author: MYERS, P.J.,

text:
    L. Dennis COBB, Appellant v. Sheryl Jean COBB, Appellee.
    No. 2009-CA-00062-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.

      Jak McGee Smith, Tupelo, attorney for appellant.
    Edwin Hughes Priest, Tupelo, attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. On April 17, 2006, Sheryl Jean Cobb filed a complaint for divorce in the Chancery Court of Lee County, Mississippi against her husband of thirty-six years, L. Dennis Cobb. Sheryl’s complaint was grounded on habitual cruel and inhuman treatment, adultery, and, in the alternative, irreconcilable differences. Dennis filed an answer denying that Sheryl was entitled to a divorce on any grounds.

¶ 2. On the day set for trial on Sheryl’s complaint for divorce, November 28, 2007, the parties and counsel appeared in court in Booneville, Mississippi. No trial was had; instead, the parties reached a settlement late that afternoon, after what was later described as protracted negotiation. The parties presented an agreed judgment of divorce on the grounds of irreconcilable differences to the chancellor, and it was entered as a final judgment of divorce that same day.

¶ 3. Twenty-nine days after the judgment of divorce was entered, Dennis retained new counsel and filed a timely notice of appeal. The appeal, however, was ultimately dismissed for want of prosecution after Dennis failed to file a timely brief.

¶ 4. Subsequently, on November 10, 2008, Dennis filed a motion to set aside, alter, or amend the judgment of divorce, alleging that the divorce judgment was void because certain statutory requirements were not met, including that Sheryl had failed to withdraw fault grounds prior to the entry of the irreconcilable differences divorce judgment. Sheryl filed a response, and the chancellor heard the matter on November 26, 2008. On December 4, 2008, the chancery court the denied the motion, and Dennis appeals from that judgment.

¶ 5. On appeal, Dennis argues that: (1) this Court has jurisdiction over this appeal; (2) the divorce judgment was void because certain statutory requirements were not met; and (3) the chancellor required Dennis and his former attorney to testify as to certain communications protected by the attorney-client privilege. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. In reviewing the judgment of a chancery court, an appellate comb “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous.” Hamilton v. Hopkins, 834 So.2d 695, 699(¶ 12) (Miss.2003) (citations omitted). Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). A chancellor’s interpretation and application of the law, however, is reviewed de novo. Tucker v. Prisock, 791 So.2d 190, 192(¶ 10) (Miss.2001).

DISCUSSION

1. Jurisdiction

¶ 7. As a threshold issue, Sheryl argues that this Court lacks jurisdiction to hear this appeal because Dennis’s prior direct appeal from the judgment of divorce was dismissed for want of prosecution. Sheryl argues that jurisdiction is precluded by Mississippi Code Annotated section 11-3-15 (Rev.2002), which states: “After the dismissal of an appeal or supersedeas by the supreme court, another appeal or supersedeas shall not be granted in the same cause, so as to bring it again before the court.”

¶ 8. We find that this Court has jurisdiction to hear this appeal. We have stated that a void judgment “may be attacked directly or collaterally, anywhere, and at any time. Such a judgment is a usurpation of power and is an absolute nullity.” Pittman v. Pittman, 4 So.3d 395, 399(1115) (Miss.Ct.App.2009) (quoting Stevens v. Stevens, 346 So.2d 909, 912 (Miss.1977), overruled on other grounds, O’Neal v. O’Neal, 17 So.3d 572 (Miss.2009)). The instant appeal is not a successive appeal from the judgment of divorce; it arose from Dennis’s motion to set aside the judgment of divorce as void. As to such motions, “essentially, there can be no time limitation for relief from a void judgment as no amount of time or delay may cure a void judgment.” O’Neal, 17 So.3d at 575(¶ 14). We therefore find section 11—3— 15 inapplicable.

2. Statutory Requirements for an Irreconcilable Differences Divorce

¶ 9. Dennis asserts that the judgment of divorce is void because the chancery court failed to meet certain requirements of the irreconcilable divorce statute, Mississippi Code Annotated section 93-5-2 (Supp. 2009).

A. Consent to Submit the Issues to the Court

¶ 10. Dennis argues that the divorce judgment is void because the parties failed to execute a consent pursuant to section 93-5-2(3), which provides in relevant part:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment.... No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce.

¶ 11. In reviewing the record, we find that this issue is without merit. Subsection (3) is, by its own terms, operative only where “the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them.” Under such circumstances subsection (3) allows the parties to nonetheless submit those issues they cannot agree upon to the court. Id. In this case, it is clear that no issues were submitted to the chancellor.

¶ 12. Instead, the record indicates that the judgment of divorce was entered pursuant to section 93-5-2(2), which states:

If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

The record and testimony at the hearing indicate that, following settlement negotiations, the parties prepared a judgment of divorce, which included subdivisions titled “Retirement Account” and “Property Settlement.” The first provided for the disposition of funds contained in a certain retirement account, and the property settlement section provided for the disposition of real property, automobiles, and various personal effects. The proposed judgment also noted that both children born of the marriage were emancipated, and it provided that no alimony or attorney’s fees would be awarded. It additionally stated that it was “agreed and approved for entry” by the parties, and it was subscribed by the parties and their attorneys.

¶ 13. Testimony taken at the hearing indicated that this document was executed by the parties prior to its presentation to the chancellor and the entry of the judgment of divorce.

¶ 14. We find that the proposed agreed order meets section 93-5-2(2)’s requirement of a written agreement.

B. Finding that the Property Settlement in “Adequate and Sufficient”

¶ 15. Dennis also argues that the divorce judgment is void because the chancellor failed to expressly recite that the agreed settlement was found to be “adequate and sufficient,” as required by section 93-5-2.

¶ 16. In reviewing the record, we agree that the chancellor made no express finding that the settlement was “adequate and sufficient.” An express finding, however, is not required. In In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 417(¶ 14) (Miss.Ct.App.2008), we stated:

[W]e decline to find that, for a lack of the specific words “adequate and sufficient,” the chancellor committed reversible error'. The supreme court held that section 93-5-2 “anticipates more than just a mere recitation of the obligatory words of the statute.” Logic and reason dictate that a lack of “a mere recitation of the obligatory words” is not outcome determinative or fatal to the property settlement agreement at issue. As the supreme court did in Perkins [v. Perkins, 787 So.2d 1256 (Miss.2001) ], it is necessary to view the actual agreement and the provisions it contains to determine whether the agreement is adequate and sufficient in terms of equity and entirety.

(Footnote omitted).

¶ 17. In ruling on Dennis’s motion to set aside the divorce, the chancellor belatedly found the settlement agreement to be adequate and sufficient. On appeal, Dennis does not appear to argue that this finding was in error or that the property settlement agreement was actually not adequate and sufficient in some respect, and he offers no explanation of why this Court should find it inadequate or insufficient. This issue is without merit.

C. Withdraw of Fault Grounds and Contest

¶ 18. Dennis also argues that the divorce judgment is void because he did not formally withdraw his initial denial of Sheryl’s assertion in her complaint that she was entitled to a divorce on the grounds of irreconcilable differences. He also cites to Sheryl’s failure to expressly withdraw her fault-based grounds for divorce, which he also contested.

¶ 19. We recognize that “divorce in Mississippi is a creature of statute, and that its provisions must be strictly complied with.” Irby v. Estate of Irby, 7 So.3d 223, 239(¶ 54) (Miss.2009) (citing Perkins, 787 So.2d at 1264(¶ 24)). Section 93-5-2(5) states:

Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the ground of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.

¶ 20. It is evident that no formal withdrawal of the contests or denials occurred prior to the entry of divorce in this case. The agreed judgment of divorce did provide, however, that “[a]ll further relief herein requested by either party is denied.” The chancellor found this sufficient to operate as a withdrawal of Sheryl’s fault-based grounds for divorce and Dennis’s initial denial of Sheryl’s assertion that she was entitled to a divorce on the grounds of irreconcilable differences.

¶ 21. Even if we assume that this did not strictly comply with the statutory requirement that “the contest or denial [be] withdrawn or cancelled by the party filing same by leave and order of the court,” the supreme court’s recent decision in Irby makes it clear that such a procedural failing need not be the end of our analysis. There, the supreme court upheld a divorce notwithstanding that the parties’ failure to formally withdraw their contests and denials, where the record indicated no factual issue as to actual consent of the complaining party. The court’s analysis is particularly instructive:

The legislative purpose behind Section 93-5-2 “is to provide a less painful alternative to the traditional grounds for divorce which require[s] ... parties to publicly put on proof of sensitive private matters.” Grier v. Grier, 616 So.2d 337, 339 (Miss.1993). The statute expressly permits parties to “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Id. “The cornerstone of the process is mutual consent.” Id. To ensure that end, the statute contains certain conditions. Perkins v. Perkins, 787 So.2d 1256, 1261 (Miss.2001) (citations omitted). The chief of these conditions is, “that neither spouse contestas] its granting.” Id. (quoting Sanford v. Sanford, 749 So.2d 353, 357 (Miss.Ct.App.1999)).

