of the Restatement' (First) of, Property, affects the ‘physical use and enjoyment’ of the land (Restatement (First) of Property § 537).”

Miller v. Associated Gulf Land Corp., 941 So.2d 982, 985 (Ala. Civ. App. 2005).

Asserting' that Lake Martin is owned by a third party, namely Alabama Power, the Evanses contend that the restrictive covenants do not apply to the boathouse because.it was built on the lake and not on the land. The Evanses do not dispute that the restrictive covenants generally apply to their property; however, they argue that the restrictive covenants are not applicable to Lake Martin because the restrictive covenants did not attach to or run with the property owned by Alabama Power. The issue is whether the provisions of the restrictive covenants regarding boathouses “touch and concern” the Evanses’ property. In their appellate brief, the Evanses assert that “[cjommon sense dictates that [the construction of boathouses] allow[s] property owners ease of access and increased use of the lake, and therefore increases] the value of such properties.” Undoubtedly, the boathouse was built to enhance the Evanses’ use and enjoyment of their property, and the evidence in the record indicates that the boathouse is physically connected to the Ev-anses’ property through their pier. We therefore conclude that the provisions of the restrictive covenants applicable to the boathouse “touch and concern” the .Ev-anses’ property and that, as a result, the building of the boathouse was subject to the restrictions contained in the restrictive covenants.

The Evanses assert that- their position is additionally supported by § 33-7-50, Ala. Code 1975, which provides:

“The owner of riparian lands upon navigable waters in the State of Alabama may install in front of their respective riparian lands' wharves, docks, warehouses, sheds, tipples, chutes, elevators, conveyors and the like for receiving, discharging, storing, protecting, transferring, loading and. unloading freight and commodities of commerce to and from vessels and carriers, and may use their riparian lands in connection therewith and dredge,out and deepen the approaches thereto, and may charge and collect reasonable tolls for the use thereof. All such structures are to be subject to such lines and limitations as may at the time of making such’ improvements be laid or placed by any authority of the United States, or of the State of Alabama, who may have authority to control harbor and pier lines,”

As the movants for a summary judgment, the Evanses presented no evidence that Lake Martin is considered “navigable waters” or that the -boathouse was constructed for commercial purposes. Even if § 33-7-50 was applicable in this case, the- Ev-anses have offered no legal authority to show that- the statutory rights provided could not have been subjected to restrictions by contract or covenant. The Evanses therefore fail po show that § 33-7-50 applies in this case.

The Evanses further argue that the Lancasters must prove a direct interference with their riparian rights in order to receive injunctive relief. See Cove Props., Inc. v. Walter Trent Marina, Inc., 702 So.2d 472, 475 (Ala. Civ. App. 1997) (quoting Ulbricht v. Eufaula Water Co., 86 Ala. 587, 590, 6 So. 78, 79 (1888)) (“‘[E]very riparian owner of lands, through- which streams of water flow, has a right to the reasonable use of the running water, which is a private right of property.’ ”). This argument is extraneous to the issues on appeal. The Lancasters alleged that the Evanses had violated the restrictive - covenants. The Lancasters have not alleged that the Evanses interfered with their riparian rights.

The Lancasters contend that the restrictive covenants prohibited the construction of the boathouse. Section 6(b) of the restrictive covenants provides:

“No structure jvill be built over the water other than a stationary pier and/or floating dock; provided, however, that gazebos on piers will be allowed only if approved by the adjacent lot owners, the Architectural Control Committee, and only if said gazebo does not interfere with the view of other- lot owners. Any gazebos on piers cannot have more than 150 square feet of covered area, and must be open-air only.. All construction affecting the shoreline of Lake Martin and the lake area itself must have -approval of [Alabama Power].”

As provided- in Section 6(b), the restrictive covenants allow only a stationary pier, a floating dock, or a gazebo on a pier that meets certain requirements to be built over the water of Lake Martin. Any other structure over the water of Lake Martin is prohibited. The summary judgment refers to the structure built by the Evanses as a boathouse, and the Evanses insist that the structure they built is only a boathouse. According to the evidence in the record, the boathouse was built at the end of the Evanses’ pier over the water of Lake Martin'. Section 6(b) of the restrictive covenants therefore prohibited the construction of the boathouse.

