Ex parte Taylor Peake.
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REL: September 24, 2021 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2021 _________________________ 2190952 _________________________ Ex parte Taylor Peake PETITION FOR WRIT OF MANDAMUS (In re: Taylor Peake v. Spencer Wyatt) (Jefferson Circuit Court, DR-18-900658.01) _________________________ 2190953 _________________________ Taylor Peake v. Spencer Wyatt Appeal from Jefferson Circuit Court (DR-18-900658.02) 2190952 and 2190953 PER CURIAM. Taylor Peake ("the mother") and Spencer Wyatt ("the father") were divorced by a judgment entered on March 22, 2019 ("the divorce judgment"), by the Jefferson Circuit Court ("the trial court"). The divorce judgment incorporated an agreement of the parties. Paragraph 13 of the divorce judgment stated that the mother would "provide the principal residence for of the parties' minor child," G.M.W. ("the child"), paragraph 16 awarded the parties "shared legal custody" of the child, and paragraph 24 ordered the father to pay the first $20,000 of the child's "preschool tuition (and related fees and expenses), 5K through 12th grade school tuition (if applicable) and fees, reasonable and necessary school supplies, reasonable and necessary after-school-care fees (this shall only include school-sanctioned after-school-care and not include money for babysitters), and all expenses and fees related to [the child's] agreed-upon extracurricular activities, sports and athletic participation, and camps and the like." Paragraph 24 of the divorce judgment further provided that "[i]f [the child's] School and Extracurricular Expenses exceed $20,000 in any given year, and [the father] has provided sufficient proof to [the mother] of his payment of same, the parties shall equally split (50-50) [the child's] School 2 2190952 and 2190953 and Extracurricular Expenses in excess of [the father's] annual $20,000 obligation." In August 2019, the mother filed a petition seeking a modification of the custody provisions of the divorce judgment; the mother's action was assigned case number DR-18-900658.01 ("the modification action"). The father answered the mother's petition, denying the allegations contained therein. He also filed a separate petition seeking a modification of certain provisions of the divorce judgment and requesting that the mother be held in contempt; the father's action was assigned case number DR-18900658.02 ("the contempt action"). The trial court ultimately consolidated the modification action and the contempt action. In July 2020, the father filed in the modification action a motion he entitled "Emergency Motion for Temporary Restraining Order and Motion to Compel" ("the motion to compel"). In the motion to compel, the father sought to enforce paragraph 13 of the divorce judgment, which provides: "13. Principal Residence. [The mother] shall provide the principal residence for the parties' minor child .... [The mother] is currently a resident of Homewood, Alabama, and the parties intend to enroll [the child] in the Homewood City Schools. However, the parties acknowledge that they may 3 2190952 and 2190953 mutually agree at some point after this Agreement to enroll [the child] in a school outside of the Homewood City Schools. Both parties shall cooperate with one another in terms of school enrollment requirements." He alleged in the motion to compel that the mother had enrolled the child in Highlands School without his consent and asserted that he "desire[d] for the parties' intent as expressed in the [divorce] [j]udgment to be carried out and for the minor child to attend school in Homewood, where both parties currently reside." The father requested that the trial court enter an order preventing the mother from enrolling the child in any school other than the school in the Homewood City School System for which the child was zoned, requiring the mother to comply with the divorce judgment and to enroll the child in the appropriate Homewood City school, and requiring her to pay his attorney's fees relating to the motion to compel. On July 23, 2020, the mother filed a response opposing the motion to compel. She alleged that, pursuant to paragraph 16 of the divorce judgment, the parties had joint legal custody of the child but that, "regardless of the parties' stated intentions regarding Homewood City 4 2190952 and 2190953 Schools" in paragraph 13, paragraph 16 "designated [the mother] as having final decision making authority with respect to medical, educational, religious, and athletic activities." The mother also alleged that the father had cooperated with her in applying to Highlands School but that he had not cooperated regarding the enrollment of the child in Highlands School. Ultimately, the mother requested that the trial court "uphold the [divorce judgment]" and deny the motion to compel. The trial court