THOMAS, Judge.
R.B.S. ("the former wife") appeals from the judgment of the Baldwin Circuit Court enforcing a settlement agreement between the former wife and K.M.S. ("the former husband"). We affirm.
In 2002, the former husband petitioned the trial court for a divorce. The former husband also filed a motion for temporary custody of the parties' two minor children ("the children") and for a restraining order preventing the former wife from having any contact with the former husband or the children. The trial court granted the former husband's motion for temporary custody and entered a temporary restraining order against the former wife. The former wife then moved the trial court for temporary custody of the children, child support, and pendente lite alimony; the former wife also moved the trial court to grant her exclusive possession of the parties' Ono Island home. The former wife then answered the former husband's complaint and counterclaimed, requesting custody of the children, child support, an equitable division of the parties' assets and debts, alimony, and an attorney fee. The trial court entered an order that, among other things, granted the parties joint legal custody of the children, with the former husband having temporary physical custody of the younger child and the parties having joint physical custody of the older child, modified the temporary restraining order insofar as it conflicted with the trial court's order, and ordered the former husband to pay to wife $1,000 per month in pendente lite alimony.
In October 2004, the parties entered into a settlement agreement. The settlement agreement was read into the record in open court. The settlement agreement contained several provisions relating to the parties' Ono Island home and an Internal Revenue Service ("IRS") tax lien ("the tax lien") on the Ono Island home. The settlement agreement provided that the former wife would receive all right, title, and interest in the Ono Island home and that the former husband would waive all claims to the home. The settlement agreement also provided that the tax lien on the Ono Island home had been incurred solely by the former husband, that the former husband would cooperate with the former wife's efforts to discharge the tax lien, and that the former husband would agree to be solely responsible for the tax lien and to indemnify and hold the former wife harmless from the tax lien. The settlement agreement further provided that the "parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the [tax] lien against the Ono [Island home.] If said discharge is not accomplished the parties are not bound by the terms of this agreement." In return for the Ono Island home, the former wife gave up any rights to alimony, the former husband's retirement accounts, and any other property. The parties agreed that the agreement, as read into the record,
In 2004, the former husband arranged to refinance the Ono Island home so that he could use the proceeds to pay off the tax lien. When the wife arrived for the closing, she noticed that she was also listed as an obligor on the mortgage; the former husband should have been solely obligated to repay the mortgage. The former wife refused to sign the mortgage note and left the closing. Richard Shields, the attorney who was then representing the former husband, testified that the mortgage had been intended to be only in the former husband's name and that the former wife's name was removed from the mortgage documents. As a result of the former's wife's refusal to sign the documents at the closing, the refinancing of the Ono Island home was never completed. The IRS then began collection efforts on the tax lien.
The former husband alleged that in August 2008 the parties agreed to settle the tax lien in a federal-court action. The tax-lien settlement provided that the Ono Island home would be sold and the proceeds from the sale would be used to satisfy the tax lien. The federal court, in December 2008, granted the former husband's motion to enforce the tax-lien settlement and, in January 2009, ordered that the Ono Island home be sold.
The former wife moved the trial court for an increase in pendente lite alimony on October 27, 2008; the former wife also moved the trial court to compel discovery. On March 11, 2009, the former husband moved the trial court to enforce the settlement agreement and to enter a judgment divorcing the parties. The former husband alleged in his motion that the settlement agreement had been contingent on the discharge of the tax lien on the Ono Island home, that an agreement with the IRS relating to the tax lien had been reached, and that the tax lien had now been resolved.
On August 12, 2009, the trial court held a hearing on the former husband's motion to enforce the settlement agreement and the wife's motions to compel discovery and for increased pendente lite alimony. The parties agreed that if the trial court granted the former husband's motion to enforce the settlement agreement, then the former wife's motions would both become moot, as the case would be resolved. Following the hearing, the trial court entered a judgment on August 12, 2009, enforcing the settlement agreement and divorcing the parties. The trial court determined in its judgment that the former wife had failed to cooperate with the former husband's efforts to discharge the tax lien; therefore, the former wife had been at fault for the former husband's failure to discharge the tax lien. As a result, the trial court determined that, even though the former wife had lost the benefit she was to receive under the settlement agreement, the former wife could not use the former husband's failure to discharge the tax lien to prevent the enforcement of the settlement agreement. The former wife subsequently filed a postjudgment motion, pursuant to Rule 59(e), Ala. R. Civ. P. The trial court denied the former wife's postjudgment motion, and the former wife appealed to this court.
