author: MOORE, Judge.

text:
    Wesley PERSON v. Lillian PERSON
    2150225
    Court of Civil Appeals of Alabama.
    April 7, 2017
    Charles H. Dunn and Joseph Callaway of Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham, for appellant.
    M. Christian King and Nikaa Jordan of Lightfoot, Franklin & White LLC, Birmingham; William R. King, Luverne; and Faye A. Schofield, Highland Home, for appellee.
    On Second Application for Rehearing
   MOORE, Judge.

This court's opinion issued on January 20, 2017, is withdrawn, and the following is substituted therefor.

Wesley Person ("the husband") appeals from a divorce judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it ordered him to pay child support and alimony to Lillian Person ("the wife"). He also challenges the ex parte pendente lite order that was entered during the pendency of the divorce proceedings. We reverse the judgment.

Procedural History

On August 29, 2013, the wife filed a verified complaint seeking a divorce from the husband. In the complaint, the wife averred that she and the husband, who had been married since 1994, had separated on December 1, 2012, and were living apart. The wife further claimed that she was without sufficient funds to provide for herself and the parties' minor children and that the husband had failed to provide any financial support to her and the children during their separation. The wife requested, among other things, that the trial court enter an ex parte temporary restraining order awarding her custody of the children, $6,000 per month in child support, and $10,000 per month in alimony. On September 4, 2013, the trial court entered an order ("the September 2013 ex parte pendente lite order") requiring the parties to seek a mediator and to establish a mediation schedule within 30 days of service of process. The September 2013 ex parte pendente lite order further provided that, in the event the parties did not schedule mediation as ordered, the husband should pay to the wife the child support and alimony she had requested commencing on October 1, 2013, and continuing every month thereafter.

The wife subsequently served the summons and the complaint on the husband on September 6, 2013. On October 7, 2013, the husband filed a motion to change venue, which was denied on October 9, 2013. On February 6, 2014, the wife filed a motion to enforce the September 2013 ex parte pendente lite order. In that motion, the wife asserted that the parties had not conducted mediation as required and that the husband had not paid any alimony or child support. The wife requested that the trial court determine the amount of the husband's arrearage and order him to pay that amount. The husband responded by notifying the trial court of his willingness and intention to mediate the case and by requesting that the trial court deny the wife's motion. On April 8, 2014, the husband answered the complaint and counterclaimed for a divorce. On February 17, 2015, the wife amended her complaint, adding allegations that the husband had committed adultery.

After a trial on April 28, 2015, the trial court entered a judgment on July 31, 2015, finding that the husband had committed adultery during the parties' marriage, dividing the parties' property, ordering the husband to pay $1,000 per month in alimony, awarding the wife sole physical and legal custody of the parties' minor children, ordering the husband to pay $2,500 per month in child support, and establishing that the husband owed an arrearage of $320,000 arising from the September 2013 ex parte pendente lite order. With regard to child support, the trial court specifically stated:

"As to present, and future child support, the provisions of Rule 32, [Ala. R. Jud. Admin.,] have not been followed in the award of child support herein made. This court finds that the application of said guidelines in this case would be manifestly unfair or inequitable because the parties live on an undetermined amount of income."

The trial court also stated:

"While the Court finds that the [husband] is in fact $320,000.00 in arrears in respect to child support and spousal support, the court defers, at this time, to make any ruling in respect to the payment of such arrearage. Provisions for the payment of the arrearage will depend upon the manner in which the parties comply with all of the other provisions in this order. A decision will be entered by this court as to the payment of the above arrearage after the court has determined the manner in which each party has complied with all the other provisions in this order."

On August 27, 2015, the husband filed a postjudgment motion. On October 26, 2015, the postjudgment motion was denied. On December 7, 2015, the husband filed his notice of appeal.

Facts

The evidence indicated that the parties had been married over 20 years at the time of the trial. During the marriage, the husband had played for the National Basketball Association ("the NBA") for 11 years and had earned $40 million. At the time of the trial, the parties had a Prudential Annuities Service Account valued at $2.2 million and a Polaris Platinum II Awards Annuity with an estimated value of $91,000; those accounts were awarded to the wife. The husband also had a pension through the NBA that he testified was valued at $711,000; that pension was awarded to the husband. The parties also owned multiple homes, farmland, a community center, a skating rink, a bowling alley, and approximately 20 vehicles.

The evidence also indicated that the wife does not have a college degree and that she had never worked during the marriage. The evidence indicated further that the parties' income in the years leading up to the separation had been solely from their approximately $5 million in investments. The wife testified that the husband had spent over $1 million during the parties' separation. She further testified that she had heard that the husband has secret financial accounts but that she had been unable to locate any additional accounts.

Finally, there was evidence presented indicating that the husband had committed adultery. Additionally, the husband admitted that he had failed to pay any pendente lite child support or alimony for over two years during the pendency of this case.

Discussion

I.

On appeal, the husband argues that the judgment is not final because the trial court declined to provide for the manner of payment of the arrearage accruing from the September 2013 ex parte pendente lite order. The trial court clearly set forth the amount of arrearage owed by the husband for pendente lite alimony and child support. Compare D.M.P.C.P. v. T.J.C., 91 So.3d 75, 76 (Ala. Civ. App. 2012) (noting that the trial court's "failure to adjudicate the amount of the father's child-support arrearage render[ed] the ... order from which the mother has appealed nonfinal"); Johnson v. Johnson, 191 So.3d 164, 171 (Ala. Civ. App. 2015) (holding that alimony arrearage arising from pendente lite order becomes part of final judgment when expressly included therein). A determination of a party's arrearage is "the equivalent of a monetary judgment for that amount." Henderson v. Henderson, 680 So.2d 373, 374 (Ala. Civ. App. 1996). Such a judgment may be collected by " 'any ... process for collection of the judgment, such as garnishment.' " State ex rel. Walker v. Walker, 58 So.3d 823, 828 (Ala. Civ. App. 2010) (quoting Leopold v. Leopold, 955 So.2d 1031, 1036 (Ala. Civ. App. 2006) ). Therefore, we conclude that the divorce judgment is final so as to support the present appeal even though the trial court did not expressly declare the mechanism of enforcement.

II.

The husband next argues that the $320,000 arrearage arises from a void order. Specifically, the husband contends that the trial court entered the September 2013 ex parte pendente lite order establishing his interim alimony and child-support obligations in violation of Rule 65(b), Ala. R. Civ. P., thereby rendering that order a nullity.

Ordinarily, on appeal from a final judgment of divorce, this court cannot review the merits of a pendente lite order. As we explained in Morgan v. Morgan, 183 So.3d 945, 966 (Ala. Civ. App. 2014) :

"A pendente lite order is replaced by the entry of a final judgment. Reid v. Reid, 897 So.2d 349, 355 (Ala. Civ. App. 2004) ('A pendente lite order is one entered during the pendency of litigation, and such an order is generally replaced by a final judgment.'). Thus, a pendente lite order is not made final by the entry of a final judgment such that it may be appealed as a part of the final judgment. Rather, the review of a pendente lite support order 'is by way of mandamus, inasmuch as it is not a final [judgment].' Sizemore v. Sizemore, 423 So.2d 239, 241 (Ala. Civ. App. 1982). See also Ashbee v. Ashbee, 431 So.2d 1312, 1313 (Ala. Civ. App. 1983) ('As to the wife's claim that alimony pendente lite should have been awarded, we note that the proper method of seeking appellate review of such an action on the part of the trial court is through a petition for a writ of mandamus. ... Since this issue has been raised improperly, we are unable to consider it [in an appeal of a final divorce judgment].') (citing Sizemore v. Sizemore, supra). Accordingly, the husband may not raise issues pertaining to the propriety of the ... pendente lite support order in th[e] appeal of the final divorce judgment."