The Evanses argue that an Architectural Control Committee to approve the boathouse had not been established and that the unavailability of the Architectural Control Committee created a latent ambiguity in the restrictive covenants regarding the approval of boathouses. See Vestlake Cmtys. Prop. Owners’ Ass’n, Inc. v. Moon, 86 So.3d 359, 365 (Ala. Civ. App. 2011) (quoting Grove Hill Homeowners’ Ass’n v. Rice, 43 So.3d 609, 614 (Ala. Civ. App. 2010), quoting in turn Smith v. Ledbetter, 961 So.2d 141, 145 (Ala. Civ. App. 2006), quoting in turn Thomas v. Principal Fin. Grp., 566 So.2d 735, 739 (Ala. 1990)) (“‘“‘[A]n ambiguity is latent when the language employed is clear and intelligible and suggests but a single meaning but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ ” ’ ”). Pursuant to Section 6(d) of the restrictive covenants, the approval of adjacent-property owners, an Architectural Control Committee, and Alabama Power is required for the building of boathouses. However, Section 6(b) of the restrictive covenants prohibits the building of a boathouse over the water of Lake Martin. As a result, the boathouse built by the Evanses was prohibited by the restrictive covenants regardless of whether a latent ambiguity existed regarding the approval requirements of Section 6(d).

The Evanses also argue on appeal alternative grounds upon which, they assert, the summary judgment can be affirmed.

“Although it is true that an appellate court may affirm a judgment of a trial court on a ground not relied upon by the trial court, this is so only if the alternative ground is a ‘valid legal ground.’ Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala. 2003) (subject to due-process constraints, appellate courts ‘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’).”

Atkins v. State, 16 So.3d 792, 797 (Ala. Civ. App. 2009).

The Evanses argue that the restrictive covenants are unenforceable under the “change-in-the-neighborhood test.” “Under the change-in-the-neighborhood test, a restrictive covenant will not be enforced if the character of the neighborhood has changed so radically that the original purpose of the covenant can no longer be accomplished.” AmSouth Bank, N.A. v. British W. Florida, L.L.C., 988 So.2d 545, 550 (Ala. Civ. App. 2007) (citing Lange v. Scofield, 567 So.2d 1299, 1301 (Ala. 1990)). The Evanses assert that “the fact that other boathouses exist in [the subdivision] goes to a change in the purpose of the ... subdivision.” They also assert that their permission was not sought before the construction of the other boathouses in the subdivision. The determination of whether the restrictive covenants are unenforceable under the change-in-the-neighborhood test involves questions of fact that were not raised in the submissions before the trial court and were not resolved by the trial court. Therefore, the judgment cannot be affirmed on appeal on this ground. See Slaby v. Mountain River Estates Residential Ass’n, Inc., 100 So.3d 569, 576 (Ala. Civ. App. 2012) (declining to affirm a judgment on a ground involving a disputed issue of fact “not raised or resolved in the trial court”).

The Evanses also argue that a balancing of the equities in the case weighs in favor of the Evanses’ maintaining the boathouse, citing Lange v. Scofield, 567 So.2d at 1302, in which our supreme court adopted the “relative-hardship test”:

“Under that test a covenant will not be enforced if to do so would harm one landowner without substantially benefiting another landowner. [5 R.] Powell, [The Law of Real Property] § 679(3) [ (1987 rev. ed.) ]. ... The factors to be considered in applying this test are well stated in 20 Am. Jur. 2d Covenants, Conditions, & Restrictions § 313, at 876-77 (1965):
“ ‘Broadly speaking, the enforcement of building restrictions is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust.... The complainant’s right to insist on the restrictive covenant must be clear and satisfactory....
‘“The equitable enforcement of a restriction can be invoked only for the purpose of protecting the benefit which it was the object of the covenant to afford. If the restrictive covenant has ceased to have any beneficial or substantial value to the ... property, it can form no ground for equitable relief.... [I]f the defendant will be subject to great hardship or the consequences would be inequitable, relief will be denied.’ ”

