author: STUART, Chief Justice.

text:
    Margaret MCGIMSEY et al. v. Lynda Jeanette GRAY, individually and as personal representative of the Estate of Thomas Leonard Pitts, deceased
    Lynda Jeanette Gray, individually and as personal representative of the Estate of Thomas Leonard Pitts, deceased v. Margaret McGimsey et al.
    1161016 1161055
    Supreme Court of Alabama.
    March 30, 2018
    Thad A. Davis of The Law Offices of Davis & Davis, LLC, Birmingham; and Terri D. McClung, Vestavia Hills, for appellants/cross-appellees Margaret McGimsey et al.
    Carl E. Chamblee, Sr., Warrior; and Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for appellee/cross-appellant Lynda Jeanette Gray, individually and as personal representative of the estate of Thomas Leonard Pitts, deceased.
   STUART, Chief Justice.

In appeal no. 1161016, Margaret McGimsey, Cathy Cramer, Barbara McCollum, and Marilyn Busch (hereinafter referred to collectively as "the nieces") appeal from a summary judgment entered by the Jefferson Circuit Court in favor of Lynda Jeanette Gray, individually and as the personal representative of the estate of Thomas Leonard Pitts, deceased, in a will contest they initiated following Pitts's death; the nieces also challenge the trial court's order directing them to reimburse Gray $8,393 for court costs and certain litigation expenses. In appeal no. 1161055, Gray cross-appeals, arguing that the trial court exceeded its discretion by not also entering an award of attorney fees in her favor. We reverse the summary judgment and award of costs made in favor of Gray in appeal no. 1161016 and dismiss appeal no. 1161055.

I.

The nieces' maternal aunt, Margaret Harris Pitts, was married to Pitts until her death in 2004. Margaret and Pitts never had any children; however, they enjoyed close relationships with the nieces, and Pitts and the nieces continued their relationship after Margaret's death. Gray is the daughter of Pitts's half sister and his only living heir. Although she was raised in Texas and spent most of her life there, like the nieces, she maintained a close relationship with Pitts, visiting him at his home in Birmingham at least annually.

In 2007, Gray moved to Alabama to live with Pitts. Gray asserts that she made the move to help care for Pitts; the nieces assert that the move was motivated by Gray's financial problems. Gray initially maintained a part-time job after moving to Alabama; however, when Pitts was hospitalized following a fall in 2009, she stopped working to spend more time helping with his care. The parties all agree that Pitts's health deteriorated following the 2009 fall and that, as a result, he became more dependent on others, particularly Gray.

In August 2010, Pitts was hospitalized as a result of heart and kidney problems. After several weeks in the hospital, Pitts's physician recommended that he be provided with hospice services. Hospice records detailing an October 11, 2010, meeting with Pitts and Gray indicate that unspecified estate issues came up during that meeting, and hospice services subsequently gave Pitts's name and information to Calvin Howard, an attorney who regularly provided pro bono legal services to hospice patients. In November 2010, Howard telephoned Pitts, and, during that initial telephone call and again at a meeting at Pitts's home, Pitts expressed a desire to modify his existing will. Upon examining Pitts's will and codicils, Howard informed Pitts that it would be simpler to draft an entirely new will, and they discussed Pitts's desires in that regard. Howard described this initial meeting at Pitts's house as follows in an affidavit submitted to the trial court:

"Mr. Pitts brought out a prior will and he instructed that the will be changed. I advised him that it would be easier to prepare another will. No one else was present in the room when Mr. Pitts and I were discussing how he wanted his will prepared. He was the sole historian for all information that I obtained in order to prepare his new will; and I drew up the new will exactly as instructed by Mr. Pitts. ... During this first meeting with Mr. Pitts, he was clear with his instructions for the contents of his will, and he was clear with his intent. He knew who his family members were and who he wanted to leave his assets to upon his death. He was of sound mind on this occasion, and was not under the influence of anyone to the best of my judgment and knowledge and belief. He was the only one that was involved in the preparation of his will."

Howard returned to Pitts's home on November 23, 2010, with the will he had prepared at Pitts's direction, which left the entirety of Pitts's estate to Gray. Howard asserts that he privately reviewed and discussed the will with Pitts and that, after Pitts expressed his satisfaction with the will, neighbors were summoned to serve as witnesses, and Pitts executed the document (hereinafter referred to as "the November 2010 will"). Howard described this meeting as follows in his affidavit:

"Mr. Pitts conversed intelligently, freely, and rationally (normally) at all times, and I was confidently satisfied that he was of sound mind and disposing memory on this occasion. He knew what documents he was signing. He knew what his property consisted of and how he wanted it disposed of, and knew who he wanted his disposing beneficiaries to be in his will. It was my judgment and my opinion and belief based on my years of experience that Mr. Pitts was competent to execute the November 23, 2010 last will and testament."

Howard further swore that, although Gray was in the house during both of his meetings with Pitts, she was not part of their conversations and "she was in no position to hear any matter or conversation."

On August 13, 2012, Pitts died. On October 25, 2012, Gray submitted Pitts's November 2010 will to the Jefferson Probate Court, which appointed her the personal representative of Pitts's estate that same day. On December 17, 2012, McGimsey, Cramer, and McCollum initiated the instant will contest pursuant to § 43-8-199, Ala. Code 1975, arguing both that Pitts was mentally incompetent at the time he executed the November 2010 will and that the November 2010 will was the product of undue influence exercised by Gray over him. An acrimonious period of discovery followed, during which both sides sought to impose sanctions upon the other at various times. Those discovery disputes required multiple interventions by the trial court and, along with other issues in the probate court and some health problems that affected the parties and counsel, combined to delay the case for several years.

On March 17, 2017, Gray moved the trial court to enter a summary judgment in her favor, arguing that there were no genuine issues of material fact concerning the nieces' claims; Gray also repeated a previous request that the trial court enter an award in her favor pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala. Code 1975 ("the ALAA"). On April 5, 2017, the nieces filed their response accompanied by evidence that they argued established the existence of factual issues precluding a summary judgment. In light of that evidence, they also argued that an award of attorney fees pursuant to the ALAA was unwarranted.

On April 17, 2017, the trial court entered an order granting Gray's motion for a summary judgment. With regard to the nieces' claim that Pitts was mentally incompetent at the time he executed the November 2010 will, the trial court held that the nieces had "failed to meet their burden of demonstrating Mr. Pitts's lack of testamentary capacity." The trial court similarly held that the nieces had failed to put forth substantial evidence of their undue-influence claim, explaining:

"[O]ne of the prerequisites for a presumption of undue influence is 'undue activity by the beneficiary in procuring the execution of the will.'
Pirtle v. Tucker, 960 So.2d 620, 628 (Ala. 2006), citing Hayes v. Apperson, 826 So.2d 798, 802 (Ala. 2002). As the Supreme Court later explained in McGee v. McGee, 91 So.3d 659, 664 (Ala. 2012) :
" 'Assuming, arguendo, that the proponent of a will is a favored beneficiary, it still must be shown that there was "active interference in procuring the execution of the will." Clifton v. Clifton, 529 So.2d [980,] 984 [ (Ala. 1988) ]. "This activity must be in procuring the execution of the will and more than activity and interest referable to a compliance with or obedience to the voluntary and untrammeled directions of the testat[rix]." Johnson v. Howard, 279 Ala. 16, 21, 181 So.2d 85, 90 (1965).'
"The court again concludes that the [nieces] have failed to present sufficient evidence to establish this required element of their claim. Defendant Gray was involved in none of the discussions between attorney Howard and Mr. Pitts. She was at Mr. Pitts's residence during attorney Howard's two visits but in another room. Her only contact with the attorney was to greet him at the front door when he arrived, but there is no evidence of any communication between the two other than polite small talk before attorney Howard met privately with Mr. Pitts. The testimony of both defendant Gray and attorney Howard reveals no basis to conclude that Gray exerted any undue influence on Mr. Pitts."

The trial court further stated that costs were "taxed as paid."

Gray then moved the trial court to award her costs and attorney fees in the amount of $136,944 pursuant to § 43-8-196, Ala. Code 1975, which provides, in part, that "[t]he costs of any [will] contest under the provisions of this article must be paid by the party contesting if he fails." The nieces opposed the request, arguing, among other things, that § 43-8-196 authorized the award of "costs," not attorney fees. The nieces also moved the trial court to alter, amend, or vacate its summary judgment in favor of Gray. Following a hearing at which the trial court indicated that it would not award attorney fees, Gray submitted a revised motion seeking the reimbursement of various court costs and litigation expenses. On August 1, 2017, the trial court entered an order awarding Gray $8,393 for litigation expenses and court costs, as well as a separate order denying the nieces' motion to alter, amend, or vacate.

