text:
    Ex parte Rosemary Posey BROWN. (In re Rosemary Posey Brown v. James Earl Brown).
    1070157.
    Supreme Court of Alabama.
    June 30, 2009.

      David A. Simon of Wills & Simon, Bay Minette, for petitioner.
    Oliver J. Latour, Jr., Foley; and W. Donald Bolton, Jr., Foley, for respondent.
   MURDOCK, Justice.

Rosemary Posey Brown (“the wife”) petitioned this Court for a writ of certiorari after the Court of Civil Appeals affirmed in part and reversed in part a judgment divorcing her from James Earl Brown (“the husband”). We granted certiorari review to determine whether the Court of Civil Appeals erred in affirming that part of the divorce judgment holding that the parties’ antenuptial agreement was valid and enforceable. Brown v. Brown, 26 So.3d 1210 (Ala.Civ.App.2007). After reviewing the record in this case, we affirm.

Facts and Procedural History

The parties were married on August 10, 1996. At that time, the husband was approximately 64 years old and the wife was approximately 45 years old. Each party had been married previously, and each party had adult children from those prior marriages. The husband was retired, with substantial income from military-retirement benefits and real-estate investments. The wife was working as a real-estate agent, but her income and earning capacity are not disclosed in the record. A few weeks before the wedding, the wife quit her job at the husband’s request.

Shortly before the parties’ wedding, the husband had his attorney prepare an ante-nuptial agreement. The copy of the ante-nuptial agreement admitted into evidence shows that the document was signed by the husband on August 8, 1996, and by the wife on August 9, 1996; both signatures were witnessed and notarized, apparently by different witnesses and different notaries. The wife admits that she signed the antenuptial agreement, but the circumstances surrounding her execution of the document are disputed.

The husband testified that he gave the antenuptial agreement, which he had already signed, to the wife on August 8 or 9, together with a check in the amount of $150; the check was to pay the wife’s lawyer to review the document. The husband testified that the wife returned the antenuptial agreement to him on August 9, signed by her, with her signature witnessed and notarized. The husband also testified that he was not present when the wife signed the document and that he has no personal knowledge of whether she consulted with her attorney before she signed it.

The wife testified that the husband gave her the antenuptial agreement “midday” on August 9 and that she tried repeatedly to contact her lawyer but that he was too busy to “work her in” that day. The wife testified that she signed the antenuptial agreement, but she does not remember having her signature witnessed and notarized. The wife did not, however, offer any explanation for the fact that her signature on the document is witnessed and notarized, other than to agree with the suggestion that “somebody else” had her signature notarized. The wife also testified that the $150 check from the husband was not to pay her attorney to review the document but possibly to reimburse her for flowers for the wedding.

The copy of the antenuptial agreement admitted in evidence contains the following provision:

“Posey [the wife] declares that she fully understands the terms and provisions of this Agreement, that she has been fully informed of her legal rights and liabilities, that she believes that the provisions of the Agreement are fair, just and reasonable and that she signs this Agreement freely and voluntarily, acting under the advice of independent legal counsel.”

(Emphasis added.)

When asked about the foregoing representation, the wife denied that the representation was true and testified that she did not remember reading the antenuptial agreement. She also testified that “I didn’t say any of that stuff’ and that “[t]hey made that up. I didn’t say it.” The wife testified that she signed the ante-nuptial agreement without reading it because the husband told her that there would be no wedding unless she signed the agreement. The husband testified that he did not tell the wife that there would be no wedding if the wife refused to sign the antenuptial agreement. The wife testified that she felt under a great deal of pressure to sign the antenuptial agreement because the wedding arrangements had already been made and she was expecting many guests to attend the wedding.

The antenuptial agreement included a schedule of the assets owned by each party. The husband’s schedule of assets included 26 parcels of real estate and 6 real-estate-related accounts receivable. Although the schedule does not show the value of any of the husband’s assets, there is evidence in the record indicating that the wife knew before the marriage that the husband had extensive property holdings and that his income was sufficient to allow the wife to quit working. A separate schedule to the antenuptial agreement shows the wife’s separate assets, which included a residence and a checking account; no value is given for either of those assets.

At the time of the divorce, the husband’s separate property included real estate and real-estate-related accounts receivable valued at approximately $2 million, plus a checking account with a balance of approximately $126,000. The facts before us do not disclose the value or composition of the wife’s separate estate at the time of the divorce. There is evidence in the record indicating that, at the time of the divorce, the parties’ jointly owned assets had a net value, after encumbrances, in excess of $500,000.

The husband filed the present action in December 2003, seeking a divorce from the wife. After a trial at which ore tenus evidence was presented, the trial court entered a judgment divorcing the parties, finding the antenuptial agreement to be valid and enforceable, dividing the parties’ property, and awarding the wife alimony. In response to the husband’s postjudgment motion, the trial court amended its judgment to deny the wife alimony based on provisions in the antenuptial agreement. The wife appealed; the husband cross-appealed.

The Court of Civil Appeals affirmed the trial court’s judgment to the extent that it held the antenuptial agreement to be valid and denied alimony to the wife based on the terms of the antenuptial agreement. The Court of Civil Appeals reversed the trial court’s judgment to the extent that it awarded the wife a portion of the funds in a bank account belonging to the husband only. The wife filed a petition for a writ of certiorari asserting that the judgment of the Court of Civil Appeals, insofar as it upholds the antenuptial agreement, conflicts with existing precedent.

Standard of Review

“A divorce judgment based on ore tenus evidence is presumed correct, and such a judgment will be reversed only when it is unsupported by the evidence so as to be plainly and palpably wrong.
“It is also well established that, in the absence of specific findings of fact, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.”

Clements v. Clements, 990 So.2d 383, 389-90 (Ala.Civ.App.2007) (citations omitted).

“ ‘[I]n ore tenus proceedings the trial court is the sole judge of the facts and of the credibility of witnesses,’ and ‘we are required to review the evidence in a light most favorable to the prevailing parties],... Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993); see also First Health, Inc. v. Blanton, 585 So.2d 1331, 1332 (Ala.1991) (reviewing evidence in the light most favorable to the prevailing party where the trial court’s judgment was entered after an ore tenus proceeding).”

Architectura, Inc. v. Miller, 769 So.2d 330, 332 (Ala.Civ.App.2000).

“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.’ ”

Yeager v. Lucy, 998 So.2d 460 (Ala.2008) (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000)).

We also note that “ ‘[i]t is well settled that an appellant has the burden of presenting a record containing sufficient evidence to show error by the trial court.’ ” Wilcoxen v. Wilcoxen, 907 So.2d 447, 450 (Ala.Civ.App.2005) (quoting Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 246 (Ala.Civ.App.2000)).

Analysis

Alabama law has long held that antenuptial agreements are generally enforceable in equity, but “[bjecause of the confidential relationship of the two parties, such contracts are scrutinized by the courts to determine their justice and reasonableness.” Allison v. Stevens, 269 Ala. 288, 291, 112 So.2d 451, 453 (1959). See also Ruzic v. Ruzic, 549 So.2d 72 (Ala.1989); Ala.Code 1975, § 30-4-9 (“The husband and wife may contract -with each other, but all contracts into which they may enter are subject to the rules of law as to contracts by and between persons standing in confidential relations.”).

In Allison, this Court stated that the proponent of an antenuptial agreement has

“the burden of showing that the consideration was adequate and that the entii’e transaction was fair, just and equitable from the [other party’s] point of view or that the agreement was freely and voluntarily entered into by the [other party] with competent independent advice and full knowledge of [the other party’s] interest in the estate and its approximate value.”

269 Ala. at 291, 112 So.2d at 452 (emphasis added). This is the same test articulated in Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980) (citing Allison, 269 Ala. at 291, 112 So.2d at 453), one of the principal authorities relied on by the Court of Civil Appeals in the present case.

The wife contends that the opinion of the Court of Civil Appeals is in conflict with the foregoing legal principles and that the antenuptial agreement is invalid and unenforceable because, she says, (1) she did not read the agreement before she signed it, (2) she did not have a reasonable opportunity to seek independent advice before she signed the agreement, (3) she was forced to sign the agreement in a coercive atmosphere, and (4) the husband did not fully disclose the values of the assets he listed in a schedule to the antenuptial agreement.

