author: THOMPSON, Presiding Judge.

text:
    Esther M. KAUFMAN v. Charles T. KAUFMAN.
    2060245.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2007.

      Joan-Marie Kettell, Huntsville, for appellant.
    J.R. Herring, Dothan, for appellee.
   On Application for Rehearing.

THOMPSON, Presiding Judge.

The opinion of August 24, 2007, is withdrawn, and the following is substituted therefor.

This is the second time this matter has been before this court.

Esther M. Kaufman (“the wife”) sued Charles T. Kaufman (“the husband”) for a divorce. No children were born of the parties’ marriage, although both parties have adult children from previous marriages. The trial court entered a judgment divorcing the parties and dividing their marital property. The wife appealed that judgment, challenging the property division and alimony award. In Kaufman v. Kaufman, 934 So.2d 1073, 1081 (Ala.Civ.App.2005) (“Kaufman I”), this court reversed the judgment of the trial court, concluding that the property division and alimony award were, inequitable, and remanded the cause for the trial court to fashion an equitable property division and alimony award.

On remand, the trial judge who had entered the original divorce judgment re-cused himself, and another trial judge was appointed. The trial court then conducted an ore tenus hearing on August 21, 2006. On October 26, 2006, the trial court entered a judgment that, among other things, divided the parties’ property and awarded the wife periodic alimony and alimony in gross. The wife filed a post-judgment motion, which the trial court denied. The wife timely appealed.

During the pendency of this appeal, the husband’s attorney filed a suggestion of death indicating that the husband had died on May 21, 2007. We note that a final divorce judgment had been entered before the husband’s death and, therefore, that this appeal was not abated by the death of the husband. Ex parte Parish, 808 So.2d 30, 33 (Ala.2001) (“[T]he common law provides that a divorce action in which no final judgment has been entered is abated by the death of a party.”); and Ex parte Adams, 721 So.2d 148 (Ala.1998)(the settlement agreement was sufficiently final so as to prevent the abatement of the divorce action when the husband died before the trial court incorporated the parties’ agreement into a judgment).

A recitation of the facts of this case is not necessary for the resolution of this appeal. On appeal, the wife contends that the trial court failed to comply with this court’s appellate mandate in Kaufman I when it received additional ore tenus evidence at the August 21, 2006, hearing and when it considered that evidence in fashioning its October 26, 2006, judgment. We agree -with the wife that precedent has established that once an appellate court has determined an issue and remanded the cause to the trial court for the entry of a judgment in compliance with its decision, the trial court, unless otherwise directed by the appellate court, must enter such a judgment based on the evidence as originally presented to it.

“It is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment. See Walker v. Humana Medical Corp., 423 So.2d 891, 892 (Ala.Civ.App.1982). In Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), we held:
“ ‘ “It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered .... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence .... ” 5 Am.Jur.2d, Appeal & Error § 991 (1962).’ ”

Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989) (emphasis added).

After the trial court had entered the original divorce judgment, as well as after this court had released its opinion in Kaufman I, supra, the husband and/or his daughter disposed of certain assets or transferred amounts from the husband’s accounts to certain members of the husband’s family. The evidence presented at the August 21, 2006, hearing focused on the existence and location of the parties’ remaining marital assets and the living expenses of the parties at the time of that hearing. The wife presented the majority of the evidence at the hearing, and the record does not indicate that either party objected to the trial court’s taking additional evidence on remand. In fact, the wife represented to the trial court that the issue to be resolved was the disposition of the remaining marital assets.

“Q. [BY WIFE’S ATTORNEY]: And I’m going to show you in Plaintiffs Exhibit No. 2 under investment account. There was one account that was held in your husband’s individual name; is that correct?
“[THE WIFE]: Yes.
“Q. And the statements are behind the piece of paper here on the top?
“A. Yes.
“Q. All right. And at the time of the last trial in June of 2004, this first account had a balance of $280 in it; is that correct? — $280,000 I’m sorry. See here, 6/25/04?
“A. Yes.
“Q. Where did that $280,000 come from?
“A. Mutual income. It came from our mutual income.
“[HUSBAND’S ATTORNEY]: Your Honor, may I interpose an objection? I don’t recall any testimony at the first trial that indicated there was $280,000 in Mr. Kaufman’s account, and I don’t see any document in here that indicates that there’s $280,000 in the account.
“[WIFE’S ATTORNEY]: 6/25/04.
“[HUSBAND’S ATTORNEY]: Okay.
“[WIFE’S ATTORNEY]: What I did for the Court’s benefit and [the husband’s attorney’s] benefit was take the three at the same time and put those behind my top exhibit for the Court to justify the figures that are in that exhibit.
“THE COURT: You’ve got three different dates.
“[WIFE’S ATTORNEY]: Yes, sir. The significant phases of this trial.
“[HUSBAND’S ATTORNEY]: Your Honor, the balance at the time we tried the case the first time indicated by this statement [was] $211,176.53. The balance was totaled about a month after the case was tried, after the divorce had already been entered. So we will object to her referring to the evaluation after the judgment was entered in June of, I think June 2nd of 2004.
“[WIFE’S ATTORNEY]: The documents are available for your perusal.
“THE COURT: You’re objecting to?
“[HUSBAND’S ATTORNEY]: Well, I think she’s misrepresenting the amount in the account, and the Judge entered the final judgment of the divorce dividing assets at that time. She’s saying that there was $280,000 in Mr. Kaufman’s account when the divorce was initially tried, and there was not that much in his account. There was only this that I have that is in this document. There was $280,000 in there. That was Jirne 24th of ’04. The judgment was entered June 2nd, and the same document clearly shows there was clearly $211,000 in that account.
“[WIFE’S ATTORNEY]: But, Your Honor, there’s not that much in those accounts now, and we expect to present evidence as to the balances in those accounts presently. And Your Honor, it’s our position that given the reversal of the initial divorce decree, monies were taken out of the account.
“THE COURT: What are we trying to do, empty our pockets and then decide where the money goes?
“[WIFE’S ATTORNEY]: Yes. The [de]pletion of the assets during the appeal included $130,000 that was withdrawn 13 days after the Court of Civil Appeals’ action, was taken from her own account.
“THE COURT: We can always allow for that, yes....
“THE COURT: I’ve got to empty it out; is that right?
“[WIFE’S ATTORNEY]: Take what’s left now and divide that up.”

(Emphasis added.)

The wife contends on application for rehearing that she argued “throughout this case that the assets should be divided as they existed at the time of filing or at the time of the original divorce hearing.” Although some evidence presented at the August 21, 2006, hearing reiterated or disputed some of the evidence presented at the original 2003 divorce hearing, much of the evidence presented concerned the existence and amounts of the assets remaining at the time of the August 21, 2006, hearing. She cites the following passage that is a continuation of the discussion quoted above. We note, however, that after the lunch break referenced in the following quotation, the trial resumed without any indication regarding the resolution of the argument quoted above.

“[HUSBAND’S ATTORNEY]: But, Your Honor, this document was not superseded, and while this case was on appeal, my client was free to do what he wanted to with the assets awarded to him. There was nothing filed to supersede this judgement during the time that the case was on appeal. My client was free to do whatever he wanted to with the assets awarded to him just like she did.
“[WIFE’S ATTORNEY]: I can’t say that he’s in contempt although, I argue that the $130,000 that was taken out was done in violation. What happened was this Court entered an order back in 2004 that froze assets, then the divorce decree came out. In ’04, the divorce decree was entered which means that we’re back, which is a freeze order. His daughter then went in and dissipated funds in contempt of this Court’s order. She put money from that account into her own personal account and into her brother’s account and now they want to say, Well, now we don’t have any money left to give to Mrs. Kaufman.’ And this account, especially the one that we’re talking about now that has over $200,000, it is incorrect in deciding that it was not a marital asset and in not awarding Mrs. Kaufman any portion of it.
“THE COURT: You all are just making it a whole lot more complicated than it is. I mean, you all can’t agree on a date or whenever. When we submit it, it’s June of 2004. Then we have an agreement.
“[HUSBAND’S ATTORNEY]: No, sir, I’m not in agreement with that because my client has had expenditures since this divorce was entered that were necessary expenditures for his continued care. That had to come out of this money because that’s all the money that he had.
“THE COURT: Well, I think the date of 2003 sounds like a better date.
“[WIFE’S ATTORNEY]: Yes, sir. That’s when these accounts were supposed to have been frozen.
“[HUSBAND’S ATTORNEY]: But, Your Honor, there’s no caselaw to the effect pending on a reversed ad litem [sic].
“[WIFE’S ATTORNEY]: When was the reversal?
“THE COURT: Pendente [lite] order is entered, it was merged with the final order.
“[WIFE’S ATTORNEY]: And there’s no law to indicate that that pendente lite order is reinstated in the relating order. I’ll show this which is the temporary restraining order that goes back into effect. There was a very specific order about Mr. Kaufman because at the time that this order was entered by Judge Little, he’d already—
“THE COURT: You all want to talk just a minute? Let’s talk for just a second.
“(Luncheon recess was taken.)”

