author: MOORE, Judge. BRYAN, Judge,

text:
    K.D.H. v. T.L.H. III.
    2060827.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2008.

      Susan G. James of Susan G. James & Associates, Montgomery, for appellant.

      John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   MOORE, Judge.

In this appeal, K.D.H., the mother, challenges the custody, visitation, child-support, and attorney-fee provisions of a judgment divorcing her from T.L.H. Ill, the father. We affirm in part, reverse in part, and remand.

Background

In March 2006, the father filed a complaint seeking a divorce from the mother on the ground of incompatibility. He asserted that they had married in 1998; that they had three children, born on September 22, 1999, March 11, 2001, and April 10, 2003; and that, at the time he filed his complaint, the mother was pregnant with another man’s child. He requested that a guardian ad litem be appointed to represent the unborn child. He sought custody of the parties’ children, child support, and a division of all the parties’ real and personal property. The mother answered the complaint and counterclaimed for a divorce. She sought sole custody of the parties’ children.

The court appointed a guardian ad litem for the unborn child; the trial court also appointed a guardian ad litem for the parties’ three children. The parties were ordered to mediate, but they did not reach a resolution during that mediation. Trial commenced on August 18, 2006. On the third day of the trial, the parties announced that they had reached a settlement. The parties’ counsel read the terms of that agreement into the record, and the parties affirmed that the terms were, in fact, their agreement. The guardians ad litem approved the terms of the settlement. The trial court instructed the parties to file the settlement papers with the court within 30 days. The trial court scheduled a compliance review hearing for November 2, 2006.

At the compliance review hearing, the mother informed the court that she had discharged her previous counsel and that she did not agree with the terms of the settlement agreement. She made an oral motion to set aside the settlement agreement and to proceed with the trial. The trial court granted that motion, and the trial court set the trial to continue on November 13, 2006. The trial proceeded on November 13 and 14, 2006.

The evidence contained in the record reveals the following: At the time of the trial, the father was employed as an associate minister in a Methodist church located in Elmore County. During the marriage, the father worked primarily with the youth program at the church. The mother was, for the majority of the marriage, a stay-at-home mother. However, she also worked at the church with the youth on a volunteer basis and helped out at the church on an “as-needed” basis. At one point, she worked a part-time job to earn money for the family’s church-building fund pledge.

The father called numerous witnesses who worked at the church or who attended the church, all of whom testified that the father should receive custody of the three children born to the mother and father because he was the more stable and settled parent of the two. The mother also called as witnesses a former member of the church, the pastor of her new church, her new pastor’s wife, and various friends who all testified that she was a loving mother, that she was the more patient and devoted parent, and that she should receive custody of the parties’ children.

The mother admitted that, in December 2005, during her marriage to the father, she had had sexual intercourse with A.G., a man involved in the church. She testified that they were physically intimate only once; A.G.’s testimony confirmed that fact. The mother became pregnant as a result of the one-night encounter. The mother admitted that when she learned she was pregnant, she initially told the father and the church that he was the father of the child, even though the father had undergone a vasectomy years earlier. Within two weeks she revealed the truth. The mother carried the pregnancy to term; she testified that terminating the pregnancy was never an option for her and that she had refused to place the child for adoption, as the father had urged her to do.

The guardian ad litem for the parties’ three children filed a written recommendation with the trial court; he recommended that the mother and the father receive joint legal custody, that the father receive primary physical custody, but that the mother receive more than standard visitation. He noted that the mother was currently unemployed, and, for that reason, he made no recommendation as to the issue of child support.

On February 16, 2007, the trial court entered a final judgment, awarding the father primary custody of the parties’ three children; reserving the issue of paternity over the fourth child born during the parties’ marriage (“the infant”); awarding the mother visitation with the children during alternating weeks from Thursday afternoons at 3:00 p.m. until Sunday afternoons at 3:00 p.m.; awarding the mother visitation during the other weeks from Thursday at 3:00 p.m. until the following morning; awarding the mother summer and holiday visitation with the children; ordering the mother to pay child support to the father in the amount of $363 per month; ordering the mother to pay $7,000 toward the father’s attorney’s fees; ordering the mother to pay $5,340 of the $8,640 fees incurred by the guardian ad litem appointed to represent the parties’ three children; and ordering the mother to pay 100% of the $3,000 fees incurred by the guardian ad litem appointed to represent the infant.

On March 19, 2007, the mother filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial; she submitted an affidavit in support of that motion. On May 1, 2007, the trial court struck the mother’s affidavit and denied her motion to alter, amend, or vacate or for a new trial. On June 8, 2007, the mother filed a notice of appeal.

In her principal brief on appeal, the mother asserts that the trial court exceeded its discretion in awarding the father custody of the parties’ children, in denying the mother equal time with the children, in ordering the mother to pay child support to the father, and in ordering the mother to pay the guardian-ad-litem fees and the attorney fees of the father’s counsel. In her reply brief, the mother asserts that she is not seeking sole custody but is seeking only “equal time as a parent who was determined equally as fit as her husband.”

Custody

The mother argues that the trial court erred in finding that the mother was the “primary cause of the destruction of the marriage.” “[T]he ore tenus rule affords a correct and necessary deference to the trial court’s factual findings.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1185 (Ala.Civ.App.2007).

“We first note that, when evidence is presented ore tenus, the trial court’s ruling as to child custody carries a strong presumption of correctness. Wheeler v. Wheeler, 574 So.2d 832 (Ala. Civ.App.1990).
“ ‘Because the trial judge is in a unique position to observe and to hear evidence, this court will not reverse on appeal unless the ruling is so unsupported by the evidence that it constitutes an abuse of discretion and, therefore, is clearly and palpably wrong.’ ”

McGiffert v. McGiffert, 627 So.2d 972, 973 (Ala.Civ.App.1993) (quoting Wheeler v. Wheeler, 574 So.2d 832, 832 (Ala.Civ.App. 1990)). Based on that standard of review, we cannot hold the trial court in error for determining that the mother was primarily at fault for the breakup of the parties’ marriage. The record contains ample evidence indicating that the mother’s adultery and resulting pregnancy led directly to the parties’ divorce.

We note that the mother does not argue in her appellate brief that the trial court erred as a matter of law by failing to consider whether her adultery had a detrimental impact on the parties’ children, which is required in order to consider that misconduct as a basis for a custody award, see Murphree v. Murphree, 579 So.2d 634, 636 (Ala.Civ.App.1991) (“Before custody may be denied on the basis of indiscreet behavior, there must be evidence showing that such misconduct is detrimental to the child.”), and McGiffert, supra (accord). The mother’s brief likewise fails to cite any authority to that effect.

“ ‘[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10)[, Ala. R.App. P.,] requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.’ State Farm Mut Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005). We may do so because ‘ “it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d 959, 962 (Ala.2007). Accordingly, we will not consider that issue.

Based on the foregoing, we find that the mother has not properly presented any grounds to reverse the custody provisions of the judgment.

Visitation

The mother next argues that, if this court affirms the trial court’s award of primary physical custody to the father, the award of visitation to her was disparate and less liberal than the visitation previously agreed upon by the parties in their withdrawn settlement agreement. She points out that she and the father originally agreed that the mother would have 12 days of visitation with the parties’ children each month but that, under the trial court’s final judgment, she received only 8 days of visitation each month. She argues that the trial court’s reduced visitation schedule is harmful to the children’s emotional well-being and is contrary to the guardian ad litem’s recommendation. She asserts that the trial court should not have decreased but should have increased her visitation with the children after hearing the mother’s evidence because the trial court specifically found her to be a fit parent and because her indiscretion did not impair her ability to parent her children. She finally asserts that, even if the father has primary physical custody, visitation should be “split down the middle” between the parents.

“ ‘[Cjases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.’ Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted).”

Speakman v. Speakman, 627 So.2d 963, 965 (Ala.Civ.App.1993). “The determination of proper visitation ... is within the sound discretion of the trial court, and the court’s determination should not be reversed by an appellate court absent a showing of an abuse of discretion.” Ex parte Bland, 796 So.2d 340, 343 (Ala.2000).

The mother’s legal arguments and citations on this issue are marginally sufficient. However, even assuming that she has sufficiently presented this issue on appeal, we find no reversible error. Although this court might have awarded more visitation had it been the trier of fact, this court does not substitute its resolution of disputed facts for the trial court’s resolution of those facts. See, e.g., Speak-man, 627 So.2d at 965 (“While this court might have reached a different determination, all factors considered, we will not substitute our judgment for that of the trial court.”); and Alonzo v. Alonzo, 628 So.2d 749, 750 (Ala.Civ.App.1993) (“Our standard of review is not what we might have done had we been the trial judge, but whether we find from the evidence that the trial judge was so in error as to constitute an abuse of his discretion.”).