After reviewing the record on appeal, we conclude that the Court of Civil Appeals reached the correct result in the present case, although we do not approve of all the reasoning and analysis set forth in their opinion. As a threshold matter, we note that the Court of Civil Appeals begins its analysis by directly addressing only the first Allison/Bamhill test, i.e., whether the consideration was adequate and the entire transaction fair, just, and equitable, and that it then proceeds to discuss whether the fairness and equity elements of that test were satisfied solely by reference to whether part of the second Allison/Bam-hill test, i.e., whether the agreement was entered into freely and voluntarily, was proven. Broivn, 26 So.3d at 1213. Although it may be true that elements of the second Allison/Bamhill test can serve as evidence that the antenuptial agreement is fair, see Woolwine v. Woolwine, 519 So.2d 1347, 1350 (Ala.Civ.App.1987), we reemphasize that the two tests are separate tests. This opinion addresses the second Allison/Bamhill test directly, because that test is the subject of the wife’s brief to this Court.

Under the second Allison/Bamhill test, the husband was required to prove (1) that the wife signed the antenuptial agreement freely and voluntarily, (2) that the wife obtained competent independent advice before she signed the agreement, and (3) that, despite the absence of values on the husband’s schedule of assets, the wife knew the approximate value of the husband’s separate estate. Allison, 269 Ala. at 291, 112 So.2d at 452. In the present case, the trial court heard conflicting ore tenus testimony and received documentary evidence, including the antenuptial agreement itself, and it found the antenuptial agreement to be valid and enforceable. This finding is presumed correct and the trial court’s judgment based on that finding will not be reversed unless the wife presents evidence establishing that the judgment “is unsupported by the evidence so as to be plainly and palpably wrong.” Clements, 990 So.2d at 389.

The wife has not established that the trial court erred with respect to the application of the second Allison/Barnhill test in light of the conflicting accounts as to the events surrounding the wife’s execution of the antenuptial agreement. First, the wife’s testimony at trial — that she signed the antenuptial agreement only under duress and that she did not consult with her attorney before she signed it— conflicts with the wife’s representation in the antenuptial agreement — that she signed the document “freely and voluntarily, acting under the advice of independent legal counsel” — and with parts of the husband’s testimony. The trial court, as the sole judge of the credibility of the witnesses, was free to believe what the husband said at trial and what the wife said in the antenuptial agreement and to disbelieve what the wife said at trial. The trial court’s judgment is also consistent with the holding in cases such as Power Equipment Co. v. First Alabama Bank, 585 So.2d 1291, 1296 (Ala.1991), that “ordinarily when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract and will be bound thereby.” Further, we note that the wife was not unsophisticated or illiterate but that before the marriage she had been employed as a real-estate professional. There was no evidence in the record indicating that, before the present action was filed, the wife ever objected that the representations in the antenuptial agreement were untrue or complained about the terms of the agreement. Accordingly, we cannot conclude that the trial court erred with respect to the first element of the second Allison/Barnhill test.

As to the second element of the second Allison/Bamhill test, the Court of Civil Appeals’ opinion states that “[t]he wife’s failure to secure independent legal advice ..., while certainly regrettable, is not alone sufficient to void the agreement.” 26 So.3d at 1215. The opinion also states that “[t]he trial court could have determined that the wife was aware of the import of the antenuptial agreement and that her decision to sign it without reading it negated any need for her to seek independent legal advice regarding the agreement.” 26 So.3d at 1217. Those conclusions are unnecessary in light of the conflicting evidence presented to the trial court as to whether the wife did consult with counsel, and the trial court’s finding that the antenuptial agreement was valid. Specifically, as noted, the wife represented in the antenuptial agreement itself that she was signing the agreement “freely and voluntarily, acting under the advice of independent legal counsel.” The husband testified (1) that the wife left his presence with a document executed by him and a check with which to pay her attorney to review the document and (2) that the wife later returned with a document signed by the wife, whose signature was witnessed and notarized. Because the trial court could have found the wife’s testimony not to be credible, the wife has not demonstrated that the trial court erred in finding that the antenuptial agreement was valid.

We decline to address the third element of the second Allison/Bamhill test (knowledge of the other spouse’s separate estate) because the wife’s brief places almost no reliance on it. Further, the opinion of the Court of Civil Appeals stated that “the record evidence supports a conclusion that the wife was aware of the general extent of the husband’s assets at the time of the execution of the antenuptial agreement.” 26 So.3d at 1215. Our review of the record leads this Court to the same conclusion.

Based on the foregoing, the judgment of the Court of Civil Appeals is affirmed.

AFFIRMED.

COBB, C.J., and LYONS and STUART, JJ., concur.

BOLIN, J., concurs in the result.

      . The wife does not identify the attorney whom she testified she attempted to contact.

      . At the time of the divorce, the husband still owned, in his own name, approximately 12 of the 26 properties listed on his schedule of assets. There is evidence indicating that the proceeds from the sale of some of the husband’s separate assets were deposited into joint accounts or used to purchase property owned jointly by the husband and the wife. The facts before us do not disclose whether, at the time of the divorce, the wife still owned her separate residence (which was not used as the marital residence).

      . Barnhill has been applied with approval by this Court. See Tibbs v. Anderson, 580 So.2d 1337 (Ala.1991); Ex parte Walters, 580 So.2d 1352 (Ala.1991).

      . With regard to the wife's credibility, we note that there was evidence indicating that, after the parties separated, the wife diverted to her own use approximately $11,000 of proceeds from the sale of properly secured by a note and mortgage that was her husband’s separate property. According to the evidence, the wife signed the husband’s name to a mortgage release (although she claimed that she was authorized to do so) and had her friend falsely notarize the husband's signature when the husband did not sign the document in the notary's presence.

      . In her brief to this Court, the wife cites Ex parte Williams, 617 So.2d 1032 (Ala.1992), for the proposition that an antenuptial agreement can be invalidated when it is executed under duress. Williams is distinguishable from the present case because it involved a summary judgment, rather than a trial at which ore tenus evidence was presented, and because the wife in Williams was 24 years old and pregnant out of wedlock at the time she was told that there would be no wedding if she did not sign the antenuptial agreement.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Barbara Ann STONE v. Scott E. STONE, Jr.
    2071158.
    Court of Civil Appeals of Alabama.
    June 19, 2009.

      W. Terry Bullard, Dothan, for appellant.
    Virginia R. Lucci, Montgomery, for ap-pellee.
   MOORE, Judge.

Barbara Ann Stone (“the mother”) appeals from a judgment entered by the Henry Circuit Court (“the trial court”) modifying the terms of a July 13, 2006, divorce judgment by increasing the child-support and alimony obligations payable by Scott E. Stone, Jr. (“the father”). We affirm.

On October 16, 2006, the mother filed a petition to modify the terms of the parties’ divorce judgment. The mother alleged that, since the entry of the divorce judgment, material changes of circumstances had occurred warranting, among other modifications of the judgment, an increase in the child-support and alimony obligations payable by the father to the mother. After a long and convoluted procedural history, the trial court conducted a trial on the petition on June 4, 2008.

Following that trial, on July 23, 2008, the trial court entered a final judgment. In that judgment, the trial court found:

“At the time the [mother] filed her petition for modification, the [father] had obtained a new job working as a civilian employee in Iraq earning approximately $170,000.00 per year. The [father] held that job from August 2006 until April 2008, when he resigned and took his present job as an aircraft mechanic which pays $20.00 per hour. Although the [father] claims he is not currently working a full 40 hours per week, this Court will impute a 40-hour work week to the [father] at a rate of $20.00 per hour. Therefore, for the purposes of child support calculations, the [father’s] gross income is $3,467.00 per month.”

Based on those factual findings, the trial court awarded the mother retroactive child support in the amount of $1,000 per month covering the period from October 16, 2006, the date the mother filed her petition to modify, to April 2008, when the father quit working in Iraq, subject to a credit of $500 per month for child support the father had already paid during that period. The judgment further awarded the mother $511 in future monthly child support to commence on August 15, 2008. The judgment also ordered the father to pay one-half of the mortgage, taxes, and homeowners’ insurance on the marital residence for 24 months from the date of the judgment and to quitclaim any interest in the marital residence to the mother at the end of the 24-month period, at which time the father was to pay the mother $500 per month in alimony for an additional 24 months.

The day after the trial court entered the final judgment, the mother filed a contempt motion in which, among other things, she accused the father of having lied to the trial court during the trial about his employment. On August 5, 2008, the mother filed a motion to correct clerical errors in the judgment. On August 11, 2008, the trial court corrected the clerical errors and held an ore tenus hearing on the mother’s contempt motion. At that hearing, the father denied that he had only taken a leave of absence from his job in Iraq as the mother had alleged. The father also denied that he intended to return to work in Iraq or to find work in Kuwait. On August 15, 2008, the trial court entered an order denying the contempt motion, but again amending the final judgment, this time to change the schedule of the child-support and alimony payments to be paid by the father.

On August 20, 2008, the mother filed a motion to alter, amend, or vacate the final judgment. The trial court denied that motion on August 25, 2008. The mother appealed to this court on September 8, 2008.