Thus, the record indicates that the trial court expressed some concern regarding the relevant date for ascertaining the contents and valuation of the marital estate. As the wife points out in her brief on application for rehearing, at one point she stated that the property division should be effected as of June 2003, when the parties’ assets were “frozen” pursuant to a pendente lite order. However, the above-quoted portions of the transcript reveal that the wife argued to the trial court that it should divide the assets as they existed at the time of the August 2006 hearing. It appears that the parties and the trial court discussed this issue off the record but that, when the hearing resumed, they failed to record the resolution reached. However, after the hearing on remand resumed, the evidence presented was not confined to the time of the original divorce judgment. Rather, much of the evidence presented concerned the existence and valuation of the marital assets that remained at the time of the August 2006 hearing.

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

Casey v. McConnell, 975 So.2d 384, 389 (Ala.Civ.App.2007).

In Mobile Infirmary Medical Center v. Hodgen, 884 So.2d 801 (Ala.2003), a jury awarded the plaintiff $2,250,000 in punitive damages, but it failed to award the plaintiff any compensatory damages. That verdict was in error under precedent from our supreme court that provides that an award of punitive damages is not allowable in the absence of an award of compensatory or nominal damages. See Life Ins. Co. of Georgia v. Smith, 719 So.2d 797 (Ala.1998). Before it entered a judgment on the jury verdict, however, the trial court had asked the parties if they had any concerns about the verdict, and the defendant hospital failed to object. In fact, “the trial court stated that it thought that it was a good verdict in spite of the absence of an award of compensatory damages!, and] counsel for [the hospital] stated, T do too.’ ” Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d at 819 (Lyons, J., concurring specially). After the judgment was entered, however, the hospital filed a motion for a judgment as a matter of law, arguing that the jury verdict upon which the judgment had been entered was improper because it failed to include an award of compensatory or nominal damages. The trial court denied the hospital’s motion, citing the doctrine of invited error. Our supreme court agreed with the trial court that the hospital had invited the error, and it affirmed as to that issue. In so holding, the court concluded:

“Accordingly, [the hospital] cannot, on the one hand, represent to the trial court that the jury verdict was proper, thus inducing the trial court to enter a judgment on that verdict, and then, on the other hand, argue in posttrial motions that the jury verdict was improper and that [the hospital] is entitled to have a judgment rendered in its favor. Because any error committed by the trial court in entering a judgment upon the jury verdict in this case was invited by [the hospital], [the hospital’s] argument that it is entitled to have a judgment rendered in its favor on this basis must fail.”

Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d at 808.

In this case, during the time the original appeal was pending in this court, certain marital assets were depleted or transferred to the husband’s family members. After remand, the initial trial judge recused himself from the action, and a new trial judge was appointed. The wife did not object to the trial court’s consideration of additional evidence pertaining to the valuation of assets as they existed at the time of the hearing on remand. Rather, the record indicates that the wife presented much of that evidence. The wife first raised an objection to the trial court’s receiving additional evidence in her postjudgment motion and on appeal, after the trial court had entered a judgment that she felt was adverse to her. However, “ ‘[a] party cannot win a reversal on an error that party has invited the trial court to commit.’ ” Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d at 808 (quoting Neal v. Neal, 856 So.2d 766, 784 (Ala.2002)). Given the unique facts and history of this case, as well as the precedent cited above, we conclude that the wife invited the error of which she now complains. Accordingly, we decline to reverse the trial court’s judgment based on the trial court’s having received and considered additional evidence on remand.

The wife also challenges the trial court’s property division and alimony award, contending that they are inequitable and that they exceed the trial court’s discretion. However, only the transcripts from the original divorce hearing and the August 21, 2006, hearing on remand and the exhibits from the original divorce hearing are before this court. The trial court had before it voluminous documentary exhibits from the August 21, 2006, hearing on remand, and those exhibits have not been submitted to this court.

It is the duty of the appellant to ensure that the record on appeal contains sufficient evidence to warrant a reversal of the trial court’s judgment. Parker v. Williams, 977 So.2d 476, 482 (Ala.2007); Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938 (Ala.1997), overruled on other grounds, Ex parte Quality Cas. Ins. Co., 962 So.2d 242 (Ala.2006); and In re Coleman, 469 So.2d 638 (Ala.Civ.App.1985). Further, when all the evidence before the trial court is not submitted to this court as part of the record on appeal, this court must presume that the evidence not before it was sufficient to support the trial court’s judgment. Berryhill v. Mutual of Omaha Ins. Co., 479 So.2d 1250, 1251 (Ala.1985); Wilkens v. Kaufman, 615 So.2d 613, 615 (Ala.Civ.App.1992).

As we stated in our opinion on original submission, inquiries made by this court’s clerk to the trial court’s clerk indicated that the trial court’s clerk did not have the exhibits. This court’s clerk made numerous inquiries to the parties’ attorneys over the course of several weeks in an attempt to obtain those exhibits. In July 2007, a member of the wife’s attorney’s staff informed this court’s clerk that she had only copies of the wife’s exhibits, and another staff member informed this court’s clerk that the court reporter had shipped the transcript and approximately 1,000 pages of exhibits to the trial court’s clerk in February 2007, but at the time of that conversation, the exhibits were missing. In response, this court’s clerk suggested that the wife’s attorney or her staff member attempt to track that shipment and that if the originals could not be located, the record could be supplemented pursuant to Rule 10(f), Ala. R.App. P., to include copies of the missing exhibits. This court’s clerk informed the staff member for the wife’s attorney that in the absence of a motion to supplement to the record on appeal, this court would rule on the appeal in the absence of those exhibits.

As of August 21, 2007, this court had not received the missing exhibits and no attempt to supplement the record had been made by either party. Therefore, three days later, on August 24, 2007, this court released its opinion on original submission. In that opinion, this court held, among other things, that the failure to include in the record on appeal all the evidence before the trial court required this court to presume that the missing evidence was sufficient to support the trial court’s judgment; in support of that conclusion, this court cited Berryhill v. Mutual of Omaha Insurance Co., 479 So.2d 1250, 1251 (Ala 1985), and Wilkens v. Kaufman, 615 So.2d 613, 615 (Ala.Civ.App.1992).

In her brief on application for rehearing, the wife admits that this court invited the parties to supplement the record pursuant to Rule 10, Ala. R.App. P., but she maintains that this court “gave no time limitation by which a supplementation would have to be achieved.” Nine weeks elapsed between June 27, 2007, the date on which this court initiated the investigation into the whereabouts of the exhibits at issue and August 24, 2007, the date on which this court released the opinion on original submission. During that nine-week period, the wife made no filing of any type regarding this issue in this court or in the trial court. This court released our opinion on original submission when it became apparent that no response to our inquiries was forthcoming. We are at a loss to discern how the imposition of a deadline for responding to the court’s inquiries or for supplementing or correcting the record could have impacted this matter.

The wife acknowledges that it is her duty, as the appellant, to ensure that the record on appeal is complete and sufficient to warrant a reversal. See Parker v. Williams, supra, and Alfa Mut. Gen. Ins. Co. v. Oglesby, supra. However, she points out that exhibits are maintained in the custody of the court reporter, see Rule 11(e), Ala. R.App. P., and, based on that fact, she contends that the alleged misplacement of the exhibits should not be held against her. This court might have been persuaded to agree with the wife on that point had it been made at the time the case was miginally submitted to this count.

As indicated earlier in this opinion, Rule 10(f), Ala. RApp. P., governs the procedure for “supplementing or correcting the record” to reflect the evidence presented to the trial court. That rule provides, in pertinent part:

“If admitted or offered evidence that is material to any issue on appeal is omitted from the record after being designated for inclusion as required in Rule 10(b), or if any question arises as to whether the record correctly reflects what occurred in the trial court and the parties cannot stipulate what action should be taken to supplement or correct the record, the appellant or the appellee may file with the trial court a motion to supplement or correct the record on appeal .... Any party filing a motion with the trial court pursuant to this rule shall file a copy of the motion with the clerk of the appellate court and shall serve a copy on the appropriate court reporter, if the reporter’s transcript is to be supplemented or corrected, and on all other parties. Within 14 days (2 weeks) after the filing of a motion pursuant to this rule or after the parties have stipulated as to what action should be taken, the trial court shall enter such orders as are necessary to ensure that the record is complete and that it conforms to the truth. Failure by the trial court to rule on any motion filed in accordance with this rule within that 14-day (2-week) period shall constitute a denial of the motion as of the date of the expiration of the period.
“Any dissatisfied party may, within 7 days (1 week) after the entry of an order on a motion to supplement or correct the record, or, if no order is entered, within 7 days (1 week) of the expiration of the 14-day (2-week) period provided in this rule for entry of an order by the trial court, seek appropriate relief in the appellate court.”