However, the husband points out that a void judgment may be attacked "at any time," Hodges v. Archer, 286 Ala. 457, 459, 241 So.2d 324, 326 (1970), and that our supreme court considered the validity of an ex parte pendente lite order following the entry of a final judgment in Ex parte Williams, 474 So.2d 707 (Ala. 1985).

In Nichols v. Nichols, 46 Ala.App. 67, 238 So.2d 186 (Civ. App. 1970), a husband filed a divorce complaint and the wife counterclaimed for a divorce and sought an award of alimony and child support. Without taking any evidence, the trial court ordered the husband to pay $150 per month in pendente lite alimony and child support. When the husband filed a motion objecting to the pendente lite order and the manner in which it had been entered, the trial court struck the motion and cited the husband for contempt. The case proceeded to trial, at which the trial court denied the husband the right to present his case based on its determination that the husband had been in contempt of court. The trial court entered a final judgment finding that the husband was in contempt of the pendente lite order and awarding the wife an arrearage of $2,250. The husband appealed, arguing that he had been denied due process of law.

This court recognized that mandamus review ordinarily serves as the means to correct erroneous pendente lite orders but concluded that it could review the pendente lite order because "the trial judge included the judgment of temporary alimony and child support arrears in his final decree ... and in that same decree adjudged the [husband] in contempt of court ...." 46 Ala.App. at 70, 238 So.2d at 188. This court ultimately concluded that the pendente lite order, the citation for contempt, and the final judgment all had been entered without due process and, thus, reversed the judgment.

In Ex parte Williams, supra, a mother had obtained a default judgment divorcing her from the father and awarding her custody of their minor child. Six months later, the father obtained an ex parte restraining order preventing the mother from taking the child out of Alabama and awarding him temporary custody of the child during the pendency of a custody-modification action. The mother violated the restraining order by removing the child to Georgia, and the trial court entered orders finding the mother in contempt of court, returning custody to the father, and denying the mother all visitation rights. After this court affirmed that judgment, Williams v. Williams, 474 So.2d 705, 707 (Ala. Civ. App. 1984), our supreme court issued a writ of certiorari to review the validity of the ex parte restraining order. 474 So.2d at 708-09. The supreme court held that the trial court could not deprive the mother of her custody rights without due process, which, in the absence of danger to the actual health and physical well-being of the child, required notice of the petition for a pendente lite change of custody and an opportunity to be heard on the petition. 474 So.2d at 709-11. The supreme court further held that the trial court had violated Rule 65(b), Ala. R. Civ. P., by awarding the father ex parte relief because the father had not verified facts showing a clear threat of irreparable and immediate injury as required by the rule. 474 So.2d at 711-12. The supreme court determined that, because the restraining order was due to be reversed, the judgment finding the mother in contempt and the final judgment modifying custody and denying the mother visitation rights were also due to be reversed. 474 So.2d at 712.

In both Nichols and Ex parte Williams, the trial court had based its final judgment on the violation of an ex parte pendente lite order. In the present case, the final judgment awarding the wife an arrearage of $320,000 is based on the September 2013 ex parte pendente lite order. The husband in Nichols and the mother in Ex parte Williams challenged the validity of the pendente lite orders on appeal from the final judgments entered in those cases. In this case, the husband has challenged the validity of the September 2013 ex parte pendente lite order on appeal from the final judgment. In Nichols, the husband argued that he had been denied due process. In Ex parte Williams, the mother argued that the pendente lite restraining order was invalid because it had been entered in a manner inconsistent with Rule 65(b) and with her rights to notice and an opportunity to be heard. In this case, the husband argues that the September 2013 ex parte pendente lite order is invalid because it was entered in a manner inconsistent with Rule 65(b) and with his rights to notice and an opportunity to be heard.

In both Nichols and Ex parte Williams, the appellate courts reviewed the pendente lite orders on appeal from the final judgments in those cases, not via a petition for a writ of mandamus. The husband argues that this court also has the jurisdiction to review the September 2013 ex parte pendente lite order on appeal from the final judgment. We agree. The parallels between this case and Nichols and Ex parte Williams lead us to conclude that the validity of the September 2013 ex parte pendente lite order can be reviewed in this appeal. Although the wife argues that some Alabama cases have implied that the validity of a pendente lite order can never be considered on appeal from a final judgment, see Ex parte A.S., 3 So.3d 842, 843, 845 (Ala. 2008), and G.B. v. State Dep't of Human Res., 959 So.2d 1116, 1117, 1119 (Ala. Civ. App. 2006), the two cases most directly on point, Nichols and Ex parte Williams, provide otherwise. In Nichols, this court clearly considered and rejected the premise that the pendente lite order in that case could be reviewed only by way of a petition for a writ of mandamus. In Ex parte Williams, the supreme court could have reached the merits only by assuming the jurisdiction to review the validity of the ex parte pendente lite restraining order on appeal. Thus, both cases support the husband's argument that the validity of an ex parte pendente lite order can, in some circumstances, be reviewed on appeal after the entry of a final judgment.

We note that in both Nichols and Ex parte Williams this court and the supreme court reviewed the pendente lite orders not only because of their apparent invalidity, but also because the trial courts had enforced the orders in the final judgments. In the absence of those circumstances, the courts might not have undertaken review of the otherwise interlocutory orders. Because Nichols and Ex parte Williams deviate from the general rule prohibiting appellate review of pendente lite orders, we interpret those opinions narrowly. We conclude that the validity of an ex parte pendente lite order may be reviewed on appeal when a trial court enforces the order in its final judgment. Although a final judgment replaces a pendente lite order, to the extent that the final judgment depends on the validity of an ex parte pendente lite order, an appellate court may review that aspect of the ex parte pendente lite order when deciding whether the subsequently entered final judgment should be reversed.

The record shows without dispute that the trial court did not notify the husband before entering the September 2013 ex parte pendente lite order. The husband contends that the trial court could not have entered the September 2013 ex parte pendente lite order without complying with Rule 65(b), Ala. R. Civ. P., which provides:

"A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record, and shall expire by its terms within such time after entry not to exceed ten (10) days, as the court fixes (except in domestic relations cases, the ten- (10-) day limitation shall not apply), unless within the time so fixed the order for good cause shown is extended or unless the party against whom the order is directed consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require."

The husband contends that the wife violated Rule 65(b) because her verified complaint did not allege or show immediate and irreparable injury warranting ex parte relief and because her attorney did not certify "in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." The husband also maintains that the trial court failed to comply with Rule 65(b) because it did not endorse the September 2013 ex parte pendente lite order with the "date and hour" of issuance and because it did not set the matter for a hearing on a preliminary injunction as soon as practicable. Those procedural errors, the husband argues, render the September 2013 ex parte pendente lite order a nullity.

The record shows that the wife requested immediate ex parte relief from the trial court in order to obtain pendente lite alimony and child support. This court has previously recognized that such an unusual request must comply with Rule 65(b). In Ex parte Franks, 7 So.3d 391 (Ala. Civ. App. 2008), this court held that the trial court in that case could not award the mother child support through an ex parte proceeding in the absence of allegations and proof of immediate and irreparable injury as required by Rule 65(b)(1). This court concluded that the mother had not met that requirement by merely alleging a need for financial assistance. Consequently, this court issued a writ of mandamus ordering the trial court to vacate its child-support order.