On appeal, the mother argues that the trial court erred in failing to impute a higher income to the father for the purposes of determining child support and alimony. In this case, the trial court, by imputing income to the father in excess of his actual earnings at the time of trial, impliedly found that he was voluntarily underemployed. See Turner v. Turner, 745 So.2d 880, 883 (Ala.Civ.App.1999) (“The trial court did not make the explicit finding that the husband was voluntarily unemployed or underemployed. However, we conclude that such a finding is implicit in the language of the trial court’s judgment [imputing income to the husband].”); see also G.B. v. J.H., 915 So.2d 570, 574 (Ala.Civ.App.2005) (holding that trial court may impute income to parent for child-support purposes without making express finding that parent is voluntarily unemployed or underemployed). Rule 32(B)(5), Ala. R. Jud. Admin., provides, in pertinent part:

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.”

In cases of voluntary underemployment, the amount of income to be imputed to the parent is a question of fact to be decided based on the evidence presented to the trial court. See G.B. v. J.H., supra; see also Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992)) (“The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ ”). We may reverse a judgment imputing income to a voluntarily underemployed parent that is based on ore tenus evidence only if that judgment is so unsupported by the evidence as to be plainly and palpably wrong. G.B. v. J.H., 915 So.2d at 575.

Likewise, when determining the amount of periodic alimony to be awarded, the trial court shall consider the earning capacity of the parties. See, e.g., Ebert v. Ebert, 469 So.2d 615, 618 (Ala.Civ.App.1985) (“[The] ability to earn, as opposed to actual earnings, is a proper factor to con-sicler in deciding ... an initial award of ... periodic alimony .... ”). As with the matter of voluntary underemployment for child-support purposes, the factual question of the earning capacity of a spouse is to be decided by the trial court as an exercise of its judicial discretion. See Lackey v. Lackey, 18 So.3d 393 (Ala.Civ.App.2009). Hence, we may reverse a judgment based on a finding regarding the earning ability of a spouse for alimony purposes only if the trial court has exceeded its discretion in making that finding. See Warner v. Warner, 693 So.2d 487, 488-89 (Ala.Civ.App.1997).

In this case, the mother essentially maintains that the father still had the opportunity to work as a civilian employee in Iraq earning $18,000 per month but that he intentionally quit that job in order to earn less wages to lower his alimony and child-support obligations. The mother maintains that, because of the voluntary underemployment of the father, the amounts the trial court awarded to her for child support and periodic alimony are incorrect and inequitable.

Unfortunately for the mother, we cannot address her contentions because she has failed to supply the transcript of the June 4, 2008, trial. “ ‘[W]hen a trial court’s order is based on evidence that is not before the appellate court, we conclusively presume that the court’s judgment is supported by the evidence.’ ” Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 247 (Ala.Civ.App.2000) (quoting Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.1993)). Therefore, this court must presume that the trial court had before it sufficient evidence to infer that the father was no longer capable of earning an income beyond the amount imputed to the father by the trial court. As a result, we cannot say that the trial court exceeded its discretion in finding that the father had an earning capacity of only $3,467.00 per month, and, thus, we cannot conclude that the trial court’s judgment is plainly and palpably wrong.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

        . The mother also filed a contempt motion as part of the petition. The trial court granted the motion for contempt. The mother has not raised any issue regarding the contempt motion, so we will not address it further.

      . By order dated November 19, 2008, the Alabama Supreme Court amended Rule 32, Ala. R. Jud. Admin., including the child-support guidelines, effective January 1, 2009. By order dated February 25, 2009, the Alabama Supreme Court amended Rule 32(A)(4) and Rule 32(B)(7), Ala. R. Jud. Admin., effective March 1, 2009. Those amendments are not applicable in this case.

      . The record shows that the mother ordered the transcript of only the August 11, 2008, contempt hearing. Three copies of that transcript appear in the appellate record, but the record does not contain a copy of the transcript from the June 4, 2008, trial. It was tire evidence from the June 4, 2008, trial upon which the trial court based its findings regarding the income to be imputed to the father. At the August 11, 2008, hearing, the trial court questioned the father regarding the mother’s allegation in her contempt motion that the father had lied to the trial court on June 4, 2008, when he testified that he had quit his job in Iraq, when, according to the mother, he had in actuality obtained only a leave of absence. The father denied that allegation, and the trial court did not find him in contempt of court. The transcript from the August 11 hearing contains no evidence regarding the reason the father quit working in Iraq, no evidence relating to any opportunity the father had to return to work in Iraq, and no evidence establishing the amount of earnings the father could expect to earn if he could return to work in Iraq. In her brief to this court, the mother sets out facts regarding her contentions on these subjects without citing to any evidence in the record. This court cannot consider those factual assertions. See Rule 28(a)(7), Ala. R.App. P.

      . Because we dispose of the case on the basis that the mother did not provide a transcript of the June 4, 2008, trial, we need not consider the father’s argument that his employment income from his job in Iraq could not be considered under Rule 32(B)(5), Ala. R. Jud. Admin., because that rule authorizes trial courts to impute income based only on "the prevailing job opportunities and earning levels in the community.”


author: THOMPSON, Presiding Judge.

text:
    Edward L. STONE v. Marcia W. STONE.
    2070861.
    Court of Civil Appeals of Alabama.
    June 26, 2009.

      William P. Burgess, Jr., and Amanda L. Chrisley of William P. Burgess, Jr., P.C., Huntsville, for appellant.
    Dinah P. Rhodes of Rhodes & Creech, Huntsville, for appellee.
   THOMPSON, Presiding Judge.

Edward L. Stone (“the husband”) appeals from the trial court’s judgment divorcing the parties. In the judgment, the trial court divided the parties’ marital property, allocated the parties’ debt, and awarded Marcia W. Stone (“the wife”) periodic alimony in the amount of $4,500 each month.

Evidence at the trial, held in January 2008, tended to show the following. The parties were married for 36 years. Their children had reached the age of majority by the time the divorce proceedings began. The husband had been a career officer in the United States Army. At the time of trial, he had retired from the Army and was working in the private sector.

The evidence showed that the husband engaged in profligate behavior throughout the parties’ relationship, both before and after the marriage. When the wife was pregnant with the parties’ youngest child, the husband had sexual relations with the wife’s mother. He had also had sexual relations with the wife’s mother before the marriage. During the course of the marriage, the husband had affairs with seven other women as well. The wife became aware of the husband’s behavior after he was diagnosed with herpes. At that time, the husband told the wife that he had contracted the disease as the result of a one-time sexual encounter that occurred when he was intoxicated. At that time, the wife said, she still loved the husband, and the two chose to stay together. There is no evidence indicating that the wife ever contracted herpes. The husband’s most recent affair, which began in February 2005, was still ongoing at the time of the trial. At the trial, the husband admitted that he was in love with the woman with whom he was having the affair.

The wife’s behavior was not exemplary, either. While the husband was still in the Army, the wife had two affairs, including one with her husband’s commanding officer. The husband testified that the wife also had a drinking problem that had reached the point that it sometimes interfered with her ability to walk, drive, and speak clearly. The parties testified that, in the latter years of their marriage, they were seldom intimate with each other.

The husband asserted that he was disabled, but he is able to work. A pay stub dated November 16, 2007, indicated that the husband had earned $199,922.06 thus far that year. The husband testified that his monthly net income was $8,051.22. The wife contended that the husband’s monthly net income was $12,240.90, which included not only his income from his employer, but also $352.30 in disability benefits from the Veterans’ Administration (“VA”) and an $8,000 annual bonus, which the trial court treated as though it had been received in 12 payments.

The wife had a degree in nursing, but she had not worked in that field since shortly after the parties married. The parties moved frequently because of the husband’s Army career. The wife sold real estate, and in 2003 she began selling jewelry, but she was unable to make much money in either venture. The husband acknowledged that the wife had never earned more than $20,000 annually during the marriage, but he stated that she had chosen not to work. The wife testified that she had injured her back and was unable to work after she had surgery on her back for a second time in December 2006. She also suffers from chronic sinusitis, bronchitis, and asthma, and she has rheumatoid arthritis in her hands and feet.

At the time of the trial in January 2008, the parties owned the marital residence in Madison, which the wife valued at $275,000; the husband valued the home at between $325,000 and $340,000. At the time of the trial, the outstanding debt on the marital residence was $217,728. The parties also owned a house in Virginia Beach, Virginia, which they agreed had a fair market value of $445,000. The balance owed on the mortgage for the Virginia Beach house was $149,900. They also had a number of other financial assets, including individual retirement accounts, the husband’s 401 (k) plan with his current employer, a profit-sharing plan with the husband’s current employer, and other investment accounts.