The former wife first argues that the trial court erred when it enforced the settlement agreement because, she argues, the enforcement of the settlement agreement was contingent upon the former husband's discharge of the tax lien on the parties' Ono Island home. The settlement agreement provided that "[t]he parties stipulate and agree that this settlement agreement is primarily based upon the discharge of the IRS lien against the Ono [Island] property. If said discharge is not
Thus, even assuming that the former wife is correct that the discharge of the tax lien is a condition precedent to the enforcement of the settlement agreement, to prevail on appeal the former wife would still need to challenge either the trial court's conclusion that the wife was responsible for the non-occurrence of the condition precedent or the trial court's conclusion that the former wife's responsibility for the non-occurrence of the condition precedent precluded her from preventing the enforcement of the settlement agreement.
The former wife does not make any argument concerning the correctness of the trial court's legal conclusion that the former wife's fault for the nonoccurrence of the condition precedent precluded her from preventing the enforcement of the settlement agreement. "`An argument not made on appeal is abandoned or waived.'" Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003)). Because the former wife has waived any legal argument on this issue, we need not further consider this issue.
The only challenge the former wife makes to the trial court's factual finding that the former wife was at fault for the former husband's failure to discharge the tax lien is a statement, without the support of any authority, that the settlement agreement did not require her to refinance the Ono Island home or to sign a mortgage. Because the wife's argument is not supported by relevant authority, it does not meet the requirements of Rule 28(a)(10), Ala. R.App. P.
Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). Moreover, "[w]hen an appellant fails to properly argue an issue, that issue is waived and will not be considered." Asam, 686 So.2d at 1224.
However, even if an appellant fails to comply with Rule 28(a)(10), this court may consider an argument if we can adequately discern the issue presented on appeal.
The first of the former wife's arguments challenging the trial court's factual findings is her argument that the trial court incorrectly determined that she had failed to cooperate with a 2003 attempt to refinance the Ono Island home. Although there was an unsuccessful attempt to refinance the Ono Island home in 2003, it is clear from the testimony at the August 2009 hearing that the failed attempt at refinancing the Ono Island home at issue at the hearing, and referenced in the trial court's judgment, occurred in 2004, not December 2003. Therefore, this argument does not properly challenge any of the factual findings in the trial court's judgment and it cannot form the basis for this court to reverse the trial court.
The wife's next argument challenging the trial court's factual findings is that "[the former husband] was not required to refinance the Ono [Island] home in the settlement agreement. [The former wife] was not required to sign any mortgage in the settlement agreement, and for this reason there is no mention of this requirement in the settlement agreement at all." It appears that the former wife is arguing that because the 2004 settlement agreement did not explicitly require the refinancing of the Ono Island home and because the terms of the 2004 settlement agreement were unambiguous, the parties could not present testimony regarding any oral agreement to alter its terms, because consideration of any such testimony by the trial court would violate the parol evidence rule. See Prattville Mem'l Chapel v. Parker, 10 So.3d 546, 561 (Ala.2008) (stating that "once contracts have been reduced to a writing and the parties have acknowledged that the writing represents the complete agreement between them, parol evidence of the negotiations will not be admitted to alter or contradict the writing").
Parker, 10 So.3d at 561 (quoting Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041, 1044 (Ala.1990)).
At the hearing, Shields testified that the parties had agreed to refinance the debt associated with the Ono Island home in order to resolve the tax lien, that the former husband had arranged for the refinancing of the debt associated with the Ono Island home, and that the former husband would have been solely responsible for the payment of the resulting mortgage. Shields and the former wife testified that the former wife had refused to complete the closing for the refinancing of the debt associated with the Ono Island home.
Because the former wife did not object to Shields's testimony based on the parol evidence rule, she has waived that argument on appeal, and the trial court properly could have considered Shield's testimony concerning the parties' agreement to discharge the tax lien. Id. This testimony supports the trial court's determination that the former wife thwarted the former
The former wife next argues that the settlement agreement was procured through fraud. In support of her argument, the former wife alleges that her own attorney misled her regarding whether she could remain the beneficiary of a life-insurance policy or whether the beneficiary of the life-insurance policy had to be changed to the children. An action for fraud is cognizable when there are "[m]isrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party. . . ." Ala.Code 1975, § 6-5-101. There is nothing in the record to suggest that the former wife raised this issue before the trial court, either in her pleadings, at trial, or in a postjudgment motion. It is well settled that "`[t]his Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.'" Halford v. Alamo Rent-A-Car, LLC, 921 So.2d 409, 416 (Ala.2005) (quoting State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005), quoting in turn Crutcher v. Wendy's of N. Alabama, Inc., 857 So.2d 82, 97 (Ala.2003)). Because the former wife failed to raise the issue of fraud before the trial court, she has not preserved this issue for our review.
The former wife further argues that the trial court erred when it failed to award her periodic alimony and when it failed to reserve the right to award periodic alimony in the future. However, as with her fraud argument, the former wife failed to raise this argument before the trial court or in her postjudgment motion.