This court has also held that the requirements of Rule 65(b)(2) must be observed before a trial court can issue an ex parte temporary restraining order. In Ex parte Hutson, 201 So.3d 570 (Ala. Civ. App. 2016), based on ex parte motions filed by the mother, the trial court granted the mother emergency visitation and custody of the parties' child in two separate orders. The father filed a petition for a writ of mandamus with this court, arguing that the visitation and custody orders should be vacated because the motions upon which they were grounded did not contain the certification required by Rule 65(b)(2), a fact the mother conceded. This court stated:

"In International Molders & Allied Workers Union, AFL-CIO-CLC v. Aliceville Veneers Division, Buchanan Lumber Birmingham, 348 So.2d 1385, 1390 (Ala. 1977), our supreme court concluded that the earlier issuance of a temporary restraining order ('TRO'), which was not challenged in an appellate court, did not create a presumption favoring the granting of subsequent injunctive relief. The court explained:
" 'Rule 65(b), [Ala. R. Civ. P.], does not permit an ex parte T.R.O. without a certification in writing to the trial court showing the efforts, if any, made to give notice to the adversary, accompanied by reasons supporting [the]
claim that notice should not be required. The plain language of this rule assumes that notice is prima facie required and is intended to allow the trial court a studied opportunity to weigh the effect of an absence of notice in deciding to grant or refuse such extraordinary relief.... [T]he validity of the later injunction is not to be governed by the existence of the temporary restraining order which, had the motion been insisted upon, would have been subject to dissolution for the deficiencies identified.'
" Id. (emphasis added); see also Jacobs Broad. Grp., Inc. v. Jeff Beck Broad. Grp., LLC, 160 So.3d 345, 354 (Ala. Civ. App. 2014).
"Similarly, commentators have pointed out that a federal court may issue a TRO without notice to the adverse party only if both prongs of Rule 65(b)(1), Fed. R. Civ. P., which is substantially the same as the pertinent portion of Rule 65(b), Ala. R. Civ. P., are met. 13 James Wm. Moore, Moore's Federal Practice § 65.32 (Matthew Bender 3d ed. 2014). 'Because an ex parte order "runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute," the requirements of Rule 65(b)(1) must be scrupulously observed.' Id. (footnotes omitted). As the United States Supreme Court observed in Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 438-39, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) : 'The stringent restrictions imposed by [ Rule 65(b), Fed. R. Civ. P.,] on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.' (Footnote omitted.)
"The Rules of Civil Procedure cannot be ignored with impunity. Because the mother's attorney failed to comply with the requirements of Rule 65(b), Ala. R. Civ. P., we conclude that the trial court's orders are due to be set aside. International Molders & Allied Workers Union, AFL-CIO-CLC v. Aliceville Veneers Div., Buchanan Lumber Birmingham, supra."

201 So.3d at 572-73.

Without addressing the other procedural irregularities at issue, we conclude that the trial court entered the September 2013 ex parte pendente lite order in violation of Rule 65(b). The record shows that the wife filed her complaint approximately nine months after the parties separated. In that complaint, the wife verified that she needed financial support from the husband, but she did not allege facts sufficient to justify a conclusion that she or the children were in danger of immediate and irreparable injury if they did not receive such support without first giving the husband an opportunity to be heard in opposition. The record also shows that the wife's attorney did not certify to the trial court in writing the efforts taken to notify the husband of the claim for expedited ex parte relief or explain the reasons why such notice should be excused.

In her application for rehearing, the wife admits that she did not comply with the notice requirements of Rule 65(b), but she maintains that the trial court essentially gave the husband 24 days' notice before the September 2013 ex parte pendente lite order was to go into effect, during which the husband did not raise any objection to the order. That contention rests, in part, on the wife's assertion that she served the September 2013 ex parte pendente lite order on the husband on September 6, 2013.

However, the page of the record to which the wife points to support that assertion shows only that the husband was served with the summons and the complaint on that date. The husband testified during the trial that he had seen the September 2013 ex parte pendente lite order at some point, but no evidence supports the wife's contention that the husband had notice of the September 2013 ex parte pendente lite order before its purported effective date. Moreover, the wife does not explain how such notice would have cured the violations of Rule 65(b). See Rule 28(a)(10), Ala. R. App. P. (requiring legal argument with citation to relevant authority).

The record does show that after October 1, 2013, the husband did not object to the validity of the September 2013 ex parte pendente lite order on the record in the proceedings below. However, the wife does not make any legal argument that the husband waived the requirements of Rule 65(b) by failing to lodge an objection to the September 2013 ex parte pendente lite order after its entry. Id. She argues only that the "technical" noncompliance with Rule 65(b) amounts to harmless error. See Brown v. Bateh, 331 So.2d 671 (Ala. 1976). We do not agree. In the September 2013 ex parte pendente lite order, the trial court ordered the husband to pay $16,000 per month in family support without affording him notice and an opportunity to be heard; those amounts accumulated during the pendency of the trial-court proceedings until the final judgment awarded the wife $320,000 as an arrearage. The husband has been undoubtedly prejudiced by the noncompliance with Rule 65(b).

In Ex parte Boykin, 656 So.2d 821, 826 (Ala. Civ. App. 1994), this court held that an "injunction was invalid because neither the mother nor the trial court complied with the requirements of Rule 65...." (Emphasis added.) Other jurisdictions, recognizing the mandatory nature of the requirements of rules similar to our Rule 65(b), also consider an ex parte temporary restraining order to be void based on noncompliance with the rule. See, e.g., In re Estates of Smaldino, 151 Wash.App. 356, 367, 212 P.3d 579, 585 (2009) ; Wahba, LLC v. USRP (Don), LLC, 106 Haw. 466, 476, 106 P.3d 1109, 1119 (2005) ; Mar-Pak Michigan, Inc. v. Pointer, 226 Ga. 189, 189, 173 S.E.2d 206, 208 (1970) ; and Intermountain Rural Elec. Ass'n, Inc. v. District Ct., 160 Colo. 128, 414 P.2d 911 (1966). A void order is a complete nullity, and it is the duty of the court on application of an interested party to vacate the void order at any time subsequent to its rendition. Hodges, 286 Ala. at 459, 241 So.2d at 326. An objection that a judgment or order is void may be raised for the first time on appeal. See Hopkins v. Duggar, 204 Ala. 626, 628, 87 So. 103, 104 (1920). Accordingly, we hold that the September 2013 ex parte pendente lite order is void and that the trial court could not have enforced that order. We therefore reverse the divorce judgment insofar as it awarded the wife $320,000 in past-due child support and alimony.

III.

The husband next argues that the trial court erred in awarding child support without receiving evidence as to the parties' respective incomes or the needs of the children.

In Morgan, 183 So.3d at 961-62, this court reasoned:

" ' " 'This court has held that if the record does not reflect compliance with Rule 32(E)[, Ala. R. Jud. Admin.] (which requires the filing of "Child Support Obligation Income Statement/Affidavit" forms (Forms CS-41) and a "Child Support Guidelines"
form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala. Civ. App. 1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala. Civ. App. 2004) ; Rimpf v. Campbell, 853 So.2d 957, 959 (Ala. Civ. App. 2002) ; and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala. Civ. App. 1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala. Civ. App. 1999).' "
" ' Harris v. Harris, 59 So.3d 731, 736-37 (Ala. Civ. App. 2010) (quoting Hayes v. Hayes, 949 So.2d 150, 154 (Ala. Civ. App. 2006) ).'
" Wellborn v. Wellborn, 100 So.3d 1122, 1126 (Ala. Civ. App. 2012).
"This court is unable to determine from the record the manner in which the trial court determined the amount of the parties' gross incomes. The trial court is not bound by the income figures advanced by the parties, and it has discretion in determining a parent's gross income. However, ' "[t]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered...." ' Willis v. Willis, 45 So.3d 347, 349 (Ala. Civ. App. 2010) (quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) ). Therefore, we reverse the judgment establishing the child-support award and remand the case to the trial court to redetermine the husband's child-support obligation in compliance with the Rule 32, Ala. R. Jud. Admin., child-support guidelines and this opinion."