The evidence indicated that, in addition to the mortgage payments, car payments, and monthly expenses, the husband had credit-card debt of approximately $22,000. The wife had credit-card debt exceeding $105,000. She testified that the debt had accrued because the approximately $1,200 the husband gave her each month was inadequate for the family’s food, pet supplies, clothing, gasoline, and personal expenses. Each party accused the other of attempting to inflate his or her monthly budgetary needs. For example, the wife budgeted $100 each month for pet food and supplies — the husband asserted that she does not even have a pet. On the other hand, the husband budgeted for a mortgage of $2,000 per month, plus homeowners’ association fees and mortgage insurance — the wife asserted that the husband lives in rental property and that those expenses are nonexistent.

In its final judgment, the trial court awarded the marital home to the wife, ordered the parties to sell their house in Virginia Beach, and ordered the husband to pay the mortgages on the house in Virginia Beach until that house sold. The net proceeds from the sale of the Virginia Beach house were then to be used to pay off the debt on the marital home. If any money was remaining after that debt was paid, the parties were to divide it equally.

The parties each were awarded their individual personal property, such as jewelry and clothing, and their respective family heirlooms; one-half of their collectibles, such as Swarovski crystal and Hummel, Goebel, and Lladro porcelain; one-half of the money in their individual retirement accounts and other investment and escrow accounts; and the banking accounts in their individual names. The wife’s attorney fee of $10,407.45 was to be deducted from the amount in the investment accounts before those accounts were divided. The wife was awarded the parties’ 2006 Pontiac Torrent automobile; the husband is to make the monthly pajrment of $459.70 on the Pontiac until the loan is paid in full. The husband was awarded them 2004 Lexus vehicle and their 2007 Toyota truck. The wife was also awarded all household goods, furniture, and other contents of the marital home then in her possession.

The judgment states that the parties had stipulated that the wife was to be awarded as a property settlement 47.86 percent of the husband’s net military-retirement pay. The husband received $6,081.19 in military-retirement pay each month, and the wife was to receive $2,910.45 of that amount. In addition, the husband was ordered to pay the wife $4,500 each month in periodic alimony. Each party was responsible for the credit-card debt in his or her name.

On appeal, the husband contends that the trial court exceeded its discretion in dividing the marital assets and ordering him to pay $4,500 each month in periodic alimony. Specifically, the husband asserts that the award lo the wife of the marital residence, the debt for which is to be paid off with the proceeds from the sale of the Virginia Beach house, is unjust. He also asserts that the award of alimony exceeds the wife’s needs and leaves him with insufficient funds to pay his own expenses, having a crippling effect on him.

When a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000).

The issues of property division and alimony are interrelated, and, therefore, they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996). When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993); and Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001). “[W]e note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.” Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004).

Other than the real property, the marital assets essentially were divided evenly between the parties. The wife received the marital home, and the loan secured by the mortgage on the house was to be paid off using the proceeds of the sale of the parties’ other real property, the Virginia Beach house. The parties anticipated that the proceeds of the sale of that house would be more than sufficient to pay off the loan secured by the mortgage on the marital home. Using the husband’s calculations, he would receive approximately $38,000 of the proceeds from the Virginia Beach house. Evidence presented indicated that, even with the wife receiving the marital home, the husband’s net award (after deducting the debts for which he is responsible from his share of the assets) would be approximately $220,605. The wife’s net award (after deducting the debts for which she is responsible from her share of the assets) would be approximately $328,080.

The parties, now in their late 50s, were married for 36 years and raised two children together. The wife supported the husband in his Army career, moving frequently both within the United States and overseas. The husband acknowledged that the wife had never earned more than $20,000 in any year of their marriage. The testimony of the wife tended to indicate that her prospects for employment are poor; her testimony indicated that she has been in poor health and has been unable to work since having a second back surgery in 2006. On the other hand, the husband’s employment and earning prospects are outstanding. He testified that he had earned more money in the few years just before the trial of this matter than he ever had before.

The husband claims that the trial court’s award of alimony to the wife and the division of real property will cripple him. It is true that the wife was awarded the largest single asset of the marriage, i.e., the marital residence, and that the mortgage on that house was to be satisfied with the proceeds from the sale of the parties’ second house in Virginia Beach. However, the evidence shows that the remaining assets of the parties essentially were divided equally. The evidence indicates that, even after the wife’s share of the husband’s military-retirement pay is deducted and the husband pays alimony of $4,500, the husband will still have a monthly net income of just over $7,000. Including her portion of the husband’s retirement pay and periodic alimony, the wife’s monthly income will be approximately $7,650. The wife also was ordered to pay approximately $80,000 more in credit-card debt than was the husband.

As mentioned previously, a trial court’s division of marital assets must be equitable; it need not be equal, and a determination of what is equitable rests within the sound discretion of the trial court. George v. George, 14 So.3d 180, 188 (Ala.Civ.App.2009); and Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996). Given the length of the parties’ marriage and the husband’s numerous infidelities throughout the marriage, and considering the prospects of the husband and the wife as to future earnings, we cannot say that the trial court exceeded its discretion in its division of the parties’ assets and its award of periodic alimony to the wife.

The husband also contends that the trial court’s judgment improperly precludes him from seeking an increase in his VA disability benefits because to do so would modify his military-retirement benefits, which the final judgment expressly disallows.

In its judgment, the trial court properly deducted from the husband’s monthly military-retirement pay the amount of his “VA waiver” and the “Survivor Annuity Benefits premium.” The trial court then awarded the wife a property settlement in the amount of 47.86 percent of the remaining amount of the husband’s monthly retirement pay, as stipulated by the parties. The trial court included in its judgment the provision that the husband “shall do nothing to reduce the [wife’s] share of the same or interfere with her receipt of the same.”

The husband asserts that that provision would prevent him from seeking an adjustment to his VA disability' benefits if his disability worsens, because, he says, such an action would reduce his military-retirement benefit. Such a limiting provision in the trial court’s judgment, the husband claims, is contrary to the purpose of the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), 10 U.S.C. § 1408 et seq., and violates federal law. We disagree.

The USFSPA authorizes state courts to treat a military member’s “disposable retired pay” as property subject to equitable distribution. Mansell v. Mansell, 490 U.S. 581, 584, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). “Disposable” retirement pay is defined as the military member’s monthly retirement pay minus certain enumerated deductions, including VA disability benefits and annuity payments. 10 U.S.C. § 1408(a)(4). State courts lack the power to treat a military member’s VA disability payments as property subject to division in divorce cases. Mansell, 490 U.S. at 594-95, 109 S.Ct. 2023. In this case, pursuant to a stipulation of the parties, the trial court awarded the wife 47.86 percent of the husband’s “disposable retirement benefits.” The court properly deducted the amount of the husband’s VA disability benefits and the survivor’s annuity premium from the husband’s gross pay before calculating the actual dollar amount the wife was to receive each month.

The question whether a state court may prohibit a military member from unilaterally taking any action, such as waiving retirement pay in exchange for the receipt of VA disability benefits, that would result in a decrease in a spouse’s share of a division of disposable retirement pay once that share is established in a final divorce judgment is one of first impression in Alabama. However, other jurisdictions that have addressed the issue have held that such limiting provisions do not violate the USFSPA. See Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670 (Ct.App.2000); and Hadrych v. Hadrych, 140 N.M. 829, 833, 149 P.3d 593, 597 (Ct.App.2006).

“Many jurisdictions have recognized that the USFSPA does not limit the equitable authority of a state court to grant relief to the nonemployee spouse when military retirement pay previously divided in a dissolution action is converted to disability pay. See In re Marriage of Lodeski, ... 107 P.3d [1097] at 1101 [ (Colo.Ct.App.2004) ]; see also Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992) (courts need not ignore economic consequences of military retiree’s choice to waive retirement pay to receive disability); Danielson v. Evans, 201 Ariz. 401, 36 P.3d 749, 755 (Ct.App.2001) (citing with approval In re Marriage of Gaddis, 191 Ariz. 467, 957 P.2d 1010 (Ct.App.1997), for the point that nothing in USFSPA suggests that court’s final award of an interest in retirement pay must be altered when military retiree obtains postdecree civil service employment); Surratt v. Surratt, 85 Ark.App. 267, 148 S.W.3d 761, 767 (2004) (settlement agreement awarded wife vested property interest in her share of the military retirement benefits that husband could not unilaterally eliminate by waiving those benefits to receive disability benefits); Janovic v. Janovic, 814 So.2d 1096, 1097 (Fla.Dist.Ct.App.2002) (.Mansell not violated because order does not distribute disability benefits, nor will husband be required to use such benefits to satisfy the enforcement order); Black v. Black, 842 A.2d 1280, 1284-85 (Me.2004)(USFSPA does not limit authority of state court to grant postjudgment relief when military retirement pay previously divided is converted to disability pay, so long as the relief awarded does not itself attempt to divide disability pay as marital property); Krapf v. Krapf, 439 Mass. 97, 786 N.E.2d 318, 325 (2003) (court of equity will not sanction voluntary action by the husband that amounts to an evasion of the spirit of the bargain reached with the wife); Johnson v. Johnson, 37 S.W.3d 892, 897-98 (Tenn.2001) (USFS-PA not violated by preventing husband from taking action to frustrate wife’s receipt of her vested interest in his military retirement benefits).”

