author: MURDOCK, Justice.

text:
    The HANOVER INSURANCE COMPANY et al. v. KIVA LODGE CONDOMINIUM OWNERS’ ASSOCIATION, INC.
    1141331
    Supreme Court of Alabama.
    Oct. 21, 2016

      L. Graves Stiff III, Sybil Vogtle Newton, G. Matthew Keenan, and Amber M. Whillock of Starnes Davis Florie LLP, Birmingham, for appellant The Hanover Insurance Company;, William H. McKenzie IV of Norman, Wood, Kendrick & Turner, Birmingham, for appellant Hudak & Dawson Construction Company, Inc.; and Vincent A. Noletto and Heather M. Houston of Carr Allison, Birmingham, for appellant Don Colvin d/b/a Colvin Plastering.
    Jessica M. McDill and Joseph D. Thet-ford, Jr., of Chason & Chason, P.C., Bay Minette, for appellee.
   MURDOCK, Justice.

The Hanover Insurance Company (“Hanover”), Hudak & Dawson Construction Co., Inc. (“Hudak”), and Don Colvin d/b/a Colvin Plastering (“Colvin”) (hereinafter collectively referred to as “the appellants”) appeal from the Baldwin Circuit Court’s order granting a motion to stay, pending arbitration, the action filed against them by the Kiva Lodge Condominium Owners’ Association, Inc. (“Kiva Lodge”). We affirm the judgment of the trial court.

I. Facts

Kiva Lodge is an Alabama nonprofit corporation formed for the purpose of administering and maintaining the Kiva Dunes Clubhouse and • Condominium (“Kiva Dunes”) located in Gulf Shores. On’ March 28, 2009, Kiva.Lodge contracted with Hu-dak to be the general contractor for the remediation of deficiencies in Kiva Dunes buildings that were allowing water to enter the buildings. Hudak subcontracted the stucco and/or sealant portion of the work to Colvin. Hanover, as surety for Hudak, issued to Kiva Lodge a performance bond ensuring and/or securing the full performance of Hudak’s contractual obligations. Both Hanover’s performance bond and Colvin’s subcontract incorporated by reference the provisions of the contract between Kiva Lodge and Hudak.

The contract between Kiva Lodge and Hudak included a form contract entitled “General Conditions of the Contract for Construction, AIA[] Document A201-1997” (“the form contract”). The form contract included two paragraphs that constituted the arbitration provision. Those paragraphs provided:

“§ 4.6.1 Any Claim arising out of or related to the Contract ... shall, after decision by the Architect after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Section 4.5.
“§ 4.6.2 Claims not resolved by mediation shall be decided by arbitration, which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect.”

(Emphasis added.)

Kiva Lodge and Hudak also executed an “Addendum to General Conditions of Owner-Contractor Agreement” (“the addendum”). The opening paragraph of the addendum expressly stated:

“This Addendum shall modify, delete from and add and replace by substitution to the ‘General Conditions of the Contract for Construction,’ AIA Document A201, 1997 between Kiva Lodge Condominium Owners’ Association, Inc. as Owner and Hudak and Dawson Construction Co., Inc. as Contractor. ... If and to the extent that this Addendum is inconsistent with the Standard Form of Agreement between Owner and Contractor, any attachments thereto, the Specifications and Contract Documents, and the Supplementary Conditions, this Addendum shall control.”

With regard to the arbitration provision in the form contract, the addendum provided for the following changes:

“4.6.1 Delete the word ‘shall’ in the second line and substitute in lieu thereof the words ‘may at the election of either party.’ Delete the second sentence in its entirety.
“4.6.2 Delete the word ‘shall’ in the first line and substitute in lieu thereof the words ‘may at the election of either party.’”

Accordingly, §§ 4.6.1 and 4.6.2, as modified by the addendum, read:

“§ 4.6.1 Any Claim arising out of or related to the Contract ... may at the election of either party after decision by the Architect after submission of the Claim to the Architect, be subject to arbitration....
“§ 4.6.2 Claims not resolved by mediation may at the election of either party be decided by arbitration, which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect.”

(Emphasis added.) In addition, the addendum added a new paragraph to the form contract—designated paragraph 20—which stated:

“Notwithstanding anything in this Addendum to the contrary, either party may pursue any claim or dispute in a court of law, or through mediation and arbitration. This Agreement shall be governed by the laws of the State of Alabama.”

(Emphasis added,)

In May 2010, Hudak’s remediation work was deemed to be substantially complete by Kiva Lodge’s representative. In May 2010, Colvin issued a five-year warranty in favor of Kiva Lodge warranting that the stucco work was performed with “proper materials, workmanship, and arrangement.” On September 16, 2010, Hudak issued a five-year warranty in favor of Kiva Lodge, warranting that the labor and materials were in compliance with the contract and with applicable specifications.

In September 2012', Kiva Lodge informed Hudak and Colvin of leaks and bubbling in the stucco exterior of the buildings at Kiva Dunes caused by water intrusion. Kiva Lodge alleges that Hudak and Colvin failed to determine and/or disclose the course of the problems and the proper scope of repairs necessary. It also alleges that Hanover breached the terms of its performance bond by failing to promptly remedy the default, complete the work within the scope of the contract in accordance with the terms and conditions, or arrange for payment of an alternative contractor to complete the work.

On April 16, 2015, Kiva Lodge sued the appellants in the Baldwin Circuit Court. The complaint asserted claims of breach of warranty, negligence, and fraud/suppression. The complaint requested that Kiva Lodge’s claims be “referred to arbitration before the American Arbitration Association for an award of damages against [the appellants].”

On April 23, 2015, Kiva Lodge filed a motion to stay the proceedings pending arbitration of its claims. In support of its motion, Kiva Lodge submitted, the form contract, together with the addendum, along with an affidavit from Kiva Lodge’s president, Jim Edgemon, in which he asserted that the form contract evinced transactions involving interstate commerce.

On May 15, 2015, Hanover filed a motion to dismiss Kiva Lodge’s claims against Hanover on the ground that, under its performance bond, any claim must be initiated within two years following the date on which final payment to the contractor became due and Kiva Lodge had not met this deadline. Therefore, Hanover argued, all of Kiva Lodge’s claims against Hanover were time-barred pursuant to the terms of the performance bond.

Also in May 2015, Hudak and Colvin filed answers to the complaint opposing the motion to stay on the basis of the language in the addendum and denying the- substantive allegations of the complaint. In July 2015, Hanover filed an answer. to the complaint in which it also opposed the motion to stay by relying on the addendum while also arguing that Kiva Lodge’s demand for arbitration was.,untimely. Hanover also asserted cross-claims against Hudak and Colvin, alleging breach of contract, breach of warranty, and negligence and seeking subrogation against or indemnity from each of them in the event of an award in favor of Kiva Lodge.

On July 21, 2015, the circuit court heard arguments concerning Kiva Lodge’s motion to stay. On August 4, 2015, the circuit court entered an order that stated, in pertinent part: “Motion to Stay Pending Arbitration filed by [Kiva Lodge] is hereby granted. All parties are hereby ordered to arbitration.” The circuit court simultaneously issued a separate order staying Hanover’s motion to dismiss the claims against it pending arbitration.

On September 11, 2015, Hudak, Colvin, and Hanover timely appealed the circuit court’s order that effectively granted Kiva Lodge’s demand for arbitration.

II, Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either par-⅛ is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala. 1999). Furthermore:
“ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to- compel arbitration has been made and supported, .the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n.1 (Ala. 1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala. 2002).

IIL Analysis

The appellants do not dispute that a contract exists between Kiva Lodge and Hudak that references arbitration, that the contract evinces transactions affecting interstate commerce, or that the contract between Hudak and Colvin and the performance bond provided by Hanover incorporate by reference the contract between Kiva Lodge and Hudak. Instead, the appellants present three arguments as to why Kiva Lodge’s demand for arbitration should be denied. First, they contend that the arbitration provisions as modified by the addendum are permissive in nature rather than mandatory and that, therefore, Hudak, Colvin, and Hanover cannot be compelled to arbitrate. Second, they argue that Kiva Lodge's arbitration demand was untimely under the terms of the contract between Kiva Lodge and Hudak, Third, Hanover argues that, its cross-claims are not subject to the arbitration provision in the contract between Kiva Lodge and Hu-dak. We address each argument in turn.