The former wife next makes a general argument that the trial court should have granted the divorce on fault grounds instead of on the ground of incompatibility of the parties. The former wife argues that because of the former husband's alleged actions, she should have received some form of spousal support or she should have received a more favorable settlement. The former wife's argument on this issue is not supported by any authority; therefore, it does not meet the requirements of Rule 28(a)(10), and we need not further consider it. See Asam, supra.
The former wife further argues that the trial court erred because neither the settlement agreement nor the judgment contains a provision addressing the former husband's unpaid child support The settlement agreement provides that the parties shall have joint legal and physical custody of the children and that neither party is to pay child support. The settlement
Finally, the former wife argues that the trial court erred in denying her various motions for an attorney fee.
Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996). The former wife's argument concerning the award of an attorney fee consists only of a statement of the above general proposition of law and a statement that "the factors to be considered by the trial court have been covered extensively in this brief." Such an argument is not sufficient to invoke this court's review.
White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Therefore, we need not further consider the former wife's argument on this issue.
Because the former wife's arguments are either waived, not preserved for our review, or are not supported by relevant authority, we affirm the judgment of the trial court.
AFFIRMED.
PITTMAN, J., concurs.
THOMPSON, P.J., and BRYAN, J., concur in the result, without writings.
MOORE, J., concurs in the result, with writing.
MOORE, Judge, concurring in the result.
I reluctantly concur in the result.
The trial court entered a judgment enforcing a settlement agreement that had been reached between the parties on October 26, 2004 ("the 2004 agreement"). That agreement provided, in pertinent part:
As the terms of the 2004 agreement make plain, the provisions relating to property division and alimony, among other things, depended on the satisfaction of a condition precedent—the discharge of the IRS tax lien against the Ono Island property. It is undisputed that the IRS tax lien was never discharged and, in fact, that the IRS had foreclosed on the tax lien against the Ono Island property. However, the trial court concluded, as a matter of fact, that the failure to discharge the tax lien resulted from the wife's misconduct in refusing to cooperate with the husband's efforts to mortgage the Ono Island property in order to pay the IRS tax lien and that, as a matter of law, that misconduct by the wife preventing the satisfaction of the condition precedent essentially estopped the wife from complaining of that failure.
The main opinion correctly concludes that the wife has not challenged the legal conclusion reached by the trial court, thereby waiving any right to reversal on that ground. ___ So.3d at ___. The wife instead only attacks the sufficiency of the evidence supporting the trial court's factual conclusion, pointing out that the unambiguous terms of the 2004 agreement did not require her to cooperate with the husband's efforts to mortgage the Ono Island property and that her husband's former attorney's testimony to the contrary violates the parol evidence rule. The main opinion affirms the judgment on the ground that the testimony of the husband's former attorney supports the trial court's interpretation of the 2004 agreement and that the wife waived any argument based on a violation of the parol evidence rule by failing to object to that testimony. ___ So.3d at ___. I must agree that the main
The wife correctly argues that the terms of the 2004 agreement do not require her to permit the husband to mortgage the Ono Island property for any reason, including obtaining funds necessary to satisfy the IRS tax lien. In fact, the terms of the 2004 agreement contradict any implication that the husband could mortgage the Ono Island property to gain a discharge of the IRS tax lien. The 2004 agreement calls for the husband to indemnify and hold the wife harmless from the IRS tax lien, and, upon the lien's discharge, the agreement calls for the wife to indemnify and hold the husband harmless from any mortgage on the Ono Island property. If the husband had achieved his goal of mortgaging the Ono Island property, the wife ultimately would have had to pay the mortgage in order to perform her contractual obligations, but such responsibility would have violated the husband's contractual obligation to hold the wife harmless for the IRS tax lien. The wife thus argues that her refusal to participate in the closing of the attempted mortgage cannot be considered misconduct that prevented the satisfaction of the condition precedent.
Nevertheless, the wife allowed the husband's former attorney, Richard Shields, to testify, without objection, that the parties did agree to refinance the Ono Island property in order to satisfy the IRS tax lien and that the husband would have been solely responsible for that mortgage. The trial court evidently agreed with that testimony when it concluded that the husband had performed his part of the bargain under the 2004 agreement. The trial court therefore inferred that the wife had acted unreasonably in failing to cooperate with the husband's efforts to mortgage the Ono Island property.
On appeal, the wife correctly points out that Shields's testimony violates the parol evidence rule. Under that rule, in the absence of some ambiguity, oral testimony generally will not be received to explain, contradict, vary, add to, or subtract from the express terms of a written contract. See Lake Martin/Alabama Power Licensee Ass'n v. Alabama Power Co., 601 So.2d 942 (Ala. 1992). In this case, the 2004 agreement was read into the record by the wife's attorney and both parties then confirmed their agreement to the trial court. At that point, the 2004 agreement became as enforceable as any written agreement. See Ezell v. Childs, 497 So.2d 496, 498 (Ala.Civ.App.1985) ("In Alabama oral agreements entered in open court are as binding as written ones."). As such, parol evidence could not be used to vary its terms.
