author: WRIGHT, Presiding Judge.

text:
    Colonel Eldred C. DOTHARD, in his capacity as Director of Public Safety, State of Alabama, and William J. Baxley, in his capacity as Attorney General of the State of Alabama, v. Lowell FORBUS.
    Civ. 587.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.

      William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for appellants.
    Welch & Tucker, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

Appellant, the Director of Public Safety, appeals from an order setting aside his revocation of the driver’s license of Forbus. The director also seeks, in the alternative, a writ of mandamus ordering the honorable judge of the Jefferson County Circuit Court to vacate his order setting aside the revocation.

The record contains no transcript of testimony. The following facts are drawn from exhibits introduced and judgments issued by the trial court.

On August 10, 1974, Forbus was arrested by police in Floyd County, Georgia on a charge of driving while intoxicated. He posted cash bond to assure his appearance in court on August 23. He did not appear at the hearing in Georgia on that date. The record of the Floyd County Court shows that a forfeiture of bond was taken against Forbus on August 16, 1974, seven days before he was to appear.

By letter dated September 7, 1974, the Director notified Forbus that, pursuant to Title 36, Section 68, Code of Alabama (1940), his driver’s license was revoked effective October 2, 1974. The reason stated therein was conviction of driving under the influence of intoxicants in the state of Georgia. Under Section 68 a forfeiture of bond has the same effect as a conviction. This revocation was discretionary, as Section 68 authorizes the director to revoke or suspend a license upon proof that a driver was convicted of D.W.I. in another state. This is in contrast to other provisions of Section 68 requiring the Director to revoke the license of a driver convicted of D.W.I. in this state.

By letter dated October 23, 1974, For-bus’s attorney requested a hearing on the matter. The Director responded by form stating that he did not consider the request for a hearing a legal one, as the only reason for such a hearing was to “determine if the conviction we received actually belonged to you.” This form was dated November 13, 1974.

On November 23, 1974, Forbus filed in the Jefferson County Circuit Court a petition entitled “Complaint For Declaratory Judgment.” The court, treating this petition as an appeal pursuant to Title 36, Section 68, Code of Alabama (1940), held a hearing and issued a temporary injunction enjoining the director from revoking or suspending the license of Forbus. After further hearing the court issued a final judgment restoring Forbus’s license.

The issue on appeal is whether the court erred in failing to dismiss the appeal because it was not filed within the 30-day period prescribed by Title 36, Section 68 of the Code. If this period runs from the date the Director denied an administrative hearing, November 13, the appeal was timely filed. However, if Section 68 provides for a hearing only from a suspension order, a driver’s sole remedy in case of a discretionary revocation would be an appeal. There being no hearing, the appeal would have to be filed within 30 days of the revocation.

The provision of Section 68 allowing a driver to request a hearing is as follows:

“Upon suspending the license of any person as hereinbefore in this section authorized, the director of public safety shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing. . .”

The statute, taken literally, clearly restricts the right of an administrative hearing to suspensions.

Forbus contends that the words “suspension” and “revocation” are used interchangeably in Section 68 and that the above-quoted excerpt should not be restricted to suspensions. However, throughout Section 68, when a provision is meant to apply to more than one form of license denial, the terms used are “cancel, suspend or revoke,” or “suspend or revoke.” For example, the provision authorizing appeal to the circuit court applies when a license has been “cancelled, suspended or revoked.”

Under certain circumstances Section 68 requires the Director to revoke a driver’s license. In these cases there is no appeal from the order of the Director. May v. Lingo, 277 Ala. 92, 167 So.2d 267. In other situations the Director is granted discretion as to what action to take. In such instances Section 68 provides for an appeal from the discretionary act, whether it be suspension, revocation or cancellation:

“Any person denied a license or whose license has been cancelled, suspended or revoked by the director of public safety except where such cancellation or revocation is mandatory under the provisions of this article shall have the right to file a petition within thirty days thereafter for a hearing in the (court) ...”

As previously stated, this provision specifically applies to discretionary suspensions, revocations or cancellations.

Forbus argues that whether the Director’s action is mandatory or discretionary determines the right of a driver to demand an administrative hearing. He cites Ex parte State, 262 Ala. 188, 78 So.2d 322, and Ex parte State ex rel Lyerly, 38 Ala.App. 630, 91 So.2d 233, which made statements to the effect that the action of the Director in revoking a driver’s license was a judicial act. Both cases were expressly repudiated in May v. Lingo, Supra, where it was made clear that the Director’s mandatory revocation is an administrative act, from which mandamus is the only remedy. Where the Director’s action is discretionary it is judicial, and an'appeal is provided for in Section 68. However, the fact that a driver is entitled to an appeal does not mean that he is also due an administrative hearing.

Were Section 68 to provide for an administrative hearing prior to all appeals the system would seem to be more logical and less confusing. However, the statute clearly does not so provide. Further, the notice of revocation sent to Forbus plainly stated that his license was revoked, and gave the reason therefor. Under the statute, no administrative hearing is allowed on a revocation, regardless of its mandatory or discretionary nature.

There being no hearing on a revocation, Forbus’s only method of review was by appeal to the circuit court. This appeal should have been filed within 30 days of the revocation. Whether this 30-day period begins to run on the date the notice is received by a driver or the date the revocation is to take effect we need not decide, as neither deadline was met here.

An appeal is not a matter of vested right, but by the grace of statute, and must be perfected pursuant to the time and manner prescribed in the controlling statute, and if the requirements of such statute are not met, the appeal must be dismissed. LeFlore v. Moore, 288 Ala. 310, 260 So.2d 581, cert. den. 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299.

The circuit court being without jurisdiction to entertain the appeal, its order is void. Such an order will not support an appeal Ala. Public Serv. Comm. v. McGill, 260 Ala. 361, 71 So.2d 12. However, mandamus will lie to give relief to the Director. Director v. Relford, 51 Ala.App. 456, 286 So.2d 860.