On August 11, 2017, the nieces filed their notice of appeal, challenging both the summary judgment entered against them and the award of costs made to Gray. On August 24, 2017, Gray filed a cross-appeal, arguing that the nieces' will contest was frivolous and that she was accordingly entitled to an award of attorney fees.

II.

We first consider the nieces' argument that the trial court erred by entering a summary judgment in favor of Gray on their undue-influence claim. In Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala. 2005), this Court described its standard for reviewing a summary judgment as follows:

"This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala. 2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce 'substantial evidence' creating a genuine issue of material fact. Section 12-21-12, Ala. Code 1975; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). '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 Fla., 547 So.2d 870, 871 (Ala. 1989)."

In Pirtle v. Tucker, 960 So.2d 620, 622 (Ala. 2006), we confirmed that "[w]e apply that same standard in reviewing a summary judgment entered in a will contest." Thus, in this case, we must determine whether substantial evidence exists to support each of the following elements of the nieces' undue-influence claim:

"(1) that a confidential relationship existed between a favored beneficiary and the testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) that there was undue activity on the part of the dominant party in procuring the execution of the will."

Clifton v. Clifton, 529 So.2d 980, 983 (Ala. 1988).

With regard to the first element, the record contains evidence indicating that Gray lived with Pitts from 2007 until his death in 2012 and that she frequently attended medical appointments with Pitts during that time and that Gray assisted Pitts with his household affairs following his 2009 fall and hospitalization, writing checks and paying bills on his behalf and otherwise acting as his agent pursuant to a durable power of attorney she held. In support of their argument that this evidence constitutes substantial evidence of a confidential relationship between Gray and Pitts, the nieces cite Allen v. Sconyers, 669 So.2d 113, 117 (Ala. 1995) ("A confidential relationship arises when one comes to rely upon and trust another in one's important affairs."), and Bolan v. Bolan, 611 So.2d 1051, 1056 (Ala. 1993) (concluding that "there can be no doubt that a confidential relationship existed" between a favored beneficiary and the testator where they were together daily for a six-year period preceding the testator's death and the favored beneficiary cooked for and attended to the testator's affairs during that time). The nieces also argue that Gray is indeed a favored beneficiary, that is, "[o]ne who, in the circumstances of the particular case, has been favored over others having equal claim to the testator's bounty," Cook v. Morton, 241 Ala. 188, 192, 1 So.2d 890, 892 (1941), inasmuch as the November 2010 will left Pitts's entire estate to Gray, notwithstanding the undisputed evidence indicating that the nieces also had close relationships with Pitts. See also Morrow v. Helms, 873 So.2d 1151, 1153 (Ala. Civ. App. 2003) (rejecting as "not grounded in Alabama law" the argument that will contestants did not have equal claim to testator's bounty because they were related to testator by marriage instead of blood and stating that " '[t]he "equal claim" of others refers not to the laws of descent and distribution but to the facts of the particular case.' " (quoting Clifton v. Clifton, 529 So.2d at 983 ) ). We agree that the nieces submitted substantial evidence in support of this first element.

The next element that must be proven in an undue-influence claim is that the influence of the favored beneficiary was dominant and controlling in her relationship with the testator. "This Court has recognized that whether 'the beneficiary was the dominant party in the relationship is usually a question of fact for the jury, and the jury may review the often circumstantial evidence as to whether there were controlling influences over the testator's behavior.' " Pirtle, 960 So.2d at 631 (quoting Allen, 669 So.2d at 117 ). As evidence indicating that Gray was the dominant party in her relationship with Pitts, the nieces rely on much of the same evidence they used to establish that Gray had a confidential relationship with Pitts-that she lived with him, assisted with his personal care, and was involved in managing his household and medical affairs-while also emphasizing his poor health in his later years, which, they argue, made Pitts especially susceptible to Gray's control. The nieces have also cited cases in which facts similar to those in this case have been held to create a factual issue regarding a beneficiary's alleged dominance and control. See, e.g., Pirtle, 960 So.2d at 630 (concluding that evidence showing that the testator was dependent upon the favored beneficiary for transportation and meals, that the favored beneficiary helped the testator pay his bills, and that the favored beneficiary accompanied the testator into doctors' examination rooms and cared for him following hospitalization was sufficient to create a genuine issue of material fact as to whether favored beneficiary had a dominant and controlling influence over testator), and Hayes v. Apperson, 826 So.2d 798, 804 (Ala. 2002) (evidence indicating that favored beneficiary handled testator's banking and household affairs and held a power of attorney for the testator, along with evidence of testator's weakness and poor health, was sufficient to indicate that favored beneficiary was dominant and controlling in relationship). The nieces have submitted sufficient evidence to establish a genuine issue of material fact as to whether Gray had a dominant and controlling influence over Pitts.

The final element of an undue-influence claim is whether there was undue activity by the beneficiary in procuring the execution of the will. In fact, this was the only element the trial court addressed in its order entering a summary judgment in favor of Gray, because the trial court's conclusion that the nieces had failed to submit substantial evidence of this element obviated the need to consider the other elements. In reaching this conclusion, the trial court emphasized that Gray did not appear to have been involved in Pitts's discussions with Howard about drafting a new will, stating that "[h]er only contact with the attorney was to greet him at the front door when he arrived, but there is no evidence of any communication between the two other than polite small talk before attorney Howard met privately with Mr. Pitts." The nieces argue that, even if Gray's direct involvement with Howard was so limited, there was still substantial evidence of undue activity on the part of Gray. We agree.

This Court has noted that " 'it is next to impossible to produce direct evidence of the exercise of undue influence over another person. Frequently the best evidence which can be offered ... is circumstantial, tending only to support inferences which can be drawn therefrom.' " Ex parte Henderson, 732 So.2d 295, 299 (Ala. 1999) (quoting Smith v. Moore, 278 Ala. 173, 177, 176 So.2d 868, 871 (1965) ). In Hayes, 826 So.2d at 803, this Court described some of the circumstances evincing undue activity in the procurement or execution of a will as being those where a beneficiary

" '[is] active in and about the execution and preparation of said will, such as the initiation of the proceedings for the preparation of the will, or participation in such preparation, employing the draftsman, selecting the witness, excluding persons from the testat[or] at or about the time of the execution of the will, concealing the making of the will after it was made, and the like ....' "

(Quoting Reed v. Shipp, 293 Ala. 632, 636, 308 So.2d 705, 708 (1975).) As indicated, however, the list is not meant to be exclusive, and this Court has held other circumstances to be relevant to the third element of the undue-influence test as well. See, e.g., Allen, 669 So.2d at 117 (considering a "radical deviation" from the bequests made in a prior will). In sum, it is not the absence or presence of any one factor-such as the favored beneficiary's direct involvement with the attorney drafting the challenged will or her presence at the meetings where that will is discussed or executed-that determines whether there was undue activity by the favored beneficiary in procuring the execution of the will; rather, "each fact should be considered in the context of the entire situation and in light of the other two criteria for determining undue influence." Crump v. Moss, 517 So.2d 609, 613 (Ala. 1987). See also Rabon v. Rabon, 360 So.2d 971, 972 (Ala. 1978) ("A testator can be coerced into making his will by one who remains unseen during its execution.").

To support their assertion that Gray was actively involved in procuring the November 2010 will, the nieces first point to evidence that they argue establishes that Gray was involved in Pitts's estate planning at approximately the same time the November 2010 will was executed-primarily, a draft of a "third codicil" Gray acknowledged typing at Pitts's direction. This draft, which was never executed, is dated 2010 and maintains the same disposition of property as the December 2006 codicil to Pitts's previous will. In a deposition, Gray acknowledged that handwritten notes in the margins of the draft reading "new needed changes" and "not sure how to word this" were in her handwriting, and she explained that the draft was written "because we needed the changes from the will that Wilkens wrote." One of the nieces, Busch, also has stated in an interrogatory response that she was visiting Pitts at the hospital in 2010 when Gray "came to his hospital room and told him she had been to the bank to get all of his legal papers from [a] safe deposit box." Busch further stated that Gray then explained that "they had to go through some things privately."

The nieces also note that Gray has given contradictory testimony regarding the process by which Howard was retained to draft a new will for Pitts. In an affidavit, Gray described Howard's hiring as follows:

"[Pitts] told me that he asked a hospice nurse by the name of Vicki Allums if she knew someone who could prepare a will for him. Vicki gave him the name of Calvin Howard. I was not present when this discussion took place[;] it was between Vicki and [Pitts]. I did not know Calvin Howard nor did I call him to the house to see [Pitts]. I later learned that [Pitts] called Calvin Howard to the home. I was never present at any meeting with Calvin Howard and [Pitts]."

