author: MOORE, Judge.

text:
    Deborah BARKER, Howard Thomas, Tarisha Thomas, Johnny F. Morgan, and Allison S. Morgan v. Joe N. BENNETT
    2150501
    Court of Civil Appeals of Alabama.
    November 10, 2016
    Certiorari Denied January 13, 2017 Alabama Supreme Court 1160143

      Shaun L. Quinlan, Anniston, for appellants.
    Ronald L. Allen, Anniston, for appellee.
   On Rehearing Ex Mero Mota

MOORE, Judge.

This court’s opinion of September 23, 2016, is withdrawn, and the following is substituted therefor.

Deborah Barker, Howard Thomas, Tari-sha Thomas, Johnny F. Morgan, and Allison S. Morgan (hereinafter referred to collectively as “the defendants”) appeal from a judgment entered by the Calhoun Circuit Court (“the trial court”) finding that Joe N. Bennett has a prescriptive easement over a certain roadway (“the roadway”) that passes through the defendants’ respective properties. We affirm the trial court’s judgment.

Procedural History

On July 31, 2013, Bennett filed complaint against the defendants, Donald L. Barker, and The Bank of New York Trust Company, requesting that the trial court declare that he had established an easement by prescription over the roadway. The defendants subsequently answered the complaint.

After a trial, the trial court entered an order on February 1, 2016, stating:

“The roadway leading to [Bennett’s] property which is the subject matter of this case was clearly marked and delineated in US Geological Survey Maps since at least 1954 and clearly remains today. The roadway remains the only means of ingress and egress to [Bennett’s] property to a public road.
“The property owned by [Bennett], which is served by the roadway, was originally purchased by [Bennett’s] father J.O. Bennett in July, 1974 and was used by him and his children continuing up to the present date. J.O. Bennett subsequently sold the property served by the roadway to [Bennett] on February 12, 1993. The roadway continued to be used on a regular basis by ... Bennett and his family. In the early 1990’s a subdivision was built between the then existing public road and [Bennett’s] property. ... [Barker] purchased the property on each side of the remaining roadway leading to the Bennett property beginning with a partial purchase in July, 2005. At the time of trial she owned both sides' of the remaining roadway which is the subject matter of this case. The evidence indicated that the roadway was clearly in existence at the time [Barker] purchased her property and it was known to her that the roadway was used by the Bennett family.
“The evidence clearly established that J.O. Bennett and his family utilized the roadway in question for nineteen (19) years and then subsequently by his son for an additionally twenty one (21) years in defiance of clearly visible posted signs. The Bennett family did not seek, ask or receive permission to utilize the roadway by the adjacent land owners for more than the statutory period of twenty (20) years. The catalyst behind the litigation was the closing of the roadway by [Barker] subsequent to the purchase of her property by her placement of a gate across the roadway which blocked [Bennett’s] access to his property.
“Although the area is wooded in nature, [Bennett] presented clear and convincing evidence to overcome the presumption of permissive use by their open, [continuous], uninterrupted and hostile utilization of the roadway.
“It is therefore ADJUDGED, ORDERED and DECREED that [Bennett] has established a Prescriptive Easement for ingress and egress along the roadway across the property of [Barker]. [Bennett] at his expense shall submit to the Court within sixty (60) days of this Order a survey of the existing roadway to be incorporated into this Order which shall be served upon [Barker]. [Barker] shall then be given fifteen (15) days to interpose an objection to the accuracy of the survey.”

On February 26, 2016, the trial court entered an order incorporating the survey filed by Bennett,

On March 14, 2016, Barker, the Thom-ases, and the Morgans filed their notice of appeal to this court. On May- 4, 2016, this court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court subsequently transferred the appeal back to this court, pursuant to Ala. Code 1975, § 12-2-7.

This court remanded the cause to the trial court for the trial court to clarify whether the prescriptive easement that the trial court granted to Bennett traversed the property of the Thomases and the Morgans and to dispose of the claim against The Bank of New York Trust Company. On August 26, 2016, the trial court entered an order clarifying that the prescriptive easement that the trial court had granted to Bennett traversed the property of the Thomases and the Morgans and entering a default judgment against The Bank óf New York Trust Company.

Standard of Review
“ ‘[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ”

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000)(quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala. 1977)).

Discussion

I. Prescriptive Easement

On appeal, the defendants argue that the trial court exceeded its discretion in determining that the elements for establishing an easement by prescription had been met by Bennett.

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

Bull v. Salsman, 435 So.2d 27, 29 (Ala. 1983).

A. Adverse Use

The defendants first argue that the trial court erred in determining that Bennett had overcome the presumption that his use of the roadway was permissive and that, therefore, he had failed to show that his use was adverse to the defendants. The defendants cite Osborn v. Champion International Corp., 892 So.2d 882, 887 (Ala. 2004), in which our supreme court noted that there is a .presumption of permissive use when the property at issue is unimproved woodland and that “affirmative evidence of adverse use, under a claim of right,” is- required to establish an easement by prescription. In the -present case, the evidence indicated that the roadway is, for the most part, on unimproved and wooded land. ■

In Ex parte Gilley, 55 So.3d 242 (Ala. 2010), our supreme court noted that this court had determined that the trial court had erred in awarding the Gilleys a prescriptive easement over a certain roadway because we concluded that there had been no evidence introduced to overcome the presumption of permissive use. Our supreme court noted that the evidence in Gilley indicated “that the property ha[d] been used as the only ingress and egress to the Gilleys’ property for more than 20 years, either by the Gilleys themselves, or by their predecessor in title,” and that the Gilleys and their predecessor in title had done so “without express permission” until “Aman erected a fence preventing the Gilleys from using the disputed property.” 55 So.3d at 246. There was also evidence indicating that the Gilleys had maintained the roadway at issue. 55 So.3d at 247. Our supreme court reversed this court’s decision, concluding that the Gilleys had presented sufficient evidence to overcome the presumption of permissive use. 55 So.3d at 247-48.

Similarly, in the present case, the evidence indicated that Bennett and J.O. Bennett, Bennett’s predecessor in title, had used the roadway for more than 20 years without express permission until Barker erected a gate across the roadway. Bennett testified .that he had used the roadway so much that it was “rutted out.” There was also evidence indicating that Bennett had cut branches from along the roadway when they had impeded his travel. Bennett also testified that he had used the roadway continuously despite posted signs warning against trespassing on the roadway. Based on the foregoing, we. cannot conclude that the trial court exceeded its discretion in determining that Bennett had overcome the presumption of permissive use in this case.

The defendants also specifically argue that it was undisputed that Bennett had obtained the permission of Cecil Martin, Barker’s predecessor in title,, to access Bennett’s property. We note, however, that there was no evidence presented indicating that Bennett had obtained Martin’s or anyone else’s permission to use the roadway, only that Martin had given Bennett permission to park on Martin’s property that was located adjacent to the roadway. We conclude that the fact that Bennett had received permission to use property adjacent to the roadway was immaterial regarding whether Bennett had permission to use the roadway.'

The defendants also argue that Barker had permitted Bennett to use the roadway by unlocking her gate for him so that he could access the roadway. We note, however, that Barker did not erect the gate until 2009. By that time, Bennett and J.O. Bennett, Bennett’s predecessor in title, had used the roadway for more than 20 years. The defendants do not cite any caselaw indicating that the interactions between Barker and Bennett subsequent to the 20-year period having been met could defeat Bennett’s claim to a prescriptive easement, Therefore, we do not find the trial court in error on this point.

B.Claim of Right

The defendants next argue that Bennett’s conduct shows that fie was not using their property under a claim of right and that his use was not hostile, Specifically, they argue that Bennett admitted that he was -not claiming that. he owned the roadway. We note, however, that in Bull v. Salsman, 435 So.2d 27 (Ala. 1983), our supreme court held that the fact that the persons claiming a prescriptive .easement had used a certain road despite the erection of a gate evidenced, that they were using it under a claim of right. 435 So.2d at 30. Similarly, in the- present case, Bennett testified .that, despite there- being posted signs warning against trespassing, he-had used the roadway so much that the road was “rutted out.” Therefore, we conclude that the trial court did pot err in determining that Bennett had used the roadway under a claim of right.