Rule 10(f), Ala. R.App. P.

It is clear that the wife understood that the exhibits submitted at the time of the hearing on remand were not before this court on original submission. In her brief on application for rehearing, the wife contends that those exhibits are “missing.” However, the only information this court has obtained concerning the exhibits is a statement by a staff member for the wife’s attorney that the exhibits had been shipped to the trial court’s clerk but could not be located. The wife did not submit any filing to this court during the time this court’s clerk was inquiring about the status of the exhibits. Therefore, the arguments that the wife makes in her brief on application for rehearing concerning the feasability of the supplementation of the record were not presented to this court on original submission. It is well-settled that issues may not be raised for the first time on application for rehearing. Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 609 (Ala.2002) (opinion on application for rehearing).

We also note that although the wife alleges in her brief on application for rehearing that many of her exhibits “were incapable of being accurately replicated,” she insists that the testimony contained in the transcript of the hearing on remand is sufficient for this court to reconstruct the evidence presented to the trial court and to review its judgment. However, the wife has not assisted this court in that endeav- or. This court has examined the transcript and has concluded that reference to the exhibits submitted during the hearing on remand would be necessary to adequately review the evidence presented to the trial court during the hearing on remand. Further, “[i]t is not the duty of this court to search the record for purposes of determining whether it contains evidence which will support an appellant’s contention.” Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157, 1161 (Ala.Civ.App.1991).

The exhibits documenting much of the evidence upon which the trial court relied in reaching its judgment on remand are not before this court; therefore, we must presume that those exhibits support the judgment. Berryhill v. Mutual of Omaha Ins. Co., supra; Wilkens v. Kaufman, supra. The wife has failed to present a sufficient record to this court indicating that the trial court erred in fashioning its property division and alimony award. Accordingly, we affirm the trial court’s judgment.

The wife’s request for an attorney fee on appeal is denied.

OPINION OF AUGUST 24, 2007, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

PITTMAN, BRYAN, and MOORE, JJ., concur.

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

      . That opinion also addressed and ultimately dismissed the wife's appeal from an order finding her to be in contempt. Kaufman I, 934 So.2d at 1082.

      . This court, ex mero motu, took judicial notice of the prior proceedings. See Ex parte Cade, 521 So.2d 85, 87-88 (Ala.1987).


source: Caselaw Access Project

author: PER CURIAM. BOLIN, Justice

license: Public Domain

text:
    Ex parte Esther M. KAUFMAN (In re Esther M. Kaufman v. Charles T. Kaufman).
    1070283.
    Supreme Court of Alabama.
    May 1, 2009.
    Joan-Marie Kettell Dean, Huntsville, for petitioner.
    J.R. Herring, Dothan, for respondent.
   PER CURIAM.

WRIT QUASHED.

LYONS, WOODALL, PARKER, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., and STUART, SMITH, and BOLIN, JJ., dissent.

BOLIN, Justice

(dissenting).

I believe the Court of Civil Appeals erred in affirming the trial court’s judgment entered after that court had remanded the case for the trial court to fashion an equitable property division and alimony award. Accordingly, I must dissent from quashing the writ of certiorari.

Facts and Procedural History

The wife, Esther M. Kaufman, sued her husband, Charles T. Kaufman, for a divorce. The parties had been married for more than 33 years; no children were born of the marriage. Both parties had children from previous marriages. At the time of the ore tenus hearing in the divorce proceedings in 2004, the husband was 87 years old and the wife was 66 years old. After the trial court entered its final judgment of divorce, the wife appealed. Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005) (“Kaufman I”). The Court of Civil Appeals held:

“In this case, the parties were married for 33 years. They are both at or nearing retirement age and are receiving retirement income. The trial court’s comments made during the course of the hearing indicate that it considered primarily the husband’s financial contributions to the marriage and placed little value on the wife’s contributions, both monetary or otherwise, to the marriage. The trial court appears to have improperly determined that the assets listed in Exhibit 1 were not all marital assets.[] In addition, we note that the trial court improperly considered the parties’ settlement negotiations in reaching its division of the parties’ marital property and in its alimony award. The trial court’s property award disproportionately favors the husband, and, given the foregoing and the length of the parties’ marriage, we must conclude that the trial court abused its discretion in reaching its property division and alimony award.[] We reverse and remand for the trial court to enter a judgment fashioning an equitable property division and alimony award.
“As noted earlier in this opinion, the June 8, 2004, divorce judgment contains a provision offering the husband an election between purchasing from the wife her interest in the marital residence and its contents or selling the residence and its contents, as well as a provision requiring that the furnishings be sold and the proceeds divided between the parties. A November 17, 2004, entry on the case action summary indicates that the trial court, among other things, purported to delete the provision requiring the sale of the furnishings. However, because more than 30 days had passed since the entry of the divorce judgment and also because the trial court had already denied the wife’s postjudgment motion, the trial court lacked jurisdiction to enter that part of its November 17, 2004, order. Therefore, that order was a nullity and had no effect. See McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995) (property-division portion of a divorce judgment is not modifiable after 30 days of the entry of the divorce judgment); and Reaves v. Reaves, 883 So.2d 693, 695 (Ala.Civ.App.2003) (trial court’s purported amendment of a divorce judgment after it had already denied a postjudgment motion was a nullity).”

934 So.2d at 1080-81. The wife also challenged the trial court’s order finding her in contempt and imposing sanctions for her purported violation of its order prohibiting the parties from removing property from their marital residence during the pen-dency of this matter. However, the husband did not submit a filing fee when he filed his motion to impose sanctions, and a motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee. Therefore, the husband did not properly invoke the jurisdiction of the trial court, and the contempt order was void for want of subject-matter jurisdiction. 934 So.2d at 1082. The Court of Civil Appeals reversed the trial court’s judgment and remanded the case “for the trial court to enter a judgment fashioning an equitable property division and alimony award.” 934 So.2d at 1081.

On remand, the trial judge who had entered the original divorce judgment re-cused himself, and another trial judge was appointed. It appears that after the trial court had entered its original divorce judgment as well as after the Court of Civil Appeals had released its opinion in Kaufman I, the husband and/or his daughter disposed of certain assets or transferred amounts from the husband’s accounts to certain members of the husband’s family.

The trial court conducted a hearing on August 21, 2006. At that hearing, the parties discussed the date that should be used in valuing the parties’ marital assets. A lunch recess was taken, and, when the hearing resumed, the record does not reflect that the valuation-date issue had been resolved. However, after the hearing resumed, the evidence of the value of the parties’ marital assets was not confined to the value at the time of the original divorce, which position the wife was advancing. On October 26, 2006, the trial court entered a judgment that divided the parties’ property and awarded the wife periodic alimony and alimony in gross. Apparently, in this second order the wife was awarded less than she was in the original divorce judgment. The wife filed a post-judgment motion, which the trial court denied. The wife timely appealed, arguing that the trial court failed to comply with the Court of Civil Appeals’ mandate in Kaufman I when it received additional ore tenus evidence relating to the then current value of the parties’ marital assets at the August 21, 2006, hearing and when it considered that evidence in fashioning its October 26, 2006, judgment.

The Court of Civil Appeals agreed with the wife, noting:

“[Precedent has established that once an appellate court has determined an issue and remanded the cause to the trial court for the entry of a judgment in compliance with its decision, the trial court, unless otherwise directed by the appellate court, must enter such a judgment based on the evidence as originally presented to it.
“ ‘It is well settled that, after remand, the trial court should comply strictly with the mandate of the appellate court by entering and implementing the appropriate judgment. See Walker v. Humana Medical Corp., 423 So.2d 891, 892 (Ala.Civ.App.1982). In Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), we held:
“ ‘ “ ‘It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered .... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence 5 Am. Jur.2d, Appeal & Error § 991 (1962).” ’
“Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989).”