However, a hospice record indicates that both Pitts and Gray were present at the October 2010 meeting with a hospice representative at which estate issues were raised, leading the hospice service to refer Howard to Pitts. During her deposition, Gray acknowledged that, "if [the hospice worker] said I was there, I must have been there or she wouldn't have noted that." Gray also acknowledged during that deposition that, although she was not a participant in the meetings between Howard and Pitts, she did help to arrange the second meeting at which the November 2010 will was executed by visiting the neighbors Pitts had selected as witnesses and making sure the chosen date was convenient for them.

Finally, although Gray and Howard both submitted affidavits stating that Gray was not in the dining room either time Howard met there with Pitts, with Howard even going so far as to state that "[i]t was apparent to me also that she was in no position to hear any matter or conversation between Mr. Pitts and myself," the nieces note that it is undisputed that Gray was in the house at the time, and they argue that they submitted evidence from which a jury could reasonably conclude that she was in a position to monitor Pitts's conversations with Howard even if she was not in the dining room. In her affidavit, Busch stated:

"[Gray] claims that she was not in the dining room when Calvin Howard and [Pitts] initially met regarding changing his will or when he returned to execute the will with [Pitts]. As [Gray] has stated, the dining room adjoins the living room, but there is no wall between them. The dining room also adjoins the kitchen with a door between them. In my experience, conversations in the dining room can easily be heard in both the living room and the kitchen, even if the kitchen door is shut. It is important to note here that [Pitts] was deaf in one ear, and that in his final years, you had to talk to him very loudly. The other room in the living area of the house is the den, which adjoins the kitchen. Based on my own observations, I believe it's probable that dining room conversations with [Pitts] in his later years could be heard in the den."

Busch further stated in that affidavit that, although Pitts had told her that he was leaving his house to Gray, he never mentioned that he was executing a new will, and she learned of the November 2010 will only after his death.

Thus, the nieces have identified evidence indicating (1) that Gray assisted Pitts in an initial attempt to revise his existing will sometime in 2010; (2) that Gray gave conflicting accounts regarding her presence in Pitts's meeting with hospice services that led to Howard contacting Pitts; (3) that Gray helped with the scheduling of the meeting at which the November 2010 will was executed and arranged for the witnesses to be at that meeting; (4) that Gray was in the house both times Howard met with Pitts; and (5) that the nieces were not told about the November 2010 will when it was executed. This evidence is sufficient to establish a genuine issue of material fact with regard to whether there was undue activity on Gray's part in procuring the execution of the November 2010 will. Inasmuch as the nieces have put forth substantial evidence of all three elements of an undue-influence claim, the trial court erred by entering a summary judgment in favor of Gray on that claim, and that judgment is due to be reversed. Moreover, inasmuch as § 43-8-196 provides that a will contestant is liable for the costs of the contest only if the contest "fails," the trial court's judgment is also reversed to the extent it ordered the nieces to reimburse Gray $8,393.

III.

Gray has also filed a cross-appeal, no. 1161055, arguing that the trial court exceeded its discretion by not entering an award of attorney fees in her favor inasmuch as, she alleges, the nieces' will contest was frivolous and without substantial justification. However, because we are reversing the summary judgment entered against the nieces on their undue-influence claim and this cause is being remanded to the trial court for further proceedings, Gray's arguments in this regard are premature, and her cross-appeal is accordingly dismissed.

1161016-REVERSED AND REMANDED.

1161055-APPEAL DISMISSED.

Bolin, Parker, Shaw, Main, Wise, Bryan, and Mendheim, JJ., concur.

Sellers, J., dissents.

      Pitts had executed a will on November 3, 2000, which he had modified by codicils executed on February 27, 2001, and December 28, 2006. Pitts's November 2000 will provided generally that Gray would receive 60% of the property in Pitts's estate if Pitts outlived his wife Margaret, while McGimsey, Cramer, and McCollum would each receive 2.5%, and the rest would go to other individuals and charities. The December 2006 codicil modified Pitts's bequests so as to leave 40% of the property in his estate to Gray, and 10% to each of the nieces.

      Subsequently, Busch was added as a plaintiff to the action.

      The nieces do not argue on appeal that the trial court erred by entering a summary judgment in favor of Gray on their claim that Pitts was mentally incompetent at the time he executed the November 2010 will.

      Pitts's earlier will had been prepared by an attorney named Kathrine Wilburn; this appears to be the will Gray is referring to as the "will that Wilkens wrote."

      It is accordingly unnecessary for us to consider the nieces' argument that the trial court erred by including certain litigation expenses incurred by Gray in its calculation of "costs" as that term is used in § 43-8-196.


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    SCI ALABAMA FUNERAL SERVICES, LLC, d/b/a Elmwood Cemetery and Mausoleum, et al. v. Johnnie HINTON
    1161107
    Supreme Court of Alabama.
    March 30, 2018
    William H. Brooks, William H. Morrow, and Jonathan R. Little of Lightfoot, Franklin & White, LLC, Birmingham, for appellants.
    J. Brooks Leach of Frank S. Buck, P.C., Birmingham, for appellee.
   BRYAN, Justice.

SCI Alabama Funeral Services, LLC, d/b/a Elmwood Cemetery and Mausoleum ("SCI"); Service Corporation International; SCI Funeral Services, LLC; Elmwood Cemetery Co.; Phyllis Pesseackey; and Jonathan Wheatley (hereinafter referred to collectively as "the defendants") appeal from an order denying their motion to compel arbitration. The circuit court denied the motion to compel because it concluded that the relevant arbitration provision is unconscionable and thus unenforceable. We conclude that the arbitration provision is not unconscionable, and we reverse and remand.

In 2004, Johnnie Hinton ("Johnnie") signed a contract with SCI to purchase the interment rights to two burial spaces in Elmwood Cemetery. The contract contains an arbitration provision stating that "any claim" that Johnnie "may have" against SCI must be resolved by arbitration. The arbitration provision further provides that it

"also applies to any claim or dispute between or among the seller, you as the purchaser, any person who claims to be a third party beneficiary of this agreement, any of the seller's employees or agents, any of the seller's parent, subsidiary, or affiliate corporations, and any of the employees or agents of those parent, subsidiary or affiliate corporations."

In August 2016, Johnnie's husband, Nathaniel Hinton, passed away. Johnnie began to make arrangements to have Nathaniel buried in one of the two burial spaces to which she had acquired interment rights in 2004. SCI then informed Johnnie that someone else had mistakenly been buried in Nathaniel's space. According to Johnnie's complaint, the space she acquired for Nathaniel is next to the space where her father is buried. At Johnnie's request, SCI disinterred the deceased who was buried in the space Johnnie had acquired and buried him elsewhere so that Nathaniel could be buried in the space; Nathaniel was subsequently buried there.

In September 2016, Johnnie sued SCI and the other defendants, alleging breach of contract and several other claims. Johnnie alleged that the corporate defendants were either owners, subsidiaries, or affiliates of each other and that the noncorporate defendants were employees at Elmwood Cemetery.

The defendants moved to compel arbitration, citing the arbitration provision in the contract. Johnnie argued that the arbitration provision is unenforceable because, she said, the contract does not evidence a transaction affecting interstate commerce and the arbitration provision is unconscionable. The circuit court denied the motion to compel, concluding that the arbitration provision is unconscionable. The circuit court based its denial of the motion to compel on the ground of unconscionability alone. The defendants appealed to this Court under Rule 4(d), Ala. R. App. P., which allows an appeal from an order granting or denying a motion to compel arbitration.

" 'This Court's review of an order granting or denying a motion to compel arbitration is de novo. ...'
" United Wisconsin Life Ins. Co. v. Tankersley, 880 So.2d 385, 389 (Ala. 2003). Furthermore:
" ' "A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id.'After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.' "
" ' Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (emphasis omitted) ).'
" Vann v. First Cmty. Credit Corp., 834 So.2d 751, 753 (Ala. 2002)."

Cartwright v. Maitland, 30 So.3d 405, 408-09 (Ala. 2009).