Irby, 7 So.3d at 238(¶ 49). After reviewing several of its prior decisions, the court continued:

The Perkins Court then addressed the appellee’s main contention that each of the procedural shortcomings in the matter were technical flaws and should be considered harmless error, claiming that the appellant had failed to show prejudice. In so doing, Perkins acknowledged this Court’s volition, in some instances, to affirm a lower court’s judgment granting a divorce based on irreconcilable differences despite failure to follow certain procedural safeguards. However, the Court then expressly indicated this is not appropriate when a party’s substantive lights are at issue. Notably, Perkins also stated that “[h]ad either party pled irreconcilable differences as an alternative, this case would be in line with [Rounsaville v. Rounsaville, 732 So.2d 909 (Miss.1999) ], and the parties could have agreed to a property settlement on the day of trial.” Rounsaville upheld a trial court’s decision to grant a divorce based on irreconcilable differences where, at the time of the granting of the divorce, the parties had not entered into a property settlement, nor had the trial court adjudicated the presented issues as required under the statute. Rounsaville, 732 So.2d at 911 (noting that, although this was error, it was harmless error since the appellant demonstrated no prejudice which would make the error reversible).

Id. at 239(¶ 52) (citations omitted). The supreme court ultimately concluded that the record in that case “clearly show[ed] mutual consent” because the complaining spouse had signed a written consent to submit some disputed issues to trial before the chancellor, as provided by section 93-5-2(3). The contesting spouse’s substantive rights-i.e., actual consent to the divorce-therefore were not in question, and the divorce was upheld notwithstanding any failure to strictly comply with the statute.

¶ 22. Although this case does not involve a subsection (3) written consent, it falls in line with the Irby decision. In reviewing the record, we are satisfied that it clearly shows that Dennis gave actual consent to a divorce on the grounds of irreconcilable differences. Testimony indicated that, early on in the negotiations, the parties reached a general agreement as to an irreconcilable differences divorce and as to many of the more important terms of the property settlement agreement; the remainder of the time was spent “hammering out the details.” Dennis was actively involved in the negotiations, and he ultimately signed the agreed judgment of divorce and initialed several handwritten changes to the document.

¶ 23. At the hearing, Dennis acknowledged that he had voluntarily entered into the divorce. However, Dennis also made several equivocal statements suggesting that he did not actually consent. The substance of his complaints appears to be that he was unhappy with his options at the time he consented to the divorce, and that he had subsequently changed his mind. This was not sufficient to put Dennis’s substantive rights at issue, as we have previously held that “[wjavering on whether a divorce should be entered may often occur and does not invalidate the divorce .... What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Perkins, 787 So.2d at 1261(¶ 11) (quoting Sanford, 749 So.2d at 356(¶ 11)).

¶ 24. Additionally, much of this testimony was elicited on adverse examination, under objection from Dennis’s current attorney, who maintained that it was irrelevant and violative of the attorney-client privilege. The chancellor ultimately sustained these objections. Dennis did not argue a failure or defect of his actual consent to the divorce before the chancellor, and he has not argued it on appeal; his position was and is that the failure to formally withdraw the contests and denials, in and of itself, is reversible error. As the supreme court held in Irby, more is required. “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to [the appellate court].” Valmain v. State, 5 So.3d 1079, 1086(¶ 30) (Miss.2009) (quoting King v. State, 857 So.2d 702, 731 (¶ 104) (Miss.2003)). Dennis has failed to do so.

¶ 25. Because the record shows mutual consent of the parties to divorce, we find that Dennis’s substantive rights are not at issue, and therefore any failure to formally withdraw contests or denials was harmless error.

D. Recitation that the Parties Had Given Testimony

¶ 26. Dennis also argues that the agreed judgment of divorce is void because it incorrectly recites that the parties were present “and giving testimony.” Both parties agree that no testimony was heard by the chancellor on the day the divorce was entered. Dennis asserts that this is a “material variance” in the judgment which renders it void, but he cites no authority for this proposition.

¶ 27. The chancellor found that the language was “mere surplusage” and held any error harmless. We agree. Section 93-5-2(4) states in material part: “a joint complaint of husband and wife ... for divorce solely on the ground of irreconcilable differences shall be taken and proved and a final judgment entered thereon ... without proof or testimony .... ” (Emphasis added). This argument is without merit.

3. Attorney-Client Privilege

¶ 28. On adverse examination during the hearing, Dennis testified that he was dissatisfied with his former attorney and that he believed he had been “misrepresented” in the divorce. When Sheryl’s attorney asked Dennis to elaborate, Dennis’s attorney asserted a continuing objection, citing the attorney-client privilege and arguing that the competency of Dennis’s representation was irrelevant to the proceedings. The chancellor took the objection under advisement and required Dennis to elaborate. He also allowed Dennis’s former attorney to testify regarding certain communications relevant to Dennis’s testimony, again over Dennis’s objection. These communications undoubtedly would ordinarily be subject to the attorney-client privilege. The chancellor ultimately sustained the objection, but only after hearing significant testimony regarding Dennis’s representation and the circumstances surrounding his consent to the divorce.

¶ 29. On appeal, Dennis makes no argument that this amounted to reversible error; he apparently seeks an admonition or an instruction on remand. Because we affirm the chancellor’s judgment, this issue is moot.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . Dennis presents this as two issues on appeal; however, we aggregate them to a single overarching issue for clarity and economy.

      . Particularly, Dennis stated that he did not think that he had a real choice because his attorney had advised him that he could accept the negotiated property settlement agreement or go to trial on Sheryl's fault-based grounds, which would result either in the couple remaining married (which Dennis was unequivocal that he did not want) or in a less favorable distribution of the marital property than was offered in the property settlement agreement (as Dennis had previously admitted in a deposition and at another hearing that he had committed adultery). He also stated that he felt his attorney had been distracted by other cases or was overworked.


source: Caselaw Access Project

license: Public Domain

text:
    Jere Lee DIEHL, Appellant v. Carolyn Lee DIEHL, Appellee.
    No. 2009-CA-00006-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.

      Curtis H. Austin, for attorney for appellant.
    Carrie A. Jourdan, Hal H.H. McClana-han, Columbus, attorneys for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. The Lowndes County Chancery Court granted Carolyn Lee Diehl’s claim for separate maintenance from her husband, Jere Lee Diehl, following the dismissal of Carolyn’s divorce complaint. Jere appeals to this Court, averring that the chancery court erred by not taking Carolyn’s inherited assets into consideration. Finding no error with the chancery court’s judgment, we affirm.

FACTS

¶ 2. Jere and Carolyn married in 1987 and resided together in Columbus, Mississippi until Jere moved out of the marital home in 2006. Jere currently resides in Dublin, Georgia, and Carolyn continues to reside in the couple’s home in Columbus. No children were born of this marriage. Carolyn, who has been married once before, has two adult children from her previous marriage; the record does not indicate whether Jere, who has been married twice before, has any children of his own.

¶ 3. Both have health problems. Jere, a Vietnam veteran, who was sixty-four years of age at the time of trial, suffers from post-traumatic stress syndrome, diabetes, and a heart condition. Carolyn, age sixty, who underwent gastric bypass surgery shortly before trial, has existing health difficulties as well.

¶ 4. Following his retirement from the military, Jere worked for Brislin Ah' Conditioning for approximately fifteen to sixteen years until he retired in 2002. His monthly adjusted gross income is approximately $5,500. He receives three monthly checks: (1) social security benefits, including disability; (2) 100% Veterans Affairs (VA) disability; and (3) Combat-Related Special Compensation (CRSC) disability. Carolyn is employed with the Lowndes County Department of Health. Her monthly adjusted gross income is approximately $1,200; she anticipates that if she retires at age sixty-two, she will receive monthly payments in the amount of $824 (not including social security benefits).

¶ 5. The marital home in Columbus has an existing mortgage balance, which Jere estimated on his Uniform Chancery Court Rule 8.05 financial form to be $22,300. Carolyn, however, estimated the balance at $33,000. The undisputed monthly mortgage payments are $438, which Carolyn has been paying without any assistance from Jere since October 2007.

¶ 6. Jere rents a mobile home in Georgia, and pays $450 a month in rent. He drives a 2005 Jeep Grand Cherokee that has a loan balance of $21,712 and a value of $13,000. His monthly car payments are $550. His 8.05 financial declaration indicates that his living expenses total $2,387, which includes his rent and car payments. Carolyn drives a 1997 Buick LaSabre that has no loan balance and is valued at $1,570. Her 8.05 financial form indicates that her monthly living expenses total $3,222, which includes the house payment.

¶ 7. Following the death of her mother in April 2005, Carolyn inherited a condominium in Richmond, Virginia, valued at $169,000. Carolyn’s thirty-five-year-old daughter resides in the condominium rent free, but she pays the maintenance fees, taxes, and utilities. Carolyn also inherited various stocks and bonds, all of which have been liquidated over time. The record does not disclose how much exactly Carolyn inherited, but of the initial amount inherited, $67,000 remained at the time of trial. Since October 2007, Carolyn has had to use some of the money, which sits in a savings account, to assist with her expenses because she has not received any support from Jere.

¶ 8. According to a witness who testified at trial on behalf of Carolyn, prior to the separation, Jere and Carolyn, for the most part, treated each other with “love,” although their behavior toward each other was sometimes “harsh.” Due to Jere’s diabetes, Carolyn tried to make him eat right, and she would sometimes raise her voice or “fuss” at him about his eating habits.

¶ 9. Carolyn testified that Jere did not know how to cook, and he would not always eat healthy. Every day she would go home during her lunch break and prepare his meals, or the two of them would go out to eat. She stated that she was concerned about his health and tried to be careful about his feelings.

¶ 10. Jere testified that he left Carolyn because of an incident that took place one night while he and Carolyn were out eating dinner. He had “made a mess,” and Carolyn chastised him for it. According to Jere, on the way home from the restaurant, Carolyn told him she wanted a divorce. The following day, April 26, 2006, the two of them were having lunch at Barnhill’s restaurant, and Carolyn again “raised Cain” with him. Jere told her that he had had enough. He said Carolyn asked him to leave again, and this time he gave in and moved out of the marital home.