A writ of mandamus will issue unless the respondent judge, after being advised of this opinion, vacates the order restoring the driver’s license of Forbus and dismisses the appeal.

APPEAL DISMISSED.

ALTERNATIVE WRIT AWARDED CONDITIONALLY.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: MERRILL, Justice.

license: Public Domain

text:
    In re Col. Eldred C. DOTHARD, etc. and William J. Baxley, etc. v. Lowell FORBUS. Ex parte Lowell T. FORBUS.
    SC 1664.
    Supreme Court of Alabama.
    May 7, 1976.
    John S. Tucker, Jr., Birmingham, for petitioner.
    None for respondent, the State.
   MERRILL, Justice.

Petition of Lowell T. Forbus for Certio-rari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Dothard, etc.; Baxley, etc. v. Forbus, 57 Ala.App. —, 331 So.2d 685.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BRADLEY, Judge.

text:
    Doris H. COOPER v. L. Bancroft COOPER.
    Civ. 603.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    Rehearing Denied April 14, 1976.

      Henry C. Chappell, Jr., Montgomery, for appellant.
    D. Coleman Yarbrough, Montgomery, for appellee.
   BRADLEY, Judge.

Plaintiff filed an action against defendant seeking a divorce on the ground of incompatibility. The defendant answered by-denying the allegation as to incompatibility and counterclaimed by asking for a divorce on the ground of adultery. The defendant requested indefinite periodic alimony payments, a division of property, custody of minor children, child support, medical and dental expenses for minor children, and necessary expenses for children in college.

After a consideration of the pleadings and all the evidence submitted in the case, the court found that the plaintiff had proved that the parties were incompatible and that defendant had proved that plaintiff was guilty of adultery. In view of this state of the record, the trial court concluded that due to the doctrine of recrimination, both parties must be denied a divorce. The court then awarded the defendant separate maintenance, custody of the two minor children with reasonable visitation in plaintiff, child support, the use of the family dwelling and all household goods located therein. Plaintiff was also ordered to pay the taxes, insurance and mortgage payments on the family dwelling, plus $5,000 for repairs to it. He was also required to pay an attorney’s fee in the amount of $4,500 to defendant’s attorneys plus costs.

A motion to amend findings and conclusions or in the alternative a rehearing was denied. Thereafter appeal was perfected to this court.

The first and foremost hurdle to be surmounted by this court is the efficacy of the trial court’s conclusion that the doctrine of recrimination applies where one of the grounds of divorce is incompatibility.

Act No. 2272, Acts of Alabama 1971, p. 3662, providing new and additional grounds of divorce, is, in pertinent part, as follows:

“(a) The Circuit Court in equity has power to divorce persons from the bonds of matrimony, upon a petition filed by one of the parties, entitled ‘In re the marriage of _____ and ______’, for the causes following: ... 7. Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case, that there exists such a complete incompatibility of temperament that the parties can no longer live together.”

Since the adoption of incompatibility as a ground of divorce, no Alabama appellate court has decided whether the doctrine of recrimination can be invoked as a defense where one of the parties alleges and proves that the parties are incompatible.

The doctrine of recrimination in Alabama is of statutory origin, Colotti v. Colotti, 280 Ala. 525, 196 So.2d 375. By the express terms of legislative acts both past and present, the only specified ground for invoking the doctrine is mutual adultery. Recrimination first appeared in Alabama statutes in Act No. 15, § 3, p. 61, Acts of Alabama 1824, wherein the legislature provided that, “In all cases where both parties shall be guilty of adultery, it shall be a bar to a divorce.” Prior to this enactment the statutory bars to divorce in Alabama included connivance, condonation, collusion, and confession of evidence, but did not include recrimination.

In 1837 the case of Richardson v. Richardson, 4 Port. 467, 30 Am.Dec. 538, held that the 1824 statute did not recognize desertion as a proper basis for a recrimination defense to divorce sought on ground of adultery. Remarking that the Alabama divorce statutes were copied from the rules of the Ecclesiastical Courts of England, Justice Goldthwaite said:

“. . . [T]he answer seems very distinctly to admit the crime charged; but to rest its excuse on what is termed by the ecclesiastical Courts, compensatio criminis, setting up the desertion of the wife from his house, in eighteen hundred and twenty-nine, as a bar to her relief. If such was admitted, it would not bar the relief.—Even a malicious desertion will not bar a sentence of divorce, for adultery.—Sullivan v. Sullivan, 2 Ecc. R. 314.” Richardson v. Richardson, supra.

It is implicit in Richardson v. Richardson that recrimination only extended to cases of mutual adultery.

The 1852 Alabama Code compiled all of the bars to divorce into a single section, Title 5, Section 1966, the wording of which has survived to the present in Title 34, Section 26, Alabama Code of 1940. In 1852, as now, the only express statutory ground for a recriminatory bar to divorce was mutual adultery: “No decree can be rendered . . . where both parties have committed adultery . . There is no discernible difference in substance between the 1824 version of statutory recrimination and the present one appearing in 1852.

Nevertheless, the Civil War era case of Ribet v. Ribet, 39 Ala. 348, held:

“In view of the provisions of the Code of Alabama [of 1852], on the subject of divorce, and the general current of authority, we hold the doctrine, that any one of the statutory causes for a divorce may be set up in bar of a bill for a divorce a vinculo predicated on any other of the statutory causes. . . . Thus, if the husband proceeds for a divorce on the ground of adultery of the wife, she may defeat his suit by alleging and proving that he himself was guilty of such cruelty towards her as would otherwise have entitled her to a decree for a divorce as against him; and so vice versa, if she proceed on the ground of his cruelty, he may reply in bar that she was guilty of adultery.”

