text:
    Linda Dickson DAVIS v. Bobby Dale DAVIS.
    Civ. 1570.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.

      Wayne Morse, Jr., Birmingham, for appellant.
    Morris W. Savage of Bankhead, Savage & Stephens, Jasper, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case. The mother sought modification of a judgment of divorce rendered in 1975, by which custody of two children, ages one and three, was awarded to the father. The judgment was entered after suit by the father, with answer, waiver and agreement by the mother. The mother was given liberal visitation privileges of extended duration and had exercised such privileges for some three years at the time of the hearing.

The mother alleged in her petition for modification a change in circumstances. Such change was premised upon her remarriage with attendant improved conditions for support and' housing. Lengthy oral testimony was heard by the court as to the ability of the mother to presently provide a home and support for the children. There was testimony as to the condition of the home of the grandparents where the children have resided with the father since the divorce. There was evidence that the children were happy and well cared for.

This is a classic case for the exercise of judicial discretion as to custody of children. In such cases, the exercise of such discretion after oral hearing of evidence is reviewed with a strong presumption of correctness. This court will not set it aside unless it is so contrary to and unsupported by the evidence as to appear clearly adverse to the best interest and welfare of the children. Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722 (1974); Free v. Free, 52 Ala.App. 647, 296 So.2d 735 (1974). The evidence in this case is merely that the mother is now better able to provide and care for her children than she was at the time of her divorce. Though of interest and concern to the court, such improved circumstance of the mother is not controlling upon the court, in the absence of evidence of existing detrimental circumstances of the children indicating a need for change of custody. Ponder v. Ponder, 50 Ala.App. 27, 276 So.2d 613 (1973).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Yvonne HUNLEY v. HOUSTON COUNTY, ALABAMA DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 972.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.

      Douglas M. Bates of Adams & Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, Asst. Atty. Gen., Pension and Securities Dept., and Jamie L. Pettigrew, Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

The Circuit Court of Houston County, after an ore tenus hearing, found a child of less than one month in age to be dependent within the meaning of Chapter 7 of Title 13 of the Code of Alabama 1940.

The trial court awarded permanent custody of and legal guardianship of the child to the Department of Pensions and Security. In addition, in the court’s decree it was stated that the rights of the natural parents, as they relate to the child, were permanently terminated.

From this decree the natural mother, Miss Yvonne Hunley appeals and presents to this court three issues for determination: (1) Was there a variance between the relief demanded and that which was granted? (2) Is the decree void because the statute upon which it is based is unconstitutional? (3) Was the decree plainly and palpably wrong to the extent that it is not fairly supported by credible evidence? We answer each of these contentions in the negative and affirm the decree of the court below.

Viewing the record with the attendant presumption of correctness, we find the following: In early July, 1976, Miss Hunley, unmarried and seventeen years of age gave birth to the child who is the subject of this litigation. At the time of the child’s birth, the mother was under the custody of the Houston County Department of Pensions and Security pursuant to a court order of April 8, 1976.

Prior to the child’s birth, the Department of Pensions and Security had worked with the mother to help solve her recurrent delinquency problems. The Department undertook the care of Miss Hunley in 1974 due to the fact that she had been adjudicated delinquent several times, placed on probation, put in jail on more than one occasion and had been committed to the Department of Pensions and Security training school in Chalkville. The Department’s actions were apparently necessitated because Miss Hun-ley had on numerous occasions run away from the homes of her separated parents, and additionally, had experienced difficulty in “getting along” with the adults and other children in the Department of Pensions and Security “attention” and foster homes in which she had been living.

At the time Miss Hunley became pregnant, she had come to her mother’s home for a weekend visit from the Chalkville school. Upon discovering her pregnancy, she returned to live with her mother, but, because she was unable to happily reside there, the Department placed her in an “attention home” in Dothan. Subsequently, when the birth of the child was imminent, Miss Hunley went to the Salvation Army Maternity Home in Birmingham where the child was bom. Upon the birth of the child, the mother returned to the “attention home” in Dothan which, incidentally, has no facilities for the care of infant children. While Miss Hunley was residing at the facility in Dothan, and at the time of the hearing, she was marginally employed by a fast food restaurant chain.

The record further reveals that the mother had agreed prior to her child’s birth to give the child up for adoption, but she later changed her mind. There is adequate evidence to establish that Miss Hunley is emotionally immature, and that her plans are unrealistic, vague, and impractical with respect to her ability to care for the infant.

Based upon these circumstances, the Department of Pensions and Security, five days after the birth of the child filed a petition on July 6, 1976, requesting temporary custody of the child. After the learned judge granted this petition, the Department filed another petition on July 23, 1976, which sought a termination of the parents’ rights to the infant so that the child could be placed for adoption. After a hearing on the merits, the trial court granted the petition and it is from this order that the mother appeals.

At the outset, we note that decrees of the trial court in cases of this nature, after hearing the evidence ore tenus, will be given every favorable presumption and will not be disturbed unless palpably wrong. Smith v. State Dept. of Pensions & Security, Ala.Civ.App., 340 So.2d 34 (1976).

The controlling consideration in child custody cases is the welfare of the child. Crews v. Houston County Dept. of Pensions & Security, Ala.Civ.App., 358 So.2d 451 (1978). To the extent that the superior consideration in such cases is the child’s welfare, it is well settled that the prima facie right of a parent to custody will yield where such custody is not in the child’s best interest. Crews, supra; Smith, supra; State, Dept. of Pensions & Security v. Hall, 57 Ala.App. 290, 328 So.2d 295 (1976). Accordingly, where there is adequate evidence to support a finding that the parents are either guilty of gross misconduct or that they lack the capacity or means for the proper nurture and training of the child, it is not improper for the trial court to award permanent custody of the child to the Department of Pensions and Security. See, e. g., Kennedy v. State Dept. of Pensions & Security, 277 Ala. 5, 166 So.2d 736 (1964). Given these well settled principles, we discuss each of the appellant’s contentions.

Miss Hunley initially maintains that inasmuch as the Department merely petitioned the trial court for an order granting temporary custody of the child to the state, the trial court’s decree awarding permanent custody was at fatal variance with the relief demanded, and thus is void. We do not agree.

The record clearly indicates that the Department filed two petitions; i. e., the first on July 6, 1976, seeking temporary custody, and the second on July 23, 1976, seeking permanent custody and termination of parental rights to the child. Because the state demanded permanent custody in its second petition, there is no variance between the relief sought and that granted by the learned judge.

Miss Hunley next contends that the judgment is void because the statute upon which it is based is unconstitutional. In support of this argument, able counsel for the mother asserts in brief that Wambles v. Conn, 417 F.Supp. 769 (M.D.Ala.1976), holds that Title 13, § 350 et seq. is unconstitutional. We do not find this argument persuasive.

It is well settled in Alabama that constitutional issues not raised in the court below will not be considered on appeal. Crews and Smith, supra. Our review of the record indicates that this constitutional question is raised for the first time on this appeal. Thus, it is inappropriate for this court’s determination.

Furthermore, we note that this court previously addressed itself to the issue raised by Miss Hunley in the Smith case. In Smith, supra, we held that even assuming that the Wambles case is applicable to proceedings in Alabama state courts, it does not apply to custody proceedings under Title 13, § 350 et seq. which are predicated on a theory that the child is “dependent” as opposed to “neglected.” In so holding we stated:

“. . . Wambles, supra, addressed itself only to ‘neglected’ children and does not touch upon what we have in this instance, to wit, ‘dependent’ children. . . .” 340 So.2d at 37.

Where, as here, the inquiry is whether the child is dependent as that relates to the custody of the child, our statute has not been held unconstitutional and thus the decision of the court below is not void for this reason.

In Miss Hunley’s final contention, able counsel maintains that the decree below was plainly and palpably wrong because there is no credible evidence which fairly supports it. As we noted above, when the trial court hears the evidence ore tenus, every presumption will be accorded the correctness of the trial court’s decree. Smith, supra.

The record reveals that Miss Hunley had no permanent place to live, that she is emotionally immature and impulsive, and that her plans with respect to nurturing the child are unrealistic, vague and impractical. In addition, we note that at the time of the two petitions in question, Miss Hunley was herself a minor under the custody of the state. In view of this evidence, we cannot say the learned judge’s decree in this instance was plainly and palpably wrong.

For the foregoing reasons the trial court is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . Additionally, we would note that Title 13, § 350 et seq., Code of Ala.1940, has been rewritten and is now codified as § 12-15-1 et seq., Code of Ala. 1975. The revised code incorporates the suggestions set out in Wambles with respect to its constitutional validity.


text:
    INTERNATIONAL HARVESTER COMPANY, a corporation v. BOSTICK’S INTERNATIONAL, INC., a corporation.
    Civ. 1567.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.

      T. M. Conway, Jr., of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for defendant-appellant.
    Roger H. Bedford, of Bedford, Bedford & Rogers, Russellville, for plaintiff-appellee.
   HOLMES, Judge.

This is a contract case.

The plaintiff, a former International Harvester dealer, sued defendant, International Harvester (IH) claiming approximately $5,000. The plaintiff alleged the money was owed by virtue of a volume discount program established by contract. The circuit court, without a jury, entered a judgment for plaintiff and the defendant company appeals. We affirm.

The dispositive issue on appeal is whether the terms of the contract required plaintiff to perform a certain contractual condition precedent before entitling plaintiff to a rebate.

