author: THOMAS, Judge. MOORE, Judge,

text:
    Angela Rene ALVERSON v. Benny Wayne ALVERSON.
    2080035.
    Court of Civil Appeals of Alabama.
    July 17, 2009.

      George M. Barnett, Guntersville; and Christopher F. Abel, Gadsden, for appellant.
   THOMAS, Judge.

Angela Rene Alverson (“the mother”) and Benny Wayne Alverson (“the father”) were divorced in August 2006. By an agreement, which was merged into the parties’ divorce judgment, the parties shared joint custody of their two minor children, with the children spending one-half of each week with each parent. In October 2007, the mother filed a petition to modify custody of the children to award her full custody and seeking to have that portion of the divorce judgment addressing the parties’ responsibility to pay for certain of the children’s expenses construed by the trial court. Although, in her complaint, the mother did not specifically request to be reimbursed for expenses the father had declined to reimburse her, she did make that claim at trial, and we deem that claim to have been tried by the implied consent of the parties. See Rule 15(b), Ala. Rule Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Horwitz v. Horwitz, 897 So.2d 337, 343-44 (Ala.Civ.App.2004) (applying Rule 15(b) to determine that the issue of a father’s contempt in failing to pay mortgage payments as required by the divorce judgment was tried by the implied consent of the parties). The father answered the mother’s complaint and filed a counterclaim also seeking full custody of the children.

The trial court entered a judgment awarding custody of the older child to the father and custody of the younger child to the mother and ordering that the parties equally split the cost of the children’s uninsured medical, optical, and dental expenses. The mother filed a postjudgment motion, in which she challenged the trial court’s splitting of custody and requested that the trial court order the father to pay one-half of the expenses she claimed she had incurred on behalf of the children. After the trial court denied that motion, the mother appealed.

On appeal, the mother first argues that the trial court erred by splitting the custody of the two children between the parents. She relies on the oft-stated principle that a custody judgment separating siblings is disfavored, absent a showing of compelling reasons for the separation. See Mardis v. Mardis, 660 So.2d 597, 599 (Ala.Civ.App.1995). The mother’s second argument on appeal is that the trial court erred when it failed to award her reimbursement for expenses she had incurred on behalf of the children.

The parties have had an acrimonious relationship since the divorce. In fact, despite having had joint custody of the children, the parties do not communicate well, and most communication regarding the children is done through the father’s current wife, Amy Alverson (“the stepmother”). The mother testified that she had had no problems communicating with the stepmother; the father admitted that things might improve if he and the mother were to communicate directly.

The older child of the parties, who had just completed the fifth grade at the time of the June 12, 2008, trial of the modification petitions, is doing quite well in school. In fact, the testimony indicated that she was ranked fourth in her class. The younger child, who had completed the third grade at the time of trial, has been diagnosed with juvenile rheumatoid arthritis, which has affected her eyes. She had had four eye surgeries since the parties’ divorce. She sees specialists at The Eye Foundation in Birmingham at least once a month and sometimes as often as four times each month. She requires large print school books and is “legally blind.” According to the mother, the younger child requires more assistance with her homework; the stepmother also indicated that the younger child required more assistance with her homework, noting, however, that she sometimes resisted doing her homework. The record does not reveal the younger child’s grades.

The mother testified that she would assemble a packet with the children’s school work and information pertaining to school for the father each week on Wednesday; the father’s custodial period was from 4:30 p.m. on Wednesday until 6:00 p.m. on Saturday. The mother complained that the father was not as good about sending the children’s homework and school information back to her; however, she did not cite any specific event or homework assignment that the children missed out on or failed to complete as a result of this failure of communication between the parents. The mother further complained that the father assisted the older child with her homework but that the stepmother completed the younger child’s homework with her. The stepmother testified that she helped the younger child with her homework, commenting that it took longer to complete the younger child’s homework and that she wanted the children to be finished with their homework so that they could enjoy spending time with the father after he returned home from work. Based on some of the stepmother’s testimony, however, it appears that the stepmother also assisted the older child with some of her studies during the afternoon hours before the father returned home from work.

The mother complained that the father treated the children differently from one another and that the father favored the older child. The mother cited as specific incidents the father’s hosting a birthday party for the older child but not for the younger child and his taking the older child skating while leaving the younger child at a friend’s home. The father explained that the younger child had made plans to spend the night with her friend and that he had taken the older child skating simply because he wanted her to have something to do as well. Concerning the birthday party, the testimony is far from clear. Although at one point the father and the stepmother indicated that, in fact, the older child had a birthday party and the younger child had not, other testimony from the stepmother indicated that each child had been given a birthday party and that each child had not been given a birthday party, although it might have been in two separate years. In addition, the stepmother indicated that one of the parties was to be a Halloween party but that, because the younger child’s birthday was November 1, the party became both a Halloween and birthday party and that the older child was allowed to invite Mends to this party as well.

The mother further complained that the father had not taken an interest in attending the younger child’s doctor appointments and that he had not attended school field trips with the younger child although he had attended such trips with the older child. The father and the stepmother both testified that they had communicated to the mother the father’s desire to be informed about the younger child’s doctor appointments and the desire to attend them, but to no avail. The mother admitted that she had not necessarily informed the father when the appointments were made, but she said that she faulted the father for not asking about the next appointment when the mother informed him of the outcome of the doctor appointments. The father also said that he had indicated his desire to attend field trips with the younger child but that the mother always went on field trips with her.

Based on their agreement, both parties have shared joint custody of the children since the August 2006 divorce. Because the parties shared joint custody of the children, the “best interest” standard and not the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applies to the parties’ modification petitions. Morgan v. Morgan, 964 So.2d 24, 34 (Ala.Civ.App.2007). However, the parties were still required to prove that there had been a material change in circumstances affecting the welfare and best interest of the children. Davis v. Blackstock, [Ms. 2060017, June 29, 2007] - So.3d - (Ala.Civ.App.2007); Morgan, 964 So.2d at 34; and Watters v. Watters, 918 So.2d 913, 916 (Ala.Civ.App.2005). As in all custody cases, our review is limited by the constraints of the ore tenus rule, which requires us to give deference to the custody judgment because of the trial court’s unique position to both hear and observe the witnesses before it. Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001) (quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)).

As noted above, the mother argues that the trial court erred by separating the siblings in the absence of a compelling reason for doing so. Mardis v. Mardis, 660 So.2d at 599. Although we have affirmed custody judgments separating children from one another, we have typically done so only when the evidence yielded a distinct and compelling reason for the separation. See M.W.W. v. B.W., 900 So.2d 1230, 1236 (Ala.Civ.App.2004) (affirming a custody judgment separating siblings when the older daughter had been alienated from the father as a result of unproven abuse allegations and the mother’s influence and when the mother had begun affecting the younger daughter’s relationship with the father); Hepburn v. Hepburn, 659 So.2d 653, 655 (Ala.Civ.App.1995) (affirming the separation of siblings when the mother exhibited an obvious preference for her daughter over her son, considered the son “a brat,” and had little concern or affection for the son, and when the daughter had begun belittling and berating the son as a result of the mother’s attitude toward him); and Gandy v. Gandy, 370 So.2d 1016, 1018 (Ala.Civ.App.1979) (affirming a judgment awarding custody of the older daughter to the mother and the younger siblings to the father in light of evidence indicating that the older daughter was rebellious, difficult to control, and hostile toward her father and her younger siblings). However, in Mardis, we reversed a judgment separating the siblings because the record did not reveal a compelling reason for separating them. Mardis, 660 So.2d at 599.

In Gandy, this court affirmed a custody judgment separating the parties’ three children by awarding the eldest child to the mother and the younger children to the father. Gandy, 370 So.2d at 1018. The testimony at trial indicated that the eldest of the parties’ three children “fosters a great deal of hostility toward her father” and that she “on occasion exhibits antagonism toward her younger brother and sister whom she is prone to ‘pick on.’ ” Id. at 1017. In our opinion affirming the judgment, we noted first that the trial court had “amply set[] forth the circumstances” supporting the decision to separate the siblings in its judgment; we also noted that the eldest child harbored hostility toward her father and her siblings. Id. at 1018.

We also affirmed a judgment separating two siblings in Hepburn because the record revealed that the mother favored her daughter over her son and had little or no affection or familial relationship with the son. Hepburn, 659 So.2d at 655. The mother had exhibited a marked preference for the daughter, while referring to the son as a “brat”; the record further reflected that the mother had little concern for the son’s welfare and demonstrated little affection for him. Id. The mother’s preference for the daughter and her attitude toward the son had, in turn, resulted in the daughter’s habit of belittling and berating the son, with the approval of the mother. Id. We affirmed the custody judgment, noting that the trial court had “identified compelling reasons” to justify separating the siblings and that it had “concluded that the son’s physical and emotional well-being would be best served by allowing the father to have custody of the son.” Id.

In the present case, the trial court did not state its reason for separating the siblings. The testimony concerning the children’s relationship with each other reveals that the children argue and are jealous of each other, as is typical between siblings. This evidence of sibling bickering does not rise to the level of the acrimonious relationships present in Hepburn or Gandy. Further, the record does not disclose that either the mother or the father has a difficult relationship with either child, like the hostility between father and the eldest child in Gandy, or that either parent favors one child to the detriment of the other, like the mother in Hepburn. In short, we cannot discern the compelling reason behind the trial court’s decision to separate the siblings in this particular custody case. We therefore reverse the trial court’s judgment as to custody.