¶ 11. Carolyn had a different interpretation of what transpired that day. Carolyn testified that she did not ask Jere for a divorce, and reiterated to the chancellor that she did not want a divorce. She stated that while at the restaurant, with no forewarning, Jere told her he was leaving her tomorrow. Out of anger, she said that she told him, why wait until tomorrow. She then recanted and begged him to go home so they could talk about it, but he refused. She tried to go back to work, but she was too upset and went home. When she arrived at the house, Jere was already gone. Carolyn later found out that Jere had previously withdrawn money placed in their joint credit union account, which led her to believe that Jere’s decision to leave her was pre-planned.

¶ 12. The chancellor found Carolyn’s testimony more credible and held that Carolyn was without fault in Jere’s willful abandonment; as such, she was entitled to separate maintenance. In determining how much separate maintenance to award Carolyn, the chancellor applied the factors described by the supreme court in Honts v. Honts, 690 So.2d 1151, 1153 (Miss.1997): “(1) the health of the husband and the wife; (2) their combined earning capacity; (3) the reasonable needs of the wife and children; (4) the necessary living expenses of the husband; (5) the fact that the wife has free use of the home and furnishings; and (6) other such facts and circumstances.” The chancellor found as follows:

The health of both parties is not good. Them combined earning capacity is substantially more than [Carolyn’s] individual income as [her] net monthly income is only approximately 20% of [Jere’s] net monthly income. [Carolyn’s] reasonable needs far exceed that of her net monthly income of $1,200.00. Her 8.05 financial form lists living expenses that total $3,220.00. Based on [Jere’s] 8.05 financial form, even after all of his living expenses are taken into account, he has approximately $2,000.00 remaining to do with as he wishes. [Carolyn] does have free use of the marital home and its furnishings, but she has also been responsible for the mortgage, taxes and insurance for the same since October 2007, because [Jere] has provided no financial support. As to the inheritance that [Carolyn] received from her mother, the Court recognizes that she has access to these funds to assist in her living expenses. However, quoting from Bell on Mississippi Family Law, 1st ed, § 2.03, “separate maintenance requires support at the standard of living of the marriage, while in many divorces alimony is aimed at assisting the recipient to reenter the workforce.”

1113. The chancery court concluded that an award of separate maintenance in the amount of $1,800, to be paid monthly pending further order of the court, was appropriate.

STANDARD OF REVIEW

¶ 14. We review domestic-relations matters under the limited substantial-evidence/manifest-error rule. Evans v. Evans, 994 So.2d 765, 768(¶ 9) (Miss.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467(¶ 8) (Miss.2007)). A chancellor’s findings will not be disturbed on appeal when supported by credible evidence and not manifestly wrong. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

DISCUSSION

¶ 15. Jere contends that the chancery court did not fully consider Carolyn’s inherited assets in determining her need for separate maintenance, thereby allowing Carolyn to reap a windfall. Jere does not contest the chancery court’s finding of fault; rather, he disputes the amount of the award and/or Carolyn’s actual need for it. He argues that even assuming that Carolyn requires separate maintenance, the chancery court completely ignored that Carolyn has inherited assets totaling approximately $360,000. Jere maintains that Carolyn admitted that she inherited a condominium worth $169,000, and that she allows her daughter, who appears to be in good health, to reside in the residence, rent free. Jere submits that by requiring him to pay separate maintenance, the chancery court is, in effect, forcing him to not only subsidize Carolyn, “but by flow through, he is theoretically, financially subsidizing her daughter.” Thus, he asks this Court to what extent, if any, should the chancery court have taken Carolyn’s assets into consideration in determining her award of separate maintenance.

¶ 16. The chancery court’s authority to grant separate maintenance to a wife is subject to a finding of “(a) separation without fault on the wife’s part, and (b) willful abandonment of her by the husband with refusal to support her.” Bridges v. Bridges, 830 So.2d 260, 262 (Miss.1976) (citation omitted). Separate maintenance is a court-created remedy, and “[a] decree for separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance for her until such time as they may be reconciled to each other.” Thompson v. Thompson, 527 So.2d 617, 621 (Miss.1988) (citation omitted). As a court of equity, “[t]he chancery court has equity powers to determine the amount of maintenance needed for the abandoned wife[.]” Id. (citing Johnston v. Johnston, 182 Miss. 1, 179 So. 853, 853-54 (1938)). The purpose of the award is “to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife, all things considered, as she would have received in the home, if the parties had continued normal cohabitation!)]” Bridges, 330 So.2d at 263 (citation omitted).

¶ 17. The amount of the award should not be so great “as to unduly deplete the husband’s estate or earning capacity.” Id. at 262-63. Because a decree for separate maintenance is merely an enforcement of the same rights which the wife had before the separation, the award “should not confer on the wife any greater rights than she would have had if the cohabitation had continued.” Id. at 263. “Equitable principles must govern all cases.” Thompson, 527 So.2d at 622.

¶ 18. We decline to entertain Jere’s computations on appeal with regard to how much he says Carolyn actually inherited from her mother; the record neither discloses the amount Carolyn inherited nor supports Jere’s figures. Based on the chancellor’s findings, which the record fully supports, at the time of trial, Carolyn’s inherited assets consisted of a condominium, valued at $169,000, and money contained in a savings account in the amount of $67,000, which came from liquidated securities.

¶ 19. Jere’s argument is that with these particular assets Carolyn needs no assistance from him in meeting her expenses. Though he does not expressly say so, it is clear that Jere means to convey that he unfairly is being made to compensate Carolyn for her decision to permit the property’s potential to go unrealized, i.e., by neither selling it or renting it out.

¶ 20. The law is clear; separate maintenance is an equitable remedy not a dissolution of a marriage. Thompson, 527 So.2d at 623. The courts have no authority to divest title to property from either spouse in a separate maintenance action, whether it be marital or nonmarital property. See, e.g., Kennedy v. Kennedy, 662 So.2d 179, 182 (Miss.1995). Here, because the chancellor is without authority to order Carolyn to sell the condominium, the value of the condominium, rightly, was a non-factor in the chancellor’s decision with regard to the amount of Carolyn’s award of separate maintenance.

¶ 21. Similarly, we find no merit in Jere’s proposition that he essentially is being forced to support Carolyn’s daughter due to Carolyn’s decision to allow her daughter to live in the condominium rent free. This was the situation at the time of the separation. As such, it can be said that Carolyn’s ability to do this for her daughter was based in part on Carolyn’s standard of living prior to the separation. Reducing Jere’s payment obligation to somehow correspond with the amount of rental income that he contends Carolyn is allowing to go unrealized in this instance, both would derogate the rights Carolyn enjoyed before the separation and would release Jere from his full responsibility to provide for Carolyn’s well-being thereafter. See, e.g., Thompson, 527 So.2d at 623 (“As a wife is entitled to no greater rights in a decree of separate maintenance, she is entitled to no less.”) The chancellor did not do so, and we affirm her decision.

¶ 22. Likewise, and for similar reasons, we find no error in the chancellor’s decision not to take the money Carolyn had in savings into consideration in determining the amount of the award. Id.

¶ 23. Accordingly, we find the separate maintenance award in the amount of $1,800 per month just and equitable in light of Carolyn’s expenses and needs and Jei-e’s ability to satisfy the amount.

¶ 24. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J„ CONCURS IN RESULT ONLY.

      . Upon retirement from Brislin, Jere received over $35,000, which he withdrew in August 2002.

      . The chancery court entered a temporary order in September 21, 2006, in which Jere was ordered to pay Carolyn the sum of $ 1,700 per month in temporary alimony. Jere's obligation to pay alimony terminated upon the entry of the chancery court's order dated October 12, 2007, whereby Carolyn's complaint for divorce was dismissed.


author: MURDOCK, Justice.

text:
    Ex parte Randell L. DICKSON (In re Randell L. Dickson v. Emily Vandiver Dickson).
    1061286.
    Supreme Court of Alabama.
    June 26, 2009.
    Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for petitioner.
    William P. Burgess, Jr., and Rebekah L. Howard of William P. Burgess, Jr., P.C., Huntsville, for respondent.
   MURDOCK, Justice.

Randell L. Dickson (“the husband”) petitioned this Court for a writ of certiorari after the Court of Civil Appeals affirmed, without an opinion, a divorce judgment that, among other things, awarded Emily Vandiver Dickson (“the wife”) alimony in gross in an amount substantially exceeding the value of the husband’s present estate. Dickson v. Dickson (No. 2050945, May 25, 2007), 12 So.3d 169 (Ala.Civ.App.2007) (table). We granted certiorari review to determine whether the Court of Civil Appeals’ decision conflicts with Ex parte Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974), and Zinneman v. Zinnerman, 803 So.2d 569, 574 (Ala.Civ.App.2001).

Facts

The parties met in 2000 and were married in 2001; both parties were 52 years old at the time of the marriage. The parties separated approximately three years later, in 2004; they divorced in 2006. There were no children from this marriage, but each party has adult children from a previous marriage.

When the parties met in 2000, the husband was struggling financially. He had a real-estate and construction business that was losing money because the houses he built were not selling. The husband had borrowed substantial sums from his business partner to cover the costs incurred in connection with the unsold houses. In February 2000, the husband signed a note to his business partner in the amount of $140,000, which was secured by an assignment of the husband’s interest in Dickson Realty, Inc., Security Boys Properties, L.L.C., and Monrovia Farms Development, Inc. By 2006, the husband owed his business partner an additional $113,036 in unsecured debt.