held a hearing on the father's motion to compel on August 21, 2020, a few days after the child had begun attending Highlands School. At the hearing, the parties presented arguments regarding their respective understandings of the divorce judgment with respect to the school the child would attend. The mother also presented the testimony of Clyde Simpson Adams III, who was the director of admissions and enrollment for Highlands School, who testified about the parents' having submitted an application for the child to the school and a meeting he had had with the parents. During the hearing, the father's counsel argued that paragraph 13 of the divorce judgment required the enrollment of the child in the 5 2190952 and 2190953 Homewood City School System and permitted the child's attendance in a school outside that system only upon the parties' mutual agreement. In response to the trial court's question about why the second and third sentences in paragraph 13 had been included in the parties' settlement agreement, the mother's counsel relied on the language of paragraph 16, which awarded the mother final decision-making authority over "educational ... activities," stating: "Your Honor, I mean, we'll have to have some testimony on that from both of the parties about why it was in there. But, you know, Your Honor, the legal standard of joint custody allows for a final decision-making maker, and it could also be why do we have a final decision-making authority [in paragraph 16] if we also have this other language in here? And so to me, the question is which one -- which one trumps, you know, the paragraph 13 or the joint legal custody [in paragraph 16]? And I think the joint legal custody in my opinion as an Alabama legal standard for custody is more weighted than the parties saying they attempt to do something in the future, agree to do -- mutually agree to something in the future which isn't even binding." As the mother notes in her brief on appeal, during the hearing the trial court also expressed concern regarding paragraph 24 of the divorce judgment, stating, in part: "I cannot change it. I'll let y'all know that, but 6 2190952 and 2190953 it's a bad agreement when one person gets to decide what happens and the other person has to have the pocketbook." On September 15, 2020, the trial court entered an order in the modification action ("the September 2020 order"). The September 2020 order granted the motion to compel and required the mother to remove the child from Highlands School "within seventy-two (72) hours of [the] date of this Order" and to enroll the child "in the appropriate school in the Homewood City School System within twenty-four (24) hours of ... removing the ... child from ... Highlands School." The September 2020 order also stated, in pertinent part, that paragraphs 13 and 16 of the divorce judgment were not ambiguous and contained the following additional provisions: "6. That Paragraph 13 ... clearly states the intent of the parties was to enroll the ... child in the Homewood City Schools. "7. That Paragraph 16, second sentence, awarded [the mother] ... final decision-making authority regarding educational decisions for the child .... "8. That the [divorce judgment] states the intent for the enrollment of the child in a school outside of the Homewood City Schools would be by mutual agreement. 7 2190952 and 2190953 "9. That there is no mutual agreement for the enrollment of the child at ... Highlands School. "10. That the award to [the mother] of the final decisionmaking authority would take preceden[ce] in all educational matters not specifically addressed in the [divorce judgment]. "11. That the issue of when the child would be enrolled outside of the Homewood City Schools was addressed in Paragraph 13 of the [divorce judgment]." On September 16, 2020, the mother filed a notice of appeal to this court in both the modification action, which was assigned case number 2190952, and the contempt action, which was assigned case number 2190953.1 Contemporaneous with the filing of her notices of appeal, the mother filed a motion in the modification action and a motion in the contempt action requesting that the trial court stay enforcement of the September 2020 order; the trial court did not immediately rule on those motions. This court entered an order consolidating the mother's appeals. She filed an emergency motion for a stay in this court, which we denied. 1 These appellate proceedings are the third time the parties have appeared before this court challenging interlocutory orders addressing postdivorce disputes between the mother and the father. See Ex parte Peake, [Ms. 2200302, Apr. 30, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021); and Ex parte Wyatt Props., LLC, [Ms. 2200159, Apr. 16, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021). 