The defendants argue that the arbitration provision should be enforced because, they say, they met their two-part burden in moving to compel arbitration and the circuit court erred in concluding that the arbitration provision is unconscionable. Regarding the first part of the defendants' burden, there seems to be no dispute that a contract exists that calls for arbitration. However, before the circuit court, the two sides disputed whether that contract evidences a transaction that affects interstate commerce. The circuit court pretermitted consideration of this issue and instead focused on the unconscionability issue, which we will discuss below. We first address the defendants' argument that they met their burden of establishing that the contract evidences a transaction affecting interstate commerce.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"), establishes a strong federal policy in favor of arbitration. Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6, 14 (Ala. 2006) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ). The FAA provides that written agreements to arbitrate disputes arising out of transactions involving interstate commerce "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The United States Supreme Court has read the FAA broadly to "provide[ ] for 'the enforcement of arbitration agreements within the full reach of the Commerce Clause.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (quoting Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) ). Congress's power to regulate interstate commerce is quite broad. "It is well established that Congress can regulate three broad categories of activity pursuant to its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) those general activities having a substantial effect on interstate commerce." Wolff Motor Co. v. White, 869 So.2d 1129, 1132 (Ala. 2003). " ' "As the decisions of the United States Supreme Court have made clear, there are few, if any, economic or commercial transactions that are beyond the reach of Congress's commerce power." ' " SouthTrust Bank v. Bowen, 959 So.2d 624, 629 (Ala. 2006) (quoting Allied Williams Cos. v. Davis, 901 So.2d 696, 699 (Ala. 2004), quoting in turn Service Corp. Int'l v. Fulmer, 883 So.2d 621, 628 (Ala. 2003) ).

In support of their argument that the transaction here affects interstate commerce, the defendants submitted the affidavit testimony of Pesseackey, an SCI employee and the general manager of Elmwood Cemetery. Pesseackey, one of the defendants, testified that Service Corporation International, a Texas corporation and also a defendant, is the parent corporation of SCI. She further testified that Johnnie's contract was prepared and approved at the parent company's corporate headquarters in Houston, Texas. Pesseackey stated that Johnnie received a certificate of interment rights that was printed on a form Elmwood Cemetery received from the corporate headquarters in Houston. She further stated that the form contains a stamped number that corporate headquarters uses to track the number of certificates delivered to a particular location, including Elmwood Cemetery. According to Pesseackey, "Elmwood Cemetery routinely calls, emails and sends faxes to its Texas affiliates in order to carry out" contracts like Johnnie's. She further testified that the installment payments Johnnie made under the contract were placed in an account that is completely maintained, monitored, and controlled by the corporate headquarters in Houston. Johnnie presented no evidence in opposition to Pesseackey's testimony. Pesseackey's undisputed testimony is more than sufficient to establish that the contract evidences a transaction affecting interstate commerce. Accordingly, the defendants met their burden in moving to compel arbitration.

Once the defendants met their burden, the burden shifted to Johnnie to establish that the arbitration provision is invalid or that it does not apply to the dispute in question. Johnnie argued to the circuit court, as she does to this Court, that the arbitration provision is unconscionable and thus invalid. The circuit court agreed that the arbitration provision is unconscionable and, therefore, refused to enforce it.

"General contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate an arbitration agreement without contravening the FAA." Leeman v. Cook's Pest Control, Inc., 902 So.2d 641, 644 (Ala. 2004) (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) ). "Unconscionability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala. 1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala. 1998)." Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala. 2000). "To avoid an arbitration provision on the ground of unconscionability, the party objecting to arbitration must show both procedural and substantive unconscionability." Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1087 (Ala. 2005) (emphasis added). In Rigas, this Court explained:

"Substantive unconscionability
" ' "relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction." '
" Ex parte Thicklin, 824 So.2d 723, 731 (Ala. 2002) (emphasis omitted) (quoting Ex parte Foster, 758 So.2d 516, 520 n. 4 (Ala. 1999), quoting in turn 8 Richard A. Lord, Williston on Contracts § 18:10 (4th ed. 1998) ). See also Leeman v. Cook's Pest Control, Inc., 902 So.2d 641 (Ala. 2004).
"Procedural unconscionability, on the other hand, 'deals with "procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposed-upon party had meaningful choice about whether and how to enter into the transaction." ' Thicklin, 824 So.2d at 731 (quoting Foster, 758 So.2d at 520 n. 4, quoting in turn 8 Williston on Contracts § 18:10 )."

923 So.2d at 1086-87.

In concluding that the arbitration provision is unconscionable, the circuit court relied on American General Finance, Inc. v. Branch, 793 So.2d 738 (Ala. 2000). We take this opportunity to discuss some of the terminology this Court has used when addressing the issue of unconscionability. In Branch, this Court observed that, to establish that an arbitration provision is unconscionable, one must demonstrate that the terms of the provision are "grossly favorable to a party" that has "overwhelming bargaining power." 793 So.2d at 748. Those two elements were in turn reduced from four factors, discussed in Layne v. Garner, 612 So.2d 404 (Ala. 1992), important in determining whether an arbitration provision is unconscionable: " '(1) whether there was an absence of meaningful choice on one party's part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided or patently unfair terms in the contract.' " Branch, 793 So.2d at 748 (quoting Layne, 612 So.2d at 408 ). All of these elements and factors, however, are just another way of discussing substantive unconscionability and procedural unconscionability. See Rigas, 923 So.2d at 1086 ("This Court has also recognized a distinction between 'substantive unconscionability' and 'procedural unconscionability' and categorized the factors [in Layne ] as either substantive or procedural."). Whether the terms of the arbitration provision are "grossly favorable to a party" corresponds to substantive unconscionability, and whether a party had "overwhelming bargaining power" corresponds to procedural unconscionability. Thus, although the circuit court did not use the terms "substantive unconscionability" and "procedural unconscionability" in analyzing this case in light of Branch, by tracking the language in Branch the court was in fact analyzing the case in those terms. For ease of discussion, we will use the terms "substantive unconscionability" and "procedural unconscionability" when discussing those concepts as applied in the circuit court's judgment, Branch, and other cases discussed below. This Court's more recent cases addressing the issue whether an arbitration provision is unconscionable have used that terminology. See, e.g., Family Sec. Credit Union v. Etheredge, 238 So.3d 35 (Ala. 2017) ; Newell v. SCI Alabama Funeral Servs., LLC, 233 So.3d 326 (Ala. 2017) ; and African Methodist Episcopal Church, Inc. v. Smith, 217 So.3d 816 (Ala. 2016).

As the circuit court noted, this Court concluded in Branch that the arbitration provision in that case was substantively unconscionable. In making that conclusion, the Court in Branch noted four indications of substantive unconscionability in that case: (1) the breadth of the arbitration agreement, which applied to "every 'dispute[ ] or controversy[ ] ... relating to' every actual or potential transaction-whether past, present, or future-and to every person, whether signatory or nonsignatory to any document, involved in such a transaction between the parties," 793 So.2d at 748 (emphasis omitted); (2) "the provision purporting to invest the arbitrator with the threshold issues of arbitrability";

(3) the provision exempting the lenders from the duty to arbitrate and expressly reserving the lenders' right to a trial by jury of claims up to $10,000 against the borrowers while requiring all the borrowers' claims to be arbitrated; and (4) the provision limiting the borrowers' right of recovery to no more than five times the economic loss while reserving for the lenders the right to full redress for their claims. 793 So.2d at 749-50. See also Anderson v. Ashby, 873 So.2d 168 (Ala. 2003) (relying on Branch in finding an arbitration agreement identical to the one in Branch to be substantively unconscionable). Although the circuit court here relied on Branch, the circuit court concluded, and Johnnie argues on appeal, that only one of the indicators of substantive unconscionability found in Branch-an "overbroad" arbitration provision-is present. However, an "overbroad" arbitration provision alone does not indicate substantive unconscionability.

We addressed this same issue in Steele v. Walser, 880 So.2d 1123 (Ala. 2002). Like the circuit court and Johnnie in this case, the plaintiff in Steele relied on Branch in maintaining that the arbitration provision was substantively unconscionable. However, although the plaintiff "argue[d] that the scope of the arbitration agreement ... is overly broad, she ma[de] no showing" regarding the other indications of substantive unconscionability discussed in Branch. 880 So.2d at 1129. Thus, because the "number and degree of 'grossly favorable' terms found in the contract in [ Branch were] not present" in Steele, the Court in Steele declined to conclude that the arbitration provision was substantively unconscionable. 880 So.2d at 1130.