C.Exclusivity

The defendants next argue that, because there was evidence indicating that others had used the roadway, Bennett’s use of the roadway was not exclusive. We note, however, that for the element of exclusivity to be met, “ ‘it is not necessary that [Bennett] should have been the only one who used or was entitled to use [the roadway], so long as he used it under a claim of right independently of others.’” Belcher v. Belcher, 284 Ala. 254, 257, 224 So.2d 613, 615 (1969) (quoting 4 Tiffany Real Property § 1199 (3d ed.)). We conclude that the actions of Bennett and his father in using 'the roadway as their exclusive means of ingress and egress for over 20 years, in violation of posted warning signs, so much that the road was “rutted out,” as well as Bennett’s cutting back branches along the roadway that impeded his passage, were sufficient -to show that Bennett and his father- had used the roadway “ ‘under a claim of right independently •of others.’ ” Id. Therefore, we find no error on this point.

D.Knowledge of Owner

The defendants next argue that Bennett failed to assert dominion and control over the roadway so as to place them on notice of his claim. As noted previously, a person claiming to have a prescriptive easement must show that he or she used the property at issue “with actual or presumptive knowledge of the owner [of the property].” Bull, 435 So.2d at 29. In the present case, the evidence' indicated that the roadway was clearly visible from Barker’s house, which had previously been owned by Cecil Martin, and that Barker had seen Bennett using the roadway. Also, as previously noted, Bennett also testified that he and his family had used the roadway so much that it had “rutted out” and that he had cut limbs from along the roadway that had impeded his travel. Based on those facts, we cannot conclude that the trial court erred in determining that the defendants had at least presumptive knowledge of Bennett’s claim.

II. Easement by- Necessity

The defendants also argue that Bennett failed to prove that he was entitled to an easement by necessity and that Bennett was awarded, in effect, an easement by necessity without just compensation. We note, however, that Bennett did not seek an easement by necessity, and we have concluded that the trial court did not err in awarding Bennett an easement by prescription. Therefore, we conclude that the defendants’ argument on this point is without merit.

III. Admission of Evidence

Finally, the defendants argue that the trial court erred in admitting a 1954 United States Geological Survey Map for the purpose of showing that the roadway existed in 1954. We note, however, that there was undisputed evidence indicating that the roadway had existed and that it had been used by Bennett and his father for more than the 20-year statutory period. Whether the road had existed as far back as 1954 was not material to whether Bennett had established a prescriptive easement. Therefore, we conclude that any error in the admission of the map was harmless. Rule 45, Ala. R. App. P.

Conclusion

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

ON REHEARING EX MERO MOTU: OPINION OF SEPTEMBER 23, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Donald L. Barker subsequently died before the complaint was served on him and, thus, was not a party to the case below and is not a party on appeal. The Bank of New York Trust Company was named as a defendant based on Bennett’s assertion that it was an indispensable party because it had instituted foreclosure proceedings against the Thomases. The Bank of New York Trust Company was served with the complaint, but it did not file an answer.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    ALABAMA DEPARTMENT OF REVENUE v. U.S. XPRESS LEASING, INC., et al.
    2150547
    Court of Civil Appeals of Alabama.
    December 2, 2016
    Rehearing Denied January 20, 2017

      Hilary Yother Parks, asst, counsel and asst. atty. gen,, Alabama Department of Revenue, for appellant.
    William B. Sellers and Jacob C. Harper IV of Balch & Bingham LLP, Montgomery, for appellee, U.S. Xpress Leasing, Inc.
   DONALDSON, Judge.

The Alabama Department of Revenue (“the Department”) appeals from a summary judgment of the Montgomery Circuit Court (“the trial court”) holding that U.S. Xpress Leasing, Inc. (“USXL”), a Tennessee corporation, is subject to Alabama’s lease tax under § 40-12-222(a), Ala. Code 1975, and, therefore, is. exempt from being assessed Alabama’s sales and use tax on certain, purchases it made in Alabama from Bridgestone America, Inc., Michelin North America, Inc., TA Operating Corporation, TRD, Inc., and Four Star Freightliner, Inc. (hereinafter referred to collectively, as “the joint petitioners”). See § 40-23-l(a)(9), Ala. Code 1975. The trial court’s judgment reversed a decision of the Alabama Tax Tribunal (“the tax tribunal”), which had denied USXL’s and the. joint petitioners’ petitions to the, Department seeking a refund of the sales and use tax they had paid to the State of Alabama related to USXL’s purchases from .the joint petitioners. Under the standard of review we are required to apply in this ease, we must reverse the trial court’s judgment.

Background

The following findings of fact made by the tax tribunal are not in dispute:

“[ÜSXL] is based in Chattanooga, Tennessee, and is in the business of leasing truck tractors and trailers to various lessees. [USXL] leased truck tractors and trailers to a related company, U.S. Xpress, Inc., during the periods in issue pursuant to a master lease agreement executed in Chattanooga in 2002.
“[USXL] purchased the tractors and trailers that it leased to U.S. Xpress from various truck dealers outside of Alabama. The dealers delivered the tractors and trailers to terminals operated by [USXL] outside of Alabama. [USXL] prepared the tractors and trailers for use, and U.S. Xpress drivers thereafter picked up and used the vehicles in Interstate commerce throughout the country, including a substantial number of miles traveled in Alabama.
“The master lease agreement required [USXL] to keep the vehicles in good working order. Consequently, if a leased vehicle needed new tires, or repairs while in Alabama, [ÚSXL] arranged for the work to be done at a garage or other facility in Alabama. It also purchased the tires, repair parts, and/or the other tangible property needed to perform the work from the joint petitioners/sellers. It is undisputed that the joint petitioners/sellers delivered the tires,. repair parts, etc., to [USXL] in Alabama, and consequently, that the sales were closed in Alabama.
“The joint petitioners , invoiced [USXL] for the items purchased, including Alabama sales tax. [USXL] paid the invoiced amounts and ... has now petitioned with the joint petitioners/sellers for refunds of the sales tax paid.
“[USXL] did not have an Alabama sales tax license during the periods in issue, and also was not licensed to collect and remit Alabama lease tax to the Department during the periods. [USXL] accordingly did not file Alabama lease tax returns or remit Alabama lease tax to the Department on its tractor and trailer rentals during those periods.”

In 2012, USXL and the joint petitioners filed petitions with the Department pursuant to § 40-2A-7(c)(l), Ala. Code 1975, requesting a refund of the sales and use tax that USXL had paid as a result of the sales of the tires, repair parts, and other goods that USXL had purchased from the joint petitioners in Alabama between 2008 and 2011 on the basis that those purchases were exempt from the sales and use tax under § 40-23-l(a)(9). They argued that, because USXL was engaged in the business of leasing within Alabama, the transactions between USXL and the joint petitioners were subject to Alabama’s lease tax under § 40-12-222(a) and, consequently, exempt from the sales and use tax. In 2013, the Department denied USXL’s and the joint petitioners’ petitions for a refund.

On October 13, 2014, USXL and the joint petitioners filed notices of appeal to the tax tribunal from the Department’s denial of the petitions for a refund. See § 40-2A-7(c)(5)a., Ala. Code 1975 (providing that “[a] taxpayer may appeal from the denial in whole or in part of a petition for refund by filing a notice of appeal with the Alabama Tax Tribunal within two years from the date the petition is denied .... ”). The tax tribunal entered an order on December 3, 2014, granting the Department’s motion to consolidate the matters before the tax tribunal. The tax tribunal held a hearing on the matters on April 9, 2015. Following the hearing, the tax tribunal entered a written order- concluding that USXL was not subject to Alabama’s lease tax and, therefore, that USXL’s purchases of the tires, repair parts, and other goods from the joint petitioners were subject to the sales and use tax. The tax tribunal concluded that the use of the leased property within Alabama by U.S. Express, Inc. (“U.S. Express”), did not make USXL’s leasing of the vehicles to U.S. Xpress subject to Alabama’s lease tax. The tax tribunal stated in its order:

“[USXL], as lessor, and U.S. Xpress, as lessee, are both located in Tennessee. The master lease agreement was executed in Tennessee. The tractors and trailers were delivered by the dealers to [USXL] outside of Alabama and picked up by the U.S. Xpress drivers outside of Alabama.
“[USXL] owned no property, had no employees, and otherwise had no ties to Alabama other than the fact that U.S. Xpress used the leased tractors and trailers in Alabama. Finally, [USXL] did not lease tractors, trailers, or any other tangible personal property to any other lessees in Alabama during the subject periods. Given those facts, [USXL] clearly was not in the business of leasing the tractors and trailers or any other tangible personal property in Alabama during the periods in issue in transactions subject to the Alabama lease tax.
“When a lessor leases tangible personal property to a lessee outside of Alabama, as in this case, and the lessee uses the property in various states, including Alabama, again as in this case, the lessor is not subject to Alabama lease tax on the lease proceeds. This is confirmed by Reg. 810-6-5-09(10), which specifies that ‘[w]here the lessor leases a truck, truck [trailer], or semitrailer to a motor carrier outside this state, the receipts therefrom would not be subject to the (lease) tax although the truck, truck trailer, or semitrailer may occasionally travel in this state in interstate commerce.’
“The'above regulation is directly on point in this case. [USXL] leased the tractors and trailers to the lessee, U.S. Xpress, outside of Alabama. The fact that U.S. Xpress subsequently used the property in Alabama did not make [USXL’s] leasing of the vehicles to U.S. Xpress subject to Alabama lease tax.”