Id. In Maxwell v. Boyd, 66 So.3d 257, 261-62 (Ala. Civ. App. 2010), this court held that the relative-hardship test is inapplicable when the party asserting the defense had notice of restrictive covenants before violating them, stating:

“[T]he ‘relative hardship’ doctrine recognized in Lange is a creature of equity, and it follows that seeking the invocation of the doctrine will require the possession of clean hands. Cf. Hankins v. Crane, 979 So.2d 801, 812 (Ala. Civ. App. 2007) (indicating availability of unclean hands as defense to covenant-enforcement action, but concluding that no factual basis for the defense existed in that case). Equity is to ‘“prevent a party from asserting his, her, or its rights under the law when that party’s own wrongful conduct renders the assertion of such legal rights ‘contrary to equity and good conscience.’ ” ’ Id. (quoting earlier Alabama cases).
“A pertinent specific application of the clean-hands doctrine is that a restrictive covenant should be enforced if the defendant had knowledge of it before constructing an improvement contrary to its1 provisions, even if the harm is disproportionate. Green v. Lawrence, 877 A.2d 1079, 1082 (Me. 2005) (citing 9 Powell on Real Property § 60.10(3)); accord Turner v. Sellers, 878 So.2d 300, 306 (Ala. Civ. App. 2003) (affirming denial of relief from restrictive covenant when the burdened parties ‘knew that- there were restrictions on the free use of their lot when they purchased it’). The knowledge sufficient to warrant denial of the relative-hardship defense need not be actual, but may be constructive. Miller v. Associated Gulf Land Corp., 941 So.2d 982, 989 (Ala. Civ. App. 2005) (noting that trial court’s judgment denying relief from covenant was supported by evidence that the owners of the burdened lot had ‘purchased the subject property knowing of the nature of the deed restriction and therefore at least constructively knowing’ of nearby land conditions and property owners’ rights).”

The Lancasters presented evidence indicating that the Evanses had constructive notice of the restrictive covenants through the deed conveying their property and that Harold Lancaster personally delivered the restrictive covenants to Walter Evans before construction of the boathouse had been completed. The Evanses presented no evidence to the contrary. Accordingly, we conclude that the evidence supports only a finding that the Evanses continued to build the boathouse despite having notice of the restrictive covenants. Therefore, the relative-hardship doctrine was not available to the Evanses as a defense. As a result, we are not presented with any grounds to affirm the trial court’s denial of the Lancasters’ claims that the Evanses violated the restrictive covenants by building the boathouse.

The Lancasters also alleged claims that the Evanses violated provisions of the restrictive covenants by planting trees and erecting a sign along the border line between their adjoining properties. The Lancasters fail to offer any argument regarding those issues on appeal. “When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982). We therefore cannot reverse the trial court’s judgment insofar as it denied those claims.

For the foregoing reasons, we reverse the summary judgment denying the Lan-casters’ claims that the Evanses violated the restrictive covenants by building the boathouse, but we affirm the summary judgment in favor of the Evanses on the Lancasters’ claims that the Evanses violated the restrictive covenants by planting trees and erecting a sign along the border of their properties. The case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

' Thompson, P.J., and Pittman and Moore, JJ., concur.

Thomas, J., concurs in the result, . without writing. :-

      . The Lancasters contend that the structure built by the Evanses included a gazebo. The trial court, in its summary judgment, refers to the structure only as a boathouse.

      . Rule 41(a) provides:
      "Voluntary dismissal: Effect thereof.
      "(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of Alabama, or -of the United States, or of any state, an action based on or including the same claim.
      "(2) By Order Of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save Upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action may be dismissed but the counterclaim shall remain pending for adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.”

      . Section 6(d) provides, in part: “Boathouses, separate garages and guest houses must be at least 15 ft. from lot lines and must have the written, approval of the Architectural Control Committee, adjacent lot owners, and [Alabama Power], ...”


author: MOORE, Judge.

text:
    Amy Carpenter LYLES v. Michael Wayne LYLES
    2150551
    Court of Civil Appeals of Alabama.
    February 17, 2017

      Joshua B. James, Montgomery, for appellant.
    Louis G. Colley, Prattville, for appellee.
   MOORE, Judge.