Kaufman v. Kaufman, 22 So.3d 458, 460 (Ala.Civ.App.2007) (“Kaufman II”) (emphasis added). The Court of Civil Appeals went on to hold, however, that any error by the trial court on remand in taking and considering additional evidence relating to the value of the parties’ marital assets as those assets existed at the time of the August 21, 2006, hearing was invited error by the wife and could not be grounds for a reversal of the trial court’s judgment when the wife presented much of the additional evidence considered by the trial court. The Court of Civil Appeals also held that the wife failed to present a sufficient record on appeal to indicate that the trial court erred on remand in its property division and alimony award where the only materials before the Court of Civil Appeals were the transcripts from the original ore tenus hearing held in 2004 and the August 21, 2006, hearing on remand and the exhibits from the original divorce hearing. The Court of Civil Appeals noted that the trial court had before it documentary exhibits from the August 21, 2006, hearing and that those exhibits were apparently missing and had not been submitted to the appellate court as part of the record. The Court of Civil Appeals held that it would presume that the missing exhibits would support the trial court’s judgment because the wife had the duty to ensure that the record contained sufficient evidence to warrant a reversal of the trial court’s judgment. The wife timely sought certiorari review.

Discussion

The wife argues that the Court of Civil Appeals erred in holding that she invited error in acquiescing to the opposing party’s position that she should receive only a portion of the assets of the marital estate valued at the time of the August 21, 2006, hearing. It appears that the wife is arguing that the transcript of the August 21, 2006, hearing does not reflect that she agreed that the issue to be resolved on remand was the disposition of the marital assets valued as of August 21, 2006. If, as it appears in the transcript, the parties had an off-the-record discussion and assuming the discussion concerned the wife’s objection to the using August 21, 2006, as the valuation date, then the wife could have properly presented the unreported objection, assuming that it was made and was simply omitted from the transcript. Rule 10(f), Ala. R.App. P., provides for the supplementation or correction of the record on appeal to correctly reflect the proceedings at the trial court level.

“By its plain wording Rule 10(f) extends broad coverage and protection to the parties in having material omissions of ‘what occurred’ added to the record.... [We are] mindful that Rule 10(f) provides broad leeway in making the record ‘conform to the truth’ and mindful that the appellate rules ‘shall be construed so as to assure the just ... determination of every proceeding on its merits.’ ”

Weaver v. State, 401 So.2d 344, 348 (Ala.Crim.App.1981). The wife made no attempt to correct any omission from the record; therefore, I believe that the wife waived any alleged error based upon the omission from the transcript of her objection to the valuation date. I disagree with Court of Civil Appeals’ determination that the wife invited error.

The wife next argues that the Court of Civil Appeals erred in determining that she failed to present a sufficient record on appeal when the exhibits admitted at trial and marked to be included in the record on appeal were missing. Rule 10, Ala. R.App. P., addresses the composition of the record on appeal. Rule 10(b), Ala. RApp. P., provides that the appellant shall designate which parts of the clerk’s records the appellant wants to present on appeal or may designate all such records. Rule 10(b) goes on to provide that “[designated documents incapable of being legibly or otherwise photocopied, including those of unusual weight or bulk, and physical exhibits shall be made a part of the clerk’s record by reference but placed in a suitable separate container for transmittal to the appellate court.”

Rule 11, Ala. R.App. P., addresses the mechanics of completion and transmission of the record on appeal. Rule 11(a) requires that the record shall contain an “index of papers, documents, written charges, exhibits, etc., included in the clerk’s record, an index of those documents and exhibits to be filed in the appellate court in a separate container, and also an index of any documents and exhibits omitted from the clerk’s record with a full description of each item.” Rule 11(e) addresses the custody of any exhibits and provides:

“The court reporter shall file all exhibits, including photographs, with the clerk of the trial court within 14 days (2 weeks) of the notice of appeal in both civil and criminal cases, assembled in a flat file. All exhibits incapable of being assembled in a flat file shall be delivered to the clerk’s office in a suitable separate container. An index of the exhibits, including those that are delivered to the clerk of the trial court in a separate container, shall be included in the flat file. The index shall also indicate those exhibits that were offered and not admitted, as well as the exhibits that were admitted.”

There is a document in the present case entitled “Plaintiffs Exhibit List,” which contains a list of 15 exhibits. I note that the transcript indicates that at least 18 exhibits were discussed during the August 21, 2006, hearing. None of those exhibits are photocopied into the record nor is there an index of the “exhibits to be filed in the appellate court in a separate container.” The Court of Civil Appeals’ opinion describes telephone calls by personnel in the Court of Civil Appeals’ clerk’s office to the clerk of the trial court and the parties’ attorneys regarding the missing exhibits. It appears that the clerk of the trial court indicated that the exhibits were not with the record and that the court reporter had either lost the exhibits or had shipped the exhibits to the trial court clerk and the exhibits were missing from the shipment.

I recognize that it is the appellant’s responsibility to see that the record is prepared and filed in a timely manner, and that an appeal may be dismissed if the appellant does not do so. However, the exhibits were not transmitted, and, as Rule 11(e) makes clear, the exhibits were in the custody of the court reporter who, in turn, was to file the exhibits with the trial court clerk within 14 days of the notice of appeal. I cannot fault the wife or the wife’s counsel for the nonfeasance of court personnel.

I also recognize that Rule 10(f), Ala. R.App. P., as discussed earlier, provides for the supplementation of the record when there has been an omission. Rule 10(f) provides that if material that has been designated for inclusion in the record is omitted, the appellant or appellee may file with the trial court a motion to supplement the record on appeal. Any party filing such a motion with the trial court shall file a copy of the motion with the clerk of the appellate court and shall serve a copy on the court reporter, if the reporter’s transcript is to be supplemented, and on all parties. The trial court has 14 days to rule on the motion, and, if no action is taken, the motion is deemed denied. After that, any dissatisfied party may seek relief with the appellate court.

In the present case, I do not believe that the wife would have been on notice that the exhibits were missing from the case before the case was submitted to the Court of Civil Appeals because the wife had designated that the exhibits be part of the record and the exhibits were in the custody and control of the court reporter. When the Court of Civil Appeals realized that the exhibits had not been sent along with the record, it attempted an informal supplementation of the record. The Court of Civil Appeals’ opinion notes conversations between unnamed members of the clerk’s office of the Court of Civil Appeals and unnamed office members of counsel for the wife along with a conversation with the clerk of the circuit court.

Rule 10(f), Ala. R.App. P., provides that an “appellate court may, on motion of a party or on its own initiative, order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission .... ” Rule 10(f) further provides that “[e]very order of the ... appellate court directing that the record on appeal be supplemented or corrected shall be filed with the clerk of the court entering the order, who shall forthwith serve a copy of the order on each party [and] on the clerk of the other court involved.” The role of the appellate court is to review and correct errors of the proceedings below, and it is bound by the record before it. The Court of Civil Appeal’s clerk’s office was either attempting to ask the parties to supplement the record or was seeking a supplementation on its own accord. However, the informal manner in which the clerk’s office handled the matter did not comply with Rule 10(f), as no written notice was given to the parties.

Under the peculiar facts of this case, I would reverse the judgment of the Court of Civil Appeals and remand the case for that court to determine if the exhibits can be reproduced and, if so, to allow the parties to supplement the record with the reproduced exhibits. See Rule 2, Ala. R.App. P., allowing for a suspension of the Rules of Appellate Procedure where manifest injustice would otherwise result. The Court of Civil Appeals could then review the trial court’s disposition of the marital assets following the August 21, 2006, hearing. If the exhibits cannot be reproduced, then the wife would be entitled to a new trial. See, e.g., Ex parte Steen, 431 So.2d 1385 (Ala.1983) (holding that new trial was warranted where defendants had been attempting without success to obtain transcripts of their trials and in which the court reporter who had recorded the proceedings had died and preparation of succinct statements in lieu of the transcripts would not afford the defendants a viable remedy in light of the allegations of error involving most of the testimony).

I believe that the Court of Civil Appeals correctly held that the trial court, in its original award, erred in dividing the marital property and in awarding alimony. The parties were married for 33 years, and the wife was awarded approximately 23% of the parties’ marital estate. It now appears that the trial court’s award following the Court of Civil Appeals’ remand in Kaufman I awarded the wife less than the original award. Nevertheless, the wife is essentially being denied a full review of the award on remand (because there are no exhibits to support the wife’s claims) through no fault of the wife’s. Therefore, I dissent.

COBB, C.J., concurs.

      . The husband died while the case was pending on appeal from the order entered on the Court of Civil Appeals’ remand. Abatement does not occur when the divorce judgment affects property rights, and matters touching the parties' property rights under the divorce judgment are amenable to alteration or modification upon timely motion or upon appeal. Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (1941); Hill v. Lyons, 550 So.2d 1004 (Ala.Civ.App.1989).