The mother’s second argument on appeal is that the trial court erred by failing to determine that the father was due to reimburse her for expenses she had incurred on behalf of the children for their “support and maintenance,” as required by the divorce judgment. The parties disagreed on what expenses were encompassed by the phrase “support and maintenance,” and the father disputed certain expenses for various other reasons, including the mother’s failure to include an itemized bill instead of only a canceled check as proof of certain expenses. The trial court rejected the mother’s claim in its entirety, without specifying its reasons for doing so. Of course, in the absence of a statute requiring that specific findings of fact be made, a trial court is not required to make any specific factual findings in support of its judgment. See Rule 52(a), Ala. R. Civ. P. As an appellate court, in those cases in which a trial court does not make specific findings of fact, we are required to presume the trial court made those findings that would support its judgment, unless such findings would be unsupported by the evidence in the record on appeal. Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004) (citing Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)).

The mother’s argument on appeal is a page-long paragraph in which the mother argues simply that she was due to be reimbursed for all the expenses she claimed because of the language in the divorce judgment. She does not discuss the meaning of the phrase “support and maintenance,” and she does not discuss whether each of her claimed expenses falls within that definition; nor does the mother refute the father’s argument that some of the expenses were supported not by itemized bills or receipts but only by canceled checks. This court has long noted that Rule 28, Ala. R. App. P., requires an appellant to “present [her] issues ‘with clarity and without ambiguity’ ” and to “fully express [her] position on the enumerated issues” in the argument section of her brief. Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987) (quoting Thoman Eng’rs, Inc. v. McDonald, 57 Ala.App. 287, 290, 328 So.2d 293, 294 (Ala.Civ.App.1976)). Our supreme court has also required that a fully developed argument be presented in brief, stating that “Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) (emphasis added). Notably, in White Sands Group, the supreme court refused to consider an appellant’s argument because the appellant had failed to offer any “factual analysis” and instead had relied on an argument that the trial court’s judgment was “ ‘nonsensical’ ” White Sands Group, 998 So.2d at 1058. The mother’s argument, while not quite based solely on the assertion that the trial court’s decision was “reversible error,” is woefully underdeveloped and contains no factual analysis upon which this court could form a conclusion regarding the trial court’s determination that the mother was not due any reimbursement from the father. Thus, we affirm the trial court’s judgment insofar as it denied the mother’s claim for the reimbursement of expenses.

Based on our review of the record, the trial court lacked a compelling reason to separate the siblings by awarding custody of the younger child to the mother and custody of the older child to the father. We therefore reverse the judgment insofar as it makes that custody award, and we remand the cause for proceedings consistent with this opinion. Because the mother failed to support her argument concerning the reimbursement of expenses with a developed argument containing factual analysis of the issue, see White Sands Group, 998 So.2d at 1058 (citing Rule 28(a)(10)), we affirm the judgment insofar as it fails to order the father to reimburse the mother for the expenses she claimed to have incurred on behalf of the children.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, J., concurs in part and concurs in the result in part, with writing, which BRYAN, J., joins.

THOMPSON, P.J., and PITTMAN, J., concur in the result, without writings.

MOORE, Judge,

concurring in part and concurring in the result in part.

This appeal concerns the issue whether the Marshall Circuit Court (“the trial court”) exceeded its discretion in ordering split custody of the two minor children of Angela Rene Alverson (“the mother”) and Benny Wayne Alverson (“the father”) in a child-custody-modification proceeding. The main opinion reverses that aspect of the judgment concerning custody on the ground that Alabama law authorizes separating siblings based only on compelling reasons, 28 So.3d at 789, and, the main opinion states, “we cannot discern the compelling reason behind the trial court’s decision to separate the siblings in this particular custody case.” 28 So.3d at 788. I believe the main opinion has reached the correct result, but for the wrong reasons.

Based on my review of Alabama case-law, I believe the appellate courts have inconsistently treated the question whether a judgment splitting custody of minor children exceeds the discretion of the trial court. In Pettis v. Pettis, 334 So.2d 913 (Ala.Civ.App.1976), this court considered the propriety of a custody award splitting two minor children, with the husband receiving custody of the parties’ five-year-old son and the wife receiving custody of the parties’ three-year-old daughter. After considering other factors, the court said:

“There is the further consideration of the need of the children to be together. A separation of two such young children should, in the judgment of this court, be permitted only out of extreme necessity. Apparently the court was of the opinion that the wife was a suitable custodian of the girl. We perceive no cause for concluding that she was not an equally suitable custodian for the boy. It has long been an accepted principle in our courts that absent proof of unsuitability, the mother is best suited to have custody of children of tender years. Messer v. Messer, 280 Ala. 395, 194 So.2d 552 [ (1967) ]."

334 So.2d at 914. Although in Pettis this court held generally that young children should be separated only “out of extreme necessity,” notably, it did not cite any controlling legal authority for that proposition. In Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.1979), the court cited only Pettis in holding that siblings may be separated only “in certain extreme circumstances.” 370 So.2d at 1018.

Six years after Pettis, in Mobley v. Mobley, 414 So.2d 107 (Ala.Civ.App.1982), the court affirmed a judgment awarding custody of the 17-year-old child of the parties to Mrs. Mobley and awarding custody of the 13-year-old and 7-year-old children to Mr. Mobley, stating, in pertinent part:

“It would serve no useful purpose to discuss in detail the evidence presented relating to the issues presented upon appeal. However, in response to the issue of child custody, we comment that there was an unopposed in camera interview with the children. It is undenied that [Mr. Mobley] did much of the cooking and household chores and spent much time in recreational activities with the children. Though the granting of custody to [Mr. Mobley] of the younger children, including the girl, is a departure from the usual and historic, in view of the testimony it does not appear to be contrary to the best interest of the children. The assertion by [Mrs. Mobley] of the ‘tender years doctrine1 is inappropriate in view of the recent case of Ex parte Devine, 398 So.2d 686 (Ala.1981) [, which struck down the tender-years doctrine as unconstitutional.]”

414 So.2d at 108. In Mobley, the court did not cite Pettis or Gandy or employ any reasoning that siblings can be separated only “out of extreme necessity.” Instead, the court simply relied on the “best interests” standard, concluding that the split-custody award could be upheld as being in the best interests of the children involved.

Four years later, in Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986), Jensen appealed from a judgment placing her 13-month-old dependent child, Ashley, in the custody of the Shorts, a couple who intended to adopt the child, instead of in a foster home with her 5-year-old half-sisters. The court held that “[t]he overriding consideration in a child custody case is the best interests of the child.” 494 So.2d at 91. After reciting numerous factors the trial court must consider in passing on the best interests of the child, the court said:

“Another factor to be given weight in child custody cases is whether siblings should remain together. Although the general rule is that siblings should not be separated in the absence of compelling reasons, this policy is but one factor to be considered in light of the facts and circumstances of each particular case, keeping ever mindful that the paramount question to be decided is what will promote the best interests of the child. M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813 (1984); see also, Commonwealth v. Reitz, 193 Pa.Super. 125, 163 A.2d 908 (1960); Wallace v. Wallace, 420 So.2d 1326 (La.Ct.App.1982).”

494 So.2d at 92.

Jensen is the first case in which this court used the language that siblings should be separated only for “compelling reasons.” That language arose not from prior Alabama Supreme Court precedent, see § 12-3-16, Ala.Code 1975 (requiring the Court of Civil Appeals to follow decisions of the Alabama Supreme Court), but from Pennsylvania and Louisiana caselaw. In Commonwealth v. Reitz, 193 Pa.Super. 125, 163 A.2d 908 (1960), the Superior Court of Pennsylvania acknowledged that the argument that children of the same family should not be separated “has natural appeal” but that “there is no fixed and invariable rule which applies.” 193 Pa.Super. at 129, 163 A.2d at 911. Rather, it said, the trial court should make a fact-dependent inquiry into “every fact, detail and circumstance of the child’s life” to determine which custodial arrangement serves the best interests of the child. Id. Later, in M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813 (1984), that same court said: “Although the general rule is that siblings should not be separated in the absence of compelling reasons, this policy is but one factor to be considered, together with others, in determining the manner in which a child’s best interests will be served.” 336 Pa.Super. at 304, 485 A.2d at 816-17. The Louisiana Court of Appeals echoed that sentiment in Wallace v. Wallace, 420 So.2d 1326 (La.Ct.App.1982), when it said:

“The separation of children of a family though sometimes necessary, is a custodial disposition which courts seek to avoid.... But the paramount question to be considered and answered in determining to whom the custody of the child should be granted is: What would serve the best interest of the child?”

420 So.2d at 1328.

In Jensen, this court ultimately affirmed a judgment separating half-siblings. In affirming, the court concluded that the record showed that the trial court had considered the effect of separating the youngest child from her half-siblings and that it had correctly determined that separation would serve the best interests of the youngest child. 494 So.2d at 92. Consistent with Pennsylvania and Louisiana law, the court in Jensen did not rest its decision on proof of “compelling reasons” to separate the children. Plainly, despite its reference to “compelling reasons,” Jensen should not be interpreted as requiring siblings to remain together in the absence of “compelling reasons,” when Jensen itself did not rely on such circumstances.

In Kennedy v. Kennedy, 517 So.2d 621 (Ala.Civ.App.1987), this court seemed to acknowledge the true holding in Jensen when it affirmed a judgment separating siblings. The court noted its general disinclination to separate minor children through split-custody arrangements, 517 So.2d at 623, but it held that the trial court had sufficient evidence before it from which it could have correctly determined that the oldest child could not live as comfortably with the mother as she could with the father. 517 So.2d at 624. The court in Kennedy did not expressly require any proof of “compelling reasons” to separate the children.