Amy Carpenter Lyles (“the wife”) appeals from a. judgment of the Autauga Circuit Court (“the trial court”) divorcing her from Michael Wayne Lyles (“the husband”). We affirm the trial courts judgment.

Procedural History

On March 9, 2015, the husband- petitioned for a divorce from the wife. The wife answered the petition and counterclaimed for- a divorce on March 13, 2015. After a trial, the trial court entered a judgment on November 24, 2015, divorcing the parties, awarding the wife sole legal and physical, custody of the parties’ only minor child;. ordering the husband to pay $1,304 per month in child support; ordering-the parties’ marital home and beach condominium sold and the proceeds derived from the sales split evenly between the. parties; dividing the parties, debts; ordering the husband to pay $3,000 per month in alimony for 24 months and $2,000 per month in alimony for the following 24-month period; dividing the parties’ “Am-eri-Trade” and Merrill Lynch accounts equally between the parties; awarding the husband 70% of the balance of his 401k account; awarding the wife 30% of the balance of the husband’s 401k account; awarding the husband his pension, a Wells Fargo bank account, and a Regions Bank account; awarding the wife her American Fund individual-retirement account, her Bank of Wedowee individual-retirement account, a Swann Bancshares account, and a River Bank and Trust account. . ,

On December 21, 2015, the wife filed a postjudgment motion; that motion was denied by operation of law on' March 21, 2016. On March 25, 2016, the wife filed her notice of appeal. -

Discussion

L'

On appeal, the wife first argues that the trial court erred in declining to divide the husband’s pension.

“‘Alatbama] Code 1975, §30-2-51(b) ... authorizes a court granting a divorce to apportion as a marital asset “the present value of any future or current retirement benefitsf] that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed” (emphasis added).
“ ‘In Wilson v. Wilson, 941 So.2d 967 (Ala. Civ. App. 2005); Applegate v. Applegate, 863 So.2d 1123 (Ala. Civ. App. 2003); and McAlpine v. McAlpine, 865 So.2d 438, 440 (Ala. Civ. App. 2002), this court held that, in order to support an award to one spouse of a portion of the other spouse’s retirement benefits pursuant to § 30-2-51(b), the spouse seeking such an award must - introduce evidence establishing the “present válue” of the retirement benefits. Moreover, this court stated that “ ‘[t]he failure to present the necessary evidence of the present valuation of Retirement benefits ... prevents the trial court from exercising its ... discretion to award one spouse any portion of the retirement benefits of the other spouse. McAlpine v. McAlpine, 865 So.2d 438 (Ala. Civ. App. 2002).’” Wilson, 941 So.2d at 970 (quoting Applegate, 863 So.2d at 1124). Reversing the awards of retirement benefits in Wilson, Applegate, and McAlpine, this court remanded those cases with instructions for the pertinent trial courts to amend their judgments ‘to eliminate the awards of retirement benefits and to reconsider divisions of marital assets on the basis of evidence that had already been introduced at trial.’
“Brattmiller v. Brattmiller, 975 So.2d 359, 362-63 (Ala. Civ. App. 2007) (footnote omitted). See also Underwood v. Underwood, 100 So.3d 1115 (Ala. Civ. App. 2012).”

Poole v. Poole, 212 So.3d 244, 248 (Ala. Civ. App. 2015).

In Poole, this court noted that there was evidence presented of the monthly benefit the husband would receive from his pension when he reachéd the age of 55; however, there was no evidence presented as to the present value of the pension. 212 So.3d at 246-47. Therefore, this court concluded that the trial court lacked the discretion to award the wife any portion of the husband’s pension. 212 So. 3d at 247-48.

Similarly, in the present case, there was evidence presented indicating the monthly pension benefit the husband will receive when he reaches the age of 65; however, there was no evidence presented as to the present value of the pension. Therefore, the trial court did not err in declining to divide the husband’s pension. Poole, 212 So.3d at 247-48.

IL

The wife next argues that the trial court’s division of property and its award of alimony are inequitable.

