author: THOMAS, Judge.

text:
    Pamela HUBBARD v. James C. HUBBARD
    2160185
    Court of Civil Appeals of Alabama.
    July 28, 2017 Rehearing Denied September 22, 2017 Certiorari Denied January 12, 2018
    Alabama Supreme Court 1170019
    Shane M. Oncale of The Oncale Firm, P.C., Birmingham, for appellant.
    Samantha Rush, Birmingham, for appellee.
   THOMAS, Judge.

Pamela Hubbard ("the mother") and James C. Hubbard ("the father") were married in New Jersey in April 2003. Thereafter, they moved to Shelby County.

There are three children ("the children") of the marriage.

In 2013 the father filed a complaint in the Shelby Circuit Court seeking, among other things, a divorce from the mother and an award of custody of the children. The mother filed a counterclaim seeking, among other things, a divorce from the father and an award of custody of the children. In July 2013 the mother filed a protection-from-abuse ("PFA") motion in the circuit court. That motion was treated as having initiated a separate action and was assigned a separate case number. The mother alleged in the PFA motion that the father abused alcohol, had become "obsessed with firearms," had displayed threatening behavior, had verbally and emotionally abused her, and had committed various acts designed to terrorize her. The circuit court entered a PFA order, awarding, among other things, "primary" custody of the children to the mother.

In August 2013 the mother filed a motion in the divorce action seeking pendente lite relief, and the circuit court entered an order in October 2013 that, among other things, incorporated the parties' agreement that the father would exercise certain weekend and holiday visitation and provided that "[n]either party is to leave the state with the children." See § 30-3-160 et seq., Ala. Code 1975, the Alabama Parent-Child Relationship Protection Act ("the Act").

The parties filed numerous motions and responses in the divorce action, including the mother's November 4, 2013, motion that she styled: "Motion to Allow Mother and Children to Relocate to New Jersey." After a hearing, the circuit court entered a temporary order, addressing all the then-pending motions, and, in pertinent part, denying the mother's request to relocate the children to New Jersey. In May 2014 the mother filed a motion she styled: "Second Amended Motion for Contempt and Renewed Motion to Allow Mother and Children to Relocate to New Jersey." The mother asserted that she had experienced financial difficulties as a result of the father's alleged failure to comply with certain support orders, that she had a master's degree in education but was not licensed to teach in Alabama, that she had been "left destitute," and that she could support the children if the circuit court allowed her to relocate the children to New Jersey where, she said, they could live with her mother and she could obtain employment that would provide health insurance for the children. The children's guardian ad litem filed a motion in which she raised certain concerns regarding the father's alcohol consumption, and, in September 2014 the circuit court entered an order modifying the father's visitation to supervised visitation on two Saturdays per month, but only when he produced a negative alcohol screen.

On August 20, 2014, the circuit court held a trial. The father testified that he did not want the children to relocate 15 hours away from him, that he could not afford airfare to visit the children, that he would not be able to visit, that the children had family in Alabama, and that he loves the children. He testified:

"I think that being without a loving father who is there for them every single day, to play with them every day, to hang out has led into some issues. [The middle child] is developing a stutter. [The oldest child], who just turned seven, still sleeps in diapers at night and [the youngest child], he's a strong boy, and he needs a man in his life."

The mother testified that she would be willing to meet halfway between Alabama and New Jersey to exchange custody with the father; however, her testimony revealed that, in general, she had not encouraged relationships between the children and the father or the children's paternal relatives. The mother said that the father's family had "made [her] life extremely difficult over the past couple of years." She said that they had not believed "what was going on in our household, and I got no help from [his] family." She testified that she feared that the father would someday verbally abuse the children; the father testified that he feared that the mother would someday kidnap the children.

The parents agreed that the children's school is a good school and that the children enjoy extracurricular activities in Calera. The mother testified that she managed all the children's daily activities-dressing, bathing, diapering, eating meals, and reading; the father testified that he enjoyed cooking, playing, watching movies, and visiting the children at school. The father said that, in Alabama, the children enjoyed various outdoor activities with their paternal cousins. The mother testified that the children have maternal and paternal relatives in New Jersey and Pennsylvania, that New Jersey schools are "great," and that her mother's four-bedroom house is near a library and a community center.

The mother testified that she worked two jobs and that she was seeking employment in the Shelby County school system. According to the mother, the uncertainty regarding whether she would receive support from the father had rendered her unsure as to whether she could "survive" in Alabama. She said that she received various forms of government assistance and that she had incurred medical bills because the father had canceled the family's health-care insurance without her knowledge. She denied that she had refused to become certified to teach in Alabama or to make payments on the marital residence or her automobile so that she could claim that she needed to relocate to New Jersey. She offered testimony intended to demonstrate that the father abused alcohol everyday and that he had left firearms within the reach of the children. She offered a number of audio recordings into evidence that demonstrated that, when the parties argued, the father called her crude and profane names in the presence of the children.

When asked how relocation to New Jersey would benefit the children, the mother said:

"The rent or mortgage would be nonexistent. I have a place to live [with the mother's mother]. I wouldn't have any house expenses. I would contribute a little bit to some utilities. I would mostly pay for my groceries and anything that has to really do with the children and myself and it would really help a lot to know that I could come home and the lights would be on instead of whether or not they are going to be on.
"....
"I will have a place to live. I already have my certification [to teach] in New Jersey. I will be able to get a full-time job. I do not need to take any courses for substitute teaching. Down here, I have to take a course which I have, I do have. I have help. My recently widowed mother, I will be living with her. And my friends and family are up there and they have offered their help in any way that they can to make sure that my children and I are taken care of.
"And I know I can get a good job. I still have contacts. I have a network of teacher friends and supervisors that are still in New Jersey and some have moved districts but that just gives me a bigger opportunity to look at other districts."

The following exchange occurred during the cross-examination of the father:

"Q. How do you expect [the mother] to stay here ... in the Alabama area if you are not providing her with any support?
"A. She's-there has been plenty of support. It's just been lately that I've had to bump, you know.
"Q. Sir, your house is in foreclosure. You testified that y'all have a ton of debt. You're not paying current child support. How do you expect her to survive and pay for things for your children, have a roof over their head, food to feed them, money to pay medical bills, enroll them in school if you are not paying any support to her? How do you expect her to stay here in Alabama and survive?
"A: I will just have to do better. I don't see how the alternative is better."

On October 20, 2014, the circuit court entered a judgment divorcing the parties and, in pertinent part, awarding sole legal custody and "primary" physical custody of the children to the mother, subject to the father's right to supervised visitation. The circuit court denied the mother's request for permission to relocate the children to New Jersey. The October 20, 2014, judgment was not a final judgment. The circuit court specifically reserved "all issues not addressed herein," which included a property division, because, at that time, the parties were each contemplating filing for bankruptcy.

The parties filed separate motions seeking reconsideration of the October 20, 2014, judgment. In her motion for reconsideration, the mother argued that the circuit court had abused its discretion by denying her request for permission to relocate the children to New Jersey. The mother argued that the circuit court had misapplied the rebuttable presumption that relocation is not in the best interest of a child. She also argued:

"The primary reason why the relocation is in the best interest of the minor children is a financial one. The testimony at trial showed that the [mother] is actively seeking more gainful employment but is hindered by current licensing requirements in [Alabama], limited openings given the time of year and financial limitations related to the ages and child[-]care needs of the children as well as the [father's] spotty payment of child support and absolute refusal to pay alimony as ordered by the Court. While the financial award in terms of child support and alimony set by the Court could help alleviate some of those financial concerns, the [father,] by both his past and current conduct[,] has made clear that the payment of his Court ordered child[-]support and alimony obligations are not his primary concern and that under no circumstances has he or will he pay alimony. Both parties have filed bankruptcy and the marital home will soon be foreclosed. When this occurs the [mother] and the minor children will have no place to live. The [mother] will be unable to provide suitable housing, food and clothing for the minor children with the [father's] refusal to pay alimony, his uncertain and untimely payment of child support and the money she is currently earning. The [mother] will be left to provide for herself and three young children earning only minimum wage with take-home pay of less than S1,000.00 per month. As presented at trial, the bare minimum to support the minor children will significantly exceed that amount. Even if the [father] was timely in his payment of child support (which he has not been), $2,000.00 a month will not support this family. The best interests of the minor children could not possibly be to suffer in poverty when they could relocate with the mother to New Jersey where their basic needs would be provided by the maternal grandmother while the [mother] seeks gainful employment in a better job market, with higher income and with the connections necessary to get a job in the existing school system. Leaving the children in their current financial predicament is clearly not in their best interests."

At the January 20, 2015, hearing on the motions for reconsideration, the father's attorney argued that the mother had not availed herself of opportunities to become employed in Alabama because, she argued, to do so would negatively impact the mother's "goal" of relocating the children to New Jersey. The father's attorney argued:

"I think this Court heard evidence that [the mother] has no intention of working with or coparenting with [the father] even when they lived in the same county much less when they are thousands of miles away and with the small incomes of both parties that there would be no visitation practically for [the father] and his children and for him to have an active part in his children's life. So I think the Court was looking at the interest of the children versus that of the parents.
"....
"[The mother] certainly has the ability to make more than minimum wage but she has chosen not to to claim impoverishment so you should let her go to New Jersey so her mom can pay for everything."