8 2190952 and 2190953 On October 1, 2020, the trial court denied the mother's motions to stay, and she filed another motion to stay with this court, which we denied. On February 9, 2021, the trial court entered orders staying further proceedings in that court pending a decision as to the present appellate proceedings and as to mandamus petitions that were filed regarding interlocutory orders entered in other postdivorce proceedings between the parties. See Ex parte Peake, [Ms. 2200302, Apr. 30, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021); and Ex parte Wyatt Props., LLC, [Ms. 2200159, Apr. 16, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021). The mother has advised this court that the child continued to attend the Highlands School for the 2020-2021 school year, and, although the father filed a motion on September 25, 2020, seeking to hold the mother in contempt for failing to comply with the September 2020 order, the trial court has not ruled on that motion. We must dismiss case number 2200953, the mother's appeal in the contempt action. As noted above, the father's motion to compel was filed in the modification action. The caption of the September 2020 order reflects the trial-court case numbers for both the modification action and 9 2190952 and 2190953 the contempt action; however, the copy of the order in the record on appeal indicates that it was electronically filed only in the modification action, and the case-action-summary sheet for the contempt action does not reflect the entry of the September 2020 order in that action. See Rule 58(c), Ala. R. Civ. P. In the mother's appellate brief, she states that she filed a notice of appeal in the contempt action "[o]ut of an abundance of caution." Because no appealable order was entered in the contempt action, we lack jurisdiction as to that appeal, and it is therefore dismissed. See, e.g., Meek v. Meek, 54 So. 3d 389, 394 (Ala. Civ. App. 2010). We turn now to the arguments presented in case number 2190952. Because several claims raised in the modification action remain pending below, the trial court's September 2020 order enforcing paragraph 13 of the divorce judgment is an interlocutory order and, for that reason, does not appear to support an appeal. See Horton v. Horton, 822 So. 2d 431, 433 (Ala. Civ. App. 2001). Thus, we must determine if there is another legal basis for considering the mother's appeal or for reviewing the September 2020 order. 10 2190952 and 2190953 The mother appealed the September 2020 order based on her conclusion that the September 2020 order was an "interlocutory order granting ... an injunction" and, therefore, appealable. See Rule 4(a)(1)(A), Ala. R. App. P. However, although the father's motion to compel indicated that he was seeking a temporary restraining order, and although the September 2020 order directs the mother to take specific actions, the substance of the contempt motion, and not its nomenclature, controls how we treat that motion. " 'Our caselaw is clear ... that it is the substance of a motion, not its nomenclature, that is controlling; "the relief sought in a motion determines how to treat the motion." ' " Chamberlin v. Chamberlin, 184 So. 3d 1016, 1021 (Ala. Civ. App. 2014) (quoting Campton v. Miller, 19 So. 3d 245, 249 (Ala. Civ. App. 2009), quoting in turn Allied Prods. Corp. v. Thomas, 954 So. 2d 588, 589 n.3 (Ala. Civ. App. 2006)). The father sought to compel the mother to comply with the divorce judgment and to perform a specific act -- to enroll the child in the Homewood City School System -- as required by paragraph 13 of the judgment. Rule 70, Ala. R. Civ. P., provides a remedy to compel compliance with a judgment: 11 2190952 and 2190953 "If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the state, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk." Although the rule refers to provisions of judgments requiring execution of conveyances of land or the delivery of deeds or documents, it also includes within its ambit provisions of judgments directing a party "to perform any other specific act." Paragraph 13 of the divorce judgment, as read by the father and as ultimately construed by the trial court, directed the parties to enroll the child in a Homewood City school, unless the parties agreed otherwise. As we explained in Cupps v. Cupps, 675 So. 2d 889, 891 (Ala. Civ. App. 1996), "Rule 70 ... recognizes the trial court's authority to use its 12 2190952 and 2190953 inherent power to enforce a settlement agreement [incorporated into a divorce judgment]." Thus, the trial court was empowered by Rule 70 to direct the mother to comply with paragraph 13. In addition, as we observed in Cupps, Rule 65, Ala. R. Civ. P., addressing injunctions, has no application to a request that a trial court enforce a judgment. "Before a judgment is entered, the remedies provided under Rule 65 are available to a party; after a trial court has entered a