      . Exhibit 1 was submitted by the husband and contained a list of the parties' assets and the husband's valuations of those assets.

      . The trial court awarded the wife approximately 23% of the parties’ marital estate and awarded the wife $500 per month in periodic alimony for five years.

      . The Court of Civil Appeals, ex mero motu, took judicial notice of the records from the appeal of the original divorce judgment in Kaufman I.

      . In 1991, Rule 10, Ala. R.App. P., was rewritten; Rule 10(f) now applies only to civil cases, and Rule 10(g) was added to govern the supplementation and correction of the record in criminal cases.

      . "Omitted” exhibits refer to exhibits that have not been designated for inclusion in the record on appeal.


author: BRYAN, Judge. PITTMAN, Judge,

text:
    W.E. BUTTERWORTH III v. Thomas F. MORGAN and Holley S. Morgan.
    2070141.
    Court of Civil Appeals of Alabama.
    June 13, 2008.
    Rehearing Denied Oct. 10, 2008.
    Charles C. Simpson III of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Bay Minette, for appellant.
    Jessica M. McDill of Chason & Chason, P.C., Bay Minette, for appellees.
   BRYAN, Judge.

W.E. Butterworth III appeals from a judgment determining that Thomas F. Morgan and Holley S. Morgan had established an easement by prescription over Butterworth’s property. We reverse and remand.

Factual Background and Procedural History

The Morgans own a tract of property, the western boundary of which fronts the eastern shore of Mobile Bay. Butterworth owns a tract of property lying adjacent to and east of the Morgan property. In 1985, R. Michael Thompson and Patricia Thompson acquired a tract of property that now comprises the Morgan property and the Butterworth property. In 1989, the-Thompsons conveyed the Butterworth property by deed to Brett Real Estate, Robinson Development Co., Inc. (“Brett-Robinson”). In that deed, the Thompsons reserved a 12-foot-wide easement (“the deeded easement”) across the southern part of the Butterworth property in order to provide ingress to and egress from the Morgan property. Beginning from the boundary along the southeastern corner of the Morgan property, the deeded easement runs across the southern part of the Butterworth property, continues northeast and east across other properties, and eventually connects with Baldwin County Highway 11. Brett-Robinson subsequently conveyed the Butterworth property to Ray E. Case, and, in 1993, Case conveyed that property to Butterworth.

In 1997, Patricia Thompson became the sole owner of the Morgan property. In 2000, Patricia Thompson conveyed that property to the Morgans. At that time, the Morgans also acquired the deeded easement established in 1989 over the But-terworth property.

A driveway crosses the southern part of both the Morgan property and the Butter-worth property, providing access to the properties from Highway 11. The driveway existed in 1985 when the Thompsons acquired the Morgan property and the Butterworth property, and the driveway has been used since then to access those properties. Portions of the driveway run along portions of the deeded easement. At some points, the driveway does not touch the deeded easement. The driveway generally lies slightly north of the dimensions of the deeded easement.

In 2005, Butterworth sued the Morgans, alleging, among other things, that the Morgans were trespassing on his property by using the driveway. In 2006, the Morgans filed a counterclaim asserting that they had established a prescriptive easement to use the driveway. At trial, the trial court received oral testimony and documentary evidence. The trial court subsequently entered a judgment concluding, among other things, that the Morgans had established a prescriptive easement to use the driveway “for the purposes of ingress, egress, and utility access.” The trial court’s judgment also stated that the Morgans held the prescriptive easement to use the driveway in addition to the deeded easement over the Butterworth property. Butterworth appealed to the supreme court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

“[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). However, “the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005). “Questions of law are reviewed de novo.” Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Discussion

“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.”

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

On appeal, Butterworth first argues that the trial court erred in finding that the Morgans had established a prescriptive easement to use the driveway because, he says, the Morgans did not satisfy the requisite 20-year period of use. As noted, between 1985 and 1989, the Thomp-sons owned both the Morgan property and the Butterworth property. “ ‘The time for acquiring an easement by prescription does not run while the dominant and ser-vient estates are in the occupation of the same person.’ — Jones on Easements, § 166.” Barker v. Mobile Elec. Co., 173 Ala. 28, 43, 55 So. 364, 368 (1911). See also Burk v. Tyrrell, 212 Ga. 239, 244, 91 S.E.2d 744, 748 (1956) (“Unity of possession of both the dominant and servient tenements is inconsistent with adverse use, and such use could not begin until after a severance of the two estates.”); and Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs. Ltd., 247 Ga. 578, 578, 277 S.E.2d 673, 674 (1981) (stating that adverse use did not begin until the severance in the ownership of two estates).

In this case, the dominant estate — the Morgan property — and servient estate— the Butterworth property — were owned by the Thompsons between 1985 and 1989. In 1989, the Thompsons sold the Butter-worth property. Therefore, regarding use of the driveway, any period of use adverse to the owner of the Butterworth property could not have begun until 1989, less than 20 years before the Morgans claimed a prescriptive easement to use the driveway in 2006. Id. Accordingly, because the required 20-year period of adverse use could not have been satisfied in this case, the trial court erred in concluding that the Morgans had established a prescriptive easement to use the driveway.

The Morgans seem to argue that, regardless of whether they obtained a prescriptive easement, they obtained an easement to use the driveway by “adverse use for the statutory period.” See Kirkland v. Kirkland, 281 Ala. 42, 47, 198 So.2d 771, 774-75 (1967) (stating that an easement may be established by “adverse user for the statutory period”). In its judgment, the trial court did not address whether the Morgans had established an easement to use the driveway by any means other than prescription. However, this court generally “ ‘ “will affirm the judgment appealed from if supported on any valid legal ground.” ’ ” Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala.2003) (quoting Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988)). But see Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003) (stating exceptions to the general rule that an appellate court will affirm a judgment on any valid legal ground). Therefore, we address the Morgans’ arguments that the trial court’s judgment finding an easement to use the driveway may be affirmed on grounds not stated by the trial court.

“An easement by ‘adverse use for the statutory period’ requires satisfaction of the nontemporal elements of the prescriptive easement, plus one of the three additional i’equirements of Ala.Code 1975, § 6-5-200:
“‘(a) Adverse possession cannot confer or defeat title to land unless:
“ ‘(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
“ ‘(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or
“ ‘(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land.’
“(Emphasis added.) If the requirements of ‘adverse use for the statutory period’ are met, then a use will ripen into an easement by adverse possession in 10 years, instead of the 20 years required to establish a prescriptive easement. Downey v. North Alabama Mineral Dev. Co., 420 So.2d 68 (Ala.1982). ‘Because of the unique nature of the easement interest, it is indeed rare that an easement is claimed under the ten-year rule set out in ... § 6-5-200. The more common method used to claim that an easement has been established is the rule of prescription.’ Jesse P. Evans, Alabama Property Rights and Remedies § 10.4(b) (2d ed.1998) (footnote [omitted]).”

Jones v. Johnson, 827 So.2d 768, 772 (Ala.2002).

In this case, the Morgans have not satisfied any of the aforementioned requirements under § 6-5-200, Ala.Code 1975, for establishing an easement to use the driveway. Accordingly, the Morgans’ argument that they have established an easement to use the driveway “by adverse use for the statutory period” fails.

Although it is unclear, the Morgans also seem to suggest that they have obtained an easement to use the driveway because they and Butterworth are coterminous landowners and, say the Morgans, they have met the elements of a prescriptive easement for a 10-year period.

“Section 6-5-200(c) provides: ‘This section shall not be construed ... to affect cases involving a question as to boundaries between coterminous owners.’ ... Thus, the requirements of col- or of title, payment of taxes, or derivation by descent cast do not apply to ‘cases involving a question as to boundaries between coterminous owners.’ See Strickland v. Markos, 566 So.2d 229, 232 (Ala.1990); Berry v. Guyton, 288 Ala. 475, 262 So.2d 593, 595 (1972). Disputes between coterminous landowners are subject to [the following] rule:
“ ‘If two coterminous proprietors agree on a boundary line, and each occupies to its location, the possession is presumed adverse, and after ten years has the effect of fixing such line as the true one. If a coterminous landowner holds actual possession of the disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken.’
“Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900 (1929) (citations omitted).”

Jones, 827 So.2d at 772 n. 2 (emphasis omitted).

In Jones, our supreme court, based on the facts of that case, declined to decide whether a coterminous landowner can acquire an easement, as opposed to fee simple title, after adverse possession for 10 years. Id. at 772-73. We need not decide this question because, although the Morgans and Butterworth are coterminous landowners, the dispute over the driveway does not “involv[e] a question as to the boundaries” between the Morgan property and the Butterworth property. Accordingly, we decline to address this issue further.