The circuit court entered a modified judgment on February 18, 2015, which reads, in pertinent part:

"In denying the [mother]'s request for relocation of the minor children to New Jersey, the Court [incorrectly] applied a rebuttable presumption that such relocation would not be in the best interest of the children. Subsequent to the hearing of January 20, 2015, the Court has reweighed all of the evidence and testimony it had before it when the ... Judgment of Divorce was entered, this time without indulging the presumption. In making this revised custody determination, the Court has endeavored to arrive at a custody determination that is in the best interest of the children. The Court has considered all factors affecting the children, including (but not limited to) those set out in Section 30-3-169.3, Code of Alabama, and hereby finds that relocation of the minor children would not be in the best interests of the minor children. As this is the same result the Court reached when applying the earlier standard, the custody and relocation provisions in the ... Judgment of Divorce shall remain undisturbed."

Because the parties had been engaged in separate bankruptcy actions, 17 months passed before the circuit court entered a final judgment on July 5, 2016. On August 3, 2016, the mother filed a postjudgment motion. The mother incorporated the arguments included in her November 19, 2014, motion for reconsideration and argued, for the first time, that the circuit court had violated her constitutional rights by denying her request to relocate the children to New Jersey. The circuit court held a hearing at which the mother's attorney failed to advance a constitutional argument except to mention that the mother intended to appeal the denial of her request to relocate the children to New Jersey because the mother "really [is] blocked from moving from" Alabama. The children's guardian ad litem said:

"[T]hese parents are unable to communicate and co-parent or anything. I think testimony showed they were meeting at a police station [and] couldn't talk to each other. Mom didn't even list paternal grandparents-and maybe not Dad-as an emergency pickup at school.
"So I just don't see any way they could effectively work together on [out-of-state visitation]. I think it's just in the best interest of the children to have a relationship with their father."

The mother's postjudgment motion was denied by operation of law, and she filed a timely notice of appeal seeking this court's review of whether the circuit court erred by denying her request to relocate the children to New Jersey.

" 'The judgment was issued based upon ore tenus proceedings. Where the trial court's findings are based on evidence received ore tenus,
" ' " '[o]ur standard of review is very limited.... A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.' "
" ' Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994) (citations omitted) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) ). "It is our duty to affirm the trial court's judgment if it is fairly supported by credible evidence, 'regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.' " Griggs v. Griggs, 638 So.2d 916, 918-919 (Ala. Civ. App. 1994) (quoting Young v. Young, 376 So.2d 737, 739 (Ala. Civ. App. 1979) ).'
" Sankey v. Sankey, 961 So.2d 896, 900-01 (Ala. Civ. App. 2007)."

Larue v. Patterson, 163 So.3d 356, 358-59 (Ala. Civ. App. 2014).

The mother argues that the application of the 17 factors provided in § 30-3-169.3(a), Ala. Code 1975, should have resulted in a grant of her request to relocate the children. In Lackey v. Lackey, 18 So.3d 393, 399 (Ala. Civ. App. 2009), we explained:

"Section 30-3-169.7., Ala. Code 1975, ... a part of the Act, provides that, when, as in this case, the issue of relocation is presented in conjunction with an initial custody determination, 'the court shall consider ... the factors set forth in Sections 30-3-169.2. and 30-3-169.3.[, Ala. Code 1975,] in making its initial determination.' "

(Footnote omitted.) In her brief, the mother recounts all the evidence presented and asserts public-policy arguments that might inure in her favor regarding the 17 factors. The circuit court made no specific findings of fact, and the Act does not require such findings. See Clements v. Clements, 906 So.2d 952, 957 (Ala. Civ. App. 2005). In the absence of specific findings of fact, " 'this court must assume that the trial court made those findings necessary to support its judgment.' " Id. (quoting Steed v. Steed, 877 So.2d 602, 603 (Ala. Civ. App. 2003) ).

Depending upon its credibility determinations, the circuit court reasonably could have found in favor of either party on the issue of relocation.

" 'It was within the province of the trial court to consider the credibility of the witnesses, to draw reasonable inferences from their testimony and from the documentary evidence introduced at trial, and to assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate.... In order to reverse the trial court ..., we would have to make our own credibility determinations and we would have to reweigh the evidence, neither of which we are allowed to do.' "

Vestlake Cmtys. Prop. Owners' Ass'n v. Moon, 86 So.3d 359, 367 (Ala. Civ. App. 2011) (quoting Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala. Civ. App. 2005) ).

The evidence presented placed the father in a bad light; however, it is the policy of our state to value close and frequent contact between children and both parents. § 30-3-150 & § 30-3-160. The testimony presented supports a conclusion that neither parent could regularly bear the cost of transportation for visitations if the children relocated to New Jersey, and the children's guardian ad litem said that it was not the children's best interest to relocate. The distance between New Jersey and Alabama would make visitation difficult and expensive and would have negatively impacted the amount of contact the father would have with the children; thus, we conclude that there was a sufficient basis for concluding that relocation was not in the children's best interest. See Meadows v. Meadows, 3 So.3d 221, 230-31 (Ala. Civ. App. 2008).

Based on the foregoing, it is clear that we could have affirmed a judgment granting or denying the mother's request for permission to relocate the children to New Jersey; accordingly, we conclude that the mother has failed to demonstrate that the circuit court committed reversible error.

AFFIRMED.

Pittman and Donaldson, JJ., concur.

Thompson, P.J., and Moore, J., dissent, with writings.

I believe that the evidence presented in this case does not support the trial court's judgment denying the request of Pamela Hubbard ("the mother") to relocate, with the parties' children, to New Jersey.

As the main opinion states, this case involves the initial custody determination between these parties. Therefore, § 30-3-169.4, Ala. Code 1975, a part of the Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala. Code 1975, which applies only to a "change of the principal residence" of a child whose custody has already been determined by a court order, see § 30-3-161(1), Ala. Code 1975, is not applicable to this case. Lackey v. Lackey, 18 So.3d 393, 399 (Ala. Civ. App. 2009).

In Lackey, the court explained that situations like the one at bar, where one parent wants to relocate with the children at the time of an initial custody determination incident to a divorce, are governed by § 30-3-169.7, Ala. Code 1975, also a part of the Act. The court wrote that § 30-3-169.7"provides that, when, as in this case, the issue of relocation is presented in conjunction with an initial custody determination, 'the court shall consider ... the factors set forth in Sections 30-3-169.2 and 30-3-169.3[, Ala. Code 1975,] in making its initial determination.' " Lackey, 18 So.3d at 399 (footnote omitted). Thus, when determining whether the mother could relocate to New Jersey with the children, § 30-3-169.7 required that the trial court consider the factors set forth in § 30-3-169.3. Those factors include:

"(1) The nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child's life.
"(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
"(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
"(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
"(5) The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
"(6) The preference of the child, taking into consideration the age and maturity of the child.
"(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
"(8) The extent to which custody and visitation rights have been allowed and exercised.
"(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
"(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
"(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
"(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
"(13) Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
"(14) The stability of the family unit of the persons entitled to custody of and visitation with a child.
"(15) The reasons of each person for seeking or opposing a change of principal residence of a child.
"(16) Evidence relating to a history of domestic violence or child abuse.
"(17) Any other factor that in the opinion of the court is material to the general issue or otherwise provided by law."

§ 30-3-169.3(a).

In the present case, the evidence indicates that the mother and James C. Hubbard ("the father") met and married in New Jersey. The father testified that, about four years after they married, the parties moved to Shelby County. Although, at the time of trial, the father had extended family in Alabama, both parties also had numerous relatives still living in New Jersey. The mother had a license to teach school in New Jersey, and she had done so during the first years of the marriage. The mother was pregnant when she moved to Alabama. From the time the parties' first child was born, the mother was a "stay-at-home mother" and did not obtain a license to teach in Alabama. That meant that the mother could not work as a teacher in this state without first becoming certified here.

The evidence is uncontradicted that the father failed to pay the mother the amount ordered as pendente lite support. In the divorce judgment of October 20, 2014, the trial court found that the father was $2,013.16 in arrears on his child-support obligation and $9,000 in arrears as to his spousal-support obligation. After the parties separated, the mother had been able to obtain jobs in retail and said she was continuing to look for other employment. However, she said, she was having difficulty making ends meet. At the time of the trial, the mother said, she was working two jobs and receiving government assistance such as food stamps, free lunch programs, and the nutrition program for Women Infants and Children, known as WIC, to provide for the children and herself.

The father contends that he cannot afford the child-support and alimony payments he was ordered to pay. The father also stopped paying the premiums for the children's health insurance that the trial court had ordered him to pay. The mother asserted that the father's drinking has caused him to lose customers, which cost him money. The evidence indicated that the father had abused alcohol in front of the children. The children's guardian ad litem expressed concern over the father's alcohol abuse. In fact, the father was forced to admit at a hearing that he had been drinking before coming to court.

The record also demonstrated that the father was verbally abusive toward the mother and had used threatening language toward her. As the main opinion points out, the mother obtained a protection-from-abuse order against the father after alleging that the father abused alcohol, had become "obsessed with firearms," had threatened the mother, had verbally and emotionally abused the mother, and had committed various acts designed to terrorize her. Recordings of the father and the mother that were played in open court corroborate the mother's assertions that the father was verbally abusive and threatening. In one of the recordings, the children can be heard either in the room or nearby as the father yells at the mother about her wanting money to buy the children shoes, yells at her to "shut the f*** up," calls her filthy names, and attempts to belittle and intimidate her. In fact, the father's treatment of the mother in the recordings is among some of the worst verbal abuse of a spouse I have heard in my years on this court.