In August 2000, the husband sold his residence because he could no longer afford the mortgage payments, and he moved in with the wife. At that time, the husband agreed to share expenses with the wife “fifty-fifty.” In December 2000, the husband executed a line-of-credit promissory note in favor of the wife, which provided that the husband would repay the wife for his share of certain expenses plus interest. Attached to the note was a ledger on which the parties periodically entered debits (e.gr., the husband’s share of household expenses and certain major purchases) and credits. The husband testified that he did not intend for the line-of-credit arrangement to continue after the parties married, but the wife continued to enter debits and credits on the ledger until the parties separated in 2004.

The parties disagree on the amount owed on the line-of-credit note at the time of the trial. The wife testified that the husband owed her $ 137,775. The husband testified that he owed the wife approximately $22,000 after attributing to him a credit for substantial tax savings resulting from the parties’ joint use of the husband’s prior years’ tax losses. It appears that the trial court agreed with the wife’s contention as to the amount owed; there is evidence in the record to support the wife’s contention.

By 2004, the parties were having disagreements over money and over the conduct of the wife’s adult son, who had moved into the marital residence and later moved out. In July 2004, the husband moved out of the marital residence after the wife told him that she would allow her adult son to move back into the marital residence. Shortly thereafter, the husband purchased a house without making any down payment.

In October 2004, the husband filed the present action, seeking a divorce and an equitable distribution of the parties’ assets. The wife filed an answer and a counterclaim, seeking a divorce and an equitable distribution of assets. Neither party requested periodic alimony or support. In October 2005, the wife filed an amendment to her counterclaim, seeking enforcement of the line-of-credit note. Approximately one week later, the husband filed a petition for bankruptcy, listing as creditors the wife, his business partner, certain credit-card creditors, and others. The husband’s bankruptcy petition sought, among other things, the discharge of the debt arising out of the line-of-credit note. In the bankruptcy proceeding, the wife objected to the discharge of the husband’s debt to her. It appears that, at the time of trial in this case, the bankruptcy proceeding concerning the line-of-credit note had not been resolved.

The evidence in the record discloses that the husband’s separate estate, at the time of the trial, was approximately $22,000, including (1) personal property worth approximately $12,000, which was subject to a demand by the husband’s bankruptcy trustee that the husband pay $10,000 in lieu of forfeiture of his nonexempt personal property (which the husband valued at $9,150); (2) the house the husband purchased after he moved out of the marital residence, in which he had an equity of approximately $800; (3) a savings account at AmSouth Bank, with an approximate value of $10,000; (4) AmSouth Bank stock valued at approximately $4,400; and (5) a 401(k) retirement account at AmSouth Bank (see discussion below), with a value of approximately $16,000. The husband’s vehicles, furniture, and similar items were leased or financed, and he had little or no equity in them.

The record does not contain any evidence of the value, if any, of the husband’s interest in his three businesses. The husband testified that he had assigned his interests in those businesses to secure the $140,000 note to his business partner and that he had no equity interest in those businesses.

Following the parties’ separation and before trial in June 2006, the husband began working for AmSouth Bank, with a base salary of $67,000. The husband received an incentive bonus of approximately $12,000 for 2004 and an incentive bonus in excess of $30,000 for 2005. There is evidence in the record indicating that the husband’s base salary for 2006 was projected to be approximately the same as it was in 2004 and 2005.

During the marriage, the wife had been employed as a civil-service engineer with the United States Army, earning approximately $138,000 in 2004. Shortly before the trial, the wife voluntarily retired from her employment; she gave no reason for retiring other than the fact that she “had the number of years and the age factor.” There is evidence in the record that the wife was receiving a pension of more than $6,000 per month before taxes. There does not appear to be any impediment to the wife’s seeking employment in the private sector.

In July 2006, after a trial at which ore tenus evidence was presented, the trial court rendered a judgment divorcing the parties and awarding the wife (1) all of her separate property, all the parties’ jointly owned property, and certain of the husband’s separate property (including but not limited to all the husband’s savings account at AmSouth Bank and half of the husband’s AmSouth Bank stock), (2) alimony in gross in the amount of $137,775, less the amount received by the wife from the husband’s savings account (approximately $10,000), payable in monthly installments of $1,000, and (3) the sum of $16,266.40, for her attorney fees. The divorce judgment did not award periodic alimony to either party.

Analysis

It is well settled that “ “[property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996), quoting in turn Duck ett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App.1995)). An appellate court may not substitute its judgment for that of the trial court or reweigh the evidence. Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003).

Citing Ex parte Hager and Zinnerman, the husband contends that the trial court’s property division was in error because the amount of alimony in gross awarded the wife by the trial court greatly exceeded the value of the husband’s present estate, ie., the husband’s estate as it existed at the time of the judgment. The husband correctly argues in his brief to this Court that an award of alimony in gross must be made based on the value of the marital estate and the parties’ separate estates and not on the anticipated future earnings of the payor. He argues that the trial court failed to apply this principle in the present case. We agree.

In its order, the trial court found that the husband’s current income and other current circumstances give him the financial ability to pay alimony-in-gross installments of $1,000 per month, going forward. We do not discern, however, from the trial court’s judgment a finding that the amount of the husband’s estate, as it existed at the time the judgment of divorce was entered, was sufficiently large to justify the $137,775 alimony-in-gross award, as entered by the trial court. Consistent with the discussion of the evidence as set forth above, our review of the record leads us to conclude that the record does not contain substantial evidence supporting such a factual finding. To the contrary, it is clear that the alimony-in-gross award made by the trial court substantially exceeded any value that could be drawn from the evidence regarding the husband’s estate at the time of the divorce.

In Hager, this Court defined alimony in gross and periodic alimony as follows:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce. Borton v. Borton, [230 Ala. 630, 162 So. 529 (1935).] On the other hand, ‘periodic alimony’ is an allowance for the future support of the wife payable from the current earnings of the husband.”

293 Ala. at 55, 299 So.2d at 750 (emphasis added). The Hager Court also stated that the award at issue “was intended to be, as denominated, ‘alimony in gross,’ a property settlement award, compensating the wife only for the loss of her tights in the husband’s estate.” 293 Ala. at 55, 299 So.2d at 751 (emphasis added). See also Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App.2002) (alimony in gross is a form of property settlement and must be payable out of the present estate of the payor at the time of the divorce).

In Zinnerman, 803 So.2d at 574, the Court of Civil Appeals reversed a judgment awarding alimony in gross because, “at the time of the divorce [the husband’s] estate was insufficient to satisfy the award of alimony in gross.” The court stated:

“ ‘ “ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights — -dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce.” Murphy v. Murphy, 624 So.2d 620, 622 (Ala.Civ.App.1993), quoting Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) (emphasis added [in Zinnerman ]).”

803 So.2d at 574. See also Johnson v. Johnson, 840 So.2d 909, 912 (Ala.Civ.App.2002) (alimony in gross “ ‘ “is payable out of the husband’s present estate as it exists at the time of the divorce(quoting Hager, 293 Ala. at 55, 299 So.2d at 750) (emphasis added in Johnson)); Epps v. Epps, 218 Ala. 667, 669, 120 So. 150, 151 (1929) (allowance of $100 per month was considered to be periodic alimony because it was “equivalent to [the wife’s] share in quite a considerable estate. The husband had no such estate.”).

The wife contends that Boykin v. Boykin, 628 So.2d 949, 952 (Ala.Civ.App.1993), creates a “bankruptcy exception” to the Hager principle and thus supports the award of alimony in gross in this case. That contention fails. It is true that the ex-husband in Boykin, in making a general argument that the alimony-in-gross award was excessive, contended that he had filed for bankruptcy before the parties separated. Contrary to the manner in which the wife suggests that a “bankruptcy exception” should operate in the present case, the ex-husband in Boykin was attempting to use the fact of his bankruptcy as a factor in support of reducing the property award in that case.

Furthermore, the fact of the ex-husband’s bankruptcy played no apparent role in the Court of Civil Appeals’ analysis of the ex-husband’s position. 628 So.2d at 952. The Boykin court affirmed the alimony-in-gross award in that ease based on its application of the general principle that divisions of property must be equitable. Id. We therefore see in Boykin no “bankruptcy exception” to the principle that an award of alimony in gross, as part of the division of the parties’ property, must be made out of the present estate of the payor at the time of the divorce.

The wife also contends that, under Mahaffey v. Mahaffey, 806 So.2d 1286, 1291 (Ala.Civ.App.2001), the appellate courts are allowed to “relabel” the award of alimony in gross in order to do equity. The wife does not specify, however, how the alimony-in-gross award should be relabeled. Moreover, Mahaffey does not support the wife’s contention.

In Mahajfey, the judgment ordered the husband to pay, as alimony in gross, one-half of any liability the wife might incur as a result of a pending lawsuit relating to a real-estate sale. The Court of Civil Appeals concluded that the designation of that obligation as “alimony in gross” was improper because the time and amount of the payment were not certain. The court noted that “the substance of an award, and not its title, governs the determination of the kind of award it is.” 806 So.2d at 1291. The court concluded that the provision regarding the potential liability was a part of the property division and that the designation of the potential liability as “alimony in gross” was harmless.

In the present case, however, the trial court’s error is not harmless and could not be saved by relabeling. Whether denominated as part of the general property division or, more specifically, as alimony in gross, the award is improper because it exceeded the value of the husband’s estate at the time of the divorce.