The Morgans also argue that, regardless of whether they obtained a prescriptive easement, they obtained an implied easement to use the driveway. As noted, the Morgans hold the deeded easement intended to provide access to and from the Morgan property over the But-terworth property. “[A]s a general rule, the express grant of an easement negates an implied grant of an easement of a similar character.” 25 Am.Jur.2d Easements and Licenses § 19 (2004). See Waters v. North Carolina Phosphate Corp., 310 N.C. 438, 441, 312 S.E.2d 428, 432 (1984) (“The express granting of an easement negatives the finding of an implied easement of similar character.”); Mougey Farms v. Kaspari, 579 N.W.2d 583, 587 (N.D.1998) (“[G]enerally the express grant of an easement negates an implied easement of a similar character.”); and Walter v. Introcaso, 135 N.J.L. 461, 463, 52 A.2d 676, 678 (N.J.1947) (“No grant of an easement can arise by implication where there is an express contract relating to the matter.”). In this case, the purported implied easement to use the driveway and the deeded easement are clearly similar in character. Because the Morgans possess the deeded easement over the Butterworth property, we will not find an implied easement over the same property.

Conclusion

We reverse the judgment of the trial court insofar as it concluded that the Morgans had established a prescriptive easement to use the driveway over the Butter-worth property, and we remand the case for proceedings consistent with this opinion. This holding pretermits discussion of the other arguments made by Butter-worth.

REVERSED AND REMANDED.

THOMPSON, P.J., and MOORE, J., concur.

PITTMAN, J., concurs specially, which THOMAS, J., joins.

PITTMAN, Judge,

concurring specially.

I concur in the main opinion. In doing so, I note that the Morgans did not ask the trial court to reform the deeds in the chain of title between the Thompsons and But-terworth in which the easement was set forth, even though the driveway across the Butterworth property had apparently existed at the time that the Thompsons held title to both the Butterworth property and the Morgan property. Compare Hughes v. Fisher, 142 Idaho 474, 482, 129 P.3d 1223, 1231 (2006) (trial court properly reformed deed from original grantor to original grantee to provide that an express easement would be located along the location of an existing driveway constructed by the original grantor). Because no such request was made, whether such relief would be warranted in this case must await another day.

THOMAS, J., concurs.


author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte Thomas F. MORGAN and Holley S. Morgan (In re W.E. Butterworth III v. Thomas F. Morgan and Holley S. Morgan).
    1080109.
    Supreme Court of Alabama.
    May 15, 2009.
    Jessica M. McDill of Chason & Chason, P.C., Bay Minette, for petitioners.
   PER CURIAM.

The petition for the writ of certiorari is denied. In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973). See Rules 39(a)(1)(D) and 39(d)(3), Ala. R.App. P.

WRIT DENIED.

COBB, C.J., and LYONS, WOODALL, SMITH, BOLIN, and PARKER, JJ„ concur.

MURDOCK, J., concurs specially.

STUART, J., dissents.

MURDOCK, Justice

(concurring specially).

I concur in the decision of the Court to deny the petition for the writ of certiorari. I write separately to explain my reason for concurring in the Court’s citation of Rules 39(a)(1)(D) and 39(d)(3), Ala. R.App. P., as grounds for that denial and, as a corollary, to explain my reason for concurring in the Court’s caveat that it does not wish to be understood as agreeing with all the reasoning and statements of law in the Court of Civil Appeals’ opinion. See Horsley v. Horsley, 291 Ala. 782, 782, 280 So.2d 155, 156 (1973).

With respect to the reliance on Rules 39(a)(1)(D) and 39(d)(3) for denying the petition, I note that, among other things, the petition asserts a conflict between the decision of the Court of Civil Appeals in the present case and its decision in Arp v. Edmonds, 706 So.2d 736 (Ala.Civ.App.1997). Rules 39(a)(l)(D)l. and 39(d)(3)(A) require that, where it is feasible to quote that part of the opinion of the Court of Civil Appeals alleged to be in conflict with a prior decision, “the petition must quote that part of the opinion of the court of appeals and that part of the prior decision the petitioner alleges are in conflict.” See also Rules 39(a)(l)(D)2. and 39(d)(3)(B), Ala. RApp. P. (explaining the procedure required when it is not feasible to quote that part of the opinion of the court of appeals alleged to be in conflict with the prior decision). Although it appears feasible to quote that part of the opinion of the Court of Civil Appeals alleged to be in conflict with Arp, the petition quotes neither that opinion nor the decision in Arp.

As to the substantive merits of this case, the opinion of the Court of Civil Appeals succinctly summarizes the pertinent facts and procedural history. Butterworth v. Morgan, 22 So.3d 473, 474 (Ala.Civ.App.2008). On appeal, in their effort to persuade the Court of Civil Appeals to uphold the judgment of the trial court, Thomas F. Morgan and Holley S. Morgan argued, among other things, that an implied easement to use the existing driveway existed in their favor. The Court of Civil Appeals rejected their argument, however, on the ground that, “ ‘[a]s a general rule, the express grant of an easement negates an implied grant of an easement of a similar character.’ 25 Am.Jur.2d Easements and Licenses § 19 (2004).” Butterworth, 22 So.3d at 477. The Court of Civil Appeals also cited precedent from other states in support of this general rule. 22 So.3d at 477.

Notwithstanding the foregoing, it has also been noted that

“[a] conveyance expressly providing for certain easements warrants an inference that no other easements are intended. However, such inference will not override a clearly apparent intent to include other easements, and it has been held that an express provision for an easement is immaterial on the question of implied easements.”

28A C.J.S. Easements § 76 (2008)(empha-sis added); see also Restatement (Third) of Property (Servitudes) § 2.12 cmt. h (2000) (“Implication of a servitude under the rule stated in this section is based on what the parties probably intended or had reasonable grounds to expect. The implication does not arise if the facts or circumstances of the conveyance indicate that the parties did not intend to create a servitude to continue the prior use, or that the parties did intend to create rights to terminate the existing utility arrangements.... Economic consequences to both parties may be relevant indicators of their expectations.”).

In their petition to this Court, the Morgans contend that “holding or obtaining implied ... easements in addition to an express easement is not legally inconsistent under Alabama law.” Petition, at 5. One of the cases relied upon by the Morgans for this contention is the above-referenced case of Arp v. Edmonds, 706 So.2d 736 (Ala.Civ.App.1997).

In their petition, the Morgans correctly describe Arp as a case in which the Court of Civil Appeals “reversed a trial court for refusing to find an implied easement over the portion of [a dirt] road that was located outside the express easement for the convenience of the parties.” Petition, at 5; see Arp, 706 So.2d at 738-39. The trial court in Arp determined that the “ ‘old [dirt] road’ ” across the subservient estate in that case “ ‘did not follow the description set forth in one or more deeds’ ” by which the subservient property had been conveyed. 706 So.2d at 737. On appeal, the Arp court noted:

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

706 So.2d at 738. The Arp court then concluded:

“In this case the material facts were undisputed. The trial court did not find an easement by implication. Based on the record before us, we conclude that the Arps presented substantial evidence of unity of ownership, that the dirt road was used openly and continuously since 1971, that the easement was necessary to reach the Arps’ property, and that the trial court misapplied the law to the facts. Underwood v. Shepard, 521 So.2d 1314 (Ala.1988).”

706 So.2d at 739.

The facts presented here are sufficient to indicate a conflict between the decision of the Court of Civil Appeals in this case and the decision of the Court of Civil Appeals in Arp. It is true, as noted by the Court of Civil Appeals in this case, that the driveway that has been in actual use in this case does not follow exactly the description of the express easement in the deed conveying the servient estate. This was also true with respect to the dirt road in Arp, yet the Court of Civil Appeals reversed the judgment of the trial court in that case for failing to find an implied easement over that road.

In this case, both the property owned by the Morgans and the property owned by W.E. Butterworth III were owned by R. Michael Thompson and Patricia Thompson in 1985 (unity of ownership), and the driveway at issue was in existence and in open and continuous use at that time. The express easement was first described in the deed conveying the Butterworth property from the Thompsons to a predecessor in title of Butterworth in 1989, yet both before and after the reservation of that easement the Thompsons continued to use the actual driveway as their means of ingress and egress. Likewise, apparently, the language describing the express easement was included in the deed by which the Butterworth property was conveyed to Butterworth in 1993, and yet both before and after that conveyance the Thompsons and their successors in title continued to use the actual driveway as their means of ingress and egress. In short, notwithstanding the inclusion of the express-easement language in more than one deed conveying the Butterworth property to different parties since 1985, the driveway has been in “open, visible, continuous, and reasonably necessary” use by the owners of the Morgan property as the means of ingress and egress to and from that property from at least 1985 to the filing of the instant action in 2005. See Butterworth, 22 So.3d at 474.