In the present case, the trial court's judgment expressly states that the court could not determine the parties' incomes. Indeed, there is no evidence of the parties' incomes or of the needs of the children in the record. The evidence indicated that the parties lived off their investments, but there was no evidence presented regarding the amount of that income. We do not even know if the parties' combined income is outside the maximum combined income set forth in the child-support guidelines. Without evidence of the parties' incomes and, if the parties' combined income is outside the maximum combined income set forth in the child-support guidelines, evidence of the children's needs, we cannot affirm the child-support order. See Morgan, supra ; see also Rule 32, Ala. R. Jud. Admin. Therefore, we reverse the trial court's judgment regarding the award of child support and remand this cause for the trial court to take additional evidence and to enter a child-support order in compliance with Rule 32 and this opinion. Id. We note that, on remand, the trial court has the discretion to make its child-support award retroactive to the date the complaint for divorce was filed. See McCaskill v. McCaskill, 104 So.3d 186, 194 (Ala. Civ. App. 2012) (" '[G]iven this state's policy and law requiring a parent to support a minor child, we hold that a trial court may, in its discretion, award child support retroactive to the filing of the complaint for divorce where the trial court has failed to enter a pendente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.' " (quoting Brown v. Brown, 719 So.2d 228, 232 (Ala. Civ. App. 1998) )).

IV.

Finally, the husband argues that the trial court erred in awarding alimony to the wife without receiving evidence regarding a need for alimony.

" ' " '[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, 839-40 (Ala. Civ. App. 2016).

"Periodic alimony is completely a creature of legislative design." J.L.M. v. S.A.K., 18 So.3d 384, 390 (Ala. Civ. App. 2008). Section 30-2-51(a), Ala. Code 1975, the operative statute in this case, provides, in part:

"If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family."

See also Kean v. Kean, 189 So.3d 61, 66 (Ala. Civ. App. 2015).

In Shewbart v. Shewbart, 64 So.3d 1080, 1087-88 (Ala. Civ. App. 2010), this court stated:

"A petitioning spouse proves a need for periodic alimony by showing that without such financial support he or she will be unable to maintain the parties' former marital lifestyle. See Pickett v. Pickett, 723 So.2d 71, 74 (Ala. Civ. App. 1998) (Thompson, J., with one judge concurring and two judges concurring in the result). As a necessary condition to an award of periodic alimony, a petitioning spouse should first establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life. See, e.g., Miller v. Miller, 695 So.2d 1192, 1194 (Ala. Civ. App. 1997) ; and Austin v. Austin, 678 So.2d 1129, 1131 (Ala. Civ. App. 1996). The petitioning spouse should then establish his or her inability to achieve that same standard of living through the use of his or her own individual assets, including his or her own separate estate, the marital property received as part of any settlement or property division, and his or her own wage-earning capacity, see Miller v. Miller, supra, with the last factor taking into account the age, health, education, and work experience of the petitioning spouse as well as prevailing economic conditions, see DeShazo v. DeShazo, 582 So.2d 564, 565 (Ala. Civ. App. 1991), and any rehabilitative alimony or other benefits that will assist the petitioning spouse in obtaining and maintaining gainful employment. See Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala. Civ. App. 1995). If the use of his or her assets and wage-earning capacity allows the petitioning spouse to routinely meet only part of the financial costs associated with maintaining the parties' former marital standard of living, the petitioning spouse has proven a need for additional support and maintenance that is measured by that shortfall. See Scott v. Scott, 460 So.2d 1331, 1332 (Ala. Civ. App. 1984)."

In the present case, there was no evidence presented indicating that the wife would be unable to maintain her former marital standard of living absent an award of periodic alimony. In fact, at the hearing on the husband's postjudgment motion, the wife's testimony tended to show that she felt that her property award was sufficient to meet her needs. Furthermore, the evidence indicated that the parties had lived solely off of their investments, of which the wife was awarded a portion, and that neither party had been employed at the time of the parties' separation.

Without any evidence indicating that the wife will be unable to meet her needs absent an award of alimony, we conclude that the trial court exceeded its discretion in awarding periodic alimony. Accordingly, we reverse the judgment to the extent that it awarded the wife periodic alimony. Because the division of property and the award of alimony are interrelated, we also reverse the division of property. See Sullivan, 211 So.3d at 840. On remand, the trial court is permitted to reconsider the division of property in light of our reversal of the award of alimony and all the applicable factors, including the finding of fault on the part of the husband. See id.

Conclusion

Based on the foregoing, we reverse the trial court's judgment. We remand this cause for further proceedings in accordance with this opinion.

APPLICATION GRANTED; OPINION OF JANUARY 20, 2017, WITHDRAWN; OPINION SUBSTITUTED;

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      In Nichols, the husband had objected to the pendente lite award during the trial-court proceedings, whereas, in this case, the husband did not object to the September 2013 ex parte pendente lite order during the trial-court proceedings. That distinction does not require a different result, however. The trial court struck the objection in Nichols, treating it as if it had not been raised, which is similar to the posture of this case. Moreover, in Nichols, this court did not consider the fact that the husband had objected during the trial-court proceedings as preventing him from raising that same objection on appeal as opposed to in a petition for a writ of mandamus.

      Rule 32(B)(2)(a) provides:
      " 'Gross income' includes income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment-insurance benefits, disability-insurance benefits, gifts, prizes, and preexisting periodic alimony."
      We note that the submission of the parties' income-tax returns and other documentation pursuant to Rule 32(F) would assist the trial court in determining the parties' incomes.


source: Caselaw Access Project

license: Public Domain

text:
    John SAUNDERS and Mike Saunders v. Betty INGRAM
    2150852
    Court of Civil Appeals of Alabama.
    April 7, 2017
    Spencer W. Danzey, Abbeville, for appellants.
    Stephen T. Etheredge and Nikki H. Stephens of Buntin, Etheredge & Fowler, LLC, Dothan, for appellee.
   MOORE, Judge.

John Saunders and Mike Saunders appeal from a judgment entered by the Henry Circuit Court ("the trial court") quieting title to a certain parcel of real property in Betty Ingram and John Ingram, Jr. We dismiss the appeal.

On September 28, 2012, the Ingrams filed a complaint against the Saunderses and a number of fictitiously named defendants, asserting, among other things, that Betty and John owned separate but contiguous parcels of real property in Henry County; that the Saunderses owned property adjoining that of the Ingrams; and that the Ingrams' predecessors in title and the Saunderses' predecessor in title had agreed that Abbie Creek and Skipper Creek would operate as the boundary line between the parties' respective properties. The Ingrams further asserted that, following that agreement, they and their predecessors in title had maintained exclusive possession of the property lying west of Abbie Creek and Skipper Creek that had been included in the property description in the deed conveying property to the Saunderses ("the disputed property"). The Ingrams sought a judgment from the trial court quieting title to their properties, including the disputed property. On October 16, 2012, the Saunderses filed an answer to the complaint. They also filed a counterclaim seeking a judgment declaring that the disputed property belongs to the Saunderses in fee simple; an adjudication of the boundary line between the Ingrams' properties and the Saunderses' property; and an award of costs, damages, and attorney's fees resulting from the Ingrams' request for a restraining order.

A trial was set for February 28, 2013. On February 21, 2013, the Ingrams filed a motion seeking to continue the trial, asserting, among other things, that John was suffering from issues with his health and would be unable to attend or testify at the trial; that motion was granted, and the trial date was reset. After a number of continuances, a trial was set for February 25, 2014. On February 24, 2014, Betty filed a motion to continue the trial setting of the case; she asserted that John had died on February 10, 2014, that "no [e]state ha[d] been commenced as of [that] date," and that it would "be necessary for a [p]ersonal [r]epresentative or [a]dministrator to be appointed and that person substituted as a party in interest pursuant to Rule 25 of the Alabama Rules of Civil Procedure, prior to the trial of this case." The trial court granted that motion to continue.