Accordingly, the tax tribunal denied USXL and the joint petitioners’ request for a refund of the sales and use tax that had been paid on the purchases made between 2008 and 2011.

On July 14, 2015, USXL' and the joint petitioners filed a notice of appeal of the tax tribunal’s decision to the trial court pursuant to § 40-2B-2(m), Ala. Code 1975. On January 15, 2016, USXL and the joint petitioners filed a motion for a summary judgment. On January 19, 2016, the Department filed a cross-motion for a summary judgment. On February 16, 2016, the trial court held a hearing on the motions for a summary judgment and heard arguments of counsel for the parties. The trial court entered a judgment in favor of USXL and the joint petitioners on February 25, 2016, stating, in pertinent part, as follows:

“The Court having considered the pleadings filed in this matter, the briefs filed by both parties and the arguments of counsel, this Court finds that as a matter of law, a taxpayer is subject to lease tax in Alabama when tangible personal property is used or possessed in Alabama. The undisputed factual record in this case is that [USXL] leased trucks and trailers that not only traveled through Alabama, but stopped at terminals in Alabama for repairs. These actions subjected [USXL] to Alabama’s leasing tax imposed by Code of Ala. 1975, § 40-12-222. In addition, [USXL] paid sales tax for tires and repair parts purchased from Alabama vendors. However, as [USXL] was subject to lease tax, its purchases of tires and repair parts were exempt from sales tax under Code of Ala. 1975, § 40-23-l(a)(9)j.”

The trial court ultimately ordered the Department to refund the amount of sales taxes paid by USXL and the joint petitioners during the period in question. The Department filed a notice of appeal to this court on March 31, 2016. We have jurisdiction under § 12-3-10, Ala. Code 1975. The Department and USXL have filed briefs on appeal. The joint petitioners have not filed a brief, i

Standard of Review

“The standard of appellate review to be applied by the circuit courts and by this court in reviewing the decisions of administrative agencies is the same. See Alabama Dep’t of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 384 (Ala. Civ. App. 2008). That prevailing standard is deferential toward the decision of the agency:
“ ‘Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers.... Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.’
“Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala. Civ. App. 1989). Also, the Alabama Administrative Procedure Act provides that,
“‘[e]xcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.’
“Ala. Code 1975, § 41-22-20(k). ‘Neither this court nor the trial court may substitute its judgment for that of the administrative agency.’ Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala. Civ. App. 1993). ‘This holds true even in cases, where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala. Civ. App. 1989).
“Further, this court does not apply a presumption of correctness to a circuit court’s judgment entered on review of an administrative agency’s decision ‘because the circuit court is in no better position to review an agency’s decision than this court.’ Alabama Bd. of Nursing v. Peterson, 976 So.2d 1028, 1033 (Ala. Civ. App. 2007). Finally, in order for the [agency’s] decision ... to warrant affir-mance, that decision would have to be supported by ‘substantial evidence,’ which in an administrative context is ‘relevant evidence that a reasonable mind would view as sufficient to support the determination.’ Ex parte Personnel Bd. of Jefferson County, 648 So.2d 593, 594 (Ala. Civ. App. 1994).”

Alabama State Pers. Bd. v. Dueitt, 50 So.3d 480, 482 (Ala. Civ. App. 2010).

Furthermore, because the trial court granted USXL’s motion for a summary judgment in this case,

“[t]he circuit court’s judgment ... is accorded no presumption of correctness.
“‘“In reviewing the disposition of a motion for summary judgment, ‘[an appellate court] utilize[s] the ■same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala. 1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence' creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). Evidence is ‘substantial’ if it is 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.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject.to the caveat that [an appellate court] must réview the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the mov-ant, Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala. 1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990).”
“ ‘Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997). It has also been observed that “where the facts are not in dispute and we are presented with pure questions of law, .[the] standard of review is de novo.” State v. American Tobacco Co., 772 So.2d 417, 419 (Ala. 2000)(citing Ex parte Graham, 702 So.2d 1215 (Ala. 1997), and Beavers v. County of Walker, 645 So.2d 1365 (Ala. 1994)).’
“Carlisle v. Golden Rod Feed Mill, 883 So.2d 710, 711-12 (Ala. Civ. App. 2003).”

State Dep’t of Revenue v. Union Tank Car Co., 974 So.2d 1024, 1026-27 (Ala. Civ. App. 2007).

“In cases of doubt, tax statutes are to be construed in favor of the taxpayer. [State v. Harrison, 386 So.2d [460] at 461 [(Ala. Civ. App. 1980)]. Although the interpretation of a statute by an administrative agency that is charged with enforcement of the statute is persuasive, Alabama Dep’t of Revenue v. Jim Beam Brands Co., 11 So.3d 858, 866 (Ala. Civ. App. 2008), that interpretation is not binding on this court. Britnell v. Alabama State Bd. of Educ., 386 So.2d 1148, 1149 (Ala. Civ. App. 1980).”

State Dep’t of Revenue v. Omni Studio, LLC, 222 So. 3d 367, 375 (Ala. Civ. App. 2016).

Discussion

The determinative question is whether TJSXL is exempt from paying the sales and use tax on the tires, repair parts, and other goods that it had purchased from the joint petitioners between 2008 and 2011 on the basis that USXL is subject to lease tax under Alabama law.

“The statutes governing Alabama’s lease taxes, §§ 40-12-220 through -227, Ala. Code 1975, were enacted in 1971. Lease taxes are part of a broad category of taxes often referred to as ‘privilege taxes’ or ‘license taxes.’ See, §§ 40-12-1 through -425. For lease tax purposes, a lease is defined as ‘[a] transaction whereunder the person who owns or controls the possession of tangible .personal property permits another person to have the possession or use thereof for a consideration and for the duration of a definite or indefinite period of time without transfer of the title to such property.’ § 40-12-220(5). Lease taxes are due monthly in varying percentages of gross proceeds derived by the lessor from, the lease, depending upon the items leased. §§ 40-12-222 and -224; see also §. 40— 23-7.”

Kauloosa Truck Leasing v. State Dep’t of Revenue, 661 So.2d 749, 750 (Ala. Civ. App. 1994).

Pursuant to § 40-12-222(a), in order for the lease tax to be assessed against a taxpayer, the-taxpayer must be “engaging or -continuing within this state in the business of leasing or renting tangible personal property.” Section 40-23-2, Ala. Code 1975, imposes a tax on sales of property occurring in Alabama. Section 40-23-l(a)(10), Ala. Code 1975, defines the terms “sale at retail” or “retail sale,” in pertinent part, as “[a]ll sales of tangible personal property except those ,.. defined [in § 40—23—1(a)(9)j.] as wholesale sales.” Section 40—23—1(a) (9)j. defines the . terms “wholesale sale” or “sale at wholesale” as

“[a] sale of tangible personal property to any person engaging in the business of leasing, or renting tangible personal property to others, if tangible personal property is purchased for the purpose of leasing or renting it to others under a transaction subject to the privilege or license tax levied in Article 4 of Chapter 12 of this title against any person engaging in the business of leasing or renting tangible personal property to others.”

Accordingly, under the definitions in § 40-23-l(a), taxpayers that are subject to the lease tax are exempt from paying the sales tax on goods purchased to repair or maintain leased property. Alabama Admin. Code (Dep’t of Revenue), Rule 810-6-5-.09(12), further provides that

“[t]he sale of tangible personal property to any person engaged in the business of leasing or renting the same tangible personal property to others in transactions subject to the rental tax is a wholesale sale and not subject to sales or use tax. This exclusion from sales and use tax also applies to replacement and repair parts purchased by the lessor for use in repairing tangible personal property leased or rented by the lessor. Where the lessor sells tangible personal property previously purchased at wholesale for the purpose of renting or leasing the property, regardless of whether the sale is to the person to whom the property had been leased or rented or to some other person, sales tax is due on the gross receipts derived from the sale.”