The same issue arose later in Leeman, and the Court used even stronger language than it had used in Steele in concluding that an allegedly overbroad arbitration provision was not substantively unconscionable on that basis alone. The Court stated:

"The arbitration provision in the [contract providing termite-protection services] states: 'Any dispute, controversy or claim arising out of or relating to the agreement and guarantee, or the breach thereof, or arising out of any prior or future dealings between [Cook's Pest Control] and customer shall be settled by arbitration.' (Capitalization omitted.) The Leemans argue that this provision is similar to the provision this Court found unconscionable in Branch.
"First, it is not clear how the fact that the arbitration provision is 'broad' requires this Court to conclude that it is thus grossly favorable to one particular party. An arbitration provision constitutes an agreement between the parties to submit their disputes to arbitration, as opposed to litigation. It is only natural that, pursuant to that preference, an arbitration provision be designed to actually cover many potential disputes between the parties, not just some disputes.
"In any event, while our decision in Branch considered the breadth of the arbitration provision as an indicium of unconscionability, this Court has subsequently noted [in Steele ] that our consideration of that factor in Branch also took into account numerous other factors ...."

902 So.2d at 652.

After discussing Steele's analysis of Branch, the Court in Leeman concluded that the "breadth of the arbitration provision in this case, alone, does not demonstrate terms grossly favorable to Cook's Pest Control or otherwise establish unconscionability." 902 So.2d at 653. See also Newell, 233 So.3d at 333 (concluding that an arbitration provision was not substantively unconscionable when the provision gave the arbitrator the right to determine arbitrability but the "other grossly favorable terms" present in Branch and Anderson were not present). Similarly, the breadth of the arbitration provision in this case alone does not establish substantive unconscionability.

Both substantive unconscionability and procedural unconscionability must be shown to establish unconscionability as a defense to an arbitration provision; these are separate, independent elements. Rigas, 923 So.2d at 1087. Although there was no actual evidence presented on the issue of procedural unconscionability, the circuit court concluded that enforcing the arbitration provision would be procedurally unconscionable because, the circuit court found, SCI had overwhelming bargaining power over Johnnie. However, because the arbitration provision in this case is not substantively unconscionable, we do not need to consider the issue of procedural unconscionability. See, e.g., African Methodist Episcopal Church, 217 So.3d at 827 ("Inasmuch as [the] substantive-unconscionability arguments are without merit, we may accordingly conclude that the arbitration provision is not unconscionable without examining [the] allegations of procedural unconscionability."). Therefore, we pretermit consideration of this issue.

The circuit court erred in denying the motion to compel arbitration. We therefore reverse the order and remand the case for the circuit court to enter an order granting the motion to compel arbitration.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Parker, Shaw, Wise, Sellers, and Mendheim, JJ., concur.

Main, J., concurs in the result.


author: PITTMAN, Judge.

text:
    Dawn Kelly STRONG v. Clay SLATE, Jr.
    2160649
    Court of Civil Appeals of Alabama.
    March 2, 2018
    John Keith Warren, Ashland, for appellant.
    Greogry M. Varner, Ashland, for appellee.
   PITTMAN, Judge.

This appeal arises from efforts by one landowner, Clay Slate, Jr., to obtain access to his "landlocked" parcel of land in Clay County across a nearby parcel owned by Dawn Kelly Strong.

The abbreviated record in this case does not reflect it, but the parties agree in their appellate briefs that, in 2006, Slate brought a civil action in the Clay Circuit Court seeking a prescriptive easement across Strong's property. They further agree that Slate later amended his complaint to assert an additional claim pursuant to statutes providing for a landowner's acquisition of a right-of-way "over the lands intervening and lying between" the owner's property and "the public road nearest or most convenient thereto" via a proceeding in the nature of an action seeking "condemnation of lands for public uses." Ala. Code 1975, §§ 18-3-1 & 18-3-3. The circuit court dismissed Slate's action to the extent that it sought a prescriptive easement but transferred the action to the Clay Probate Court to the extent that a right-of-way was sought under § 18-3-1 et seq. The probate court subsequently entered a judgment awarding Slate a right-of-way, but in April 2011 Strong appealed from that judgment to the Clay Circuit Court, pursuant to Ala. Code 1975, § 18-1A-283 (a portion of the Alabama Eminent Domain Code, Ala. Code 1975, § 18-1A-1 et seq. ), for a trial de novo. The record reflects that the circuit court, in response to dispositive motions filed after the presentation of evidence, entered the following judgment on February 2, 2017:

"This Court finding [Strong's] Response to [Slate's] 'Memorandum of Law' to be well taken, [Slate's] complaint is dismissed."

On February 7, 2017, Strong filed a motion seeking an award of litigation expenses, including surveyor fees and attorney fees, in the amount of $52,020.85; as authority therefor, she cited Ala. Code 1975, § 18A-1A-232, another portion of the Alabama Eminent Domain Code, which provides that "[t]he court shall award the defendant ... litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason" and that "[c]osts and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions." § 18A-1A-232(a) and (c). On March 2, 2017, Slate filed a motion, pursuant to Rule 59, Ala. R. Civ. P., challenging the correctness of the circuit court's judgment of dismissal; he also filed a written objection to Strong's attorney-fee request contained in her motion for an award of litigation expenses on the basis that the fees sought were, he said, "excessive and unreasonable." The record does not reflect any order of the circuit court acting on either party's motion.

On May 18, 2017, Strong filed a notice of appeal and a docketing statement in which she listed her motion for an award of litigation expenses as having been filed on February 7, 2017, and as having been disposed of on May 8, 2017; however, she listed Slate's Rule 59 motion as not having been disposed of. This court held Strong's appeal in abeyance pursuant to Rule 4(a)(5), Ala. R. App. P., so that the Rule 59 motion could be ruled on by the circuit court or be deemed denied pursuant to Rule 59.1, Ala. R. Civ. P., which provides for the automatic denial of postjudgment motions pursuant to Rules 50, 52, 55, and 59, Ala. R. Civ. P., following the passage of 90 days after the filing of such motions (absent a written agreement of all parties or an extension by the appropriate appellate court). Counsel for Strong notified this court of the denial of Slate's Rule 59 motion by operation of law, after which the record in this appeal was initially prepared. The appeal was transferred to our supreme court because of lack of appellate jurisdiction, after which that court retransferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

On appeal, Strong challenges what she believes is the denial of her request for the award of litigation expenses. In this case, the record, even as supplemented by the circuit court in July 2017, reflects no ruling by the circuit court on Strong's motion seeking an award of litigation expenses, and, in the absence of such a ruling, we have nothing to review. However, in her appellate brief, Strong asserts that her motion seeking litigation expenses was "denied by operation of law," apparently adhering to the position she took in her docketing statement that the motion was impliedly denied by the lapse of 90 days following its having been filed without intervening affirmative action thereon by the circuit court.

Strong's contention that her motion has been denied by operation of law is refuted by our supreme court's reasoning in Russell v. State, 51 So.3d 1026 (Ala. 2010). In Russell, an appeal by landowner E. Wayne Russell, Jr., to the Lee Circuit Court from the Lee Probate Court's condemnation judgment was dismissed on grounds that were favorable to the landowner, i.e., that the Lee Probate Court's judgment had been entered in the absence of indispensable parties and, therefore, was void. The landowner then filed a motion seeking an award of litigation expenses; however, the Lee Circuit Court entered an order on October 31, 2008, denying, among other things, the landowner's motion. The landowner then filed a motion to alter or amend that ruling, alleging that the denial of litigation expenses had been erroneous; the Lee Circuit Court denied that motion, and the landowner appealed to our supreme court.

Before reaching the merits of the landowner's appeal, our supreme court, in assessing its own appellate jurisdiction, considered whether the motion to alter or amend the October 31, 2008, ruling on the motion to award litigation expenses constituted a "successive postjudgment motion" that would not have tolled the time for taking an appeal. That court answered that question in the negative, using reasoning that applies directly to this case:

"Russell's motion for litigation expenses and attorney fees was not a motion to alter or amend a judgment pursuant to Rule 59(e), Ala. R. Civ. P. See Ford v. Jefferson County, 989 So.2d 542, 545 (Ala. Civ. App. 2008) (concluding that petition for assessment of attorney fees and costs was not subject to the 30-day time limitation of Rule 59(e), Ala. R. Civ. P., and observing that 'the United States Supreme Court has held that a request for an award of attorney fees ... is not a "motion to alter or amend a judgment" ' (citing White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 452, 102 S.Ct. 1162, 71 L.Ed. 2d 325 (1982) ) ). See also Buchanan v. Stanships, Inc., 485 U.S. 265, 267-68, 108 S.Ct. 1130, 99 L.Ed. 2d 289 (1988) (reasoning that because the statute at issue 'provides for fees independently of the underlying cause of action and only for a "prevailing party," a motion for fees required an inquiry "separate from the decision on the merits-an inquiry that cannot even commence until one party has 'prevailed' " ' and that '[s]uch a motion therefore " 'does not imply a change in the judgment, but merely seeks what is due because of the judgment' " ' (citations omitted) ). Therefore, Russell's motion to 'reconsider' the denial of that request was not a successive postjudgment motion, and it tolled the 42-day period for filing an appeal. See, e.g., Ex parte Keith, 771 So.2d 1018, 1022 (Ala. 1998) (noting that 'a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal')."