The week before the trial of this matter, the mother received notice that the mortgage holder for the loan on the marital residence, where she lived with the children, was about to foreclose on that house. The mother testified that she had no other place to live. Without financial assistance from the father, the mother said, she could not afford to continue to live in Alabama.

The mother testified that if she could relocate to New Jersey, she would be able to live with her mother in an area with "great" schools. She said that she would be able to obtain more lucrative employment than she can obtain in Alabama, even if she were to become certified to teach in this state. The children would be near both maternal and paternal relatives, and, the mother said, she would have family and friends to assist her. The father objected to the mother's relocation, citing the distance between his house in Alabama and where the children would live in New Jersey. He said he could not afford airfare to visit.

Ideally, children should be raised by both parents, but sometimes circumstances render such an arrangement untenable. This case illustrates such circumstances. As the main opinion states, "[t]he evidence presented placed the father in a bad light." 257 So.3d at 306. The father is unwilling or unable to meet his financial obligations to support the children, to provide them with the means to shelter them, and to ensure that they have health insurance. I fail to see how it is in the children's best interest to prevent them from moving with the mother to a place where they will have a house in which to live and where the mother has a support system, networking opportunities, and realistic hopes of obtaining the best job for which she is qualified.

In considering the factors in § 30-3-169.3(a), I believe that the mother's reasons for requesting the relocation far outweigh the father's reasons for objecting to the relocation. I also believe that the evidence does not support the trial court's decision to deny the mother's request to relocate with the children to New Jersey and that, therefore, the judgment is plainly and palpably wrong. Because I would reverse the trial court's judgment, I dissent from the main opinion.

I agree with Presiding Judge Thompson that "the evidence presented in this case does not support the trial court's judgment denying the request of Pamela Hubbard ('the mother') to relocate, with the parties' children, to New Jersey." 257 So.3d at 306 (Thompson, P.J., dissenting). The evidence indicates that James C. Hubbard ("the father") cannot or will not financially support the mother and their children so that they can maintain even a minimal standard of living by remaining in Alabama. Without appropriate financial aid from the father, the mother, at the time of the trial, had taken on two jobs in a struggle to provide for the children, but she faced the possibility of losing her home to foreclosure. The mother was depending on governmental aid to provide necessities for the children, and that dependence will only escalate when the family loses its shelter.

The evidence discloses that the children would be provided a suitable home and financial security if they were allowed to relocate to New Jersey. It is entirely speculative whether the mother can obtain a teaching certificate and sufficiently lucrative employment in Alabama to sustain the children, but the evidence is undisputed that, if she relocates to New Jersey, she can. In the interim, the basic needs of the children can be met while living with their maternal grandmother in New Jersey.

The relocation will undoubtedly prevent much meaningful interaction between the children and the father. The Shelby Circuit Court ("the trial court") obviously determined that the father's relationship with the children should be preserved because the record discloses no other possible ground for denying the relocation petition. A father-child relationship is indeed a sacred bond that a court should interfere with only in the most compelling of circumstances. In this case, the evidence in the record shows that, in order to preserve the existing relationship with the father, the children will be forced into an unstable living environment of government dependence. This case exhibits precisely the sort of compelling circumstances that require a court to allow a custodial parent to relocate for the best interests of the children involved despite the impact on the relationship between the children and the noncustodial parent.

In my opinion, the evidence in the record, being undisputed on most major points, does not justify the conclusion reached by the trial court. Therefore, I respectfully dissent from the main opinion's affirmance of the trial court's judgment.

      "The question whether the rebuttable presumption in § 30-3-169.4[, Ala. Code 1975,] is applicable to an initial custody determination is an issue of first impression. We initially note that the language of § 30-3-169.4 applies only to a 'change of principal residence,' which is defined in § 30-3-161(1), Ala. Code 1975, as '[a] change of the residence of a child whose custody has been determined by a prior court order.' (Emphasis added.) Accordingly, we conclude that, by its plain language, § 30-3-169.4 is not applicable to an initial custody determination."
      Lackey v. Lackey, 18 So.3d 393, 399 (Ala. Civ. App. 2009).

      We need not address the mother's vague assertions in her summary-of-the-argument section of her appellate brief that she has suffered a violation of her constitutional rights. The mother has neither presented a legal argument nor cited any supporting authority regarding that issue in the argument section of her brief. See Rule 28(a)(10), Ala. R. App. P.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Karen H. JACKSON v. Jeannan C. BREWER
    2160099
    Court of Civil Appeals of Alabama.
    August 25, 2017 Certiorari Denied January 12, 2018
    Alabama Supreme Court 1161079
    Nancy M. Kirby, Prattville, for appellant.
    J. Mark Murphy, Andalusia, for appellee.
    On Application for Rehearing
   MOORE, Judge.

This court's opinion of June 23, 2017, is withdrawn, and the following is substituted therefor.

Karen H. Jackson appeals from a judgment entered by the Covington Circuit Court ("the trial court") awarding Jeannan C. Brewer ("Brewer") damages in the amount of $5,600, plus attorney's fees in the amount of $4,502.83, on Brewer's breach-of-contract claim. We affirm the trial court's judgment.

Procedural History

On October 2, 2013, Brewer filed a complaint against Jackson, seeking damages for an alleged breach of a purchase agreement, which provided that John Brewer would purchase certain commercial property owned by Jackson. Brewer alleged that the property made the subject of the purchase agreement was a portion of a building owned by Jackson that was to be subdivided along an interior wall, with the property lying to the north of the interior wall to be sold to John Brewer and the property lying south of the interior wall to be retained by Jackson. Brewer alleged that she was the assignee of John Brewer and that she had paid a $5,000 deposit to secure the purchase agreement. Brewer asserted that Jackson had breached the purchase agreement by refusing to close on the sale of the property despite repeated requests from Brewer, and she requested damages and attorney's fees. Jackson apparently filed a counterclaim requesting that Brewer pay her attorney's fees based on the terms of the purchase agreement. Following a trial, the jury returned a verdict in favor of Brewer on May 26, 2016, and awarded her $5,600 in damages and reasonable attorney's fees "as called for by the [purchase agreement]," to be determined by the trial court.

On June 29, 2016, Jackson filed a motion essentially requesting that the trial court enter judgment as a matter of law in her favor; Jackson asserted that the purchase agreement was "illegal and void due to its violation of the Andalusia City's Code subdivision regulations and § 11-52-30[,] Ala. Code 1975." Specifically, Jackson relied on the testimony of Micah Blair, the assistant director of Planning and Development for the City of Andalusia ("the City"), who had testified that Jackson's property could not be subdivided without approval of the City, that no one had applied to subdivide the property, and that the proper authorities had not approved the subdivision of the property. In support of her motion, on September 6, 2016, Jackson filed two additional motions seeking to supplement the record-one to admit the affidavit of Blair, in which he summarized his trial testimony, and a second to admit copies of certain ordinances of the City.

On September 21, 2016, the trial court entered separate orders denying the motions to supplement the record and denying the motion for a judgment as a matter of law; it also entered a judgment in favor of Brewer, awarding her damages in the amount of $5,600 and attorney's fees in the amount of $4,502.83. On November 2, 2016, Jackson filed her notice of appeal.

Discussion

On appeal, Jackson argues that the trial court erred in entering a judgment for Brewer despite the illegality of the purchase agreement.

Before addressing the merits of the appeal, we first reject Brewer's contention that Jackson waived the illegality issue and that she was estopped to assert the illegality of the purchase agreement by relying on the agreement in her counterclaim.

Because an illegal contract is void ab initio and will not support a cause of action or a judgment, a party can raise the illegality of a contract at any time. Kilgore Dev., Inc. v. Woodland Place, LLC, 47 So.3d 267, 271 (Ala. Civ. App. 2009). In Limestone Creek Developers, LLC v. Trapp, 107 So.3d 189, 193-94 (Ala. 2012), our supreme court explained:

"[T]he judicial system may not be used to enforce illegal contracts. See, e.g., Ex parte W.D.J., 785 So.2d 390, 393 (Ala. 2000) ('Moreover, this Court has held that "[a] person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." Hinkle v. Railway Express Agency, 242 Ala. 374, 378, 6 So.2d 417, 421 (1942). In Oden v. Pepsi Cola Bottling Co., 621 So.2d 953 (Ala. 1993), this Court stated that the purpose of the Hinkle rule is to ensure that " 'those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.' " 621 So.2d at 955....' (emphasis omitted)). See also Kilgore Dev., Inc. v. Woodland Place, LLC, 47 So.3d 267, 271 (Ala. Civ. App. 2009) (holding that subdivision-control statutes were implemented to protect the public, not to raise revenue, and that contracts violating those statutes are accordingly void).
"Indeed, the policy behind this principle has been deemed to be of such importance that contracts found to violate the law will not be enforced even if, as has been alleged in this case, the defaulting party failed to properly plead the affirmative defense of illegality. Brown v. Mountain Lakes Resort, Inc., 521 So.2d 24, 26 (Ala. 1988) (' " 'It is the rule ... in Alabama and a few other jurisdictions to not enforce a contract in violation of the law and to deny the plaintiff the right to recover upon a transaction contrary to public policy, even if the invalidity of the contract or transaction be not specially pleaded and is developed by the defendant's evidence.' " ' (quoting National Life & Accident Ins. Co. v. Middlebrooks, 27 Ala.App. 247, 249, 170 So. 84, 86 (1936), quoting in turn Shearin v. Pizitz, 208 Ala. 244, 246, 94 So. 92, 93 (1922) ))."