In re Marriage of Warkocz, 141 P.3d 926, 929-30 (Colo.Ct.App.2006). The rationale behind many of the above-cited cases and the opinions cited in In re Marriage of Warkocz is that “one spouse should not be permitted to benefit economically in the division of property from a factor or contingency that could reduce the other spouse’s share, if that factor or contingency is within the first party’s complete control.” Scheidel, 129 N.M. at 226, 4 P.3d at 673. In other words, courts have found that to allow one party, after judgment, to unilaterally reduce the other party’s award of retirement benefits would be inequitable. As the Alaska Supreme Court stated in Clauson v. Clauson, “neither the USFS-PA nor prior Supreme Court decisions require our courts to completely ignore the economic consequences of a military retiree’s decision to waive retirement pay in order to collect disability pay.” 831 P.2d 1257,1263 (Alaska 1992).

We agree with the reasoning of those courts from other jurisdictions that have held that a state court may properly limit a military member’s ability to unilaterally modify the benefits owed to a former spouse from the member’s retirement pay. Thus, we conclude that federal law neither preempts nor otherwise bars the trial court’s inclusion in its final divorce judgment of the provision aimed at ensuring that the division of property established in that judgment is protected. Because no attempt has been made to adjust the husband’s disposable retirement pay, application of that provision is not an issue before this court. Our holding reaches only the efficacy and legality of the provision at issue.

For the reasons stated above, the judgment of the trial court divorcing the parties, dividing the parties’ marital assets, and awarding the wife periodic alimony is due to be affirmed.

Both the husband’s and the wife’s requests for attorney fees on appeal are denied.

AFFIRMED.

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

      . As the United States Senate Committee that initially considered the federal Uniformed Services Former Spouses' Protection Act, 10 . U.S.C.A. § 1408 et seq., discussed infra, pointed out, "frequent change-of-station moves and the special pressures placed on the military spouse as a homemaker make it extremely difficult to pursue a career affording economic security, job skills and pension protection." Senate Report No. 97-502 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1601; see also Mansell v. Mansell, 490 U.S. 581, 594, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

      . Veterans who receive disability benefits from the VA must waive a corresponding amount of their military retirement pay, to prevent “double dipping.” Mansell, 490 U.S. at 583, 109 S.Ct. 2023; 38 U.S.C. § 3105. The disability payments are exempt from federal, state, and local taxation; thus, many military retirees waive their retirement pay in favor of disability pay, which increases their after-tax income. Mansell, 490 U.S. at 583-84, 109 S.Ct. 2023.

      . The husband cites Ex parte Burson, 615 S.W.2d 192 (Texas 1981), in support of his argument that the provision in the judgment precluding him from reducing or interfering with the wife’s share of the husband's disposable retirement pay is contrary to federal law. We note that Burson was decided in 1981, before Congress passed the USFSPA and before the Supreme Court's decision in Mansell interpreting the USFSPA. Accordingly, we do not find that case to be instructive as to this issue.

      . We note that the rationale behind this holding is consistent with our supreme court’s earlier opinions noting that federal law does not require a trial court to turn a blind eye toward income from disability benefits when fashioning or calculating an award of alimony; the trial court may consider a veteran's disability benefits as a source of income in an award of periodic alimony. See Ex parte Billeck, 777 So.2d 105, 108 (Ala.2000) (and cases cited therein). In this case, the husband has income from other sources so that he would not have to use his VA disability income to ensure that the wife continues to receive her share of retirement benefits.


author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    D.B. v. COFFEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080126 and 2080127.
    Court of Civil Appeals of Alabama.
    June 26, 2009.

      Carmen F. Howell, Enterprise, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., for appellee Department of Human Resources.
   THOMPSON, Presiding Judge.

D.B. (“the mother”) appeals from the judgments of the Coffee Juvenile Court in two separate cases: one involved her daughter, R.C. (“the daughter”), and the other involved her son, S.C. (“the son”) (the son and the daughter are collectively referred to herein as “the children”). In those judgments, the juvenile court ordered that custody of the children remain with the Coffee County Department of Human Resources (“DHR”). This court consolidated the mother’s appeals. For the reasons stated herein, we reverse and remand.

The mother was previously married to B.C. (“the father”), although the record is not clear as to where they lived during the marriage. The daughter was born in 1993, and the son was born in 1996. Following the birth of the children, the mother and the father divorced. The record does not indicate where the parents were divorced. The mother thereafter married W.B. (“the stepfather”), and the children lived with W.B. and her. During part of their marriage, the mother and the stepfather lived in Florida.

From documents appearing in the record, it appears that on August 30, 2004, while the mother and the stepfather were living in Florida, the Circuit Court of the Fifth Judicial Circuit in and for Marion County, Florida (“the Florida court”), entered an order adjudicating the children dependent. As a basis for its finding of dependency, the Florida court found that the children had “been exposed to very bad living conditions with the mother and the stepfather,” that the mother and the stepfather were “not responsive to concerns about [the sonj’s seizures,” that the son suffered “very extensive bruising” resulting from either “inadequate supervision or excessive corporal punishment,” and that “[tjhe mother evidence[d] poor recall, little understanding of the significance of [the sonj’s problems, and probably [the daughter’s as well.” The Florida court concluded that “[tjhe mother’s own intellectual impairment or other mental problems put these two special needs children at substantial risk of imminent abuse or neglect.” As part of its order finding the children dependent, the Florida court ordered that the children were to remain in the mother’s custody under the supervision of the Florida Department of Children and Families. The Florida court assigned case number 2004-264-DP to its proceeding.

In addition to the Florida court’s August 30, 2004, dependency adjudication, the record contains a report, dated April 27, 2005, of a magistrate appointed by the Florida court (see Rule 8.257, Fla. R. Juv. P.) to conduct a judicial-review hearing in the dependency case. Among other things, the magistrate found that the children continued to be dependent, and she recommended that the children continue in the custody of the mother; that the mother and the father, who also lived in Florida, be required to agree on a visitation schedule, failing which a standard visitation schedule should be entered; and that the Florida court retain jurisdiction over the case. There are no documents in the record indicating whether the Florida court accepted the magistrate’s recommendations or how it ultimately resolved the dependency ease.

Sometime later, the mother and the stepfather moved with the children to Alabama. On April 17, 2007, DHR filed two dependency petitions, one as to each of the children, in the Coffee Juvenile Court (“the juvenile court”). DHR alleged in the petitions that the son suffered from diabetes, that the mother and the stepfather were neglecting his medical needs, and that the mother and the stepfather were relying on the daughter to care for the son. DHR also alleged that the mother and the stepfather had refused to cooperate with DHR on two prior occasions. DHR sought custody of both children. Upon consideration of DHR’s petitions, the juvenile court ordered that the children be taken into protective custody. On April 20, 2007, the juvenile court entered an order transferring custody of both children to DHR and indicating that reasonable efforts would be made to reunite the children with the mother.

On May 28, 2007, DHR received allegations that the stepfather had sexually abused the daughter. After an investigation by law enforcement, the stepfather was arrested and charged with three counts of sexual abuse of the daughter. He subsequently fled the jurisdiction. Following his arrest, the mother decided to sever all ties with the stepfather and to pursue a divorce against him.

On August 13, 2007, the juvenile court entered an order as to each child, based on a stipulation of facts, adjudicating the children dependent and indicating that reasonable efforts would continue to be made to reunite the children with the mother and to restore custody of the children to her. According to the orders, custody was to remain with DHR.