Nevertheless, in Mardis v. Mardis, 660 So.2d 597 (Ala.Civ.App.1995), this court, relying mainly on Jensen, Gandy, and Pet-tis, held that, “where both parents are fit to exercise custody, we find it extremely important that the trial court consider whether there is a ‘compelling reason’ to separate the siblings.” 660 So.2d at 599. Finding no “compelling reason” to separate the siblings, the court reversed a judgment awarding custody of the older child to Mrs. Mardis and awarding custody of the younger child to Mr. Mardis.

In attempting to summarize the law regarding the separation of siblings, the court, in Hepburn v. Hepburn, 659 So.2d 653 (Ala.Civ.App.1995), stated that this court generally disapproves of custody determinations in which siblings are separated. The court then said that such a decision may be justified “[i]f the trial court identifies a compelling reason for the separation.” 659 So.2d at 655. However, the court also said that, “[i]n other cases, if a custody determination in which siblings were separated promoted the best interests of the children, this court has affirmed.” Id. (citing Gandy; Smith v. Smith, 586 So.2d 916 (Ala.Civ.App.1991); Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); Kennedy; and Jensen). Hep burn accurately portrayed the confusing state of the law in the 1990s. See Phomsavanh v. Phomsavanh, 666 So.2d 537 (Ala.Civ.App.1995) (in which, although the court stated that compelling reasons must be the basis for separating siblings, it affirmed a judgment awarding custody of the parties’ son to Mr. Phomsavanh solely on ground of their close personal relationship); Hannan v. Hannan, 676 So.2d 1340 (Ala.Civ.App.1996) (affirming judgment separating half-siblings based on their more distant relationship and evidence that best interests of children would be served by split-custody arrangement); Bates v. Bates, 678 So.2d 1160 (Ala.Civ.App.1996) (affirming judgment awarding all children to Mrs. Bates when Mr. Bates failed to prove compelling reasons for separating them); and Overturf v. Leverett, 702 So.2d 469 (Ala.Civ.App.1997) (affirming custody-modification judgment separating siblings based on compelling reason that stepfather had abused one child).

More recent cases have only perpetuated the confusion by saying that siblings may be separated only for compelling reasons, see M.W.W. v. B.W., 900 So.2d 1230 (Ala.Civ.App.2004); and Bishop v. Knight, 949 So.2d 160 (Ala.Civ.App.2006), but by affirming judgments separating siblings despite a lack of compelling justification. See Dunn v. Dunn, 972 So.2d 810, 815 (Ala.Civ.App.2007) (affirming judgment separating siblings when Mrs. Dunn’s relationship with older child was “damaged and in need of repair,” but no such evidence was presented regarding younger child).

Having canvassed the law regarding separation of siblings, I am not convinced that Alabama truly adheres to the notion that siblings may be separated based only on compelling reasons. Rather, it appears to me that siblings may be separated if the trial court concludes, based on sufficient. evidence in the record, that the separation will serve the best interests of the children at issue. In making that determination, the trial court should consider the factors traditionally cited by the appellate courts in this state, see Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), but it should also consider factors such as the interrelationship of the children, the children’s ages, the similarity of interests and activities of the children, whether the children previously resided with the custodial parent, the parents’ involvement in the children’s upbringing, the parents’ emotional stability, the parents’ previous lack of cooperation regarding visitation, the children’s preference, parental agreement providing for siblings to be together frequently, and the location of the parents’ residences. Annotation, Child Custody: Separating Children by Custody Awards to Different Parents-Post-1975 Cases, 67 A.L.R.4th 354 (1989); see also Dronen v. Dronen, 764 N.W.2d 675, 686 (N.D.2009). I believe each case should be decided on its own factual basis and that the decision should ultimately come down to employing that custody arrangement that serves the best interests of all the children involved.

In her brief, although she also argued that the trial court had to identify a compelling reason to separate the children, the mother framed the overarching issue in this case as “whether a custody award in which two siblings are separated one from another is in the minor children’s best interests in light of no evidence to support such an order.” Based on a consideration of that issue, which I believe properly states the question for our review, I agree that the judgment should be reversed. Because the parties did not seek split custody, or contemplate that the trial court would split custody of the children between them, they did not present any evidence of most of the factors that would support a finding that split custody serves the children’s best interests. Most importantly, I find no evidence as to how the bond and interpersonal relationship between the children would be affected by their separation. Without that evidence, the trial court could not reasonably have concluded that separating the children would serve their best interests. For that reason, I believe the custody judgment is due to be reversed.

BRYAN, J., concurs.

      . We note that, based on our review of the record, neither party has demonstrated a material change of circumstances affecting the welfare and best interest of the children in this case. However, because the mother did not argue that the father had not shown a material change of circumstances, we cannot reverse the trial court's custody judgment on that basis. On remand, the trial court will be free to consider, based on the principles stated in this opinion, whether the joint-custody arrangement should be modified and, if so, how it should be modified.

      . The main opinion concludes that the mother did not properly argue the issue raised in her brief that the trial court erred in failing to order reimbursement of certain expenses the mother claims she had incurred on behalf of the children. After reviewing the one-paragraph argument, which contains no factual analysis of the error allegedly committed by the trial court, I concur in that aspect of the main opinion refusing to consider that issue.

      . Interestingly, the Pennsylvania Superior Court has since clarified that "the policy of keeping siblings together is only a consideration and not a determinant of custody arrangements.” Saintz v. Rinker, 902 A.2d 509, 513 (Pa.Super.Ct.2006). Rather, Pennsylvania law now holds that a trial court may separate siblings if evidence of other factors indicate that separation serves the best interests of the children. Id. (citing Johns v. Cioci, 865 A.2d 931, 943 (Pa.Super.Ct.2004)). Louisiana law similarly now states that a custody order separating children, though not favored, will be affirmed if the evidence shows it is in the best interests of the children. Walker v. Walker, 880 So.2d 956 (La.Ct.App.2004).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    NATIONAL ASSOCIATION OF LETTER CARRIERS v. ALABAMA CENTRAL CREDIT UNION.
    2080096.
    Court of Civil Appeals of Alabama.
    July 17, 2009.
    Robert M. Weaver of Nakamura, Quinn, Walls, Weaver & Davies LLP, Birmingham, for appellant.
    Richard C. Duell III and Robert O. McNearney III of Duell Law Firm, LLC, Birmingham, for appellee.
   THOMAS, Judge.

The National Association of Letter Carriers (“NALC”) appeals from the trial court’s denial of its Rule 60(b), Ala. R. Civ. P., motion to set aside a default judgment. We dismiss NALC’s appeal as untimely.

Facts and Procedural History

On December 22, 2006, Alabama Central Credit Union (“ACCU”) obtained a default judgment against Amy Owens. In February 2007, ACCU filed a writ of garnishment in the Madison Circuit Court, seeking to garnish Owens’s wages. Owens is employed as a clerical worker at NALC. The sheriff of Madison County served the writ of garnishment on NALC by hand-delivery. Owens signed for the writ and informed her supervisor, Lew Drass. Owens was not a registered agent for delivery of service of process; however, Drass is a registered agent for NALC.

Drass contacted counsel for ACCU to discuss lowering the amount of the garnishment. Drass did not receive any reply from ACCU’s counsel. In May 2007, the trial court issued a notice of conditional judgment against NALC. The sheriffs department hand-delivered the notice of conditional judgment to NALC. Owens received the notice; however, she did not inform Drass of her receipt of the notice.

In October 2007, the trial court entered a final judgment against NALC, pursuant to § 6-6-457, Ala.Code 1975.

In April 2008, NALC moved the trial court, pursuant to Rule 60(b)(4) and (5), Ala. R. Civ. P., to set aside the final judgment, alleging that the judgment was void because of deficient service of process. On June 5, 2008, the trial court held a hearing on NALC’s Rule 60(b) motion. On June 20, 2008, the trial court denied NALC’s motion, and, on the same day, it entered the denial into the Alabama Judicial Information System (“SJIS”), pursuant to Rule 58(c), Ala. R. Civ.App. The trial-court clerk’s office did not send a hard copy or an electronic copy of the order to the parties.

In September 2008, both parties contacted the trial-court clerk’s office, requesting a copy of the trial court’s June 20, 2008, order. The clerk’s office found that the order had been misplaced. Upon discovering that the June 20, 2008, order had been misplaced, the trial court, on October 14, 2008, reentered its previous order denying NALC’s Rule 60(b) motion. NALC filed its notice of appeal to this court on October 23, 2008. ACCU moved this court to dismiss NALC’s appeal as being untimely.

A party has 42 days from the date of entry of a judgment to appeal the judgment. Rule 4(a)(1), Ala. R.App. P. Rule 58(c), Ala. R. Civ. P., provides that “[a]n order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.” In this case, on June 20, 2008, the trial court issued its order denying NALC’s Rule 60(b) motion, and, on the same day, the trial-court clerk made an entry in SJIS stating that the motion had been disposed of by separate order. Pursuant to Rule 58(c), the time for NALC to file its notice of appeal began to run on June 20, 2008, when the judgment was entered into SJIS.

NALC argues that the time for it to file its notice of appeal did not begin to run until the trial court reentered its order on October 14. NALC argues that it never received a copy of the separate order because, it argues, it was misplaced by the trial-court clerk’s office.