Following an order in which the trial court requested to be advised of the status of the case and another order indicating that the case would be dismissed for "no action," the trial court entered an order on January 20, 2015, dismissing the case for "lack of action." On January 21, 2015, Betty filed a motion to reinstate the case, asserting that the case "is and has been ready for trial and is waiting on the Court to set the trial date." The trial court granted that motion, reinstated the case, and set the case for a trial, which was conducted on October 8, 2015. After the close of all of the evidence, the following exchange occurred between the trial judge and Betty's attorney:

"THE COURT: My first question ... is, who's actually the plaintiff now? It started out as Betty and John Ingram. Obviously, John Ingram is deceased.
"[Counsel for Betty]: Judge, and we revised the case in the name of his estate.
"THE COURT: So, you filed-the only thing I could find ... is you filed a motion to continue one time to amend in-
"[Counsel for Betty]: And we did that.
"THE COURT: You're telling me. Because, typically, she hits one print button and it prints off everything, and I didn't see it.
"[Counsel for Betty]: We amended and filed to bring in the estate. That's why Pam [Taylor] is sitting here, because she is the personal representative of the estate.
"THE COURT: As long as you tell me you're sure, I'm not going to go back and check.... So, you're sure?
"[Counsel for Betty]: Yes, sir."

Following those representations by Betty's attorney, the trial was concluded after an unrelated discussion between the trial judge and the attorneys for the parties. On December 4, 2015, the trial court entered a judgment that stated: "After trial, judgment entered for plaintiff." Both Betty and the Saunderses filed postjudgment motions, and, on February 25, 2016, the trial court entered a new judgment in response to Betty's postjudgment motion in which it quieted title to the disputed property in Betty, as it related to the property in her name, and quieted title to the disputed property in "the Estate of John Ingram, as substituted Plaintiff," with regard to the property in John's name. That same day, the trial court entered an order denying the Saunderses' postjudgment motion. The Saunderses filed their notice of appeal to the Alabama Supreme Court on March 31, 2016; that court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

After the appeal was transferred to this court, this court entered an order directing Betty and the Saunderses to submit letter briefs regarding (1) whether the February 24, 2014, motion to continue initiated the running of the period contemplated in Rule 25, Ala. R. Civ. P., for filing a motion to substitute a proper party; (2) whether a motion to substitute a proper party for John had been filed in the trial court; and (3) whether, at the time the trial court entered its judgment, the trial court retained jurisdiction over the claims raised in the complaint insofar as they related to the property that had been owned solely by John. Betty and the Saunderses submitted letter briefs; they agree that no motion to substitute a proper party for John had been filed following his death, and we agree that there is no such motion in the record. Betty and the Saunderses disagree, however, as to the two remaining issues, and, thus, we address those issues in turn.

Rule 25(a)(1), Ala. R. Civ. P., provides:

"If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5[, Ala. R. Civ. P.,] and upon persons not parties in the manner provided in Rule 4[, Ala. R. Civ. P.,] for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall in the absence of a showing of excusable neglect be dismissed as to the deceased party."

It is undisputed on appeal that the claims before the trial court relating to the property owned solely by John survived in favor of his personal representative upon John's death. See Wells v. Wells, 376 So.2d 750, 751 (Ala. Civ. App. 1979) ("Under present Alabama statutory law, legal and equitable claims survive in favor of and against the personal representative of a deceased. § 6-5-460 et seq., [Ala. Code 1975]." (emphasis omitted) ). It is also undisputed, however, that, in the present case, no personal representative was substituted as a party pursuant to Rule 25(a)(1). The Saunderses argue in their letter brief that the February 24, 2014, motion to continue was a proper suggestion of death as contemplated in Rule 25(a)(1) and, thus, that the six-month period for substitution addressed in the rule began to run at the time of its filing. We disagree.

In Kissic v. Liberty National Life Insurance Co., 641 So.2d 250, 252 (Ala. 1994), our supreme court determined that "[i]t is quite simple under Rule 25 [, Ala. R. Civ. P.,] to start the running of the time period for substituting a proper party for a deceased party by filing a clearly designated 'statement of the fact of death' or 'suggestion of death' and by serving that statement in accordance with the requirements of the rule." Our supreme court noted in Kissic that Rule 25(a)(1) also requires that service of the clearly designated suggestion of death on the successor or representative of the deceased party's estate must be served pursuant to Rule 4, Ala. R. Civ. P. Id. at 253. The supreme court further noted that, because the personal representative of the decedent's estate in that case had not been served with a proper suggestion of death in accordance with Rule 4, the six-month limitations period of Rule 25(a)(1) would not have begun to run. Id. See also Kaldawy v. Gold Serv. Movers, Inc., 129 F.R.D. 475 (S.D.N.Y. 1990) (concluding that the federal version of Rule 25(a)(1), Ala. R. Civ. P., prevented the filing of a proper suggestion of death until a representative had been appointed and properly served with notice as required by the rule); and Gronowicz v. Leonard, 109 F.R.D. 624 (S.D.N.Y. 1986) (concluding that, according to the federal version of Rule 25(a)(1), the suggestion of death must identify a representative or successor to be valid).

In the present case, the February 24, 2014, motion to continue indicated that no personal representative had been appointed as of that date. Thus, that motion could not have been served on the personal representative of John's estate such that the six-month limitations period of Rule 25(a)(1) would have begun to run. See Kissic, supra. Additionally, because no suggestion of death had been properly filed in the trial court in accordance with Rule 25(a)(1) and the six-month limitations period in that rule had not begun to run, dismissal of the claims relating to John's property by the trial court would not have been appropriate. See Carter v. Carter, 110 So.3d 382, 384 (Ala. Civ. App. 2012) (concluding that the trial court in that case had erred in dismissing the action for failure to substitute parties when the six-month period for seeking to substitute parties had not been triggered because no suggestion of death had been filed). That is not the end of our inquiry, however.

In Wells, supra, this court reversed a judgment that had been entered in favor of the deceased wife, who was the defendant. 376 So.2d at 751. We determined that, although the trial court in that case had had subject-matter jurisdiction over the claims at issue, there was no defendant before the court following the wife's death because no party had been substituted. 376 So.2d at 751. In Thomas & Associates v. Yasko, 63 So.3d 665, 668 (Ala. Civ. App. 2010), this court determined that, following the death of the sole plaintiff, a judgment regarding postjudgment interest was void because there was no plaintiff before the trial court, no individual had been substituted for the plaintiff, and, as a result, the trial court had lacked jurisdiction to proceed in the action and to enter its judgment. In Hill v. Jackson, 669 So.2d 921 (Ala. Civ. App. 1995), a husband and a wife filed an action alleging conversion against a couple, from whom they had rented a mobile home, following the couple's removal of the husband's and the wife's personal property from the mobile home. The wife died before the case was called for trial, but the case proceeded with only the husband as the plaintiff, although the wife's claim was not formally dismissed. 669 So.2d at 923. Because there were multiple plaintiffs, however, and the right sought to be enforced in that case survived only as to the surviving party-the husband-the husband's claim continued and proceeded, and we determined that any failure to formally dismiss the wife's claim would have been harmless error. Id. at 924-25. Unlike in Hill, Betty could not stand as the singular plaintiff for both her claims and John's claims because Betty and John owned separate parcels of real property. Like in Wells and Thomas, the trial court did not have jurisdiction over the claims relating to the property owned by John because, as discussed above, following John's death, there was no substitution of the proper party.

Citing Wells, supra, Betty's counsel argues in his letter brief that, in the present case, the requirement of formal substitution in Rule 25 was waived. In Wells, a husband had filed a motion, pursuant to Rule 60, Ala. R. Civ. P., to modify a judgment divorcing him from his wife. 376 So.2d at 750. The wife died during the pendency of the husband's petition to modify, and the husband requested a substitution of the party. Id. The trial court denied the husband's Rule 60 motion and declined to rule on the husband's motion to substitute. Id. at 750-51. This court determined that, following the death of the wife, there was no defendant before the trial court. Id. at 751. This court stated, in pertinent part:

"It would be possible, under proper circumstances, for the personal representative of the deceased to waive the formal substitution of Rule 25(a) [, Ala. R. Civ. P.,] and for the court to obtain jurisdiction over such a person. See, Vaughan v. Vaughan, 258 Ala. 336, 62 So.2d 466 (1952) ; Osbourn v. LoBue, 256 Ala. 121, 53 So.2d 610 (1951). That is, if the 'proper party' actually defends the suit, such defense may constitute a waiver by that 'proper party' of the right to a formal substitution. However, in the instant case no such personal representative defended the husband's petition. Therefore, no waiver occurred and the court did not obtain jurisdiction under any theory of waiver."