This holding is most puzzling. While purporting to be harmonious with Code provisions, Ribet departs from the Code and from the leading prior authority to recognize a greatly expanded field of operation for the doctrine of recrimination.

An entire line of cases is descended from Ribet. Each of these cases scrupulously alludes to the existence of legislation as the necessary source of the recrimination doctrine, yet virtually every case reaches a result radically opposed to the clear sense of the statute. The ultimate development was reached in Colotti v. Colotti, supra, wherein the supreme court said:

“The following is a succinct statement of the doctrine of recrimination. Where each of the spouses has been guilty of misconduct which is cause for divorce, neither is entitled to the remedy.
“If the doctrine of recrimination in divorce suits is to be changed in this state, the law must be changed, and that is a matter committed to the legislature. . . .”

The cases from Ribet to Colotti contain an internal inconsistency which cannot be resolved. These cases clearly admit, in fact they stress, the preeminence of legislation in the field of divorce; yet they give effect to a century-old judicial interpretation of a statute completely at odds with the legislative design.

In this situation, it would not be wise to compound the problem by extending the expanded concept of recrimination to the recently legislated incompatibility ground for divorce. As mentioned in Colotti, changes in the doctrine are committed to the legislature, and there is no statutory language indicating that the legislature, in creating the ground of incompatibility, meant to incorporate the troublesome concept of recrimination.

Prior to the adoption in this state of incompatibility as a ground of divorce, the available grounds for divorce required misconduct or fault on the part of one of the parties to the marriage. We feel that the doctrine of recrimination is inseparable from the concept of fault.

In Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. den. 290 Ala. 370, 274 So.2d 80, we said:

“Incompatibility of temperament is antagonistic to the concept of fault or wrongdoing as a ground for divorce.
“Incompatibility of temperament necessarily involves both parties. While one spouse may have a more normal temperament than the other and the overt acts evidencing incompatibility may come largely from the other spouse, it is inconceivable that a husband’s temperament can be compatible with that of his wife if hers is incompatible with his.
“If there is a clash of personalities, both must clash. The negative attitude of one may bring into expression the affirmative conduct of the other. Where incompatibility is the gound for divorce, fault should recede into the background and be superseded by the inquiry into the suitability of the spouses for each other as shown by the reality of their marital life. Burch v. Burch, supra; 195 F.2d 799, (3 Cir. 1952); Shearer v. Shearer, (3 Cir.), 356 F.2d 391 (1965) [dissenting opinion].
“We therefore hold that either spouse may bring a divorce in Alabama on the ground of incompatibility of temperament, Tit. 34, § 20, Code of Alabama 1940, and may secure a divorce upon such ground without proving that the other spouse is in any way guilty of misconduct or is responsible for, or that his or her conduct or actions created such state of incompatibility.
“If the incompatibility be established by the evidence in the trial court, a divorce may be granted without any specific determination as to whether either, both or neither of the parties is responsible or at fault as we traditionally consider fault. It is only incumbent upon the party bringing the action to establish by the evidence that a state of incompatibility exists.”

The basic distinction between a divorce for incompatibility and one based on a fault ground, as enunciated in Phillips, is the existence of a state of incompatibility, regardless of fault or misconduct. If proven facts show that the parties are incompatible and there is very little likelihood of reconciliation, the marriage relation should be given a decent burial.

By adopting such a procedure for divorce, the legislature has recognized that a marriage may be dead without the misconduct of either party, and it has provided that such a marriage should be dissolved. We consider this purpose would be thwarted should one party be allowed to plead and prove recrimination.

There is a dearth of cases from other jurisdictions involving consideration of the present issue; however, Garner v. Garner, 85 N.M. 324, 512 P.2d 84, decided by the New Mexico Supreme Court on July 13, 1973, a case with facts almost like the one at bar, presents a clear-cut decision on the issue before us.

In the Garner case, the facts show that plaintiff-wife separated from defendant-husband in California and moved to New Mexico. Later she filed for divorce in her new state of residence. The ground alleged was incompatibility. Defendant asserted by way of defense the doctrine of recrimination based on adultery. The trial court found that: (1) incompatibility, existed; (2) the adultery did not contribute to the incompatibility; and (3) plaintiff had lived with another man while married to defendant during the time alleged. Divorce was granted to appellee for incompatibility.

The New Mexico Supreme Court said the issue for decision was whether recrimination could be a valid defense on those facts.

In deciding that issue, the court said:

“In the light of present social conditions and policy emanating therefrom, we again re-examine the question of whether the defense of recrimination should continue to be recognized. We are mindful that in our State recrimination is a court-established doctrine and thus we are not bound by any legislative enactment concerning it.
“In the Pavletich case, supra, [Pavletich v. Pavletich, 50 N.M. 224, 174 P.2d 826] it is apparent that our ruling therein was arrived at by studied consideration of the then current social policy. We quoted approvingly from Vol. 10, Kansas City Law Review containing an article by J. G. B earner entitled ‘The Doctrine of Recrimination in Divorce Proceedings,’ wherein he says in part at 213 (50 N.M. 231-232, 174 P.2d 830-831):
“ ' “Three possible sociological justifications for the doctrine of recrimination can be dimly discerned behind the empty incantations with which the courts rationalize its existence and application to the cases before them. The first is that it tends to hold the family together; the second, that it serves as a check upon immorality; the third, that it protects the property rights of the wife.
“ ‘ “The family is still the fundamental sociological unit of our civilization. For the purposes of this discussion, it is assumed that it should be preserved and that the state has a vital interest in its preservation.
“ ‘ “In its largest aspect the problem involved here is whether divorce, under any circumstances, should be permitted. Fortunately, we need not attempt an answer. For our limited purposes the question has already been answered. Forty-seven out of the forty-eight of our state governments, and a respectable majority of foreign governments all of whom, it is, assumed, have a vital interest in the maintenance of the family—have decided that the interests of both the family and of the state can best be served by permitting divorce in certain situations. And the present tendency seems to be toward a further liberalization of the divorce laws. This decision and tendency may be said to be due to a slowly awakening realization that denial of divorce seldom restores life to families sociologically dead when they come into court, and that if anything is preserved it is but the dead and empty shell of what has been and is no-longer—a realization that upon the refusal of divorce, those things which cannot be done legally are often done illegally, those which cannot be done openly are done clandestinely; that other relationships are formed, nameless children born; and that even if the parties force themselves to remain together, their children probably will not thank them for it or even be imbued with any high and lasting ideals about their family, or the family as a sociological concept.
“ ‘ “If this is the justification for permitting divorce where only one party is at fault, how much more reasonable is it to permit divorce where both parties hold their marriage vows in contempt, and the likelihood that attempts at reconciliation will fail are thereby doubled. * * *”’
“Accordingly, we hold that the doctrine of recrimination as a defense is abolished in proceedings where a divorce is sought on the grounds of incompatibility. Henceforth, evidence of any recriminatory act is only admissible to the extent that such act may have weight as proof on the issue of incompatibility as a ground for divorce.
“If the trial judge is satisfied and finds that incompatibility exists between the parties, a decree of divorce should be entered. To the extent that Clark v. Clark, supra, [54 N.M. 364, 225 P.2d 147, 219 A.L.R.2d 1263] and other prior decisions of this court are inconsistent with our holding herein, they are hereby overruled.
“Appellant vigorously argues that
“ ‘A plaintiff seeking equitable relief must come into court with clean hands and prepared to do equity; that continued cohabitation in adultery up to and including the date of trial establishes that plaintiff did not have clean hands nor was prepared to do equity; that the granting of a divorce to plaintiff under the circumstances is shocking to the conscience of the court.’
“We have considered the evidence in the record and the many years of existing discord between the parties, the incidents of harassment after the separation of the parties, and hold that the trial court properly made a finding that incompatibility existed. . . . No useful purpose would be served to engage in a lengthy discussion about the equitable doctrines and powers incident to a divorce proceeding. Our Legislature, acting properly within its powers, has established ‘incompatibility’ as a ground for divorce and, as hereinbefore stated, once such a finding is made that it exists, a divorce decree must be entered.”

The rationale of the Garner decision is very persuasive and we hold as did the New Mexico court, that the doctrine of recrimination has no application in a divorce action based on incompatibility.

The trial court erred in applying the doctrine of recrimination in the case at bar and its judgment will be reversed and the case will be remanded to the trial court for reconsideration and determination of what ground, i. e., incompatibility or adultery, will be the basis of a divorce. The court will also wish to consider the other claims of relief asked for by the parties in their respective pleadings and which were not considered by the trial court due to its decision on the recrimination issue.

Another matter to be decided in this suit is the adequacy of the award of attorney’s fees to defendant. At the trial, defendant offered evidence to the effect that a reasonable award for her attorney’s services, including payments to expert witnesses, would be $13,994.33. The trial court decreed that reasonable attorney’s fees would be $4,500 and taxed this amount against plaintiff for the use and benefit of defendant’s attorneys. Defendant argues that this award is insufficient. Three thousand nine hundred ninety-four dollars and twenty-three cents of the award requested by defendant represents fees for experts. The court cannot award expert’s fees as a matter of costs unless provided by statute, Hartley v. Alabama National Bank of Montgomery, 247 Ala. 651, 25 So.2d 680. Nevertheless, these fees were expenses incurred by defendant’s attorneys in defending the suit. It strikes us that such expenses ought to be taken into account in determining the award, Whitfield v. Whitfield, 283 Ala. 433, 218 So.2d 146. Feeling that the trial court erroneously failed to consider these expenses in computing its award, we determine that $7,500 would be a reasonable fee for the services of defendant’s lawyers in the trial court.

Defendant has also requested that she be awarded attorneys’ fees for the services rendered by her attorneys on this appeal. We conclude that a reasonable fee for defendant’s attorneys on this appeal is $1,500.

For the reasons heretofore stated, the judgment of the trial court is reversed and the cause remanded for further proceedings.

ATTORNEY’S FEE ON APPEAL AWARDED.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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

ON REHEARING

Appellant-wife asserts in her petition for rehearing the argument that our main opinion wrongly held that adultery was not a bar to a divorce on the ground of incompatibility. According to appellant, the only question with which we were presented was whether or not incompatibility is a permissible recrimination to a divorce sought on the ground of adultery.

We feel that appellant’s petition for rehearing raises no issue which was not considered and dealt with in the main opinion.

Appellant’s argument neglects the essential element of mutuality which pervades the doctrine of recrimination. Under this doctrine the mutual fault of both parties deprives either of a divorce. If there is mutual fault, recrimination bars a divorce; if there is no mutuality of fault —i. e., if only one or neither party is at fault—there is no recrimination at all.

Appellant’s argument, in the final analysis, fails to discern that we can only resolve the issue of recrimination as to her ground for divorce by equally and mutually resolving it as to her husband’s. That is what we clearly and explicitly did in the main opinion. We answered appellant’s issue—favorably to her, we must note—and, of necessity, simultaneously resolved the same issue as to her husband, although he did not raise the issue.

Opinion Extended.

APPLICATION FOR REHEARING OVERRULED.

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


author: BLOODWORTH, Justice.

text:
    In re Doris H. COOPER v. L. Bancroft COOPER. Ex parte Doris H. Cooper.
    SC 1821.
    Supreme Court of Alabama.
    May 14, 1976.
    Henry C. Chappell, Jr., Montgomery, for petitioner.
    No appearance for respondent.
   BLOODWORTH, Justice.