“Rule 77(d)[, Ala. R. Civ. P.,] exclusively governs the situation in which a litigant claims that the clerk’s office failed to notify [it] of the trial court’s entry of a judgment.” Bacon v. Winn-Dixie Montgomery, Inc., 730 So.2d 600, 602 (Ala.1998) (citing Lindstrom v. Jones, 603 So.2d 960 (Ala.1992); and Corretti v. Pete Wilson Roofing Co., 507 So.2d 408 (Ala.1986)). Rule 77(d) provides, in pertinent part:

“Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”

In Bacon, the Alabama Supreme Court, in holding that Bacon did not show excusable neglect as required by Rule 77(d), stated:

“Although it appears from the record that the clerk’s office failed to notify Bacon of the entry of the judgment against her, the trial court’s judgment for Winn-Dixie was entered on the case action summary sheet on February 6, 1998. It also appears that Bacon’s counsel made no discernible effort, and thus did not act diligently, to ‘keep abreast of the status of the case’; i.e., he made no attempts to follow the status of the case by checking with the clerk’s office.”

Bacon, 730 So.2d at 602.

When our supreme court decided Bacon, a judgment was considered entered under Rule 58(c) when the trial-court judge entered the judgment on the case-action summary. In 2006, Rule 58(c) was amended to state that the date a judgment is considered entered for purposes of calculating the time for a party to file a notice of appeal is the date of the entry of the judgment into SJIS. The Committee Comments to Amendment to Rule 58 effective September 19, 2006, state, in part:

“The electronic records input into the SJIS are available both in the clerks’ offices and through remote access over the Internet. Thus, under the amended rule, an attorney or a party will have virtually instant access to the information that judgment has been entered.”

This change to Rule 58(c) did not abrogate NALC’s counsel’s duty to follow the status of the case. In fact, the change makes this task easier because the information regarding the entry of the order was available to NALC’s counsel via a simple, online check of the SJIS system.

In Bacon, the issue was whether Bacon should have been granted, pursuant to Rule 77(d), an extra 30 days to file a notice of appeal. In this case, NALC did not file a Rule 77(d) motion with the trial court. Moreover, even if it had, NALC filed its notice of appeal well after the expanded time allowed by Rule 77(d) had run. Therefore, we dismiss NALC’s appeal as untimely, and we grant ACCU’s motion to dismiss.

APPEAL DISMISSED.

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

      . Section 6-6-457 provides:
      "If the garnishee fails to appear and answer, a conditional judgment must be entered against him for the amount of the plaintiff's claim, as ascertained by his judgment, to be made absolute unless he appears within 30 days after notice of the conditional judgment issued by the clerk, to be served on him, as other process, by the sheriff. If he fails to appear within the time required by the notice served upon him or if two notices are returned ‘not found' by the sheriff of the county in which the garnishment was executed, the judgment must be made absolute.”

      . Rule 4(a)(1) provides that a party has 42 days to file a notice of appeal. The trial court entered its order disposing of NALC’s Rule 60(b) motion on June 20, 2008. The 42d day following the entry of the trial court's order was Friday, August 1, 2008. Rule 77(d) allows for a 30-day extension, upon a showing of excusable neglect, of the time for filing a notice of appeal. The 30th day following August 1, 2008, was Sunday, August 31, 2008. Monday, September 1, 2008, was a State holiday — Labor Day. Therefore, had NALC asked for and received an extension under Rule 77(d), the last day for NALC to file its notice of appeal would have been September 2, 2008. See Rule 26(a), Ala. R.App. P.


author: BRYAN, Judge.

text:
    Shannon Whitehurst HOLT v. Ronald A. WHITEHURST.
    2080131.
    Court of Civil Appeals of Alabama.
    July 17, 2009.
    Amy M. Shumate, Dothan, for appellant.
    Joel M. Nomberg of Nomberg & Maddox, P.C., Dothan, for appellee.
   BRYAN, Judge.

Shannon Whitehurst Holt (“the mother”) appeals from a judgment of the Houston Circuit Court prohibiting her from changing the principal residence of the parties’ minor son (“the son”).

The mother and Ronald A. Whitehurst (“the father”) were divorced by an order of the Houston Circuit Court (“the trial court”) in August 2004. The son was the only child born of the marriage. The divorce judgment awarded joint custody of the son to the parties, but it awarded the mother “primary physical custody” of the son subject to the father’s visitation rights.

Apparently, in 2006, the mother sought to relocate to Oklahoma with the son, but she was prohibited from doing so by the trial court. In May 2008, the mother married a man that lives and works in Oklahoma. The mother and her husband have a child together, and that child lives with the mother and the son in Houston County. The mother’s husband has no intention of moving to Houston County.

The mother sent notice to the father, pursuant to § 30-3-163, Ala.Code 1975, of her intention to relocate to Oklahoma with the son. On July 10, 2008, the father filed a “Complaint for Custody” seeking custody of the son, alleging that “there has been a material change in circumstances” because the mother planned to relocate with the son to Oklahoma.

The trial court held an ore tenus hearing on October 2, 2008. The father, as the plaintiff, called his witnesses first; those witnesses were the mother and the father. The trial judge who presided over the hearing questioned the son as a witness without the mother or the father being present in the courtroom.

After the son testified, the father rested his case and orally moved the trial court for a “directed verdict” (in actuality, he moved for a judgment on partial findings, pursuant to Rule 52(c), Ala. R. Civ. P.). Counsel for the mother objected to the father’s motion because the mother had not had the opportunity to call any of her witnesses. The trial court granted the motion because, in the opinion of the trial court, the mother had not offered any testimony to show that circumstances were any different than they were in 2006 when the mother first attempted to relocate to Oklahoma with the son.

The trial court entered a written order on October 9, 2008, which stated in pertinent part:

“The Court heard this matter on the same issues in June 2006 holding that [the motherj’s move to Oklahoma would constitute a material change of circumstances which would give rise to a change of custody.
“Generally, it appears that nothing has changed except that [the mother]’s situation is more pronounced in that she has remarried and her current husband lives and works in Oklahoma. Although the Court is concerned about [the moth-erj’s new marriage being conducted in a separated manner between the two states, the Court cannot hold [the moth-erj’s choices against [the father] and therefore republishes its June 4, 2006 and July 11, 2006 Orders.
“As previously ordered if [the mother] moves from the Houston County, Alabama area custody is immediately changed from the [mother] to the [father] of the [son][sic] parties reversing their obligations and responsibilities under the prior Divorce Agreement and Decree.”

The mother timely appealed to this court. On appeal the mother argues that the trial court erred in granting the father’s Rule 52(c) motion because she was not given the opportunity to call witnesses on her behalf so that she could meet her burden under the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala Code 1975. Further, the mother argues that the trial court applied the incorrect standard of law because, she says, she was required to prove a “material change of circumstances” in order to change the principal residence of the son. Finally, she argues that the trial court exceeded its discretion by refusing to permit her to relocate to Oklahoma without modifying the custody of the son.

We note that appellate courts have limited power in reviewing a judgment of a trial court after the trial court hears evidence ore tenus. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). “However, where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application.” Clements v. Clements, 906 So.2d 952, 957 (Ala.Civ.App.2005) (citing Ex parte Perkins, 646 So.2d 46 (Ala.1994)). In such circumstances, we review the judgment of the trial court de novo. Bishop v. Knight, 949 So.2d 160, 166 (Ala.Civ.App.2006).

We agree with the mother that the trial court erred in granting the father’s Rule 52(c) motion, and, therefore, the judgment of the trial court is due to be reversed and the cause remanded for a new trial.

Rule 52(c) states, in pertinent part:

“If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue .... ”

Pursuant to the plain language of Rule 52(c), the trial court could not have entered judgment against the mother until she was fully heard on the issue in question. Under the Act, the burden of proof is on the mother, as the relocating parent, as stated in § 30-3-169.4, Ala.Code 1975:

“[Tjhere shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

The record reveals that, at the final hearing in this matter, the mother was not given an opportunity to present witnesses on her behalf. The trial court was required to allow the mother an opportunity to be fully heard in her effort to overcome her burden; to deny the mother that opportunity is reversible error.

Therefore, on remand, to meet her burden of proof, the mother must introduce evidence to show that changing the son’s principal residence to Oklahoma would in fact be in his best interest. If the mother meets her burden under § 30-3-169.4, and is thus able to satisfy the trial court that changing the principal residence of the son would be in the best interest of the son, the burden then shifts to the father to show that changing the principal residence of the son is not in the son’s best interest. See Nichols v. Nichols, 4 So.3d 491 (Ala.Civ.App.2008).

Because the trial court erred in granting the father’s Rule 52(c), Ala. R. Civ. P., motion, the judgment of the trial court is due to be reversed and the case remanded for a new trial. In so holding, we do not make any judgment regarding the merits of this case, and we pretermit discussion of the mother’s remaining issues on appeal.

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

REVERSED AND REMANDED.

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

      . See Ragsdale v. Ragsdale, 991 So.2d 770, 771 n. 1 (Ala.Civ.App.2008); and Patterson v. Liz Claiborne, Inc., 872 So.2d 181 (Ala.Civ.App.2003) (Pittman, J., concurring specially).

      . There is an order dated October 2, 2008, in the record that states: “The June 4, 2006 and July 11, 2006 Orders are reaffirmed and republished.” The June 4, 2006, order and the July 11, 2006, order are not in the record on appeal.


author:
MOORE, Judge.
      BRYAN, Judge,

text:
    Timothy Charles BARNES v. Brenda Bonham BARNES.
    2080278.
    Court of Civil Appeals of Alabama.
    July 17, 2009.
    Dale Rouse Waid, Clanton, for appellant.
    Brenda Bonham Barnes, pro se.
   MOORE, Judge.