Based on the facts before us, it appears that the trial court erred by awarding the wife alimony in gross in an amount far exceeding the value of the husband’s estate at the time of the divorce. Accordingly, we reverse the judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The trial court did not make an express finding as to the amount owed under the line-of-credit note, but it awarded the wife alimony in gross in the exact amount she claimed ihe husband owed her, and it referred to the note in the paragraph explaining its reasons for the award of alimony in gross.

      . The record does not disclose the resolution of the negotiation concerning payment for the husband's nonexempt property.

      . A fortiori, if the additional $16,266.40 awarded the wife by the trial court for attorney fees is considered part of the alimony-in-gross award (which is the way the trial court considered it), the resulting total of $154,041.40 would exceed by that much more the value of the husband’s estate as it existed at that time.

      . In general, an award of alimony in gross “must satisfy two [other] requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.” Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). Those two requirements do not appear to be at issue in this case.


author: THOMPSON, Presiding Judge.

text:
    Randell L. DICKSON v. Emily Vandiver DICKSON.
    2050945.
    Court of Civil Appeals of Alabama.
    July 24, 2009.
    Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    William P. Burgess, Jr., and Rebekah L. Howard of William P. Burgess, Jr., P.C., Huntsville, for appellee.
   After Remand from the Alabama Supreme Court

THOMPSON, Presiding Judge.

This court, on May 25, 2007, affirmed the trial court’s judgment, without an opinion. 12 So.3d 169 (Ala.Civ.App.2007) (table). The Supreme Court of Alabama has reversed this court’s judgment and remanded the cause. Ex parte Dickson, 29 So.3d 159 (Ala.2009). In compliance with the Supreme Court’s opinion, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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


author: WOODALL, Justice.

text:
    J.B. v. LAWSON STATE COMMUNITY COLLEGE et al.
    1080316.
    Supreme Court of Alabama.
    June 26, 2009.
    Rehearing Denied Aug. 21, 2009.

      Oscar W. Adams III of Adams Law, P.C., Birmingham; and Roderick Walls of Roderick Walls & Associates, LLC, Birmingham, for appellant.
    Kyle T. Smith and David R. Mellon of Sirote & Permutt, P.C., Birmingham, for appellees Lawson State Community College, Aubrey Wiley, and Perry Ward.
    Mark S. Boardman and Daniel P. Ogle of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellee Eleanor Pitts.
   WOODALL, Justice.

In the late night hours of March 5 or the early morning hours of March 6, 2004, 19-year-old J.B., a member of the Lawson State Community College (“Lawson State”) women’s basketball team, was raped in a motel room by one of her basketball coaches, Boris A. McCord, a long-time acquaintance, after an away game. She brought this action (1) against Lawson State, pursuant to Title IX of the Education Amendments of 1972, § 909, as amended, 20 U.S.C. §§ 1681-1688; and (2) against McCord’s alleged supervisors, namely, Dr. Perry Ward, Eleanor Pitts, and Aubrey Wiley, the president, the athletic director, and the head women’s basketball coach, respectively, of Lawson State (hereinafter referred to collectively as “the supervisors”), pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages. The trial court entered a summary judgment for Lawson State and the supervisors, and J.B. appeals. We affirm.

I. Legal Framework

“Title IX provides in pertinent part: ‘No person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’ ” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (quoting 20 U.S.C. § 1681(a)). It affords a private right of action for “damages in cases involving a teacher’s sexual harassment of a student,” 524 U.S. at 281, 118 S.Ct. 1989, but only where “an official of the school ... who at a minimum has authority to institute corrective measures on the [school’s] behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” 524 U.S. at 277, 118 S.Ct. 1989 (emphasis added).

Similarly, supervisory liability under § 1983 turns on whether, “ ‘in light of the information [the supervisor's] possessed, the teacher who engaged in sexual abuse showed a strong likelihood that he would attempt to sexually abuse other students, such that the failure to take adequate precautions amounted to deliberate indifference to the constitutional rights of the students.’ ” Ex parte Madison County Bd. of Educ., 1 So.3d 980, 992 (Ala.2008) (quoting Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 439 (6th Cir.2002)). Thus, an issue dispositive of either claim is whether the actions or inaction of the supervisors or Lawson State of which J.B. complains as the basis of her claims amounted to deliberate indifference to the danger posed to her by McCord.

II. Facttial Baclcgnmnd

The fact pattern out of which this case arises involves such details regarding McCord’s background as were known by the supervisors, as well as by J.B. herself. According to Pitts, Pitts was head women’s basketball coach at Lawson State in 2002. Her duties included recruiting prospective student athletes for the basketball team, as well as overseeing the scheduling and administration of all practices and games and supervising assistant coaches and voluntary assistants.

During the 2002-2003 basketball season, McCord assisted Pitts “on a voluntary, part-time basis” with, among other things, the “administration of practices.” Pitts had known McCord and one or more of his family members for several years and had heard from them that McCord had, at sometime predating his employment history, “been in jail related to the death of a child.” Her understanding was that he had taken “ ‘the fall’ for a companion.” She never discussed the matter with McCord.

During the 2002-2003 basketball season, Pitts learned — according to her affidavit and deposition testimony — that McCord had allegedly touched S.P., a female student on the basketball team, “in a manner that made her feel uncomfortable during the middle of a practice drill.” More specifically, Pitts stated that, on the day of the alleged incident, S.P. approached Pitts and personally informed her of the matter as Pitts was coming out of her office. Pitts stated that she “immediately” questioned McCord, who said that the touch was only “incidental as part of the practice drill.” Pitts said that she questioned “the other players” and “strongly warned [McCord] that such conduct was not acceptable and [would] not be tolerated.” Subsequently, according to Pitts, she informed S.P. of the actions she had taken and S.P. indicated that she “was satisfied with that.” Neither S.P. nor any of her teammates have any recollection of this incident or of Pitts’s alleged follow-up, which will hereinafter be referred to as “the 2002 incident.”

In 2003, McCord was offered and accepted employment by Lawson State as assistant women’s basketball coach. In so doing, he replaced Aubrey Wiley, who, in turn, replaced Pitts as head women’s basketball coach, when Pitts moved into the position of chair of the Department of Health and Physical Education; Pitts later became athletic director.

In early 2004, during the 2003-200⅛ basketball season, McCord allegedly touched S.P. on the backside before a basketball game as she was standing on a weight scale. S.P. testified by deposition that she confronted McCord and asked him if the touch was intentional, and he admitted that it was. She was angry and immediately expressed her anger to a number of her teammates. However, according to the testimony of S.P. and her teammates, neither she nor they reported the incident to any official for Lawson State. The alleged touching on this occasion will be referred to hereinafter as “the 2003 incident.”

Meanwhile, in the fall of 2003, J.B., a graduate of Woodlawn High School (“Woodlawn”), accepted a basketball scholarship to attend Lawson State. The scholarship offer was McCord’s idea; McCord had been J.B.’s basketball coach at Wood-lawn for three years before her high-school graduation. While she was in high school, J.B. and her team had played a number of away games, chauffeured by McCord, that required overnight stays. Also, J.B. traveled — “a lot” — with McCord and other members of his family to watch McCord’s daughter play basketball for Alabama A & M University.

Throughout the 2003-2004 basketball season at Lawson State, McCord regularly chauffeured J.B. to and from classes, sometimes accompanied bjr his fiancée. J.B. also spent time with McCord at his home, visiting with his fiancée and her daughter. Pitts and Wiley were aware of these activities. Pitts and Wiley both felt some concern regarding the amount of time J.B. and McCord were spending together, and they questioned the nature of the relationship. Wiley discussed the matter with Pitts, who exjoressed the view that J.B. was “grown” and that Pitts and Wiley could not control events that happened off campus. Wiley also discussed the relationship with J.B. and McCord, both of whom denied that the relationship was a sexual one.

At that time, Lawson State — through (1) the “Lawson State Community College Student Catalog” (“the catalog”) and (2) the “Lawson State Community College Student Handbook” (“the handbook”)— distributed to students information regarding its policy on sexual harassment. Specifically, the catalog stated:

“Lawson State ... is committed to protect all persons from sexual harassment, intimidation, and exploitation of its students, staff, and campus visitors as prohibited by Title IX of the Education Amendments of 1972 and of Title VII (Section 703) of the Civil Rights Act of 1964.”
In that connection, the handbook stated:
“It is the policy of Lawson State Community College to maintain a learning and working environment that is free from sexual harassment. It shall be a violation of this policy for any member of the college’s staff to harass another staff member or student through conduct or communication of a sexual nature as defined below. It shall also be a violation of this policy for students to harass other students through conduct or communications of a sexual nature as defined below.
“Definition
“Sexual harassment shall consist of unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal or physical conduct of a sexual nature when made by any member of the school’s staff to a student, when made by any of the school’s staff to another staff member or when made by any student to another student when:
“• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or education, or when:
“•Submission to or rejection of such conduct by an individual is used as the basis for academic or employment decisions affecting that individual, or when:
“• Such conduct has the purpose or effect of substantially interfering with an individual’s academic or professional performance or creating an intimidating, hostile, or offensive employment or education environment.
“Sexual harassment, as set forth above, may include, but is not limited to the following:
“• Verbal harassment or abuse
“• Pressure for sexual activity
“• Repeated remarks to a person, with sexual or demeaning implications
“• Unwelcomed touching
“• Suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one’s grades, job, etc.”