Petition of Doris H. Cooper for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Cooper v. Cooper, 57 Ala.App. —, 331 So.2d 689.

WRIT DENIED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HOLMES, Judge.

text:
    Dr. Walter James KYLE, Jr. v. BOARD OF DENTAL EXAMINERS OF ALABAMA et al.
    Civ. 701.
    Court of Civil Appeals of Alabama.
    Jan. 28, 1976.
    Rehearing Denied Feb. 18, 1976.

      Welch & Tucker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for ap-pellees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County, Alabama. The trial court vacated its temporary restraining order enjoining defendants from performing various acts, and dismissed plaintiff Kyle’s action. This appeal ensued.

The question before this court is whether the court below erred in dismissing the action. The resolution of this issue depends upon whether Kyle was entitled to a hearing in the circuit court on the revocation of his license to practice dentistry and whether criminal prosecutions against him for practicing dentistry without a license should have been enjoined by the circuit court.

The record reveals the following pertinent facts:

Plaintiff Kyle is by profession a dentist. Defendant Board of Dental Examiners of Alabama regulates the qualification and licensing of Alabama dentists.

In March of 1974, the board placed Kyle on probation due to certain irregularities in his dispensation of narcotic drugs. Kyle had previously voluntarily surrendered his narcotics license.

Kyle’s license to practice dentistry was revoked by the board in December of 1974, pursuant to a hearing in which it was determined that Kyle had violated the conditions of his probation.

In May of 1975, Kyle was arrested and charged with practicing dentistry without a license. In June of that year, the State of Alabama filed a quo warranto action against Kyle in the Circuit Court of Jefferson County, alleging that he was unlawfully practicing dentistry. Thereafter, Kyle commenced an action in the Jefferson County Circuit Court, seeking to have his license revocation set aside and the criminal prosecution pending against him enjoined until the propriety of the revocation was determined.

Subsequently, Kyle’s action and the State of Alabama’s quo warranto petition were consolidated, and a temporary restraining order was issued proscribing any prosecution of Kyle for the unlawful practice of dentistry. The appellees herein then filed a motion to vacate the temporary restraining order, or in the alternative to dismiss the action. This motion was granted on September 24, 1975, and the temporary restraining order was dissolved and the action dismissed.

We initially note appellees’ contention that this appeal properly belongs in the supreme court by virtue of Tit. 7, § 757, Code of Ala.1940, which provides that appeals lie to the supreme court from all orders dissolving injunctions. However, it is the jurisdictional policy of this court and the supreme court that statutes which provide that a cause may be appealable to the supreme court shall be construed to mean that the cause is appealable to the proper appellate court, whenever the matters are clearly within the jurisdiction of this court. This policy is stated in an order of the supreme court found in the minutes of the Alabama Court of Civil Appeals for the October Term 1974—75, p. 235. It is thus clear that the instant appeal is cognizable by this court, inasmuch as the action dismissed by the court below is in effect an appeal from action of an administrative agency. See Tit. 13, § 111(3), Code of Ala.1940, which delineates the jurisdiction of the Alabama Court of Civil Appeals.

As we perceive appellant Kyle’s brief, he contends that his petition for a temporary restraining order is in effect a request for a review by the circuit court of his license revocation. Tit. 46, § 120(30), Code of Ala.1940, reads as follows:

“From any order of the board refusing to issue a license or license certificate or revoking or suspending a license or license certificate any party affected thereby may bring an action in the circuit courts to set aside said order on the ground that the same is unlawful or arbitrary.”

While it is questionable whether Kyle’s petition is a request for review pursuant to Tit. 46, § 120(30), Code of Ala.1940, so considering, in this instance, we find it comes too late. The statute above quoted prescribes the manner in which one is to challenge an allegedly improper license revocation; that is, by instituting an action in the circuit court.

Kyle’s license to practice dentistry was revoked by the board in December of 1974. His petition in the circuit court entitled, “COMPLAINT FOR DECLARATORY JUDGMENT—IN THE ALTERNATIVE AN INJUNCTION AND TEMPORARY RESTRAINING ORDER AND PERMANENT RESTRAINING ORDER”, was not filed until June of 1975. During the period from December 1974 through June of 1975, Kyle, in lieu of petitioning the circuit court pursuant to Tit. 46, § 120(30), Code of Ala.1940, chose to ignore the board’s revocation of his license. He continued to practice dentistry and took no action until the state began its criminal prosecution. It was then, and only then, that Kyle sought relief from the circuit court. It is appropriate to note at this point that Dr. Kyle was not represented by learned counsel on this appeal until the petition in circuit court was filed.

Tit. 46, § 120(30), Code of Ala.1940, is silent as to what period of time an aggrieved party has to petition the circuit court for review of the board’s action. However, the predecessor of § 120(30), § 94 of Tit. 46, Code of Ala.1940, provided that a person whose certificate had been revoked by the board had thirty days in which to appeal the revocation to the circuit court.

To this court, in the absence of the statute enunciating a specific time, an aggrieved party must now petition within a reasonable time. In view of Kyle’s action as stated above, this court cannot say he initiated his right to review pursuant to Tit. 46, § 120(30), Code of Ala.1940, within a reasonable time. In fact, in this instance, Kyle’s action of forcing the state to pursue criminal prosecution is to this court irreconcilable with his statutory right of judicial review.

Injunctions against criminal prosecutions are not favored and will not ordinarily be granted. Montiel v. Holcombe, 240 Ala. 352, 199 So. 245; Quinnelly v. City of Prichard, 292 Ala. 178, 291 So.2d 295. We can perceive under the circumstances of this case no exigency compelling enough to warrant enjoining the prosecution of Kyle.