A. Do the Changes- to the Form Contract Effected by the Addendum Impose Mandatory Arbitration or Permissive Arbitration?

The argument to which the appellants devote all but four pages of their appellate brief is that the addendum changed the arbitration language in the form contract from mandatory arbitration to permissive arbitration. In other words, they argue that instead of the contract requiring that a dispute must be settled through arbitration if either party tenders a an arbitration demand, the arbitration provision as modified by the addendum permitted arbitration of a dispute only if both parties subsequently mutually agree to arbitrate the issue in question. See, e.g., Benihana of Tokyo, LLC v. Benihana Inc., 73 F.Supp.3d 238, 248 n.5 (S.D. N.Y. 2014) (explaining that “‘“Mandatory” arbitration requires arbitration if either of the parties elects to pursue it; “permissive” arbitration requires arbitration only with the consent of both parties.’” (quoting Travelport Global Distrib. Sys. B.V. v. Bellview Airlines Ltd., No. 12 Civ. 3483(DLC) n.2 (S.D. N.Y. Sept. 10, 2012) (unpublished decision)).

In support of this argument, the appellants observe that the addendum deliberately changed the word “shall” to “may at the election of either party” in both § 4.6.1 and § 4.6.2. They also emphasize that the addendum added a new paragraph, paragraph 20, which expressly states that “either party may pursue any claim or dispute in a court of law, or through mediation and arbitration.” The appellants contend that the change effected by the addendum in the unequivocally mandatory arbitration language in the form contract in combination with the actual words used in the addendum dictates that arbitration is not required but is available only if both parties agree to submit a dispute to arbitration.

For its part, Kiva Lodge contends that the plain language of the addendum dictates that arbitration of a dispute is mandatory if one party elects arbitration as the method for settling a dispute. It asserts that the statement in § 4.6.2 that “[c]laims not resolved by mediation may at the election of either party be decided by arbitration, which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association” plainly allows for arbitration at the election of either party. (Emphasis added.) In other words, Kiva Lodge argues that, once one party elects to submit a dispute to arbitration, arbitration of that issue becomes mandatory for both parties. Kiva Lodge contends that this Court should affirm the circuit court’s judgment applying the “clear and plain meaning” of the language of the addendum.

In deciding the question presented, we start with certain basic concepts.

“The intention of the parties controls in construing a written contract, and the intention of the parties is to be derived from the contract itself, where-'the language is plain and unambiguous. Food Service Distributors, Inc. v. Barber, 429 So.2d 1025 (Ala. 1983). Likewise, in Flowers v. Flowers, 334 So.2d 856, 857 (Ala. 1976), this Court held that, absent evidence to the contrary, ‘the words of an agreement will be given their ordinary meaning.’ ”

Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala. 1993). Moreover, “[a]ll the provisions of a contract must be construed together so as to give harmonious operation to each of them, so far as their language will reasonably permit.” City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So.2d 917, 924 (1968). In a related vein, “[a] court seeks to accord the contracts ‘a reasonable construction under the terms used by the parties who made them, and when the contracts contain several provisions, all are construed together so that a harmonious operation can be given to each.’ ” ANCO TV Cable Co. v. Vista Commc’ns Ltd. P’ship I, 631 So.2d 860, 863 (Ala. 1993) (quoting United States Fid. & Guar. Co. v. Jacksonville State Univ., 357 So.2d 952, 955 (Ala. 1978)).

The appellants are correct that our courts have stated that “[t]he word ‘shall’ is clear and unambiguous and is imperative and mandatory,” Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala. 1998), but that, “[o]rdinarily, the use of the word ‘may’ indicates a discretionary or permissive act, rather than a mandatory act.” Ex parte Mobile Cty. Bd. of Sch. Comm’rs, 61 So.3d 292, 294 (Ala. Civ. App. 2010). See also Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098-99 (Ala. 2003) (stating that “this Court has long recognized that words such as ‘may ... denote permissive alternatives, not mandatory restrictions”).

The word “may” cannot, however, be viewed in isolation. This Court previously has noted:

‘“[T]he use of the word “may” in an arbitration agreement does not imply that the parties to the agreement have the option of invoking some remedy other than arbitration.’ Held v. National R.R. Passenger Corp., 101 F.R.D. 420, 424 (D. D.C. 1984) (emphasis added)] ‘Rather, “[t]he sole option an aggrieved party retained through use of the word ‘may was to abandon its claim.”’ Id. Such an interpretation ‘would render the arbitration provision meaningless for all practical purposes. If the parties to such an agreement intended for arbitration to be permissive, there would be no reason to include ... the arbitration provision in the contract, for the parties to an existing dispute could always voluntarily submit it to arbitration.’ Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 879 (4th Cir.) (emphasis added), cert. denied, 519 U.S. 980, 117 S.Ct. 432, 136 L.Ed.2d 330 (1996). See also American Italian Pasta Co. v. Austin Co., 914 F.2d 1103, 1104 (8th Cir. 1990); Atkins v. Louisville & Nashville R.R., 819 F.2d 644, 648-49 (6th Cir. 1987) (language directing that disputes ‘may be referred by either party to an arbitration committee’ was mandatory); Bonnot v. Congress of Indep. Unions, Local No. 14, 331 F.2d 355, 359 (8th Cir. 1964); Deaton Truck Line, Inc. v. Local Union 612, 314 F.2d 418, 422 (5th Cir. 1962); McCrea v. Drs. Copeland, Hyman & Shackman, P.A., 945 F.Supp. 879, 881 (D. Md. 1996) (language directing that ‘either party may petition the ... court ... for an order compelling ... arbitration’ was mandatory); Block 175 Corp. v. Fairmont Hotel Mgmt. Co., 648 F.Supp. 450, 451 (D. Colo. 1986) (clause providing that ‘either party may serve upon the other a written notice stating that such party desires to have the controversy ... reviewed by an arbitrator’ was mandatory); accord, Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 164-65 (Ala. 1999) (‘By definition, binding arbitration is ... a limitation on the right to litigate. In- other words, one party cannot litigate while the other party arbitrates.... Because, as a practical matter, arbitration and litigation of the same,subject matter are mutually exclusive, the plaintiffs’ interpretation of the [contract] is unworkable.’).”

Celtic Life Ins. Co. v. McLendon, 814 So.2d 222, 225 (Ala. 2001). See also Karl Storz Endoscopy-Am., Inc. v. Integrated Med. Sys., Inc., 808 So.2d 999, 1011 (Ala. 2001) (applying California law in enforcing as mandatory an arbitration provision that stated: “ ‘If within 30 days after the commencement of mediation, a resolution of the dispute has not been achieved, the dispute may thereafter be submitted by any party to binding arbitration under the commercial rules of the American Arbitration Association then in effect .... ’,”); Adcock v. Adams Homes, LLC, 906 So.2d 924, 927 (Ala. 2005) (relying on the reasoning in Storz to enforce as mandatory an arbitration provision that stated: “ ‘If, after conciliation, the [parties] disagree on any claimed defective items or resulting repairs in accordance with this warranty ..., [the parties] may request an impartial third party arbitration.’ ”).