The case was tried upon an agreed statement of facts. This stipulation reveals the following:

Plaintiff and defendant entered into a written contract in April, 1970, whereby the plaintiff became an authorized dealer of IH. The defendant drafted the dealership agreement. The contract remained in force until it was mutually terminated by the parties on November 6, 1975.

Plaintiff claims an annual discount rebate under the provisions of its agreement with defendant. The contract rebate clause states in essence that “to qualify for the annual volume discount a dealer must pay in full, within thirty days after the end of the period, all obligations to the company. . .”

At the end of the accounting period in question, October 31, 1975, plaintiff was credited provisionally with an annual volume discount of $5,068.56 but had outstanding obligations to defendant in excess of $24,000. Plaintiff did not pay these obligations by the November 30, 1975, deadline. Instead, as noted above, the dealership was terminated.

The contract provided that in the event the agreement was terminated, the defendant was obligated to repurchase plaintiff’s inventory, subject to specified conditions. The pertinent language of this clause provides in part:

“Upon termination of the agreement, the Company will repurchase from the Dealer those service parts purchased, from the Company on hand . . . which are salable as new and provided their exact part numbers appear in the Company’s parts . list . . . . The Company shall be released from its obligation to repurchase parts if the Dealer does not submit his list of parts to the Company within thirty days after . . . termination and return his parts within thirty days after notification . . .”

Based upon this provision, plaintiff asserted that its inventory covered its obligation to the defendant. The record indicates that plaintiff in fact had some $40,000 in returnable inventory on hand at the time of the contract’s termination.

The defendant maintains that the failure of the plaintiff to timely pay its obligation within the thirty-day deadline absolves defendant of any liability to plaintiff for the rebate.

The defendant through able and distinguished counsel relies upon the terms of its contract and argues, in essence, that the rebate provisions of the agreement are separate and distinct from the termination clause, and thus these terms cannot be read together. Accordingly, when plaintiff failed to discharge the contract’s condition precedent to pay its debt to defendant within thirty days, plaintiff lost its right to a rebate, notwithstanding defendant’s obligation to repurchase plaintiff’s inventory. In support of this construction of the contract, defendant maintains that it was only obligated to purchase plaintiff’s inventory if plaintiff complied with several conditions. Because the plaintiff’s performance of these conditions was to occur subsequent to plaintiff’s matured obligation to pay defendant (in order to be entitled to the rebate), the repurchase clause did not eliminate plaintiff’s duty to comply with the rebate clause’s condition precedent.

The plaintiff in brief does not disagree with the defendant that, had the contract not been terminated, plaintiff was required to fulfill the condition precedent in order to be entitled to the rebate. However, plaintiff does contend that, in the event of termination, the repurchase provisions must be read together with the rebate clause in order that the entire contract be given meaning.

Under this theory of construction, the rebate clause’s condition precedent is eliminated by the defendant’s obligation to plaintiff to repurchase plaintiff’s inventory, and in this instance, given the fact that the defendant was in fact indebted to the plaintiff in an amount in excess of $40,000, this is a reasonable construction. In further support of its contention, plaintiff maintains that the contract is ambiguous and should be construed against the defendant as its drafter.

We agree with the plaintiff’s contentions for the following reasons:

At the outset we note that the contract, as applied to the instant situation, is capable of two interpretations and thus is ambiguous on its face. Southern Cafeteria Operating Co., Inc. v. Eley, 52 Ala.App. 656, 296 So.2d 743 (1974). When, as here, the agreement is subject to an ambiguity, the ambiguity is, as' a matter of law, to be resolved by the court. Charles H. McCauley Associates, Inc. v. Snook, Ala., 339 So.2d 1011 (1976).

In resolving contract ambiguities, this court is guided by well settled legal principles. The contract is to be construed as a whole, and effect will be given to all its parts when possible. Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So.2d 289 (1974). Because it is presumed that the parties intend to make reasonable contracts, Industrial Machinery, Inc. v. Creative Displays, Inc., Ala., 344 So.2d 743 (1977), courts will give such contracts a reasonable construction to avoid unconscionable results. McCauley, supra. Ambiguous contracts are construed more strongly against the party who drew them. Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975). We analyze the contract before us as it relates to each of these well settled rules.

The defendant’s contention, that the rebate and the termination clauses are separate and distinct and thus have no relation to each other, ignores the well settled rule that all the provisions of an agreement are to be given meaning when possible. Land Title, supra. Under the express language of the termination clause, defendant had an absolute obligation to plaintiff to repurchase plaintiff’s acceptable inventory, subject to plaintiff’s timely submission of a list and shipment of the parts to defendant.

To hold that plaintiff was required under the rebate clause’s condition precedent to pay defendant within thirty days even when the contract had been terminated, renders both the termination and rebate clauses somewhat meaningless because without the implementation of the termination clause, neither party could be certain that the dealer was in fact indebted to IH. If it was uncertain that the dealer was indebted to IH by virtue of IH’s obligation to the dealer to repurchase inventory, IH ought not be heard to successfully argue that the dealer should pay an obligation it does not in fact owe in order to preserve its rebate. This is especially true in this instance where, as here, after implementing the termination clause, it turns out that defendant was obligated to plaintiff for inventory valued in excess of $40,000.

As we noted above, our courts presume that the parties intend to make reasonable contracts. Industrial Machinery, supra. Were we to adopt defendant’s interpretation of this contract, the result would be to require the plaintiff to pay the defendant the debt which defendant asserted the plaintiff owed it, and subsequently, the defendant would be required to repay plaintiff that sum, and in addition in this instance, the debt defendant owed plaintiff. We view this exercise in futility a result which neither party could reasonably have intended.

Additionally, we would note that, inasmuch as it was determined that the defendant was in fact indebted to the plaintiff after implementation of the termination clause, it is unreasonable to hold that plaintiff lost his rebate by virtue of nonpayment of a sum of money to defendant to which the defendant was ultimately not entitled. Because courts must construe contracts so as to avoid unreasonable results, McCauley, supra, we refrain from adopting the construction of the agreement urged upon us by the defendant.

In addition to what we have previously said, we note that the interpretation urged by the plaintiff is reasonable since the defendant is entitled to the use of the rebate funds until, through the operation of the termination clause, it is determined which of the parties is indebted to the other.

Finally, under the principle set forth above, that ambiguous contracts are to be construed more strongly against the drafter, Jewell, supra, it is not inappropriate for this court to adopt the construction urged by the plaintiff. As the record reveals, the defendant drafted the instrument in question and had it wished the rebate and termination clauses to be considered separate and distinct, it could easily have expressly so stated.

For the foregoing reasons, this case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . The record reveals that the plaintiff in fact timely fulfilled all the necessary conditions set forth in the termination clause. Given this fact, the defendant was absolutely obligated to repurchase plaintiffs inventory.


author: BRADLEY, Judge.

text:
    Harold Wayne SMITH v. Gaye Nell SMITH.
    Civ. 1573.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.

      Alvin T. Prestwood and W. Michael Young, Montgomery, for appellant.
    Harold Howell, Prattville, for appellee.
   BRADLEY, Judge.

Former husband appeals from two separate judgments rendered by the Circuit Court of Montgomery County in a domestic relations case. We affirm that part of the decree of May 15, 1978 in Case No. DR 77-459.03, which states that the provisions in an agreement requiring payments of $114 per month by the husband to the wife constitute a part of the property settlement and, as such, are not further modifiable; we reverse that portion of the decree awarding attorney’s fees to the wife. We reverse the order of May 15, 1978 in Case No. DR 77-459.02 which denied the former husband’s motion for a new trial.

(We note that the decree concerning the property settlement is styled “Case No. DR 77-459-02.” However, some of the pleadings and the former husband’s notice of appeal relating to that decree style the case as Case No. DR 77-459-03. For purposes of clarity we shall adopt the designation used in the notice of appeal.)

The parties to this appeal were divorced in July 1973. Portions of the separation agreement, which was incorporated into the final divorce decree by the trial court, provided in pertinent part:

1. The Husband shall pay to the Wife as alimony for her support and maintenance the sum of One Hundred Fifty and No/100 ($150.00) Dollars per week.
2. The Husband shall purchase for the Wife a residence at 1317 Huie Street, Prattville, Alabama, and the title to said residence shall vest solely and exclusively in the Wife. The purchase price of said residence in Prattville is Thirty-Three Thousand Five Hundred Fifty and No/100 ($33,550.00) Dollars. The Husband shall pay the cash equity due on said house of approximately Seventeen Thousand Nine Hundred and No/100 ($17,-900.00) Dollars, and shall make the monthly house payments on the mortgage on said residence until said mortgage is fully paid. . . . and it is further understood and agreed that the payments made by the Husband on said mortgage shall be in addition to the alimony payments as provided in paragraph 1 above.
5. The Wife shall convey to the Husband all of her right, title and interest in and to the real estate owned by Husband and Wife and more specifically identified as [description of various properties].
7. The Husband shall provide for the Wife adequate hospitalization insurance coverage for the Wife and minor son, and the Husband shall pay the premiums thereon and furnish to the Wife a copy of such hospitalization policy. Said hospitalization policy shall be Blue Cross-Blue Shield or its equivalent. [Emphasis supplied.]