All issues presented having been considered, the lower court did not err in its dismissal of the action. This cause is accordingly due to be and is affirmed.

Affirmed.

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


author: MADDOX, Justice.

text:
    In re Dr. Walter James KYLE, Jr. v. BOARD OF DENTAL EXAMINERS of Alabama et al. Ex parte Dr. Walter James Kyle, Jr.
    SC 1735.
    Supreme Court of Alabama.
    May 21, 1976.
    John Tucker, Birmingham, for petitioner.
    None for the State, respondent.
   MADDOX, Justice.

Petition of Dr. Walter James Kyle, Jr. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Kyle v. Board of Dental Examiners of Ala, et al., 57 Ala.App. —, 331 So.2d 696.

WRIT DENIED.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


text:
    George W. CRANE v. Frances Watts CRANE.
    Civ. 714.
    Court of Civil Appeals of Alabama.
    May 5, 1976.
    E. Farley Moody II, Birmingham, for appellant.
    W. S. Pritchard, Jr., Birmingham, for ap-pellee.
   BRADLEY, Judge.

This is an appeal by the husband from a property division contained in a divorce decree. The divorce was granted on the ground of incompatibility by the Circuit Court of Jefferson County, subsequent to a hearing at which oral testimony was taken.

The decree granted the wife the family residence, originally costing $24,750, and all furniture, fixtures and equipment located therein, subject to the oustanding mortgage of $8,234.78, and a 1969 Oldsmobile. The husband was awarded $3,000 cash to be paid by the wife for the husband’s interest in the property.

In addition the' parties kept some personal property not disposed of by the decree: the wife kept $2,000 in a personal checking account and $2,500 in a savings account; the husband kept $800 in a checking account and a Buick automobile. In addition the husband kept two insurance policies worth $6,000; however, the record is not clear as to whether this is the face or cash yalue of the policies.

On appeal the husband argues that the award is inequitable in that the wife received a disproportionately large share of the property in a no-fault divorce.

A division of property in a divorce proceeding does not have to be equal; it should be equitable, Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180. Examination of -the record convinces us that the trial court’s decree was not lacking in equity.

Since the outset of the marriage, the parties have maintained a joint checking account. The parties deposited into this account substantially all of their net earnings, except on certain occasions described below. Out of this joint checking account were paid the mortgage, premiums on insurance policies, household expenses, and personal expenses of the parties. The inference to be drawn from the testimony in the record is that, for the most part, this joint checking account was the conduit through which the parties translated their wages and earnings into the accumulated property disposed of by the decree now on appeal.

Contributions of funds to the joint account have, with few exceptions, been commensurate with the respective incomes earned by the parties at their jobs. The wife has worked constantly throughout the years of marriage, except for two years in the early 1950’s when the only child was born. The husband, a salesman, worked regularly until 1971. In that year the company he worked for changed ownership and he was terminated in the resultant general shake-up by the new management. Between 1971 and 1974 he worked intermittently for several employers. Since September 1974 he has not worked at all. No income records are in evidence for the pre-1971 period. However, documentary evidence shows that since 1971 the wife has earned $33,432.02 while the husband’s net earnings were $15,017.58. During two years of this period the wife deposited $2,500 of her earnings into a personal savings account not shared with the husband. It is her testimony that, other than this, she deposited the entire amount of her income into the joint account. The husband testified without elaboration that sometimes the wife did not so deposit her entire income. The husband further testified that he deposited all of his net earnings into the joint account.

An itemized list of deposits and withdrawals from the joint account for the year 1974 shows that the husband deposited $2,767.74 while he withdrew $3,982.96. The withdrawals were primarily for personal expenses including dues at Green Valley Country Club and a payment of $587.00 to the husband’s mother. None of the withdrawals made by the husband were mortgage payments on the family home.

The conclusion which must be drawn from the record is that from 1971 to the present the wife, not the husband, has been the major contributor of funds to- the joint account. As noted above, this account provided the revenue which paid for the property accumulated during marriage.

In addition to the approximately $1,200 by which his withdrawals from the checking account exceeded his deposits, the husband cashed in two life insurance policies, the premiums of which were paid out of the joint account. He kept the entire $1,400 proceeds from one policy and deposited the $4,700 received from the other into the joint account. According to the wife the husband used his share of this money for personal and travel expenses. Moreover, the husband has completely retained the two previously referred-to insurance policies in the amount of $6,000.

Although he denied it, this tracing of the income and outlay of funds leads to the inevitable conclusion that the husband has been subsisting in part on his wife’s income since 1971. Further, the tenor of the evidence suggests that the husband is not entirely dissatisfied with such an arrangement. Although the loss of his first job in 1971 was due to factors beyond his control, his more recent unemployment was self-imposed: he voluntarily left a position with Ramada Inn. He has never lost a job because of physical disability, and he is physically able to work. Although not having a job since 1974, he was, at the time of the trial in September 1975, not registered with any state or private job-finding agency. He testified that he had scoured the want ads for jobs and contacted numerous prospective employers, but on cross-examination could recall the name of only one firm contacted in either 1974 or 1975.

The husband testified that he went to the Green Valley Country Club three or four times a week. Sometimes he would spend four to five hours at the club. The wife testified that she never attends the Green Valley Country Club. She further testified that the husband has taken several unexplained trips out of town since his unemployment began, and that he is still sleeping when she leaves for work.

On the record before us the trial court would be justified in finding that the husband had voluntarily ceased to be a productive party to the marriage. His expenditures exceeded his income; he was not actively seeking employment, but devoted his time to recreational activities; by cashing in the life insurance policies, he had begun to divert money intended to provide old-age security to gratification of current personal wants. At the same time the wife, who had given birth to and raised to adulthood the child of the marriage, continued to work and devote her earnings to preserving and maintaining the marital property.