On January 3, 2008, DHR filed a motion in both cases in which it sought to have the juvenile court “establish jurisdiction ... [in] the Courts in Coffee County, Alabama from the [Florida court] in Juvenile Division case number 2004-264-DP .... ” On February 26, 2008, DHR filed a motion to set a hearing on its motion regarding jurisdiction. On March 7, 2008, the juvenile court denied the motion for a hearing and ordered DHR to inform it of any action pending in Marion County, Florida, concerning custody of the children and to provide contact information for the Florida court so that it could “communicate [with] the Court in Marion County, Florida, and set any hearing pursuant to the Uniform Child Custody Jurisdiction [and Enforcement] Act[, § 30-3B-101 et seq., Ala.Code 1975].” On March 12, 2008, in compliance with the March 7, 2008, order, DHR submitted certain documents from the dependency action in the Florida court to the juvenile court, including documents con-, taining the information described above! On March 17, 2008, the juvenile court denied DHR’s motion to determine jurisdiction. The juvenile court’s order in the case involving the daughter read:

“There is nothing in [DHR]’s motion that would indicate the Florida Department of Human Resources is or has assumed jurisdiction in this matter. Although the Florida Department of Human Resources previously adjudged the minor child to be dependent and placed her under protective supervision in July 2005, there is nothing provided or plead [sic] to make the Court aware of any pending proceeding or any other motions currently before the [Florida court],
“If there is any motion, pleading, correspondence or Order from the [Florida court], or from any of the attorneys in Marion County, Florida, who state that Marion County is asserting jurisdiction in this case since the filing of the dependency in this Court, [DHR] shall provide this to the Court.
“By finding the minor child dependent in July 2007, as she was a resident of Coffee County and/or was present at the time of the filing of the dependency, this court assumed jurisdiction. There is nothing provided to the Court at this time that would indicate the [Florida court] had jurisdiction over this minor child, at the time of the filing of the dependency by [DHR], nor is there anything provided to this Court indicating that Marion County is attempting to assume jurisdiction over this child.”

The juvenile court entered a virtually identical order in the case involving the son.

On May 13, 2008, DHR filed a motion for a permanency hearing in each of the cases before the juvenile court, in which it indicated that the holding of such a hearing was overdue and should have been scheduled in April 2008. On July 9, 2008, the juvenile court held a permanency hearing in both cases. Following the hearing, the juvenile court entered orders in both cases in which it found, among other things, that placement of the children in the mother’s home continued to be contrary to the children’s best interest and welfare but that termination of parental rights would not be beneficial to them either. The juvenile court ordered that custody remain with DHR, and it set the case for a dispositional review in January 2009. The mother filed a timely appeal to the circuit court in both cases. Thereafter, the juvenile court determined that there was an adequate record and that appeal would lie with this court. The mother then filed a notice of appeal to this court as to each case. This court has consolidated the mother’s appeals.

On appeal, the mother contends that the evidence did not support the juvenile court’s judgments continuing custody of the children with DHR. We do not reach the merits of that contention, however, because it is not clear from the record that the juvenile court obtained subject-matter jurisdiction in these matters. Although neither party takes issue with the juvenile court’s exercise of jurisdiction in these cases, we are bound to consider questions of subject-matter jurisdiction ex mero motu, and we review such questions de novo. M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala.Civ.App.2008). For the reasons discussed below, our review of the record leads us to conclude that, under Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975 (“the UC-CJEA”), subject-matter jurisdiction over the matters raised in these cases may rest in the Florida court and not in the courts of Alabama. See M.B.L., 1 So.3d at 1051 (“[I]n the context of a custody matter controlled by the UCCJEA, ‘jurisdiction to make a child custody determination is subject matter jurisdiction ’ ....”).

“The UCCJEA addresses jurisdiction in matters that may be classified within the definition of a ‘child custody proceeding,’ including dependency proceedings in which the issue of a child’s custody may arise.” M.B.L., 1 So.3d at 1050. According to the UCCJEA, a “child custody proceeding” is “[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue.” § 30-3B-102(4). The term includes, among other things, “a proceeding for ... dependency ..., in which the issue [of custody or visitation] may appear.” Id. According to the UCCJEA, a “child custody determination” is “[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” § 30-3B-102(3).

An Alabama court may not enter a child-custody determination following a previous child-custody determination by a court of another state concerning the same child unless the Alabama court has jurisdiction to make an initial child-custody determination and either: (1) the court of the other state determines that it no longer has continuing, exclusive jurisdiction over the matter or that a court of this state would be a more convenient forum or (2) the court of this state or the court of the other state determines that, among other individuals, the child and the child’s parents no longer reside in the other state. § 30-3B-203; § 30-3B-102(ll) (defining “modification”).

Applying the foregoing provisions of the UCCJEA to the present appeals, it is clear that both the dependency proceeding in the Florida court and the proceedings before the juvenile court in the present cases constitute “child custody proceedings,” because custody of the children is an issue in all of them. Moreover, the Florida court’s August 30, 2004, dependency adjudication and the juvenile court’s judgments of July 21, 2008, constituted “child custody determinations” because all of them provided for custody of the children.

The record provides no indication that the Florida court has determined that it no longer has continuing, exclusive jurisdiction over the matter of the children’s custody or that a court of this state would be a more convenient forum. Furthermore, the record reflects that the children’s father continues to reside in Florida. Thus, the record lacks any evidence demonstrating that the juvenile court properly entertained jurisdiction in these cases to enter what, in effect, constituted a modification of the Florida court’s previous determination.

The record is not conclusive with regard to the question of jurisdiction. The record does not indicate, for example, what jurisdiction divorced the mother and the father and determined the initial custody arrangement of the children. Thus, the record does not foreclose the possibility that the courts of Alabama do have jurisdiction over the issue of the children’s custody and that the court of Florida never properly gained jurisdiction over that issue. We are simply not presented with sufficient evidence to enable us to determine whether jurisdiction was proper in the juvenile court in this case.

In M.J.P. v. K.H., 923 So.2d 1114 (Ala.Civ.App.2005), this court confronted a question of jurisdiction under the UC-CJEA. In that case, a juvenile court of this state dismissed certain dependency petitions and an action to modify a dependency judgment, apparently. on the basis that it lacked jurisdiction under Alabama’s version of the UCCJEA to entertain those matters. On appeal, this court determined that there was insufficient evidence in the record to determine the question of jurisdiction under the UCCJEA. As a result, the court reversed the juvenile court’s judgment of dismissal and remanded the cause for the juvenile court “to take the necessary evidence, determine the necessary facts, and apply the ... UCCJEA to those facts.” 923 So.2d at 1117.

Because the record in the present case contains some indication that the juvenile court may have been without jurisdiction to enter its judgments related to the custody of the children, but does not provide sufficient information to fully resolve that question, we must, as we did in reverse the juvenile court’s judgments, which are based on an assumption of jurisdiction. On remand the juvenile court, before entering a new judgment, is directed to take evidence on the question of its jurisdiction under the UCCJEA and to determine whatever facts are necessary to a disposition of that question. In carrying out this direction, the juvenile court should consider the various tools provided by the UCCJEA for resolving questions of jurisdiction, including communicating with the Florida court (see § 30-3B-110) and obtaining records from the Florida court regarding any child-custody proceedings that it has conducted relative to the children (see Fla. Stat. § 61.513(4); see generally § 30-3B-112, Ala.Code 1975).

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

I concur in the main opinion. I write specially only to note that emergency jurisdiction does not attach in this case simply because it was not sought by the Coffee County Department of Human Resources or exercised by the Coffee Juvenile Court. As discussed in the main opinion, in note 4, temporary emergency jurisdiction may be exercised by “[a] court of this state ... if the child is present in this state and ... it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.” § 30-3B-204(a), Ala.Code 1975.

In this case, the children were present in Alabama and the mother is alleged to have mistreated the son by failing to maintain proper care of his diabetes. Further, it was also alleged that the daughter was sexually abused by the stepfather while in the care of the mother. In holding that the record is insufficient to resolve whether jurisdiction was proper in the Coffee Juvenile Court, this court is not holding that the juvenile court would have been without temporary emergency jurisdiction had it been exercised.

      . Florida has also enacted the UCCJEA. See Fla. Stat. § 61.501 etseq.

      . With regard to the jurisdiction of a court of this state to enter an initial child-custody determination (i.e., ''[t]he first child custody determination concerning a particular child,” § 30-3B-l 02(8)), § 30-3B-201 provides:
      "(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
      "(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
      "(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
      “a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
      “b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
      "(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
      "(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
      “(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
      "(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

      . The UCCJEA provides that once a court has entered an initial child-custody determination consistent with § 30-3B-201, that court maintains continuing, exclusive jurisdiction over that determination, subject to divestiture of its jurisdiction under certain circumstances. § 30-3B-202.

      . The one exception to the inability of a court to exercise jurisdiction when these prerequisites are not met is when a court exercises "emergency jurisdiction” under the UCCJEA. Section 30-3B-204 sets forth the basis for a court's emergency jurisdiction and the manner in which that jurisdiction must be exercised:
      "(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
      “(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
      “(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
      “(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”


author: BRYAN, Judge.

text:
    Mary GOODEN v. BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE d/b/a Mobile Area Water and Sewer System.
    2080433.
    Court of Civil Appeals of Alabama.
    June 26, 2009.