Timothy Charles Barnes (“the former husband”) appeals from a judgment of the Chilton Circuit Court that, among other things, directed the former husband to, within 120 days from the date of the entry of the judgment, take all steps necessary to have Brenda Bonham Barnes’s name removed from all debt associated with the parties’ former marital residence.

The husband and Brenda Bonham Barnes (“the former wife”) were divorced by a judgment entered by the Chilton Circuit Court on June 21, 2006, as amended on July 28, 2006. The July 28, 2006, amended divorce judgment provided, in pertinent part:

“8. The [former hjusband shall have sole and exclusive ownership, use, and possession of the [former marital residence], The [former wjife shall execute a quit claim deed in favor of the [former hjusband upon presentment of same. The [former hjusband shall be solely liable for the mortgages secured by the [former marital residence], thereby indemnifying and holding the [former wjife harmless for same. The [former w]ife shall execute all documents presented to her by the [former h]usband or his agent relating to any refinancing on the [former marital residence] necessary to fulfill the [former h]usband’s obligations to the [former w]ife.”

On January 10, 2008, the former wife filed a “petition for contempt/rule nisi and/or modification” requesting, among other things, that the former husband be ordered to appear and show cause why he should not be found in contempt of court for his failure to comply with certain provisions of the amended divorce judgment. Specifically, the former wife alleged that the former husband had not refinanced the mortgages on the marital residence solely in his name. On February 7, 2008, the former husband filed an answer to the former wife’s petition in which he, among other things, denied that the amended divorce judgment required him to have the mortgages secured by the marital residence refinanced to remove the former wife’s name from the same.

The case was called for trial on May 16, 2008; however, the trial court entered an order on the case-action-summary sheet, which states: “Case called. Parties present with counsel.... [The former husband] to go attempt and bring documentation of refinance attempt.... Case reset for July 7, 2008 @ 9:00.” The case was subsequently reset for October 6, 2008. On that date, the trial court entered the following judgment:

“Case called.... Issue of [the former husband] and the refinance of the [former] marital residence argued.... Consistent with the obligation of holding [the former] wife harmless on the debt of marital residence and spirit of [the former] husband refinancing marital residence, the [former] husband shall have 120 days in which to get all debt out of [the former wife’s] name associated with [the former marital residence].”

The former husband filed a motion to alter, amend, or vacate the judgment asserting that the trial court had lost jurisdiction to modify the terms of the amended divorce judgment 30 days after its entry and that, accordingly, the trial court’s October 6, 2008, judgment directing the former husband to refinance the mortgages within 120 days was an impermissible modification of the amended divorce judgment. The former wife filed a response to the motion on October 14, 2008. Following oral argument on November 17, 2008, the trial court entered an order denying the former husband’s motion to alter, amend, or vacate. The former husband filed his notice of appeal to this court on December 17, 2008.

The former husband argues that the trial court erred by modifying the property-settlement provisions of the parties’ amended divorce judgment because, he says, the trial court lost jurisdiction to modify the amended divorce judgment 30 days after it was entered on July 28, 2008.

“A trial court loses jurisdiction to modify a property division in a divorce judgment 30 days after the entry of the judgment. Hocutt v. Hocutt, 491 So.2d 247, 248 (Ala.Civ.App.1986). This court has held, however, that if the provisions of a property settlement are vague or ambiguous, a judgment interpreting or clarifying the property settlement does not constitute a modification of the property settlement. Williams v. Williams, 591 So.2d 879, 880 (Ala.Civ.App.1991); see also Granger v. Granger, 804 So.2d 217, 219 (Ala.Civ.App.2001); Grayson v. Grayson, 628 So.2d 918 (Ala.Civ.App.1993). Further, a trial court has the inherent power to interpret, clarify, and enforce its orders and judgments. Granger v. Granger, supra; Patterson v. Patterson, 518 So.2d 739, 742 (Ala.Civ.App.1987).”

Dunn v. Dunn, 12 So.3d 704, 709 (Ala.Civ.App.2008).

Although Alabama courts have not decided the specific question whether ordering a party to refinance a mortgage is an impermissible modification of a divorce judgment or whether it can be a means of enforcing a provision in a divorce judgment that requires that party to hold the other party harmless from that debt, the Superior Court of New Jersey addressed this issue in Eaton v. Grau, 368 N.J.Super. 215, 845 A.2d 707 (App.Div.2004). In Eaton, Cynthia Eaton sought an order requiring Justin G. Grau to refinance the mortgage on the parties’ former marital home. The parties had been divorced by a January 31, 2000, judgment that had incorporated the parties’ settlement agreement. According to the court in Eaton:

“The [settlement agreement] ... confirmed the transfer of [Eaton’s] interest in the marital home to [Grau] which had already taken place by quit claim deed recorded on December 2, 1997. At the time of divorce, however, the marital residence was in foreclosure. Thus, the parties incorporated into the [settlement agreement] a provision ... requiring [Grau] to pay the mortgage arrears and bring the loan obligation current. The [settlement agreement] also contained a provision ... addressing [Grau’s] continuing financial obligation as to the mortgage on the former marital residence, requiring [Grau] to hold [Eaton] harmless for obligations arising out of his ownership. Specifically, the provision states:
“ ‘The parties agree that [Eaton] shall have no further liability with respect to the mortgage indebtedness on the [marital home], the repairs thereon or any other obligations whatsoever. [Grau] shall continue to be fully and solely responsible for all future payments of the Note and Mortgage due on the property, together with real estate taxes and all other expenses related thereto. [Grau] agrees to indemnify and hold [Eaton] harmless from any and all farther obligations from ownership of the property including, but not limited to, future claims of creditors, state, federal and municipal taxing authorities and the first mortgagee which are related to the property previously conveyed by [Eaton].’
“[ (Emphasis added.)]
“Significantly, for present purposes, the [settlement agreement] does not require [Grau] to remove [Eaton’s] name from the mortgage. Neither does the [settlement agreement] require [Grau] to refinance or sell the former marital residence .... ”

368 N.J.Super. at 219, 845 A.2d at 709-10.

After the entry of the divorce judgment, Grau paid the arrearage on the mortgage and brought the former marital residence out of foreclosure. In 2001, however, Grau became unable to make the monthly mortgage payments and was served with a complaint for foreclosure, which also named Eaton. Eaton then filed a motion requesting that the trial court order Grau to remove her name from the mortgage on the former marital residence within 30 days by either refinancing it or selling it. The trial court denied Eaton’s motion, and she appealed.

On appeal, the court in Eaton reasoned:

“The issue in this case arises out of the not uncommon divorce situation where, for consideration, ownership of the former marital residence is turned over to one party while both remain on the mortgage and accompanying note and are thus liable for payment thereon. This is because it is not likely that the financial institution that holds the mortgage will readily agree to take the non-owner party’s name off the loan documents. And while it is possible to stipulate in the [settlement agreement] who is to make the monthly payment, that does not absolve the other party from his or her obligation to the lender. Thus, if the party who is supposed to make the monthly payment defaults, not only will the other party be responsible for the amount due — plus late charges— but his or her credit rating could be significantly damaged. One way to address such situations is for the parties to agree in advance that the owner will refinance or take out a mortgage in his or her own name and pay off the existing mortgage on the property within a specified period of time. Of course, if the single party cannot afford or qualify for refinancing, both parties may agree to remain owners until a date certain within which either the mortgage is refinanced or the house is sold.
“Needless to say, neither remedy was provided for in the [settlement agreement] at issue in this case. Instead, the parties settled on a ‘hold harmless’ provision wherein ‘[Grau] agrees to indemnify and hold [Eaton] harmless from any and all further obligations from ownership of the property....’ By forcing [Grau] now to either refinance or sell the property, [Eaton] in effect seeks to expand the ‘hold harmless’ clause to incorporate remedial measures neither bargained nor provided for in the [settlement agreement]. This she cannot do.”

368 N.J.Super. at 221-22, 845 A.2d at 711. Noting that the “hold harmless” provision was part of a property settlement and, thus, was not modifiable, the court in Eaton affirmed the trial court’s judgment denying Eaton’s requested relief. 368 N.J.Super. at 222, 845 A.2d at 711.

Similarly, in the present case, the parties’ divorce judgment provided that the former husband would “be solely liable for the mortgages secured by the [former marital residence], thereby indemnifying and holding the [former w]ife harmless for same.” Although the divorce judgment required the former wife to execute “all documents presented to her by the [former h]usband or his agent relating to any refinancing on the [former marital residence] necessary to fulfill the [former h]usband’s obligations to the [former w]ife,” the judgment did not require the former husband to refinance the mortgages. By requesting that the former husband be required to refinance the mortgages on the former marital residence, the former wife “in effect seeks to expand the ‘hold harmless’ clause to incorporate remedial measures [not] ... provided for in the [divorce judgment].” Eaton, 368 N.J.Super. at 221-22, 845 A.2d at 711. Just like the court in Eaton, we conclude that ordering the former husband to refinance the mortgages on the former marital residence constitutes an impermissible modification to the property-division provisions of the amended divorce judgment.

Based on the foregoing, we reverse the trial court’s judgment and remand the cause for the entry of a judgment consistent with this opinion.

The former husband has filed a motion to strike Exhibits A, B, and C attached to the former wife’s brief and the parts of her brief that argue facts not in the record. That motion is granted.