The policy against enforcing illegal contracts so strongly prevails in Alabama that a party can raise the issue even after a jury returns an adverse verdict based on the contract, as is the case in other jurisdictions. See Pacific Wharf & Storage Co. v. Standard Am. Dredging Co., 184 Cal. 21, 24, 192 P. 847, 849 (1920) (holding that the illegality of a contract can be raised in a posttrial motion). Thus, we reject Brewer's contention that Jackson waived the illegality defense by failing to raise it until after the jury returned its verdict.

Based on the same policy considerations, Alabama law holds that a party cannot be prevented from asserting the illegality of a contract based on the theory of estoppel. See Cooper v. Johnston, 283 Ala. 565, 569, 219 So.2d 392, 396 (1969) ("Vitality cannot be injected into an illegal transaction by way of estoppel."). Brewer alleges that Jackson relied on the purchase agreement to support her counterclaim for attorney's fees. The record does not contain a copy of the counterclaim, so we cannot discern whether, in fact, Jackson was seeking to enforce an attorney-fee provision in the purchase agreement, although Jackson seems to acknowledge as much in her brief to this court. See Roberts v. Roberts, 424 So.2d 644, 645 (Ala. Civ. App. 1982) ("The record cannot be factually enlarged, changed, altered or varied upon appeal by statements appearing in briefs of counsel, but the record on appeal must disclose the facts upon which the alleged error is founded before such an error may be considered."). Nevertheless, we hold that, even if Jackson had relied on the purchase agreement as the foundation for her counterclaim, Jackson would not have been estopped to assert the illegality of the purchase agreement as a defense to the breach-of-contract claim filed by Brewer.

Turning to the merits, Blair's testimony established that the building Jackson owned was located on one parcel of real property and that the building could not be subdivided without the approval of the City, which neither Jackson nor Brewer obtained. In her motion for a judgment as a matter of law, Jackson asserted that the purchase agreement was illegal and void under certain City ordinances that regulate the subdivision of property, which she sought to have admitted into the record by a motion to supplement. Jackson also relied on § 11-52-30, Ala. Code 1975. On appeal, Jackson relies on the same and additional City ordinances and on former § 11-52-33(a), Ala. Code 1975.

We cannot consider the argument based on the alleged violation of the City ordinances. The trial court denied the motion to admit copies of the City ordinances, so they are not part of the appellate record. See Page v. Southern Care, Inc., 219 So.3d 660 (Ala. Civ. App. 2016) (holding that affidavit filed in connection with a postjudgment motion, which affidavit was excluded by court, could not be considered on appeal). Jackson has referenced the relevant City ordinances throughout her appellate brief, but we cannot take judicial notice of the contents of a municipal ordinance in the absence of statutory authority. See Presley Roofing & Constr. Co. v. Lewis, 953 So.2d 1264, 1267 n.2 (Ala. Civ. App. 2006). Section 11-45-11, Ala. Code 1975, provides that "[a]ll courts of the State of Alabama shall take judicial notice of all municipal ordinances of each Class 1 municipality." Class 1 municipalities are those with a population of 300,000 inhabitants or more. § 11-40-12, Ala. Code 1975. We take judicial notice of the fact that the population of the City of Andalusia is less than 300,000. Id. Without evidence of the contents of the City ordinances, we cannot conclude that they prohibited the purchase agreement at issue.

We further reject Jackson's contention that this court must accept the testimony of Blair as conclusive on the meaning and application of the City ordinances. We note the general rule that a witness, whether a lay witness or an expert witness, should never be permitted to give his or her opinion on a question of law or upon the application of the law. See Ex parte Dial, 387 So.2d 879, 880 (Ala. 1980). We need not decide, however, if Brewer waived the application of that general rule by failing to object to Blair's testimony. Jackson ordered only that part of the transcript of the trial proceedings containing Blair's testimony, leaving this court without access to the remainder of the testimony.

Although Jackson asserts that no evidence was introduced to contradict Blair's testimony regarding the meaning, or application, of the City ordinances, in the absence of the remainder of the transcript, this court must presume that the missing portions support the verdict of the jury and the judgment of the trial court. See Smith v. Haynes, 364 So.2d 1168, 1170 (Ala. 1978). Therefore, we cannot reverse the judgment on the basis that Blair's testimony was conclusive on the meaning and application of the City ordinances.

We ordinarily could not consider Jackson's argument based on former § 11-52-33(a) because Jackson did not rely on that statute in the trial-court proceedings, see Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) ; however, because our supreme court has indicated that the court system cannot be used to enforce an illegal contract, see Trapp, supra, we hold that we can consider the effect of former § 11-52-33(a) even though Jackson cites that statute for the first time on appeal. See, e.g., Taylor v. Riley, 157 Idaho 323, 329, 336 P.3d 256, 262 (2014) ("[T]he alleged illegality of a contract may be raised at any stage of the litigation, including for the first time on appeal.").

Former § 11-52-33(a) provided, in pertinent part:

"Where the regulation of a subdivision development is the responsibility of the municipal planning commission, if the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to or exhibition of or by other use of a plat of a subdivision before the plat has been approved by the municipal planning commission and recorded or filed in the office of the appropriate county probate office, the owner or agent shall forfeit and pay a penalty of one hundred dollars ($100) for each lot or parcel so transferred or sold or agreed or negotiated to be sold, and the description of the lot or parcel by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring shall not exempt the transaction from the penalties or from the remedies provided in this section."

Former § 11-52-33(a) made it unlawful for an owner of land that was subject to regulation by a municipal planning commission to enter into an agreement to sell the land as a unit of a proposed subdivision by reference to or the exhibition of a map or plat setting forth the proposed subdivision when the map or plat had not been properly approved by the commission. See Grand Harbour Dev., LLC v. Lattof, 127 So.3d 1230 (Ala. Civ. App. 2013). This court has held that an agreement for the sale of land that violated former § 11-52-33(a), being illegal at its inception, could not be enforced. Kilgore Dev., Inc. v. Woodland Place, LLC, 47 So.3d at 272.

We hold that the record does not disclose any violation of former § 11-52-33(a). Nothing in the record shows that Jackson induced the purchase agreement "by reference to or exhibition of" an unapproved subdivision plat or map. In Kilgore, supra, this court, in holding a contract unenforceable, noted that the contract had expressly called for a developer to purchase lots " 'more particularly described on the unrecorded map or plat' " of the subdivision, which was attached as an exhibit to the contract. 47 So.3d at 272. Courts of other states with a statute using language almost identical to that in former § 11-52-33 have held that the sale of land in a proposed subdivision violates the statute only when induced by specific reference to or exhibition of an unapproved plat or map. See Commmonwealth v. Tapley, 10 Pa. D. & C.2d 392, 397 (Pa. Ct. Com. Pl. 1956) ; and Arkansas Fuel Oil Corp. v. Puccio, 141 So.2d 516, 520 (La. Ct. App. 1962). In the absence of a record that Jackson used an unapproved subdivision plat or map in reaching the agreement to sell part of the building to Brewer, we conclude that Jackson has not shown that a violation of former § 11-52-33(a) occurred.

Jackson premises her appeal of the judgment entirely on the illegality of the purchase agreement, which she claims renders the entire trial-court proceedings, including the award of attorney's fees, void due to lack of subject-matter jurisdiction. Because the record does not disclose that the purchase agreement was illegal, we do not address Jackson's jurisdictional argument. We conclude that the trial court did not commit any error by denying Jackson's motion and by entering a judgment in favor of Brewer. Although the trial court did not rely on the same reasoning as set out in this opinion, we can affirm the trial court's judgment on any valid legal ground presented in the record. See Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala. 2003).

The judgment is affirmed. We deny Jackson's request for attorney's fees on appeal.

APPLICATION OVERRULED; OPINION OF JUNE 23, 2017, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      Former § 11-52-33(a) was amended effective April 7, 2014, see Ala. Acts 2014, Act No. 2014-332. The amended version of § 11-52-33 does not prohibit parties from entering into an agreement to sell subdivided property before receiving official approval of the subdivision plat or map, but the amendment does not apply to this case because the parties' purchase agreement was made before April 7, 2014.

      We do not consider the propriety of that ruling because Jackson does not argue on appeal that the trial court erred in denying the motion. "When an appellant fails to argue an issue in its brief, that issue is waived." Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) ; see also Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.").

      Out of an abundance of caution, we have also reviewed § 11-52-30(g), Ala. Code 1975, although Jackson does not rely on that statute on appeal. Section 11-52-30(g) prohibits the sale of property in a proposed subdivision outside the municipal limits of a city when the property sold is "referenced to the map or plat, until and unless it has been first submitted to and approved by the municipal planning commission." Because § 11-52-30(g) uses wording similar to that in former § 11-52-33(a), it also requires proof that a sale has been transacted by reference to an unapproved plat or map, so Jackson also failed to prove a violation of § 11-52-30(g).


author: DONALDSON, Judge.

text:
    Melvin MORROW v. Lametrius Josenna DILLARD
    2160343
    Court of Civil Appeals of Alabama.
    October 27, 2017 Certiorari Denied January 12, 2018
    Alabama Supreme Court 1170119
    Brittney S. Bragg, Montgomery, for appellant.
    Brandon Wooten of Wooten Law Firm, LLC, Selma, for appellee.
   DONALDSON, Judge.