It is noteworthy that the wife’s income provided the bulk of the money required for the mortgage payments over the past year.

The basis for the husband’s appeal is his contention that the house awarded appel-lee is now worth $49,250, the value testified to by a real estate appraiser. Based upon such an appreciated value, the trial court’s award would appear to be somewhat disproportionate, even in light of the striking facts of this case. However, real estate values are an area of inquiry within which the trier of fact is presumed to have some general knowledge to offset expert opinion, United States v. Goodloe, 204 Ala. 484, 86 So. 546.

Whether an eighteen year old two-bedroom house originally costing $24,750 would have appreciated to a value of $49,-250 at the time of divorce is a matter falling within this area of presumed general knowledge.

In his testimony, the appraiser set forth in detail the factors on which his estimate was based. These included price comparisons with homes in the same part of town, and a computation of replacement value based on an estimate of today’s inflated construction costs. The appraiser conceded that his estimates involved judgment calls on his part. The extent to which the actual value of the house is reflected in those judgment calls was for the trier of fact to decide; the appraiser’s testimony is not conclusive, State v. Crawford, 277 Ala. 568, 173 So.2d 109.

Indulging in the presumption that the trial judge found the value of the house to be nearer to the purchase price of $24,750 than to the appraiser’s estimate of $49,250, we do not find inequity in the trial court’s award. The wife is required to pay off the outstanding mortgage balance in excess of $8,000, she is to receive no periodic alimony, and she is to pay the husband $3,000 for the net equity remaining in his half interest. Moreover, the husband has already received considerable sums from his wife in terms of day-to-day support over recent years, and in the retention of funds from the cashed-in life insurance.

The trial court’s award finds further support in the fact that were it not for the wife’s contribution of mortgage payments, the house would have been foreclosed upon sometime ago, and realization of appreciation—if in fact there had been any—would be unlikely.

In Hicks v. Hicks, supra, we held that, where the trial court has heard the evidence ore tenus, its decree disposing of the marital property will not be disturbed unless it conflicts with the reasonable inferences from the evidence. There is no such conflict present in the decree on appeal. We therefore affirm the decree of the trial court.

Appellee has also moved for an award of attorney’s fees incurred in this appeal. The trial court’s decree directed that each party pay their own attorney’s fees for the proceedings below. In light of the property award made to appellee in the court below, the request for attorney’s fee on appeal is denied.

ATTORNEY’S FEE DENIED.

AFFIRMED.

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


text:
    Kenneth G. MOSS v. Virginia MOSS.
    Civ. 709.
    Court of Civil Appeals of Alabama.
    April 28, 1976.
    David E. Worley, Huntsville, for appellant.
    Hayden R. Battles, Cullman, for appellee.
   BRADLEY, Judge.

This appeal is from a declaratory judgment more definitively interpreting language found in a divorce decree.

The parties to this appeal had been divorced by the Circuit Court of Cullman County on August 2, 1974. That decree incorporated an agreement between the parties which, among other things, provided that appellee-wife was to receive appellant-husband’s interest in the homeplace and “four acres contiguous to such home-place.”

In the present action, the wife testified that under this language she was supposed to receive a four acre square of land with the homeplace located in the approximate center. The husband, to the contrary, contended that the wife was to receive the homeplace and four acres with the dimensions one acre wide and four acres deep. The crux of the dispute is the amount of frontage along a paved road. Under the wife’s view of the agreement she would have about twice as much frontage as under the husband’s interpretation.

After a hearing ore tenus the trial court decreed that the shape of the four acre parcel was to be a square with the house in the middle.

On appeal the husband contends first that the trial court was without authority to construe the disputed phrase. This argument fails: judgments and decrees are subject to judicial construction like other written instruments, Wise v. Watson, 286 Ala. 22, 236 So.2d 681.

Ordinarily, the conveyance of land described by quantity will be presumed to have equal sides and be in the shape of a square, Green v. Jordan, 83 Ala. 220, 3 So. 513; Daniel v. Williams, 177 Ala. 140, 58 So. 419; Lewis v. Johnson, 206 Ala. 156, 89 So. 447. In the case at bar the trial court properly declared that the boundaries of the property were intended to accord with this presumption.

Appellant’s other contention is that, even as clarified, the description of the property to be conveyed remains so vague and imprecise as to prevent a person from knowing with any degree of accuracy the boundaries of the tract to be conveyed. Furthermore, such a description would leave appellant with a small, wedge-shaped piece of land surrounded by the wife’s tract. This small piece of land would be unmarketable because of its size and shape. This problem exists because the paved road on which the property fronts does not intersect the lateral boundaries at right angles, but at an angle of 67°.

The appellee concedes that the revised description is so uncertain as to prevent its execution. She states that the piece of land described in the declaratory judgment cannot be conveyed because the western boundary of the parcel will overlap an adjoining tract not owned by the parties. She suggests that a more appropriate shape for her parcel would be a parallelogram of equal sides, with the southern side formed by the paved road, and the western side formed by the existing western boundary of the overall tract. The house would be approximately at the center of this parallelogram.

Appellee further suggests that the case be remanded so that the trial court can require a new survey and thereby give a more accurate description to the property to be conveyed.

We agree with appellee that further clarification by the trial court is necessary.

The description contained in the order appealed from is not sufficiently precise. The described parcel could not be conveyed without encroaching on property not owned, and it would leave portions of the remaining tract useless and greatly diminished in value. The inherent problem with the description is that a square parcel fronting on the road cannot be carved out of the overall tract because the road is not perpendicular to the east and west boundaries of the overall tract. A geometric configuration lacking perpendicular corners is not a square.

We therefore remand the case to the trial court for it to further describe the property in question so that the intent of the parties as to the number of acres and the location of the parcel will be carried out, Lundy v. Lundy, 56 Ala.App. 431, 322 So.2d 722.