      Phillip M. Leslie, Mobile, for appellant.
    Vaughan Drinkard, Jr., and Michael M. Linder, Jr., of The Atchison Firm, P.C., Mobile, for appellee.
   BRYAN, Judge.

Mary Gooden, the plaintiff below, appeals from a summary judgment in favor of one of the defendants, the Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer System (“the Board”). We affirm.

On May 15, 2006, Gooden sued the Board, alleging that she had been injured on May 25, 2004, when she stepped into an uncovered hole containing a water meter (“the hole”) and that the Board’s agents, servants, or employees had proximately caused her injuries by negligently or wantonly failing to keep a cover on the hole or to warn her that the hole was not covered. Answering the complaint, the Board denied liability.

Subsequently, the Board moved the trial court for a summary judgment. The Board asserted, among other things, that it was entitled to a summary judgment because, it said, no evidence existed indicating that its agents, servants, or employees had breached the duties they owed Gooden. Specifically, the Board asserted that, under § 11-47-190, Ala.Code 1975, the duties its agents, servants, and employees owed Gooden were (1) to refrain from negligently or wantonly leaving the hole uncovered and thereby creating a hazard and (2) to place a cover on the hole upon receiving actual or constructive notice that the hole was not covered. See Water Works & Sewer Bd. of Ardmore v. Wales, 533 So.2d 212, 214 (Ala.1988). The evidence before the trial court indicated that the cover was in place on the hole when the Board’s meter reader read the meter on May 4, 2004, the last time an agent, servant, or employee of the Board observed the meter before Gooden’s accident occurred on May 25, 2004. No evidence indicated that the meter reader had left the cover off the hole after he finished reading it. Moreover, no evidence indicated that the Board had actual or constructive notice that the cover had been removed before Gooden’s accident.

In response to the Board’s assertion regarding the nonexistence of evidence indicating that its agents, servants, or employees had breached a duty they owed her, Gooden submitted evidence tending to prove that a special tool was required to remove the cover; that the Board’s meter reader had to remove the cover in order to read the meter; that the cover weighed 16 pounds, which would prevent a small child from lifting the cover; and that approximately 45% of the meters in the housing project where Gooden’s accident occurred had been without covers at one time or another.

Following a hearing, the trial court entered an interlocutory order granting the Board’s summary-judgment motion. Goo-den then moved the trial court to reconsider its decision to grant the Board’s summary-judgment motion. When the trial court denied her motion to reconsider, Gooden moved the trial court to certify its order granting the Board’s summary-judgment motion as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., and the trial court did so. Gooden then timely appealed to the supreme court, which transferred her appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.”. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

The party moving for summary judgment bears “ ‘the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially))-

“ ‘The manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial....
“ ‘If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production ..., assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim....
“ ‘The nonmovant may defeat a motion for summary judgment that asserts that the nonmovant has no evidence to establish an essential element of his claim by directing the trial court’s attention to evidence of that essential element already in the record that was ignored or overlooked by the movant, or may submit an affidavit requesting additional time for discovery, in an attempt to obtain some evidence of that essential element of the claim, in accordance with Rule 56(f), [Ala.] R. Civ. P.
“ ‘If the nonmovant cannot produce sufficient evidence to prove each element of its claim, the movant is entitled to a summary judgment, for a trial would be useless.’ ”

Ex parte General Motors Corp., 769 So.2d at 909 (quoting Berner, 543 So.2d at 691 (Houston, J., concurring specially)).

In the case now before us, the Board met its burden of production by, among other things, directing the trial court’s attention to the nonexistence of evidence indicating either (1) that the agents, servants, or employees of the Board had created the hazard by leaving the hole uncovered or (2) that the agents, servants, or employees of the Board had actual or constructive notice that the hole was uncovered before Gooden’s accident. Therefore, the burden shifted to Gooden to produce substantial evidence indicating that the agents, servants, or employees of the Board either had created the hazard by leaving the hole uncovered or had actual or constructive notice that the hole was uncovered before Gooden’s accident. Gooden produced evidence indicating that a special tool was required to remove the cover; that the Board’s meter reader had to remove the cover in order to read the meter; that the cover weighed 16 pounds, which would prevent a small child from lifting the cover; and that 45% of the meters in the housing project where Gooden’s accident occurred had been without covers at one time or another.

Gooden’s evidence did not constitute substantial evidence indicating that the agents, servants, or employees of the Board had created the hazard because it did not create a reasonable inference that it was more likely that an agent, servant, or employee of the Board created the hazard than it was that a vandal created it. See Hollis v. City of Brighton, 885 So.2d at 140 (“ ‘ “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’” (quoting Callens v. Jefferson County Nursing Home, 769 So.2d 273, 279 (Ala.2000))). Evidence that a special tool was required to open the cover, if combined with evidence that only agents, servants, or employees of the Board had access to such tools, would have created a reasonable inference that it was more likely that an agent, servant, or employee of the Board created the hazard than it was that a vandal created it, but Gooden did not produce any evidence indicating that only agents, servants, or employees of the Board had access to such tools. Evidence indicating that the meter reader had to open the cover in order to read the meter does not create an inference that the meter reader left the cover off after he or she finished reading the meter. Evidence indicating that the cover weighed 16 pounds creates an inference that only persons who could lift 16 pounds could have removed the cover, but it does not create an inference that such a person was more likely to be an agent, servant, or employee of the Board than it was a vandal. Evidence indicating that 45% of the meters in the housing complex where Gooden’s accident occurred had been without covers at one time or another does not create an inference that the agents, servants, or employees of the Board left the cover off the hole that caused Gooden’s injury or the other uncovered meters in the housing project. Likewise, none of this evidence creates an inference that the agents, servants, or employees of the Board had actual or constructive notice that the hole was uncovered before Gooden stepped into it.

Accordingly, because Gooden failed to meet her burden of production, the trial court did not err in granting the Board’s summary-judgment motion on the ground that Gooden could not prove that the agents, servants, or employees of the Board had breached a duty they owed Gooden. Although Gooden also argues that the trial court erred because it may have granted the Board’s summary-judgment motion on other grounds that are not supported by the record, we need not consider those arguments because, subject to exceptions not applicable here, we can affirm a trial court’s judgment on any valid legal ground presented by the record even if the trial court did not base its judgment on that ground. See, e.g., Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003). Accordingly, we affirm the summary judgment in favor of the Board.

AFFIRMED.

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

      . Gooden also sued two other defendants; however, because those other defendants are not parties to this appeal, we do not discuss the claims against them.

      . In pertinent part, § 11-47-190 provides:
      “No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body ...


author: THOMAS, Judge.

text:
    Norman Leon GUTHERY v. Juana Jean PERSALL and Donna Persall Garden.
    2080179.
    Court of Civil Appeals of Alabama.
    July 24, 2009.

      Mark A. Dutton, Moulton, for appellant.
    Todd McLeroy of Knight, Griffith, McKenzie, Knight & McLeroy, LLP, Cull-man, for appellee Juana Jean Persall.
   THOMAS, Judge.

In February 2004, Norman Leon Guth-ery (“the brother”) sued his sister, Juana Jean Persall (“the sister”), seeking to have the circuit court set aside two deeds, one that had been executed in 1995 by the siblings’ parents, Woodrow Wilson Guth-ery (“Mr. Guthery”) and Vivian Guthery (“Mrs. Guthery”), and one that had been executed in 1996 by Mr. Guthery alone. The brother alleged that at the relevant times Mrs. Guthery had been mentally incompetent and Mr. Guthery had been “coerced and defrauded by the [sister] into executing the deed.” In 2007, the brother amended his complaint to name his niece, Donna Persall Garden, as an additional defendant.

The trial of the case was continued 10 times on the brother’s motions and 1 time on the sister’s motion. On February 28, 2006, the circuit court entered a scheduling order requiring, among other things, that the brother identify in writing “on or before April 21, 2006, all expert witnesses to be called at trial” and that the brother make his experts available for depositions “to be taken no later than May 26, 2006.” The court’s scheduling order also provided: “This order may be amended only by subsequent Order of the Court. There will be no extension of any deadline or date established in this Order by stipulation or agreement of the parties.” Following a bench trial, the circuit court denied the relief requested by the brother and entered a judgment in favor of the sister and the niece. The brother appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The brother raises one issue on appeal — that the circuit court erred by granting the sister’s motion in limine seeking to exclude the testimony of the brother’s expert witness, a handwriting analyst, who, the brother said, would testify that Mr. Guthery’s signature on the 1996 deed had been forged. The brother identified his handwriting expert to opposing counsel in late February 2007, 10 months after the deadline imposed by the circuit court’s scheduling order had passed. Shortly before the trial of the case, and over two years after the deadline for deposing experts had passed, the brother asked opposing counsel whether he wanted to depose the expert.