USXL argues that the taxable event that triggers assessment of the lease tax is the use and possession of leased tangible personal property in Alabama by the lessee during the lease period. USXL contends that, although its master lease with U.S. Xpress was entered into in Tennessee, it was engaged in the business of leasing tangible personal property in Alabama because U.S. Xpress operated the leased tractors and trailers within Alabama's borders. USXL contends that it should have been exempt from paying the sales tax on the tires, repair parts, and other goods it purchased from the joint petitioners pursuant to the exemption set forth in § 40-23-l(a)(9)j. USXL further contends that, pursuant to Rule 810-6-5.09(12), the purchases in Alabama of replacement and repair parts for the tractors and the trailers are exempt from the sales tax. ■

The Department argues that the phrase “engaging or continuing within this state in the business of leasing or renting tangible personal property” that appears in § 40-12-222(a) requires assessment of the lease tax only when the leased tangible property is used or possessed within Alabama’s borders.

Therefore, applying the rules of statutory construction, we examine the meaning of the phrase “engaging or continuing within this state in the business of leasing or renting tangible personal property.”

“ ‘[Principles of statutory construction instruct [a court] to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.’ Ex parte Pratt, 815 So.2d 532, 535 (Ala. 2001)(citing Ex parte Alabama Great Southern R.R. & Norfolk Southern Ry., 788 So.2d 886, 889 (Ala. 2000), quoting in turn Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala. 1998)).
“ “We have said that a statute is ambiguous when it is of doubtful meaning. Ex parte Alabama Public Service Commission, 268 Ala. 322, 106 So.2d 158 (195[8]). Ambiguity in this sense has been defined as whether “A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses .... ” State ex rel. Neelen v. Lucas, 24 Wis.2d 262, 267, 128 N.W.2d 425, 428 (1964).’
“S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905, 907 (Ala. 1976).
“The principles of statutory construction are summarized in State Farm Mutual Automobile Insurance Co. v. Motley, 909 So.2d 806 (Ala. 2005):
. [T]he rule is well recog--nized that in the construction of a statute, the legislative intent is to be determined from a. consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found. The intent so deduced from the whole will prevail over that of a particular part considered separately.”
“ ‘Blair v. Greene, 246 Ala. 28, 30, 18 So.2d 688, 689 (1944).
“ ‘ “It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of the Legislature, as determined primarily from the language of the statute itself. Beavers v. County of Walker, 645 So.2d 1365, 1376 (Ala. 1994) (citing [McCall v.] McCall, 596 So.2d 2 (Ala. Civ. App. 199[1])); Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301 (Ala. 1991). Also, our rules of statutory construction direct us to look at the statute as a whole to determine the meaning of certain language that is, when viewed in isolation, susceptible to multiple reasonable interpretations. McRae v. Security Pac. Hous. Servs., Inc., 628 So.2d 429 (Ala. 1993).”
“ ‘Ex parte Alfa Fin. Corp., 762 So.2d 850, 853 (Ala. 1999).
“ ‘ “ ‘When interpreting a statute, [a court] must read the statute as a whole because statutory language depends on context; [a court] will presume that the Legislature knew the meaning of words it used when it enacted the statute.’ ”
“ ‘Ex parte USX Corp., 881 So.2d 437, 442 (Ala. 2003)(quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala. 2003)).’
909 So.2d at 813-14.
“ ‘[I]f the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another.’ Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala. 1991).”

Hooks v. Coastal Stone Works, Inc., 164 So.3d 592, 597-98 (Ala. Civ. App. 2014).

Section 40-12-220, Ala. Code 1975, contains definitions of many terms that are used in that part of Alabama’s tax code regarding the lease tax. The term “business” is defined in § 40-12-220(1) as “[a]ll activities engaged in, or caused to be engaged in, by any person with the object of gain, profit, benefit, or advantage, either direct or indirect to such person.” Section 40-12-220(5) defines the terms “leasing” or “rental” in pertinent part as “[a] transaction whereunder the person who owns or controls the possession of tangible personal property permits another person to have the possession or use thereof for a consideration and for the duration of a definite or indefinite period of time without transfer of the title to, such property.” The term “tangible personal property” is defined as “[p]ersonal property which may be seen, weighed, measured, felt, or touched, or .is. in any other manner perceptible to the senses. The term ‘tangible personal property1 shall not include stocks, bonds, notes, insurance or other contracts, or securities.” § 40-12-220(8). The terms “engaging” or “continuing” and the phrase “within this state” are not specifically defined in § 40-12-220. Therefore, we examine decisions of this' court and of the supreme court interpreting § 40-12-222 and/or similar provisions of Alabama’s tax code for guidance in defining those terms.

In Union Tank Car Co., supra, this court examined whether Union Tank Car Co. (“UTCC”), a Delaware corporation with its corporate headquarters located in Illinois, derived income from sources within Alabama that subjected it to an assessment of Alabama’s income tax. UTCC leased specialty railcars to customers throughout the United States. Other than leasing railcars to one Alabama entity, UTCC had no ties to Alabama. UTCC was not subject to the franchise tax, see §§ 40-21-52 and 40-8-1(b)(5), Ala. Code 1975, but UTCC paid the Department an Alabama license tax “based on the market value of the railcars and the number'of miles that the railcars traveled in Alabama.” 974 So.2d at 1025, Because UTCC’s leased railcars had been used by its lessees to transport materials within and outside Alabama, the Department determined that UTCC’s lease income was subject to Alabama income-tax assessment under § 40—IS—2(a)(3), Ala. Code 1975, which provides for the levying of a tax on income against “[ejvery corporation doing business in Alabama or deriving income from sources within Alabama, including income from property located in Alabama.” (Emphasis added.) UTCC appealed the assessment to the Department’s administrative-law division, which found- in favor of-UTCC. Subsequently, on appeal, the Montgomery Circuit Court entered a summary judgment in favor of UTCC.. On appeal by' the Department to this court, this court held that “the railcars were used to transport material within and outside-Alabama and did not remain solely intrastate during their use.” 974 So.2d at 1029. Accordingly, this court concluded that UTCC did not derive income from sources within Alabama. Id.

In Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892 (1973), the Department assessed a lease tax against Paramount Television Sales, Inc. (“Paramount”), a California corporation, pursuant to § 629(22) of Title 51, Code of Alabama 1940 (Recomp. 1958), the predecessor statute, to § 40-12-222(a), Paramount entered into lease contracts with television stations located in Alabama whereby Paramount shipped films and videotapes to the television stations for broadcast or telecast. The circuit court found that Paramount’was not subject to a lease-tax assessment on the proceeds from the transactions. On appeal, our supreme court concluded that 'the films that Paramount leased were tangible personal property and that Paramount was engaged in the business of leasing or renting tangible personal property in Alabama. That court stated that “[a]n article which has been transported in interstate commerce having arrived at its destination and there held for use or disposal becomes subject to the state’s taxing and police power.” Boswell, 291 Ala. at 494, 282 So.2d at 894-95 (citing Alexander Film Co. v. State, 253 Ala. 439, 44 So.2d 581 (1960)). The court concluded that “[w]e think that transferring possession of the films to the local stations and renting them for use by the-stations-constituted a local act which was the taxable event occurring wholly in Alabama after the completion of its interstate journey and before the return of the property in interstate commerce.” Boswell, 291 Ala. at 495, 282 So.2d at 896.

In Lepeska Leasing Corp. v. State Department of Revenue, 395 So.2d 82 (Ala. Civ. App. 1980), an Illinois corporation leased an X-ray machine to a hospital located in Mobile. The Department assessed. a: use tax against the taxpayer on the transaction pursuant to § 40-23-60 et seq., Ala. Code 1975. The circuit court affirmed the assessment. On appeal, this court held that the corporation could not be assessed a use tax because, pursuant to § 40-12-222(a), “persons. engaged in the business of leasing or renting tangible personal property to others in the State of Alabama are subject to a 4% tax on the gross proceeds derived from leases or rentals.” Lepeska Leasing Corp., 395 So.2d at 84 (emphasis added). This court also noted that § 40—23—60(4)(i), Ala. .Code 1975, which defines the terms “wholesale sale” or “sale at wholesale” substantially the same as those terms are defined in § 40-23-l(a)(9)j., “excludes from the coverage of the use tax purchases made by lessors who are subject to the lease tax under § 40-12-222.” Id. Applying the rules of statutory construction, this court determined that the corporation was “a person engaged in the business of leasing or renting tangible personal property.” Accordingly, this court held that the corporation was subject to the lease tax imposed by § 40-12-222 and, therefore, that the transaction was excluded from the application of the use tax. Id. at 85.