Id. In so concluding, we noted that there was nothing in the record indicating that the deceased wife's attorney had status as the legal representative of her estate. Id. In the present case, Betty's counsel argues in his letter brief that, at the trial in the present case, Pam Taylor, the personal representative of John's estate, "appeared and through [the same counsel as Betty's] counsel prosecuted, without objection, the claims of the estate and defended against the claims of the [Saunderses]." He argues that, because Taylor, as the "proper party," was present and prosecuted the action, her defense constituted a waiver of the right to a formal substitution as contemplated in Wells.

In Hill v. Lyons, 550 So.2d 1004, 1005 (Ala. Civ. App. 1989), after a divorce judgment had been entered, the husband died shortly thereafter and the wife filed a motion to set aside the judgment of divorce. After ore tenus proceedings, the trial court entered an order nullifying the divorce judgment. Id. In Lyons, the administrator of the estate of the deceased husband was present and represented by counsel at the ore tenus proceedings; he testified that he had been appointed as administrator, his counsel cross-examined witnesses and, in general, he defended the interests of the husband's estate at that proceeding. Id. at 1005-06. This court determined that those actions of the administrator of the estate constituted a waiver of the formal requirements of Rule 25(a)(1), regarding substitution of the parties, and that jurisdiction over the estate was proper in that case. Id. at 1006.

In his letter brief, Betty's counsel asserts that Taylor "appeared and through [the same counsel as Betty's] counsel prosecuted, without objection, the claims of the estate and defended against the claims of the [Saunderses]." We note, however, that, with the exception of the statement made by Betty's attorney at the trial that "Pam" was the personal representative of John's estate, Taylor did not otherwise participate in the proceedings whatsoever. There is no testimony indicating that Taylor had been appointed as the personal representative of John's estate; Taylor herself did not testify or otherwise participate in the trial; and, like in Wells, supra, there is nothing in the record indicating that Betty's attorney had status as the legal representative of John's estate. Although Betty's counsel makes assertions in his letter brief regarding Taylor's appointment as the personal representative of John's estate and Taylor's representation by counsel at the trial, "[a]n appellate court is confined in its review to the appellate record[;] that record cannot be 'changed, altered, or varied on appeal by statements in briefs of counsel,' and the court may not 'assume error or presume the existence of facts as to which the record is silent.' " Beverly v. Beverly, 28 So.3d 1, 4 (Ala. Civ. App. 2009) (quoting Quick v. Burton, 960 So.2d 678, 680-81 (Ala. Civ. App. 2006) ). We conclude, therefore, that, unlike in Lyons, there was no waiver of the formal requirements of Rule 25(a)(1) regarding substitution of the parties in the present case.

Having determined that the formal requirements of Rule 25(a)(1) were not complied with in the present case and that no waiver of those requirements occurred, we conclude that the trial court's judgment is void insofar as it purports to adjudicate the claims and counterclaims relating to the property owned solely by John. Unlike in Hill v. Jackson, supra, the claims and counterclaims speaking to the property owned solely by John survived his death and could not be prosecuted or defended in Betty's name because they did not own the property jointly. Rather, those claims and counterclaims remain pending before the trial court until a substitution is made or a proper suggestion of death is filed on the record such that the limitations period in Rule 25(a)(1) begins to run and dismissal is ultimately required if a substitution is not made. Betty could, however, pursue those claims and defend against those counterclaims relating to the property owned in her own name. See Hill v. Jackson, supra. That being said,

" ' "[i]t is a well-established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved." ' Powell v. Powell, 718 So.2d 80, 82 (Ala. Civ. App. 1998), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala. 1981). 'A ruling that relates to fewer than all the parties in a case, or that determines fewer than all the claims, is ordinarily not final as to any of the parties or as to any of the claims.' Powell, at 82. See Rule 54(b), Ala. R. Civ. P. 'A "final judgment is a 'terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.' " ' Powell, at 82, quoting Dees v. State, 563 So.2d 1059, 1061 (Ala. Civ. App. 1990). 'The question whether an order appealed from is final is jurisdictional, and the reviewing court, on a determination that the order is not final, has a duty to dismiss the case on its own motion.' Powell, at 82."

Hinson v. Hinson, 745 So.2d 280, 281 (Ala. Civ. App. 1999).

In the present case, because the trial court's purported adjudication of the claims and counterclaims relating to the property belonging solely to John is void, any resolution of the claims relating to the property belonging solely to Betty was an adjudication of fewer than all the claims presented in the complaint. Accordingly, the trial court's judgment is not final, and this court is required to dismiss this appeal for lack of jurisdiction.

Based on the discussion herein, we dismiss the Saunderses' appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

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

      Although the motion to continue and subsequent filings in the trial court and on appeal refer to the parties as the "plaintiffs," "the appellees," or the "Ingrams," as discussed later in this opinion, Betty was the sole remaining plaintiff before the trial court, and thus is the sole appellee before this court, following the filing of the February 24, 2014, motion to continue. We have restyled the appeal accordingly.

      " ' "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal. Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala. 2006). A judgment is not final if it fails to completely adjudicate all issues between the parties. Giardina v. Giardina, 39 So.3d 204, 207 (Ala. Civ. App. 2009) (citing Butler v. Phillips, 3 So.3d 922, 925 (Ala. Civ. App. 2008) ).'
      "Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala. Civ. App. 2010). 'An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties.' Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala. Civ. App. 2000) (citing Rule 54(b), Ala. R. Civ. P., and Ex parte Harris, 506 So.2d 1003, 1004 (Ala. Civ. App. 1987) )."
      Whatley v. Howe, 177 So.3d 475, 477 (Ala. Civ. App. 2015).


author: THOMAS, Judge.

text:
    Ronald R. GLASGOW v. JACKSON LAND SURVEYING, LLC
    2151016
    Court of Civil Appeals of Alabama.
    April 7, 2017
    Ronald R. Glasgow, pro se.
    David F. Law, Rockford, for appellee.
   THOMAS, Judge.

In May 2016, Ronald R. Glasgow, acting pro se, filed in the Clay Circuit Court ("the trial court") a complaint naming Jackson Land Surveying, LLC ("the surveyor"), as a defendant. Glasgow asserted that the surveyor had negligently performed a survey that had, as a result, incorrectly determined the boundary line between his property and the property owned by John Hatfield. According to the complaint, Hatfield had purchased his property from Sanford Suggs, who had hired the surveyor to perform the survey in preparation for the sale of the property to Hatfield. Glasgow also alleged that the alteration in the boundary line between his and Hatfield's properties as a result of the survey affected his use of an easement. He further asserted that two other sets of adjoining landowners, the Hetisimers and the Hannerses, were also negatively affected by the allegedly incorrect boundary line. Glasgow requested that the dispute regarding the contested boundary line be settled and sought damages in the amount of "$20,000 or less, as determined by the court."

On August 2, 2016, the surveyor moved to dismiss Glasgow's complaint. In its motion, the surveyor stated, without elaboration, that Glasgow had failed to state a claim for relief and that he had failed to join necessary and indispensable parties to the action. The trial court set the motion for a hearing to be held on August 16, 2016.

On August 15, 2016, Glasgow filed an amended complaint. In that amended complaint, Glasgow stated that he had sought and received permission to join the Hetisimers and the Hannerses as additional plaintiffs to the action. Glasgow also added Hatfield and Vickie Sheraron as additional defendants. In addition, in a separate motion, Glasgow sought to have Mrs. John Fables, the owner of the real property upon which the easement he had mentioned in his complaint was situated, added to the action as an "involuntary plaintiff." See Rule 19(a), Ala. R. Civ. P. ("If [a] person [determined to be a necessary party] should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff.").