Additionally, in Ex parte Bland, supra, the Alabama Supreme Court recognized the following:

rlie simple fact that the trial judge’s final order reduced visitation of the noncustodial parent from six weeks in the summer to four weeks, and from every other weekend to one weekend a month, is not sufficient to find that the trial court abused its discretion. A pen-dente lite order is, by its nature, temporary. Further, the final order was entered after the trial court had received a substantial amount of evidence. Accordingly, we reverse that portion of the judgment of the Court of Civil Appeals reversing the trial court’s visitation order.”

Ex parte Bland, 796 So.2d at 343-44. In this case, the fact that the trial court’s final judgment awarded the mother less visitation than the parties had initially agreed upon in them settlement agreement is not sufficient for this court to conclude that the trial court exceeded its discretion. The final judgment was entered after the trial court had received a substantial amount of ore tenus evidence. As part of that ore tenus evidence, the father requested that the children be available to attend church with him every Wednesday evening. Assuming the trial court believed that that was an appropriate schedule for the children, that evidence supported the trial court’s visitation award to the mother from Thursday evenings until Sunday afternoons.

Moreover, even assuming that the guardian ad litem recommended that the mother receive more than standard visitation with the children, the trial court was not obligated to follow that recommendation. A guardian ad litem is an attorney entitled to argue his or her client’s case to the court, as is any other attorney, but he or she is not delegated any special authority of the court. Moody v. Nagle, 811 So.2d 546, 548 (Ala.Civ.App.2001) (recognizing that the recommendation of a guardian ad litem has no binding effect on the trial court). The guardian ad litem’s recommendation was simply that: a recommendation for the trial court’s consideration.

Finally, we note that, on appeal, the mother argues that the visitation schedule adopted by the trial court did not afford her as much time with the children as the father. That argument does not articulate a discernible reason as to why the visitation schedule adopted by the trial court did not serve the best interests of the parties’ children. Because the trial court’s award of visitation was based upon ore tenus evidence and because that judgment is not so clearly erroneous as to prove that the trial court exceeded its discretion, the award of visitation in this case is due to be affirmed.

Child Support

The mother next challenges the award of child support to the father in the amount of $363 per month. She argues that an award of child support was unnecessary because the father had been the sole source of support for the parties’ children during the marriage and he could continue to be them sole source of support. She argues that an exception to the application of the child-support guidelines was appropriate under the facts of this case. She also argues that the trial court should have used a downward deviation to calculate the amount of child support due during the months of June and July, when the mother would have expanded visitation with the children.

In response, the father points out that the mother fails to cite any authority in her appellant’s brief for these arguments. He is correct; the mother fails to cite any legal authority for her position on the child-support issue until her reply brief. The father argues that, as a result, the trial court’s child-support calculation should be affirmed. We agree. See Rule 28(a)(10), Ala. R.App. P.; State Farm Mut. Auto. Ins. Co. v. Bennett, 974 So.2d at 962; Kyser v. Harrison, 908 So.2d 914 (Ala. 2005) (when appellants fail to cite any legal authority for their argument until the filing of their reply brief, the issue is not properly raised on appeal); and Rogers & Willard, Inc. v. Harwood, 999 So.2d 912, 923 (Ala.Civ.App.2007). We, therefore, affirm as to the trial court’s award of child support.

Award of Attorney Fees and Guardiaiu-ad-Litem Fees

The mother next appeals from the award of fees to the two guardians ad litem and the award of fees to the father’s attorney. In its final judgment, the trial court ordered the mother to pay $5,340 of the $8,640 in fees to the guardian ad litem appointed to represent the parties’ children; $3,000 of the $3,000 in fees incurred by the guardian ad litem appointed to represent the infant; and $7,000 of the legal fees incurred by the father’s attorney at trial.

On appeal, the mother argues that, by imposing a total of $15,340 in fees upon her, the trial court punished her for asking that the settlement agreement be set aside so that she could continue with the trial. The mother argues that she has no funds with which to pay these fees and that she is, in essence, destitute; that both parties were at fault in this matter; that both parties should be responsible for their own legal fees; that the father requested that the guardians ad litem be appointed for the children and, therefore, he should be responsible for those fees; and that the trial court failed to consider the appropriate factors in ordering her to pay the fees to the father’s attorney and the guardians ad litem.

We first address the mother’s arguments as to the guardian-ad-litem fees. We again note that the mother’s arguments regarding this issue are lacking. The mother’s initial brief on appeal fails to provide a single citation for her argument that the “entire fees for both [guardians ad litem] should be paid by the former husband since the requests were made by his counsel.” This argument is therefore not properly presented on appeal, and, therefore, we have no basis on which to conclude that the trial court exceeded its discretion as to the guardian-ad-litem fees. See Rule 28(a)(10), Ala. R.App. P.; State Farm Mut. Auto. his. Co. v. Bennett, 974 So.2d at 962; and Rogers & Willard, Inc. v. Harwood, 999 So.2d at 923.

The mother next argues that the trial court improperly ordered her to pay $7,000 of the father’s legal fees. In support of that argument, the mother cites Rosser v. Rosser, 355 So.2d 717 (Ala.Civ. App.1977).

“ ‘Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). “Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986).’ ”

Springer v. Damrich, 993 So.2d 481, 489-90 (Ala.Civ.App.2008) (quoting Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App. 1996)).

The record indicates that the mother married at a young age and that, during the parties’ nine-year marriage, she never held a full-time job. The evidence established that, at the time of the parties’ separation, she had a limited earning capacity and that, at the time of the divorce, she had a newborn child and was unemployed. Using imputed income, the trial court ordered her to pay child support for the parties’ three children. The trial court also required the mother to pay the majority of the guardian-ad-litem fees incurred in connection with the divorce proceeding. The divorce judgment ordered that the marital residence be listed with a real-estate agent and sold at fair-market price; the judgment also provided that the net proceeds from said sale be equally divided between the mother and the father and that the guardian-ad-litem fees owed by the mother be paid out of the mother’s portion of said proceeds. We note, however, that the property appraised for $175,000 and that the amount owed on the first and second mortgages totaled $147,723.62. Because the judgment directed that the residence be listed with a real-estate agent, the parties will likely incur some closing costs and a realtor’s commission associated with the sale of the residence. It appears that, after the mother’s portion of the guardian-ad-litem fees are deducted from her one-half of any net proceeds from the sale, she will not receive a significant amount.

Conversely, the father was employed throughout the marriage; he has a greater earning capacity and a significantly higher income than the mother. The guardian-ad-litem fees he was required to pay were significantly less than those imposed upon the mother. Additionally, the father will receive one-half of the net proceeds from the sale of the marital residence.

We recognize that the trial court was entitled to consider fault as a factor in awarding attorney fees. However, ability to pay is also a factor to be considered in ordering payment of attorney fees, even when wrongdoing has been established. See Rosser, 355 So.2d at 719-20 (in divorce and custody action, wife was admittedly guilty of adultery and trial court properly awarded custody of parties’ minor children to husband; however, trial court properly ordered husband to pay wife’s attorney fees because wife had no financial means to do so and husband’s financial condition was better than wife’s); Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997) (even though husband was guilty of adultery, trial court did not err in failing to award wife attorney fees in light of the assets awarded to the parties and their incomes at time of the divorce); Davis v. Davis, 686 So.2d 1245 (Ala.Civ.App.1996) (award of attorney fees was appropriate because husband was in better financial condition than was wife); and Quillin v. Quillin, 652 So.2d 294 (Ala.Civ.App.1994) (husband earned more than twice as much as wife and was in better financial condition than was wife; thus, trial court properly awarded wife attorney fees in connection with divorce). See also Deidun v. Deidun, 362 S.C. 47, 606 S.E.2d 489 (2004) (factors to be considered in determining whether to award attorney fees include the parties’ ability to pay the legal fees, their financial conditions, and the effect of the fee on the parties’ standard of living); and Van Wieren v. Van Wieren, 858 N.E.2d 216 (Ind.Ct. App.2006) (in determining whether attorney fees should be awarded, the court may consider the resources of the parties, the relative earning ability of the parties, and other factors that bear on the reasonableness of the award).

Because the record establishes that the mother was unemployed, had limited financial resources, and had a limited earning capacity at the time of this trial because of her pregnancy, we conclude that the impact of the trial court’s attorney-fee award on the mother would be substantial and far-reaching. We also note that the father’s financial means were substantially higher than those of the mother. We, therefore, conclude that the trial court exceeded its discretion in ordering the mother to pay $7,000 of the father’s attorney fees; we reverse that portion of the trial court’s judgment. We remand this cause for the trial court to vacate that portion of its judgment.