“ ‘ “ ‘[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.’ Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985)).”'
“‘Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005).
(( (
“ ‘ “On appeal, the issues of alimony and property division must be considered together. The trial court’s judgment on those issues will not be reversed absent a finding that the judgment is so unsupported by the evidence as to amount to an abuse of discretion. [Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993).] The property division need not be equal, but it must be equitable. Id. The factors the trial court should consider in dividing the marital property include ‘the ages and health of the parties, the length of their marriage, their station in life and their future prospects,, their standard of living and each party’s potential for maintaining that standard after the divorce,. the value and type of property they own, and the source of their common property.’ Covington v. Covington, 675 So.2d 436, 438 (Ala. Civ. App. 1996).”
“ ‘Courtright v. Courtright, 757 So.2d 453, 456 (Ala. Civ. App. 2000).’
“Weeks v. Weeks, 27 So.3d 526, 529 (Ala. Civ. App. 2008).”

Sullivan v. Sullivan, 211 So.3d 836, 839 (Ala. Civ. App. 2016):

In the present case, at the time of trial the wife was 49 years old and the husband was 48 years old. There was no evidence indicating that either party has any health problems. The parties had been married for 26 years at the time the husband filed his petition for a divorce.

. The husband testified that he is the operations manager for a Texas-based International Paper plant. He testified that his net pay is $10,123.10 per month, after deductions for, among other things, his retirement contributions. He testified that he is also eligible for bonuses. On his form CS-42, see Rule 32, Ala. R. Jud. Admin., the husband indicated that his gross monthly income is $15,569. According to the husband, his expenses are $10,481.01 per month. We note,. however, that he included in his list of expenses $700 per month for college expenses for one of the parties’ children who had reached'the.age of majority and whom he is not required to support. He also included $2,900 for child support and alimony and $1,000 toward the wife’s debts. The husband was actually ordered to pay $1,304 per month in child support and $3,000 per month in alimony for the first 24 months. He was not ordered to pay any of the wife’s debts. .Considering those adjustments, the husband will have $10,185.01 in monthly expenses, including his monthly alimony and child-support obligations.

The wife testified that she had earned a degree in finance and thereafter had been employed earning between $1,000 and $1,200 per month until 1992, when she became pregnant with the first of the parties’ three children. She testified that she had not worked since 1992 until she began substitute teaching after the parties separated. She testified that the monthly expenses for her and the minor child are $4,992.66 per month, and she asked that the husband be required to pay that amount in alimony for 10 years. She testified that she desired to return to college for two years to obtain ah education degree.

At the time of the trial, the parties had sold their marital home and had received $99,637.97 in proceeds. The wife testified that they owned a beach condominium in which they had approximately $66,022 in equity.' The evidence indicated' that the parties had an “Ameri-Trade” account worth $36,439; each' party was awarded one-half of the value of that account. The husband’s 401k account, which had accrued during the marriage, was valued ' at $660,911.69; he also had a separate pension as to which no evidence of value was presented. The husband was awarded 70% of his-:401k account -and the wife was awarded the remaining 30%. The wife had an individual-retirement account worth $42,070.82 -that had accrued ; during the -marriage; she also had a separate individual-retirement' account that had accrued before the marriage that was worth $904.76. The wife was awarded both of her individual-retirement accounts. The -wife was also awarded a Swann Bancshares account and a River Bank and Trust account of unknown values. The husband was awarded a.Wells Fargo account and a Regions Bank account of unknown values. The wife was awarded personal property valued by the husband at $52,726; certain items valued at $5,843 of that total were designated as having been gifts to the wife. The husband was awarded personal property valued at $54,377; certain items valued at $4,325 were designated as having been obtained by gift or inheritance. The wife was ordered to pay debts in the total amount of $7,530.46; the husband was ordered to pay off two .credit cards, one that had no balance and the other that had a balance of an unknown amount.

The wife testified that the husband’s affair with a coworker had been the cause of the breakdown of the marriage; the husband denied having had an affair and testified that the wife’s false accusations had contributed to the breakdown of their marriage. We note that the trial court found the' parties mutually at fault for the demise of the marriage.

With regard to the property division, other than the personal property and the retirement accounts, all of the assets for which we have a value were divided evenly between the parties. With regard to the divisible retirement accounts, the wife was awarded $240,344.33 and the husband was awarded $462,638.18. Considering the marital assets and liabilities for which we have a- value, the husband was awarded $608,689.67, or 62% of the marital property, and the wife was awarded $375,726.35, or 38% of.the marital property.