Lawson State is also subject to the sexual-harassment policy promulgated by the Alabama State Board of Education. State Board Policy 601.04 (“the policy”), in effect during the 2003-2004 academic year, provided, in pertinent part: “Sexual harassment is distinguished from consenting or welcome sexual relationships by the introduction of the elements of coercion; threat; unwelcome sexual advances; unwelcome requests for sexual favors; other unwelcome sexually explicit or suggestively written verbal or physical conduct .... ” (Emphasis added.)

The policy provided detailed procedures for reporting and resolving sexual-harassment complaints. In particular, any complaint was to be in writing and was to be referred to the “president of the institution and the Vice Chancellor for Legal and Human Resources” (“the vice chancellor”). The vice chancellor was to be “kept informed regarding the progress and results of the investigation of the complaint.” Although the policy provided for both “formal” and “informal” resolution of a sexual-harassment complaint, it provided that, at a minimum, “[i]f the results of the investigation and informal resolution of the complaint are accepted by the alleged victim and he or she desires no further action against the alleged harasser, the complainant will sign a statement requesting that no further action be taken.”

However, it is undisputed that J.B. did not complain to anyone at Lawson State about her relationship with McCord. On the contrary, according to J.B., she had come to regard McCord as a friend and “father figure,” never felt that he had acted inappropriately toward her, and, until the night of March 5-6, 2004, never suspected that he might harm her. Nevertheless, on that night, McCord raped J.B. in his motel room after a Lawson State basketball game. He was subsequently convicted of the crime and sentenced to imprisonment for life plus 20 years.

J.B. sued Lawson State under Title IX and sued the supervisors under 42 U.S.C. § 1983. As last amended, the complaint alleged, among other things, that Lawson State and the supervisors had “knowledge of the sexual and hostile education environment and sexual abuse and harassment to which J.B. and others were subjected at the hands of Boris McCord, and [that] their failure to respond and/or their inadequate response amounted to deliberate indifference,” which indifference “had the effect of denying [J.B.] access to educational opportunities provided by the school.” It further alleged that J.B.’s “rights to personal safety and bodily integrity [as] guaranteed by the Fourteenth Amendment ... were violated when [Lawson State] and [the supervisors] failed to prevent Boris McCord from raping ... her.” Lawson State and the supervisors filed a joint motion for a summary judgment, asserting, among other things, qualified immunity as an affirmative defense to the § 1983 claims. The trial court granted the motion, and J.B. appealed.

III. Discussion

“In their individual capacities, ... state officials may be liable for damages resulting from discretionary acts that violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). ‘Good-faith’ or ‘qualified’ immunity is available as an affirmative defense to a wide variety of public officials. Id. at 815, 102 S.Ct. at 2736; Schuck, Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, 1980 Sup.Ct. Rev. 281, 293-95. In order to defeat a qualified immunity defense, the plaintiff ‘bears the burden of showing that “the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.” ’ Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)), cert. denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989); see also Feagley v. Waddill, 868 F.2d 1437, 1439 (5th Cir.1989); Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988); Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983). Only if a state official exhibits deliberate indifference to his official duties may he be liable for damages under § 1983.”

George v. McIntosh-Wilson, 582 So.2d 1058, 1061 (Ala.1991) (emphasis and footnote omitted).

“Supervisory liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.1988) (per curiam); ... Wilson v. Attaway, 757 F.2d 1227, 1241 (11th Cir.1985). The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. See Clark v. Evans, 840 F.2d 876, 885 (11th Cir.1988) (per curiam); ... Wilson, 757 F.2d at 1241. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.”

Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990).

On appeal, J.B. contends that “Pitts was deliberately indifferent to the risk of harm presented by allowing McCord to coach young college girls.” J.B.’s brief, at 34. J.B. does not allege that anyone but Pitts was an “official of the school ... [having] authority to institute corrective measures on the [school’s] behalf,” under the Title IX standard set forth in Gebser, 524 U.S. at 277, 118 S.Ct. 1989. Indeed, the merits of both J.B.’s federal claims turn chiefly on Pitts’s allegedly inappropriate — or inadequate — action.

A. Pitts’s Conduct

J.B. faults Pitts’s performance in essentially two respects. First, she contends that Pitts failed to conduct any investigation into the 2003 incident involving McCord and S.P. Second, according to J.B., Pitts failed to conduct an “investigation [of the] long-standing McCord/J.B. inappropriate relationship,” of which Pitts was aware. J.B.’s brief, at 64.

1. S.P.

In this connection, J.B. makes the peculiar argument that she produced substantial evidence of Pitts’s utter failure to investigate McCord’s inappropriate touching of S.P., which occurred before the event forming the basis of this case. Specifically, she contends that “Pitts never conducted any investigation whatsoever in the S.P. incident.” J.B.’s brief, at 63. This argument is peculiar in light of the odd disconnect in the evidence of McCord’s alleged touching of S.P. S.P. testified unequivocally that the touching occurred during the 2003-2004 season, not during the 2002-2003 season, as Pitts remembers. In fact, S.P. stated that she had never met McCord before the summer of 2003 — after the 2002 incident is alleged to have occurred. Most significantly, S.P. testified that she never told Pitts or anyone else in the administration at Lawson State about the touching that formed the basis of the 2003 incident. S.P.’s friends who knew of the 2003 incident testified similarly, that is, that they never told any Lawson State official about the 2003 incident.

The only evidence indicating that Pitts knew of an inappropriate touching came from Pitts, herself, and she testified that she promptly investigated the incident to her satisfaction and to the satisfaction of the complainant. Thus, the evidence produces two disconnected scenarios, namely the 2002 incident and the 2003 incident. Indeed, J.B. concedes as much by arguing that “Pitts has obviously confused another inappropriate touching by McCord involving another teammate of J.B.’s that occurred during a practice drill during a different basketball season.” J.B.’s reply brief, at 5 (emphasis added).

Neither scenario, however, aids J.B. Under one scenario, Pitts did investigate; under the other scenario, Pitts was never apprised of the need to investigate. Thus, there was no evidence indicating that Pitts ignored a report of sexual impropriety or that she was deliberately indifferent to the risk of harm to an athlete in not conducting an investigation of a sexual impropriety.

To be sure, it is uncontroverted that the investigatory procedures outlined in the policy were not followed. In other words, even under Pitts’s version of events, there was no paper trail of the investigation. Neither the “president of the institution” nor the vice chancellor was ever informed of the alleged complaint against McCord. Neither did the complainant “sign a statement requesting that no further action be taken.” Such deviations from the policy are arguably negligent.

Howevei', “ ‘[njegligence is not enough to impose [either] section 1983 [or Title IX] liability ....”’ Ex parte Madison County Bd. of Educ., 1 So.3d at 993 (quoting Roseville, 296 F.3d at 441); see Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 642, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (“Likewise, [in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), a Title IX case,] we declined the invitation to impose liability under what amounted to a negligence standard — holding the district liable for its faitee to react to teacher-student harassment of which it knew or should have known.”). “ ‘[I]t is not enough for the plaintiff to show that the defendant supervisors were sloppy, reckless or negligent in the performance of their duties.’ ” Ex parte Madison County Bd. of Educ., 1 So.3d at 992 (quoting Roseville, 296 F.3d at 439 (emphasis added)). Otherwise stated, J.B. “ ‘did not have a constitutional right to be free from negligence in the supervision of the [coach] who ... abused her.’ ” 1 So.3d at 993 (quoting Roseville, 296 F.3d at 441 (emphasis added)). See also W.L.O. v. Smith, 585 So.2d 22, 25 (Ala.1991) (“[T]he Due Process Clause of the Fourteenth Amendment serves as a limitation on the States’ power to act, and cannot be read as a guarantee of protection from the criminal acts of third parties.”) (construing DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196-97, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)).

“ ‘A state official acts with deliberate indifference only when [she] disregards a risk of harm of which [she] is actually aware.”’ Ex parte Madison County Bd. of Educ., 1 So.3d at 991 (quoting Ray v. Foltz, 370 F.3d 1079, 1083 (11th Cir.2004)(emphasis added in Ex parte Madison County Bd. of Educ.)). This standard is satisfied when a supervisor is “ ‘confronted [1] with conduct that [is] “obvious, flagrant, rampant, and of [continued] duration,” ... or [2] with “... a widespread pattern of constitutional violations.” ’ ” Ex parte Madison County Bd. of Educ., 1 So.3d at 993 (quoting Roseville, 296 F.3d at 440-41, quoting in turn Braddy v. Florida Dep’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998), and Doe v. Claiborne County, 103 F.3d 495, 513 (6th Cir.1996)). Even multiple instances of misconduct may be insufficient, however, where the instances are “sporadic” or “isolated” by substantial chronological intervals and accompanied by investigations. Ex parte Madison County Bd. of Educ., 1 So.3d at 992-93. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456 n. 12 (5th Cir.1994) (noting that the deliberate-indifference standard may preclude liability for “many good faith but ineffective responses,” such as “warning the state actor, notifying the student’s parents, or removing the student from the teacher’s class”).

Roseville, for example, involved the following facts:

“[A] female elementary-school student alleged that she had been abused by one of her male elementary-school teachers in 1992. The teacher had had complaints alleged against him throughout his teaching career. During the 1975-76 and 1976-77 school years, several girls alleged that the teacher had touched them inappropriately. The teacher received an oral warning. The teacher was transferred to a different elementary school, and in 1979 the superintendent was notified that the teacher had fondled four sixth-grade girls. The superintendent investigated, concluded that the teacher had used ‘poor judgment/ placed a sealed letter of reprimand in his file, and transferred him to yet another school. No additional allegations of improper behavior were made until 1988 when several girls reported that the teacher had touched them inappropriately. The superintendent conducted another investigation and issued a letter of reprimand. Additionally, the superintendent contacted the board of education and the district attorney, informing them of the two incidents requiring a letter of reprimand. The teacher was again transferred, and in 1992 and 1993 the special-education student who was the plaintiff in the Roseville case was allegedly sexually abused.”