Father’s Request for Attorney Fees on Appeal

Finally, we address the father’s request for an award of attorney fees on appeal. The award of attorney fees on appeal is within the authority and discretion of this court. See Ex parte Bland, 796 So.2d at 345 (citing Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974)). The father’s attorneys have submitted an affidavit attesting that they incurred fees and expenses in the amount of $12,819.79 in connection with preparing the appellee’s brief. In light of the mother’s limited income and the circumstances presented in this case, we decline to award any additional fees to the father on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

BRYAN, J., concurs in part and dissents in part, with writing, which PITTMAN, J., joins.

BRYAN, Judge,

concurring in part and dissenting in part.

I concur in the main opinion insofar as it affirms the trial court’s judgment. I respectfully dissent insofar as the main opinion reverses the portion of the trial court’s judgment ordering the mother to pay the father a $7,000 attorney fee.

As the main opinion acknowledges, the determination “ ‘ “[wjhether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed.” ’ ” 3 So.3d at 901 (quoting .Springer v. Damrich, 993 So.2d 481, 489 (Ala.Civ.App.2008), quoting in turn Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App. 1996)). Indeed, I note that, in every case cited by the main opinion regarding the attorney-fee issue, this court affirmed the trial court’s ruling on that issue.

The “ ‘ “[factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.”’” Springer, 993 So.2d at 489-90 (quoting Glover, 678 So.2d at 176, quoting in turn Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993)). With regard to the conduct of the parties in the case now before us, the trial court made the following finding:

“[T]he primary cause of the destruction of the marriage lies not with both, but with one party. The misguided actions of the wife and her paramour along with her initial deception and ultimate decision concerning the pregnancy directly led to the dissolution of this marriage.”

Thus, the mother’s conduct in causing the breakdown of the marriage was a factor that supported the trial court’s order that the mother pay the father a $7,000 attorney fee. Because the father was the prevailing party in the litigation, that factor also supported the trial court’s order requiring the mother to pay the father a $7,000 attorney fee. Finally, the trial court implicitly found that the services of the father’s attorney were valuable; consequently, that factor also supported the trial court’s order requiring the mother to pay the father a $7,000 attorney fee.

In holding that the parties’ financial circumstances warrant reversing the trial court’s judgment insofar as it requires the mother to pay the father a $7,000 attorney fee, the main opinion, in effect, holds that that single factor trumps all three of the other factors. I cannot agree with that proposition. In my opinion, the three factors supporting the trial court’s attorney-fee award, in the aggregate, outweigh the single factor that does not support that award. Accordingly, given the discretion afforded the trial court in awarding an attorney fee in a domestic-relations case and the factors supporting the trial court’s award in this particular case, I would affirm the trial court’s judgment insofar as it ordered the mother to pay the father a $7,000 attorney fee.

PITTMAN, J., concurs.

      . On March 27, 2007, after paternity testing, the Elmore Juvenile Court entered a consent judgment adjudicating A.G. to be the father of the infant. A.G. was ordered to pay $480 per month in child support to the mother. On April 27, 2007, the trial court entered a judgment in this case determining that T.L.H. was not the father of the infant despite the fact that the infant had been born during the parties’ marriage.

      . It appears that the mother may actually be seeking to share custody of the children with the father on an equal basis. However, her argument on this point is so vague and undeveloped that we cannot consider it. See White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042 (Ala.2008).

      . We note that the trial court imputed income of $8.00 per hour to the mother. In order to earn sufficient income to pay the $7,000 fee award, the mother would have to work 875 hours and devote her entire gross income to payment of the fee award.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Mildred FREDERICK and Vaughn Frederick v. Donald WALLIS.
    2060682.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      Barry V. Frederick and Brandi B. Frederick of The Frederick Firm, Birmingham, for appellants.
    W. Beatty Pearson, Spanish Fort, for appellee.
   MOORE, Judge.

Vaughn Frederick and his wife, Mildred Frederick, appeal from a judgment as a matter of law on their claim of wantonness; they also assert that the trial court erred in allowing certain evidence in the trial against Donald Wallis, with whom they had been involved in an automobile accident. We affirm.

Facts

In July 2001, the Fredericks were driving a 2001 Buick LeSabre automobile south on Highway 59 in Foley. Highway 59 is a five-lane road with two lanes of traffic running southbound and northbound, respectively, and a center turn lane. Wallis was driving his automobile north on Highway 59 when he entered the center turn lane to make a left-hand turn across the two southbound lanes toward the entrance to a Wal-Mart store on the west side of Highway 59.

As the Fredericks approached the area of the Wal-Mart store, they were traveling in the outside southbound lane of Highway 59. The traffic in the inside southbound lane, adjacent to the center turning lane, had backed up due to a traffic light ahead. One of the drivers in the inside southbound lane left a gap in the stopped traffic to allow Wallis to turn across that lane. Wallis testified that he “inched out” a little bit so that he could see if there was any oncoming traffic in the outside southbound lane and that he looked to the right and did not see the Fredericks’ vehicle approaching. The Fredericks testified that Wallis “shot out” from the gap right in front of their vehicle and that Vaughn, who was driving the Fredericks’ vehicle, did not have time to hit the brakes. David Vosloh, who was in a vehicle directly behind Wallis’s vehicle in the center turn lane at the time of the accident, testified that Wallis had been at a dead stop in the center turn lane and that, once there was a break in traffic, Wallis did not ease out, but, instead, just “went ahead and went.” The Fredericks’ vehicle collided with Wallis’s truck in the outside southbound lane. At trial, Wallis admitted fault for the accident.

Vaughn testified that he had sustained an injury to his thumb. Mildred claimed that the accident caused a disfiguring injury from two broken ribs. The Fredericks did not introduce any medical evidence to support their personal-injury claims. As for property damage, Vaughn testified that the vehicle he was driving, which he and Mildred jointly owned, was, according to the “Blue Book,” a publication generally recognized as setting values for used vehicles, worth $26,300 at the time of the accident and that, in his opinion, the vehicle was worth only $5,000 afterwards, the price at which he sold the automobile to a third party after the accident.

In their complaint filed on July 2, 2003, the Fredericks sought compensatory and punitive damages from Wallis in the amount of at least $250,000 based on his negligent and wanton actions in causing the accident. The original trial resulted in a mistrial. At the retrial on March 12, 2007, the trial court granted a judgment as a matter of law (“JML”) in favor of Wallis as to the Fredericks’ wantonness claim. See Rule 50(a)(1), Ala. R. Civ. P. The jury returned a verdict in favor of the Freder-icks and awarded damages in the amount of $4,000 each to Mildred and Vaughn. On March 16, 2007, the trial court entered a judgment pursuant to the jury’s verdict. The Fredericks timely appealed.

Discussion

The Fredericks first argue that the trial court erred in granting a JML on their wantonness claim in favor of Wallis.

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003).

“What constitutes wantonness depends on the facts presented in each particular case. Pate v. Sunset Funeral Home, 465 So.2d 347, 349 (Ala.1984); Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970). For a party to be found guilty of wantonness, it must be shown that with reckless indifference to the consequences of his or her action, the party consciously and intentionally did some wrongful act or omitted some known duty, and that this act or omission caused the injury. Brown v. Turner, 497 So.2d 1119 (Ala.1986).”

Kennedy v. Jack Smith Enters., Inc., 619 So.2d 1326, 1328 (Ala.1993).

“To constitute wantonness, it is not necessary that the actor know that a person is within the zone made dangerous by his conduct; it is enough that he knows that a strong possibility exists that others may rightfully come within that zone. Joseph v. Staggs, 519 So.2d 952, 954 (Ala.1988). Also, it is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or probably result from his actions. Id.”

Ex parte Essary, 992 So.2d 5, 9 (Ala.2007).

Wallis cites Wilson v. Cuevas, 420 So.2d 62 (Ala.1982), in support of his argument that the trial court properly granted his motion for a JML on the issue of wantonness. In Wilson, the defendant attempted to turn left in front of the plaintiffs motorcycle as a traffic light was changing and the two vehicles collided. 420 So.2d at 63. The plaintiff contended that the defendant was trying to “beat” the traffic and that his act constituted wantonness. Id. at 64. The trial court granted a directed verdict (now a JML, see Rule 50, Ala. R. Civ. P.) on the plaintiffs wantonness count; on appeal, the Alabama Supreme Court affirmed, determining that the defendant’s act, in that case, did not constitute wanton conduct. Id. at 64-65.