Most cases throughout the country repeat the view expressed in McLen-don that use of the term “may” in an arbitration provision generally does not denote permissive arbitration because “the arbitration clause would be meaningless if it were construed as permissive. The parties to an agreement can- always consent to arbitration as a means of settling their disputes. A permissive arbitration clause is not necessary.” Orthopedic Physical Therapy Ctr., P.A. v. Sports Therapy Ctrs., Ltd., 621 A.2d 402, 403 (Me. 1993). See, e.g., American Italian Pasta Co. v. Austin Co., 914 F.2d 1103, 1104 (8th Cir. 1990) (holding that an arbitration provision stating that “ ‘[i]f both parties agree that a dispute ... cannot be settled ... then such dispute ... may be submitted to arbitration’ ” triggered mandatory arbitration); ZARS, Inc. v. LTS Lohmann Therapy Sys. Corp., No. 2:05-CV-198 TC (D. Utah Oct. 18, 2006) (unpublished decision) (concluding that “[t]he existence of the word ‘may does not by itself render the clause permissive. The clause states that ‘either party may refer the dispute for arbitration. It does not require that all parties agree to arbitration before that remedy is used.-It does not allow a veto of the other party’s choice. A better reading is that once a party submits the dispute for arbitration, the other party is bound to follow that course.”); New York Cross Harbor R.R. Terminal Corp. v. Consolidated Rail Corp., 72 F.Supp.2d 70, 76-77 (E.D. N.Y. 1998) (enforcing as mandatory an arbitration provision that stated: “ ‘Either party may ... refer any dispute or an event(s) of default ... to arbitration.’ ”); Freedman v. Comcast Corp., 190 Md.App. 179, 188, 196-97, 988 A.2d 68, 73-74, 78 (2010) (finding, with regard to an arbitration provision that stated that when a dispute arose “‘you Or Comcast may elect to arbitrate that Dispute in accordance with this Arbitration Provision rather than litigate the Dispute in court,’” that “the plain and common-sense reading of the 'clause ... is that if either party elects- to arbitrate the dispute, it must be arbitrated”); Feldman/Matz Interests, L.L.P. v. Settlement Capital Corp., 140 S.W.3d 879, 888 (Tex. App. 2004) (noting that “generally, an agreement to arbitrate is mandatory even though it contains permissive terms such as ‘may’ ”); TM Delmarva Power, L.L.C. v. NCP of Virginia, L.L.C., 263 Va. 116, 121, 557 S.E.2d 199, 201 (2002) (concluding that “[hjere, the word ‘may’ is permissive, but it clearly means that either party has the discretion to choose arbitration if conciliation is not successful” and that, “once this discretion is exercised, arbitration is compelled under the agreement” and collecting cases concluding that “may” does not automatically denote permissive arbitration); Agnes-Sue Assocs. v. Cerino, No. CV NH 9007-3882 (Conn. Super. Ct. Oct. 1, 1990) (unpublished decision) (interpreting an arbitration provision that stated that if a dispute arose, “then either party may request that the matter be referred to Arbitration in which ev[e]nt an Arbitration Panel shall be convened by the AMERICAN. ARBITRATION ASSOCIATION” and concluding that the “provision clearly gives either party the right to demand arbitration and if one party demands it, then arbitration must be held. The arbitration clause makes no reference to the consent of both parties; arbitration is mandated if ‘either party requests it. The consent of the second party is not required.”).

As Kiva Lodge observes, in key ways the arbitration provision in this case parallels the arbitration provision in Benihana of Tokyo, LLC v. Benihana Inc., 73 F.Supp.3d 238 (S.D. N.Y. 2014).In Benihana, a licensing agreement contained two paragraphs addressing arbitration that provided, in pertinent part:

“13.1 If this Agreement shall be terminated by Licensor and Licensee shall dispute Licensor’s right of-termination, or the .reasonableness thereof, the dispute shall be settled- by arbitration at the main office of the American Arbitration Association in the City of New York in accordance with the rules of said association ....
“13.2 In the event any other dispute arises between the parties hereto in connection with the terms or provisions of this Agreement, either party by written notice to the other party may elect to submit the dispute to binding arbitration in accordance with the foregoing procedure. Such right shall not be exclusive of any other rights which a party may have to pursue a course of legal action in an appropriate forum. ...”

73 F.Supp.3d at 244 (emphasis added).

Under the foregoing provisions, Beniha-na of Tokyo filed a motion to compel arbitration of claims it had filed in an action against Benihana of America after Beniha-na of America had filed several counterclaims against Benihana of Tokyo. The parties agreed that the dispute fell under § 13.2 of the licensing agreement rather than § 13.1 because the claims did not relate to termination of the agreement, but they disagreed as to whether § 13.2 contemplated mandatory or permissive arbitration. Benihana of America contended that § 13.2 “contemplates permissive arbitration” for threé reasons that are very similar to those the appellants present here. 73 F.Supp.3d at 244. First, Benihana of America noted that the first sentence of § 13.2 provided that “either party ... may elect to submit the dispute to binding arbitration,”. which Benihana of America argued is permissive language. Second, it noted that the second sentence of § 13.2 referenced the right to arbitration not being “exclusive of any other rights” including “legal action in an appropriate forum.” Third, it contrasted the text of § 13.1, which used the mandatory term “shall” to require .disputes related to termination to be settled by arbitration, with the different language in § 13.2, and it argued that reading § 13.2 to require mandatory arbitration “ ‘would effectively read the phrase “shall not be exclusive” out of the agreement’ and ‘render meaningless’ the differences between Sections 13.1 and 13.2.” 73 F.Supp.3d at 249.

The Benihana court réjected each of those arguments. First, with regard to the use of the term “may” in the first sentence of § 13.2, the court observed that it

“merely means that neither party is obliged to initiate (‘submit a dispute to’) arbitration. The word ‘may* does not, however, mean that if a party has elected to do so, the other may neutralize that choice by insisting on litigating in court. To the contrary, courts have commonly construed such language as indicative of mandatory arbitration.”

73 F.Supp.3d at 249. After citing several eases in support of this conclusion, the court also observed that “Benihana America’s construction, under which only two-party consent could trigger arbitration, would make Section 13.2 meaningless.” 73 F.Supp.3d at 250.

Second, with regard to the second sentence of § 13.2 mentioning a right to pursue litigation, the court agreed that

“Benihana America is right that it ‘expressly allows the parties to bring non-termination claims in any forum, including this Court’ and that ‘[accordingly, arbitration of non-termination disputes is permitted, but not required.’ Def. Br. 6, This is so, in the sense that a party is free to initiate litigation and not to avail itself of the arbitration option. But that does not mean that arbitration is ‘permissive’ in the way that Benihana America claims, fe., permitting either party to negate, in favor of litigation in court, the other’s- submission of the case to arbitration. The more reasonable reading'of the second sentence is simply to underscore th'at a party is not obliged to initiate arbitration when a dispute, other than with regard to termination, arises ‘in connection with the terms or provisions of this Agreement.’ It does not provide that, if arbitration is sought by one party, the other may deflect that bid.”

73 F.Supp.3d at 250-51.

Third, with regard to the contrast between, the use of the word “shall” in § 13.1 and . the use of the word “may” in § 13.2, the. court disagreed with Benihana of America that reading § 13.2 as requiring mandatory arbitration rendered. § 13.2 indistinguishable from § 13.1.

“Section 13.1 expressly requires the arbitration of termination-related disputes, and subjects lawsuits relating to such disputes to dismissal on the grounds that the Agreement precludes them. In contrast, Section 13;2 permits, but does not require, ‘either party’ to submit ‘any other dispute ... in connection with the terms and provisions of this Agreement’ to arbitration.”

73 F.Supp.3d at 251. In short, § 13.2 “un-‘ derscores the right of a party to initiate suit in court, and in any appropriate forum, subject to, as provided in the first sentence, the right of ‘either party by written notice to the other party [to] elect to submit the dispute to binding arbitration.’” Id.

Like Benihana of America, the appellants contend that the language in the arbitration provision as modified by the addendum is permissive because it provides that “[c]laims ... may at the election of either party be decided by arbitration.” They emphasize the statement in paragraph 20 that “either party may pursue any claim or dispute in a court of law, or through mediation and arbitration,” just as Benihana of America pointed to language addressing a “right” to “legal action in an appropriate forum.” Finally, the appellants draw a contrast between the use of the term “shall” in the arbitration provision in the form contract and the use of the term “may” as changed by the addendum just as Benihana of America contrasted the language in § 13.1 and § 13.2 of the licensing agreement.

The Benihana court’s reasoning is persuasive. A plain reading of the arbitration provision as modified by the addendum indicates that either party has the option to pursue resolution of a dispute in arbitration. The paragraphs that constitute the arbitration provision say nothing about mutual consent being required to invoke arbitration. In contrast, § 4.6.2 does specifically mention that arbitration will be “in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association” “unless the parties mutually agree otherwise.” (Emphasis added.) Thus, it is reasonable to conclude that if mutual consent was required to arbitrate it would have been explicitly mentioned. Paragraph 20 “underscorejs] that a party is not obliged to initiate arbitration” but, instead, that each party has available at the outset the avenues of mediation and litigation. “It does not provide that, if arbitration is sought by one party, the other may deflect that bid.” 73 F.Supp.3d at 251. It is true that the modification of the arbitration-provision language in the form contract by the addendum could be explained by a desire to make arbitration entirely permissive in the sense that it would require mutual consent to arbitrate, but the parties could have deleted the arbitration provision altogether in the addendum, and they still would have retained a mutual right to arbitration of disputes. The changes in the addendum retain more meaning if it is assumed that they stemmed from the parties’ desire to provide that arbitration is not the only initial avenue available to the parties for resolution of disputes in contrast to the language in the form contract in which “the parties committed ... dispute[s] to resolution only in an arbitral forum.” Id.