Based on the foregoing, this is arguably a case in which whatever inference is to be derived from the inclusion in Butter-worth’s deed of the language of the express easement at issue does not override the apparent intent and reasonable expectations of the parties that the actual driveway would continue to be used for the benefit of the Morgan property.

      . Also, according to the Morgans' petition, (a) language in a corrective deed executed in conjunction with Butterworth's acquisition of the Butterworth property in 1993 made the conveyance of that property "expressly subject to '[ejxisting paved drive not being completely located within the above-described ingress, egress, and beach walk easement,’" and (b) the Butterworth property has physical characteristics that make the use of the express easement impractical.


author: THOMAS, Judge. BRYAN, Judge,

text:
    Joyce T. LAMBERT v. Raymond A. LAMBERT.
    2070583.
    Court of Civil Appeals of Alabama.
    Dec. 31, 2008.
    Rehearing Denied Feb. 13, 2009.
    Certiorari Denied May 8, 2009 Alabama Supreme Court 1080627.

      Grady R. Edmondson, Mobile, for appellant.
    W. Gregory Hughes, Mobile, for appel-lee.
   THOMAS, Judge.

Joyce T. Lambert (“the wife”) and Raymond A. Lambert (“the husband”) were divorced in 1995. The divorce judgment incorporated an agreement of the parties providing that the wife would have custody of the parties’ minor child and the husband would pay $1,000 per month in child support — an amount that, the parties recognized in paragraph 4 of the agreement, was “not in conformity with [the Child Support Guidelines of] Rule 32, Alabama Rules of Judicial Administration,” but an amount that, the parties agreed, was “based upon a full and fair property settlement between the parties.” The judgment further provided, in pertinent part:

“2. That each party waives the right to receive alimony or support, whether periodic or in gross, from the other except as specifically provided below.
“8. That Defendant Husband shall construct a home for Defendant Wife in Cherry Ridge Subdivision with an appraised value of not less than $140,-000.000 nor more than $150,000.00 .... Defendant Husband shall be responsible for and pay the mortgage on said home with Plaintiff Wife being responsible for payment of taxes and insurance thereon.
“9. That as support and maintenance, Defendant Husband shall pay to Plaintiff Wife the sum of $25,000.00 within sixty (60) days of the date of the entry of a Judgment of Divorce herein.
“10. That as additional support and maintenance, Defendant Husband shall pay to Plaintiff Wife the sum of $20,000.00 on or before June 1, 1997.
“11. That title to the Cherry Ridge home shall be placed in Plaintiff Wife subject to a first mortgage to be secured by Defendant Husband in an amount not to exceed 80% of the appraised value to be amortized over a period not to exceed thirty (30) years, the payment of which shall be the sole responsibility of Defendant Husband. Said home shall not be further mortgaged or encumbered nor shall the original mortgage referred to herein be extended or altei*ed in any of its terms by either party without the express written permission of Plaintiff Wife and Defendant Husband, said permission not to be unreasonably withheld. Upon sale of the Cherry Ridge home, remarriage of Plaintiff Wife, her cohabitation with a member of the opposite sex or upon her ceasing to occupy said Cherry Ridge home place as her principal residence prior to the minor child of the parties attaining the age of nineteen (19) years, then Defendant Husband shall receive an amount equal to one-half of the appraised value of said home place as of the date of its construction. In the event that said house is not sold, Plaintiff Wife does not remarry or cohabit with a member of the opposite sex or cease to utilize said home place as her primary residence prior to the minor child of the parties attaining the age of nineteen (19) years, then Defendant Husband’s right to receive such sum shall terminate.
“15. That Plaintiff Husband shall maintain a policy of insurance on his life with a death benefit of not less than $150,000.00 naming the plaintiff Wife as the beneficiary thereof in an amount sufficient to pay off any balance on the mortgage described in paragraph 10 with the balance of the said death benefit to be payable to the minor child of the parties for so long as he remains obligated to pay support for said child. Defendant Husband shall not borrow against, plead or otherwise encumber said insurance policy so as to reduce the death benefit to a total death benefit payable to the Plaintiff Wife and/or child of not less than $150,000.00. Defendant Husband shall furnish to Plaintiff Wife proof of the existence of said policy and its beneficiary provision and the fact that it has not been pledged, borrowed against or otherwise encumbered upon her reasonable request but in no event less than annually. The parties shall name the minor child of the parties as the sole beneficiary of their wills so long as he remains a minor.”

On December 4, 2006, the husband filed a “Motion to Modify and/or Clarify” the divorce judgment, asserting that his obligation to pay the mortgage on the Cherry Ridge home was “in the nature of [periodic] alimony in that it is terminable upon the happening of specific events,” and further asserting that his obligation had ended when the parties’ child reached his 19th birthday. The husband, therefore, requested that the court modify or terminate his obligation to make any further payments on the mortgage.

The wife filed an answer, asserting that the payments required by paragraph 11 of the divorce judgment represented a property-division or alimony-in-gross award, not a periodic-alimony award. The wife also filed a motion for a rule nisi, alleging that the husband was in contempt of a prior order of the court entered on September 24, 2004, requiring the husband to provide proof of life insurance as mandated by paragraph 15 of the divorce judgment.

It is undisputed that the parties’ child reached the age of majority in 2005 and that the husband has not claimed on his federal income-tax returns any deduction for the payment of periodic alimony or spousal support since the divorce.

On August 7, 2007, the circuit court entered the following order:

“This cause coming on to be heard on July 23, 2007, on the Motion to Modify and/or Clarify the Judgment of Divorce as filed by the [husband], and Motion for Rule Nisi as filed by the [wife]; both parties being present and represented by counsel; and from the pleadings, representations of the parties, and upon consideration, it is hereby ordered by the Court as follows:
“1. That the Court finds that paragraph 11 of the Judgment of Divorce shall be considered by the Court to be in the nature of periodic alimony and is hence modifiable.
“2. That this cause is hereby reset for hearing on October 22, 2007 at 9:00 a.m.”

“A ‘final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ ” Horton v. Horton, 822 So.2d 431, 433 (Ala.Civ.App.2001) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990)). The August 7, 2007, order was not a final judgment because it did not adjudicate all matters in controversy between the parties. Both the husband’s request to modify or terminate what, he claimed, was a periodic-alimony obligation and the wife’s counterclaim seeking to have the husband held in contempt were left unadjudicated by the order. On August 29, 2007, the wife filed what she called a “Motion to Alter, Amend or Vacate” the court’s August 7, 2007, order, challenging the correctness of the court’s ruling and requesting, in the alternative, that the court certify its ruling as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., so that she could appeal.

The wife’s motion was not a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., because the circuit court’s August 7, 2007, order was not a “judgment” within the meaning of Rule 54(a), Ala. R. Civ. P. The wife’s August 29, 2007, motion was, in effect, a motion to reconsider an interlocutory order.

On February 12, 2008, the circuit court purported to deny the wife’s August 29, 2007, “Motion to Alter, Amend, or Vacate.” On March 10, 2008, the circuit court amended its February 12, 2008, order to add the following provision:

“By order of the undersigned, and upon consideration, it is hereby ordered by the Court that the Order heretofore rendered in this cause on February 12, 2008, is hereby amended nunc pro tunc to include the following:
“ ‘4. That pursuant to Rule 54(b), the Order of August 7, 2007, shall be a final judgment as to the claim with regard to the question of “the nature of periodic alimony.” There is no just reason for delay in resolving any question regarding this matter.’ ”

On March 24, 2008, the wife appealed to this court.

Whether the Circuit Court’s March 10, 2008, Order Was a Final Judgment

Although neither party has raised an issue concerning this court’s jurisdiction to entertain the wife’s appeal, we must first consider whether this court has jurisdiction over the appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). Section 12-22-2, Ala.Code 1975, provides, in pertinent part, that an appeal will lie to the appropriate appellate court “[fjrom any final judgment of the circuit court.” As we have previously stated, the circuit court’s August 7, 2007, order was not a final judgment because it did not adjudicate the husband’s request to modify or terminate what, he claimed, was a periodic-alimony obligation, and because it did not adjudicate the wife’s counterclaim alleging that the husband was in contempt of a prior order of the court. Instead, the circuit court’s August 7, 2007, order adjudicated only one claim — the husband’s request that the court “clarify,” construe, or declare the legal import of paragraph 11 of the divorce judgment. On March 10, 2008, the circuit court certified its August 7, 2007, order as final, pursuant to Rule 54(b), and the wife appealed 14 days later.