Wallis also cites Ex parte Essary, stipra, in support of his argument that the Fred-ericks’ wantonness claim was properly disposed of by the trial court. In Essary, the defendant made a “rolling stop” at a stop sign before he proceeded through an intersection and then collided with the plaintiffs’ vehicle, which was not required to stop at the intersection. 992 So.2d at 8. The defendant testified that he had looked both ways before entering the intersection and did not see the plaintiffs’ vehicle approaching; one of the plaintiffs, however, stated that the defendant was attempting to “shoot the gap” between his vehicle and a vehicle in front of him. 992 So.2d at 8. The trial court entered a summary judgment in favor of the defendant on the plaintiffs’ claims of negligence, wantonness, and trespass. 992 So.2d at 8. On appeal, this court reversed the trial court’s judgment, holding, among other things, that the plaintiffs had established a genuine issue of material fact regarding whether the defendant had acted wantonly. Burrell v. Essary, 992 So.2d 1, 5 (Ala.Civ. App.2006). The Alabama Supreme Court granted certiorari review and reversed the part of this court’s opinion that reversed the trial court’s judgment on the wantonness claim and rendered a judgment in favor of the defendant on that claim. Ex parte Essary, 992 So.2d at 13. In its discussion of the wantonness issue, the Alabama Supreme Court stated, in pertinent part:

“The evidence, viewed, as it must be, in a light most favorable to the plaintiffs, the nonmovants, shows that Es-sary slowed to a ‘rolling stop’ at the intersection and attempted to cross the intersection between two moving vehicles. The plaintiffs’ characterization of Essary’s attempt to cross the intersection between two vehicles as ‘accelerating’ after a ‘rolling stop’ to ‘shoot the gap’ does not elevate Essary’s actual conduct — as observed by the plaintiffs— from the negligent failure to exercise good judgment to a wanton act constituting reckless indifference to a known danger likely to inflict injury. At best, the plaintiffs’ evidence shows that Essary, like the defendant in Wilson [v. Cuevas, 420 So.2d 62 (Ala.1982) ], made an error in judgment when he attempted to ‘beat the traffic’ or ‘shoot the gap’ by passing between Banks’s vehicle and Burrell’s vehicle. Wilson holds that such conduct is not wanton.
“Although the evidence indicates that Essary knowingly entered the intersection, there is nothing from which the trier of fact could infer that, in moving his vehicle through the intersection, Es-sary’s state of mind contained the requisite consciousness, awareness, or perception that injury was likely to, or would probably, result. Indeed, the risk of injury to Essary himself was as real as any risk of injury to the plaintiffs. Absent some evidence of impaired judgment, such as from the consumption of alcohol, we do not expect an individual to engage in self-destructive behavior. See Griffin Lumber Co. v. Harper, 252 Ala. 93, 95, 39 So.2d 399, 401 (1949) (‘There is a rebuttable presumption recognized by the law that every person in possession of his normal faculties in a situation known to be dangerous to himself, will give heed to instincts of safety and self-preservation to exercise ordinary care for his own personal protection. It is founded on a law of nature and has [as] its motive the fear of pain or death. Atlantic Coast Line R. Co. v. Wetherington, 245 Ala. 313(9), 16 So.2d 720 [(1944)].’).
“The facts here presented do not establish any basis from which to conclude that Essary was not possessed of his normal faculties, such as from voluntary intoxication, rendering him indifferent to the risk of injury to himself when crossing the intersection if he collided with another vehicle. Nor is the act as described by Burrell so inherently reckless that we might otherwise impute to Es-sary a depravity consistent with disregard of instincts of safety and self-preservation. We therefore conclude that, as a matter of law, the plaintiffs failed to offer substantial evidence indicating that Essary was conscious that injury would likely or probably result from his actions.”

992 So.2d at 12.

In Ex parte Anderson, 682 So.2d 467 (Ala.1996), the defendant attempted to make a left-hand turn across a lane of oncoming traffic although her vision of approaching traffic was partially blocked by an automobile. 682 So.2d at 468. The Alabama Supreme Court determined that there was not substantial evidence of wanton conduct, i.e., indicating that the defendant had acted “ “with knowledge of danger, or with consciousness, that the doing [of the act would] ... likely result in injury.’ ” 682 So.2d at 470 (quoting Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala.1987)).

In accordance with Wilson, Essary, and Anderson, we conclude that the trial court did not err in entering a JML on the Fredericks’ wantonness claim. In both Wilson and Essary, there was evidence indicating that the defendants in those cases had attempted to “beat the traffic” or “shoot the gap” between two cars, indicating that they had actual knowledge of the danger involved, whereas Wallis, like the defendant in Anderson, turned across a lane of oncoming traffic although his vision was obstructed. Viewing the facts in a light most favorable to the Fredericks, Wallis turned into the outside southbound lane once there was a gap in the traffic of the inside southbound lane, although his vision was impaired, like the driver in Anderson. As in Essary, the potential of injury to Wallis was as real as that to the driver or passengers of any oncoming vehicle and there was no evidence presented indicating that Wallis’s judgment was impaired by alcohol or any other source. Thus, based on Essary and Anderson, we conclude that the trial court’s entry of a JML on the Fredericks’ wantonness claim was proper.

The Fredericks next argue that the jury’s verdict was not based on any competent evidence. During Wallis’s attorney’s cross-examination of Vaughn, the following ensued:

“Q. Okay. Was there — an estimate was done to have [the vehicle] repaired, wasn’t there?
“A. Right.
“Q. And that was about eight thousand dollars, wasn’t it?
“[FREDERICKS’ COUNSEL]: Objection, Your Honor, there’s no foundation for this.
“[WALLIS’S COUNSEL]: I simply asked him the question, Your Honor. THE COURT: Overruled.
“[FREDERICKS’ COUNSEL]: Also, hearsay, Judge.
“THE COURT: Well, you’re asking him of his personal knowledge?
“[WALLIS’S COUNSEL]: Yes, sir.
“THE COURT: Base your answer on what you know yourself, Mr. Frederick, and not what someone told you, that would be hearsay.

“A: I wouldn’t have the faintest idea.” Wallis’s attorney then produced a copy of the estimate to refresh Vaughn’s recollection. The following exchange then took place:

“Q: Go ahead and take a look at this. This was an estimate compiled by Hodge’s Auto Collision; is that correct?
“[FREDERICKS’ COUNSEL]: Same objection, Judge.
“[WALLIS’S COUNSEL]: I’m just asking him to read the document. “THE COURT: Overruled.
“Q: All right. This right here, the amount to have this work completed was eight thousand three hundred and forty-four dollars and thirty-eight cents. Does that refresh your recollection?
“[FREDERICKS’ COUNSEL]: Judge, this is hearsay. He’s not an expert.
“THE COURT: Are you going to call this witness?
“[WALLIS’S COUNSEL]: No, Your Honor, and I’m not going to offer this document into evidence. I’m just using it to refresh his recollection as to the estimate that was done on the vehicle.
“A: If I’m going to read one figure off this thing, I’m going to read them all. Every single figure.
“[FREDERICKS’ COUNSEL]: Excuse me. My objection, you can’t back door it in that way.
“THE COURT: Okay. I sustain the objection.”

As stated earlier, the jury awarded the Fredericks a total of $8,000. The Freder-icks argue that this amount was derived from the inadmissible evidence of the repair estimate and that, therefore, “the verdict was unsupported by any competent evidence.” (Fredericks’ reply brief, p. 19.) The Fredericks argue that the jury should have awarded them $21,300 based on Vaughn’s “uncontroverted” opinion testimony of the value of the automobile before and after the accident.

In Argo v. Walston, 885 So.2d 180 (Ala. Civ.App.2003), cited by the Fredericks in support of them argument, a landowner brought a breach-of-contract and fraud action for damages resulting when a man-made lake installed on his property repeatedly overflowed. 885 So.2d at 181. Over a hearsay objection, the landowner testified in a bench trial that he had received estimates that it would cost $10,000 to $15,000 to fix the lake. The trial court subsequently entered a judgment in favor of the landowner for $25,000. On appeal, the defendant who had built the lake argued that there was no competent evidence to support the judgment. Id. This court agreed, noting that the trial court had erroneously allowed the landowner to testify as to another person’s estimate of the damage, which was hearsay and did not fit within any exception to the hearsay rule. 885 So.2d at 181. This court therefore reversed the trial court’s judgment and remanded the case for a new trial on the issue of damages.

In State Farm Fire & Casualty Co. v. Williams, 926 So.2d 1008 (Ala.2005), another case cited by the Fredericks, our supreme court reversed a judgment for a homeowner in an action against the homeowner’s insurance company. At trial, the homeowner was allowed to testify as to the amount it would cost to repair his home following the collapse of a floor beam. The testimony was based on an estimate given to the homeowner by a construction expert who had examined the damage. 926 So.2d at 1014-18. The court ruled that the homeowner’s testimony should have been excluded by the hearsay rule. 926 So.2d at 1017. Because there was no competent evidence to support the damages claim, the supreme court reversed the judgment and remanded the case for the entry of a JML for the insurer. 926 So.2d at 1018.