The wife encountered financial difficulties and in March 1976 sold the residence referred to in paragraph two of the separation agreement. At the closing of this sale the wife paid off the outstanding balance on the mortgage, $14,192.85. The circuit court issued a decree on October 12, 1976 which adopted an agreement submitted by the husband and wife, whereby the husband agreed to continue making the $114 per month payments in accordance with the original amortization schedule of said mortgage loan. Under this new agreement, however, these payments would be made to the wife rather than to the mortgage company since the debt owed to the latter had been extinguished.

On January 4, 1978 the wife petitioned the court to cite the husband for contempt based on his failure to make the $114 monthly payments for the past two months and his failure to maintain the required hospitalization insurance policy. The wife’s petition itemized the medical and doctor expenses she had incurred as a result of the husband’s allowing the policy to lapse.

On March 15,1978 the trial court issued a decree, relevant portions of which read:

DECREE
This 'cause comes before the Court on a Petition for Citation for Contempt and there being present in Court both parties and their respective attorneys and after consideration of the testimony and evidence presented to the Court, the Court finds as follows, to-wit:
1. That Harold Wayne Smith is to pay the Wife the sum of $1,380.00 which represents one-half of the outstanding indebtedness arising from the hospital insurance policy having lapsed.
2. Gaye Nell Smith shall be responsible for the remaining $1,380.00 and the payment of all of said bills upon receipt by her from the Husband of the amount of $1,380.00.
3. That the costs of Court be, and they hereby are, taxed against the Husband, together with the sum of $275.00 as an attorney fee for the Wife’s attorney.

In response to this decree the husband filed a motion for new trial, alleging that the decree was contrary to the law and the evidence in the case and not supported by the evidence in the ease. The court denied this motion on May 15, 1978.

Meanwhile, the husband had filed a petition to modify the divorce decree, alleging inter alia that the wife had remarried on February 24, 1978. The petition asked the court to relieve the husband from any and all obligations under the divorce decree as modified, including the $114 per month payments based on the former mortgage loan. After a hearing on this motion the trial court entered a decree which stated that the husband owed no further alimony by reason of the wife’s remarriage; that, except as provided in the above-quoted decree of March 15, 1978, the husband had no further obligations with respect to the hospital insurance policy; and

2. That payments due by virtue of a decree dated October 12, 1976 of $114.00 per month to the Wife in accordance with an original amortization schedule on a mortgage loan on premises at 1317 Huie Street, Prattville, Alabama, which decree modified paragraph 2 of the Separation Agreement incorporated in the original decree of divorce, are deemed by the Court to be a property settlement and not to be alimony, and therefore is not further modifiable by this Court. [Emphasis supplied.]

This decree also required the husband to pay $150 toward the attorney fee for the wife’s attorney.

The husband contends on appeal that the trial court erred in its decree in Case No. DR 77 — 459.03 by failing to eliminate the requirement that the husband continue the $114 per month payments based on the mortgage loan. He argues that since the language of the separation agreement required only that he make the payments “until said mortgage is fully satisfied,” a continuation of these payments after the mortgage has been satisfied (by the wife in 1976) constitutes the kind of support and maintenance properly classified as “alimony”; and upon the wife’s remarriage his obligation to pay alimony should cease. While agreeing it is the law in Alabama that provisions in a divorce decree for a property settlement, unlike those for alimony, are not modifiable, the husband insists that these payments must be viewed as “alimony” because the court’s decree of October 12,1976 “modified” the provisions for the payments by requiring that they be made to the wife rather than to the mortgage company.

We think these arguments are without merit and that the trial court correctly found that the payments are a part of the property settlement. The husband by his argument seeks to take improper advantage of the fact that he was originally permitted to satisfy his obligations under the property settlement with monthly installments rather than being required to make an immediate cash settlement.

A court of equity in a divorce case has power to use any reasonable means to effect a just property settlement and adjust the equities between the parties. Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. den. 287 Ala. 740, 249 So.2d 860 and 287 Ala. 740, 249 So.2d 861 (1971), and cases cited therein. The agreement incorporated into the divorce decree in the case at bar specifically provided that the mortgage payments were to be in addition to alimony payments. The wife was to receive sole and exclusive title to the Huie Street residence, and in exchange she was to relinquish her interest in other jointly held property. The decree of October 12, 1976 changed neither the amount due nor the liability of the husband for the $114 per month payments. Under these circumstances we do not think that a mere change of payee from the mortgage company to the wife transformed these payments into “alimony,” nor do we think that the satisfaction of the mortgage debt by the wife extinguished the husband’s obligation to continue the payments required by the decree.

The case cited by the husband, McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978), is distinguishable from the case at bar, because in McGugin the husband was not required to satisfy the entire mortgage debt, but rather was obligated only to pay off the balance of the mortgage if his wife did not remarry before the debt had been liquidated. In the instant case, however, the husband’s duty to make the monthly mortgage payments was unconditional.

The Alabama Supreme Court said in DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 (1963), that a property settlement is not continuous; it is a one time thing. The rule permitting a court to modify a provision for periodic support payments does not apply to a provision for division of property. Id; Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974). The trial court correctly applied these principles to the facts in this case.

The husband’s second contention is that the trial court erred in its decree of March 15, 1978 by requiring the husband to pay one-half of the medical expenses incurred by the wife as a result of the lapse of the insurance policy. He argues that the lapse was caused by the wife’s own neglect and inaction, and that the decree, in effect, makes the husband the co-insurer of the wife’s health. Much of the testimony in the record and argument in brief is directed toward the factual issue of who was at fault in allowing the policy to lapse, but that issue is not dispositive of the appeal in this case. We agree that the decree of March 15, 1978 is erroneous and that the husband’s motion for new trial should have been granted, but we do so for reasons other than those suggested by the husband.

In Lightsey v. Kensington Mortgage and Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975), the Alabama Supreme Court concluded that the assessment of compensatory damages in favor of the adverse party in civil contempt proceedings would be permitted. The Lightsey opinion indicates that the issue of such damages may be tried to the court or, on demand by either party, to a jury, and that this issue may be resolved in the same proceeding on petition of the aggrieved party seeking damages after a finding by the trial court that the opposite party is in contempt.

In the case at bar it is not at all clear from the decree that the court found the husband to be in contempt. A fair reading of that decree indicates that the basis for the proceeding was a petition for citation for contempt, that a hearing on the petition was held, and that the court found that the husband should pay one-half of the medical expenses incurred by the wife as a result of the lapse of the policy.

A recital of the facts constituting the contempt is not essential to the validity of the judgment rendered in contempt proceedings. Hancock v. Bell, 274 Ala. 390, 149 So.2d 842 (1963). However, in light of the principles set forth in the Lightsey opinion, we think that a finding by the court that the husband is in contempt of court is a prerequisite to the assessment of compensatory damages. Cf. 17 C.J.S. “Contempt” § 86(3) (1963) and cases cited therein (stating that the judgment or order in contempt proceedings must make a finding as to the fact of contempt). Regardless of whether the facts in this case are sufficient to justify the award of compensatory damages to the wife, such an award is improper in the absence of a finding that the husband is in contempt of court. For this reason the judgment in Case No. DR 77-459.02 must be reversed.

What we have said thus far disposes of the appeal in Case No. DR 77-459.02. However, in view of the possibility that further proceedings in this case may be had, we address ourselves to another issue that may arise in future proceedings, if any— namely, the procedure for obtaining appellate review after a party has been found in contempt and has been assessed compensatory damages as contemplated in the Light-sey opinion.

Of course, it is well-established law in Alabama that the proper remedy for review of a contempt proceeding is by habe-as corpus if the party is in jail, or by certiorari if the party is not; and appeal is not the proper remedy. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969); Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976).

The Alabama Supreme Court said in the Lightsey opinion:

We think the question of the amount of unliquidated damages should be regularly tried so that a dissatisfied party could have an initial review by an appeal rather than by a writ of certiorari. An indemnity or a compensatory award of damages must be determined in an ancillary proceeding and is not permissible as an integral part of the court’s adjudication of contempt in the circuit court’s of this state. [Emphasis supplied.]

These cases indicate that a party who has been found in contempt and who has been assessed compensatory damages should seek review of the finding of contempt by means of extraordinary writ (cer-tiorari or habeas corpus), and should seek review of the question of the assessed amount of compensatory damages by appeal.

Lastly, the husband disputes the award of attorney’s fees to the wife in the decrees of March 15,1978 and May 15,1978. He argues that the award in the March 15 decree is impermissible under Code of Alabama 1975, § 30-2-54 [formerly Title 34, § 39(3), Code of Alabama 1940 (1973) Supp.)] because no contempt citation was issued by the trial court.

We agree. In Jernigan v. Jernigan, Ala.Civ.App., 335 So.2d 178 (1976), we said:

Section 39(3) of Tit. 34, Code of Alabama 1940, passed by the legislature in 1970, permits attorney’s fees to be awarded “in all suits for the recovery of alimony, maintenance or support in which . a contempt of court citation has been made by the court against either party . . .” While the judicial proscription against awards of counsel fees was thus abrogated in this particular situation, it remains in effect as to enforcement proceedings where no contempt citation is made.

We think that the award of attorney’s fees in the decree of March 15,1978 was improper in the absence of a finding that the husband was in contempt of court.

The husband further contends that these allowances for attorney’s fees constitute an improper imposition of support obligations under Code of Alabama 1975, § 30-2-55 which provides:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.

Citing Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964), for the proposition that the allowance for attorney’s fees is based upon the same principle as allowance for alimony, the husband argues that his former wife’s remarriage in February 1978 prior to the rendering of either of the decrees should have relieved him of any obligation to provide this form of support.