Based on the foregoing reasoning and authorities, we conclude that the addendum provides that once a party elects arbitration as a method for resolution of a dispute—as Kiva Lodge did in this case— the other party cannot neutralize that choice by insisting on litigating in court as the appellants attempt to do here. In short, Kiva Lodge has proven the existence of a binding mandatory arbitration agreement between the parties.

B. Was the Arbitration Demand Untimely?

The appellants contend that, under the terms of the contract between Kiva Lodge and Hudak, the action was not timely filed. Section 4.6.3 of the form contract provides:

“A demand for arbitration shall be made within the time limits specified in Sections 4.4.6 and 4.6.1 as applicable, and in other cases within a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section 13.7.”

Section 13.7 provides that for “acts or failures to act” after the issuance of the final certificate of payment, the applicable statute of limitations commences not later than

“the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Section 3.5, the date of any correction of the Work or failure to correct the Work by the Contractor under Section 12.2, or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last.”

The appellants note that under § 6-5-221, Ala. Code 1975, there is a two-year statute of limitations for claims resulting from a construction defect. They further observe that Kiva Lodge filed its complaint, together, with its arbitration demand, on April 16, 2015. They contend, however, that evidence shows that Kiva Lodge’s claims accrued, at the latest, by September 11, 2012. Accordingly, the appellants argue that Kiva Lodge’s action is untimely under the terms of the contract and the provisions of Alabama law.

Kiva Lodge counters that whether its claims are barred by the applicable statute of limitations is a matter for the arbitrator, not the circuit court, and thus that the circuit court was correct in not ruling on that issue.

In Dudley, Hopton-Jones, Sims & Freeman, PLLP v. Knight, 57 So.3d 68, 70-71 (Ala. 2010), this Court explained that “[t]he issue whether [a party’s] claims [are] barred by the applicable statutes of limitations ... is wholly unrelated to whether a valid agreement to arbitrate exists or whether the identified dispute falls within the scope of that agreement; accordingly, [that] argument[ ] do[es] not implicate matters of substantive arbitrability.” 57 So.3d at 70-71. The Court further explained that a statute-of-limitations defense “relate[s] to the ultimate viability of [a party’s] claims—not to the availability of arbitration—and [it] should accordingly be considered and ruled upon by the arbitrators, not by the circuit court.” Id. Therefore, the appellants’ argument that Kiva Lodge’s claims are time-barred must be decided by the arbitrator. The circuit court did not err in declining to deny the motion to stay the action pending arbitration on this basis.

C. Are Hanover’s Cross-Claims Subject to Arbitration?

Hanover argues that its cross-claims against Hudak and Colvin alleging indemnity, breach of contract, negligence, and breach of warranty are not subject to arbitration because they do not arise from the contract between Kiva Lodge and Hu-dak that contains the arbitration provision. Instead, they are based on an indemnity agreement that does not contain an arbitration provision.

Kiva Lodge essentially concedes that Hanover’s cross-claims are not subject to arbitration. It argues, however, that the circuit court simply issued a stay of Hanover’s claims because Hanover’s “cross-claims are contingent on the resolution of Kiva’s claims in arbitration.” Kiva Lodge notes that the circuit court has discretion to stay nonarbitrable claims pending arbitration of related claims. See, e.g., Porter v. Williamson, 168 So.3d 1215, 1220 n.6 (Ala. 2015) (observing that “the trial court has the discretion to order a stay of the nonarbitrable claims”).

In response to Kiva Lodge’s argument, Hanover concedes that a stay of nonarbi-trable claims is within the circuit court’s discretion, but it contends that “there is no basis for the trial court to order a stay of its claims in this case, and that to allow such a stay here would be an abuse of discretion,” Hanover does not provide any further rationale for this position.

Given that the parties agree that Hanover’s cross-claims are not subject to arbitration and given that Hanover does not dispute that its cross-claims are contingent on Kiva Lodge’s claims against the other defendants—-claims that are subject to arbitration—the circuit court did not exceed its discretion in staying Hanover’s cross-claims. Indeed, a stay is judicially efficient. We conclude that the circuit court did not commit reversible error on this issue.

IV. Conclusion

Kiva Lodge’s claims against Hudak, Col-vin, and Hanover are subject to mandatory arbitration under the language of the contract between Kiva Lodge and Hudak, Accordingly, the circuit court did not err in granting Kiva Lodge’s motion to stay the action pending arbitration. The appellants’ statute-of-limitations defense is an issue that should be submitted to and decided by the arbitrator. It also was reasonable for the circuit court to stay Hanover’s cross-claims pending the arbitration of Kiva Lodge’s claims. Therefore, the judgment of the circuit court is affirmed.

AFFIRMED.

Bolin, Parker, Main, and Bryan, JJ., concur.

Wise, J., recuses herself.

      . The remediation at issue in this case stems from a prior action filed by Kiva Lodge in 2006 against Doster Construction Company, alleging that, when Doster originally built Kiva Dunes, it did so in a manner that resulted in leaks that caused damage to the individual units and common areas. Kiva Lodge's case against Doster was litigated for several years and was dismissed in 2009 after the parties entered into a settlement agreement.

      . "AIA” is an acronym for the American Institute of Architects.

      . Kiva Lodge also makes the unusual argument that we cannot look at the original language of the arbitration provision in the form contract because it constitutes "extrinsic evidence” that was part of the negotiations and was not the final agreement between the parties, The fact is, however, that "where there is more than one writing'involved in a transaction, the court interprets the writings together.” ANCO TV Cable Co. v. Vista Commc'ns Ltd. P'ship I, 631 So.2d 860, 863 (Ala. 1993). The form contract is part of the parties' agreement, not extrinsic evidence. The changes made in' the addendum could not even be understood without reference to the original language in the form contract. Moreover, as the appellants note, this Court previously has examined language deleted from a contract by the parties in an effort to ascertain the parties' intent with regard to arbitration. See Ex parte Mountain Heating & Cooling, Inc., 867 So.2d 1112, 1117 (Ala. 2003) (asking "why would the parties bother striking the jury-waiver sentence if they had agreed to arbitrate disputes anyway?”).

      . There are a few cases in which courts have concluded that the use of the word “may” in an arbitration clause meant the parties intended permissive arbitration. See Retractable Techs. Inc. v. Abbott Labs. Inc., 281 F.App’x 275, 275-76 (5th Cir. 2008) (not selected for publication in the Federal Reporter); PCH Mut. Ins. Co. v. Casualty & Sur., Inc., 569 F.Supp.2d 67, 75-76 (D. D.C. 2008); A. Dubreuil & Sons, Inc. v. Town of Lisbon, 215 Conn. 604, 610-11, 577 A.2d 709, 713 (1990). The appellants cite the last one, A. Dubreuil. As applied to the contractual language here, we consider the cases cited in the text to be the better reasoned opinions.

      . Kiva Lodge also contends that the appellants are incorrect concerning the date on which its claims accrued, but we see no need to discuss that argument, given our disposition of this issue.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Julia M. BRADLEY v. Kevin D. MURPHY Kevin D. Murphy v. Julia M. Bradley
    2150274
    Court of Civil Appeals of Alabama.
    Sept. 23, 2016

      Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham; and David P. Broome, Mobile, for appellant/cross-appel-lee Julia M. Bradley.
    David P. Shepherd, Fairhope, for appel-lee/cross-appellant Kevin D. Murphy.
   DONALDSON, Judge.

Julia M. Bradley (“the mother”) appeals, and Kevin D. Murphy (“the father”) cross-appeals, from a judgment of the Baldwin Circuit Court (“the trial court”) entered following a trial on the father’s petition to modify the parties’ divorce judgment. As to the mother’s appeal, we reverse and remand; as to the father’s cross-appeal, we affirm.