This case differs from Argo and Williams in that no witness ever testified as to the content of the repair estimate or made any statement as to the cost to repair the Fredericks’ automobile based on information received from another person in violation of the hearsay rule. The only mention of the cost of repairs was made by Wallis’s attorney when questioning Vaughn. However, to the extent that the jury based its damages award on those statements, the award would be voidable because the statements of counsel are not evidence, see Armstrong v. State, 516 So.2d 806 (Ala.Crim.App.1986), and “there must be “evidence to justify a finding of the amount for which judgment was rendered.” ’ ” Argo, 885 So.2d at 182 (quoting Fidelity & Guar. Ins. Co. v. Sturdivant, 622 So.2d 1279, 1280 (Ala.1993), quoting in turn Holcombe & Bowden v. Reynolds, 200 Ala. 190, 190, 75 So. 938, 938 (1917)).

The only admissible testimony regarding the amount of the property damage was the opinion testimony of Vaughn establishing that amount as $21,300. However, Wallis points out that the jury viewed photographs of the damage to the automobile and could have decided that Vaughn was exaggerating the damage. Relying on Nelda Stephenson Chevrolet, Inc. v. Carter, 537 So.2d 45 (Ala.Civ.App. 1988), Wallis argues that the jury could have permissibly assessed the property damage at a figure much lower than $21,300. In Carter, in addition to viewing the damaged vehicle, the jury was given the defendant’s estimate that it would cost $150 to repair the damaged automobile and the owner’s testimony that the automobile had lost $17,000 to $18,000 in value. In affirming an award of $4,500, this court stated that “[t]he $4,500 award was well within the conflicting range of value.” 537 So.2d at 46. In this case, there was no admissible evidence of a conflicting range of values. Nevertheless, Wallis is correct that because Vaughn’s statements as to the value of the automobile were merely opinion testimony, the jury “ ‘has the prerogative of dealing with [the testimony] as it pleases, giving whatever weight their experience or general knowledge directs.’ ” Carter, 537 So.2d at 46 (quoting Morgan v. Harris, 55 Ala.App. 694, 696, 318 So.2d 723, 724 (Ala.Civ.App.1975)). The jury obviously did not give full weight to Vaughn’s testimony. Having discounted that testimony, the jury could properly award property damages amounting to less than $21,300, as it plainly did.

Because the jury returned a general verdict, this court cannot discern the amount of property damages awarded. In addition to them property-damage claim, the Fredericks also claimed damages for their personal injuries. Therefore, we cannot agree with the Fredericks that the jury necessarily awarded $8,000 solely for property damages. We also note that the $8,000 awarded was $344.38 less than the amount of the repair estimate as declared by Wallis’s counsel. The amount of the award does not plainly and palpably show that the jury used Wallis’s attorney’s questions as the basis for its award. Because we must presume that a jury’s verdict is correct unless shown to be plainly and palpably wrong, see Charter Hosp. of Mobile, Inc. v. Weinberg, 558 So.2d 909, 911 (Ala.1990), we cannot reverse the judgment in this case.

For the above-stated reasons, we affirm the trial court’s judgment.

AFFIRMED.

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

      . Because of our disposition of this issue, we pretermit any discussion of whether the Fred-ericks waived their evidentiary arguments by failing to file a postjudgment motion.


author: THOMAS, Judge.

text:
    Gloria J. HOEGH v. Robert BURTON, as executor of the estate of Willie L. Turks, deceased.
    2070278.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      Tiffany B. McCord, Montgomery, for appellant.
    Bridgett Vasser Gray and Fred D. Gray of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, Tuskegee, for appellee.
   THOMAS, Judge.

Gloria J. Hoegh filed an action contesting the will of Willie L. Turks, her alleged aunt. Robert Burton is the executor of Turks’s estate. In March 2003, the Macon County Probate Court dismissed her will-contest action, finding that Hoegh had not proved that she had standing to challenge the will. Hoegh appealed the probate court’s dismissal of her action to the Macon Circuit Court on April 21, 2003. On April 6, 2006, the Macon Circuit Court dismissed Hoegh’s appeal. Hoegh appealed the circuit court’s dismissal to this court, which transferred the appeal to the supreme court, which then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). That appeal was assigned case number 2050696. On motion of the appellee, we dismissed the appeal as untimely because Hoegh’s appeal was filed on May 24, 2006, outside the 42-day period for filing an appeal. Hoegh sought a rehearing of our dismissal, which we denied. The certificate of judgment in case number 2050696 issued on October 10, 2006.

On October 23, 2006, Hoegh filed in the circuit court a motion pursuant to Rule 60(b), Ala. R. Civ. P. She amended her motion on June 7, 2007. Burton responded with several pleadings and motions, including one seeking an award of an attorney fee under the Alabama Litigation Accountability Act (“ALAA”), Ala. Code 1975, § 12-19-270 et seq., and pointing out that the circuit court had never ruled on his “Motion for Affirmative Relief,” in which he requested that Hoegh be made to return property she had removed from the decedent’s home and to pay damages for any damage that may have resulted to the property. The circuit court denied Hoegh’s Rule 60(b) motion on November 20, 2007. In its judgment, the circuit court retained jurisdiction over remaining “matters which are properly pending before this court.” Hoegh sought “rehearing” or “reconsideration” of the circuit court’s denial on November 29, 2007; the circuit court denied that motion on December 20, 2007. Hoegh appealed to this court on December 28, 2007; we transferred the appeal to the supreme court because we lacked subject-matter jurisdiction, and the supreme court, in turn, transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Although neither party raises the issue of jurisdiction to this court, we take notice of the lack of jurisdiction ex mero motu. See Decker v. Decker, 984 So.2d 1216, 1219 (Ala.Civ.App.2007). An appeal ordinarily lies only from a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App. 1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.

The circuit court’s judgment reserves jurisdiction over “matters which are properly pending before this court,” which include not only Burton’s ALAA claim, which, alone, might not prevent the judgment from being final, see Meek v. Diversified Prods. Corp., 575 So.2d 1100, 1101, 1108 (Ala.1991) (indicating that a party may appeal from a final judgment despite the fact that the trial court has reserved jurisdiction to consider an ALAA claim), but also a claim seeking the return of property removed from the decedent’s home by Hoegh and/or damages for any damage done to that property by Hoegh. That particular claim, which appears to be a detinue claim, has not been adjudicated. Accordingly, because the judgment does not resolve all issues or determine the rights and liabilities of all the parties and because the record does not contain a Rule 54(b) certification, the judgment is not final and will not support an appeal.

APPEAL DISMISSED.

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


author: THOMAS, Judge. MOORE, Judge,

text:
    Susan Bosch TURNER v. Gary NEWSOM and University Diagnostics, P.C.
    2070095.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      Zondra T. Hutto of Hutto Staggs, LLC, Tuscaloosa; and Travis R. Wisdom, Auburn, for appellant.
    Ronald L. Davis and Chad L. Hobbs of Rosen Haiwood, P.A., Tuscaloosa, for ap-pellees.
   THOMAS, Judge.

Susan Bosch Turner appeals from a summary judgment entered for Gary New-som and University Diagnostics, P.C. (“UD”), on her claim alleging that they breached her employment contract, which she alleged was for permanent or lifetime employment.

Turner was employed as a psychiatric nurse by UD in August or September 2000. At that time, UD was a professional partnership between Newsom and Kamal Raisani, who were both psychiatrists. In April 2001, Raisani left the partnership. According to Turner, Newsom was concerned about the practice and desired that somebody be employed to assist in maintaining the practice, reconciling records, and handling office-management tasks. To this end, Turner said, Newsom approached her with an offer for her to become the “Executive Officer” of UD. She testified in her deposition that New-som had requested her to prepare an employment contract; however, she said that he was not satisfied with the contract she prepared and that he then added several terms to the contract. The contract contained several terms indicating that Turner’s employment was permanent, including:

“[Turner] will receive her pay until Dr. Gary Newsom retires, or until she resigns.”
“[Turner] will be employed with these benefits until the retirement of the President.”
“[Turner] also will remain employed by University Diagnostics until the time of retirement of Gary Newsom. If the personal relationship resides [sic] there will always remain this professional relationship. [Turner] will remain at her same title and pay until the resolution [sic] of the corporation.”