judgment, however, Rule 70 comes into play." Cupps, 675 So. 2d at 892 (citing 2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated 461 (2d ed. 1986); 7 James W. Moore et al., Moore's Federal Practice ¶ 70.02 (2d ed. 1971); 12 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3021 (1973)). Like the wife in Cupps, the father in the present case requested that the mother be compelled to comply with the divorce judgment. His motion, however titled, sought the relief afforded by Rule 70.2 2 Because we have concluded that the trial court's order was an exercise of its power under Rule 70, we need not entertain the mother's argument on appeal that the trial court erred in entering a temporary retraining order without complying with the requirements of Rule 65. 13 2190952 and 2190953 We have concluded that the trial court's September 2020 order is not an injunction appealable under Rule 4(a)(1)(A), Ala. R. App. P. However, we have elected to exercise our discretion to consider the mother's appeal as a petition for a writ of mandamus, particularly in light of her continuing refusal to comply with the September 2020 order and the father's inability, thus far, to vindicate his rights under the divorce judgment. See Ex parte Spears, 621 So. 2d 1255, 1258 (Ala. 1993) (approving of mandamus review in "those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment"); Ex parte Weissinger, 247 Ala. 113, 119, 22 So. 2d 510, 515 (1945) ("The test, as to whether mandamus will be issued, now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of remedy by appeal."). " " 'The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360 (Ala. 1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So. 2d 705, 708 (Ala.2002).' " 14 2190952 and 2190953 Ex parte A.S., 3 So. 3d 842, 844 (Ala. 2008) (quoting Ex parte Davis, 930 So. 2d 497, 499 (Ala. 2005)). The mother argues that, although the trial court was correct in concluding that the divorce judgment was unambiguous, the trial court misunderstood and then misapplied the plain language of the divorce judgment.3 "Whether a settlement agreement or a resulting divorce judgment is ambiguous is a question of law for the trial court." Jardine v. Jardine, 918 So. 2d 127, 131 (Ala. Civ. App. 2005). Also, "[w]hen a trial court adopts a [settlement] agreement, it is merged into the final judgment of divorce." Wimpee v. Wimpee, 641 So. 2d 287, 288 (Ala. Civ. App. 1994). 3 Neither the mother nor the father has made the alternative argument to the trial court or to this court that the parties' settlement agreement, which was incorporated into the divorce judgment, was ambiguous, either patently or latently; thus, they have waived any such argument. See Hood v. Hood, 72 So. 3d 666, 677 (Ala. Civ. App. 2011). To the extent that the father discusses in his appellate brief that various canons of construction support the trial court's interpretation of the divorce judgment in the September 2020 order, we note, as the mother points out, that the canons of construction may be utilized only after an agreement is determined to be ambiguous. See, e.g., McLemore v. Hyundai Motor Mfg. Alabama, LLC, 7 So. 3d 318, 327 (Ala. 2008). See also Gafford v. Kirby, 512 So. 2d 1356, 1363 (Ala. 1987) (discussing patent and latent ambiguities). 15 2190952 and 2190953 " ' " '[A] settlement agreement which is incorporated into a divorce decree is in the nature of a contract.' Smith v. Smith, 568 So. 2d 838, 839 (Ala. Civ. App. 1990). A divorce judgment should be interpreted or construed as other written instruments are interpreted or construed. Sartin v. Sartin, 678 So. 2d 1181 (Ala. Civ. App. 1996). 'The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them.' Id. at 1183. ... An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So. 2d 768 (Ala. Civ. App. 1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So. 2d 647 (Ala. Civ. App. 1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id." ' " Bridges v. Bridges, 69 So. 3d 885, 889 (Ala. Civ. App. 2011) (quoting Judge v. Judge, 14 So. 3d 162, 165 (Ala. Civ. App. 2009), quoting in turn R.G. v. G.G., 771 So. 2d 490, 494 (Ala. Civ. App. 2000)); 4 4 In her reply brief, the mother questions the father's reliance on the following statement from R.G. v. G.G., 771 So. 2d 490, 494 (Ala. Civ. App. 2000): "Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court's determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous." R.G. cites Vainrib v. Downey, 565 So. 2d 647 (Ala. Civ. App. 1990), in support of the quoted sentence. According to the mother, the quoted sentence from R.G. reflects a misstatement of Alabama law and an incorrect summary of what was stated in Vainrib v. Downey. She is correct that Vainrib includes no such statement as to a presumption of correctness. The origin of the sentence 16 2190952 and 2190953 in R.G. appears to be Wimpee v. Wimpee, 641 So. 2d 287 (Ala. Civ. App. 1994): "If only one reasonable meaning clearly emerges, then the agreement is unambiguous. Vainrib v. Downey, 565 So. 2d 647 (Ala. Civ. App. 1990). If a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning. Vainrib. The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them. Vainrib. The interpretation made by the trial court is accorded a heavy presumption of correctness and will not be disturbed unless it is palpably erroneous. Grizzell v. Grizzell, 583 So. 2d 1349 (Ala. Civ. App. 1991)." 