Facts and Procedural History

The mother and the father were divorced by a judgment entered by the trial court in March 2011. The parties had two minor children at the time of the divorce, D.M. and K.M (“the children”). The divorce judgment, which incorporated the parties’ settlement agreement, among other things, granted the mother sole physical custody of the children and ordered the father to pay $3,600 per month in child support. On June 6, 2014, the father filed a petition seeking, among other things, a modification of his child-support obligation and a modification of custody of the children. In the petition, the father asserted that his income had significantly decreased since the entry of the divorce judgment and that his child-support obligation had been erroneously calculated. The father also requested joint physical custody of the children. Additionally, the father filed a contempt motion, asserting that the mother had interfered with his visitation.

The trial court held a trial on the father’s petition on April 23, 2015, at which both the father and the mother testified. The father testified that, at the time the divorce judgment was entered, he was living in Indonesia and working for a global oil company and that, when he was living in Indonesia, he returned to Alabama two to three times each year for three weeks at a time. The father testified that he changed his job assignment in December 2014 so that he could spend more time with the children. Under the arrangement in place at the time of the modification trial, the father alternated living in Alabama and Angola approximately every other month. The father also testified that the mother had prevented him from seeing the children on various occasions when he had returned to Alabama.

The father testified that, at the time the divorce judgment was entered in 2011, his monthly income was $38,386. The father testified that, since then, his income had decreased to $27,153 per month. The father testified that he paid $468.40 per month for health-insurance coverage. The father testified that the first time he saw the CS-42 child-support-guidelines form (“the CS-42 form”) that had been prepared by the mother and filed in the trial court before the entry of the divorce judgment was when he was in his current attorney’s office for consultation regarding the filing of the modification petition. At that time, the father learned that health-insurance costs in the amount of $240 had been added to, rather than deducted from, his child-support obligation on the CS-42 form, thereby, he says, causing a $480 calculation error.

The father stated that he had requested a custody modification so that he could exercise custody of the children each time he was in Alabama. The father testified that he would like to have a strong father-daughter relationship with both children. The father testified that he would be able to homeschool thp children while they were in his care. The mother’s testimony was brief and was directed toward the custody-modification request and the contempt motion. She testified that the reason she had not allowed the father to have visitation with the children on certain occasions was because the children are home-schooled and, she believed, the parties would be violating truancy laws if she allowed the children to have an undefined amount of time away from her home with the father. The mother testified that the father had previously opposed medical and psychiatric care for the children and that the children, on occasion, had exhibited signs of poor hygiene when returning to the mother after exercising visitation with the father.

At the conclusion of the modification trial, the trial court found the mother in contempt for preventing the father’s visitation with the children on certain occasions and awarded $1,000 in attorney’s fees to the father as a sanction for the mother’s contemptuous conduct. The trial court declined to modify the custody provisions of the divorce judgment but stated that the father’s parenting time would be increased. The trial court also explained in open court that it would not modify the father’s child-support obligation but that it intended to “correct” what was described as a “calculation error” and give the father credit for that error:

“I’m not going to modify the child support, per se, based on what the income level has been not just in 2011 to today, but over the course of the last four years, I understand that you voluntarily decided to reduce that income to spend time with them, and that is commendable, but because that was a voluntary reduction, I don’t feel like the girls should necessarily suffer in other ways. And you chose and agreed to pay more than even the guidelines.
“Now, with your level of income, I don’t believe that the amount that you’re paying—I’m talking about the new level that you referred to for 2015. I do not ... believe that the amount you agreed to is an unreasonable amount.
“However, there was an error, and this is how I’m going to correct that error. The error in the 2011 child support award was in the amount of four hundred and eighty dollars a month. So I am going to assume that deviation was based on the amount that you would have been ordered to pay and the amount of overage you agreed to pay. So I am reducing the child support number by four hundred and eighty dollars a month.
“That’s not modifying child support; that is simply correcting the scrivener’s error. Due to that error, [the father] is due a credit in the amount of twenty thousand one hundred and sixty dollars. That’s obviously a significant amount of money. But the way that’s going to be repaid by [the mother] is that we’re going to reduce the child support award by four hundred and eighty dollars per month until that is paid in full.
“,.. 1⅛ going to credit the one thousand dollars in attorney’s fee that she would owe you based on the contempt against that twenty thousand. So as we sit here today, it’s nineteen thousand one hundred and sixty dollars. So it’s basically forty months. The last month it will be some odd change, which y!all can figure that out.
“So.for forty[-four] months the child support will be reduced by nine hundred and sixty dollars, and then after that it will be four eighty, unless it’s modified prior to that four-year expiration.”

At the conclusion of the trial, the trial court ordered the parties’ attorneys to submit a proposed order reflecting ■ the findings and conclusions announced by the trial court. On July 24, 2015, the trial court held a hearing regarding the parties’ apparent inability to agree to a proposed order. That same day, the trial court entered a.written final judgment incorporating the findings and conclusion's made at the trial. On August 14, 2015, the mother filed a timely motion pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment. The father filed a motion pursuant to Rules 59(a) and (e) seeking a new trial or, in the alternative, to vacate the judgment. On. October 2, 2015, the trial court held a hearing on the parties’ postjudgment motions, at which it received arguments of the parties’ attorneys. The mother’s attorney argued that the father was not due a credit for any overpayment of child support as a result of an alleged error on the, CS-42 form, that the father had agreed to the amount of child support, and that the father’s child-support obligation should not be modified. In response, the father’s-attorney argued that the father’s agreement to pay approximately $1,000 more per month in child support than the figure listed on the CS-42 form was based on an erroneous figure contained on that form; The father’s attorney also asserted that the father had resumed his previous employment schedule after the trial and that he would be. in Alabama only two times per year.

On November 9, 2015, the' trial court entered an order in which it amended the provision in the July 2015 judgment to tailor the father’s visitation with the children to his revised employment schedule but'denied thé requested relief related to the father’s child-support obligation. On December 21, 2015, the mother timely filed her notice of appeal to this court. The father timely filed his cross-appeal on January 4, 2016..

Discussion

The Mother’s Appeal

On appeal, the mother argues that the trial court erred in purporting to correct the father’s child-support obligation that had been established in the divorce judgment based on an alleged calculation error contained on the CS-42 form that was completed before the entry of the divorce judgment, in awarding the father credit for the purported “overpayment” that resulted from the calculation error, and in reducing the father’s child-support obligation prospectively to account for the calculation error.

At' the outset,' we note that the father’s income at the' time the divorce judgment was entered was well in excess of the amounts provided in the child-support guidelines and that the father’s child-support obligation of $3,600 per-month as ordered in the divorce judgment was based upon the agreement of the parties. “When, as in this case, the decree fixing the amount of support is based on an agreement between the parties, the decree should not be modified except for clear and sufficient reasons and after thorough consideration and investigation.” Tucker v. Tucker, 588 So.2d 495, 497 (Ala.Civ.App.1991).

“A prior child support award may be modified only on proof of changed circumstances, and the burden of proof rests on the party seeking the modification.” Coleman v. Coleman, 648 So.2d 605, 606 (Ala.Civ.App.1994) (citing Kellum v. Jones, 591 So.2d 891 (Ala.Civ.App.1991)). The trial court stated at the conclusion of the trial that it was not modifying the father’s child-support obligation but that it was instead correcting a calculation error. In its judgment, the trial court stated:

“Due to a calculation error when the child support was calculated at the time the Final Judgment of Divorce was entered, wherein FATHER’S cost of health insurance was added on Line 9 instead of subtracted on Line 9 [of the CS-42 form], therefore creating a $480.00 per month error, child support beginning May of 2015, is hereby reduced by $480.00 to the amount of $3,120.00 per month. Additionally, FATHER is hereby awarded a credit of $20,160.00 which is for his $480.00 per month overpayment from the time of [the divorce judgment] through April of 2015. Said credit shall be taken by a further reduction of $480.00 per month making FATHER’S child support $2,640.00 per month until the credit ... [is] used in full.”

Thus, the trial court expressly declined to modify child support but purported to correct an alleged calculation, error in the divorce judgment. Rule 60(a), Ala. R. Civ. P., provides that “[c]lerical mistakes in judgments, orders, or other parts of the record, and - errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” This court has held that a trial court may correct child-support obligations and calculation errors under Rule 60(a). See Ex parte Britt, 212 So.3d 963, 966 (Ala.Civ.App.2016)(trial court had discretion under Rule 60(a) to correct the month in which the father’s child-support obligation was due and to adjust the resulting calculations); and Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 828 (Ala.Civ.App.1997)(noting that a calculation error is a clerical mistake as contemplated by Rule 60(a)).