Melvin Morrow ("the husband") appeals from a judgment of the Dallas Circuit Court ("the trial court") that, among other things, divorces him from Lametrius Josenna Dillard ("the wife"), grants the wife sole physical custody of the parties' child, divides the husband's retirement benefits, awards attorney's fees, and awards half of the husband's prospective worker's compensation settlement benefits to the wife as child support. For the reasons discussed below, we affirm the judgment in part, reverse the judgment in part, and remand the cause for further proceedings.

Facts and Procedural History

The wife filed a complaint for a divorce in the trial court on July 19, 2016. In her complaint, the wife asserted that she and the husband had been ceremonially married on July 30, 2011. She also asserted that the parties "had resided together as husband and wife for some years prior" to their ceremonial marriage. The wife also asserted that the parties had a 10-year-old child, that she should receive sole physical custody of the child, that the husband should be ordered to pay child support, that she should receive one-half of the husband's prospective worker's compensation benefits, and that she should receive one-half of the husband's retirement benefits.

On October 20, 2016, the wife moved for a default judgment. The wife attached to her motion an affidavit from her attorney in which he testified, among other things, that the husband had been personally served by the Dallas County Sheriff on August 23, 2016, with a copy of the summons and complaint for a divorce and that the husband had failed to answer or otherwise defend the wife's complaint. On November 1, 2016, the wife submitted an affidavit entitled "Default Testimony" in which she testified, in part:

"While [the husband] and I were ceremonially married on July 30, 2011 ... we had resided together as husband and wife for at least five (5) years prior to that. During that time, we held ourselves out as husband and wife. Out of this marriage, one child was born, ... date of birth was May 23, 2006.
"There exists a complete incompatibility of temperament between [the husband] and myself, that we can no longer live together as wife and husband. [The husband] has not worked for some period of time and has no income. He does nothing to help me around the house. He verbally abuses me. I have been paying all the bills for many months. [The husband] states that when he receives his workmen's compensation settlement, he is going to leave me.
"I am a fit and proper person to have the care, custody and control of our minor son and do not believe that [the husband] is a fit and proper person to have such permanent custody and care over our child. I should be granted physical custody of said child and [the husband] should have reasonable visitation rights.
"As stated above, [the husband] is currently unemployed and claims to be disabled but I believe that he is capable of employment and earning an income and paying reasonable child support. As stated above, he is presently prosecuting a workmen's compensation claim .... [The husband] has informed me that he is meeting with his attorney in Montgomery on October 24, 2016 and will perhaps settle his workmen's compensation case on that date or on the court date which is October 25, 2016. I now understand the case has been put off until a later date. I do not know the amount of any settlement that he may obtain but I contend that I should be awarded one-half (1/2) of any workmen's compensation amount payable to him for the maintenance, care and support of our minor child.
"In addition to the above, [the husband] has a vested retirement with International Paper Company, one of his former employe[r]s, with a current value of approximately $18,500.00 as shown by International Paper Retirement Plan Statement dated June 30, 2016, a copy of which is attached hereto.... I believe that I should be awarded at least one-half (1/2) of this retirement plan as alimony in gross or property settlement and that a lien should be imposed on the remainder to secure payment by [the husband] of future child support.
"I employed J. Garrison Thompson P.C. of Selma, Alabama as my attorney in this matter and he is representing me throughout these proceedings. Today, I have paid him the total sum of $855.00 which includes all court costs incurred to date. I do not have sufficient funds to pay Mr. Thompson an adequate fee for representing me in this cause and believe that [the husband] should be required to reimburse me for what I have paid plus a reasonable attorney's fee to Mr. Thompson."

On November 1, 2016, the trial court entered a "default decree" that divorced the parties based on incompatibility of temperament and granted sole physical custody of the parties' child to the wife. The trial court also ordered, among other things:

"5. As child support herein, the [the husband] is ordered to pay [the wife] (1/2) of any and all workmen's compensation benefits which he may receive in that certain workmen's compensation action filed by him against Lear Corporation EEDS and Interiors, being case number CV-2013-901029 in the Circuit Court of Montgomery County, Alabama.
"6. The Court retains jurisdiction of this cause for entry of additional orders regarding child support as may be necessary.
"7. As alimony in gross and property settlement, the Court does hereby award to the [wife] one-half (1/2) of any and all retirement benefits which [the husband] may have with International Paper Company. ...
"8. [The husband] is ordered to pay to J. Garrison Thompson, attorney for the [wife], attorney's fee and costs in the sum of $1,266.12, for which execution may issue."

On November 10, 2016, the husband filed a motion seeking to set aside the November 1, 2016, default judgment. In the motion, the husband claimed that he and the wife had been living together during the proceedings, that a hearing had been held on the wife's application for a default judgment without the knowledge of the husband, and that the wife had concealed the existence of that hearing. The husband also asserted, among other things, that he had not been properly served with the complaint and that the judgment violated § 25-5-86(2), Ala. Code 1975, with regard to the award of worker's compensation benefits. Only the first page of the husband's motion is contained in the record on appeal. On November 11, 2016, the trial court entered an order granting the husband's motion to set aside the default judgment and setting a hearing for January 30, 2017.

On January 26, 2017, the wife filed a motion seeking to have the trial court reconsider its order granting the husband's motion to set aside the default judgment. On January 30, 2017, the trial court entered an order stating that a hearing had been held and directing the parties to submit proposed orders within 10 days.

On February 3, 2017, the trial court entered the following order:

"This matter coming on to be heard upon the [wife's] Motion to Reconsider this Court's Order granting [the husband's] Motion to Set Aside the Default Judgement of Divorce entered herein on November 1, 2016; and,
"The parties being present before the Court, together with their respective attorneys, and the Court having considered the Motions above described, the representations made by counsel, and the entire record in said cause, does find as follows:
"1. The [husband] herein was duly served with Summons and Compliant [sic] by the Sheriff of Dallas County, Alabama, on August 23rd 2016, as shown by the return of service appearing of record, which return is prima facie evidence of the fact of personal service of process. Wright v. Rogers, 435 So.2d 90 (Ala. Civ. App. 1983).
"2. In addition to personal service by the Sheriff, the [husband] did receive notice of the proceeding by ordinary mail from [the wife's] attorney upon his filing Application for Entry of Default on October 20th 2016 and [the husband] continued to take no action.
"3. The [husband] has produced no evidence establishing lack of service, nor discharged his burden of establishing lack of service by clear and convincing proof. AAA Sewing Machine Co. v. Shelby Finance Company, 384 So.2d 126 (Ala. Civ. App. 1980).
"4. It therefore appears that the default was the result of [the husband's] own culpable conduct. Kirtland v. Fort Morgan Authority Sewer Services, Inc., 524 So.2d 600 (Ala. 1988).
"5. With regard to [the husband's] assertion that he is uneducated, the Certificate of Divorce filed herein on November 28th 2016 shows that [the husband] has a high school education. It further appears to the Court from the representations made by counsel that [the husband] has worked at responsible jobs including International Paper Company and Renosol Company and further, that at the time the Divorce proceedings were pending, [the husband] was represented by counsel in prosecuting a workman's compensation action.
"6. [The husband] incorrectly asserts that the Divorce Decree violates Section 25-5-81(2), 1975 Alabama Code in that the Alabama Supreme Court has held that child support is not a 'debt', nor constitutes an exemption under the Alabama Workmen's Compensation Laws. Ex Parte McCall, 596 So.2d 4 (Ala. 1992).
"7. [The husband] has further failed to show that he has a meritorious defense to the Complaint nor that [the wife] will not be unfairly prejudiced if the Default Judgment is set aside. Kirtland v. Fort Morgan Authority Sewer Services, Inc., supra ; IT IS
"THEREFORE ORDERED AND ADJUDGED BY THE COURT that the [wife's] Motion to Reconsider is hereby granted, the Order of the Court of November 11, 2016 granting [the husband's] Motion to Set Aside Default Judgment is hereby set aside and vacated, and the Default Decree entered herein on November 1, 2016 is reinstated in its entirety."

(Capitalization in original.) On February 13, 2017, the husband filed a notice of appeal to this court.

Discussion

On appeal, the husband does not raise any issue regarding the procedure followed in "reinstating" the default judgment that had been set aside. We also note that the husband does not address the factors a trial court should analyze in considering whether to set aside a default judgment as announced in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600, 605 (Ala. 1988). Accordingly, we will not address those issues on appeal.

The husband argues on appeal that service of process of the divorce complaint upon him was "fraudulent" and that the judgment was entered without supporting evidence. The husband also argues that there is no evidence to support the child-custody, child-support, and alimony awards and the division of the husband's retirement and worker's compensation benefits. The husband further argues that, even if the evidence was sufficient to support the judgment, the trial court's award of one-half of undetermined prospective worker's compensation benefits as child support, the division of his retirement benefits without evidence indicating that the parties had been married the requisite 10 years, and the award of attorney's fees must be reversed.

I. Service of Process

With regard to the husband's argument that service of process upon him was "fraudulent," the husband has cited no authority in support of his position. It is well settled that "[t]his court will address only those issues properly presented and for which supporting authority has been cited." Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996). "Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). In addition, the husband makes factual assertions in his brief related to the wife's alleged actions that are not contained in the record. An appellate court is "bound by the record, and cannot consider evidence set out in [a party's] brief, but not found in the record." Bonds v. Cooke & Wood Constr. Co., 37 Ala.App. 580, 581, 72 So.2d 856, 857 (1954).