For her part, Turner was required to give a one-month notice of her resignation and to train the employee who would replace her; she was also required to display a professional attitude toward Newsom and promised not to harm Newsom or his practice intentionally. The contract specified Turner’s hours to be from 9:00 a.m. to 2:00 p.m. each weekday and indicated that her biweekly salary was $4,800. In addition, the contract provided that Turner was to receive bonuses, an automobile purchased by UD, and that her automobile, health, and dental insurance would be furnished by UD as well. The contract further stated that, if Turner decided to continue her education, UD would pay for her tuition and fees.

In May 2003, UD fired Turner. In August 2005, she sued UD, Newsom, and fictitiously named parties, alleging breach of her lifetime employment contract. After filing an answer denying Turner’s allegations, Newsom and UD filed a counterclaim, alleging conversion of certain personal and business items, intentional infliction of emotional distress/the tort of outrage, and asserting a claim under the Alabama Litigation Accountability Act (“ALAA”), Ala.Code 1975, § 12-19-270 et seq. Turner answered the counterclaim, denying the allegations asserted therein and amended her complaint to add an intentional-infliction-of-emotional-distress/tort-of-outrage claim and a conversion claim; she also asserted an ALAA claim against Newsom and UD. Newsom and UD later amended their counterclaim to assert claims of forgery and embezzlement.

On June 30, 2006, Newsom and UD filed a motion for a summary judgment. In that motion, they argued that Newsom neither agreed to nor signed the contract upon which Turner based her breach-of-contract claim; that the contract was insufficient as a matter of law to be a lifetime employment contract; and that, if the contract were deemed to be sufficient to be a lifetime employment contract, Newsom and UD had had sufficient cause to terminate Turner’s employment, i.e., Tuner’s alleged forgery of several UD checks and the conversion of UD’s funds to her own use. Newsom and UD attached the affidavit of a handwriting expert, Newsom’s own affidavit, and Turner’s deposition testimony to their summary-judgment motion.

Turner filed a response to the summary-judgment motion on June 21, 2007. In support of her response, Turner presented the employment contract, the affidavit of a handwriting expert, an office memorandum regarding Turner’s promotion to executive officer written by and signed by Newsom, Turner’s own affidavit, portions of New-som’s testimony in his divorce trial, portions of Newsom’s deposition, and two letters informing Turner of the termination of her employment. She argued in her response to the summary-judgment motion that genuine issues of fact regarding whether the contract was sufficient to be a lifetime employment contract existed and that genuine issues of fact regarding the basis for her termination from employment existed.

After a hearing, at which counsel for both parties presented oral argument, the trial court entered a partial summary judgment in favor of Newsom and UD only on Turner’s breach-of-contract and intentional-infliction-of-emotional-distress/tort-of-outrage claims. The trial court expressly made the partial summary judgment a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Turner appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial 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 Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant, and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Generally, in Alabama, employment relationships with no specified terms are considered to be terminable at the will of either party. Ex parte Michelin North America, Inc., 795 So.2d 674, 677 (Ala. 2001). Provisions in company handbooks and company memoranda have been held to establish employment contracts modifying the at-will doctrine. See, e.g., Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987); Evans v. National Microsys., Inc., 576 So.2d 207 (Ala.1991). In addition, in certain instances, Alabama courts will recognize a “permanent” or lifetime employment relationship. See, e.g., Birmingham-Jefferson County Transit Auth. v. Arvan, 669 So.2d 825, 827-29 (Ala.1995); Scott v. Lane, 409 So.2d 791 (Ala.1982). As contrasted with at-will employment, permanent employment is ‘“a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform this service satisfactorily.’ ” Alabama Mills, Inc. v. Smith, 237 Ala. 296, 299, 186 So. 699, 702 (1939) (quoting 18 R.C.L. 510); see also Green v. City of Hamilton, Hous. Auth., 937 F.2d 1561, 1564 (11th Cir.1991). However, permanent or lifetime employment contracts are considered extraordinary and are not to be lightly implied; the burden on an employee seeking to demonstrate the existence of such a contract is a heavy one. Howard v. Wolff Broad. Corp., 611 So.2d 307, 311 (Ala.1992).

“The cases reveal that three elements must be shown to establish that an employment contract is one other than one terminable at will: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration, Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982); (2) that the hiring agent had authority to bind the principal to a permanent employment contract, Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939); and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So.2d 853 (1967).”

Hojfmanr-La Roche, 512 So.2d at 728. Although Newsom and UD have challenged the authenticity of Newsom’s signature on the contract, for purposes of the summary-judgment motion and this appeal they concede that, assuming that Newsom signed the contract, Newsom would have had the authority to bind UD. Thus, only the first and third elements are at issue. Because we conclude that Turner did not present substantial evidence indicating that she provided substantial consideration for the alleged contract, we pretermit discussion of whether she submitted substantial evidence indicating that Newsom and UD made a clear and unequivocal offer of lifetime employment. Turner was required to present substantial evidence creating a genuine issue of material fact regarding whether she “provided substantial consideration for the contract separate from the services to be rendered.” Hoffman-La Roche, 512 So.2d at 728 (emphasis added). In making a determination as to whether the employee has provided substantial consideration to support a permanent or lifetime employment contract, “ ‘ “the courts inquire into the actual value of the consideration.” ’ ” Scott, 409 So.2d at 791 (quoting United Sec. Life Ins. Co. v. Gregory, 281 Ala. 264, 265, 201 So.2d 853, 854 (1967) (quoting in turn National Union Life Ins. Co. v. Ingram, 275 Ala. 810, 314, 154 So.2d 666, 669 (1963))) (emphasis omitted). Newsom and UD argue that Turner provided no consideration for this exceptional contract, while Turner maintains that she presented substantial evidence creating a genuine issue of material fact regarding the element of substantial consideration. She argues that the following are substantial consideration: (1) having to give a 30-day notice of her resignation and train her replacement, (2) giving up her previous employment with Newsom and UD as a psychiatric nurse, (3) accepting a decrease in salary, (4) putting the furtherance of her education on hold, (5) spending less time with her only child, and (6) maintaining a proper professional attitude toward New-som and promising not to harm him or the business intentionally in the face of her alleged knowledge of some unspecified “immoral” conduct of his that she witnessed.

As noted above, Newsom and UD relied in large part on Turner’s deposition testimony in support of them motion for a summary judgment. In that deposition, counsel for Newsom and UD asked Turner what she was required to do, if anything, to benefit Newsom or UD in return for permanent or lifetime employment. Turner answered that she was required to give a 30-day notice before leaving her employment, that she was required to train her replacement, and that she was required to not harm Newsom or the business in any way. Newsom and UD argue that these slight burdens, which mirror typical employment requirements, are not in any way “substantial” enough to warrant a conclusion that Turner had provided consideration for a permanent or lifetime employment contract. We agree. Notice of resignation and the requirement that one train one’s replacement are both rather typical requirements of employment. Turner cites no authority supporting a conclusion that these requirements amount to the substantial consideration necessary to support the weighty obligation of a permanent or lifetime employment contract, and we can conceive of no reason to consider such typical employment requirements as such. We now turn to the other alleged substantial consideration Turner argues supports the contract.

In response to the motion for a summary judgment, Turner submitted her own affidavit. In that affidavit, Turner alleged that her new duties took up so much of her time that she was required to drastically reduce the time she was able to spend with her son. She further alleged that she had communicated to Newsom a desire to continue her education, which desire, she said, she postponed in order to accept the offer of lifetime employment and to “get the office up and running.” Lastly, Turner stated in her affidavit that she had “personally witnessed immoral behavior on the part of Dr. Newsom” and that she had been prepared to leave his employment over this incident until he offered her the employment contract as an inducement to remain in his employ.