However, “ ‘Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’ Wright & Miller, Federal Practice & Procedure § 2854, at 149 (1973).” Kudulis v. Kudulis, 709 So.2d 1255, 1256 (Ala.Civ.App.1998). In this case, the divorce judgment ordered the father to pay the amount of child support that the parties had expressly agreed to in the settlement agreement—$3,600 per month. Any calculation error involved in establishing the father’s child-support obligation was not made in the divorce judgment or in the settlement agreement that was incorporated into the judgment. Instead, any purported calculation error was made on the CS-42 form. The parties’ combined adjusted gross income exceeds the $20,000-per-month uppermost limit of the Rule 32, Ala. R. Jud. Admin., ehild-support-guide-lines schedule; therefore, Rule 32 is inapplicable and the father’s child-support obligation was not subject to calculation by the application of the Rule 32 child-support-guidelines schedule or the CS-42 form. Schiesz v. Schiesz, 941 So.2d 279, 288 (Ala.Civ.App.2006). “Further, as this court has ... noted, ‘[t]he Comment to Rule 32 states that “[w]here the combined adjusted gross income exceeds the uppermost limit of the schedule, the amount of child support should not be extrapolated from the figures given in the schedule, but should be left to the discretion of the court.”’” McGowin v. McGowin, 991 So.2d 735, 741 (Ala.Civ.App.2008) (quoting Arnold v. Arnold, 977 So.2d 501, 507 (Ala.Civ.App.2007)). See also Batain v. Batain, 912 So.2d 283, 285 n. 2 (Ala.Civ.App.2005) (noting that, “if the parties’ combined gross monthly income exceeds [the guidelines limit], the filing of CS-41 income affidavits and CS-42 forms are not necessarily required because an award of child support in that circumstance would not be governed by Rule 32”). Although, under Rule 60(a), a trial court has the authority to correct clerical errors in a judgment, the parties’ divorce judgment accurately reflected the agreement of the parties. Thus, there was no error in the divorce judgment to be corrected under Rule 60(a).

The father asserts in his appellate brief that, “[ajfter hearing testimony from both parties, the trial court determined that Father’s agreement to pay Mother $3,600 per month in child support had indeed been based on the amount erroneously calculated by Mother’s attorney.” The record contains no testimony from either party indicating that the father’s agreement to pay the mother $3,600 per month was based on the amount calculated by the mother’s attorney on the CS-42 form. The father’s attorney, at the postjudgment hearing, argued that the father had agreed to pay $1,000 more per month than what was listed on the CS-42 form, and that, had the health-insurance costs been deducted from, rather than added to, the father’s child-support obligation, the father would have agreed to pay approximately $3,100 per month instead of $3,600. However, “[t]he unsworn statements, factual assertions, and arguments of counsel are not evidence.” Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005).

At the conclusion of the trial, the trial-court judge stated: “I am going to assume that deviation [from the child-support guidelines] was based on the amount that you would have been ordered to pay and the amount of .overage you agreed to pay.” The evidence indicates that the father’s child-support obligation listed on the CS-42 form was $2,549. On that same form, under the “Comments” section, it states: “The parties have agreed to deviate from Rule 32 due to the distance between the parties and the income of [the father].” The settlement agreement states that the father “shall pay child support in the amount of $3,600.00 per month. This is a deviation from Rule 32 ... due to the distance between the parties and the [father’s] current income and living expense circumstances.” In addition, as explained above, the child-support guidelines.are not applicable based on the parties’ combined adjusted gross income.

Furthermore, as noted, the parties had agreed to the father’s child-support obligation.

“A settlement agreement is as binding on the parties as any other contract, and it will be enforced by the courts. Coaker v. Washington County Bd. of Educ., 646 So.2d 38 (Ala.Civ.App.1993). A settlement agreement may be reopened only for fraud, accident, or mistake. Nero v. Chastang, 358 So.2d 740 (Ala.Civ.App.1978). Where the terms of a written settlement agreement are clear and unambiguous, the terms of that agreement may not be varied by the introduction of parol evidence regarding a mutual mistake of fact. State Farm Mut. Auto. Ins. Co. v. Brackett, 527 So.2d 1249 (Ala.1988).”

Cain v. Saunders, 813 So.2d 891, 893-94 (Ala.Civ.App.2001). The terms of the settlement agreement are clear and unambiguous: the father agreed to pay $3,600 per month in child support for his two children.

Accordingly, the father could not be credited for any past “overpayments” of child support. It is well settled that

“child support obligations become final money judgments on the day they accrue. See Kuhn v. Kuhn, 706 So.2d 1275, 1278 (Ala.Civ.App.1997). Payments that mature or become due before the filing of a petition to modify are not modifiable. See Ex parte State ex rel. Lamon, 702 So.2d 449, 450-[5]1 (Ala.1997). Rule 32(A)(3)(a), Ala. R. Jud. Admin., states that ‘[t]he provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification.’ ”

Walker v. Walker, 828 So.2d 943, 945 (Ala.Civ.App.2002).

Because the parties’ divorce judgment accurately incorporated the agreement of the parties regarding the father’s child-support obligation, accrued child-support obligations contained in the divorce judgment could not be modified based on a purported clerical error. Therefore, that portion of the judgment modifying the father’s child-support obligation and providing him with a credit for previously paid obligations against future obligations is reversed, and the cause is remanded.

The Father’s Cross-Appeal

The sole argument raised by the father in his cross-appeal is that the trial court should have granted the father’s request to modify his child-support obligation. The father asserts that, since the entry of the divorce judgment, his income has decreased from $38,386 per month to $27,153 per month. The father argues that, although his monthly income exceeds the child-support guidelines, “due to such a substantial reduction [in the father’s income] it was manifestly unjust and inequitable [for the trial court] to refuse his request for a reduction of his child support obligation.”

As explained above, a party seeking a modification of child support must prove changed circumstances warranting the modification, and this court will reverse a trial court’s decision regarding a child-support modification only in narrow circumstances. See Coleman, 648 So.2d at 606. See also Puckett v. Summerford, 706 So.2d 1257, 1257 (Ala.Civ.App.1997) ("Where evidence is presented ore tenus, the trial court’s judgment based on that-evidence is presumed correct, particularly in matters concerning child' support, and it will be reversed only upon a showing that the trial court abused its discretion or that its" determination is plainly and palpably wrong.”). Additionally, because the father’s child-support obligation in the- divorce judgment was based on the parties’ settlement agreement, it “should not be modified except'for clear and sufficient reasons and after thorough consideration and investigation.” Tucker, 588 So.2d at 497.

The evidence indicates that, • although the father experienced a decline in his income, that decline was voluntary and the father still earned a substantial salary. No evidence was presented to indicate that the father lacked the ability to pay his current child-support obligation or that he otherwise needed a reduction in his • child-support obligation. Therefore, the trial court did not exceed its discretion in denying the father’s request to modify his child-support obligation, and the judgment is. affirmed as to the father’s cross-appeal.

The mother’s request for an award of attorney’s fees on appeal is denied.

APPEAL—REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL—AFFIRMED,

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

Thomas, J„ concurs in the result, without writing.

      . The mother does not challenge the finding of contempt or the sanction on appeal.

      . No issue is raised regarding whether the trial court properly considered events that occurred after die trial as a basis for amending the judgment in response to the parties' Rule 59, Ala. R.. Civ. P„ postjudgment motions. However, we note that "a trial court cannot consider new evidence as a basis for amending a judgment.” Lawrence v. Lawrence, 117 So.3d 723, 726 (Ala.Civ.App.2013). See also Marsh v. Smith, 67 So.3d 100, 107-08 (Ala.Civ.App.2011); and Tice v. Tice, 100 So.3d 1071, 1073 (Ala.Civ.App.2012).

      . See Marsh v. Marsh, 852 So.2d 161, 164 (Ala.Civ.App.2002) ("Rule 4(a)(2)[, Ala. R. App. P.,] allows a party to an appeal to file a cross-appeal within 14 days of a timely filed notice of appeal.”).