We conclude that the Rule 54(b) certification was appropriate. Rule 54(b) states, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

A judgment is final for Rule 54(b) purposes when it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). In the present case, the circuit court entered what amounted to a declaratory judgment with respect to the husband’s request to “clarify” the meaning of paragraph 11 of the divorce judgment. Because the circuit court completely adjudicated the husband’s claim for declaratory relief, the circuit court’s August 7, 2007, order was a judgment that could be appealed when that order was made final by certification pursuant to Rule 54(b) on March 10, 2008. See Alfa Specialty Ins. Co. v. Jennings, 906 So.2d 195, 198 (Ala.Civ.App.2005).

Whether the Mortgage Payments Constituted Periodic Alimony or Alimony in Gross

The wife argues that the circuit court erred by determining that the husband’s mortgage payments were in the nature of periodic alimony and, hence, modifiable. She contends, instead, that the mortgage payments constituted a nonmodifiable property settlement, or alimony in gross. In TenEyck v. TenEyck, 885 So.2d 146 (Ala.Civ.App.2003), this court summarized Alabama law concerning periodic alimony and alimony in gross:

“Our supreme court has explained the difference between periodic alimony and alimony in gross. Alimony in gross is considered ‘compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.’ An alimony-in-gross award ‘must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.’ It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. In other words, alimony in gross is a form of property settlement. An alimony-in-gross award is generally not modifiable.
“Periodic alimony, on the other hand, ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ Its purpose ‘is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.’ Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex.”

TenEyck, 885 So.2d at 151-52 (first emphasis added; citations omitted).

In support of his argument that the mortgage payments constitute a periodic-alimony award that is modifiable, the husband cites McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978). In McGug-in, the judgment divorcing the parties provided that the husband and the wife would continue joint ownership of the residence that had been the marital home, that the wife and the parties’ daughter would live in the residence, and that the husband would make the monthly mortgage payments on the residence. The judgment further provided that

“ ‘in the event the ... [wife] shall remarry, then the home place shall be sold, and after the costs incident to the sale and the mortgage balance thereon have been paid, the net balance shall be divided equally between the parties.’ ”

357 So.2d at 348. In response to the wife’s argument in McGugin that the provision giving her possession of the former marital home and ordering the husband to make the mortgage payments constituted a property settlement, or an award of alimony in gross, this court held:

“[T]he payment of the monthly mortgage installment on the parties’ property was not a part of a division of property or an award of alimony in gross. The monthly payments which the husband was ordered to make ... were ... periodic alimony payments ..., and as such were modifiable upon a showing of changed circumstances.”

357 So.2d at 351-52.

In Holman v. Holman, 435 So.2d 98, 100-01 (Ala.Civ.App.1983), this court explained that when a husband is ordered to pay the mortgage payments on the parties’ jointly owned marital home and the wife is permitted to live there until she remarries or moves out, at which time the house is to be sold and the net proceeds divided between the husband and the wife, the husband’s mortgage payments are in the nature of periodic alimony rather than alimony in gross or a property settlement because (1) the amount and time of the husband’s payments are uncertain and (2) the wife’s right to live in the house — and, therefore, her right to receive the benefit of having the mortgage payments made by the husband — is not vested, but contingent on her remaining single. McGugin follows the rule explained in Holman, as do Daniels v. Daniels, 599 So.2d 1208 (Ala.Civ.App.1992), Stutts v. Stutts, 418 So.2d 113 (Ala.Civ.App.1981), affirmed, 418 So.2d 115 (Ala.1982), and Thomas v. Thomas, 392 So.2d 233 (Ala.Civ.App.1980).

In the present case, the divorce judgment gave the wife a vested right to live in the home that was the subject of the husband’s mortgage payments — in fact, it gave her title to the home — that the wives in McGugin, Holman, Daniels, Stutts, and Thomas were not given. Instead of a mere permission to live in the parties’ jointly owned former marital home, with such permission being contingent upon the wife’s remaining single, paragraph 8 of the parties’ divorce judgment provided that the husband would construct a home in the Cherry Ridge subdivision for the wife and that the husband would “be responsible for and pay the mortgage on said home.” Compare McGugin, 357 So.2d at 351 (stating that “[ajlthough an outstanding mortgage indebtedness is a fixed amount since the indebtedness of a mortgage may be calculated with certainty, the husband in the present case was not directed to satisfy the entire mortgage debt. He was only obligated to pay off the balance of the mortgage if his wife did not remarry before the debt had been liquidated.”). In the present case, the husband was “directed to satisfy the entire mortgage debt.” See also Cherry v. Cherry, 422 So.2d 784, 786 (Ala.Civ.App.1982) (citing McGugin and holding that, because “[t]he divorce decree unconditionally required the husband to pay the mortgage in full,” the payments were “characteristic of alimony in gross and/or property settlement”). Paragraph 11 of the parties’ divorce judgment provided that title to the Cherry Ridge home would be placed in the wife subject to a first mortgage “the payment of which shall be the sole responsibility of the ... Husband.”

In Langner v. Langner, 599 So.2d 56 (Ala.Civ.App.1992), the divorce judgment provided that

“ ‘the [wife] shall have all right, title and interest in the condominium located in Panama City, Florida, and the [husband] shall be responsible for making the monthly mortgage payments as they become due on same and will indemnify and hold the [wife] harmless for payment of same. [Husband] further agrees to pay the maintenance fee, insurance and ad valorem taxes on same until such time as the [wife] remarries. [Husband] further agrees that he shall provide term insurance on his life in an amount necessary to cover the outstanding indebtedness owed on said condominium until such time as [wife] remarries, at which time [wife] shall be responsible for maintaining said insurance. [Husband] will convey all his right, title and interest in and to said condominium to the [wife] by executing the proper deed to the [wife].’ ”

599 So.2d at 58. This court affirmed the trial court’s determination that the husband’s obligation to make the mortgage payments was an award of alimony in gross. That holding was based upon three factors. First, the court said, the amount of the husband’s payment was fixed, the time of payment was certain, and “[t]he outstanding indebtedness on the mortgage [was] certain of calculation.” Id. at 59. Second, the court determined that, although the divorce judgment provided that some of the husband’s obligations regarding the condominium — specifically, the requirements that he pay the maintenance fee, insurance and taxes, and carry life insurance in an amount necessary to cover the outstanding indebtedness — remained in force only until the wife remarried, the divorce judgment “reveal[ed] no stipulation for cessation of the actual mortgage payments in question upon the happening of any contingencies typically resulting in the termination of periodic alimony.” Id.

The same is true in the instant case. Paragraph 11 of the parties’ divorce judgment fixes the amount of the husband’s payments at “an amount not to exceed 80% of the appraised value to be amortized over a period not to exceed thirty (30) years.” As in Lcmgner, “[t]he outstanding indebtedness on the mortgage [was] certain of calculation.” 599 So.2d at 59. In addition, paragraph 11 “reveals no stipulation for cessation of the actual mortgage payments in question upon the happening of any contingencies typically resulting in the termination of periodic alimony.” Id. Unlike McGugin and the other cases to which the rule explained in Holman applies, the wife’s title to, right to live in, and right to have the husband pay the mortgage on the Cherry Ridge home are not contingent upon the occurrence of any events.

Instead, the contingencies mentioned in paragraph 11 — the sale of the Cherry Ridge home, the remarriage of the wife, the wife’s cohabitation with a member of the opposite sex, or the wife’s ceasing to occupy the Cherry Ridge home before the parties’ child reached the age of majority — affected only the husband’s right to receive “an amount equal to one-half of the appraised value of [the Cherry Ridge home] as of the date of its construction.” None of those contingencies has occurred.

The circuit court erred in construing paragraph 11 of the parties’ divorce judgment as a periodic-alimony award. We conclude that the husband’s obligation to pay the mortgage on the wife’s Cherry Ridge home was a property settlement or an award of alimony in gross, that it was not modifiable, and that it was not terminable upon the happening of certain events. Therefore, the judgment of the Mobile Circuit Court is reversed and the cause is remanded.

REVERSED AND REMANDED.

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

BRYAN, J., concurs in the result, with writing.

BRYAN, Judge,

concurring in the result.

In my opinion, it is solely the fact that the divorce judgment “unconditionally required the [former] husband to pay the mortgage in full,” Cherry v. Cherry, 422 So.2d 784, 786 (Ala.Civ.App.1982), that mandates the conclusion that the mortgage payments in this case are alimony in gross. Because the main opinion bases its conclusion not only on that fact but also on the fact that the wife’s right to live in the home was vested, I concur in the result.