After the hearing, the trial court entered, on August 16, 2016, an order granting the surveyor's motion to dismiss; the order did not indicate the basis for the dismissal of the claims against the surveyor. That order also denied Glasgow's motion to add Fables as an involuntary plaintiff. The order noted that the "matter [would be] continued generally for service on the remaining parties." Sheraron was served on August 17; Hatfield was served on August 19. On August 20, 2016, the trial court entered an order in which it struck the amended complaint insofar as it attempted to add the Hetisimers and the Hannerses as plaintiffs because, the trial court stated, Glasgow could not add plaintiffs because he was acting as a pro se litigant. Glasgow appealed the trial court's August 16 and August 20 orders to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

The surveyor argues that Glasgow's appeal should be dismissed because, the surveyor says, the appeal was taken from a nonfinal judgment. As the surveyor correctly notes, at the time the trial court entered the August 16, 2016, order, Glasgow had named two additional defendants-Hatfield and Sheraron-in his amended complaint. Typically, the failure of a trial court to adjudicate all claims against all defendants precludes finality. Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990) ("An appeal ordinarily will lie only from a final judgment-i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved."). However, when the trial court entered the dismissal order on August 16, 2016, the only defendant who had been served with process was the surveyor. Rule 4(f), Ala. R. Civ. P., provides:

"When there are multiple defendants and the summons ... and complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment."

Under Rule 4(f), the August 16, 2016, order was final as to the surveyor. See Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n.2 (Ala. 1984) (denying, pursuant to Rule 4(f), a motion to dismiss an appeal on the basis that the judgment appealed from was not final because there remained unserved defendants below); Williams v. Fox Television Stations of Birmingham, Inc., 959 So.2d 1120, 1122 (Ala. Civ. App. 2006) (concluding that a summary judgment entered in favor of the only party that had been served at the time of the entry of that judgment was a final judgment at the time of its entry), overruled on other grounds by Ex parte Luker, 25 So.3d 1152 (Ala. 2007) ; and Harris v. Preskitt, 911 So.2d 8, 14 (Ala. Civ. App. 2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the served defendants without need for a judgment dismissing the unserved defendant). Accordingly, we will consider the merits of Glasgow's appeal insofar as it involves that aspect of the August 16, 2016, order dismissing the claims against the surveyor.

As noted, the trial court did not explain its basis for granting the motion to dismiss the claims against the surveyor. The surveyor argues in its brief on appeal that the dismissal was proper under Rule 12(b)(6), Ala. R. Civ. P., because Glasgow could not show that the surveyor had breached any duty to Glasgow because, it says in its brief on appeal, it "was hired by Mountain Streams Realty to survey property owned by Suggs" and Glasgow was therefore, it contends, not a "foreseeable plaintiff." Our review of a dismissal order under Rule 12(b)(6) is well settled.

" ' "On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.], is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." ' "

Donoghue v. American Nat'l Ins. Co., 838 So.2d 1032, 1036 (Ala. 2002) (quoting C.B. v. Bobo, 659 So.2d 98, 104 (Ala. 1995), quoting in turn Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993) ).

Indeed, as the surveyor contends, a plaintiff like Glasgow seeking to establish that a defendant is negligent must prove, among other things, "a duty to a foreseeable plaintiff." Martin v. Arnold, 643 So.2d 564, 567 (Ala. 1994) ("To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury."). The surveyor contends, in essence, that Glasgow's status as a stranger to the contract under which the survey was performed prevents him from being a "foreseeable plaintiff," i.e., one to whom the surveyor owed a duty. However, contrary to the surveyor's contention that negligence cannot lie where a plaintiff has no privity of contract, a person to whom a party owes a duty-i.e., a "foreseeable plaintiff"-includes a third party who could foreseeably be injured if a party to a contract fails to properly carry out its duties under that contract. QORE, Inc. v. Bradford Bldg. Co., 25 So.3d 1116 (Ala. 2009) ; Vick v. HSI Mgmt., Inc., 507 So.2d 433 (Ala. 1987) ; and Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716, 724 (Ala. Civ. App. 1979) ("[A] plaintiff may nevertheless recover in negligence for [a] defendant's breach of duty where [the] defendant negligently performs his contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable.").

In QORE, our supreme court explained the concept that a duty to a third party could arise under a contract:

"In Harris v. Board of Water & Sewer Commissioners of Mobile, 294 Ala. 606, 613, 320 So.2d 624, 630 (1975), this Court held that 'where one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third party-not a party to the contract-may occur upon a breach of that duty, the promissor owes that duty to all those within the foreseeable area of risk.' A breach of such a duty that results in injury to a third party who is 'within the foreseeable area of risk' is actionable negligence. Id."

QORE, 25 So.3d at 1124. However, our supreme court further explained that a party seeking to recover under a negligence theory based on a contract between others must prove that it relied on the proper performance of the contract. Id. at 1124-25.

"Even when a third party is not in privity with the parties to a contract and is not a third-party beneficiary to the contract, the third party may recover in negligence for breach of a duty imposed by that contract if the breaching party negligently performs the contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable."

Id. at 1124 (citing Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So.2d 441, 446-47 (Ala. 2006) ).

We find Cincinnati Insurance Companies v. Barber Insulation, Inc., particularly instructive. The plaintiffs in Cincinnati Insurance Companies were the Fains, who had contracted with Dark Alexander & Company, Inc. ("Dark"), which agreed to be the general contractor in charge of the construction of the Fains' lake house. Cincinnati Ins. Cos., 946 So.2d at 442. Dark contracted with Barber Insulation, Inc. ("Barber"), for the provision and installation of insulation in the lake house. Id. Almost a year after construction of the lake house was completed, a pipe in a wall of the house froze, burst, and flooded a part of the house. Cincinnati Insurance Companies ("CIC") insured the lake house; it paid the claim made by Fains and sued, among other defendants, Barber, alleging, among other things, negligence. Id. CIC argued "that Barber 'had a duty to the Fains to install the insulation properly,' and that 'the Fains relied on the contract between [Dark] and Barber.' " Id. at 446. The trial court entered a summary judgment in favor of Barber, and CIC appealed. Id. at 443. Our supreme court affirmed the summary judgment in favor of Barber, explaining that the key to liability for negligence was "particularized reliance." Id. at 448. In its opinion, our supreme court discussed at length Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala. 1984).

Providence Hospital involved, among other issues, whether a subcontractor on a construction project, Berkel & Co. Contractors, Inc. ("Berkel"), could recover from Providence Hospital ("the hospital") and its "agent-architect" on that project, Gill, Korff & Associate, Architects and Engineer, P.C. ("the architect"), damages for negligence, despite the fact that the subcontractor had no contractual privity with either entity. Providence Hosp., 454 So.2d at 501. Berkel had performed its duty under its contract, which was to install piles for the addition to the hospital, based upon the specifications of the architect. Id. at 499. The piles failed load tests, and, ultimately, the initial specifications of the architect were abandoned. Id. at 499-500. Berkel sued the hospital and the architect, arguing that they had "breached their duty of care in directing Berkel's installation of the ... piles." Id. at 501. The trial court entered a judgment in favor of the hospital (the claims against the architect remained pending in the trial court), and Berkel appealed. Id. at 500. Our supreme court reversed the summary judgment entered in favor of the hospital. Id. at 503.