REVERSED AND REMANDED.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

The parties’ amended divorce judgment of July 28, 2006, provides, in pertinent part:

“The [former hjusband shall be solely liable for the mortgages secured by the [former marital residence], thereby indemnifying and holding the [former w]ife harmless for same. The [former w]ife shall execute all documents presented to her by the [former h]usband or his agent relating to any refinancing on the [former marital residence] necessary to fulfill the [former h]usband’s obligations to the [former w]ife.”

The amended divorce judgment contemplates that the former husband would necessarily refinance the mortgages in order to fulfill his obligations to the former wife. Therefore, the trial court’s judgment of October 6, 2008, merely enforced the amended divorce judgment and did not constitute an impermissible modification of that judgment. Accordingly, I respectfully dissent.


text:
    L.S. v. SHELBY COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080407.
    Court of Civil Appeals of Alabama.
    July 24, 2009.

      Erin C. Bell, Birmingham, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   BRYAN, Judge.

L.S. (“the mother”) appeals from an order of the Shelby Juvenile Court, emanating from a permanency-planning hearing, finding that the mother is prohibited from residing with or having custody of her daughter, K.L.B.P. (“the child”), pursuant to § 15-20-26(c)(4), Ala.Code 1975. In light of this court’s recent decision in D.P. v. Limestone County Department of Human Resources, 28 So.3d 759 (Ala.Civ.App.2009), we hold that the juvenile court’s permanency-planning order is an appeal-able order that will support the mother’s appeal.

The Shelby County Department of Human Resources (“DHR”) first became involved with the mother and the child when it received a telephone call from S.S., a friend of the mother’s, on August 28, 2008. S.S.stated that the mother had left the child in her care and custody but that S.S. could no longer care for the child.

DHR learned that the child, who was born in 1997, had been living with her maternal grandparents in Ohio since May 2007; that, on August 15, 2008, the mother and S.S. drove to Ohio, took physical custody of the child, and brought the child to Alabama; and that the mother left the child under the care and supervision of S.S.in Shelby County.

The mother was convicted of a sex offense against a child under the age of 12 in the state of Illinois in 1987. The record indicates that the mother has never resided with the child due to her status as a sex offender. However, the mother does have legal custody of the child and the right to supervised visitation with the child.

S.S.contacted DHR on August 28, 2008, and stated that she could no longer care for the child because of the mother’s mood swings. The Shelby County Sheriffs Office responded to a pickup order for the child on August 28, 2008, and the child reported to a sheriffs deputy that she thought that S.S. had been using either drugs or alcohol; however, the child had not witnessed S.S. doing so. The child was taken into protective custody on August 28, 2008, and placed in foster care. DHR filed a petition with the juvenile court on August 29, 2008, alleging that the child was in need of care or supervision and that the child was dependent, destitute, and homeless.

DHR’s permanency plan for the child was to place the child with a relative and to transfer custody of the child to that relative. DHR stated in a court report dated November 18, 2008, that the mother had made attempts to place the child with relatives and a friend, but those placements had not been successful. DHR further stated that it would “continue to make efforts to locate relative resources” for the child.

In an order dated January 20, 2009, the juvenile court stated:

“Based upon [§ ] 15 — 20—26(c)(4)[, Ala.Code 1975,] the [c]ourt is of the opinion that [the] mother is prohibited from establishing a residence or other living arrangements with this child and therefore, [the] mother is prohibited from being granted custody herein. [The] [c]ourt finds that the issue of custody to [the] mother is certified as an issue ripe for appeal.”

The juvenile court, also in the January 20, 2009, order, further set the matter for an adjudication hearing to be held on April 28, 2009. The mother filed a notice of appeal on January 29, 2009, stating that her appeal was from a certified question of law.

On appeal, the mother argues that § 15-20-26(c)(4) is in violation of the Constitution of the United States because it creates a “statutory termination of parental rights” that impedes her due-process rights; she further argues that § 15-20-26(c)(4) is unconstitutional in its ex post facto application because it retroactively changes the legal consequences of the sex offense she committed in 1987.

As stated above, this court’s recent decision in D.P. v. Limestone County Department of Human Resources, supra, permits an appeal from an order after a permanency-planning hearing “[i]f the order addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child, whether immediately or in the future ....” 28 So.3d at 764. The order at issue in the present case addresses a “crucial issue” with respect to the mother because § 15-20-26(c)(4) prohibits the mother from residing with her child because of her status as a sex offender. Therefore, because “the order addresses [a] crucial issue[ ] that could result in depriving [the mother] of the fundamental light to the care and custody of ... her child,” 28 So.3d at 764, the mother’s appeal is properly before this court, and “there was no need for the juvenile court to certify the judgment as final ... before we could entertain the [mother]’s appeal.” Id. at 764.

The mother’s appeal is based solely on a constitutional challenge, specifically, that § 15-20-26(c)(4) is unconstitutional in its ex post facto application and because it violates her due-process rights. However, there is nothing in the record on appeal to indicate that the mother raised these constitutional issues before the juvenile court. It is a well-settled rule of appellate procedure that an appellate court will not “consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005) (citing Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 97 (Ala.2003)). Furthermore, “[i]n order for an appellate court to review a constitutional issue, that issue must have been raised by the appellant and presented to and reviewed by the trial court.” Alabama Power Co. v. Turner, 575 So.2d 551, 553 (Ala.1991). See J.K. v. N.J., 23 So.3d 57 (Ala.Civ.App.2009). Because the mother failed to show that the constitutional issues she raises on appeal were “presented to and reviewed by” the juvenile court, the order of the juvenile court is due to be affirmed.

AFFIRMED.

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

      . The record did not indicate where or with whom the child had resided before May 2007.

      . The mother alleges that she and S.S. met the maternal grandparents at the Alabama-Tennessee border to pick up the child.

      . DHR alleged that the mother has been diagnosed with bipolar disorder, and that she had stopped taking her medication; the mother denies that she was ever prescribed medication to treat bipolar disorder.

      .DHR was unable to locate the child’s father, and he made no contact with the child throughout the duration of this proceeding.

      . Section 15-20-26(c)(4), Ala.Code 1975, provides:
      "(c) No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:

      "(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim."


author: PER CURIAM.

text:
    Nellie M. DUNN v. Sharon McCall WILLIAMS and Anthony G. Williams.
    2080190.
    Court of Civil Appeals of Alabama.
    July 24, 2009.

      Mitch Damsky, Birmingham, for appellant.
    Charles N. Reese of Reese & Reese Attorneys, Daleville, for appellees.
   PER CURIAM.

Nellie M. Dunn appeals from a summary judgment entered by the Geneva Circuit Court in favor of Sharon McCall Williams and Anthony G. Williams on her claims arising out of a conveyance of real property. We reverse the trial court’s judgment as to Dunn’s claim seeking a declaration that her conveyance was voidable pursuant to Ala.Code 1975, § 8-9-12, and as to Dunn’s claim of conversion. We affirm as to all other claims.

Background

On August 28, 2007, Dunn sued Sharon and Anthony (Dunn’s daughter and son-in-law) and various fictitiously named defendants. In her complaint, Dunn alleged that she had owned a tract of real property comprising approximately 120 acres of land and containing a dwelling (hereinafter referred to as “the property”) since 1962. Dunn alleged that on May 16, 2007, while she was gravely ill, she had conveyed the property to Sharon and Anthony by warranty deed. According to Dunn’s complaint, after she had recovered from her illness, Sharon and Anthony informed Dunn she would no longer be allowed to live on the property. Dunn alleged that Sharon and Anthony had thereafter driven her to a local police station, where Dunn was dropped off with only a few of her personal items.

In her complaint, Dunn asserted that the conveyance should be invalidated because it had been obtained through undue influence and coercion (count one) and because it had not been supported by material consideration (count two). Dunn also sought to quiet title to the property in herself (count three). Dunn also asserted that Sharon and Anthony had converted items of her personal property to their own use (count four) and had conspired to wrongfully take possession of the property (count five). Finally, Dunn sought a temporary restraining order to enjoin Sharon and Anthony from selling, destroying, or otherwise disposing of any real and personal property made the basis of the action. As an exhibit to her complaint, Dunn attached a copy of the deed she had executed; that deed recited that the convey-anee had been supported by a payment of “$10.00 and other valuable consideration.” Dunn also filed a notice of lis pendens against the property based on the allegations stated in her complaint.

In October 2007, Sharon and Anthony answered the complaint, denying all wrongdoing and averring that, on an unidentified date, they had offered Dunn the opportunity to retrieve her personal property by sending movers to the property but that Dunn had failed to act on their offer. In June 2008, Sharon and Anthony moved for a summary judgment. In support of their summary-judgment motion, they submitted an affidavit from Henry F. Lee III, the attorney who had overseen the closing of a loan transaction involving Sharon, Anthony, Dunn, and the Samson Banking Company; an affidavit from Stephanie W. Chesteen, the notary public who had witnessed Dunn’s signature on the pertinent deed; affidavits from Sharon and Anthony; and transcribed excerpts from Dunn’s deposition. On August 13, 2008, Dunn filed a response in opposition to the summary-judgment motion in which she contended that Ala.Code 1975, § 8-9-12, amounted to authority for deeming the conveyance invalid. In support of her response to the summary-judgment motion, Dunn submitted, among other things, copies of opinions interpreting and applying § 8-9-12 and excerpts from Anthony’s and Sharon’s deposition transcripts that indicated that, in consideration for Dunn’s conveyance of the property to Anthony and Sharon, they had promised Dunn that she could live on the property for as long as she wished and that Dunn would have “no bills” as long as she lived there.