51 So.3d at 1028-29 n.4 (first emphasis added). Similarly, in this case, Strong's motion for an award of litigation expenses was not a postjudgment motion pursuant to Rules 50, 52, 55, or 59, Ala. R. Civ. P., so as to be susceptible to the operation of the 90-day automatic-denial provisions of Rule 59.1, Ala. R. Civ. P., but, rather, was in the nature of a motion under Rule 54(d), Ala. R. Civ. P., that " 'required an inquiry "separate from the decision on the merits" ' " of Slate's right-of-way claim. Russell, 51 So.3d at 1028 n.4.

"Generally an appeal can be brought only by a party or his personal representative from an adverse ruling contained in a final judgment." Home Indem. Co. v. Anders, 459 So.2d 836, 842 (Ala. 1984) (citations omitted). Although the circuit court has ruled on Slate's right-of-way claim in a final judgment, that court has not explicitly or (in light of Williams ) implicitly acted in any substantive manner upon Strong's motion for an award of litigation expenses, including her requests for awards of attorney fees and surveyor fees. Thus, Strong has not appealed from a final judgment that is adverse to her. We therefore dismiss the appeal, albeit without prejudice to the circuit court's plenary consideration, after this court's certificate of judgment has been issued, of the parties'

respective positions on Strong's request for an award of litigation expenses.

APPEAL DISMISSED.

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

      As we stated in Williams v. Minor, 202 So.3d 676, 678-79 (Ala. Civ. App. 2016), under Ala. Code 1975, § 12-11-11, as construed in Ex parte E.S., 205 So.3d 1245 (Ala. 2015), a court, such as the Clay Circuit Court, "has an obligation to transfer a case outside its subject-matter jurisdiction to an appropriate court within the same county should such a court exist." In Alabama, the court having original jurisdiction over right-of-way condemnation claims is the probate court. See Ala. Code 1975, § 18-3-3.

      Slate attempted to appeal from the circuit court's judgment of dismissal via electronic filing, but he did not properly file a notice of appeal in a timely manner; on August 3, 2017, Slate's appeal was dismissed by this court on the authority of Alabama Department of Revenue v. Frederick, 166 So.3d 123 (Ala. Civ. App. 2014). Slate v. Strong, (No. 2160805, Aug. 3, 2017), --- So. 3d ---- (Ala. Civ. App. 2017) (table).


author: THOMPSON, Presiding Judge.

text:
    Judith M. TOLBERT v. Damon G. TOLBERT
    2160909
    Court of Civil Appeals of Alabama.
    March 2, 2018
    Joan-Marie Sullivan, Huntsville, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Judith M. Tolbert ("the mother") appeals from a judgment of the Madison Circuit Court ("the trial court") denying her request for a modification of custody and child support. In response to the mother's complaint, Damon G. Tolbert ("the father") filed a counterclaim in which he, too, sought a modification of custody and child support. The trial court denied the father's request as well.

The record indicates the following evidence relevant to the issues on appeal. On January 6, 2014, the trial court entered a judgment divorcing the parties and incorporating a settlement agreement ("the agreement") they had reached. At the time of the divorce, the parties had four minor children. The agreement provided that the parties

"shall exercise joint legal and joint physical custody of the minor children, with primary physical custody vested in the [mother]. The parties shall exercise periods of visitation at any and all times agreed upon by both parties; however, if the parties cannot agree, the [father] shall exercise visitation based upon this Court's Standard Visitation Schedule, attached hereto as Exhibit A.
"....
"The parties agree that no child support shall be paid from one to the other based upon the joint custodial arrangement and the liberal visitation agreement; however, both parties agree to be responsible for one half of any particular child's expenses. Whenever one of the parties shall incur an expense related to a child's extracurricular expenses, [the other] party shall pay half of the expense within thirty (30) days of receipt of the expense. The [father] agrees to be responsible for the clothing and essentials of [the first-born child and the third-born child]."

The parties further agreed that the father would be responsible for obtaining and maintaining the children's health insurance and that each party would equally divide health and dental costs incurred by the children that were not covered by insurance.

At the hearing on the parties' respective modification requests, the mother testified that, "verbally, we agreed that we would each have the kids the same amount of time; and if at one point we couldn't agree, we would go back to standardized visitation." At the time the agreement was reached, the mother said, the father lived within four miles of the mother. About six months after the parties divorced, the father moved from Madison County to Hartselle, where his then girlfriend lived. That woman and the father have since married, and the father continues to reside in Hartselle. The mother said that the father's house is about 45 minutes from her house.

At first, the parties alternated custody of the children weekly. After the father moved to Hartselle, the mother said, when the children stayed with the father, they were often late for school. That, the mother said, is when she made the decision to implement the default standard-visitation schedule. The father testified that he had not wanted to end the alternating, weekly custody arrangement and that the mother unilaterally made the decision to do so. Nonetheless, at the time of the modification hearing, the parties had been adhering to the standard-visitation schedule for approximately three and one-half years. The mother testified that that schedule was working well. The standard-visitation schedule allowed the children to spend Wednesday nights with the father. The mother acknowledged that, in the six months before the modification hearing, the children had not been late for school after staying with the father on Wednesday nights.

The oldest child had reached the age of majority and appeared to be living independently. The father said that he had not seen the oldest child in three years and had not purchased any clothing or other items for her during that time. We note that there is nothing in the record to indicate that the mother was providing support to the oldest child. The father picked up the eldest minor child from school every day and took that child to the mother's office. The father also took the minor children (hereinafter referred to collectively as "the children") to softball practice in Hartselle and to softball tournaments on the weekends. One of the children testified that, except for softball, none of the children were involved in extracurricular activities. The mother said that the father has been available to pick up the children if they become sick at school. The father attended field trips with the youngest child. The mother acknowledged that the father was active with the children.

Regarding financial support of the children, the mother testified that she had not reimbursed the father for her share of any of the children's expenses while they were playing softball, including registration fees, the costs of their uniforms, and "participation" expenses. At the modification hearing, the mother testified that she had not agreed to register the children to play softball in Hartselle and that she had told the father that, because of her work schedule, she would not be able to take them to practice. She acknowledged that there is not a softball team available for the children near her house.

The mother also testified that she had not reimbursed the father for her share of the expenses for the children's field trips for which the father had paid or for the medical copays he had paid. The mother said that the father had not provided her with receipts for which he sought reimbursement and that, by the same token, she had not provided the father with any receipts for expenses for which she could have been reimbursed. The father echoed the mother's testimony, and it appears that each parent paid for items for the children as needed and neither sought reimbursement from the other. The father acknowledged that the mother probably bought more clothes for the children, but, he said, he bought them clothes or shoes when they asked him for something. However, the father said that he had not paid anything in the way of support to the mother because, he said, she had neither asked him for money nor let him know she needed additional money.

When asked what the change in circumstances was that prompted her to seek a modification of the child-support arrangement, the mother said: "Groceries increased, clothing costs, activities for them to do, daycare costs-just, you know, the costs of raising daughters." Other than pointing out that the eldest minor child would have to have automobile insurance when she begins driving, the mother did not provide the court with any specific cost increases that it could consider. The mother said that, when she entered into the agreement, she believed the children would be spending more time with the father.

The trial court entered a judgment on March 21, 2017, denying both parties' requests for a modification of the custody and child-support arrangement the parties had reached in their agreement. The mother filed a postjudgment motion, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The mother then filed a timely appeal to this court. The father did not favor this court with a brief on appeal.

The mother contends that the trial court erred by, she says, failing to determine that she had sole physical custody of the children and to amend the language in the divorce judgment incorporating the agreement to reflect that she had actually been awarded sole physical custody of the children. In support of this contention, the mother cites a number of cases in which this court has construed judgments awarding the parties "joint physical custody" but vesting one parent with "primary physical custody" as meaning the parent with primary physical custody has sole physical custody as that term is defined in § 30-3-151(5), Ala. Code 1975. We did not reverse any of those judgments to require that the custody language be modified to reflect the statutory terms as opposed to the trial courts' own language.