      . Although the mother did not raise the third specific issue in her postjudgment motion, she did argue the issue at the postjudgment hearing. A transcript of that hearing is contained in the record on appeal. See Rule 4(a)(3), Ala. R. App. P. ("Any error or ground of reversal or modification of a judgment'or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the [Alabama Rules of Civil Procedure],”).

      . We also note that, even if application of the Rule 32 guidelines would have been proper, the evidence indicates that the father’s income was also incorrectly listed on the CS-42 form as $20,000 per month, while his testimony indicated that, at the time the divorce judgment was entered, his income was actually $38,386 per month.


author: DONALDSON, Judge. MOORE, Judge,

text:
    D.T. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES B.H. v. Cullman County Department of Human Resources
    2150429
    2150463
    Court of Civil Appeals of Alabama.
    Sept. 30, 2016
    Sarah Sparks, Cullman, for appellant D.T.
    Rita P. Nicholas, Cullman, for appellant B.H.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

2150429—AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.; § 12-15-319(a)(2), (12); Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989); T.L.S. v. Lauderdale Cty. Dep’t of Human Res., 119 So.3d 431, 437 (Ala.Civ.App.2013); A.K. v. Henry Cty. Dep’t of Human Res., 84 So.3d 68, (Ala.Civ.App.2011); A.M.F. v. Tuscaloosa Cty. Dep’t of Human Res., 75 So.3d 1206, 1212 (Ala.Civ.App.2011); and M.A.J. v. S.F., 994 So.2d 280, 292 (Ala.Civ.App.2008).

2150463—Affirmed, ño opinion.

See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.; § 12-15-319(a)(2), (8), and (12) Ala. Code 1975; C.S. v. Mobile Cty. Dep’t of Human Res., 166 So.3d 680, 685 (Ala.Civ.App.2014); D.V. v. Colbert Cty. Dep’t of Human Res., 121 So.3d 370, 380 (Ala.Civ.App.2012); A.K. v. Henry Cty. Dep’t of Human Res., 84 So.3d 68, (Ala.Civ.App.2011); A.M.F. v. Tuscaloosa Cty. Dep’t of Human Res., 75 So.3d 1206, 1212 (Ala.Civ.App.2011); J.F.S. v. Mobile Cty. Dep’t of Human Res., 38 So.3d 75, 78 (Ala.Civ.App.2009); C.T. v. Calhoun Cty. Dep’t of Human Res., 8 So.3d 984, 989 (Ala.Civ.App.2008); A.R. v. State Dep’t of Human Res., 992 So.2d 748, 760 (Ala.Civ.App.2008); B.S. v. Cullman Cty. Dep’t of Human Res., 865 So.2d 1188, 1196-97 (Ala.Civ.App.2003); and D.W. v. State Dep’t of Human Res., 595 So.2d 502, 504 (Ala.Civ.App.1992).

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

Moore, J., concurs specially.

MOORE, Judge,

concurring specially.

In appeal number 2150429, D.T. (“the father”) appeals from a judgment entered by the Cullman Juvenile Court (“the juvenile court”) terminating his parental rights to D.J.T. (“the child”). In appeal number 2150463, B.H. (“the mother”) appeals from that same judgment to the extent that it terminated her parental rights to the child. This court has affirmed, without an .opinion, the juvenile court’s judgment.

Procedural History

The Cullman County Department of Human Resources (“DHR”) petitioned to terminate the parental rights of the father ánd the mother to the child. After a trial, the juvenile court entered a judgment terminating the parents’ parental rights to the child; that judgment provided, in part:

“The Court finds by clear and convincing evidence that the ... child is a resident of Cullman County, Alabama; that the father and [the] mother of the ... child are unable or unwilling to discharge their responsibilities to and for the ... child and the conduct or condition [of the parents] is unlikely to change in the foreseeable future; that the child is dependent; and there is no viable alternative other than termination of parental rights.”

Both parents timely filed postjudgment motions. The juvenile court denied the father’s postjudgment motion, and the mother’s postjudgment motion was denied by operation of law. See Rule 59.1, Ala. R. App. P. Both parents timely appealed.

Standard of Review

The juvenile court’s judgment terminating the parents’ parental rights must be supported by clear and convincing evidence, which is “‘“[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.”’” C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621, 627 (Ala.Civ.App.2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).
“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [ (Ala.Civ.App.2006) ].
“To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir.1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ”

Ex parte McInish, 47 So.3d 767, 778 (Ala.2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala.2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala.Civ.App.2011).

Discussion

On appeal, both the father and the mother argue that there was no clear and convincing evidence of the grounds for termination of their parental rights and that there was not clear and convincing evidence that DHR used reasonable efforts to reunite them with the child and that those efforts had failed. The father also argues that the juvenile court erred in denying his postjudgment motion without first conducting a hearing. The mother also argues that DHR did not meet its burden of identifying viable relative resources because it did not attempt to contact relatives by mail until a week before the trial.

The evidence indicated that the child was medically fragile and that, because of his health conditions, he could not attend day care during the day. Dr. Barry Wood, a clinical psychologist, testified unequivocally that the mother, because of her mental deficiencies, could not parent the child alone. With regard to the father, Dr. Wood testified that, because of the father’s mental deficiencies, he also was not optimistic about the father’s being able to care for the child but that he needed to conduct more testing to be sure. The evidence indicated that the father worked during the day and would leave the child at home alone with the mother while he worked. Dr. Wood testified that the father did not recognize the mother’s lack of ability to care for the child. The evidence indicated that DHR had provided parenting services to the parents but that those services had not resulted in the mother’s being able to care for the child independently. Finally, with regard to relative resources, the evidence indicated that DHR had attempted to contact those relatives whom the parents identified as potential relative resources. Based on the foregoing evidence, I concur that there is clear and convincing evidence to support the juvenile court’s judgment. See C.O., 206 So.3d at 626. I also concur that, because the father’s post-judgment motion lacked probable merit, the juvenile court’s failure to hold a hearing on that motion is not reversible error.

However, I do not believe that termination of parental rights is the appropriate remedy in a case like this. The evidence in the record indicates that the parents consistently visited the child and that one or both had attended almost all the child’s therapy appointments since they had obtained reliable transportation. The evidence also indicates that the parents took diapers, wipes, clothing, and toys to the visits. The parenting supervisor testified that the parents and the child have a positive bond. She specifically testified that the child responds well to the parents, that he hugs them and talks to them, and that the child loves the parents and the parents love him. DHR did not present any compelling evidence to show that continued interaction between the parents and the child would harm the child. The evidence shows rather overwhelmingly that continuing visitation between the parents and the child would inure to the emotional benefit of the child.

I recognize that the parents cannot assume daily care of the child and that allowing them custody of the child would endanger the health of the child. However, the law should not resort to the most draconian remedy of executing parental rights in a situation like the one in this case in which the child and the parents share a beneficial relationship worthy of protection. I conclude that, in cases such as this one, the ideal remedy would be allowing for an “open adoption,” which would “allow for a parent whose parental rights have been severed to maintain a legally enforceable right to continued visitation with his or her child.” C.S. v. Mobile Cty. Dep’t of Human Res., 166 So.3d 680, 688 (Ala.Civ.App.2014) (Moore, J., concurring in the result in part and dissenting in part). Current Alabama law does not provide for such a remedy, but the legislature should rectify that omission to address situations like the one in this case in which termination of parental rights might be legally correct, but morally indefensible.


author: THOMPSON, Presiding Judge.

text:
    James Howard WALKER v. Courtney R. LANIER
    2150542
    Court of Civil Appeals of Alabama.
    Sept. 30, 2016
    Dinah P. Rhodes of Rhodes & Creech, L.L.C., Huntsville, for appellant.
    Carla Putman Maples, Florence, for ap-pellee.
   THOMPSON, Presiding Judge.

James Howard Walker (“the father”) appeals fi’om á judgment of the Lauderdale Circuit Court (“the trial court”) modifying the child-support provisions set forth in a judgment (“the divorce judgment”) divorcing him from Courtney R. Lanier (“the mother”) in February 2008. Iñ the divorce judgment, the father was awarded custody, subject,to the mother’s visitation, of the parties’ two children (“the children”), who were three and four years old at the time. Pursuant to an agreement of the parties that was incorporated into the divorce judgment, .the mother was not required to pay child support because she was not employed full time at that time.