With regard to alimony, we note that, for the first two years, the awards of alimony and child support alone will cover all but $688.66 of the wife’s and the minor child’s monthly expenses as presented by the'wife. The trial court could have determined that the wife could obtain part-time employment sufficient to cover that deficit. Moreover,' the wife testified that she would be able to obtain a second degree during that two-year period, which, presumably, would increase her earning potential. Thereafter, the wife will receive alimony reduced to $2,000 per month for an additional 24-month period.

-Although the division of property was not equal, considering the division of property and the award of alimony together, see Sullivan, 211 So,3d at 838-39, and considering that the trial court determined that both parties had been at fault in the breakdown of the marriage, see Sullivan, 211 So.3d at 839 (noting that a trial court’s “““findings .on disputed facts are presumed correct”””), we cannot conclude that the trial court exceeded its discretion in its division of property and its award of alimony. Sullivan, 211 So.3d at 840 (noting that “ ‘ “[t]he property division need not be equal, but it must be equitable” ’ ”).

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Rule 59.1, Ala. R. Civ. P., provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration' of the 90-day period. The 90th day following the wife’s filing of her post-judgment motion on December 21, 2015, was Sunday, March 20, 2016. Therefore, the wife’s postjudgment motion was deemed denied on Monday, March 21, 2016. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala. 1983); see also Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala. 2009).


text:
    Matthew GALLANT v. Rebecca GALLANT
    2151010
    Court of Civil Appeals of Alabama.
    February 17, 2017

      Austin Burdick of Burdick Law Firm, Bessemer, for appellant.
   MOORE, Judge.

Matthew Gallant (“the father”) appeals from a judgment of the Elmore Circuit Court (“the trial court”) denying his motion to set aside an earlier judgment of the trial, court for lack of subject-matter jurisdiction. We affirm the trial court’s judgment in part and reverse it in part.

Procedural History

These parties have previously been before this court. See Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014); and Ex parte Gallant, 221 So.3d 1120 (Ala. Civ. App. 2016). The record and materials from both of those appellate proceedings have been incorporated in the present appeal. In Ex parte Gallant, we summarized the procedural background of the case:

“On August 29, 2009, the trial court entered a judgment in case number DR-09-900071, divorcing the father and [the mother]. That judgment, which incorporated a settlement agreement entered into by the parties, awarded the mother sole physical custody of the parties’ five children, subject to the father’s right to visitation, awarded the parties joint legal custody of the children, and ordered the father to pay child support and other financial support to the mother. On May 5, 2012, the father filed a contempt petition, which was assigned case number DR-09-900071.01. He later amended his petition to request that the custody provisions of the divorce judgment be modified to award him sole legal and physical custody of the parties’ children. In that same action, the mother filed a counterclaim seeking modification of the custody and visitation provisions of the divorce judgment, as well as a finding of contempt against the father. On February 28, 2014, the trial court entered a judgment that, among other things, awarded the mother sole legal and physical custody of the children and modified the visitation rights of the father. This court affirmed that judgment. See Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014).
“On June 18, 2014, the father filed a petition alleging that the mother had contemptuously violated various provisions of the 2009 divorce judgment and seeking custody of the children. That petition was assigned case number DR-09-900071.02. On July 28, 2014, the mother filed a counterclaim, which was assigned case number DR-09-900071.03. After a trial, the trial court, on January 19, 2016, denied the father’s petition and the mother’s counterclaim by rendering a single judgment that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03, Neither party appealed from the judgment entered in-those cases.
“On June 21, 2016, the mother filed a contempt and modification complaint under case number DR-900071.03. On August 10, 2016, the father filed a motion to dismiss that contempt and modification complaint. In that motion, the father also moved the trial court to set aside the January 19, 2016, judgment entered in case number DR-09-900071.02 and in case number DR-09-900071.03 for lack of subject-matter jurisdiction. The trial court, on August 12, 2016, denied the father’s motion to dismiss and his motion to set aside by rendering a single order that-was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. The father filed his petition for a writ of mandamus on August 30, 2016.”