In an administrative decision, the Department’s administrative-law division stated that

“[wjhether a lessor is engaged in the business of leasing must be decided on the facts of each case. Factors to be considered are whether the lessor intended to engage in leasing on a regular, continuous basis, the number and frequency of the leases, and did the lessor hold itself out or advertise as being in the leasing business.”

State Department of Revenue v. U.S. Die Casting, Op. Of Dep’t of Revenue, Admin. Law Div., Docket No. L. 91-208 (Nov. 24, 1993)(Final Order)(citing Robert L. Simpson, Annotation, Sales and Use Taxes: Exemption of Casual, Isolated, or Occasional Sales, 42 A.L.R.3d 292 (1972)). See also State v. GM & O Land Co., 49 Ala.App. 707, 710, 275 So.2d 687, 689 (1973)(defining the phrase “engaging in the business of leasing or renting tangible personal property” as it appeared in § 629(22) of Title 51, Code of Alabama 1940 (Recomp, 1958), the precursor statute to § 40-12-220(a), as “a continuous and regular course of dealing, rather than an irregular or isolated transaction”).

In the present case, it is uncontested that USXL is engaged in the business of leasing; Through the master lease with U.S. Xpress, USXL entered into a transaction where it permits U.S. Xpress to have possession or use of its tractors and trailers for a specified period and without transferring title to the property for the purposes of gain, profit, benefit, or advantage to USXL. § 40-12-220(1), (5), and (8). We cannot conclude, however, that USXL engages or continues in the business of leasing of its tractors and trailers within Alabama as required by § 40-12-222(a). USXL is a Tennessee corporation headquartered in Chattanooga. U.S. Xpress, also a Tennessee corporation, leases tractors and trailers from USXL pursuant to the master lease that the parties executed in Tennessee, thus establishing that USXL is a business engaged in leasing in Tennessee. See GM & O Land Co., 49 Ala.App. at 710, 275 So.2d at 689. Any income USXL derives from the lease does not come from a source within Alabama. Instead, to the extent USXL derives income from its lease of tangible property to U.S. Xpress,' that income is derived from a source located in Tennessee. See Union Tank Car Co., 974 So.2d at 1029. The transfer of possession of the tractors and the trailers occurred in Tennessee, not in Alabama; thus, there is not a local act that constituted a taxable event occurring wholly in Alabama. See Boswell, 291 Ala. at 495, 282 So.2d at 896, U.S. Xpress operates the tractors and the trailers throughout the United States, and it contends that, in 2013, 7,135 of its leased trucks traveled through Alabama for a total of 16 million miles of operation in this state. USXL also contends that it is registered to conduct business with the Alabama Secretary of State and that it has paid income tax to Alabama derived from its business. But USXL has not shown that it has leased tangible personal property to any person in Alabama, and there is no evidence indicating that USXL has executed any leases in Alabama. See Lepeska Leasing Corp., 395 So.2d at 84. The business of leasing that USXL engages in with U.S. Xpress occurs in Tennessee, regardless of the locations where U.S. Xpress operates the tractors and trailers. Here, there is no taxable event to which § 41-12-222(a) would apply. Rather, the only taxable event that has occurred in Alabama is USXL’s purchase of tires, repair parts, and other goods from the joint petitioners in Alabama. USXL further contends that it conducts business in Alabama by having its tractors and trailers repaired at locations in Alabama. Repairs of such a nature are incident to USXL’s ownership of the tractors and the trailers that it leases, but we cannot conclude that having repairs made on the tractors and the trailers in Alabama constitutes “engaging or continuing within this state in the business of leasing or renting tangible personal property” under § 40-12-222(a).

Further, as noted by the tax tribunal in its order, Ala. Admin. Code (Dep’t of Revenue) Rule 810—6—5—.09(10), states that “[w]here the lessor leases a truck, truck trailer, or semitrailer to a motor carrier outside this state, the receipts therefrom would not be subject to the [lease] tax although the truck, truck trailer, or semitrailer may occasionally travel in this state in interstate commerce.” This rule underscores the Department’s interpretation and application of § 40-12-222(a) to scenarios such as the one in the present case.

“[I]t is well established that in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if that interpretation is reasonable. Ex parte State Dep’t of Revenue, [683 So.2d 980 (Ala. 1996)] (citing Alabama Metallurgical Corp. v. Alabama Pub. Serv. Comm’n, 441 So.2d 565 (Ala. 1983)). Absent a compelling reason not to do so, a court will give great weight to an agency’s interpretations of a statute and will consider them persuasive. Ex parte State Dep’t of Revenue, supra (citing Moody v. Ingram, 361 So.2d 513 (Ala. 1978)).”

State v. Pettaway, 794 So.2d 1153, 1157 (Ala. Civ. App. 2001).

USXL directs this court to State Department of Revenue v. General American Transportation Corp., Op. Of Dep’t of Revenue, Admin. Law Div., Docket No. R. 84-107 (July 27,1984)(Final Order), a decision issued by the Department’s administrative-law division in an appeal from lease-tax assessments, for the proposition that the taxable event is the use or possession of USXL’s leased property within Alabama. In that case, the taxpayer, an Illinois company engaged in the business of manufacturing and leasing railroad cars, leased railcars to lessees that operated the rail-cars within various states, including Alabama. Otherwise, the company had no business operations in Alabama, and the lease agreements it entered into with the lessees were executed in Chicago. The Department sought to assess a lease tax against the company on two types of transactions: “those involving railcars which travelled from points within Alabama to other points in Alabama, and those involving railcars which travelled from points within Alabama to points outside Alabama.” At issue in that case was “whether the railcars, as used by the lessees, were so integrally involved in interstate commerce as to be shielded from state taxation by the commerce clause.” The administrative-law judge ultimately ruled that “[t]he taxable event ... was the use or possession of the railcars by the lessees during the lease periods.”

In its order entered in this case, the tax tribunal stated:

“I concede that the ... rationale [of General American] supports [USXL’s] position. Upon further review, however, I now believe General American was wrongly decided, and that the rationale of Union Tank Car is correct. That is, a lease transaction occurs or is closed where the lessor transfers physical possession of the leased property to the lessee. In Paramount, the lease transactions were closed when the California, lessor delivered the tapes and films to the television stations in Alabama. Alabama lease tax was accordingly due on those transactions closed in Alabama. Conversely, where a lease transaction is closed outside of Alabama, the Alabama lease tax does not apply, i.e., the lessor is not in the business of leasing in Alabama, even if the out-of-state lessee sometimes uses the property in Alabama.”

USXL also contends that the Department’s administrative decision in General American constituted a rule establishing when a transaction is subject to the lease tax. USXL contends that the Department could not make a decision contrary to the decision pronounced in General American without following the requirements under the law for changing its administrative rules. USXL cites Heckler v. Community Health Services of Crawford County., Inc., 467 U.S. 51, 61 n.12, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), for the proposition that “an administrative agency may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests.” USXL further contends that § 41-22-5, Ala. Code 1975, part of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala. Code 1975, requires a state agency to provide at least 35 days’ notice before the adoption, amendment, or repeal of any rule.

General American, however, was a decision by the Department’s administrative-law division and not a “rule.” Pursuant to § 41-22-3(9), a part of the AAPA, the term “rule” is defined, in relevant part, as

“[ejach agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule or by federal statute or by federal rule or regulation.”

Excluded from that definition are “[determinations, decisions, orders, statements of policy, and interpretations that are made in contested cases.” § 41-22-3(9)d. General American, therefore, did not constitute a “rule” under the AAPA. As our supreme court has stated:

“The correct rule is that an administrative interpretation of the governmental department for a number of years is entitled to favorable consideration by the courts; but this rule of construction is to.be laid aside where it seems.reasonably certain that the administrator’s interpretation has been erroneous and that a different construction is required by the language of the statute. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So.2d 824 [ (1949) ]; Drenn[e]n Motor Co. v. State, 279 Ala. 383, 185 So.2d 405 [ (1966) ]; East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala. App. 584, 233 So.2d 751 [ (1970) ].”

Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So.2d 317, 319 (1975).

USXL further cites Ala. Admin. Code (Dep’t' of Revenue), Rule 810-6-5-.09(8), for the proposition that possession and use of leased property in Alabama determines whether the lease tax will apply. That rule provides that “[w]hen a lessor (i) is located outside Alabama, (ij) leases tangible personal property to a lessee within Alabama and (iii) the leased property is used in Alabama; the total gross proceeds from the lease of tangible personal property in this state are subject to rental tax.” In this case, however, there is no evidence, establishing that USXL leased any tangible personal property to a lessee within Alabama; instead, USXL leased tractors and trailers to U.S. Xpress pursuant to a master lease executed in Tennessee.