This is the third time the parties have been before this court. In Walker v. Lanier, 180 So.3d 39 (Ala.Civ.App.2015) (“Walker I”), this court set out the relevant procedural history. On August 23, 2010, the State of Alabama, on behalf of the father, filed a petition in the trial court seeking child-support. That action was assigned case number DR-07-9.02 (“the child-support case”). Subsequently, the mother filed in the trial court a .petition seeking to hold the father in contempt and requesting to modify visitation and custody. That action was assigned case number DR-07-9.03 (“the custody-modification case”). Id. at 40. The trial, court consolidated the two actions. The last day of the evidentiary hearing was held in September 2013. The trial court did not enter its judgments in the cases until June 4, 2014, more than eight months after the hearing concluded. The judgment in the child-support case denied the State’s request on behalf of the father for child support. The judgment in the custody-modification case denied the mother’s petition insofar as it 'sought to hold the father in contempt but granted her request for a modification of custody, ordering the father and the mother to share joint physical custody of the children. Id. at 41. The father appealed from both judgments.

In Walker I, released on April 24, 2015, this court reversed both judgments. As to the judgment entered in the custody-modification case, this court was unable to determine whether the trial court had applied the correct standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984); therefore, we reversed the judgment in that case and remanded the case to the trial court to apply the correct standard. Walker I, 180 So.3d at 44.

This court also reversed the judgment entered in the child-support case because child-support obligations are dependent upon custody arrangements. We wrote that, “in light of our reversal of the judgment in the custody-modification, case; the trial court will have the opportunity to review the evidence relevant to child support and to reconsider that issue.” Id.

On July 10, 2015, the trial court entered a judgment in the custody-modification case awarding the parties joint legal custody and awarding the father “sole physical custody.” In that judgment, the trial court stated: “In light of the necessary changes concerning the question of custody, the issue of child support will be .addressed by separate order in the [child-support case].” The mother filed a postjudgment motion in the custody-modification case; that motion was denied. There is nothing in the record on appeal indicating that the mother appealed from the judgment entered in the custody-modification case.

On November 12, 2015, the father filed a motion in the trial court seeking the entry of a judgment in the child-support case. Specifically, the father sought a judgment awarding him child support going forward, pursuant to Rule 32, Ala. R. Jud, Admin., and also awarding him child support retroactive to August 23, 2010, when the petition in the child-support case was filed, until June 4, 2014, when the trial- court entered its initial judgment in the child-support case, and from April 24, 2015, when this court issued its opinion in Walker I, forward. The trial court did not enter a judgment as requested by the father.

On December 21, 2015, approximately nine months after this court’s opinion in Walker I was released, the father filed a petition for a writ of mandamus in this court in which he asked this court to direct the trial court to enter a judgment in the child-support case. Ex parte Walker, 203 So.3d 116, 119-20 (Ala.Civ.App.2016) (‘Walker II”). This court granted the petition, concluding that the trial court had failed to comply with this court’s mandate in Walker I. Walker II, 203 So.3d at 120. The trial court was instructed to enter an order in the child-support case within 28 days of the release of the opinion Walker II. Id.

On February 29, 2016, more than one year after this court’s opinion in Walker I was released, the trial court entered a judgment in the child-support case. In that judgment, the trial court found that the parties had stipulated that the mother’s income from full-time employment was $1,733 per month. The judgment did not include a finding regarding the father’s monthly income. The mother was ordered to pay the father child support in the amount of $507 a month. The trial court stated that the child-support guidelines set forth in Rule 32, Ala. R. Jud. Admin., had been applied in calculating the mother’s child-support obligation. As to the father’s request for retroactive child support, the trial court stated: “The parties’ [divorce judgment] stipulated that no child support would be made payable by the mother until the mother obtained full time employment. Therefore, any request for arrear-age or retroactive child support is DENIED.” The father timely appealed from the judgment in the child-support case.

On appeal, the father contends that the trial court abused its discretion in failing to award him retroactive child support. Whether to make a parent’s child-support obligation retroactive to the date the petition to modify was filed is a decision committed to the sound discretion of the trial court. Volovecky v. Hoffman, 903 So.2d 844, 850 (Ala.Civ.App.2004).

“The trial court may exercise its discretion in setting the effective date of a modification, but it is not bound to modify as of the date of the filing of the petition. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974); see also, Murphy v. Murphy, 491 So.2d 978 (Ala.Civ.App.1986). This matter is within the sound discretion of the trial judge, whose decision will not be disturbed unless it was so unsupported by the evidence as to be palpably wrong, manifestly unjust, or plainly erroneous. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980).”

Rogers v. Sims, 671 So.2d 714, 716-17 (Ala.Civ.App.1995).

In this case, the mother testified that, after the parties reached their agreement that she would not pay child support but before the divorce judgment was entered, she obtained full-time employment at Helen Keller Hospital, earning $9.33 an hour. She said that, in May 2010, she left her job with the hospital and took another full-time job as an optometry technician. The parties stipulated that the mother’s monthly gross income was $1,733.

In its judgment, the trial court stated that it was denying the father’s request for retroactive child support because the parties had agreed that “no child support would be made payable by the mother until the mother obtained full time employment.” However, the evidence was undisputed that the mother had been employed full time since before the divorce judgment was entered. Therefore, the reason given for the trial court’s determination that the mother would not have to pay retroactive child support is not supported by the record on appeal. Accordingly, we conclude that the trial court erred in denying, based on that rationale, the father’s request for retroactive child support, and we remand the cause for the trial court to reconsider the issue in light of the fact that the mother has had full-time employment at least since the date the father filed his modification petition. Our holding should not be read as a determination that the trial court is required to award the father retroactive child support but as a request for the trial court to consider whether such an award should be made based on the evidence in the record.

The father also contends that the trial court erred in ordering the mother to pay $507 a month in child support. The father maintains that the proper amount of the mother’s monthly child-support obligation should be $582 each month.

“‘“This court has held that if the record does not "reflect compliance with Rule 32(E) ... (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).

In this case, the record contains several “Child Support Guidelines” forms (Form CS-42), which the parties completed to calculate the mother’s child-support obligation. The mother submitted a Form CS-42 indicating that her monthly income was $1,733 and that the father’s monthly income was $2,667. Based on those figures, the mother calculated her child-support obligation to be $405.60 each month. The father submitted three CS-42 forms using the mother’s monthly income of $1,733 but using two different incomes for himself— $1,856.55 and $2,318—because, as a farmer, he said, his income varies from year to year. The father also included health-insurance costs for the children in completing his CS-42 forms. The calculations made from the father’s figures resulted in a monthly child-support obligation for the mother ranging from a low of $572.89 to a high of $668.32. None of the CS-42 forms that the parties submitted resulted in a child-support obligation for the mother of $507 a month.

The record does not contain a Form CS-42 completed by the trial court. As mentioned, the trial court, in its judgment, found that the hiother had a gross monthly income of $1,733, but it did not make a finding as to the father’s gross monthly income. We are unable to determine from the record the manner in which the trial court determined the mother’s child-support obligation.

The application of the Rule 32 child-support guidelines is mandatory. Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000). “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 eannot 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)).” Morgan v. Morgan, 183 So.3d 945, 961 (Ala.Civ.App.2014). Because we are unable to.discern from the record the figures the trial court used to calculate the mother’s child-support,, obligation, we reverse the judgment establishing the child-support award and remand the case to the trial court to redetermine her child-support obligation in compliance with the Rule 32, Ala. R. Jud. Admin., child-support guidelines and this opinion.

If, on remand, after properly applying the Rule 32 child-support guidelines, the trial court determines that the amount of the mother’s child-support obligation under those guidelines is unjust or inequitable, it has the discretion to deviate from those guideliiies so long as it expressly states the reason for that deviation. Rule 32(A), Ala. R. Jud. Admin.; Suggs v. Suggs, 54 So.3d 921, 927 (Ala.Civ.App.2010). Because of the inordinate delays in resolving this matter, the trial court is directed to comply with this court’s directive as expeditiously as possible.

For the reasons set forth above, those portions of the judgmént establishing the amount of the mother’s child-support obligation and denying the father’s request to make that obligation retroactive are reversed, and the cause is remanded to the trial court for it to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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