The point of the mother's argument as to this issue is unclear. The record shows that the parties have been behaving as though the mother has sole physical custody of the children subject to the father's visitation, pursuant to the standard visitation schedule, for three and one-half years before the hearing in this action. The mother herself testified that the current arrangement has been working well. There is no language in the March 21, 2017, judgment that can be construed as a determination that the mother does not have sole physical custody of the children. Simply put, there is no basis for reversal as to this issue.

The mother also contends that the trial court erred by failing to award her child support. Specifically, the mother argues that, since the divorce judgment was entered, there has been a material change in circumstances such that modification of the parties' agreement regarding child support, which was incorporated into the divorce judgment, is warranted.

" ' "An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala. Civ. App. 1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala. Civ. App. 1994). Whether circumstances justifying modification of support exist is a matter within the trial court's discretion. Id. We will not disturb the trial court's decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala. Civ. App. 1995)."
" ' Romano v. Romano, 703 So.2d 374, 375 (Ala. Civ. App. 1997). "This court has held that ' "[t]he standard for determining changed circumstances is the increased needs of the child and the ability of the parent to respond to those needs." ' " Jones v. Jones, 101 So.3d 798, 803 (Ala. Civ. App. 2012) (quoting Allen v. Allen, 966 So.2d 929, 932 (Ala. Civ. App. 2007), quoting in turn Coleman v. Coleman, 648 So.2d 605, 606 (Ala. Civ. App. 1994) ).'
" Broadway v. Broadway, 184 So.3d 376, 385-86 (Ala. Civ. App. 2014). However, 'a trial court's "discretion is not unbridled," and that court "is not at liberty to ignore the undisputed evidence concerning a parent's ability to pay." State ex rel. Smith v. Smith, 631 So.2d 252, 254 (Ala. Civ. App. 1993).' Poh v. Poh, 64 So.3d 49, 58 (Ala. Civ. App. 2010)."

Lackey v. Lackey, 217 So.3d 943, 944-45 (Ala. Civ. App. 2016).

" 'This court has held that " '[t]he standard for determining changed circumstances is the increased needs of the child and the ability of the parent to respond to those needs.' " ' Jones v. Jones, 101 So.3d 798, 803 (Ala. Civ. App. 2012) (quoting Allen v. Allen, 966 So.2d 929, 932 (Ala. Civ. App. 2007), quoting in turn Coleman v. Coleman, 648 So.2d 605, 606 (Ala. Civ. App. 1994) ). 'There must be evidence before the trial court that a material change in circumstances has occurred before the child support obligation can be modified.' Layfield v. Roberts, 599 So.2d 1169, 1173 (Ala. Civ. App. 1991) (citing Sansom v. Sansom, 409 So.2d 430 (Ala. Civ. App. 1981) ). A trial court exceeds its discretion when it increases a party's child-support obligation without any evidence to support that a material change has occurred. Id."

Broadway v. Broadway, 184 So.3d 376, 386 (Ala. Civ. App. 2014).

In her attempt to obtain child support, the mother argued before the trial court, and asserts on appeal, that there has been a material change in circumstances since the entry of the divorce judgment, which incorporated the parties' agreement that neither party would pay child support to the other. The divorce judgment acknowledged that "the Child Support Guidelines as set out in Rule 32 of the Alabama Rules of Judicial Administration have not been followed and applied based upon the parties' agreement that each party is to have liberal visitation with the children."

At the modification hearing, the mother testified that the material change in circumstances that prompted her to request child support was that "[g]roceries increased, clothing costs, activities for [the children] to do, daycare costs-just, you know, the costs of raising daughters." The mother said that the children favored more expensive clothes and ate more than they used to when they were younger. Additionally, the mother said, the eldest minor child would be driving soon, so the mother's automobile-insurance premium would increase.

Additionally, the mother testified, when she entered into the agreement, she expected the father to have custody of the children more frequently than he did, so, she said, she has more daily costs than she thought she would have. She pointed out that the father was no longer responsible for expenses regarding the oldest child, as he was when the agreement was reached.

The father acknowledged that the children's food and clothing costs had increased since the parties divorced. He also acknowledged that the children spent more time with the mother than had been contemplated when the agreement was entered. However, he said, the mother had made that decision and it was not his choice to spend less time with the children. The father also testified that he has not contributed money to the mother for child support because the mother had not requested any financial assistance.

Evidence also demonstrates that the oldest child, for whom the father had agreed to pay expenses, has attained the age of majority and is no longer financially supported by either party. Thus, pursuant to the terms of the agreement, the father is now financially responsible for "the clothing and essentials" for only one child, while the mother remains financially responsible for the "clothing and essentials" for two children. Although the agreement awarded the parties joint legal and physical custody of the children, the agreement also vested the mother with primary physical custody of the children and established a visitation schedule for the father. In practice, the mother has had sole physical custody of the children for all but the first six months after the entry of the divorce judgment.

Admittedly, this is a close case. However, based on the record before us, this court concludes that the mother met her burden of demonstrating that a material change in circumstances has occurred since the entry of the 2014 divorce judgment. Broadway, supra. Because of the additional expenses the mother incurs as a result of having sole physical custody of the children, and the increasing financial needs of the children as they have become older, which the father concedes, the mother has demonstrated that she is entitled to receive child support from the father. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for the trial court to determine the father's child-support obligation.

REVERSED AND REMANDED.

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

      In the complaint, the mother also sought to have Damon G. Tolbert, the father held in contempt. The trial court denied the mother's request. The mother does not appeal from that determination.

      The caselaw relied upon by the mother demonstrates that this court has interpreted awards of "primary physical custody," such as the one in the parties' divorce judgment, as an award of sole physical custody. See, e.g., Whitehead v. Whitehead, 214 So.3d 367 (Ala. Civ. App. 2016), and Williams v. Williams, 75 So.3d 132, 138-39 (Ala. Civ. App. 2011).


author: THOMAS, Judge.

text:
    Japar M. TABYSHALIEV v. Brandi TABYSHALIEV a/k/a Brandi Rhianon Ervin
    2160811
    Court of Civil Appeals of Alabama.
    March 2, 2018
    Sebrina L. Martin, Montgomery, for appellant.
    Submitted on appelant's brief only.
   THOMAS, Judge.

Japar M. Tabyshaliev ("the husband") and Brandi Tabyshaliev ("the wife") were married in Colorado in October 2011 after a six-month online courtship and a nine-month cohabitation in Jacksonville, Florida. The parties separated in September 2015, when the wife left the parties' Colorado apartment with the parties' two children and returned to Alabama to live with her mother, where she continued to reside at the time of trial. After the separation, the husband visited California and lived in Maryland, West Virginia, and, finally, Virginia, where he lived at the time of trial.

The wife sought and received a protection-from-abuse ("PFA") order from the Covington Circuit Court ("the trial court") in 2015. The husband, although admittedly served with the complaint in that action, failed to defend or appear. Among other things, the PFA order contained a restraining order preventing the husband from contacting the wife and prohibited the husband from exercising visitation with the parties' two young children.

The husband sued the wife for a divorce in the trial court in March 2016. After a two-day trial, the trial court entered a judgment divorcing the parties on June 8, 2017. Among other things, the divorce judgment awarded the wife the house that the parties own in Colorado ("the Colorado house"), awarded the wife custody of the children, awarded the husband four hours of supervised visitation with the children once per month, ordered the husband to pay $430 per month in child support, and ordered the husband to pay the wife $200 per month in alimony.

The record reveals the following facts pertinent to our resolution of this appeal. Neither party was employed during the marriage; the husband operated an online sales business, and the wife received annuity payments from a settlement resulting from the wrongful death of her father. The parties lived on savings the husband had from before the marriage, profits from the online business, and the wife's annuity payments, including $83,000 realized when the parties sold $130,000 worth of the wife's future annuity payments. The husband testified that his monthly income from the online business fluctuated greatly, ranging from a high of $13,000 to a low of $250; he noted that the business was not consistent and that he had discontinued the business for a time. The parties did not file income-tax returns during the marriage.

The husband testified that, at the time of the trial, he was the head valet at a hotel in the Washington, D.C., area, where he earned $9 per hour plus tips. The husband said that he worked 40 hours per week, resulting in base earnings of $1,588 per month. He testified that his tips varied; however, he testified that he had earned approximately $3,500 in tips over a five-month period in the early part of 2017. He said that his rent, which included his utilities, was $1,000 per month and that he spent between $300 and $400 per month on food and $100 on transportation costs.