We conclude that USXL is not engaged in the business of leasing, in Alabama pursuant § 40-12-222(a) and, therefore, is not exempted from paying the sales and use tax under § 40-23-l(a)(9)j. on its purchases of tires, repair goods, and other materials from the joint petitioners between 2008 and 2011. Accordingly, USXL and the joint petitioners are not entitled to a refund of the sales and use tax paid on those purchases.

Conclusion

For the foregoing reasons, the summary judgment entered by the trial court is reversed, and we remand the cause to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

Thbmpson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      . The relevant part of § 40-12-222(a) reads: “In addition to all other taxes now imposed by law, there is hereby levied and shall be collected as herein provided a privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting tangible personal property at the rate of four percent of the gross proceeds derived by the lessor from the lease or rental of tangible personal property; provided, that the said privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting any automotive vehicle or truck trailer, semitrailer or house trailer shall be at the rate of one and one-half percent of the gross proceeds derived by the lessor from the lease or rental of such automotive vehicle or truck trailer, semitrailer or house trailer...

      . The court ultimately concluded that the corporation, although subject to the lease tax, was exempt from paying the lease tax under § 40-12-223(7), Ala. Code 1975, a code section not applicable in this case.


text:
    Wendi A. HENDERSON v. Kerry HENDERSON
    2150495
    Court of Civil Appeals of Alabama.
    January 6, 2017

      R. Champ Crocker of Crocker & Sparks, Cullman, for appellant.
   MOORE, Judge.

Wendi A. Henderson (“the wife”) appeals from a judgment of the Cullman Circuit Court (“the trial court”) divorcing her from Kerry Henderson (“the husband”). We affirm the trial court’s judgment in part and reverse it in part.

Procedural History

On June 7, 2013, the husband filed a complaint for a divorce from the wife, seeking, among other things, an equitable division of the parties’ real and personal property, an award of joint legal and physical custody of the parties’ two minor children, and attorney’s fees. The wife filed an answer and a counterclaim seeking a divorce; the wife sought sole physical custody of the parties’ minor children, an award of periodic alimony, and attorney’s fees. The wife also filed a verified motion for temporary, pendente lite relief, seeking, among other things, exclusive possession of the marital home, sole physical custody of the parties’ minor children, child support, and periodic alimony. The wife also requested that any visitation between the husband and the minor children be supervised. On August 16, 2013, the trial court entered a pendente lite order that, among other things, awarded physical custody of the minor children to the wife, ordered the husband to pay child support to the wife in the amount of $1,048 per month, and ordered the husband to continue paying certain monthly bills as pendente lite periodic alimony. On November 8, 2013, the husband filed a motion seeking a pendente lite order reducing the amount of child support he had been ordered to pay in the trial court’s August 16, 2013, order because one of the parties’ children had reached the age of majority. On December 23, 2013, the trial court entered an order confirming that the parties’ child had reached the age of majority, leaving only one minor child of the marriage, and reducing the amount of the husband’s pendente lite child-support obligation to $700 per month. The trial court entered an order on August 21, 2015, indicating that the case had been called for trial on August 20, 2015, that direct testimony of the husband had been completed, and that, at the parties’ request, the trial had been recessed by agreement.

On December 14, 2015, the trial court entered an order indicating that the case had been recalled for trial on that date and that ore tenus testimony had been presented and concluded. The trial court granted the husband’s claim for a divorce based on the ground of incompatibility of temperament and reserved all remaining issues for a judgment to be entered after each party submitted his or her list of specific requests for relief within two weeks of the date of the order. The parties submitted their requested lists as ordered, and, on January 14, 2016, the trial court entered a final judgment of divorce. In its judgment, the trial court awarded the parties joint legal custody of the parties’ minor child, with the wife having sole physical custody and the husband having visitation “as the parties agree, with [the husband] having the right to alternate weekend visits in the event no agreement can be made.” Additionally, the trial court ordered the husband to pay child support to the wife in the amount of $755 per month; required the husband to provide medical-insurance coverage through his employment for the parties’ minor child; required the parties to divide evenly any additional medical expenses incurred on behalf of the minor child that are not covered by insurance; entitled the husband to claim the minor child as a dependent for income-tax purposes; ordered the husband to pay the wife periodic alimony in the amount of $650 per month until the wife remarries or a period of 60 months has elapsed, whichever first occurs; awarded sole title in the marital home to the wife and required the husband to pay the outstanding mortgage balance thereon; required the parties to equally divide any remaining balance in their joint savings account and any income-tax refund for tax year 2014; allowed each party to retain in his or her possession any personalty held at the time of the entry of the judgment, except that the husband “shall be entitled to retrieve any personal jewelry, clothing, ancestral pictures or items which he chooses from the marital residence within 30 days” of the entry of the judgment; and required each party to pay his or her own attorney’s fees. The wife filed a motion to alter, amend, or vacate the trial court’s judgment on February 9, 2016. The trial court entered an order denying the wife’s postjudgment motion on February 11, 2016. The wife timely filed her notice of appeal to this court.

Facts

The parties were married on July 15, 1990, and lived together as husband and wife until they separated on April 10, 2013. The parties had four children during the marriage, but, at the time of the trial, only one of the children (“the child”) had not yet reached the age of majority. The husband testified that he lives in Pulaski, Tennessee, where he teaches math and coaches football, earning approximately $4,299.29 per month. According to the husband, he has a bachelor’s degree and a master’s degree and he began teaching in Alabama after he graduated from college in 1987. The husband stated that he began contributing to a retirement account in Alabama before he and the wife married and that, at the time of the trial, he had retired from teaching in Alabama in 2012 and was earning $2,838.79 a month in retirement benefits. The husband testified that the wife had ■ graduated from high school-and had completed a few college courses but that she had not graduated from college. Although the wife testified that she and the husband had planned to move to Tennessee following the husband’s retirement, she stated that, when the husband moved to Tennessee in the summer of 2012, she had refused to move with him.

The husband testified that he had wanted the parties’ children to attend public, school but that the wife had insisted that the children be homeschooled and' had refused to get a job because she was homeschooling the children. He stated that he felt that he had been denied certain educational jobs as a result of his children not being enrolled in public school and that that had caused a number of problems in the parties’ marriage. According to the husband, he and the wife had not had marital relations since 2004. He stated that he had received a telephone call regarding the wife’s involvement with another man in 2004, .that he had discussed that conversation with the wife, and that he had assumed that her response indicated that she was claiming- that nothing was going on between her and the other man. The husband stated that he had received another telephone call in 2011 that had led him to ask the wife whether she had been having an extramarital affair with a different man, which she had denied. He testified that, despite the wife’s denial, he had formed a judgment that the wife had been having some type of relationship with that man, although the wife testified that that had not been the case. The-husband testified that the wife had gone on a number of trips without -him, including to the west coast, Florida, Japan, Hawaii, New York; the Smoky Mountains, and on a cruise.

According to the husband, the wife was working part time at the time of the trial. He stated that he had not known that the wife was earning any money until he had completed the parties’ 2012 income-tax returns, that the wife had hidden from him the fact that she was working and earning money, and that he had not known that she had additional .bank accounts where she was keeping her earnings. The husband testified that, while he was in Tennessee, he had continued to pay for the wife to live in the marital home. He stated that his Alabama retirement checks had been directly deposited into the parties’ joint checking account and that the wife had removed over $2,300 from that account. He stated that that had led him to begin paying the bills himself and that the wife had objected. According to the husband, the parties’ had received approximately $661 for their 2012 income-tax refund and he had never seen any of that money. The husband testified that he had purchased a new truck in April 2016 after his other vehicle had fallen into such disrepair that replacing if was more economical than fixing it. He stated that he had continued to pay certain bills for the wife and some of 'the parties’ children, including cellular-telephone bills, medical-insurance and automobile-insurance premiums, and vehicle-tag renewal/registration fees. He stated that he had also paid taxes on the purchase of a new vehicle for the child and had paid the child’s medical bills, which averaged approximately $400 per month.