When the trial of the case commenced on October 7, 2008, the following colloquy between the court and counsel occurred:

“MR. MCLEROY [counsel for the sister]: Yes, sir — The only other thing I have prior to trial is a motion in limine regarding Mr. Drexler’s testimony. I think that Mr. Drexler, who is here setting up his screen display, is a handwriting analyst.
“THE COURT: Right.
“MR. MCLEROY: And my objection to that is the pleadings in this ease are— the complaint is that Mrs. Guthery signed one of — the deed that she signed under a mental incapacity and that Mr. Guthery signed both deeds under duress or under the undue influence of presumably his daughter. There is no allegation in the pleadings that either of those deeds is a forgery, and so I would ask— and we’ve got a scheduling order in this case that was entered in 2006, the pleadings cannot be amended, and I don’t want to be construed as having consented to the trial [of] issues outside the pleadings, so I would object and ask that in limine that any testimony about the genuineness or suspected lack of genuineness of the signatures of Mr. or Mrs. Guthery not be allowed.
“THE COURT: Mark?
“MR. DUTTON [counsel for the brother]: Judge, I believe that the file will reflect that I did file an amended complaint alleging forgery, I believe so, Your Honor. Also, Mr. McLeroy has known about this forgery, this alleged forgery since he got in the case. I even called him specifically and asked him did he want to—
“MR. MCLEROY: That’s true. I did know about it.
“MR. DUTTON: — did he want to take Mr. Drexler’s deposition because of the alleged forgery, and he said no. Judge, this motion is clearly without merit. Whether it’s pled or not — he’s been put on notice of it. Judge, this is — he may be setting a record or something like that, but this motion is without merit.
“MR. MCLEROY: The notice I got — I got in the case in February, Jason and I did after Mr. Culpepper withdrew because he’s going to be a witness, and I did know when I got in the case that Mr. Dutton had identified Mr. Drexler as a witness and a handwriting expert. However, under this Court’s scheduling order entered by you in February of 2006, the time to amend the pleadings had closed and the notice of Mr. Drexler came after that time, so I’m just making my motion based on the scheduling order.
“MR. DUTTON: Judge, I’m not telling you 100 percent, but I believe I saw yesterday where I had filed an amended complaint.
“THE COURT: Do you have a copy of it or is it online?
“MR. DUTTON: Judge, I think I should have a copy of it. If you can give me just a second.
“THE COURT: Take a minute and see if you’ve got it because I’m looking through the file and I don’t see anything.
“(Pause in record)
“MR. DUTTON: Judge, the original complaint states in paragraph nine: At the time of [the] aforementioned conveyance — conveyance of the aforementioned warranty deed, Mr. Woodrow Wilson Guthery was coerced and defrauded by said Juana Jean Persall. An amended complaint was filed April 2, 2007 which basically used the same wording. But, Judge, my understanding of the law is that a forgery, to forge a document is definitely to defraud someone.
“THE COURT: Do you have a copy of that amendment?
“MR. DUTTON: Yes, sir, I do.
“MR. MCLEROY: And I have not seen it.
“THE COURT: Okay. Was that in April 2007?
“MR. DUTTON: April 2007, yes, sir, Judge.
“THE COURT: Go ahead and let him look at it first.
“MR. DUTTON: Judge, actually it’s the complaint that added Ms. Garden to the lawsuit, but it does recite the wording that we had used in the initial complaint, coerced and defrauded.
“MR. MCLEROY: It looks to be verbatim to the original complaint. It changed the parties—
“MR. DUTTON: Judge, if you allege someone has defrauded someone else, which I’ll submit to the Court that includes forgery, you let them know you have a handwriting expert and you give them [the] opportunity to take that deposition and they know that’s a basis of the lawsuit, how can they come in now and claim that they’re not put on notice?
“THE COURT: Well, that’s not the test. You know, I can — if the case is tried and evidence is presented and everybody consents and there’s no objection, I can order at the close that the pleadings be amended to conform to the evidence.
“MR. DUTTON: Yes, sir.
“THE COURT: But where there is an objection up front, that you intend to pui’sue a theory or a cause of action or relief that is not pled in your complaint and they object, they say we’re not going to try that by consent and it’s not framed within the pleadings, and it’s not, what you’ve got in here basically is that, as I read the complaint, is that you contend that Mrs. Guthery was not competent, as I understand, basically that she was not competent—
“MR. DUTTON: Yes, sir.
“THE COURT: — and I suppose maybe under some undue influence and then you make an allegation that there was coercion and defrauding, and I don’t read that to mean that there was a forgery of the signature or that his signature on the deed is not genuine or authentic. That’s a different ball game.
“The motion in limine to exclude any evidence or testimony relating to forgery, lack of genuineness or authenticity of signatures on the deed, that motion is granted, and that evidence will not come in. This case is framed by the pleadings, and it’s going to be based on whether or not either one or both of the grantors were incompetent at the time or whether or not they were coerced or there was undue influence or something along those lines that was exercised.
“THE COURT: ... [I]f you want to make a proffer — I’ve already ruled, but if you want to make a proffer as to what his expected testimony or opinions would be, I’ll allow you to put that on the record.
“MR. DUTTON: .... I would proffer evidence from Steven G. Drexler of Drexler Document Laboratory, Incorporated. He reviewed various handwriting samples of Mr. Woodrow Wilson Guth-ery also known as W.W. Guthery. He did extensive forensic research, again, verified an original and copies of Mr. Woodrow Wilson Guthery’s signature provided by us. And his testimony clearly is that the deed dated August 5, 1996, executed by Mr. W.W. Guthery, the basis of this case, to Jean Persall and Donna Garden is a forgery, and we would — in support of our proffer, I would just offer [the two deeds].”

As the foregoing colloquy demonstrates, counsel for the sister based his motion in limine primarily on the proposition that the brother’s noncompliance with the circuit court’s scheduling order precluded the brother’s expert from testifying at trial, whereas the circuit court based its ruling on the proposition that forgery had not been pleaded in the brother’s complaint. Under either theory, Alabama law indicates that the circuit court’s granting the motion in limine was not reversible error.

In Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987), the Alabama Supreme Court affirmed a trial court’s exclusion of an expert witness’s rebuttal testimony, even in the absence of prejudice to the opposing party, because the witness had not been identified “ ‘as soon as the need [became] reasonably apparent’ ” as the trial court’s pretrial order required. 506 So.2d at 338. In answer to the argument made by the party offering the witness’s testimony that “a pre-trial order is not intended to prevent the full admissibility of otherwise admissible evidence when no prejudice to the opposing party is shown,” the supreme coui’t stated:

“The entire purpose of the pre-trial order is to ‘control the subsequent course of the action.’ Rule 16, Ala. R. Civ. P. Such control necessarily extends to limitations on expert witnesses, which are expressly contemplated by Rule 16. The refusal to permit expert witnesses to testify because of a party’s failure to comply with the pre-trial order is clearly a matter of discretion, not subject to reversal. Electrolux Motor AB v. Chancellor, 486 So.2d 414 (Ala.1986).”

Id.

The brother acknowledges that his complaint did not specifically mention forgery. He maintains, however, that forgery is a species of fraud. See Fortis Benefits Ins. Co. v. Pinkley, 926 So.2d 981, 988 (Ala.2005), and Life Ins. Co. of Georgia v. Smith, 719 So.2d 797 (Ala.1998). He further contends that because the sister failed to move for a more definite statement of the fraud allegation in his complaint, she waived any argument that his complaint did not allege a fraud that encompassed the forgery of Mr. Guthery’s signature. We reject that argument because the factual underpinning for the fraud that was alleged in the brother’s complaint was that Mr. Guthery had been “coerced and defrauded into executing ... the warranty deed.” Executing a deed means signing the deed, see Black’s Law Dictionary 609 (8th ed.2004) (defining “execute” as “[t]o make (a legal document) valid by signing”). The brother’s fraud allegation on its face, therefore, negated the possibility that the grantor’s signature was not genuine.

The decision to grant or deny a motion in limine rests within the sound discretion of the trial court, and that decision will not be overturned on appeal unless the trial court exceeds the limits of its discretion. Ex paite Jackson, 836 So.2d 979, 985-85 (Ala.2002). We conclude that the circuit court did not exceed the limits of its discretion here.

The judgment of the Morgan Circuit Court is affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and BRYAN, 33., concur.

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

      . The sister moved for a continuance when her attorney, Timothy P. Culpepper, withdrew from representing her when it became apparent that he would be a witness at trial. See Rule 3.7, Ala. R. Prof. Cond.