Having already determined that the award of attorney’s fees in the decree of March 15, 1978 was improper, we refer these arguments to the validity of the award in the decree of May 15, 1978.

The effective date of § 30-2-55, upon which the husband relies, is April 27, 1978. Act No. 596, Acts of Alabama 1978. Whether a statute operates prospectively or retrospectively is a matter of legislative intent. Statutes generally will be held to operate prospectively unless the purpose and intention of the legislature to give them a retrospective effect clearly appears. Fuqua v. Fuqua, 268 Ala. 127, 104 So.2d 925 (1958); Bell v. Mar-Mil Steel & Supply Co., 54 Ala.App. 432, 309 So.2d 471 (1975).

The language of § 30-2-55 does not express the legislative intent that the statute be applied retrospectively. We do not think it applies to suits arising out of events which occurred prior to the effective date of the statute, regardless of the fact that the decree of May 15, 1978 was rendered after the effective date of the statute. Cf. City of Brewton v. White's Auto Store, Inc., Ala., 362 So.2d 226 (1978).

The question then is whether under the prior law the fact of the former wife’s remarriage relieved the husband of any obligation to pay for the wife’s attorney’s fees.

As both parties to this appeal correctly point out, the allowance of attorney’s fees to the wife is based upon the same considerations as the allowance of alimony. Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461, cert. den. 289 Ala. 751, 267 So.2d 467 (1972); Hodson v. Hodson, supra. Where the trial court has the continuing power to modify the allowances for alimony made in an original decree of divorce upon a showing of changed circumstances, as here, the court also retains the incidental right, in the exercise of its judicial discretion, to award attorney’s fees for services rendered in modification proceedings by the wife’s attorney. Jernigan v. Jernigan, Ala. Civ.App., 335 So.2d 178 (1976); Jordan v. Jordan, 266 Ala. 386, 96 So.2d 809 (1957); Whittle v. Whittle, 272 Ala. 32, 128 So.2d 92 (1961).

The prior case law dealing with the allowance of alimony to the wife after she had remarried indicates that such remarriage did not ipso facto terminate the ex-husband’s obligation to pay alimony, but did provide cogent and convincing grounds for the court to do so upon petition by the husband; and, that the remarried wife could continue to receive alimony from her ex-husband if she could show she still needed such support based on her present husband’s inability to support her. Little v. Little, Ala.Civ.App., 349 So.2d 48 (1977); Hora v. Hora, 46 Ala.App. 513, 244 So.2d 601 (1971).

In the instant case it does not appear from the record that the wife has made such a showing. Moreover, the terms of the decree of May 15,1978 (relieving the ex-husband from his obligations pertaining to future alimony and future payments of the hospital insurance premiums) indicate that the wife is no longer in need of support by her ex-husband. We are not unmindful that the granting of attorney’s fees to the wife in a divorce action is a matter largely within the sound discretion of the trial court and that the court’s exercise of the discretion will not be revised on appeal in the absence of abuse. Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967). However, we think under the circumstances of this case the wife should not have been awarded attorney’s fees, since such an award was, of necessity, based on the same considerations that compelled the trial court to terminate the above-mentioned support obligations owed by the ex-husband to the ex-wife.

Nor can this award of attorney’s fees be predicated on the fact that the wife prevailed below on the issue of the monthly payments of $114. Those payments constitute a part of a final, nonmodifiable property settlement. The allowance of attorney’s fees is not permissible in a proceeding looking to the enforcement of an award already made. See Jernigan v. Jernigan, supra.

For these reasons we reverse that portion of the decree of May 15, 1978 in Case No. DR 77-459.03 awarding $150 as attorney’s fees to the wife; the decree, in all other respects, is affirmed.

The attorney for the wife has petitioned this court for an award of attorney’s fee on appeal. This request is denied.

CASE NO. DR 77-459.03 IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

CASE NO. DR 77-459.02 IS REVERSED AND THE CAUSE REMANDED TO THE TRIAL COURT.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    WIREGRASS CONSTRUCTION COMPANY, INC. v. TALLAPOOSA RIVER ELECTRIC COOPERATIVE, INC.
    Civ. 1579.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.

      James W. Cameron, Montgomery, for appellant.
    Larkin Radney of Radney, Radney & Barnes, Alexander City, for appellee.
   HOLMES, Judge.

This is the appeal of an action on a contract. The trial court, after an ore tenus hearing, entered judgment for the plaintiff. The defendant has appealed the adverse judgment of the trial court and that court’s interpretation of the contract.

The dispositive issue before this court is whether the trial court erred in its interpretation of the agreement. We hold that it did and reverse the judgment rendered below.

The record before us reveals the following: The plaintiff and defendant entered into a written contract in 1974 under which the plaintiff agreed to furnish electrical service to the defendant at agreed upon rates. The plaintiff prepared the agreement. The contract was to expire after five years, i. e., August, 1979. The defendant began receiving power from the plaintiff in 1974, and continued to purchase power until its service was terminated in October, 1977. During this three-year period, there were three months in 1975 and six months in 1977 in which the defendant used no power.

The original contract specified that in the event the defendant used no power, it was obligated to pay a minimum of $300 per month for the right to have power available. Specifically, the original contract regarding minimum payments is as follows:

“2. Payment.
“a. The Consumer shall pay the Seller for service hereunder at the rate and upon the terms and conditions set forth in Schedule LP4 attached to and made a part of this Agreement. Notwithstanding any provision of the Schedule and irrespective of Consumer’s requirements for or use of electric power and energy, the demand for billing purposes hereunder shall be not less than-kilowatts for any billing period. In any event the Consumer shall pay to the Seller not less than $300.00 plus tax per month for service or for having service available hereunder during the term hereof.” (Emphasis supplied.)

The controversy in this case is whether the plaintiff is entitled under terms of its agreement to charge the defendant more than the minimum $300 charge in those months in which the defendant used no power.

The trial court concluded that the plaintiff had such a right. The plaintiff premised its right to charge more than the specified minimum on two provisions of the contract.

Under paragraph 2(a) of the original agreement, as set out above, the defendant agreed to pay the plaintiff at “rates and upon the terms and conditions set forth in Schedule LP-4 attached to and made part of” the agreement. Schedule LP — 4 provides in pertinent part:

“DETERMINATION OF BILLING DEMAND
“The billing demand shall be determined by meters measuring the consumer’s maximum integrated 15 minute demand in KW but shall not be less than 75% of the highest demand established during the preceding 11 months. .
“MINIMUM BILL
“The minimum monthly charge will be the highest of any one of the following:
“(1) The minimum bill specified in the contract for service, or
“(2) A sum equal to $1.00 per KVA of installed transformer capacity required to serve the load. . . . ” (Emphasis supplied.)

The plaintiff contends that the two methods expressly set out in the “MINIMUM BILL” provision of the original contract for the computation of the defendant’s monthly indebtedness are superseded by the provisions of the “DETERMINATION OF BILLING DEMAND” section in months when the defendant used no power.

Specifically, the plaintiff maintains that it is entitled to charge the defendant 75% of the highest demand established during the preceding eleven months rather than the $300 minimum.

To further substantiate plaintiff’s contention that this is the proper contract interpretation, the plaintiff points to paragraph 2(d) of the agreement which in essence provides that the plaintiff may at any time modify the contract to pass on rate increases which the plaintiff becomes obligated to pay its supplier, Alabama Power. The record reveals that two such rate increases in fact occurred and therefore the plaintiff modified the original agreement with its LP — 9 and LP-10 schedules which went into effect in 1974 and 1977, respectively. Both these revised schedules (LP — 9 and LP-10) provided three possible methods by which to compute defendant’s minimum monthly bills:

“DETERMINATION OF BILLING DEMAND:
“The billing demand shall be determined by meters measuring the consumer’s maximum integrated 15 minute demand in KW or KVA, as the case may be, but shall not be less than 75% of the highest demand established during the preceding 11 months. .
“MINIMUM BILL:
“The minimum monthly charge will be the highest of any one of the following:
“(1) The minimum bill specified in the contract for service; or
“(2) A sum equal to $1.50 per KVA of installed transformer capacity required to serve the load; or
“(3) The billing demand charge as per schedule above.” (Emphasis supplied.)

The plaintiff, as we perceive his argument, maintains that because the subsequent LP — 9 and LP-10 schedules provide three methods by which to compute defendant’s minimum bill, this clearly indicates that the original LP-4 schedule was intended to and allowed plaintiff to compute the defendant’s minimum bill pursuant to the third method, i. e., the 75% calculation set forth in the original LP-4 “DETERMINATION OF BILLING DEMAND” section.

The defendant maintains that the contract’s language is clearly ambiguous with respect to computation of its minimum bill. In addition, the defendant contends that to the extent that the plaintiff drafted the ambiguous agreement, it should be construed against the plaintiff. Defendant further argues that the interpretation placed on the agreement by the plaintiff is unreasonable in that it requires the defendant to pay for power it did not use. We agree with the defendant’s contentions.