The wife testified that she and the husband had agreed' before they were married that she would be a stay-at-home mother and that she would homeschool the parties’ children. She testified that, at the time of the trial, she was working for a medical-imaging center and was earning approximately $600 per month working 20 hours per week. The wife stated, however, that she has health problems that prevent her from working full time. She testified that she had been diagnosed with melanoma cancer on her leg when she was pregnant with her first son in 1991 and that the melanoma had been surgically removed, which had caused vein problems in her leg that affect her ability to stand on her feet because her leg swells and begins to hurt. The wife testified also that her spine is not in alignment in her lower back, that.her back problems had begun when she was pregnant with the parties’ third child, who was born in 1994, and that she continued to be under care for that condition. She admitted, however, that she had never gone to see a neurosurgeon or an ortho-paedic surgeon for that condition and that, on one of her visits with a doctor, the doctor had written down that the wife had reported a pain level of 2 out of 10.

According to the wife, she had discovered the husband looking at pornography in 2000. She testified that there had been icons of naked women on the computer, which had been purchased for the use of the entire family. The wife stated that she had also viewed e-mails from women to the husband on that computer. According to the wife, after she had confronted the husband, he had brought home a laptop computer that he had said was a work computer, but, she said, she had accessed the laptop and had discovered pornography, receipts for a male-enhancement supplement, and women’s e-mail addresses, telephone numbers, and street addresses, which, she testified, indicated to her that the husband was going to meet them. The husband denied ever having met a woman he had corresponded with online. The wife testified that she had been too scared to confront the husband because he has a temper and because he had been very angry when she had initially confronted him about the pornography. She stated also that, approximately five to eight times a year, the husband had gone missing for days and would not call her. The wife testified that she .and the husband had not had sexual relations since July 2004. She stated that,- in July 2004, the parties had gone to Huntsville for .their anniversary month and had stayed in a hotel, that she had told the husband that that was not a good time for the trip and that she could not have sexual relations with him during that time for female reasons, but that he had forced sexual contact with her twice during the trip despite her crying, telling him that he was hurting her, and asking him to stop.

The wife testified that' the husband had informed her that he had not been hired for certain jobs because the parties’ children had not been enrolled in public school, but, she said, she had not believed him. She stated that she had initially spoken with the husband in 2004 about obtaining a divorce. She stated, however, that she had not asked for a divorce after discovering the pornography or the e-mails, but, she said, the long-term effects of the pornography had led to the divorce. According to the wife, the parties’ children had been aware of the husband’s looking at pornography.

With regard to the marital home, the husband testified that his parents had deeded him a parcel of property before he and the wife married and that, after he and the wife were married, he had conveyed' that parcel of property to himself and the wife with the joint right of surviv-orship. The husband testified that they had built a house on that property and, he said, at the timé of the trial, he had consolidated the mortgage on that property with other debt and owed approximately $4,500 to the bank for that loan, on which he made $500 payments each month. The husband presented evidence indicating that the marital home had been appraised for $91,200. He stated that the wife had continued to live in the marital home after he had moved to Tennessee and that he owned no other real estate. According to the husband, the marital home had been in good condition when he moved to Tennessee in 2012, and, he said, he did not know of any items that had needed maintenance or repairs at that time. The husband testified that he would like to sell the house and divide the equity received from the sale. The wife testified, however, that she believed the value of the marital home was approximately $65,000, because, she said, it had not been maintained since 2003. She testified that, among other things, the house had some foundation issues.

Standard of Review

Because the evidence in this case was presented ore tenus, our standard of review is as follows:

“ ‘ “ ‘[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.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005), quoting in turn 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)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala. 2007). Legal conclusions, however, are subject to de novo review. Walker v. Walker, 144 So.3d 359, 364 (Ala. Civ. App. 2013).

Analysis

The wife first argues on appeal that the trial court erred in its distribution of the marital estate and in its award of periodic alimony.

“The issues of property division and alimony are interrelated, and they must be considered together. Albertson v. Albertson, 678 So.2d 118 (Ala. Civ. App. 1995). A property division is not required to be equal, but it must be equitable. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996). 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 and health; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, [795 So.2d 729 (Ala. Civ. App. 2001)]; Lutz v. Lutz, 485 So.2d 1174 (Ala. Civ. App. 1986). In addition, the 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, or, as here, where the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala. 2000); Myrick v. Myrick, 714 So.2d 311 (Ala. Civ. App. 1998); Lutz v. Lutz, supra.

Pate v. Pate, 849 So.2d 972, 976 (Ala. Civ. App. 2002).

The wife cites Fountain v. Fountain, 829 So.2d 763 (Ala. Civ. App. 2002), and McGowin v. McGowin, 991 So.2d 735 (Ala. Civ. App. 2008), in support of her assertion that the property-division and alimony awards are inequitable. In Fountain, this court reversed the trial court’s judgment for awarding the wife only $20,000 of the husband’s 401(k) plan, which was valued at $90,228.74. 829 So.2d at 770. Observing that the wife had served as the primary child-rearer and homemaker during periods of the marriage when she was not employed and that she had no retirement plan, this court reversed the judgment for a more equitable award of the husband’s 401(k) plan. Id. This court affirmed, however, the trial court’s decision not to award the wife periodic alimony in light of its award of the marital home to the wife, which award included $30,000 in equity that had been accumulated thereon, and other monetary awards. Id. In McGowin, this court concluded that, although the trial court had essentially equally divided the parties’ marital property, the trial court had erred in awarding the wife only $3,000 per month in rehabilitative alimony for 18 months and $1,500 per month thereafter when the husband’s income since 2003 had averaged over $40,000 per month, the alimony award was insufficient to allow the wife to meet her monthly expenses, the wife had not worked outside the home while the husband had pursued a successful legal career, and the parties had enjoyed an elevated standard of living during the marriage. 991 So.2d at 743-45.

The wife argues that the husband’s superior earning capacity, the wife’s lack of employment during the marriage and her health, and the husband’s conduct during the marriage all weigh heavily in her favor with regard to • the issues of the division of the marital property and the alimony award. With regard to the wife’s health, the trial court could have considered the husband’s testimony that the wife had seen a chiropractor but that he had never been given any reason to believe that the wife was incapable of working, despite her testimony that her problems arising from melanoma had been present since 1991 and her back problems had been present since 1994. The trial court also could have considered that, despite the presence of those conditions throughout the majority of the marriage, the wife had been able to hold part-time jobs, travel independently, and homeschool and raise all four of the parties’ children. Additionally, the wife admitted that her doctor’s notes indicated that, in January 14, 2013, she had reported a low level of pain. The trial court had the-benefit of observing the wife during the court proceedings. “The presumption of correctness under the ore tenus rule ‘is based on the trial court’s unique position to observe -the witnesses and to assess their demeanor and credibility.’ ” Williams v. Williams, 905 So.2d 820, 826 (Ala. Civ. App. 2004) (quoting Glazner v. Glazner, 807 So.2d 555, 559 (Ala. Civ. App. 2001)). Accordingly, the trial court was within its discretion to discount the wife’s testimony that she was unable to work full time and earn additional wages toward her monthly expenses.

The wife also testified that the marriage had deteriorated as a result of the husband’s viewing pornography and his sexual abuse of her in July 2004. The husband testified that he did not begin looking at pornography until after the wife had discontinued having sexual relations with him. He stated that he had never met any women that he had corresponded with online and that he had never contacted them in person or on the telephone. The husband also testified' that he had never been physically abusive’toward the wife. Additionally, the trial court could have considered the wife’s testimony that she had discovered" the husband looking at pornography beginning in 2000 and that he had sexually abused her in 2004, yet she had never filed for a divorce from the husband. Additionally, the husband testified that he had been contacted twice during the parties’ marriage by different people .regarding the wife’s alleged infidelity with different.men. Given the varying testimony regarding the reasons for the deterioration of the marriage, the trial court could have declined to-consider the testimony of either or both parties regarding the parties’ alleged conduct and could have discounted their assertions regarding the purported breakdown of the marriage.

The husband testified that he had wanted the parties’ children to attend public school but that the wife had wanted to homeschool the children and, thus, could not work full time. He testified that his gross income from his-employment in Tennessee amounts to $4,299.29 monthly; that, after taxes, Medicare payments, and medical insurance is deducted, he earns a net income of $2,857.80 in Tennessee; that his gross retirement income from Alabama is $2,838.79 monthly; and that his net retirement income after deductions for taxes and -medical insurance is $2,695.22. Thus, the husband’s total net monthly income is-$5,553.02. The husband submitted as an exhibit a list of his monthly expenditures. The amount of those expenditures that are solely for the husband’s benefit is $3,590, In addition, however, the trial court ordered the husband to pay. monthly child support in the amount of $755, alimony to the wife in the amount of $650 per month, and the mortgage payment on the marital home in the amount of $600. Thus, including those additional amounts, his total monthly expenditures total $5,495. The husband testified that the child’s medical expenses average approximately $400 a month, although, he said, they had been greater at times. The husband was ordered to pay one-half of the child’s medical expenses that were not covered by insurance. Accordingly, including an additional $200 in the husband’s monthly expenditures (i.e., one-half of the $400 expended. each month for the child’s medical expenses), his tptal monthly expenses would increase to approximately $5,695. Based on his testimony, the husband’s monthly expenses exceed his net monthly income.