II. Evidence to Support the Default Judgment

Regarding the argument that the judgment of divorce was entered without supporting evidence, we note that, pursuant to Rule 55(e), Ala. R. Civ. P., "[n]o judgment by default shall be entered against ... parties to an action for divorce or annulment of marriage unless the claimant establishes the party's claim or right to relief by evidence." In support of his argument, the husband cites Plummer v. Plummer, 361 So.2d 592 (Ala. Civ. App. 1978), Johnson v. Johnson, 168 So.3d 61 (Ala. Civ. App. 2014), and Tucker v. Tucker, 60 So.3d 891 (Ala. Civ. App. 2010).

In Plummer, the wife moved for the entry of a default judgment, and, after a hearing at which the wife testified, the trial court entered a default judgment in the wife's favor. The issue on appeal in Plummer involved whether the trial court should have granted the husband's Rule 60(b), Ala. R. Civ. P., motion to set aside the judgment as void. This court held that, because the trial court's judgment was entered after a hearing at which the wife testified, and because the husband did not include a transcript of that proceeding on appeal, this court would "conclusively presume" that the evidence not contained in the record supported the judgment. 361 So.2d at 593.

In Johnson, the trial court, on the husband's motion, entered a default judgment that divorced the parties, granted sole physical custody of the parties' child to the husband, and ordered the wife to pay child support. This court reversed the judgment, finding that the record contained no testimonial evidence to support the judgment and noting that the trial court had stated that the judgment was entered " 'on consideration of the pleadings and hearing held for sanctions,' and not upon any other evidence." 168 So.3d at 64.

In Tucker, this court reversed a trial court's default judgment in favor of the wife in a divorce proceeding, finding that "the wife did not introduce any evidence to establish facts that would support the specific division of property, the award of child support, the custody determination, or any other specific relief that the wife was awarded in the divorce judgment." 60 So.3d at 898. This court, however, affirmed the default judgment "insofar as it dissolved the bonds of matrimony," finding that "the wife introduced evidence establishing the jurisdictional facts necessary to support a divorce." Id. at 899.

In this case, the wife submitted an affidavit in support of her motion for a default judgment in which she stated facts sufficient to grant a divorce based on incompatibility of temperament. Accordingly, there was sufficient evidence before the trial court to grant the relief requested "insofar as it dissolved the bonds of matrimony." Id.

As noted earlier, the husband also challenges the judgment insofar as it awards the wife a portion of his retirement benefits, grants custody of the child to the wife, awards attorney's fees, and awards a portion of his prospective worker's compensation benefits as child support.

III. Retirement Benefits

As this court has previously recognized, § 30-2-51(b), Ala. Code 1975, provides that

"the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for 10 years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court."

Smith v. Smith, 836 So.2d 893, 899-900 (Ala. Civ. App. 2002).

In order for the trial court to have properly awarded the wife one-half of the husband's retirement benefits, the trial court must have received evidence indicating that the parties had been married for at least 10 years and must have determined what benefits were acquired during the marriage and whether the husband had a vested interest in those benefits. See § 30-2-51(b).

In challenging the trial court's award of retirement benefits, the husband argues only that the parties had not been married the requisite 10 years. In support of his argument, the husband cites Xiangming Zha v. Ningyong Xu, 108 So.3d 1054 (Ala. Civ. App. 2012), in which this court reversed the judgment because "the parties were not married for the statutorily required 10 years" and the trial court appeared to have improperly considered the husband's retirement benefits in awarding a property settlement to the wife. Id. at 1056.

The wife's affidavit in this case showed that, although the parties had not been ceremonially married for 10 years, the parties had held themselves out as husband and wife-i.e., had been married at common law-and had resided as husband and wife for at least five years before their ceremonial marriage on July 30, 2011, which would total at least 10 years of marriage. In order "[t]o establish a common-law marriage, there must be a present agreement or mutual understanding to enter into the marriage relationship, the parties must be legally capable of making the contract of marriage, and there must follow cohabitation as man and wife and a public recognition of that relationship." Luther v. M & M Chem. Co., 475 So.2d 191, 193 (Ala. Civ. App. 1985). The husband did not address the portion of the wife's affidavit asserting the existence of a common-law marriage in his principal brief on appeal. In his reply brief, the husband attempts to contradict the wife's factual assertions in her affidavit that formed the basis of her claim of a common-law marriage; however, the wife's affidavit testimony was uncontradicted in the trial court. Therefore, the trial court could have been clearly convinced that the parties had been in a common-law marriage before their ceremonial marriage and that the length of the marriage was greater than 10 years. See Adams v. Boan, 559 So.2d 1084, 1087 (Ala. 1990) (explaining that, "[o]nce married, by common law or by ceremony, the spouses are married").

The husband has not argued that his retirement benefits were not accumulated during the parties' marriage, see § 30-2-51(b)(1), nor has the husband challenged, at either the trial or appellate level, any aspect of the award of retirement benefits other than the finding that the parties had been married 10 years. Accordingly, the husband has waived any other challenge to the award of retirement benefits. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) ("When an appellant fails to argue an issue in its brief, that issue is waived."). Accordingly, the trial court's judgment related to the award of retirement benefits is affirmed.

IV. Child Custody

In the judgment, the trial court granted the wife sole physical custody of the parties' child and granted the husband visitation rights.

"When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the 'best interest of the child' standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala. Civ. App. 2000) ; see also Ex parte Byars, 794 So.2d 345 (Ala. 2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the ' "characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent." ' Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981) ).... Other factors the trial court may consider in making a custody determination include 'the sex and age of the [children], as well as each parent's ability to provide for the [children's] educational, emotional, material, moral, and social needs.' Tims v. Tims, 519 So.2d 558, 559 (Ala. Civ. App. 1987). The overall focus of the trial court's decision is the best interests and welfare of the children."

Steed v. Steed, 877 So.2d 602, 604 (Ala. Civ. App. 2003).

In her affidavit, the wife included the child's name and age and stated:

"I am a fit and proper person to have the care, custody and control of our minor son and do not believe that [the husband] is a fit and proper person to have such permanent custody and care over our child. I should be granted physical custody of said child and [the husband] should have reasonable visitation rights."

The wife also testified in her affidavit that the husband had been unemployed, had refused to help the wife around the house, had refused to pay bills, and had verbally abused the wife. On appeal, the husband does not point to any deficiencies in the wife's affidavit to support the judgment granting her physical custody of the child but, instead, argues without a citation to authority that a hearing should have been held. Based on the undisputed evidence, the trial court could have determined that the child's best interest would be served by granting sole physical custody to the wife. Accordingly, the portion of the judgment relating to child custody is also affirmed.

V. Attorney's Fees

The husband next challenges the trial court's award of attorney's fees to the wife. The trial court ordered the husband to pay $1,266.12 for the wife's attorney. " 'This court reviews an award of an attorney fee on an abuse-of-discretion standard.' " Beck v. Beck, 142 So.3d 685, 696 (Ala. Civ. App. 2013) (quoting Mahaffey v. Mahaffey, 806 So.2d 1286, 1292 (Ala. Civ. App. 2001) ). In her affidavit, the wife testified that she had paid $855 to her attorney, which included court costs. She also submitted an itemized bill from her attorney, which totaled $1,266.12 and indicated a remaining unpaid balance of $411.12. The attorney-fee award is supported by the evidence contained in the record, and we cannot say that the trial court exceeded its discretion in awarding that fee.

VI. Child Support and Worker's Compensation Benefits

The husband challenges the trial court's judgment awarding the wife one-half of the husband's undefined prospective worker's compensation benefits to fulfill an undetermined child-support obligation. In support, the husband cites § 25-5-86(2), Ala. Code 1975, which provides that "[c]laims for compensation, awards, judgments, or agreements to pay compensation owned by an injured employee or his or her dependent shall not be assignable and shall be exempt from seizure or sale or garnishment for the payment of any debt or liability." This court has held that " § 25-5-86 does not exempt workmen's compensation from garnishment for the satisfaction of [a parent's] child support obligation." McCall v. McCall, 596 So.2d 2, 4 (Ala. Civ. App. 1991). Our supreme court, in affirming this court's opinion in McCall, stated: "The exemption [in § 25-5-86(2) ] should not be used to relieve a person from an obligation to support his or her spouse or children." Ex parte McCall, 596 So.2d 4, 6 (Ala. 1992). In McCall, the trial court determined that the child-support obligor owed a specific child-support arrearage and this court determined that the obligor's worker's compensation benefits were not exempt from satisfying that arrearage. Unlike in McCall, neither the child-support amount nor the prospective worker's compensation benefits have been determined or awarded in the present case.

In reviewing the record to find some basis for the trial court's child-support award, we note the absence of any child-support forms as required by Rule 32, Ala. R. Jud. Admin.

"A noncustodial parent's child-support obligation is governed by the mandatory application of Rule 32, Ala. R. Jud. Admin.
Smith v. Smith, 587 So.2d 1217 (Ala. Civ. App. 1991). Rule 32(E), Ala. R. Jud. Admin., states that '[a] standardized Child Support Guidelines form and a Child Support Obligation Income Statement/Affidavit form shall be filed in each action to establish or modify child support obligations and [that those forms] shall be of record and shall be deemed to be incorporated by reference in the court's child support order.' (Emphasis added.) The filing of the child-support-guidelines forms required under Rule 32(E) is mandatory. Martin v. Martin, 637 So.2d 901 (Ala. Civ. App. 1994). This court has consistently held that the failure to file the required child-support-guidelines forms in compliance with Rule 32(E) where child support is made an issue on appeal is reversible error. Holley v. Holley, 829 So.2d 759 (Ala. Civ. App. 2002) ; Gordon v. Gordon, 804 So.2d 241 (Ala. Civ. App. 2001) ; and Martin v. Martin, supra."