The law of Alabama on the issue before us is well settled. Whether a written contract is unclear and ambiguous is a question of law for the court. Southern Cafeteria Operating Co., Inc. v. Eley, 52 Ala.App. 656, 296 So.2d 743 (1974). See also Task Consultants, Inc. v. Finerty, Ala.Civ. App., 339 So.2d 87 (1976). Once it appears the contract is ambiguous, the court will construe the contract more strongly against the party who prepared the agreement. Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975). While the court cannot make contracts for the parties, it must give such agreements a reasonable construction. Charles H. McCauley Associates, Inc. v. Snook, Ala., 339 So.2d 1011 (1976).

In the instant case, as seen from the above, the contract is subject to two interpretations which are as follows: One interpretation provides that the original LP-4 schedule’s two methods for calculating the customer’s minimum bill under the “MINIMUM BILL” section of the contract are the sole methods by which to arrive at the defendant’s minimum monthly debt and that schedule’s “DETERMINATION OF BILLING DEMAND” section cannot be considered as providing a third alternative.

The other construction of the contract provides that there are three alternative methods by which to arrive at the customer’s minimum bill. Under this interpretation, the two methods set forth in the LP-4 schedule’s “MINIMUM BILL” section are to be read together with that schedule’s “DETERMINATION OF BILLING DEMAND” section and, therefore, the plaintiff may charge the customer 75% of the highest monthly demand established by the customer during the preceding eleven months.

Because there are two possible reasonable contract interpretations, the agreement’s construction is a matter of law appropriate for the court’s deliberations. Southern Cafeteria, supra.

Contrary to plaintiff’s contention, in the original LP — i schedule there are only two express methods by which to calculate defendant’s minimum bill. To this court, the conclusion is inescapable that these two methods delineated in the “MINIMUM BILL” section are the exclusive means of calculating the defendant’s minimum bill. This is so, because the “MINIMUM BILL” section of the contract which is controlling in this instance so states. It is not necessary nor permissible to attempt to integrate the “DETERMINATION OF BILLING DEMAND” section of the contract into the “MINIMUM BILL” provision. Where possible, courts should not tamper with and change contract terms. See 5 Ala. Digest Contracts <®=» 143(3).

There is further support for this conclusion in that the plaintiff subsequently modified the contract with the LP-9 and LP-10 schedules, which modifications were apparently necessary to remove the ambiguity in the original LP-4 schedule. Had the plaintiff initially desired three methods by which to compute the defendant’s minimum bill, it could easily have drafted the original LP-4 schedule to accrue this result.

As indicated earlier, the plaintiff prepared the contract upon which it bases this suit and thus, under the well settled rules of contract construction noted above, it is proper for the court to construe the contract most favorably for the defendant. Jewell v. Jackson & Whitsitt, supra. In addition, we find that the plaintiff’s position that the defendant is obligated to pay for power which it in fact did not consume, is not a reasonable construction of the parties’ bargain. McCauley Associates, supra.

The plaintiff additionally maintains that it had the right, pursuant to paragraph 2(d) of the contract, to modify the “MINIMUM BILL” section in the LP-4 schedule and did so with its subsequent LP-9 and LP-10 schedules. The plaintiff argues that the effect of these modifications was to obligate the defendant to pay a minimum bill based on the “75% of maximum use” calculations. We do not agree with this contention. While paragraph 2(d) of the agreement allows the plaintiff to pass on rate increases to the defendant, it plainly does not allow the plaintiff to unilaterally change the method by which the defendant’s monthly bill is calculated.

In addition, we would note that it is an elementary principle of contract law that in order for a contract to be validly modified, there must be mutual assent to the new terms by both parties. Kinmon v. J. P. King Auction Co., Inc., 290 Ala. 323, 276 So.2d 569 (1973). It is incumbent on the party claiming the modification to show that the new agreement was mutually agreed to. See, e., g., Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975). The record before us is barren as to any proof of a mutually bargained for modification with respect to changing the procedures to calculate the defendant’s minimum monthly bill. For these reasons, we hold that the LP-9 and LP-10 schedules were not valid modifications to the original contract terms with respect to the calculation of the defendant’s minimum monthly bill.

For the foregoing reasons, we reverse and remand for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    William D. SIVLEY, a/k/a Dan Sivley v. MEMPHIS DRUM SERVICE, INC., and James A. Massey.
    Civ. 1631.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.
    Jesse W. Shotts, Birmingham, for appellant.
    Gilbert E. Johnston, Jr., Birmingham, for appellees.
   HOLMES, Judge.

The plaintiffs, Memphis Drum Service, Inc., and James A. Massey, brought suit against the defendant in the appropriate court in Memphis, Tennessee. Service of process was had upon the defendant by the “long arm” statute of Tennessee. A default judgment was entered in Tennessee and thereafter suit was filed in Birmingham, Alabama, on the Tennessee judgment.

The defendant in the Alabama court attacked the Tennessee judgment on the basis of improper service of process. The plaintiffs prevailed and the defendant appeals to this court.

The dispositive issue on appeal is whether the signing by defendant’s wife of a registered mail return receipt accompanying a Tennessee summons and complaint is appropriate service under Tennessee’s “long arm” service of process statute.

The record reveals the following: On March 23, 1977, the plaintiffs obtained a default judgment against the defendant for $2,200 in Shelby County, Tennessee. The judgment was apparently predicated on the defendant’s default on an obligation he owed plaintiffs.

Because the defendant was a resident of Alabama, the plaintiffs, pursuant to the Tennessee “long arm” statute, Tennessee Code Ann. §§ 20-235, 20-236, 20-237, and 20-240 (Supp.1978), effected service of the summons and complaint on the defendant by registered mail with return receipt. The summons and complaint were properly mailed to the defendant’s home address by the Tennessee Secretary of State. On January 28, 1977, because the defendant was away from home, the defendant’s wife acknowledged receipt on behalf of her husband. The signature on the return receipt indicates that the wife signed her husband’s name rather than her own.

The record further indicates that sometime in February, 1977, the defendant was given actual notice that the summons and complaint had been delivered by virtue of the fact that the defendant’s wife showed him the papers. In March, 1977, after the defendant’s absence in court on the day set for trial, the plaintiffs took a default judgment. As an apparent predicate to execute on the Tennessee judgment, the plaintiffs brought suit in Jefferson County, Alabama, and successfully obtained summary judgment against the defendant. It is from this judgment that the defendant appeals.

The defendant, as we perceive his argument contends that the service of process was defective because service by certified mail upon the defendant’s wife is not personal service upon the defendant. Thus, the defendant maintains that the Tennessee judgment is void for lack of personal jurisdiction and consequently, summary judgment should not have been granted against him in the court below. We do not agree.

Initially, we note that the law of the forum determines the methods of serving process and giving due notice of the proceedings to the defendant. Dollahite-Levy Co. v. Overton, 223 Ala. 12, 133 So. 903 (1931); Nash v. Nash, 38 Ala.App. 682, 94 So.2d 217, cert. denied, 266 Ala. 698, 94 So.2d 223 (1957). Therefore, Tennessee law is applicable to the instant case.

With respect to the relevant Tennessee law, the Tennessee Code authorizes constructive service of process by certified mail on nonresidents who transact business in the State of Tennessee. Tenn.Code Ann. § 20-235 (Supp.1978). In order to effect service by this means, the Tennessee Secretary of State, after receiving the summons and complaint from the clerk of the court, promptly mails the papers to the defendant return receipt requested. Id. § 20-235. Upon receipt by the defendant, the Secretary of State is required to issue an affidavit to the clerk of the court setting forth that he has complied with the statute and to this is attached the certified return receipt “signed by, or duly in behalf of, the defendant.” Id. § 20-237.

In the instant case, the record reveals that these procedures were properly followed.

In addition, our review of the record indicates that the wife in fact executed the return receipt on behalf of her husband, an action which we noted above is expressly authorized by § 20-237. In her deposition, the wife testified as follows:

“Q Mrs. Sivley, do you remember receiving a Summons and Complaint against your husband, by certified mail, about a year ago, . . . ?
“A Yes. I picked it up at the Post Office.
“Q You signed the receipt for that?
“A Yes, sir.
“Q Let me show you, and I won’t identify it yet, this copy right here. Does that appear to be the certified mail receipt that you signed on that occasion?
“A Yes. That’s my handwriting.
“Q All right. And so you signed that on behalf of your husband?
“A Yes. He was out of town at the time.”

Inasmuch as § 20-237 expressly authorizes another person to accept service of process for the defendant, and the wife’s testimony indicates that she in fact accepted the process on behalf of her husband, we hold that the defendant was properly served with process by his wife’s acceptance. In view of this, we find no error in the trial court’s grant of summary judgment against the defendant.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    WEBB TIMBER COMPANY and Gordon Salter v. Hertis MILTON.
    Civ. 1637.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.
    L. Merrill Shirley, Elba, for appellants.
    W. Sidney Fuller of Tipler & Fuller, Andalusia, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Conecuh County entered a judgment for the employee and the employer appeals.

The dispositive issue on appeal is whether the trial court failed to include in its finding of fact or conclusions of law, as required, that the employee had suffered a loss of ability to earn. We find the trial court failed to make such a finding and reverse.

The learned trial judge’s order in pertinent part is as follows:

“. . . The Court finds that the plaintiff is suffering from a permanent partial disability of sixty percent (60%) of the body as a whole as a result of permanent impairment to his right lower extremity within the meaning of the Alabama Workmen’s Compensation laws. . ..”

Able and distinguished counsel for the employee argues that the prepositional phrase, “within the meaning of the Alabama Workmen’s Compensation laws” sub-serves to satisfy the requirement that the trial court make a finding of fact that the employee sustained a loss of ability to earn. We do not agree.