We will first consider whether Turner’s decision to overlook Newsom’s alleged “immoral behavior” was substantial consideration for a permanent or lifetime employment contract. Turner analogizes her agreement to overlook this alleged immoral conduct and to not harm Newsom or his business (for purposes of this argument, presumably by reporting or disclosing this alleged immoral conduct) to relinquishing a claim against one’s employer, which has been held to be substantial consideration for a permanent or lifetime employment contract. See Lee v. City of Gadsden, 592 So.2d at 1039 (stating that relinquishment of a claim against the employer is one of the then-recognized two acceptable forms of consideration for a lifetime employment contract); Alabama Mills, 237 Ala. at 299, 186 So. at 702 (quoting 18 R.C.L. 510). Although we are not convinced that deciding to overlook “immoral behavior” on the part of one’s employer can never be equivalent to relinquishing a claim against that employer, we need not delve into the issue further to decide this case. First of all, the lack of specificity in Turner’s affidavit fails to present substantial evidence creating a genuine issue of material fact warranting consideration of this argument. Wilson v. Vulcan Rivet & Bolt Corp., 439 So.2d 65 (Ala.1983) (recognizing that promise to forbear from suit against an employer at its request can be substantial consideration supporting a permanent employment contract but holding that the evidence did not indicate that the employee had a claim against the employer' or that the employer had requested that the employee forbear from suit). Secondly, we note that Turner’s affidavit testimony on this point directly conflicts with Turner’s deposition testimony, in which she stated that she had no reason to leave the employ of UD at the time Newsom approached her with an unsolicited offer of lifetime employment and that she did not require the contract as an inducement to continue her employment. Doe v. Swift, 570 So.2d 1209, 1214 (Ala.1990) (stating the rule that a party may not create a genuine issue of material fact to avoid entry of a summary judgment with an affidavit that contradicts prior sworn testimony given in answer to clear and unambiguous questions); Lady Corinne Trawlers, Inc. v. Zurich Ins. Co., 507 So.2d 915, 917-18 (Ala.1987) (indicating that the trial court can decide whether an affidavit that contradicts prior sworn testimony without explanation is a sham even without a motion to strike from the opposing party). Because Tuner’s deposition testimony clearly indicated that she did not have any reason to leave UD’s employ, her contradictory affidavit testimony cannot be used to create a genuine issue of material fact to defeat summary judgment. The trial court could have decided not to consider this particular assertion by Turner when deciding the summary-judgment motion. Lady Corinne Trawlers, 507 So.2d at 917-18.

We now turn to Turner’s assertion that spending less time with her son because of her increased duties amounted to the substantial consideration required to support a lifetime employment contract. We are not convinced that working the additional hours required by the position one has contracted for amounts to the substantial consideration required to support a permanent or lifetime employment contract. To establish the substantial consideration to support a lifetime or permanent employment contract, Turner must prove that she provided “ ‘consideration of substantial value, independent of any service to be performed.’ Gregory, 281 Ala. at 265, 201 So.2d at 854 (quoting Ingram, 275 Ala. at 314, 154 So.2d at 669); see also Scott, 409 So.2d at 794. Because Turner’s position as executive officer required her to do more than her position as a psychiatric nurse, like handling employee scheduling, patient scheduling, insurance issues, contacts with other medical providers, Newsom’s answering service and on-call issues, and questions regarding prescription drug refills from pharmacists, the time needed to complete her work tasks increased. However, we cannot agree that performing the tasks required by her new position amounts to anything more than a performance of the services for which she contracted. Therefore, we conclude, as the supreme court did in Gregory, that Turner’s performance of the duties required by her new position, while requiring considerable time, is not the substantial consideration “ ‘independent of any service to be performed’ ” necessary to support a lifetime or permanent employment contract. Gregory, 281 Ala. at 266, 201 So.2d 855 (emphasis omitted).

Later, in a supplemental filing, Turner argued to the trial court that her counsel had inadvertently agreed that her salary under the contract exceeded what she had earned as a psychiatric nurse in Newsom and UD’s employ; she argued in that filing that she had accepted a decreased salary as consideration for the lifetime employment contract. Turner submitted an affidavit in support of her supplemental filing in which she explained that her base salary as a psychiatric nurse had been approximately $149,592 per year while her base salary as the executive officer under the contract was $124,000. However, the affidavit does not take into account the other remuneration that Turner was entitled to receive under the employment contract, including quarterly bonuses of between $30,000 and $50,000, the provision of two automobiles (one a Mercedes automobile and one a Chevrolet Denali sport-utility vehicle) paid for by UD, and automobile insurance also paid for by UD. At her deposition, Turner produced two letters verifying her income written for the purposes of securing a loan or a mortgage; those letters, the contents of which were read into the record by her attorney, indicated that Turner’s biweekly salary was $4,800, that she received quarterly bonuses of $30,000 to $50,000, that her 2001 income was $172,00, and that her 2002 income was $200,000. In Turner’s verified complaint, she stated that she would have been entitled to, including all bonuses and benefits, at least $307,374 in yearly compensation under the contract. Thus, Turner failed to present substantial evidence indicating that she accepted a lesser salary as substantial consideration for a lifetime employment contract.

Turner further argues that she chose to pass up a chance to further her education and that her delaying her educational plans amounts to substantial consideration for the lifetime employment contract. Turner states in her affidavit that she had “checked into” some educational programs at three universities. However, Turner does not allege that she had actually been accepted into any educational institution at the time she entered the employment contract. In fact, she testified in her deposition that she had had no plans to leave UD’s employ at the time Newsom presented her with the employment contract. The contract itself provides that, if she were to continue her education, UD would pay her tuition and fees. Although an employee’s decision to forgo another employment opportunity has been considered to be at least substantial evidence of substantial consideration for a lifetime employment contract warranting submission of the question to the jury, Arvan, 669 So.2d at 827-28, we cannot agree that a decision to forgo the idea of furthering one’s education or to delay seeking continued education is equivalent to forgoing another employment opportunity. Thus, we conclude that Turner’s decision not to further her education, in this instance, was not substantial consideration to support a lifetime employment contract.

Finally, Turner argues that she left her previous employment as a psychiatric nurse at UD in order to take the executive-officer position. Alabama law is clear that “knowledge by the employer ‘that the person being employed then has employment, and that he is giving it up to engage in his new work under the contract’ is valuable consideration.” Scott, 409 So.2d at 794-95 (quoting Alabama Mills, 237 Ala. at 299, 186 So. at 702). However, as the trial court itself questioned at the hearing on the motion for a summary judgment, does accepting a promotion from the same employer equate to giving up other employment such that accepting the promotion can serve as substantial consideration for a permanent or lifetime employment contract? As we have noted, Alabama law recognizes as substantial consideration an employee’s giving up prior employment or another job opportunity as substantial consideration supporting a permanent or lifetime employment contract. Arvan, 669 So.2d at 827 (employee gave up job opportunity in California); West Alabama Health Servs., Inc. v. Lewis, 548 So.2d 434, 435 (Ala.1989) (employee gave up being self-employed); Scott, 409 So.2d at 794 (employee gave up previous employment); and Matthews v. Alabama Agric. & Mech. Univ., 716 So.2d 1272, 1277 (Ala.Civ.App.1998) (employee gave up previous employment). However, Alabama law requires that the prior employment relinquished be of “substantial” character. Lee, 592 So.2d at 1039. The Lee court based the requirement that the relinquishment be of “substantial” employment on Alabama Mills, in which our supreme court held that the relinquishment of employment with a “charitable or public welfare agency which is designed ‘to serve [employ] those who are otherwise unemployed’ ” was not sufficient to serve as the necessary substantial consideration to support a lifetime employment contract. Lee, 592 So.2d at 1039 n. 8 (quoting Alabama Mills, 237 Ala. at 300, 186 So. at 702).

We have found no Aabama case that addresses whether accepting a promotion to a position with more responsibility and more authority amounts to a relinquishment of prior employment and whether, if so, that relinquishment is substantial enough to support a permanent or lifetime employment contract. In addition, we can find no cases in other jurisdictions addressing this particular argument. Robert A. Brazener, Annotation, Validity and Duration of Contract Purporting to be for Permanent Employment, 60 A.L.R.3d 226 (1974). Although accepting a promotion requires one to relinquish one’s former position and, at times, the duties associated therewith, we are not convinced that accepting a promotion is the type of “relinquishment of a prior ‘substantial’ employment,” Lee, 592 So.2d at 1039 (footnote omitted), that our courts would consider to be substantial consideration to support a permanent or lifetime employment contract. The basis for allowing the relinquishment of prior employment to meet the substantial-consideration requirement is that the employer has knowledge that the person is giving up other secure employment to take a risk on a new employment relationship; that same risk is simply not present in a situation in which one takes a promotion offered by one’s current employer. Thus, we conclude that Turner’s decision to accept a promotion by her employer is not substantial consideration that would support a lifetime employment contract under Alabama law.

We cannot agree that Turner has presented substantial evidence of substantial consideration other than the services to be rendered under the employment contract to support a contract for permanent or lifetime employment. Based on our review of applicable caselaw, Turner’s offered considerations are simply insufficient as a matter of law to be the substantial consideration required to support such a weighty obligation by her employer. Therefore, we affirm the partial summary judgment in favor of Newsom and UD.

AFFIRMED.

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

Because I do not believe Susan Bosch Turner presented substantial evidence indicating that Gary Newsom and University Diagnostics, P.C., made a clear and unequivocal offer of lifetime employment as required by Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala.1987), I concur in the result.

      . Notably, Turner did not describe this immoral conduct.