After hearing arguments from counsel, the trial court granted the summary-judgment motion filed by Sharon and Anthony as to the claims asserted in Dunn’s complaint. In addition, the trial court specifically stated:

“The court further finds that [Dunn] has no cause of action under § 8-9-12 ... based upon the evidence set forth in her ‘Notice in Opposition to Motion for Summary Judgment.’ In making this decision, the court relies on the case of Tolver v. Tolver, 585 So.2d 1 (Ala.1991).”

Sharon and Anthony filed a motion to alter or amend the judgment to seek a declaration that the lis pendens that had been filed against the property simultaneously with the complaint had been satisfied. The trial court granted that motion. Dunn timely appealed; the Alabama Supreme Court transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7.

Standard of Review

“ ‘ “We review the trial court’s grant or denial of a summary judgment motion de novo.” Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006) (citing Bookman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present “substantial evidence” of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmov-ant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala.1993).” ’ ”

Harris v. Health Care Auth., 6 So.3d 468, 472 (Ala.2008) (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008)).

Analysis

On appeal, Dunn has not specifically challenged the judgment entered in favor of Sharon and Anthony on her conspiracy claim, her request to quiet title, or her request for a temporary restraining order. We, therefore, need not consider any error as to those claims. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”); see also Lyons v. Vaughan Reg’l Med. Ctr., LLC, 23 So.3d 23 (Ala.2009) (accord). Dunn has, however, specifically challenged the trial court’s judgment as it relates to her claim seeking to void her conveyance and her claim of conversion. We, therefore, confine our analysis to the correctness of the judgment as to those claims.

As a preliminary matter, we first address Sharon and Anthony’s assertion that, because § 8-9-12 was not specifically pleaded in her complaint, Dunn may not now rely on that statute in challenging the trial court’s summary judgment. We disagree. “Under Rule 8, Ala. R. Civ. P., a complaint is sufficient if it puts the defendant on notice of the claims asserted against him or her.” Martin v. Martin, 998 So.2d 1081, 1084 (Ala.Civ.App.2008). Although Dunn did not cite or expressly plead the applicability of § 8-9-12 in her complaint, or specifically allege that Sharon and Anthony had promised to allow her to live on the property after the conveyance, she alleged that the deed was void because she had “received no material consideration from Defendants for the conveyance of said property.” In her response in opposition to the summary-judgment motion, Dunn argued that a promise to allow her to live on the property and to support her was a material part of the consideration for the conveyance but that the alleged promise had not been honored. Moreover, as our supreme court noted in Ex parte Alexander, 806 So.2d 1222, 1225 (Ala.2001), the enactment of § 8-9-12 “has superseded other theories for voiding ... a conveyance to redress the grantor’s dissatisfaction with the consideration” when a promise of lifetime support is involved. Thus, count two of Dunn’s complaint, which asserted a failure of material consideration for the conveyance, constituted a short and plain statement of entitlement to relief under § 8-9-12. See Martin, 998 So.2d at 1084 (plaintiff, who clarified on the day of trial that her cause of action to invalidate a deed for lack of consideration was asserted under § 8-9-12, Ala.Code 1975, had provided adequate notice, pursuant to Rule 8, Ala. R. Civ. P., of her claim to defendants).

Additionally, Dunn clearly stated in her response, filed in opposition to Sharon and Anthony’s summary-judgment motion, that she was proceeding under § 8-9-12, Ala.Code 1975, thereby placing Sharon and Anthony on notice of such claim before the summary-judgment hearing. See Boackle v. Jefferson Mem’l Co., 408 So.2d 518, 520 (Ala.Civ.App.1981) (noting that issues framed by formal pleadings are not controlling on a motion for summary judgment and that a court considering whether to grant such a motion is to consider the issues presented by the parties in then-supporting and opposing submissions). Sharon and Anthony did not move to strike or otherwise oppose Dunn’s allegations. Moreover, Dunn submitted evidence to the trial court in support of her § 8-9-12 claim, and Sharon and Anthony did not move to strike that evidence.

As established in the trial court’s summary-judgment order, the trial court considered Dunn’s § 8-9-12 claim and her supporting evidence at the summary-judgment hearing, along with Dunn’s other claims. We find no indication in the record that Sharon and Anthony ever objected to the trial court’s consideration of that claim or Dunn’s evidence in support of that claim at that time. Because Dunn’s § 8-9-12 theory is arguably subsumed under count two of her complaint, because the trial court properly deemed the § 8-9-12 theory as being before the court for decision, and because Sharon and Anthony failed to challenge that determination, we proceed to consider the merits of Dunn’s challenge to the summary judgment in light of § 8-9-12.

Section 8-9-12 provides:

“Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grantor, except as to bona fide purchasers for value, lienees, mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.”

The deed at issue in this case provided that the conveyance was made in consideration of $10 “and other valuable consideration.” The deed did not recite that Sharon and Anthony were to provide support and care for Dunn as consideration for the conveyance. “However, parol evidence is admissible to show that the actual consideration for the execution of the deed was the promise on the part of the grantee to support and care for the grantor during his or her life.” Martin, 998 So.2d at 1084 (citing Kirkpatrick v. Jones, 585 So.2d 828, 830 (Ala.1991)). As recognized in Kirkpatrick, such parol evidence is deemed admissible “where [it] will not contradict a written statement purporting to set the full consideration.” 585 So.2d at 830.

In opposing Sharon and Anthony’s summary-judgment motion, Dunn submitted excerpts of Anthony’s and Sharon’s deposition transcripts. During his deposition, Anthony testified:

“Q: .Was there a discussion about a purchase price?
“A: I told her we would pay off the mortgage and she could stay there and she would have no bills, that I would pay the power bill.
“Q: And you had agreed to take care of her as long as she was alive—
“A: As long as she wanted to live there.
“Q: —and pay all of the bills?
“A: And pay the bills. Yes, sir.”

Further, Sharon testified at her deposition:

“Q: Now, what were the arrangements between you and your mother with regard to her living after you bought this property?
“A: We told her that she could live there forever. We would take care of the bills and she could stay there as long as she needed to.
“Q: As part of her giving you this property?
“A: That wasn’t the stipulation but that was our agreement.”

As evidenced by the deposition excerpts, Sharon and Anthony admitted that they had represented to Dunn that, in exchange for her conveyance of the property to them, she could live on the property for as long as she wanted and that they would take care of her bills. That evidence brings Dunn’s claim within § 8-9-12. See Martin, 998 So.2d at 1085 (“[A] grantor who conveys his or her property in exchange for the grantee’s promise that he or she will support the grantor for life may annul the conveyance.”).

Sharon and Anthony argue that the parol evidence offered by Dunn is inadmissible because it contradicts the consideration recited in the deed. We disagree. In fact, the language included in the deed expressly acknowledged that “other valuable consideration” was contemplated in exchange for the conveyance of the property in addition to the $10 specifically stated. Thus, because the parol evidence offered by Dunn did not contradict the consideration recited in the deed, that parol evidence was admissible in support of her theory that the conveyance should be declared void under § 8-9-12. Martin, 998 So.2d at 1085 (recognizing that parol evidence not inconsistent with the deed was properly considered at trial to set aside a conveyance pursuant to § 8-9-12, in order to determine grantor’s purpose and motivation in conveying her property); Kirkpatrick, 585 So.2d at 830 (accord).

Sharon and Anthony also argue that any parol evidence in the record indicating that an agreement to provide support was a material part of the consideration for the conveyance did not rise to the level of “clear, satisfactory, and convincing” evidence. See Entrekin v. Entrekin, 388 So.2d 931, 932 (Ala.1980) (reversing a judgment entered after an ore tenus proceeding when there was “no direct evidence of a support agreement”). Again, we must disagree. Dunn submitted testimony from Sharon and Anthony in which they admitted that, in addition to having paid off Dunn’s mortgage indebtedness, they had offered to allow Dunn to live on the property for as long as she wanted and to pay her bills in exchange for the conveyance. Based upon that testimony, it cannot be said that there is no genuine issue of material fact concerning whether a promise to allow Dunn to live on the property was made and that that promise formed part of the inducement for Dunn’s conveyance of the property. As a result, we conclude that Dunn’s evidence rises to the level necessary to sustain her § 8-9-12 claim at the summary-judgment level. That section is in place “to protect ‘the aged, weak, or afflicted [who] had improvidently executed conveyances upon the promise of support.’” Stewart v. Dickerson, 455 So.2d 809, 810 (Ala.1984) (quoting Heartsill v. Thompson, 245 Ala. 215, 218, 16 So.2d 507, 509 (1944)). Whether any promise of lifetime support made to Dunn by Sharon and Anthony was material to Dunn’s conveyance of the property is to be determined by the trier of fact.

We stress that this appeal is before us from a summary judgment. Dunn’s burden was only to rebut the showing made by Sharon and Anthony, ie., to establish that genuine issues of material fact actually existed such that Sharon and Anthony were not entitled to judgment as a matter of law. See Rule 56, Ala. R. Civ. P. We conclude that Dunn met that burden as to her theory invoking § 8-9-12, and we reverse the summary judgment entered in favor of Sharon and Anthony on count two.

Dunn’s Conversion Claim

Dunn also challenges the summary judgment as to her claim of conversion.