It is clear that the workmen’s compensation law of Alabama requires a finding by the trial court that the employee has suffered a loss of ability to earn. Without such a determination there is no basis for the amount of compensation awarded. See Hill v. J. P. Stevens & Co., Inc., Ala.Civ. App., 360 So.2d 1035 (1978); Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973); B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971).

It is equally clear to this court, as seen from the above, that the trial court made no such finding. The phrase, “within the meaning of Alabama Workmen’s Compensation laws” in no way is a finding by the trial court that the employee had in fact suffered a loss of ability to earn.

In view of the above, this case must be remanded to the trial court for that court to determine whether the employee has in fact suffered a loss of ability to earn. See Hill, supra. See also Lingo v. Dixie Veneer Co., Ala.Civ.App., 349 So.2d 591 (1977).

Other issues are raised by the employer in its excellent brief; however, in view of the above it would be inappropriate for this court to address itself to these issues.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: HARRIS, Presiding Judge.

text:
    Joseph Lucian CHESTEEN v. STATE.
    8 Div. 952.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      John D. Clement, Jr. and Henry H. Self, Jr., Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of violating the Alabama Uniform Controlled Substances Act, Title 22, Section 258(47), 1973 Cumulative Supplement. Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this Indictment Joseph Lucian Chesteen, alias Joseph L. Chesteen, alias Luke Chesteen, whose name is otherwise unknown to the Grand Jury than as stated, did sell, furnish or give away, Phentermine, a controlled substance contrary to the provisions of the Alabama Controlled Substances Act, against the peace and dignity of the State of Alabama.”

Throughout the trial proceedings appellant was represented by retained counsel and at arraignment pleaded not guilty. The jury returned a verdict of guilty and assessed a fine of Fifteen Thousand Dollars against him. As additional punishment the Court sentenced appellant to seven years imprisonment in the penitentiary.

The evidence is circumstantial and extremely conflicting in many respects. The jury encountered considerable difficulty in reaching a verdict. This case grew out of an occurrence at the Tuscumbia Drug Store on the afternoon of May 28, 1976, after one Harold Hatton was observed leaving the drugstore with a white paper bag in his hand.

The Sheriff of Colbert County, John L. Aldridge, testified that at approximately 4:15 p. m. on May 28, 1976, he ordered the Tuscumbia Drug Store staked out. The Sheriff and his Chief Deputy, Doug Aycock, in separate automobiles, took up positions near the drugstore. While so positioned they saw Hatton leave the front entrance of the drugstore and enter a Lincoln Continental around 5:15 p. m. which started moving away. Aycock pulled in behind the car occupied by Hatton and the Sheriff pulled in behind Aycock. The Lincoln Continental was stopped about one and a half blocks from the drugstore. The Sheriff walked to the passenger side of the stopped car and directed Hatton to get out. When Hatton opened the car door the Sheriff saw a white paper sack lying on the floorboard of the car. This sack contained two bottles which were labeled “Ionamin”, a trade name for the drug “Phentermine.” The bottles were full of yellow capsules. Hatton and his driver were placed under arrest. Hatton was searched by another Deputy Sheriff in the presence of the Sheriff. The search yielded two smaller bottles which also contained yellow capsules. A short time later the Sheriff ordered appellant arrested.

Doug Aycock testified that he was Chief Deputy for the Colbert County Sheriff’s Office. He stated that at Aldridge’s instruction he set up a stakeout of Tuscumbia Drug Store. At 5:20 p. m., Aycock saw Hatton enter the drugstore. Hatton was empty handed at that time. When Hatton left the store, he carried a white paper sack. Hatton got in a Lincoln Continental and drove off, with Aycock following. The Lincoln was being driven by Rod Hamby. Ay-cock was present at the time that Aldridge recovered the sack containing the Ionamin and when Hatton was searched. Aycock then went to Tuscumbia Drug with Deputy-May. Appellant, John Lawson, and Vicki Moultrie were in the store. May read appellant and Lawson their rights from a Miranda card. Appellant stated that he understood and agreed to talk to the deputies. Aycock then asked which of them had waited on Hatton. Appellant replied that he did. Aycock shortly thereafter placed appellant under arrest. Subsequently, an audit was conducted of appellant’s drugs on hand at the store. Aycock and Victor E. McClellan, an agent with the Diversion Investigation Unit of the Alabama Department of Public Safety, spoke with the appellant after he was again informed of his Miranda rights. McClellan asked if he could explain a shortage of Ionamin capsules. Appellant replied, “I can’t.”

Millard Conley testified that he was employed by the Colbert County Sheriff’s Office. On May 28, 1977, he participated in a stakeout of Tuscumbia Drug Store. In response to a radio dispatch, Conley left his position and drove down 6th Street East where he discovered Hatton, Hamby, Al-dridge, and Aycock standing next to a Lincoln Continental. Conley read Hatton and Hamby their Miranda warnings and also searched Hatton. He recovered two plastic bottles in the left front pocket of Hatton’s trousers. Conley carried these bottles and the bottles recovered by Aldridge to the toxicology laboratory in Florence, Alabama.

Vickie Moultrie testified that she was employed at Tuscumbia Drug Store. On May 28, 1977, she saw Hatton enter the store. Hatton came in the store two or three times a month. He was empty handed when he entered the store. Hatton remained there thirty to forty-five minutes. She saw Hatton talking to appellant in the store. Subsequently, Moultrie saw Hatton carrying a white paper sack when he left the store.

Elaine Scott testified that she had been employed by the Alabama Department of Toxicology for three years. Scott received a B.S. degree in laboratory technology from Auburn University and was working on a Master’s Degree from the University of Alabama in Criminal Justice. Scott further stated that she had completed approximately a thousand drug identifications during the course of her work, including training at the Drug Enforcement Agency of the Federal Government’s Forensic Chemist Seminar.

Scott further testified that Conley turned over to her two small bottles containing 50 capsules, each bearing an imprint of 18-904, and two large glass bottles, labeled Ionamin 30, containing yellow capsules imprinted with 18-904. Each of the large bottles contained 400 capsules. She also received a white paper sack. Scott made an identification of the contents of all four bottles, by a Micro Chemical Color Test, Scott found that these capsules contained phentermine, a controlled substance in Alabama.

Scott also removed prints from these bottles and forwarded them to the Alabama Bureau of Fingerprint Investigation. These prints were not identified as appellant's.

John Lawson testified that he was a pharmacist at Tuscumbia Drugs from June, 1973, to September, 1976. Lawson saw Hatton in the drugstore on May 28, 1976, between 4:30 p. m. and 5:00 p. m. Hatton was talking with the appellant. Lawson further testified that Hatton came in the store two to three times a week, with appellant usually waiting on him. Lawson never filled a prescription for Hatton. Lawson stated that Ionamin was kept on the prescription shelves and also in the rear of the store. He had ordered Ionamin for the store on occasions. He never filled a prescription for Ionamin for Hatton. Neither did he give Hatton any Ionamin. On May 28,1976, Lawson did not see appellant hand anything to Hatton. Nor did he see Hatton leave the store carrying anything.

Lawson testified that there was a padlocked stainless steel cabinet in the back of the store. Only appellant had the combination to this lock.

Victor E. McClellan testified that he was employed by the Alabama Bureau of Investigation and attached to the Diversion Investigation Unit. This unit is a specialized narcotics unit whose purpose is to insure compliance with the Alabama Controlled Substances Act. On May 29, 1976, he, D.I.U. Agent Bill Sanders, and Deputy Ronny May of the Colbert County Sheriffs Office went to Tuscumbia Drug Store, where an audit of Ionamin capsules was conducted. This audit concerned 15 milligram and 30 milligram Ionamin capsules. An inventory conducted on July 20, 1975, showed 180 Ionamin 15 milligram and no Ionamin 30 milligram present in the store. On May 29, 1976, 186 Ionamin 15 milligram and 4,032 Ionamin milligram 30 capsules were in stock. Appellant’s purchase books showed that between July 20,1975 and May 29, 1976, 180 Ionamin 15 milligram and 22,-400 Ionamin 30 milligram were bought. A check of appellant’s distribution files revealed that only 146 Ionamin 15 and 760 Ionamin 30 had been legally distributed, leaving a shortage of 17,608 Ionamin 30 capsules during that period from July 20, 1975 and May 29, 1976, for which appellant could give absolutely no explanation. He told the officer there had been no burglary of his store in three or four years.

On cross-examination, McClellan stated that the 1975 inventory was done by John Lawson. However, Lawson was not questioned concerning the shortage. McClellan stated that Lawson was not questioned because both appellant and Lawson told him that appellant was in charge of the store.

Appellant testified that he had owned and operated Tuscumbia Drug since 1964. He stated that Lawson ordered and checked in most of the drugs at the store. Controlled drugs were kept in a stainless steel cabinet in the rear of the store. Appellant testified that this was not always locked.

On May 28, 1976, appellant testified that he waited on Harold Hatton at the counter. Hatton was checking on some sunglasses appellant had ordered for him. Appellant told Hatton that he had not gotten them in yet. This ended the conversation. Appellant stated he then went into his office. Appellant denied selling or giving Hatton any drugs. Appellant also testified that he was the only person who had the combination to the steel cabinet in which the controlled drugs were kept.