In Cincinnati Insurance Companies, our supreme court explained that "Berkel's own contractual performance depended on the care exercised by the architect; that is, Berkel was relying on the architect, as the hospital's agent, to exercise due care in 'directing the pile work.' 454 So.2d at 503." Cincinnati Ins. Cos., 946 So.2d at 447 (second emphasis added). The Cincinnati Insurance Companies court concluded that

"[t]he element of reliance and the nature of the defendant are the features that most clearly distinguish Providence Hospital from this case. Providence Hospital simply represents the widely recognized rule that architects and similar design professionals may be liable in tort to persons with whom they are not in privity, when it is foreseeable that such persons would detrimentally rely on the professional's representations or performance."

Id. at 447-48 (emphasis added).

In his complaint, Glasgow alleged generally that the surveyor had not properly performed the survey and that it had used improper markers in completing the survey. The survey, according to Glasgow, was used to determine the description of the property for a deed conveying that property, which abuts Glasgow's property, to Hatfield. In addition, Glasgow alleged in his complaint that the description of Hatfield's property based on the survey had resulted in an encroachment upon his property and had created a dispute about the property line between their properties. However, Glasgow's complaint contains no allegation that he had detrimentally relied on the survey. In fact, he challenges it as inaccurate. Thus, we agree with the surveyor that, because Glasgow has not only not alleged that he relied on the survey, but has affirmatively stated that he contests its accuracy, Glasgow could prove no set of facts or circumstances that would entitle him to relief, and we affirm the trial court's dismissal of the claims against the surveyor.

Glasgow also seeks review of the trial court's August 16, 2016, order and August 20, 2016, order insofar as the those orders refused to make Fables an involuntary plaintiff and refused to allow him to join the Hetisimers and the Hannerses as plaintiffs. Because the action, insofar as it sought the determination of the boundary line, still proceeds below, those orders, which denied Glasgow the right to add certain parties as plaintiffs, are interlocutory in nature. The proper method of review of such orders is by a petition for the writ of mandamus. See Ex parte Vice, 190 So.3d 936, 937 (Ala. Civ. App. 2015) (indicating that a petition for the writ of mandamus is the appropriate vehicle to review orders involving joinder under Rule 19 ). Thus, we will treat Glasgow's appeal, insofar as it seeks review of the trial court's denial of his requests to join those parties as plaintiffs, as a petition for the writ of mandamus. See Ex parte Coble, 72 So.3d 656, 657 (Ala. Civ. App. 2011) (stating that this court may consider an appeal from a nonappealable order as a petition for the writ of mandamus).

" ' "A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Exparte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)." ' "

Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005) ).

As noted above, the surveyor's motion to dismiss notified the trial court that certain parties might need to be joined in the action under Rule 19(a). Our supreme court has explained the procedure to be followed when a question is raised regarding whether necessary parties have been properly joined in an action. J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 849-50 (Ala. 1981).

"It is plaintiff's duty to join as a party anyone required to [be] joined under [ Rule 19(a) ]. If such persons are not joined, the plaintiff must, under subsection (c) of Rule 19, ... state their names and the reasons why they are not joined. If there is a failure to join a person needed for just adjudication by a litigant, then, under subsection (a) of Rule 19, the trial court shall order that he be made a party."

Campbell, 406 So.2d at 849-50 (emphasis added).

Shortly after the surveyor moved for dismissal of the complaint on the ground that Glasgow had not joined necessary or indispensable parties, Glasgow added two defendants to the action, both of whom, he generally alleged, would be affected by a determination of the boundary line. Glasgow also attempted to name as co-plaintiffs the Hetisimers, the Hannerses, and Fables, all of whom, he alleged, owned property affected by the survey. Rule 19(a) specifically states that

"[i]f the person [determined to be a necessary party] has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff."

(Emphasis added.) Thus, Glasgow is correct in arguing that the Hetisimers, the Hannerses, and Fables, if they are truly necessary parties, should be made parties to the action under the express language of Rule 19(a).

However, Glasgow has not shown, and arguably cannot show, that he is entitled to have Fables added as an involuntary plaintiff, which is permitted in only limited situations that do not appear to be present in this case. See Ex parte Burford Equip. Co., 474 So.2d 682, 684 (Ala. 1985) (citing 7 Wright and Miller, Federal Practice and Procedure: Civil § 1606 (1972) ) ("A treatise on the identical federal rule notes that joinder as an involuntary plaintiff is proper only in limited situations, where the person is not subject to being made a defendant and has no interest adverse to the plaintiff."); see also 7 Charles Alan Wright, Arthur R. Miller, and Mary K. Kane, Federal Practice and Procedure: Civil § 1606 (3d ed. 2001) ("[I]f the absentee is within the jurisdiction, the absentee must be served with process and made a defendant."). As noted above, Fables is subject to the trial court's jurisdiction and could be named as a defendant; she simply did not want to "get involved" in the dispute when Glasgow asked her about it. Thus, instead of seeking her addition as an involuntary plaintiff, Glasgow should have named her as a defendant; if her interests were aligned with Glasgow's, she could be realigned as a plaintiff at a later time. See Ex parte State ex rel. James, 711 So.2d 952, 968 (Ala. 1998) ("[R]ealignment of parties is permissible under the Alabama Rules of Civil Procedure."). Accordingly, Glasgow has not demonstrated that he has a clear legal right to an order making Fables an involuntary plaintiff.

In addition, Glasgow has not presented authority suggesting that he, as a pro se litigant, can add plaintiffs to his action. Rule 19 certainly indicates that joinder of parties as plaintiffs is possible. However, Glasgow is a pro se litigant, who cannot represent the rights of other parties. Ex parte Ghafary, 738 So.2d 778, 779 (Ala. 1998) (explaining that the right to represent oneself expressed in Article I, § 10, of the Constitution of Alabama of 1901, "does not extend to the representation of interests other than those of the pro se litigant"). The trial court concluded that Glasgow's status as a pro se litigant precluded his ability to name as additional plaintiffs to his action other unrepresented individuals. Although we understand Glasgow's argument in his brief as indicating that he would not be representing the other plaintiffs, who would either proceed pro se or seek legal representation after they were added to the litigation, Glasgow is the only person who signed the amended pro se complaint indicating that the Hetisimers and the Hannerses desired to seek similar relief against the defendants. We have found very little authority on the issue, but the authority we did find indicates that Glasgow cannot, as a pro se litigant, add additional plaintiffs to his action. See Yarbary v. Martin, Pringle, Oliver, Wallace & Bauer, L.L.P. (No. 12-2773-CM-DJW, Oct. 10, 2013) (D. Kan. 2013) (not reported in F. Supp.) (explaining that a pro se litigant may represent only himself or herself before the court and that, therefore, a pro se litigant cannot add another pro se party as a plaintiff to the pro se litigant's action). Furthermore, because Glasgow may represent only himself and not the interests of others, it stands to reason that he may not assert in a complaint that persons other than himself desire to litigate over the boundary line at issue in the present case or to seek damages for the allegedly negligent survey. Based on the arguments presented, we cannot conclude that Glasgow has a clear legal right to have the Hetisimers and the Hannerses added as plaintiffs.

In conclusion, we have determined that Glasgow's appeal, insofar as it is taken from the August 16, 2016, order granting the surveyor's motion to dismiss is properly before this court as a final judgment. We have also determined that the trial court properly granted that motion under Rule 12(b)(6). Thus, we affirm the trial court's August 16, 2016, order insofar as it dismissed the claims against the surveyor. Glasgow's other issue-whether he should be permitted to add certain parties as plaintiffs-is reviewable by petition for the writ of mandamus. Having exercised our ability to treat Glasgow's appeal as a petition for the writ of mandamus, we have concluded that Glasgow is not entitled to an order requiring the trial court to add Fables as an involuntary plaintiff or to add the Hetisimers and the Hannerses as plaintiffs to his pro se complaint. Glasgow's petition is therefore denied.

AFFIRMED; PETITION DENIED.

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

      Rule 19(a), Ala. R. Civ. App., which governs joinder of parties, states, in pertinent part:
      "A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action."

      Again, we note that Glasgow may add the Hetisimers and the Hannerses as defendants, subject to later realignment as their interests warrant.