Wilkerson v. Waldrop, 895 So.2d 347, 348-49 (Ala. Civ. App. 2004). See also Batain v. Batain, 912 So.2d 283, 285 (Ala. Civ. App. 2005) (reversing child-support judgment because this court could not "discern the basis for the trial court's child-support judgment"). Because the record lacks any of the required child-support forms and lacks any evidence regarding the parties' incomes, we reverse the trial court's judgment as to its award of child support. Based on our holding, we need not decide whether worker's compensation benefits may be attached to satisfy a prospective child-support award.

The portions of the judgment granting the parties a divorce based on incompatibility, granting the wife sole physical custody of the child, awarding the wife one-half of the husband's retirement benefits, and awarding the wife attorney's fees are affirmed; the remainder of the judgment related to child support and the award of worker's compensation benefits is reversed, and the cause is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      We note that the legislature has provided that "[n]o common-law marriage may be entered into in this state on or after January 1, 2017." § 30-1-20(a), Ala. Code 1975.


author: THOMPSON, Presiding Judge.

text:
    Tahnya B. NORTHINGTON v. David S. NORTHINGTON
    2160352
    Court of Civil Appeals of Alabama.
    November 9, 2017 Certiorari Denied January 12, 2018
    Alabama Supreme Court 1170164
    James J. Jenkins and Corey Gross Seale of Phelps, Jenkins, Gibson & Fowler, LLP, Tuscaloosa, for appellant.
    R. Bernard Harwood, Jr., Ann L. Reardon, and Jeffrey C. Smith of Rosen Harwoord, P.A., Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

Tahnya B. Northington ("the wife") appeals from a judgment of the Tuscaloosa Circuit Court ("the trial court") that, among other things, upheld the validity of a postnuptial agreement ("the agreement") she had entered into with David S. Northington ("the husband").

The only issue presented on appeal in this matter is whether the trial court erred in determining that the agreement was valid and enforceable. The evidence relevant to that issue indicated the following. The parties married in March 1995. Two children were born during the marriage; the wife had a child from a previous marriage, but the husband helped rear that child as his own. In late March 2012, the husband discovered that the wife was engaged in an extramarital affair. The wife of the man with whom the wife in this case was having the affair notified the husband. On April 2 or 3, 2012, the husband confronted the wife, who admitted that she had engaged in a physical sexual affair with the man, who lived on the West Coast. The wife conceded that she had met the man online and had engaged in "phone sex" and "Skype sex," i.e., via computer using a web camera, with him before the man traveled to Alabama. The wife and the man met in Birmingham and carried out a physical affair.

When the husband confronted the wife, he gave her the option of divorcing or reconciling, with the condition that, if she chose reconciliation, she would sign a postnuptial agreement. The wife chose reconciliation, and the parties began marriage counseling. The parties also spent a considerable time-more than two years-crafting the agreement. The wife consulted with three attorneys during the course of negotiations and testified that she had made changes to various drafts of the agreement before executing it. The wife signed the agreement on June 23, 2014; the husband signed it on June 25, 2014. On December 8, 2015, the husband filed a complaint for a divorce in the trial court. The wife answered and filed a counterclaim alleging that the agreement was not fair or equitable and that it was obtained in a fraudulent manner because, she said, in making the agreement, the husband had withheld from her the value of his assets. The trial court held a bifurcated trial so that it could first determine the enforceability of the agreement.

There is no dispute that the wife was aware of the 14 parcels of real estate the husband claimed in the agreement as part of his separate estate. One of those parcels was a condominium in Gulf Shores that had been purchased from her grandfather's estate. The condominium was used for family vacations, and the wife was aware that it was also used as rental property. All of the other real estate was located in the Tuscaloosa/Northport area. The wife was also aware of Bama Exterminating Co., Inc. ("Bama Exterminating"), a family-owned business started by the husband's grandfather, which the parties treated as an asset of the husband.

In listing the real estate that he was claiming as his separate estate, the husband provided the wife with the cost of the individual parcels of real estate and the debt on those parcels. For example, the husband listed the cost of the Gulf Shores condominium as $190,000 and the debt on that condominium as $401,316. In total, the list of real estate the husband claimed, which was attached to the agreement as "Exhibit A," indicated that the total "cost" of the 14 parcels of real estate was $1,680,913 and that the total debt on those parcels was $1,356,763. Therefore, according to the information the husband provided to the wife regarding the difference between the cost and the debt of the 14 parcels of real estate, the husband had $324,150 in total equity in the parcels.

Despite the wife's repeated requests, whether she made the request or the request was made through her attorney, the husband did not provide the wife with the value of the individual parcels of real estate or the equity he had in any of the real estate. In financial statements the husband provided to various banks during the time the agreement was being negotiated, however, the husband represented that the 14 parcels of real estate had a total fair market value of $4,455,000, and a total debt of $2,864,103, for a total equity of $1,590,897.

Similarly, Exhibit A listed several businesses in which the husband had an interest. The only business the wife discusses in her appellate brief is Bama Exterminating. As he had with the real estate, the husband showed that Bama Exterminating had "costs" of "$294,431 (Fixed Assets)" and debt of "$265,171 (Liabilities)," leaving a net "value" of $29,260. However, the husband's "personal financial statements" indicated that Bama Exterminating had a value of $1,823,482. The difference in the "value" of Bama Exterminating as shown in Exhibit A and on financial statements created when the parties were negotiating the agreement is $1,794,222.

The wife testified that, during their negotiations, the husband provided her with what became Exhibit A, but he did not provide her with any financial statements. "Exhibit B," attached to the agreement, listed the wife's property. At the trial, the husband acknowledged that the wife and her attorney had at various times asked him for the market value of his assets. He said that he did not give her his opinion as to the value of his assets because, he said, he did not want to give her an inaccurate or subjective opinion. The husband also testified that he did not believe he had an obligation to provide the wife with the values she requested. Instead, the husband said, he suggested methods by which the wife could determine the value of the real estate, including talking to family members who worked in the real-estate or construction business; working with the Tuscaloosa County tax assessor, who was a personal friend, to obtain tax-assessed values of the real property in the Tuscaloosa/Northport area from the Tuscaloosa County tax assessor's office; or doing Internet research to obtain the values of the real property.

The wife testified that, before signing the agreement, she was aware of the real estate the husband owned and had seen most of the properties and the buildings and structures on them. She had taken vacations at the Gulf Shores condominium and had helped to decorate it.

The wife also testified that she never placed Bama Exterminating on the list of assets she wanted. She explained that she "was trying to be fair, that [she] wasn't trying to take [the husband's] company, his family company away from him." She said that one of her attorneys explained that, even if she did not want Bama Exterminating, it could be used in negotiations. However, the wife said, she never made a claim for Bama Exterminating or included it in any counterproposals she made to the husband.

The wife, who holds a bachelor's degree in nursing, testified that her attorney was present when she executed the agreement. She said that she did not recall her attorney at that time going over all of the details of the agreement with her, but, she said, she did not give the attorney "any impression" that she did not understand it. She also testified that, although she executed the agreement with the knowledge that it stated that she "fully understood the nature and extent" of the husband's estate and knew its approximate value, "I signed this, I really didn't understand it, but I did sign it." She said that she felt like she did not have a choice regarding whether to sign it, because, she said, the husband had told her that, if she did not sign the agreement, they "would go to war and that he would destroy me."

After the trial on the issue of the validity and enforceability of the agreement, the trial court entered a judgment concluding that the agreement was due to be enforced as written. After the final divorce judgment addressing all remaining issues was entered on February 6, 2017, the wife filed a timely notice of appeal to this court.

On appeal, the wife contends that, although the facts were generally not disputed, the trial court misapplied the law to those facts.

" ' "When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep't of Revenue v. Garner, 812 So.2d 380, 382 (Ala. Civ. App. 2001) ; see also Ex parte Graham, 702 So.2d 1215 (Ala. 1997)." '
" American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 873 (Ala. 2006) (quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 516-17 (Ala. 2003) )."

Ex parte Arvest Bank, 219 So.3d 620, 622 (Ala. 2016).

The wife contends that the agreement is not valid and enforceable because, she says, the "undisputed evidence" indicates that there was fraud in the inducement of her execution of the agreement. Specifically, the wife argues that the husband's refusal to disclose the values of the real estate and Bama Exterminating was a violation of what she said was his legal duty to fully and fairly disclose not only his assets, but also the value of those assets. In support of her argument that the husband was required to provide her with the values of the real estate listed in the agreement and Bama Exterminating, the wife first cites § 30-4-9, Ala. Code 1975, which provides that a "husband and wife may contract with each other, but all contracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confidential relations." The wife then cites § 6-5-102, Ala. Code 1975, which sets forth a cause of action for fraudulent suppression. That statute provides that "[s]uppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." The wife reads §§ 30-4-9 and 6-5-102 together to assert that, because of their confidential relationship as husband and wife, the husband was legally required to provide her with the values of the real estate and Bama Exterminating. Because he withheld that information from her even though she requested it on several occasions, the wife says, the agreement was invalid because it was fraudulently induced.