Fred Hovater, Jr., testified that he was a pharmacist at Medical Plaza Pharmacy in Muscle Shoals, Alabama. Hovater knew appellant and had gone to college with him. He testified that appellant’s general reputation and his reputation for truth and veracity were good. Hovater would believe appellant under oath. On cross-examination Hovater testified that normally 1,000 to 1,200 Ionamin were prescribed in a drugstore a year.

Atwell McNees testified that he was an accountant in Tuscumbia and had known appellant twelve years. McNees stated that appellant’s general reputation was excellent and that his reputation for truth and veracity was also excellent. McNees testified that he would believe appellant under oath.

Don Lenz testified that he was a pharmacist in Muscle Shoals. He stated appellant’s general reputation and reputation for truth and veracity were good. He further stated that he knew John Lawson’s reputation for truth and veracity and that he would not believe him.

On cross-examination, Lenz testified that at the very most no more than 7,000 Iona-min 30’s were sold in a year. He would never have reason to buy 22,000 of these pills in a year. Nor did he ever keep 4,000 Ionamins in stock at a time.

Fred Holland testified that appellant’s general reputation and reputation for truth and veracity were good.

Clyde Ray testified he was a pharmacist in Muscle Shoals and had known appellant for twelve years. He stated appellant’s general reputation and reputation for truth and veracity were very good.

Angelynn Ricks testified that she was a school teacher in Tuscumbia, and that she had known appellant for twelve years. She testified that his general reputation and reputation for truth and veracity were excellent.

This concluded the taking of testimony.

Appellant contends that the evidence is insufficient to support his conviction. At trial appellant moved to exclude the State’s evidence on the basis that a prima facie case had not been established. Additionally, appellant requested the affirmative charge and filed a motion for a new trial, alleging that a prima facie case had not been made.

This case rests solely upon circumstantial evidence. Such evidence is entitled to the same weight as direct evidence provided it points toward guilt of the accused. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Williams v. State, Ala.Cr.App., 348 So.2d 1142.

The evidence in this case points strongly to the guilt of the appellant. Four persons were working at Tuscumbia Drug Store on May 28,1976. Each denied selling or giving the Ionamin capsules to Hatton. However, appellant was the only person in the store who acknowledged having had any transaction with Hatton that afternoon. Vicki Moultrie testified that when she saw Harold Hatton leave the store shortly after talking with the appellant, he carried a white paper bag. Appellant also stated that controlled drugs were kept in a stainless steel cabinet, to which only he had the combination. Whether or not this cabinet was locked at all times was a jury question. John Lawson, the other pharmacist, testified, however, that he was unaware that the cabinet contained these drugs. He testified that all prescription drugs were kept in the shelves behind the counter. On the morning of the audit by D.I.U. Agent McClellan, Lawson saw appellant bring from the back of the store eight or nine bottles of Ionamin. That audit, as set out above, showed a shortage of 17,406 Ionamin capsules. Appellant told McClellan he had no explanation for the shortage.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Jones v. State, Ala.Cr.App., 337 So.2d 116.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and overruling of a motion for new trial, does not constitute error.”

The offense for which appellant was indicted is denounced by Alabama Code, 1940, recompiled 1958, cumulative supplement 1973, Title 22, Section 258(47). That section states, in part, that, except as authorized by this chapter, any person who possesses, sells, furnishes, or gives away a controlled substance enumerated in schedules I through V is guilty of a felony and may be punished by not less than two nor more than fifteen years imprisonment and may also be fined not more than $25,000.00.

Appellant filed a motion to strike the indictment and a demurrer, basically contending that the indictment did not state an offense. These motions were denied. Upon the close of the State’s case, as part of his motion to exclude, appellant alleged as grounds the following:

“1. For that the State’s evidence affirmatively shows that the Defendant is a pharmacist, now and at the time of the alleged commission of the act for which he is now being prosecuted, and was at said time, and is now, registered by the State Board of Pharmacy as a licensed pharmacist in the State of Alabama and that as such a pharmacist, it is not in violation of any of the laws of the State of Alabama for such Defendant to sell, furnish or give away phentermine, as charged in the indictment.
“2. For that the State’s evidence affirmatively shows that the Defendant is now and was at the time of the alleged offense charged in the indictment a duly licensed and registered pharmacist in the State of Alabama and duly registered and licensed by the State Board of Pharmacy of the State of Alabama, and that as such it is not a violation of any of the laws of the State of Alabama for the Defendant to sell, furnish or give away phentermine as charged in the indictment.
“3. For that the State’s evidence in this cause has failed to show that the selling, furnishing, or giving away of phenter-mine by the Defendant is a violation of any of the laws of the State of Alabama, as charged in the indictment.
“4. For that the State’s evidence has failed to show that the phentermine is a controlled substance and that the selling, furnishing or giving away of phentermine by the Defendant is a violation of any of the laws of the State of Alabama as charged in the indictment.”

It is urged by appellant that an offense against him could only be charged by an indictment under Alabama Code, 1940, recompiled 1958, Cum.Supp.1973, Title 22, Section 258(48)(a)(l). This section states that it is unlawful for any person who is subject to Article 3 of this Chapter to distribute or dispense a controlled substance in violation of Section 258(46), (absent a prescription of a practitioner.)

Section 258(46)(c), Ala.Code annotated, states the following:

“(c) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV which is a prescription drug as determined under state board of health statute, shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than 5 times, unless renewed by the practitioner.”

Appellant’s argument amounts to nothing more than a claim that being a registered pharmacist is an absolute defense to distribution or dispensing of controlled substances.

We hold that appellant’s status as a pharmacist does not prevent the State from prosecuting him under Section 258(47) of the Controlled Substances Act. Although Section 258(48) uncontrovertedly delineates an offense which a pharmacist is capable of committing, he may likewise commit the offense delineated by Section 258(47). It should be noted that this section begins with the comment “except as authorized by this chapter.” Section 258(46)(c) is applicable to Section 258(47) as well as Section 258(48). General statutory provisions yield to specific provisions where conflicts exist between the two. Cherokee County v. Cunningham, 260 Ala. 1, 68 So.2d 507; Connor v. State on Information of Boutwell, 275 Ala. 230, 153 So.2d 787.

The existence of a prescription upon which the controlled substances were given by appellant to Hatton would amount to a defense to the offense charged. However, it was not incumbent upon the State to prove that appellant was not in this exception. Warren v. State, 52 Ala.App. 35, 288 So.2d 817, reversed on other grounds 292 Ala. 71, 288 So.2d 826. See also Alabama Digest, Drugs and Narcotics, @=>107.

Appellant also contends that results of the audit testified to by McClellan were erroneously admitted into evidence because, first, such evidence’s only function was to show his bad character, and, secondly McClellan’s testimony was violative of the best evidence rule.

This audit showed that 17,408 Iona-min capsules were disposed of in some manner other than by prescription over a period of approximately ten months. As such, this evidence was admissible to show the “complete story.” Brantley v. State, 294 Ala. 344, 317 So.2d 345. In that case possession of other drugs than the controlled substance which appellant was alleged to have sold was shown by the prosecution. This evidence was admissible as shedding light on intent to sell. Evidence of the audit findings accomplishes the same purpose here.

Additionally, McClellan’s testimony concerning the results of the audit did not violate the Best Evidence Rule. An exception to that rule exists where voluminous records are the written documents in question. McElroy’s Alabama Evidence, 3rd Ed. Section 220-01. That section states:

“It sometimes occurs that a fact to be proven requires an inspection and compilation of numerous and voluminous documents, such that inspection and compilation by a judge or jury at the trial would be unreasonable, impracticable or impossible. Under these circumstances, a qualified witness, who has made an examination of such documents, may state the result of his computations therefrom if, but only if, the documents are made available to the opponent for his inspection. The witness, therefore, may testify to his summary of voluminous records without having to produce the original or account for their loss.”

All of appellant’s records from which the audit was made were in court under a subpoena duces tecum at the time McClellan testified to the shortage of 17,406 Ionamin capsules from appellant’s drugstore.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    In re Joseph Lucian CHESTEEN v. STATE of Alabama. Ex parte Joseph Lucian Chesteen.
    77-516.
    Supreme Court of Alabama.
    Dec. 8, 1978.
    Henry H. Self, Jr. and John D. Clement, Jr., Tuscumbia, for petitioner.
    William J. Baxley, Atty. Gen., Ellis D. Hanan, Asst. Atty. Gen., for the State.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur except TORBERT, C. J., and BLOODWORTH, J., not sitting.


author: DeCARLO, Judge.

text:
    Calloway HOLYFIELD v. STATE.
    3 Div. 697.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      Howard A. Mandell of Mandell & Boyd, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

The Montgomery County Grand Jury indicted Calloway Holyfield with the unlawful killing of Bertha Mae Gaines, “by shooting her with a rifle.”

He entered a plea of not guilty and not guilty by reason of insanity. After a two-day trial he was convicted of murder in the second degree and sentenced to ten years imprisonment in the penitentiary.

On May 6, 1976, after returning home from work, the appellant was advised by his son that his sister-in-law, Bertha Mae Gaines, had called earlier that evening to speak with him. Appellant was told that his sister-in-law had left a message asking that he either call or come by her house.

The appellant, at that point, called his sister-in-law’s home but no one answered. The appellant also had learned that his wife, Rebecca Holyfield, was visiting her sister, Bertha Mae Gaines, at that time. After making the telephone call he left his home and drove to Bertha Mae Gaines’ house at 865 Sayre Street in Montgomery, Alabama.