641 So. 2d at 288. The Wimpee court's reliance on Grizzell v. Grizzell, 583 So. 2d 1349, 1350-51 (Ala. Civ. App. 1991), as to a presumption of correctness was misplaced. Wimpee involved an unambiguous agreement; in Grizzell, this court was addressing an ambiguous agreement: "The court determined there was a conflict in the intent of the parties concerning the disposition of the marital home. It was, therefore, the duty of the court to resolve that conflict. The interpretation made by the trial court of the ambiguous provision is accorded a heavy presumption of correctness and will not be disturbed unless it is palpably erroneous." 583 So. 2d at 1350-51. The mother is correct that, when an agreement is unambiguous, we review de novo the issue of the interpretation of that agreement; no presumption of correctness applies to the trial court's interpretation of an 17 2190952 and 2190953 see also Ex parte Littlepage, 796 So. 2d 298, 301-02 (Ala. 2001). "[J]ust because the parties allege different constructions of an agreement, it does not necessarily mean that the agreement is ambiguous." Yu v. Stephens, 591 So. 2d 858, 859-60 (Ala. 1991). In addition, "[i]t is well settled that a court in seeking to ascertain the intention of the parties in construing a contract, will consider the contract as a whole, although the immediate object of the inquiry is the meaning of a particular clause. ... Further, a contract must be construed as a whole and, whenever possible, unambiguous agreement. See, e.g., Ex parte Agee, 669 So. 2d 102, 104 (Ala. 1995). This court has quoted the erroneous sentence from R.G. on occasion, while also usually concurrently discussing the correct, de novo standard of review as to the issues of ambiguity and the interpretation of an unambiguous agreement. It does not appear that we have relied on the erroneous sentence -- i.e., applied a presumption of correctness to the trial court's interpretation of an unambiguous agreement rather than conducting a de novo review -- for purposes of any decision. See Yarbrough v. Yarbrough, 144 So. 3d 386, 392 (Ala. Civ. App. 2014); Holston v. Holston, 128 So. 3d 736, 743 (Ala. Civ. App. 2013); Gore v. White, 96 So. 3d 834, 841 (Ala. Civ. App. 2012); Egres v. Egres, 85 So. 3d 1026, 1031 (Ala. Civ. App. 2011); Hood v. Hood, 72 So. 3d 666, 677 (Ala. Civ. App. 2011); Bridges v. Bridges, 69 So. 3d 885, 889 (Ala. Civ. App. 2011); Romer v. Romer, 44 So. 3d 514, 519 (Ala. Civ. App. 2009); Routzong v. Baker, 20 So. 3d 802, 806 (Ala. Civ. App. 2009); Judge v. Judge, 14 So. 3d 162, 165 (Ala. Civ. App. 2009); and Skidmore-Shafer v. Shafer, 770 So. 2d 1097, 1102 (Ala. Civ. App. 1999). 18 2190952 and 2190953 effect must be given to all its parts. The court will look to all of the provisions and the object to be accomplished." Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 698, 299 So. 2d 289, 295 (1974); see also Yu, 591 So. 2d at 859 (explaining that, in determining whether an agreement is ambiguous, "[t]he agreement must be construed in its entirety, and a single provision or sentence is not to be disassociated from others having reference to the same subject matter"); Stacey v. Saunders, 437 So. 2d 1230, 1234 (Ala. 1983) ("The relevant question is not whether one sentence of a 10-page agreement is ambiguous; rather, whether the document, when considered as a whole, is ambiguous."); Yarbrough v. Yarbrough, 144 So. 3d 386, 391 (Ala. Civ. App. 2014) (noting that, as to the issue of ambiguity, the provisions of an agreement are not to be viewed in isolation, but "must be construed as a whole, with every provision given the fullest possible effect according to the intentions of the parties"). Generally, each word of a contract "must be regarded as adding something of substance," and "[c]ourts will not presume that the parties 'make use of words in their contracts to which no meaning is attached by them.' 19 2190952 and 2190953 McGoldrick v. Lou Ana Foods, Inc., 649 So. 2d 455, 458 (La. Ct. App. 1994). In other words, 'parties to a contract will not be imputed with using language that is meaningless or without effect.' Id. See also Royal Ins. Co. of America v. Thomas, 879 So. 2d 1144, 1154 (Ala. 2003) (' "It being presumed that every condition was intended to accomplish some purpose, it is not to be considered that idle provisions were inserted. Each word is deemed