The wife's argument is not compatible with well established Alabama law regarding the validity of postnuptial agreements.

"[P]renuptial and postnuptial agreements are valid in Alabama. Ala. Code 1975, §§ 30-4-9, 43-8-72 ; Ruzic v. Ruzic, 549 So.2d 72 (Ala. 1989) ; Woolwine v. Woolwine, 519 So.2d 1347 (Ala. Civ. App. 1987) ; Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App. 1980) ; cert. denied, 386 So.2d 752 (Ala. 1980) ; and Campbell v. Campbell, 371 So.2d 55 (Ala. Civ. App. 1979). However, courts scrutinize such agreements to determine whether they are just and reasonable. Woolwine; Barnhill; Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972) ; and Hamilton v. Hamilton, 255 Ala. 284, 51 So.2d 13 (1951)."

Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala. 1991). "Prenuptial and postnuptial agreements are scrutinized by the same standards." Nelson v. Estate of Nelson, 53 So.3d 922, 927 (Ala. Civ. App. 2010).

The wife argues that, because she was not provided with the values of the real estate and Bama Exterminating, the formation of the agreement was unfair and inequitable. In Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App. 1980), this court

"established the either/or test that we use here in determining whether the agreement is valid. This test may be applied in postnuptial agreements, as well as prenuptial agreements, and it states that, in order for an agreement to be valid, the one seeking to enforce the agreement 'has the burden of showing that the consideration was adequate and that the entire transaction was fair, just and equitable' from the other party's point of view or'that the agreement was freely and voluntarily entered into ... with competent, independent advice and full knowledge of [any] interest in the estate and its approximate value.' Barnhill, 386 So.2d at 751."

Tibbs, 580 So.2d at 1339.

In Tibbs, our supreme court provided an analysis of the application of what has come to be known as the Barnhill test. Because the wife does not challenge the adequacy of the consideration for the agreement, we need not discuss that aspect of the Barnhill test in this opinion. As to whether the entire transaction is fair, just, and equitable from the point of view of the party against whom it is being enforced, our supreme court in Tibbs wrote:

"The first test in Barnhill further requires that the proponent of the agreement must show that the agreement was fair, just, and equitable from the other party's point of view. In this case, the wife testified that she had read the agreement several times and that she understood its contents. In addition, there was evidence from which the trial court could infer that she knew the general extent of Mr. Tibbs's estate. Furthermore, despite the fact that she was initially reluctant to sign the agreement, she nevertheless voluntarily signed it. There was sufficient evidence upon which the trial court could base its finding that the agreement was valid. There is no indication that the trial court was plainly and palpably wrong in holding that this agreement was fair, just, and equitable from the wife's point of view. Therefore, the requirements of the first test have been met."

580 So.2d at 1340 (emphasis added).

Moreover, it is worth noting that a plurality of this court has held that a disparity between each party's net worth is not a consideration when determining whether a prenuptial or postnuptial agreement is fair and equitable. Lemaster v. Dutton, 694 So.2d 1360, 1364 (Ala. Civ. App. 1996). "Typically, the reason parties enter into antenuptial agreements is because they have vastly different incomes and assets that they wish to protect in the case of divorce or death. The very impetus behind the creation of such agreements should not be a reason to set them aside as inequitable." Id.

In Woolwine v. Woolwine, 519 So.2d 1347 (Ala. Civ. App. 1987), this court addressed the question whether a prenuptial agreement was fair, just, and equitable from the point of view of the spouse against whom it was sought to be enforced, as required by the second part of the first Barnhill test. Finding that it was, and reversing the trial court's judgment, this court wrote:

"As noted above, not only must the consideration be adequate, but the entire transaction must have been fair, just, and equitable from the wife's point of view. In this instance there is absolutely no evidence of fraud or duress in the execution of the agreement. The attorney who drafted the agreement testified that he advised the wife of its content and effect and further advised her to seek independent advice.
"Further, the evidence is that the husband and wife had discussed the agreement prior to their marriage and that the wife voluntarily agreed to sign. The testimony was that the wife chose not to seek independent advice contrary to the recommendation of the attorney who prepared the agreement.
"The evidence in all respects indicates that the antenuptial agreement was entered into voluntarily and, furthermore, that the wife knew what she was relinquishing when she signed the agreement. Additionally, the record indicates that the wife at least had a general knowledge of the extent of the husband's estate. All of the above indicates that there was adequate consideration and that the transaction was fair, just, and equitable.
"It would appear to this court that a spouse should not be able to avoid an agreement signed before marriage simply by showing a substantial difference between his or her rights under the agreement and what might have been awarded by a court in the absence of such an agreement. Put another way, 'unfairness' under the instant facts does not relate to the amount awarded to a spouse pursuant to an antenuptial agreement."

519 So.2d at 1350 (emphasis added).

The wife in this case argues that the Barnhill test is inapplicable because, she says, she was fraudulently induced to execute the agreement. However, Barnhill has been applied in instances similar to the instant case. In Strait v. Strait, 686 So.2d 1230 (Ala. Civ. App. 1996), this court affirmed the trial court's determination that a prenuptial agreement was valid. The wife in that case had argued that the agreement she signed was void because, among other things, she said that she had entered into the agreement without "full knowledge of [her husband's] assets." Id. at 1234. In affirming the validity of the agreement, this court noted that, when she was deposed, the wife

"stated that, while she was aware of the property that [her husband] owned, she was not informed of its value. However, she stated that nothing prevented her from obtaining an appraisal of his property to ascertain the value. Furthermore, she testified that she had gone through a divorce from [her husband] in 1991 and that on that occasion they had to go to court to divide some of the property that they owned. The agreement was accompanied by an exhibit listing [their separate] property. The exhibit listed [her husband's] real property assets, many of which were rental properties, and the monthly income from the various properties. [The wife] asserts that she was unaware when she signed the agreement that [her husband] had cash on hand of $45,000; furniture, tools, and equipment worth $100,000; and that the value of the real estate was $1,175,000. She asserts that she did not have adequate knowledge because the exhibit did not list the value of the properties, and excluded the cash and the personal property values.
"This court has held that when a spouse has at least a general knowledge of what he or she is relinquishing and a general knowledge of the extent of the other spouse's estate, an antenuptial agreement based on adequate consideration is fair, just, and equitable. Barnhill, supra, at 752, ; Woolwine, supra, at 1350. The evidence indicates that [the wife] was familiar with [her husband's] assets, and that, although she may have not known of all his assets, she clearly had a 'general knowledge' of the rights she was relinquishing."

Id.

Similarly, in Robinson v. Robinson, 64 So.3d 1067 (Ala. Civ. App. 2010), this court held that an prenuptial agreement was valid and enforceable. Relying on Strait, supra, as authority, we explained:

"The record in the present case reflects that the agreement was fair, just, and equitable from the husband's point of view. There was absolutely no evidence of fraud or duress in the execution of the agreement, and the record reflects that the husband voluntarily signed the agreement. The husband had attended and graduated from law school, having taken courses in both contracts and estates and trusts. The agreement is clear with respect to the rights each party was relinquishing. Although the husband testified that he was not fully aware of the wife's estate, the agreement itself listed every piece of real and personal property that each party owned at the time of the marriage over which the other party was relinquishing a claim. Although there was evidence, as the trial court found, that the values of those properties were not disclosed, despite a contrary indication in the agreement, we hold that the failure of the parties to have disclosed the values of the properties over which they each intended to maintain separate ownership does not void the agreement, especially given that the listing of those properties put both parties on notice of their existence and the fact that those properties would not be divided at the dissolution of the marriage."

Id. at 1078.

In the instant case, the undisputed evidence indicates that the wife, although perhaps reluctant to do so, agreed to sign the postnuptial agreement rather than end the marriage after the husband discovered her affair. The negotiations regarding the agreement lasted some 27 months, and the wife consulted with 3 attorneys. She was represented by an attorney at the time she executed the agreement. The agreement listed all of the real estate the wife was agreeing to relinquish, as well as Bama Exterminating. The wife had been married to the husband for almost 20 years at the time the agreement was signed, and she was familiar with the real estate, as well as the income derived from Bama Exterminating. Although the husband did not provide the wife with the market values of the real estate as she had requested, he did provide her with methods she could use to learn the values of the properties. Some of the real estate on the husband's list had been in the wife's family and had been purchased from one of her family members. Nonetheless, during the 27 months of negotiating the agreement, the wife was aware that she did not know the market values of the properties at issue, yet she chose not to avail herself of any of the husband's suggestions for learning those values.

The evidence presented supports a conclusion that the wife knew specifically which real-estate properties she would be giving up pursuant to the agreement, she was familiar with those properties, she consulted with attorneys during the negotiations regarding the agreement and was represented by counsel at the time she signed the agreement, and she had more than a general knowledge of the extent of the husband's estate at the time the agreement was signed. Additionally, there is no evidence indicating that she was under duress at the time she signed the agreement.

Based on the foregoing, we conclude that the evidence demonstrated that the agreement was fair, just, and equitable from the wife's point of view. Accordingly, the trial court's determination that the postnuptial agreement was valid and enforceable is due to be affirmed.

AFFIRMED.

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

Donaldson, J., recuses himself.

      In her brief on appeal, the wife states that the husband had "negative equity" totaling $346,891 in the 14 parcels of real estate. This court cannot determine how the wife reached that conclusion.