Upon approaching the house, he noticed the lights were on and that the front door was open. He did not see anyone at the time, and so he returned to his home and once again called his sister-in-law.

The appellant again received no answer and so he drove back to his sister-in-law’s house. There he saw his wife, his sister-in-law, Bertha Mae Gaines, and his mother-in-law. He informed his sister-in-law that he had received a message that she had wanted to see him. Bertha Mae invited him into the house. As he walked onto the porch he noticed his brother-in-law, Nelson Gaines, lying on a cot. He also noticed the odor of alcohol on his breath and a wine bottle near the cot.

According to Nelson Gaines, the appellant entered the house and began looking for his wife. This made Bertha Mae Gaines very angry and she told the appellant to leave, then struck him with an ashtray. He said that Holyfield then pushed Bertha Mae to the floor. He said he walked over and told them, “This ain’t going to happen here. You’re going to get out of here with that,” and then he escorted appellant to the front door. Gaines said shortly thereafter he looked outside and saw the defendant, armed with a rifle, standing by his car. After that he heard a shot and caught his wife as she was falling to the floor.

Holyfield stated that as he entered the house Bertha Mae started yelling at him. An argument between Bertha Mae and her husband ensued and, as appellant proceeded to leave, Bertha Mae told him that he was not going anywhere. Holyfield testified that it was then that she hit him several times with an ashtray.

According to Holyfield, he asked Nelson Gaines to get Bertha Mae off him and at that point Nelson Gaines grabbed Holyfield. Holyfield recalled that when he finally got loose he went out the front door. He said that he dropped the keys to his car due to the loss of blood from his head injury. He remembered as he bent over to pick up the keys he noticed his sister-in-law and brother-in-law coming to the front door. He said he became frightened and reached in the back of his car for his rifle. As he threw the rifle up it fired. Holyfield stated that he left the scene momentarily, returned, got into his automobile, and drove home.

On his return home he notified his daughter of what had happened and she called the police.

I

In the trial of the case, the State called as its first witness, the defendant’s wife, Rebecca Holyfield. On taking the stand she invoked her privilege and did not testify.

Appellant insists that it was error to allow the prosecution to comment on Mrs. Holyfield’s failure to testify after she had indicated that she desired not to do so. Such comments came during the State’s closing argument when the prosecutor remarked:

“Now I briefly told you the State would show, the evidence would show that four persons who were likely witnesses to this case; the deceased who could not speak. Others had to speak for her. Rebecca Holyfield, who is the wife of the defendant; Nelson Gaines, who was the husband of the deceased; and, of course, the Defendant. Those are the only witnesses to this case, ladies and gentlemen.”

The prosecution continued in its closing argument and said:

“. . . And there were only three witnesses out there who really know what happened. If you want to get to the truth, Rebecca Gaines [sic]
“MR. MANDELL: Judge, Gaines is not her last—
“MR. PRICE: Rebecca Holyfield, I beg your pardon. Nelson Gaines.
“MR. MANDELL: I object to that, any reference to Rebecca Gaines.
“THE COURT: Oh, no he has the right to argue that.
“MR. MANDELL: We except.
“MR. PRICE: Four witnesses, four witnesses; Bertha Gaines, dead, Rebecca Gaines [sic], Nelson Gaines, and Calloway Holyfield. To get the truth of the matter, those are your three witnesses that you have. Think about the witnesses that you have.”

At common law the spouse of a party having an interest in either a civil or criminal case, was incompetent to testify for or against his or her mate. The majority of jurisdictions in the United States, however, have altered this rule and have made a spouse a competent witness in both civil and criminal matters. Nonetheless, he or she still has the privilege not to testify if he or she so elects. See McElroy, Third Edition, § 103.01(2).

In Alabama, the statute changing the common law rule as it pertains to criminal cases reads:

“The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.” T. 15, § 311, Code of Alabama 1940, Recompiled 1958, now Code of Alabama, 1975, § 12-21-227.

This section allows the wife, if she so desires, to testify against her husband. McCoy v. State, 221 Ala. 466, 129 So. 21. It also provides that either husband or wife are competent witnesses to testify for or against the other in criminal cases, Jay v. State, 15 Ala.App. 255, 73 So. 137, notwithstanding the objection of the other against whom the spouse has voluntarily agreed to testify. McCoy v. State, supra.

The husband or wife has the right to elect to testify. Until that election is made he or she is not a competent witness. DeBardelaben v. State, 16 Ala.App. 367, 77 So. 979.

Under the Alabama statute, in that the defendant has no right to prevent his spouse from testifying against him, it would seem that the mere calling of a spouse as a witness for the prosecution could not be considered misconduct even if the spouse, after taking the stand, elected not to testify by exercising the marital privilege.

However, McElroy’s Alabama Evidence, Third Edition, 191.01(7), states:

“A party may not comment upon his opponent’s failure to call a specified person as a witness where it reasonably appears, that if such person had been sworn as a witness and asked about his knowledge of material facts, he could have claimed successfully a privilege not to testify about such facts.”

This court, in Kabase v. State, 31 Ala.App. 77, 12 So.2d 758, held that it was error for the prosecution to comment on the failure of the defendant to call a co-defendant as a witness in his own behalf. The court distinguished Kabase, supra, from Waller v. State, 242 Ala. 1, 4 So.2d 911, where the court held:

“. . . if a party has a witness possessing peculiar knowledge of the transaction, and [is] supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is a ground of suspicion against him that such better informed testimony would make against him.”

In distinguishing Kabase, supra, from the Waller case, the fact where privilege exists as to the matter of testifying, the principle is not unavailability, but privilege. Under the circumstances of Kabase, had the co-defendant, who was not on trial, declined to testify because of his privilege against self-incrimination, his refusal might have been construed by the jury to the defendant’s disadvantage. It is for that reason that it was impermissible to comment on the failure of the co-defendant to testify and the failure of the defendant on trial to call him.

It would seem that the same principle would apply in the circumstance where the defendant has failed to call a spouse because she had, or would assert their husband-wife privilege.

In Robinson v. State, 243 Ala. 684, 11 So.2d 732, the prosecuting attorney commented on the fact that the defendant had not called his wife to substantiate an alibi, and, after the appellant’s objection, the prosecutor made the further remark that the State did subpoena the wife but under Alabama law she could not be compelled to testify. The Supreme Court of Alabama said that, because no objection was interposed to the last statement and the other statements were not such as to require the trial court on its own motion to enter a mistrial, it required not only an objection by the defendant but a request for additional curative measures.

In U. S. v. Pariente, 558 F.2d 1186, a Fifth Circuit Court of Appeals case, decided September 8, 1977, the court held that in a prosecution for transporting aliens, the government counsel’s comment on the defendant’s failure to call his wife as a witness, along with the trial court’s instruction that the comment was valid, was error. The court recognized in its decision that a comment by the prosecution on the failure of a defendant’s spouse to testify, when accompanied by an instruction to the jury not to consider the remark, would not be error, especially in the view of the fact where the evidence of guilt was substantial and the fairness of the trial is not affected thereby. United States v. Seay, 432 F.2d 395. The court in U. S. v. Pariente, supra, went on to say that in San Fratello v. United States, 340 F.2d 560, there was reversible error in the action of a prosecutor in calling defendant’s spouse to the stand whereby she was forced to exercise her privilege against self-incrimination. The court also said that, it amounted to an exercise of the marital privilege and notwithstanding an instruction by the court to the jury not to draw any unfavorable inferences, it was still prejudicial.

Under our statute, it is the witness-spouse’s privilege, and the defendant-spouse can in no way compel or prevent her from exercising such privilege.

The defendant-spouse cannot as a matter of law require her to testify in his behalf nor can the State require her to testify against him.

This statute dealing with marital privilege is drawn in such a way to prevent the coercion by others which could directly or indirectly push the husband or wife into the witness box.

If for any reason the privileged spouse declines to testify for or against the other, that decision is final and the motives should not be questioned in a manner that would inure to the detriment of the defendant-spouse.

If a failure of the witness-spouse to testify is to be construed as testimony or as a circumstance against the defendant-spouse, the privilege and the option to testify would be annulled. Under these circumstances the defendant-spouse would in all cases run the hazard of being convicted on a constrained, implied confession or admission, or to make explanations for her failure to testify, which might involve aspects of domestic privacy.

When comment is made on an exercise of the marital privilege, the jury can infer that the defendant had something to hide, when in fact he can neither compel nor prevent his spouse from exercising that privilege. Under these circumstances, a jury could conclude that the defendant was preventing his spouse from testifying for the purpose of suppressing evidence.

In the case at bar, when the prosecutor argued to the jury that there were only four people who knew what transpired at the scene of the shooting and among them was the defendant’s wife, this clearly implied that, had the defendant’s wife testified, her testimony would have been very damaging to the defendant.

It is not possible to say that the defendant was not prejudiced under these circumstances, especially in view of the fact that the defendant and his wife were having marital trouble, and there was some testimony that a divorce was being sought.

The comments by the district attorney concerning the wife’s failure to testify were highly prejudicial and should not have been allowed. Therefore, in view of this fact, the judgment of the circuit court is due to be reversed and the cause remanded for a new trial.

In brief, counsel for the appellant has asserted other points of error. We do not believe that a discussion of those contentions is necessary, especially in view of the action this court has taken today.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-771.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.