However, current Alabama law also holds that, when a party allows the introduction of parol evidence contradicting the terms of a written agreement, the evidence may be considered and allowed such force and effect as its weight entitles in construing the agreement of the parties. Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041 (Ala.1990). On appeal, the court will consider that a party, by failing to object to the introduction of parol evidence, has waived any argument as to its use in determining the meaning of the agreement. Id. In other words, present Alabama law holds that by failing to object to parol evidence, a party may not thereafter complain that the fact-finder found a contract in accord with the parol evidence even if that parol evidence is totally contrary to the terms of the written agreement.
I believe the foregoing rules are premised on a misunderstanding of the parol evidence rule.
Dixon v. SouthTrust Bank of Dothan, 574 So.2d 706, 713 n. 5 (Ala.1990) (Houston, J., dissenting). In Southern Guaranty Insurance Co. v. Rhodes, 46 Ala.App. 454, 459, 243 So.2d 717, 721 (Civ.App.1971), the court stated:
As a rule of substantive law, the parol evidence rule declares all oral testimony contradicting the terms of a written agreement to be ineffective regardless of any attempt by a party to introduce such testimony and regardless of any failure by the opposing party to object to that attempt.
In Moody v. McCown, 39 Ala. 586 (1865), our supreme court, in discussing the effect of parol evidence admitted without objection, said:
39 Ala. at 594-95 (emphasis added). The supreme court recognized in Moody that parties cannot change a rule of substantive law by their conduct at trial.
Over the years since was Moody decided, our appellate courts have consistently issued opinions contradicting the holding in Moody so that the decision now must be considered to have been implicitly overruled. See, e.g., State ex rel. Elmore v. Leveson, 207 Ala. 638, 93 So. 608 (1922); Vinyard v. Duck, 278 Ala. 687, 180 So.2d 522 (1965); Mersereau v. Whitesburg Ctr., Inc., 47 Ala.App. 146, 251 So.2d 765 (Civ. App.1971). However, the logic employed in Moody has never been challenged in any reported case. It appears that the appellate courts of this state simply adopted a contrary rule without any real analysis or explanation of why parol evidence should be treated as simply another form of proof that may be considered in the absence of a proper objection.
The rule now persisting in Alabama was once followed in the majority of jurisdictions, see Gary D. Spivey, Annotation, Modern Status of Rules Governing Legal Effect of Failure to Object to Admission of Extrinsic Evidence Violative of Parol Evidence Rule, 81 A.L.R.3d 249 (1977); however, the "new rule" now prevailing in this country holds, consistent with Moody, that parol evidence cannot vary the terms of a written instrument even if the evidence is admitted without objection, and that a party may raise for the first time on appeal an error by the trial court in relying on such oral testimony when considering the meaning of a written instrument. See Gajewski v. Bratcher, 221 N.W.2d 614 (N.D.1974). In Bratcher, the North Dakota Supreme Court stated:
221 N.W.2d at 629-32. Accord Barber v. McCord Auto Supply, Inc. (In re Pearson Indus., Inc.), 147 B.R. 914 (Bankr. CD.Il1.1992); Tri-Cities Forklift Co. v. Conasauga River Lumber Co., 700 S.W.2d 548 (Tenn.Ct.App.1985); and Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1 (Tex.App.-Houston [1st Dist.] 2005).
This case illustrates the inherent injustice in allowing a technical rule of procedural law to overcome the substantive rights of the parties. By determining that the wife has waived any argument as to the sufficiency of the parol evidence upon which the trial court relied in construing the 2004 agreement, this court is allowing the 2004 agreement to be interpreted in a manner totally contrary to its plain and unambiguous terms. Despite Alabama law that parol evidence is ineffective to vary the terms of a written agreement, this court is affirming a judgment based exclusively on the testimony of an advocate for the husband, which testimony absolutely contradicts the terms of the 2004 agreement. Basically, this court is allowing a trial court to disregard the terms of a written agreement because a former attorney for one of the parties testified that it means something different than what it actually says. The trial court did not enforce the 2004 agreement; it enforced a totally different agreement proven solely by the words of former counsel for the husband. As a result, the wife lost, among other things, her right to contest the
Because I am constrained by the decisions of our supreme court, I must agree that the main opinion correctly disposes of the wife's argument regarding the sufficiency of the evidence by holding that the factual findings of the trial court are supported by the testimony of the husband's former attorney. However, I urge the supreme court to reconsider its position and to adopt the "new rule," which requires appellate courts to apply the substantive law that parol evidence cannot be considered to the extent it contradicts the terms of a written instrument even if the appealing party fails to object to the introduction of such evidence.