221 So.3d at. 1122.

In his petition for a writ of mandamus, the father argued that the trial court had erred in denying his motion to set aside the January 19, 2016, judgment and that the trial court had erred in denying his' motion to dismiss the contempt and modification complaint filed by the mother in case number DR-09-900071.03 on June 21, 2016. 221 So.3d at 1121-22. With regard to the father’s argument regarding his motion to set aside the January 19, 2016, judgment, this court concluded that the father had filed that motion pursuant to Rule 60(b)(4), Ala. R. Civ. P,, and that this court reviews the denial.of a Rule 60(b)(4) motion by appeal and not by a petition for a writ of mandamus; accordingly, we elected to treat that portion of his petition for a writ of mandamus as an appeal that would be addressed separately from the remainder of the father’s petition. We now address the father’s arguments with regard to the appeal of the trial court’s denial of his motion to set. aside the January 19, 2016, judgment.

Standard of Review

“[A]s our supreme court stated in Nationwide Mutual Fire Insurance Co. v. Austin, 34 So.3d 1238, 1242 (Ala. 2009), the opinions of our appellate courts ree-ognize that, when relief is sought under Rule 60(b)(4), [Ala. R. Civ. P.,] a de novo standard of review is applied. ‘This is so because the issue of jurisdiction raised in a Rule 60(b)(4) motion is a purely legal one.’ Id. See, e.g., Duncan v. S.N., 907 So.2d 428, 430 (Ala. 2005) (de novo review applied in determining whether an inmate had been served properly with a summons-and complaint). The proper standard of review of the denial of a Rulé 60(b)(4) motion is as follows:
ít t it standard of review on ap.peal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set'aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted .in a manner inconsistent with due process.’.” ’
“Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala. 2003) (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala. 2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991))); Ex parte N.B., [66 So.3d 249, 254] (Ala. 2010).”

Looney v. State, 60 So.3d 293, 296 (Ala. Civ. App. 2010).

Analysis

The father argues on appeal that the trial court erred in failing to grant his Rule 60(b)(4) motion to set aside its January 19, 2016, judgment because, he says, the trial court lacked subject-matter jurisdiction to enter that judgment.

“ ‘ “[Jjurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” ’ Singleton v. Graham, 716 So.2d 224, 226 (Ala. Civ. App. 1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala. Civ. App. 1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987)). “ ‘[Sjubject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’ ” ’ M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala. Civ. App. 2008) (quoting S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala. Civ. App. 2005), quoting in turn C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala. Civ. App. 2003)).”

Fox v. Arnold, 127 So.3d 417, 421 (Ala. Civ. App. 2012).

In its January 19, 2016, judgment, the trial court denied the relief' requested in the father’s June 18, 2014, contempt'petition, in which he also sought a modification of custody, and the relief requested in the mother’s July 28, 2014, counterclaim for contempt and for a modification of the father’s visitation with the children. The trial court noted in its judgment that the parties had presented ore tenus testimony in support of their requests for relief. It then determined that, although the father’s petition had been styled as a contempt- petition, the father actually had sought custody of the parties’ children as a sanction for the mother’s alleged contempt; thus, the trial court concluded, the father’s petition was actually one seeking to modify custody. The trial court declined to modify custody of the children because, it concluded, the father had not met the custody-modification standard established in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). Additionally, the trial court determined that the evidence presented had failed to support the father's allegations of contempt against the mother, and it denied the mother’s counterclaim for contempt and for a modification of visitation without further explanation.

The father argues on appeal that, at the time the trial court entered its January 19, 2016, judgment, it did not have subject-matter jurisdiction to entertain the claims that had been asserted by the parties. Specifically, he asserts that the trial court lacked jurisdiction under the Uniform Child -Custody Jurisdiction and -Enforcement Act (“the UCCJEA”), Ala. Code 1975, § 30-3B-101 et seq. Section 30-3B-202, Ala. Code 1975, a part of the UC-CJEA, provides:

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

In the present case, the trial court determined in its February 28, 2014, judgment that the mother was living with the children in New York and that the father was living in Maine. Thus, it determined at that time that neither the children,, the children’s parents, nor any person acting as a parent continued to reside in Alabama, Accordingly, the trial court no longer had continuing, exclusive jurisdiction over the child-custody determination pursuant to § 30-3B-202(a)(2). With regard to § 30-3B-202(b), we look to whether the trial court could have made a child-custody determination pursuant to § 30-3B-201, Ala. Code 1975.