Ex parte Madison County Bd. of Educ., 1 So.3d at 991-92 (discussing Roseville) (emphasis added).

As in this case, the plaintiff in Roseville alleged that school officials, including the superintendent, had violated her constitutional right to bodily integrity “by failing to take appropriate action in response to reports of [the teacher’s] alleged abuse of children other than [the plaintiff].” 296 F.3d at 439. Two of the instances of alleged misconduct were reported to the superintendent, who investigated the allegations. Similarly, in this case, the facts, when construed most favorable to J.B., show that S.P. complained to Pitts of an inappropriate touching by McCord and that Pitts investigated the matter.

“The court in Roseville acknowledged that the conduct of the supervisors was ‘disturbing/ ” but it noted that the “teacher’s actions were sporadic — occurring in 1976 and then not until 1988, more than 10 years apart.” Ex parte Madison County Bd. of Educ., 1 So.3d at 992. Ultimately, the court in Roseville held that the allegations were insufficient as a matter of law to establish deliberate indifference on the part of the officials. 296 F.3d at 441.

Similarly, in Ex parte Madison County, this Court determined that 5 alleged instances of sexual abuse of different female students by a teacher over a 16-year period were isolated occurrences, not amounting to notice to Jim Nash, personnel director for the Madison County Board of Education, that his failure to recommend the teacher’s dismissal subjected the plaintiff, who was also abused by the teacher, to the likelihood of a constitutional deprivation. All five instances had been investigated by school officials. “Nash was aware of three of the five investigations at the time they were being conducted,” 1 So.3d at 984, and personally investigated two of the instances of sexual abuse. Id. Explaining that the teacher’s previous instances of sexual abuse were not so “obvious, flagrant, rampant, and of continued duration” as to “provide [Nash] with sufficient notice that [the teacher] would seriously harm [the plaintiff],” we held that, as a matter of law, Nash had not been deliberately indifferent to the constitutional rights of the plaintiff. 1 So.3d at 993.

J.B. attempts to distinguish Ex parte Madison County, contending that, unlike Nash, who investigated allegations of abuse, Pitts “did nothing after learning of McCord’s inappropriate conduct.” J.B.’s brief, at 69 (emphasis added). This contention is without merit. As noted previously, although J.B.’s theory of liability is premised on the complete absence of an investigation, rather than a mere negligent investigation, this is not such a case. There is no evidence indicating that Pitts failed to investigate an allegation of which she was apprised. The only evidence is that Pitts did investigate — -albeit, arguably negligently — an allegation of inappropriate touching in the 2002 incident. See also Sauls v. Pierce County Sch. Dist., 399 F.3d 1279 (11th Cir.2005) (holding that school district was not deliberately indifferent to reports of sexual harassment where each complaint was followed by an investigation). For these reasons, the 2002 incident, even in light of McCord’s 1987 conviction for manslaughter, of which Pitts also had knowledge, did not constitute obvious, flagrant, or continued misconduct for purposes of the deliberate-indifference standard.

J.B. relies on George v. McIntosh-Wilson, 582 So.2d 1058 (Ala.1991). However, that case is easily distinguishable. George arose out of the death of Andre George, a “profoundly retarded resident” of Partlow State School and Hospital (“the hospital”), who “suffocated on a surgical glove that he ingested while unattended by hospital personnel.” 582 So.2d at 1059. It involved a claim under 42 U.S.C. § 1983 against, among others, Earnell McIntosh-Wilson, the chief executive officer of the hospital. Id. McIntosh-Wilson was a “policy-making administrator[ ] ... liable for the constitutional deprivations caused by [her] subordinates if [she] exhibited such a degree of indifference to compliance with [her] policies as to demonstrate that [she] did not base [her] actual administrative decisions or actions on the professional judgments embodied in the policy.” 582 So.2d at 1063 (emphasis added). There was evidence of such indifference in George.

It was undisputed that George had a notorious “habit of chewing and ‘mouthing’ anything within his reach, including towels, rags, his clothing or the clothing of others.” 582 So.2d at 1059. It was further undisputed that the hospital had purported to address his habit by “formulating] procedures for [his] habilitation,” including a “90-day ‘behavioral management plan,’ ” and “an ‘individual habilitation plan.’ ” 582 So.2d at 1060. There was expert testimony, however, tending to show that the procedures were “paper policies]” only, that is, that they “were more illusory than real.” 582 So.2d at 1063.

The policy at issue in this case was instituted, not by Pitts, but by the State Board of Education. What was known in George was the chronic and life-threatening behavior of a profoundly retarded hospital patient, while here, it is the two, widely separated, dissimilar instances of misconduct by a basketball coach — an offensive touching and a rape. Thus, George does not aid J.B.

.¾. The J.B./McCord Relationship

J.B. also complains of Pitts’s decision not to intervene in her long-standing, personal relationship with McCord. Although she undisputedly never complained to Pitts or anyone else about McCord until the event made the basis of this action, she now insists that Pitts should have interpreted McCord’s attentions as sexual harassment and should have unilaterally initiated the procedures for addressing sexual harassment set forth in the policy. This argument is without merit.

The policy in effect during the 2003-2004 academic year specifically excluded from the definition of sexual harassment “consenting or welcome sexual relationships.” More to the point, J.B. testified that, although she and McCord were often together going to and from classes and basketball games, she did not consider the relationship to he sexual. On the con-ti’ary, she regarded McCord as a friend and “father figure.” Thus, even if Pitts had initiated an investigation, it would, presumably, have foundered for lack of a complainant.

For these reasons, we hold that Pitts was not deliberately indifferent to J.B.’s constitutional rights for purposes of imposition of liability, under either Title IX or § 1983. Because the Title IX claim against Lawson State is premised on Pitts’s alleged inaction, the trial court correctly entered a summary judgment in favor of both Pitts and Lawson State.

B. Wiley’s Conduct

As for Wiley, J.B. concedes that Wiley’s conduct was less “egregious” than was Pitts’s. J.B.’s brief, at 62. No one alleges that Wiley knew of an inappropriate touching of S.P. by McCord. Wiley did know that J.B. and McCord spent time together. By deposition, Wiley testified that he expressed his concerns about the J.B./ McCord relationship to both J.B. and McCord. Specifically, Wiley testified:

“Q. [J.B.’s counsel:] Did you ever tell [McCord] you thought it was a bad idea for him to be taking [J.B.] home and picking her up?
“A. [Wiley:] Yes, I did. I told both. But they told me — she said he was a father figure to her.”

(Emphasis added.)

In any case, as we have already discussed in the context of the claims against Pitts, nothing in Wiley’s handling of the J.B./McCord relationship provides a basis for liability under § 1983. Therefore, the trial court correctly entered a summary judgment for Wiley.

C. Dr. Ward’s Conduct

The § 1983 claim is asserted against Dr. Ward solely on the ground that he “condoned” Pitts’s response to the 2002 incident and Pitts’s and Wiley’s handling of the ongoing J.B./McCord relationship. He did so, according to J.B., by testifying in deposition that he regarded their responses to each situation as appropriate under the circumstances. Because, as we have already discussed in this opinion, neither Pitts’s response to the 2002 incident nor the response of either Pitts or Wiley to the J.B./McCord relationship provides a basis for liability under § 1983, Dr. Ward’s alleged ratification of such responses does not afford a basis for liability. Thus, the trial court properly entered a summary judgment for Dr. Ward.

IV. Conclusion

For the foregoing reasons, the trial court correctly entered a summary judgment in favor of Lawson State, Pitts, Wiley, and Dr. Ward. That judgment is, therefore, affirmed.

AFFIRMED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.

      . We are using initials to preserve the anonymity of the victims, as required by Rule 52, Ala. R.App. P.

      . In 1987, McCord was convicted in Georgia of manslaughter.

      . There is no issue as to the identity of the “clearly established ... constitutional right” involved in this case. “[T]he Due Process Clause of the Fourteenth Amendment [clearly] protects the right of a child to be free from sexual abuse inflicted by a public school teacher." Roseville, 296 F.3d at 438.


text:
    Ex parte WALLACE, JORDAN, RATLIFF & BRANDT, L.L.C., et al. (In re Richard Scott Perkins and David R. Gulledge v. Wallace, Jordan, Ratliff & Brandt, L.L.C., et al.)
    1080716.
    Supreme Court of Alabama.
    Aug. 21, 2009.

      J. Mark White and Andrew C. Allen of White, Arnold & Dowd, P.C, Birmingham, for petitioner Wallace, Jordan, Ratliff & Brandt, L.L.C.; and Stephen P. Leara of Wallace, Jordan, Ratliff & Brandt, L.L.C, Birmingham, for petitioners Stephen Leara, MGLCO Holdings, LLC, and OPM Holdings, L.L.C.
    K. Edward Sexton II of Gentle, Turner & Sexton, Birmingham, for respondents.
   WOODALL, Justice.

Wallace, Jordan, Ratliff & Brandt, L.L.C.; Stephen P. Leara; MGLCO Holdings, LLC; and OPM Holdings, L.L.C. (hereinafter referred to collectively as “the petitioners”), defendants in an action filed by Richard Scott Perkins and David R. Gulledge, petition for a writ of mandamus directing the trial court to set aside its order granting Perkins and Gulledge’s Rule 60(b), Ala. R. Civ. P, motion for relief from judgment. We grant the petition and issue the writ.