to have some meaning, and none should be assumed to be superfluous." ' (quoting Hall v. American Indem. Group, 648 So. 2d 556, 559 (Ala. 1994)))." Black Diamond Dev., Inc. v. Thompson, 979 So. 2d 47, 51 (Ala. 2007). At issue in this case is the interplay of the provisions of paragraph 13 and the provisions of paragraph 16 of the divorce judgment. The mother contends that the specific language in the second independent clause of the second sentence of paragraph 13 -- "the parties intend to enroll [the child] in the Homewood City Schools" -- merely stated the parties' "current thinking" at the time of the execution of their settlement agreement. She then contends that the third sentence of paragraph 13 -"However, the parties acknowledge that they may mutually agree at some point after this Agreement to enroll [the child] in a school outside of the Homewood City Schools" -- and the language of paragraph 16 granting the mother final decision-making authority over "educational ... activities," 20 2190952 and 2190953 when read together, "expressly contemplate that any and all future decisions will be subject to the future agreement of the parties, but with the [mother] having the controlling vote if at any time they cannot agree." A substantial part of the mother's argument focuses on whether the statement that "the parties intend to enroll [the child] in the Homewood City Schools" may properly be construed as their agreement to enroll the child in such schools. She focuses on the meaning of the term "intend," arguing that that term does not mean that, when the parties entered into their settlement agreement, they had agreed to enroll the child in the appropriate school in the Homewood City School System -- something that might need to be settled as between them, i.e., where the child would attend school -- but that "intend" could mean only that, when they entered into their settlement agreement, they merely agreed as to their mutual intention to enroll the child in the appropriate school in the Homewood City School System -- something that would settle nothing as between the parents as to the custody of the child. See Merriam-Webster's Collegiate Dictionary 650 (11th ed. 2020) (defining "intend" as "to have in mind as a purpose or goal"); see also Black Diamond Dev., 979 So. 2d at 51. 21 2190952 and 2190953 The mother's conclusion as to the meaning of the second independent clause of the second sentence of paragraph 13 cannot be fully evaluated, however, without consideration of the meaning of the third sentence of paragraph 13, which could be read as supporting the conclusion that a mutual agreement was necessary "to enroll [the child] in a school outside of the Homewood City Schools," and the meaning of other provisions of the settlement agreement, such as paragraph 24, in relation to paragraph 13. See Land Title Co. of Alabama, 292 Ala. at 698, 299 So. 2d at 295; Yu, 591 So. 2d at 859-60; Stacey, 437 So. 2d at 1234; and Yarbrough, 144 So. 3d at 391. The trial court was very specific in its wording of the September 2020 order, finding that "Paragraph 13 ... clearly states the intent of the parties was to enroll the minor child in the Homewood City Schools" (emphasis added), while also finding that the entire divorce judgment, not merely the second independent clause in the second sentence of paragraph 13 or only paragraph 13, "states the intent for the enrollment of the child in a school outside of the Homewood City Schools would be by mutual agreement." In other words, the trial court's conclusion that a mutual 22 2190952 and 2190953 agreement was required for the child to attend a school outside the Homewood City School System was based on its consideration of the entire divorce judgment, including its consideration that the parties had clearly stated, as they did in the second independent clause of the second sentence of paragraph 13, that, when they executed the settlement agreement, they intended to send the child to a school in the Homewood City School System. Although the mother appears to be under the impression that the trial court misunderstood the word "intend" in the second independent clause of the second sentence of paragraph 13, her impression is incorrect. The question is not about the meaning of the term "intend" in that clause. As noted, in regard to the possible readings of the divorce judgment and whether only one reading clearly emerges as being reasonable, the meaning of the third sentence of paragraph 13 is key. Absent the third sentence, whether the parties had agreed or merely intended that the child would attend the appropriate school in the Homewood City School System would not impact the reading of the final sentence of paragraph 16 of the divorce judgment, at least not as argued by the parties. 