The wife presented a list of her monthly expenses, which total $2,997.50 after deducting $150 that was included for a house payment, which the husband was ordered to make. The wife included in those expenses $370 for an automobile payment and $450 for health insurance, both of which she admitted at trial were projected amounts because she was not paying either at that time. The wife also presented a list of marital assets and debts, which was entered as an exhibit and reflects varying amounts of debt incurred on four different accounts for a total of $9,818.39. The only marital assets included by the wife are the marital residence; the husband’s retirement account, which she admits on appeal is not divisible as a marital asset; and the husband’s automobile. The husband testified that the Cullman County Appraisal Office had appraised the marital residence at $91,200. According to the wife, however, the home had not been maintained since 2003, it has foundation problems, and she estimated the fair market value of the marital residence at $65,000. With regard to the parties’ vehicles, the husband testified that he had purchased a 2015 Toyota Tundra in April 2015, after he had filed for a divorce from the wife, and that his monthly payments on that vehicle are $510 a month. There was no indication of the value of the husband’s truck. The husband testified that the wife owned a 2005 Ford Expedition that had been paid for in full. The wife testified, however, that that vehicle had been involved in an accident after the parties separated, that she had received approximately $4,000 as a settlement from the other driver, that the transmission in that vehicle had. gone out in June 2014, and that she did not have a functioning vehicle at the time of the trial.

According to the wife, she was working approximately 20 hours a week at the time of the trial, earning $8 an hour. She submitted a child-support-obligation income statement/affidavit indicating that she earns $693 per month. The. wife testified that, before she married the husband, she had worked at a day-care center and that she had worked some other part-time jobs, some for short periods, during the marriage. Combining the wife’s earnings with the trial court’s alimony award in the amount of $650 per month, the wife’s total monthly income is approximately $1,343, which would leave the wife with a $1,654.50 deficiency to meet her proposed monthly expenses. Unlike in Fountain or McGowin, however, the wife in the present case was awarded a much greater amount of the marital assets than the husband. The trial court awarded each party all title and interest in any vehicle in his or her respective possession and awarded the wife the marital residence, ordering the husband to make all remaining payments on the mortgage thereon. Accordingly, the wife was awarded the marital asset with the greatest value. Even assuming the marital home was worth only $65,000, as argued by the wife, we must consider that the wife was awarded the majority of the marital property and that the marital residence, after the husband makes all remaining payments on the mortgage, will be unencumbered. Thus, the wife was awarded a major asset with, at least, $65,000 in equity. In addition to the facts considered above, the husband testified in the present case that the wife had removed over $2,300 from the parties’ joint checking account in 2012 and that she had kept $661 from the parties’ 2012 tax refund. The trial court could have considered that conduct by the wife in making its monetary awards to the parties. Because the wife received a greater distribution of the marital estate than the husband and because of the additional considerations discussed with regard to the wife’s argument on this issue, we cannot agree with the wife that the trial court’s alimony award was inequitable. Accordingly, we affirm the trial court’s judgment with regard to its division of property and its alimony award to the wife.

The wife next argues on appeal that the trial court erred by failing- to award the wife attorney’s fees.

“[A]s we explained in Glover v. Glover, 678 So.2d 174, 176 (Ala. Civ. App. 1996),
‘“[wjhether to award an attorney fee in a domestic- relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala. Civ. App. 1994). “Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So.2d 188, 191 (Ala. Civ. App. 1993). Additionally, a trial court is presumed to have .knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala. Civ. App. 1986).’
“The circuit court had the discretion to decide whether to require the husband to pay the wife’s attorney fees. We will not reverse the circuit court’s discretionary decisions unless we are convinced that it ‘ “ ‘committed a clear or palpable error, without the correction of which manifest injustice will be done.’ ” ’ D.B. v. J.E.H., 984 So.2d 459, 462 (Ala. Civ. App. 2007) (quoting Clayton v. State, 244 Ala. 10, 12, 13 So.2d 420, 422 (1942), quoting in turn 16 C.J. 453).”

Damrich v. Damrich, 178 So.3d 872, 882 (Ala. Civ. App. 2014). Given the considerations discussed above with regard to the distribution of property and award of alimony, we conclude that the trial court did not commit clear and palpable error in failing to award the wife attorney’s fees.

The wife next argues that the trial court erred in allowing the husband to claim the child as a dependent on his income-tax returns. In the present case, the wife was awarded sole physical custody of the child. The divorce judgment also provides, in pertinent part: “[The husband] shall be entitled to claim the minor child as a dependent for federal and state income tax purposes so long as he is paying the support ordered herein, and shall be allowed to claim her for the year 2015.”

In A.M.B. v. J.M.S., 12 So.3d 1221, 1222 (Ala. Civ. App. 2009), this court reversed a judgment entered by a juvenile court that, among other things, awarded sole physical custody of the child to the mother, directed the father to pay child support, and directed that the mother and the father alternate yearly regarding which parent claimed the child for income-tax purposes. We reiterated Alabama caselaw observing that the Comment to Rule 32, Ala. R. Jud. Admin., assumed that the custodial parent will take the income-tax exemptions for the children in his or her custody and that a trial court may deviate from those guidelines if that court enters a written statement explaining its deviation therefrom. Id. In accordance with Alabama law, this court reversed the juvenile court’s judgment and remanded the case to the juvenile court “for that court to either (1) ‘enter a statement explaining its deviation from the guidelines in awarding the father the tax-dependency exemption in alternating years’ (K.H.L. [v. K.G.M.], 782 So.2d [804,] 807 [ (Ala. Civ. App. 2000) ]) or (2) amend its judgment to fully conform to the guidelines by awarding the dependency exemption to the mother as the primary custodial parent (see Walls [v. Walls], 860 So.2d [352,] 359 [(Ala. Civ. App. 2003) ]).” 12 So.3d at 1222. Because the trial court in the present case also failed to indicate its reasoning for allowing the husband, as the noncustodial parent, to claim the child as a dependent for income-tax purposes, we reverse the trial court’s judgment and remand the cáse for the trial court to enter a statement explaining its deviation from the guidelines or to amend its judgment to conform with Rule 32 as discussed in A.M.B.

The wife next argues that the trial court erred in allowing the husband to retrieve the personal items “which he chooses” from the marital home within 30 days of the entry of the divorce judgment. The wife fails, however, to cite any authority in support of this argument.

‘“Rule 28(a)(10), Ala. R. App. P., requires that arguments in an appellant’s brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on.”’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007). ‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.’ City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).”

Salter v. Moseley, 101 So.3d 242, 247 (Ala. Civ. App. 2012). Because the wife has failed to cite any authority in support of her argument on appeal, the trial court’s judgment is due to be affirmed on this issue.

The wife last argues on appeal that the trial court erred in denying her postjudgment motion without holding a hearing thereon. Rule 59(g), Ala. R. Civ. P., provides, in pertinent part, that a post-judgment motion “shall not be ruled upon until the parties have had opportunity to be heard thereon.” The wife cites Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala. 1993), in which our supreme court remanded a case in which the trial court had denied a postjudgment motion without first holding a hearing. In Kitchens, the appellant had twice requested a hearing on his post-judgment motion. Id. In the present case, however, the wife admits on appeal that' her motion did not include a request for a hearing. “[T]he failure to request a hearing in a postjudgment motion waives the right to such a hearing under Rule 59(g), Ala. R. Civ. P.” Antoine v. Oxmoor Preservation/One, LLC, 130 So.3d 1204, 1212 (Ala. Civ. App. 2012). Accordingly, the trial court did not err in failing to hold a hearing on the wife’s postjudgment motion.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment insofar as it allowed the husband, as the noncustodial parent, to claim the child on his income-tax returns, without explanation; therefore, we remand the case 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 and Donaldson, JJ., concur.

Thomas, J., recuses herself.

      . Although the trial court's judgment awarded “primary physical custody” to the wife, we use the term "sole,” instead of "primary,” throughout this opinion to conform to the language provided in § 30-3-150 et. seq., Ala. Code 1975.