“To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse of another’s property. Conversion requires ‘a wrongful exercise of dominion over property in exclusion or defiance of a plaintiffs rights, where said plaintiff has ... the immediate right to possession.’ [Empiregas, Inc. of Gadsden] v. Geary, 431 So.2d 1258, 1260 (Ala.1983).”

Covington v. Exxon Co., U.S.A., 551 So.2d 935, 938 (Ala.1989).

In her complaint, Dunn alleged that, after she had executed the deed conveying the property to Sharon and Anthony, Sharon and Anthony had forced Dunn to leave the property without her personal property, including a Honda Civic automobile, jewelry, guns, clothing, furniture for a three-bedroom house, keepsakes and collectibles, and other personal effects. Dunn asserted that Sharon and Anthony had subsequently exercised dominion and control over her personal property and that, at the time she filed her complaint, she no longer knew the whereabouts of her belongings.

The parties submitted scant evidence regarding the conversion claim in connection with the summary-judgment motion. Sharon and Anthony admitted that, on some unidentified date after Dunn had been removed from the property (which presumably occurred on approximately July 1, 2007), they had notified Dunn that, at her own expense, Dunn could send movers to the property to retrieve her personal property. A reasonable inference from that evidence is that Sharon and Anthony acknowledged that at one time they, in fact, had possession of personal property belonging to Dunn. Dunn acknowledged receipt of that offer, although she did not send movers to retrieve her belongings.

The evidence also established that, on some unidentified date, Sharon and Anthony had shipped a portion, i.e., five or six boxes, of Dunn’s personal effects to the home of Dunn’s sister, Inez. According to Dunn, she was living with her son at that time; in her deposition, Dunn testified that she did not know the contents of the boxes at Inez’s house and that she did not know the location of the remainder of her property.

As recognized in 90 C.J.S. Trover and Conversion, § 3 (2002):

“The essence of conversion is a wrongful deprivation of the owner’s property, whether temporarily or permanently.
“... The essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner, with a temporary deprivation being sufficient.
“It is of no importance what subsequent application is made of the converted property or that the defendant derived no benefit from it.”

(Footnotes omitted.)

In White v. Drivas, 954 So.2d 1119 (Ala.Civ.App.2006), this court addressed the tort of conversion at length, stating:

“ ‘[A] conversion is said to consist “‘either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or its destruction, or in exercising of dominion over it, in exclusion or defiance of the plaintiffs right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.’ ” Clardy v. Capital City Asphalt Co., 477 So.2d 350 (Ala.1985), citing Geneva Gin & Storage Co. v. Rawls, 240 Ala. 320, 322, 199 So. 734 (1940) (quoting Conner & Johnson v. Allen & Reynolds, 33 Ala. 515, 517 (1859)). But “[t]he bare possession of property without some wrongful act in the acquisition of possession, or its detention, and without illegal assumption of ownership or illegal user or misuser, is not conversion.” Clardy, 477 So.2d at 352, citing Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am. St. Rep. 789 (1890).’
“Martin v. Luckie & Forney, Inc., 549 So.2d 18, 19 (Ala.1989)....
“ ‘ “Four different actions may constitute conversion: a wrongful taking, a wrongful detention, an illegal assumption of ownership, or an illegal use or misuse. National Surety Co[rp]. v. Applied Systems, Inc., 418 So.2d 847 (Ala.1982).”
“‘Tyler v. Equitable Life Assurance Society of the United States, 512 So.2d 55, 57 (Ala.1987).’
“Jones v. DCH Health Care Auth., 621 So.2d 1322, 1323 (Ala.1993).... See also SouthTrust Bank v. Donely, 925 So.2d 934, 939-40 (Ala.2005).
“ ‘Conversions may be divided into four classes, (1) by a wrongful taking, (2) by an illegal assumption, (3) by an illegal user or misuser, (4) by a wrong detention. In the first three classes, there is no necessity for a demand and refusal. In the latter class, a demand and refusal is required as the detention of a chattel furnishes no evidence of a disposition to convert to the holder’s own use, or to divest the true owner of his property.’
“Scott Paper Co. v. Novay Cherry Barge Serv., Inc., 48 Ala.App. 368, 371, 265 So.2d 150, 153 (Civ.App.1972). See also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 15, at 99 (5th ed. 1984) (‘Where there has been no wrongful taking or disposal of the goods, and the defendant has merely come rightfully into possession and then refused to surrender them, demand and refusal are necessary to the existence of [conversion].’ (footnote omitted)).
“1 “There is no doubt that an absolute or unqualified refusal to surrender possession of personal property to one entitled thereto constitutes a conversion. A limited or qualified refusal to surrender the property is not per se a conversion. Bolling v. Kirby, 90 Ala. 215, 7 So. 914 [ (1890) ]. But the refusal must be a reasonable qualification or requirement and stated in good faith.” ’
“Gabrielson v. Healthcorp of Eufaula, Inc., 628 So.2d 411, 414 (Ala.1993) (quoting Scott Paper Co., 48 Ala.App. at 370, 265 So.2d at 153). “Whether or not the refusal to surrender possession of personal property is based upon a reasonable qualification or requirement is a question for the jury or ... the trier of the facts.’ Scott Paper Co., 48 Ala.App. at 371-72, 265 So.2d at 153.”

954 So.2d at 1123-24 (emphasis omitted).

In arguing that they were entitled to a summary judgment on Dunn’s conversion claim, Sharon and Anthony asserted that Dunn had failed to make a formal demand for her property. However,

“[w]here there has been a wrongful conversion of property, demand for surrender is irrelevant.... A demand is only necessary in those cases ... where property has come into possession of the defendant by the consent of the plaintiff, and the plaintiff relies on the wrongful detention of the property by the defendant to sustain his action.”

Kemp’s Wrecker Serv. v. Grassland Sod Co., 404 So.2d 348, 352 (Ala.Civ.App.1981).

Although Dunn conveyed her real property to Sharon and Anthony, no evidence was offered to indicate that Dunn also thereby conveyed her personal property to Sharon and Anthony. Additionally, Dunn asserted that she had been forced to leave the property by Sharon and Anthony and that she had been allowed to take only a few personal items with her. The evidence presented by Sharon and Anthony failed to negate any genuine issue of material fact as to Dunn’s allegations. Thus, whether Sharon and Anthony originally came into possession of Dunn’s personal property with Dunn’s consent remains a disputed issue of fact. Even if Sharon and Anthony could properly be said to have come into possession of Dunn’s belongings with Dunn’s consent, three of the four categories of conversion recognized under Alabama law require no demand for return of possession. See White, supra. Thus, Dunn’s failure to demand the return of her property before filing her complaint in this action was an insufficient basis upon which to render a summary judgment on Dunn’s conversion claim.

Further, although Sharon and Anthony argued that a portion of Dunn’s personal property had been shipped to the home of Dunn’s sister, Inez, the record does not establish that Dunn acquiesced in that action. Relinquishing control of Dunn’s belongings to a third party is not equivalent to returning those belongings to Dunn. Moreover, Sharon and Anthony did not represent that all Dunn’s belongings had been shipped to Inez’s house, and they offered no explanation for the whereabouts of the remainder of Dunn’s personal property.

Additionally, Sharon and Anthony argue that they offered Dunn the opportunity to retrieve her belongings by offering to allow her to send movers to the property on a designated date. However, as previously noted, Sharon and Anthony failed to negate Dunn’s allegation that she had been forced from the property without her belongings. Sharon and Anthony also failed to establish the date of their offer to allow Dunn to retrieve her belongings. Thus, Dunn’s contention that Sharon and Anthony wrongfully interfered with Dunn’s ownership and possessory rights in her personal property for some period remains at issue. At this stage of the litigation, we conclude that Sharon and Anthony simply did not meet their burden of proof as to their summary-judgment motion on the conversion claim.

We reverse the summary judgment as to Dunn’s claim that the conveyance of the property is due to be invalidated pursuant to Ala.Code 1975, § 8-9-12, and as to Dunn’s claim of conversion. We affirm the summary judgment as to all other claims asserted in Dunn’s complaint. See Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 425 n. 2 (Ala.1989). We remand this cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the judges concur.

      . Sharon and Anthony noted that Dunn had been offered the opportunity to retrieve her personal property with the exception of an automobile that was referenced in the complaint as Dunn's property but that Sharon and Anthony contended had actually been sold to Anthony.

      . Dunn also submitted an unverified written statement, ostensibly given by her physician, Dr. O.D. Mitchum, indicating that Dunn “was unable to make rational decisions between the dates of 05-01-2007 to 06-30-2007.”

      . But cf. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984) (indicating that affirmative defenses that are required to be set forth in a responsive pleading under Rule 8(c), Ala. R. Civ. P., may not properly be asserted for the first time in a post-answer summary-judgment motion).

      . Dunn executed the deed on May 16, 2007. According to Sharon, Dunn was released from Wiregrass Nursing Home, where she had undergone rehabilitation following surgery, on July 1, 2007; Dunn's complaint indicates that she was forced from the property on that same day. Dunn filed her complaint on August 28, 2007.

        . The record indicates that "an arrangement was made between Inez and Sharon for [Dunn’s] personal property” to be shipped to Inez’s house.

      . It cannot be seriously contended that all of the items listed in Dunn's complaint are accounted for in the five or six boxes that Sharon and Anthony shipped to Inez's house. Dunn's complaint alleged that the following personal items, among others, had been converted by Sharon and Anthony: living-room, dining-room, kitchen, and bedroom furniture; an automobile; and various guns. We also note that Sharon and Anthony expressly refused to return the automobile to Dunn, claiming that it had been sold to Anthony.