The wife testified that she was not employed. She said that she had been seeking employment but that she lacked experience, which made finding employment more difficult. She also testified that she had not obtained a driver's license; however, she said that she currently held a driver's permit and that she intended to take the road test as soon as she qualified to do so. The wife admitted that she and the children lived with her mother, her stepfather, and her 30-year-old stepbrother; no other information about the wife's living arrangements is contained in the transcript.

As noted above, the trial court divorced the parties on June 8, 2017. The trial court awarded the wife the Colorado house, awarded the wife custody of the children, awarded the husband four hours of supervised visitation once per month, ordered the husband to pay $430 per month in child support, and ordered the husband to pay $200 per month in rehabilitative periodic alimony. The husband did not file a postjudgment motion and instead filed a timely notice of appeal. On appeal, he argues (1) that the trial court erred by admitting a copy of the PFA order into evidence, (2) that the trial court abused its discretion in the division of marital property and award of alimony, (3) that the trial court abused its discretion by awarding him only four hours of supervised monthly visitation with the children, and (4) that the trial court erred by calculating the award of child support without using the child-support-guidelines forms required under Rule 32, Ala. R. Jud. Admin.

The husband first argues that the trial court erred to reversal by admitting into evidence the PFA order. The husband contends that the PFA order was extrinsic evidence, that he lacked personal knowledge of its contents, and that it was not properly authenticated. Thus, he argues, its admission prevented the husband from having a fair and impartial trial.

However, a review of the record indicates that, although its was mentioned several times during the trial and was marked for identification, the PFA order was not actually offered or admitted into evidence. Both parties referred to the PFA action in their pleadings, and the wife specifically referenced the fact that she had custody of the children based on the PFA order. Thus, it appears that the trial court chose to take judicial notice of the PFA order. See Butler v. Olshan, 280 Ala. 181, 187-88, 191 So.2d 7, 13 (1966) (stating that "where a party refers to such other proceeding or judgment in his pleading for any purpose, the court, on demurrer by the other party, may and should take judicial notice of the entire proceeding in so far as it is relevant to the question of law presented"); see also Lesley v. City of Montgomery, 485 So.2d 1088, 1093 (Ala. 1986) ("When a party refers to another proceeding or judgment of a court in his pleading before that same court, the court on motion to dismiss may take judicial notice of the entire proceeding."); and Slepian v. Slepian, 355 So.2d 714, 716 (Ala. Civ. App. 1977) (indicating that, when a case before the same court is referred to in a motion to dismiss, a trial court is "authorized and required" to take judicial notice of the mentioned proceedings). The husband does not challenge the propriety of the trial court's judicially noticing the PFA order, and his arguments concerning his lack of personal knowledge of the contents of the PFA order and the lack of proper authentication of the PFA order are inapplicable to the trial court's action. We therefore find no error in the trial court's consideration of the PFA order.

We turn now to the husband's argument that the trial court abused its discretion in its division of property and award of rehabilitative periodic alimony to the wife. The husband argues that the evidence presented to the trial court indicated that the Colorado house was marital property, and, he contends, the wife did not prove a need for alimony. The trial court made no specific findings of fact relating to the property division or alimony award in the divorce judgment, and the husband did not challenge the sufficiency of the evidence supporting the division of property and the award of rehabilitative periodic alimony to the wife in a postjudgment motion. Therefore, the husband failed to properly preserve these issues for appellate review, and we need not consider the husband's arguments further. See Rieger v. Rieger, 147 So.3d 421, 429 (Ala. Civ. App. 2013).

The husband next challenges the trial court's judgment insofar as it awarded him only four hours of supervised visitation with the children per month. The husband concedes that the evidence at trial supports the requirement that his visitation be supervised. However, he complains on appeal that the four-hour limitation on his visitation is erroneous because, he says, he will have to expend significant time and money to exercise his visitation and, therefore, that he will likely have to choose between visiting his children and meeting his expenses. As noted above, the husband did not file a postjudgment motion and therefore did not present his contention that such limited visitation would be too financially burdensome to the trial court; in addition, although he provides figures in his brief on appeal regarding the time and expense he anticipates it will take to exercise visitation, he did not present that evidence to the trial court. As a result, we are unable to consider the husband's argument further. See Neal v. Neal, 856 So.2d 766, 778 (Ala. 2002) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994) ) (" '[I]t is a well-settled rule that an appellate court's review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.' "); McClellan v. McClellan, 959 So.2d 658, 662 (Ala. Civ. App. 2006) (citing Coleman v. Estes, 281 Ala. 234, 237, 201 So.2d 391, 393 (1967) ) ("This court cannot consider alleged facts that are not established by the record on appeal."). We therefore affirm the trial court's judgment insofar as it awarded the husband four hours of supervised visitation per month.

Finally, the husband argues that the trial court's award of child support should be reversed because the record is devoid of the required child-support-guidelines forms. The husband correctly notes that we have reversed a trial court's judgment insofar as it established a child-support obligation when the record did not contain a child-support-income affidavit, also known as a CS-41 form, or a child-support-guidelines calculation sheet, also known as a CS-42 form. See Martin v. Martin, 637 So.2d 901, 902 (Ala. Civ. App. 1994). However, we have often explained that the fact that such forms do not appear in the record does not require reversal in every case. See Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) (quoting Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala. Civ. App. 1996) ); see also Devine v. Devine, 812 So.2d 1278, 1282 (Ala. Civ. App. 2001). We have held that "we are authorized to affirm the trial court's judgment if the record 'clearly indicat[es] that the award comports with the evidence regarding the parties' incomes' and, thus, that the trial court adhered to the child-support guidelines." Mosley, 747 So.2d at 898 (quoting Dismukes, 686 So.2d at 301 ). We will therefore consider the evidence contained in the record to determine whether we can discern whether the child-support award comports with the child-support guidelines.

The testimony at trial indicated that the wife had no income. The husband testified regarding his monthly base income, which was $1,588 per month, and his tips, which, he reported, had been $3,500 over a five-month period (or $700 in tips per month); thus, his income could be considered to be approximately $2,288 per month. The record contains no indication that the wife incurs any child-care expenses, and the children are covered by Medicaid. As noted above, the trial court ordered the husband to pay $430 per month in child support for two children.

The amount of child support awarded, based on the schedule of basic child-support obligations contained in the appendix to Rule 32, Ala. R. Jud. Admin., corresponds with a combined gross monthly income of approximately $1,400, an amount less than even the husband's base pay, without consideration of his tips. Thus, even had the trial court considered the wife's income to be zero, the amount of child support awarded does not comport with the guidelines. Had the trial court imputed minimum wage to the wife and determined the husband's income to be $2,288, making the parties' combined monthly income approximately $3,500, the appropriate child-support obligation would be $928; in such a case, based on the calculations required by Rule 32, the husband's share of the child-support obligation would be $603, an amount significantly higher than the $430 award in the judgment. Although a trial court is permitted to deviate from the child-support guidelines when calculating child support if "the application of the guidelines would be unjust or inappropriate," it must state the reasons for any deviation in writing, see Rule 32(A), and the record contains no such written statement from the trial court. Thus, based on the evidence regarding the parties' incomes in the record, we are unable to determine how the trial court computed the husband's child-support obligation, and we have no choice but to reverse the child-support award. See Suggs v. Suggs, 54 So.3d 921, 927 (Ala. Civ. App. 2010) (reversing an award of child support and stating that, "without the standardized child-support forms required by Rule 32, we are unable to determine whether the trial court appropriately applied the child-support guidelines in establishing the award of child support").

After a review of the record and because the husband failed to file a postjudgment motion to preserve his challenge to the sufficiency of the evidence, we affirm the trial court's judgment insofar as it awards the husband four hours of supervised visitation per month, awards the Colorado house to the wife, and awards the wife $200 per month in rehabilitative periodic alimony. We also find no error in the trial court's taking judicial notice of the PFA order. Finally, we reverse the judgment insofar as it orders the husband to pay $430 per month in child support. On remand, the trial court is instructed to recalculate the husband's child-support obligation based on the evidence regarding the parties' incomes and is instructed to complete a child-support-guidelines calculation sheet or CS-42 form.

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

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

Moore and Donaldson, JJ., concur in the result, without writing.

      However, even if we were to consider the husband's argument, we note that we have indicated that a trial court's discretion over the issue of visitation is quite broad and that the primary consideration for the trial court is the best interest of the children involved, not those of the parent. Hand v. Hand, 617 So.2d 1040, 1042 (Ala. Civ. App. 1993) (affirming a 48-hour limitation on visitation despite the fact that the noncustodial parent had to travel 5,000 miles at a cost of $1,800 to exercise that visitation).