      . Although not directly on point, we have considered the rationale expressed in Buffaloe v. United Carolina Bank, 89 N.C.App. 693, 696-97, 366 S.E.2d 918, 921 (1988), regarding whether relocation to accept a promotion is additional consideration sufficient to overcome the presumption that the employee’s employment was at will. Alabama, like North Carolina, has recognized that an agreement to relocate for the purpose of the new employment can be considered substantial consideration supporting a permanent or lifetime employment contract. Murphree v. Alabama Farm Bureau Ins. Co., 449 So.2d 1218, 1221 (Ala.1984). In Buffaloe, the Court of Appeals of North Carolina determined that relocation of an employee from one town to another for a promotion within the same company was not equivalent to relocating in order to accept a position with a new employer. Buffaloe, 89 N.C.App. at 696-97, 366 S.E.2d at 921. We agree with the North Carolina court that there is a difference between relocating incident to a promotion by one's current employer and relocating to begin a new employment relationship. That difference obtains in the current context as well, as discussed infra.


author: BRYAN, Judge.

text:
    Tanya BUTLER v. Rickey G. PHILLIPS.
    2070488.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      W.N. Watson of Watson & Gillis, P.C., Fort Payne, for appellant.
    Dana Grimes, Fort Payne, for appellee.
   BRYAN, Judge.

Tanya Butler (“the mother”) appeals from a judgment of the DeKalb Circuit Court that modified the custody of the parties’ minor children — namely, Darick, a boy born on July 20, 1994, and Trevor, a boy born on June 25, 1996 (hereinafter collectively referred to as “the children”)— by transferring it from the mother to Rickey G. Phillips (“the father”). We dismiss the appeal as being from a nonfinal judgment.

The parties divorced in March 1999. The divorce judgment awarded the mother custody of the children and awarded the father certain visitation rights. The divorce judgment also required the father to pay child support in the amount of $250 per month.

The record on appeal reveals that the first pleading filed in this case was a “petition to modify” that was filed by the State Department of Human Resources (“DHR”) in November 2005. DHR’s petition requested that the trial court enter an order modifying its previous order of child support and requiring the father to provide medical insurance for the children. On February 10, 2006, the father petitioned the trial court to modify the custody of the children. The father’s petition asserted, in pertinent part, that there had been a material change in circumstances since the parties’ divorce and that he could provide the children with a “more stable family unit than that provided by the [mother].... ” On the same day,,the father also moved the trial court to transfer the case from DHR’s “child-support docket” to the trial court’s “regular domestic docket.” On March 13, 2006, the trial court granted the father’s motion to transfer. On March 17, 2006, the mother filed an answer and a counterpetition seeking, among other things, that the trial court find the father in contempt of court for his failure to pay-child support pursuant to the divorce judgment.

On September 12, 2006, the trial court entered an order, pursuant to an agreement of the parties, that modified the father’s child-support obligation from $250 per month to $559 per month beginning on August 1, 2006. On March 12, 2007, DHR petitioned the trial court to find the father in contempt of court for failure to pay child support. DHR’s petition alleged that the father’s child-support payments were in arrears in the amount of $2,033.56.

On June 15, 2007, the trial court held an ore tenus proceeding on the father’s custody-modification petition. On June 29, 2007, the trial court entered an order finding:

“1. The [father] has failed to meet the burden of proof set forth in Ex parte McLendon [, 455 So.2d 863 (Ala.1984),] and his petition for a change of custody is denied.
“2. The [father] is in contempt for the non-payment of child support. Sanctions for said contempt are withheld so long as the [father] remains current on his monthly child support obligation and pays his arrearage to the [mother] within 90 days of the date of this order. As of May 31, 2007, the [father] is in arrears in the amount of $682.00.
“3. The remaining requests of the parties are denied.”

On July 24, 2007, the father moved the trial court to alter, amend, or vacate its June 29, 2007, order or, in the alternative, to set the matter for a new trial.

On August 1, 2007, the mother filed a “motion for contempt” alleging that the father had failed to remain current on his child-support payments as required by the trial court’s June 29, 2007, order. On September 19, 2007, the parties filed a “joint agreement for exten[s]ion of time,” stating, in pertinent part, that the parties “agree[d] to extend the time for the [trial] Court’s ruling on postjudgment motions presently pending in this cause past ninety (90) days.” On October 25, 2007, DHR filed a motion to withdraw its March 12, 2007, contempt petition based upon the father’s “increased Child Support payments and significant reduction of arrear-age.”

After twice continuing the matter, the trial court, on November 15, 2007, conducted a hearing on the parties’ postjudgment motions. On December 4, 2007, the father filed a “petition to modify [custody and] motion for immediate relief.” The father’s December 2007 petition sought, among other things, an immediate order transferring custody of the children to the father based upon the following allegations:

“a. The former step-father of the minor children, who according to testimony abused the minor children, has resumed living in the home with the [mother];
“b. The minor children[’s] grades and school work continue[ ] to suffer and the [mother] is either unwilling or unable to provide assistance;
“c. The minor children desperately desire a change in custody and urgently wish to speak to the Court;
“d. On December 1, 2007, the [mother] physically assaulted the [father’s] current spouse, in a public location, in the presence of the minor children. The [mother’s] behavior was so outrageous that the [father] fears that [the mother] is using drugs or alcohol, or has had some type of mental breakdown;
“e. Due to the aforementioned assault, it is expected that a warrant will be issued for the [mother’s] arrest;
“f. Since the aforementioned assault, the [mother] has refused to allow the [father] to speak to the minor children and the [father] has no way of knowing if the children are safe.”

On December 5, 2007, the trial court entered an order vacating the portion of its June 29, 2007, order that denied the father’s first custody-modification petition. The trial court’s December 5, 2007, order also, among other things, awarded the father primary physical custody of the children, awarded the mother certain visitation rights, and ordered the mother to pay child support in the amount of $389 per month. On December 17, 2007, the mother moved the trial court to alter, amend, or vacate its December 5, 2007, order. The trial court denied the mother’s post-judgment motion. The mother appeals.

The mother raises two issues on appeal. The mother first argues that the trial court erred in modifying the custody of the children because, she argues, the father did not meet the burden of proof set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). The mother also argues that the trial court erred in considering facts that had not been admitted into evidence before the trial court entered its December 5, 2007, order.

Even though this issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. “ ‘Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.’” Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007) (quoting McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004)). “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979)). “[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ ” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)).

The mother’s August 1, 2007, motion for contempt was filed as a part of her responses to the father’s postdivorce petition to, among other things, modify custody of the children. The mother’s August 1, 2007, motion for contempt was based on the father’s failure to comply with the portion of the trial court’s June 29, 2007, order requiring the father to remain current on his child-support payments. For all that appears in the record, the trial court never ruled on the mother’s August 1, 2007, motion for contempt. “[D]uring a postdivorce proceeding, [if] the trial court fails to rule on every pending contempt motion, its failure to do so ... affect[s] the finality of the judgment in the postdivorce proceeding because, in such circumstances, the filing of each contempt motion does not initiate a separate and independent proceeding.” Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). The trial court’s failure to dispose of the mother’s August 1, 2007, motion for contempt renders the trial court’s December 5, 2007, judgment nonfmal. Accordingly, we must dismiss the mother’s appeal.

APPEAL DISMISSED.

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

      . Rule 59.1, Ala. R. Civ. P., provides that
      “[n]o post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record .... A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”
      The sufficiency of the parties “joint agreement” was not raised on appeal. However, an ineffective agreement purporting to extend the time to rule upon postjudgment motions could potentially result in an untimely notice of appeal; thus, the sufficiency of the parties' joint agreement has jurisdictional implications, and we have a duty to raise the issue ex mero motu. See Landers v. Landers, 812 So.2d 1212, 1215 (Ala.Civ.App.2001). After reviewing the parties’ September 19, 2007, joint agreement, we conclude that it satisfies the requirements of Rule 59.1. The joint agreement demonstrates the parties' “express consent” to extend the time allowed under Rule 59.1 and it appears "of record”; thus, the joint agreement was sufficient to extend the trial court's 90-day period for ruling upon postjudgment motions. See Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App.2002) (“An express consent of the parties, one evidenced by 'positive steps to express [an agreement to extend the 90-day period] in a direct and unequivocal manner,’ is required to extend the 90-day period under Rule 59.1.” (quoting Personnel Bd. for Mobile County v. Bronstein, 354 So.2d 8, 11 (Ala.Civ.App.1977))).

      . The trial court's December 5, 2007, order does not include a ruling on the mother's motion for contempt. Additionally, the transcript of the trial court's November 15, 2007, hearing reveals that, although counsel for the mother argued that the father remained in violation of the trial court's previous child-support order, the trial court made no oral ruling on the mother's motion for contempt. Furthermore, we note that the mother’s brief on appeal asserts that the father had "agreed that he was in contempt for failure to pay child support as directed by the trial court”; however, the transcript of the November 15, 2007, hearing reveals no such admission by the father or his counsel.