Section 30-3B-20i(a) provides:

“(a) Except as otherwise provided in Section 30-3B-204[, Ala. Code 1975], a court of this state has jurisdiction to make an initial child custody determination only if: ■
“(1) This state is the home state of the child on' the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; ■
“(2) A court of another state does not have jurisdiction under subdivision
■ (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate' forum under Section 30-3B-207Í, Ala. Code 1975,] or 30-3B-208[, Ala. Code 1975], and:
“a. The child and the child’s parents,, .or the- child and at least one parent, or a person acting as a parent, have a significant connection with this state, other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s, care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1). or (2) have declined to exercise jurisdiction on the ground that' a court of this' státe is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

Although the trial court’s February 28, 2014, judgment was not entered more than six months before the father filed his June 18, 2014, contempt-petition, it is clear from the record in Gallant v. Gallant, supra, that the mother and the children had resided in New York for more than six months before June- 18, 2014. See § -30-3B-102(7), Ala. Code 1975 (defining a child’s “home state,” in pertinent part, as “[t]he state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding’?). There is no indication, that New York had declined to 'exercise jurisdiction over the parties’ custody- and visitation-modification claims in favor of Alabama as the more appropriate forum. Thus, the trial court did not have jurisdiction pursuant to the UCCJEA to entertain a child-custody proceeding between the parties.

In Ex parte Gallant, this court proceeded to address the father’s petition for a writ of mandamus insofar as the father argued that the trial court had erred in denying his motion to dismiss the mother’s June 21, 2016, contempt and modification petition. 221 So.3d at 1122-23. We observed that the mother’s claims that the father had contemptuously failed to pay child support, extracurricular fees, and attorney’s fees and her claim seeking a modification of the trial court’s previous child-support judgments did. not involve child-custody matters. M. See also Ala. Code 1975, § 30-3B-102(3) (“The term [child-custody determination] does not include an order relating to child support or other monetary obligation of an individual.”). Accordingly, we denied the father’s petition with regard to those claims. Id. In its January 19, 2016, judgment, the trial court addressed issues speaking to the custody and visitation orders regarding the parties’ children, but it also addressed issues speaking to the parties’ claims for contempt related to the trial court’s previous orders. See 221 So.3d at 1123. Like in Ex parte Gallant, we conclude that the trial court could exercise subject-matter jurisdiction over contempt proceedings to enforce its prior child-custody determination. Id. See also Ex parte Stouffer, 214 So.3d 1192 (Ala. Civ. App. 2016). Accordingly, to the extent the trial court’s January' 19, 2016, judgment addressed the claims of the mother and the father speaking to the other party’s contempt resulting from the trial court’s previous orders, the trial court did not err in denying the father’s Rule 60(b)(4) motion. Thus, we affirm the trial court’s judgment denying the father’s motion to set aside its January 19, 2016, judgment with regard to those claims.

Insofar as the trial court addressed the claims of the parties that sought a modification of custody or visitation with regard to the parties’ children in its January 19, 2016, judgment, that judgment is void for lack of subject-matter jurisdiction. Thus, the trial court erred in denying the father’s Rule 60(b)(4) motion with regard to those claims.

Based on the foregoing, we affirm that portion of the trial court’s judgment on the father’s Rule 60(b)(4) motion to the extent that it spoke to the parties’ contempt claims and other claims that did not involve child-custody matters. We reverse the trial court’s judgment denying the father’s Rule 60(b)(4) motion to the extent that it spoke to those claims seeking a modification of custody or visitation, and we remand the case to the trial court for entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Although the father refers to his arguments as speaking to the trial court’s failure to transfer venue, or its failure to set aside its judgment for want of personal jurisdiction, we note that the father does not support those arguments, arguing instead that the trial court lacked subject-matter jurisdiction. Accordingly, we limit our discussion to the issue raised by the father regarding the trial court's subject-matter jurisdiction to enter its January 19, 2016, judgment.