Perkins and Gulledge filed their complaint against the petitioners on August 14, 2008, in the Jefferson Circuit Court. At that time, several related cases were pending in the Jefferson Circuit Court and the Shelby Circuit Court. In response to the complaint, some of the petitioners and another defendant, CapitalSouth Bank, filed motions to dismiss. On November 12, 2008, the trial court dismissed the action “without prejudice to the plaintiffs’ ability to prosecute their claims in other actions filed prior to this one and based on the same nucleus of facts.”

On January 8, 2009, 57 days after the action had been dismissed, Perkins and Gulledge filed a motion for “an order reinstating [the] matter to the active trial docket.” As grounds, the motion stated:

“1. That this is a complex case with various lawsuits filed in Jefferson and Shelby County circuit courts.
“2. That the parties have been involved in mediation in the various lawsuits and attended two days of mediation prior to the end of the year and have another day for mediation which is being scheduled.
“3. That the Shelby County cases have now been transferred to Jefferson County and as was discussed in the motions previously heard before Your Honor, those cases were planned to be consolidated with the cases pending in Jefferson County.
“4. That the Court had indicated at the hearing on the motion to dismiss that no action would be taken until it could be determined after a meeting and agreement by the parties in which jurisdiction and before which Court these matters could all be heard.
“5. That pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure this matter is due to be reinstated and plaintiffs request such other relief to which they may be entitled.”

The petitioners filed an objection to the motion to reinstate, arguing, in pertinent part, that the motion asserted “no grounds ... under Rule 60 that would justify the reinstatement.”

On February 2, 2009, the trial court granted the motion and reinstated the case to the active docket. More specifically, the order provided that “the claims against CapitalSouth Bank are abated, while the claims against the other defendants remain for adjudication.” The petitioners now seek a writ of mandamus directing the trial court to set aside the order it entered on February 2, 2009.

Rule 60(b), Ala. R. Civ. P., states, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

“A petition for the writ of mandamus is a proper method for attacking the grant of a Rule 60(b) motion.” Ex parte A&B Transp., Inc., 8 So.3d 924, 931 (Ala.2007). “In general, the decision whether to grant or to deny a post-judgment motion filed pursuant to ... Rule 60 is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed ... unless the trial court [exceeded] its discretion.” Comalander v. Spottswood, 846 So.2d 1086, 1090 (Ala.2002). However, “[a] party seeking relief must both allege and prove one of the grounds set forth in Rule 60 in order to be granted relief under that rule.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). Thus, where a “Rule 60(b) motion offer[s] no proper basis for granting relief from the judgment, ... the trial court’s granting of that motion [exceeds its] discretion.” Ex parte Alfa Mut. Gen. Ins. Co., 681 So.2d 1047, 1050 (Ala.1996).

The petitioners argue that the trial court exceeded its discretion in setting aside the judgment of dismissal because, according to them, the “motion did not allege any basis under Rule 60(b) and [Perkins and Gulledge] did not submit any evidence proving a ground under Rule 60(b).” Petition, at 8. We agree. The motion cites no allegedly applicable subsection of Rule 60(b), and none of the grounds set forth in the rule are mentioned in the motion. Moreover, Perkins and Gulledge offered no evidence, by affidavit or otherwise, in support of the motion. Thus, we must conclude that the trial court exceeded its discretion in granting the motion.

We have not ignored Perkins and Gul-ledge’s arguments; instead, we conclude that they have no merit. According to Perkins and Gulledge, “[c]learly, the [grounds] of [Rule] 60(b)(1) were alleged and the court could have found that the judgment was due to be set aside on the grounds of mistake or excusable neglect.” Perkins and Gulledge’s brief, at 6. However, as the petitioners point out, “the grounds of excusable neglect or mistake are not only not clearly alleged, they are not even mentioned.” Petitioners’ reply brief, at 2. Furthermore, before this Court, Perkins and Gulledge do not explain how any of the grounds in their motion could be reasonably construed as evidencing mistake or excusable neglect.

Rule 60(b)(6) provides that, in addition to the grounds listed in Rule 60(b)(1) through (5), a judgment may be set aside for “any other reason justifying relief from the operation of the judgment.” Under this subsection, “relief is granted only in those extraordinary and compelling circumstances when the party can show the court sufficient equitable grounds to entitle him to relief, but relief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final.” Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993). Perkins and Gulledge argue that, “under the catchall provisions of Rule 60(b)(6), the court could have found that the equitable relief requested in the motion justified a granting of relief under that provision.” Perkins and Gulledge’s brief, at 4. However, as the petitioners point out, the “motion does not refer to Rule 60(b)(6) or state the language used in Rule 60(b)(6).” Petitioners’ reply brief, at 11. Furthermore, because Perkins and Gulledge did not file a timely Rule 59(e), Ala. R. Civ. P., motion or an appeal, it cannot be said that they did everything reasonably within their power to achieve a favorable result. See Osborn v. Roche, 813 So.2d 811, 818 (Ala.2001).

For these reasons, we grant the petition and issue a writ of mandamus directing the trial court to set aside its February 2, 2009, order granting the Rule 60(b) motion for relief from judgment filed by Perkins and Gulledge.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.


author: STUART, Justice.

text:
    Gaythor D. LINDSEY a/k/a Randy Lindsey v. DEEP SOUTH PROPERTIES, LLC.
    1080701.
    Supreme Court of Alabama.
    Aug. 21, 2009.
    Laurie Boston Sharp, Alabaster, for appellant.
    Douglas J. Centeno of Benton & Cen-teno, LLP, Birmingham, for appellee.
   STUART, Justice.

Gaythor D. Lindsey a/k/a Randy Lindsey appeals the judgment entered by the Jefferson Circuit Court on an arbitration award returned against him and in favor of Deep South Properties, LLC, for $52,644. We dismiss the appeal.

On October 14, 2004, Lindsey and Deep South Properties entered into a contract pursuant to which Deep South Properties was to build a custom house for Lindsey in Shelby County. That contract contained a provision requiring the parties to resolve any disputes that arose regarding the construction via arbitration proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). In December 2005, a dispute did arise that eventually culminated in Lindsey’s refusing to make additional payments to Deep South Properties. Deep South Properties accordingly stopped work on the house, which was approximately 70% complete at the time.

In September 2007, Deep South Properties filed a demand for arbitration with the AAA. An arbitrator was appointed and, in November 2008, arbitration proceedings were conducted in Jefferson County. On December 11, 2008, the arbitrator decided the case in favor of Deep South Properties and awarded it $52,644. On December 23, 2008, Deep South Properties filed a copy of the arbitration award with the Jefferson Circuit Court and moved the court to enter a judgment based upon that award. On January 23, 2009, the circuit clerk entered a judgment on the arbitration award in favor of Deep South Properties. Lindsey did not thereafter file with the trial court any motion to vacate the judgment entered on the arbitration award; instead, Lindsey filed, on March 6, 2009, a notice of appeal to this Court.

In Horton Homes, Inc. v. Shaner, 999 So.2d 462, 467 (Ala.2008), we stated that a party seeking review of an arbitration award is required to file in the trial court a motion to vacate the judgment entered on the award. “This is so not only because § 6 — 6—15[, Ala.Code 1975,] contemplates a party’s first seeking relief from an award in the circuit court, but also because ‘[a]ny grounds not argued to the trial court, but urged for the first time on appeal, cannot be considered.’ ” Id. (quoting Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 165 (Ala.2005)). Pursuant to the procedure outlined by this Court in Shaner, Lindsey, if he desired judicial review of the arbitration award returned against him, should have filed a motion to vacate that award with the trial court within 30 days after the circuit clerk entered the judgment on that award. As explained in Shaner, the judgment entered by the circuit clerk on the arbitration award is conditional and does not become final for 30 days so as to provide the party challenging the award with an appropriate time in which to file a motion to vacate the judgment entered on the award. 999 So.2d at 467. The record indicates that the only judgment entered in this case was entered by the circuit clerk on January 23, 2009. That judgment was accordingly a conditional one, yet no motion to vacate was filed by Lindsey in the next 30 days or at anytime thereafter. The judgment ae-cordingly became final on February 23, 2009. Lindsey’s failure to file a motion to vacate in the trial court is fatal to his cause, and his appeal must be dismissed.

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result.

      . The procedure for seeking judicial review of arbitration awards in Alabama is now governed by Rules 71B and 71C, Ala. R. Civ. P. However, those rules do not apply to the present case because they did not become effective until February 1, 2009, and this case was initiated by Deep South Properties on December 23, 2008, and the conditional judgment was entered by the circuit clerk on January 23, 2009.

      . In his brief to this Court, Lindsey objects to the fact that a judgment was entered against him on January 23, 2009, but he was not personally served until two weeks later, on February 6, 2009. However, as explained above, the judgment entered on January 23 was a conditional judgment — it did not become final for another 30 days, here on Monday, February 23, 2009. Lindsey filed no motion to vacate either within 30 days of the date the conditional judgment was entered or within 30 days of the date he was served.
      Moreover, the certificate of service attached to the initial motion filed by Deep South Properties on December 23, 2008, seeking to confirm the arbitration award by the entry of a judgment indicates that a copy of that filing was mailed to Lindsey's attorney. The record also indicates that the trial court mailed Lindsey a copy of the judgment entered on January 23, 2009. Thus, although he does not articulate it as such, Lindsey cannot maintain that he was denied due process.