23 2190952 and 2190953 The third sentence of paragraph 13 provides that, in spite of their intention as to the child's enrollment in a school in the Homewood City School System, see Merriam-Webster's Collegiate Dictionary 603 (11th ed. 2020) (defining "however" as "in spite of that" or "on the other hand"), "the parties acknowledge that they may mutually agree at some point after this Agreement to enroll [the child] in a school outside of the Homewood City Schools." To determine the meaning of the third sentence of paragraph 13 requires a thorough evaluation of the potential meanings and usage of "to," which can be used in the sense of "in order to," and "may," which can be used in an obligatory sense, i.e., meaning "must," particularly when the permissive reading of "may" would result in a superfluous provision. The mother's argument on appeal includes only a limited discussion of the possible alternative readings of the third sentence of paragraph 13; she simply suggests that "may" cannot be obligatory. However, in Hanover Insurance Co. v. Kiva Lodge Condominium Owners' Ass'n, 221 So. 3d 446 (Ala. 2016), the supreme court concluded 24 2190952 and 2190953 that a reading of "may" as permissive is to be rejected in the context of an arbitration clause because it would make such a clause superfluous: "Most cases throughout the country repeat the view ... that use of the term 'may' in an arbitration provision generally does not denote permissive arbitration because 'the arbitration clause would be meaningless if it were construed as permissive. The parties to an agreement can always consent to arbitration as a means of settling their disputes. A permissive arbitration clause is not necessary.' Orthopedic Physical Therapy Ctr., P.A. v. Sports Therapy Ctrs., Ltd., 621 A.2d 402, 403 (Me. 1993)." 221 So. 3d at 453; see also Black Diamond Dev., 979 So. 2d at 51; Yarbrough, 144 So. 3d at 391-92; Hubbard v. Bentley, 17 So. 3d 652, 655 (Ala. Civ. App. 2008). Similarly, divorced parents who are not subject to a court order requiring that their child must attend a particular school may always agree to send their child to some other school. To read "may" in the third sentence of paragraph 13 as permissive would render that provision unnecessary and meaningless, particularly since paragraph 16 requires the parties to consult on "all major decisions," including "educational activities." Although the September 2020 order is not presumed to be correct, it is likewise not presumed to be erroneous. The fact that this court 25 2190952 and 2190953 applies a de novo review does not relieve the mother of her burden of demonstrating that no reasonable reading of the parties' settlement agreement incorporated into the divorce judgment could result in a mutual-agreement obligation. Thus, it was the mother's burden to demonstrate that reading the third sentence of paragraph 13 as follows is not a reasonable reading of that sentence in light of the acceptable meanings of the terms used in that sentence and the remaining pertinent provisions of the divorce judgment: "However, the parties [recognize as valid] that they [must] mutually agree at some point after this Agreement [in order] to enroll [the child] in a school outside of the Homewood City Schools." See Merriam-Webster's Collegiate Dictionary 11 (11th ed. 2020) (defining "acknowledge" as "to recognize as genuine or valid"). In that regard, we note that such a reading comports with the determinations in the September 2020 order and provides some understanding as to why the father might have agreed to the terms of paragraph 24: he would have to agree before the child attended any school requiring additional costs because he and the mother had already agreed regarding an acceptable school system for the child. See Dawkins v. Walker, 794 So. 2d 333, 339 26 2190952 and 2190953 (Ala. 2001) (quoting G.F.A. Peanut Ass'n v. W.F. Covington Planter Co., 238 Ala. 562, 566, 192 So. 502, 506 (1939)) (discussing an unambiguous bylaw and stating that " '[c]ontracts will not be construed so as to render them oppressive or inequitable as to either party or so as to place one of the parties at the mercy of the other' "). Based on the foregoing, we dismiss the mother's appeal from the contempt action, i.e., case number 2190953. Because the mother failed to demonstrate that she had a clear legal right to the denial of the motion to compel filed pursuant to Rule 70, we also deny the mother's petition for the writ of mandamus challenging the trial court's construction of and enforcement of the divorce judgment, i.e., case number 2190952. The mother's request for an award of attorney's fees and costs is denied, and the father's request for an award of attorney's fees is granted in the amount of $3,375. 2190952 -- PETITION DENIED. 2190953 -- APPEAL DISMISSED. Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur. Fridy, J., recuses himself. 27
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