REVERSED AND REMANDED.

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


text:
    Clarence HUGGINS v. Geneva Warren HUGGINS.
    Civ. 630.
    Court of Civil Appeals of Alabama.
    May 5, 1976.

      Clarence T. Heliums, Jr., Tuscaloosa, for appellant.
    Phelps, Owens & Jones and J. Russell Gibson, III, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband initiated the action by filing a petition for divorce on the grounds of "incompatibility” and “irretrievable breakdown of the marriage.” The wife answered the petition and cross-claimed for divorce on the grounds of physical cruelty and adultery. Also involved were questions involving custody of the parties’ minor child and support for the wife and child.

After a hearing ore terms the trial court divorced the parties, finding incompatibility of temperament and irretrievable breakdown of the marriage; awarded custody of the minor child to the wife; ordered the husband to pay child support; and made an award of alimony in gross. The husband appeals from this decree and we affirm.

The pertinent facts as revealed by the record show that the parties were married in 1971 and separated in 1974. They were both employed during the marriage. The husband earned approximately $11,000 per year and the wife, as a school teacher, earned approximately $7,000. During the time they were married, they accumulated some assets.

The assets which are germane to this appeal are as follows: a lot upon which they planned to build a home (The purchase price for the lot was $2,000 and there were improvements made on the lot of a value of from $400 to $500.); a savings account in the amount of approximately $4,000; U. S. Savings bonds in the matured amount of approximately $1,200. The wife also had approximately $1,300 in her name, consisting of bonds and monies in a credit union. Additionally, the parties accumulated various household goods which we deem it unnecessary to enumerate.

As noted earlier, the trial court divorced the parties, finding both incompatibility of temperament and irretrievable breakdown of the marriage, awarded custody of the minor child to the mother, required the husband to pay $125 per month as child support, and awarded to the wife as alimony in gross the husband’s interest in the lot and the savings account in the amount of $4,000.

Additionally, the husband was allowed to retain $1,200 in bonds and the wife was allowed to retain the $1,300 worth of bonds and monies which were in her name. The court allowed each party to keep certain household goods. In addition to the above, the court awarded to wife’s attorney a fee of $750 to be paid by the husband.

As we perceive able counsel’s brief, the husband urges error to reversal by the trial court for the following reasons: 1. That since the wife did not allege incompatability and irretrievable breakdown of the marriage in her petition, the trial court could not grant the divorce on this ground. 2. That, in this instance, the award of alimony in gross was an abuse of discretion. 3. The trial court erred in awarding an attorney’s fee. 4. Lastly, since the statutes of Alabama make no provision for alimony payments to a husband, that the husband’s “constitutional rights” have been violated.

I

It is clear to this court that the trial court found a state of incompatibility existed in the marriage of the parties. This is the determination the trial court must make before granting a divorce on such ground. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71. It is immaterial which party alleges incompatibility.

We particularly note the following language found in the trial court’s decree:

“[T]he Court finds as follows:
“1. That there exists such a complete incompatibility of temperament between the Petitioner and the Respondent that the Petitioner and the Respondent can no longer live together compatibly and that their differences have become irreconcilable and that further there has been an irretrievable breakdown of the marriage of the Petitioner and the respondent and further attempts at reconciliation are impractical or futile and not in the best interests of the parties and that a divorce is due to be granted.”

As seen from the above, the husband in his petition alleged such incompatibility exists. The trial court found that incompatibility did exist and divorced the parties. To this court the discussion of Alabama’s “new” ground for divorce found in Phillips, supra, answers the husband’s contention and we see no reason to elaborate further.

In any event, in this instance, there can be no error because the wife’s petition did not allege incompatibility as a ground.

II

The evidence pertaining to the award of alimony in gross may be viewed as follows: The wife was awarded a one-half interest in the lot which was owned jointly (the monetary value of the one-half interest being $1,250) and the savings account of approximately $4,000. (The wife testified this money came from her salary.) Other assets held by each party in his own name were simply allowed by the trial court to be retained by each respective party. The award can be viewed as an award of approximately $5,250.

Keeping in mind, among other factors, the earning capacity of the husband and the fact that no periodic alimony payments were awarded to the wife, we find po abuse of discretion.

As this court has stated, if an award in a divorce decree is one of alimony in gross, each case stands upon its own facts and no mathematical formula may be applied; the amount of alimony is a matter. of discretion for the lower court and will not he revised on appeal in the absence of abuse. See 8 Ala.Dig. Divorce 240(1) and 286(3). We find no such abuse.

Able counsel for the appellant makes the further contention that alimony could not in this case be awarded under the Alabama divorce statutes. His reasoning is as follows: He argues that alimony can only be awarded pursuant to §§ 31-33 of Tit. 34, Code of Ala. 1940, in that these are the only Alabama statutes which make provision for alimony. Section 20(7) and (9) of Tit. 34, providing for divorce without fault on the grounds of incompatibility of temperament or irretrievable breakdown of the marriage, does not provide for awards of alimony. Therefore, he deduces, any grant of alimony in a divorce based on such grounds, as is the case here, must be bottomed on §§ 31-33 of Tit. 34.

Appellant further argues that the two Code sections providing for alimony based on fault, i. e., §§ 32 and 33, are inapplicable in a § 20 no-fault divorce. This is so because §§ 32 and 33 appear to apply only where the divorce is itself granted due to one party’s fault. As such, he contends that any award of alimony in a § 20 no-fault divorce must rest upon § 31, the only remaining Code section allowing for alimony. Section 31 reads as follows:

“If the wife has no separate estate, or if it be insufficient for her maintenance, the judge, upon granting a divorce at his discretion may decree to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family.”

We note that this construction has not heretofore been presented to this court.

The final thrust of his argument is that the wife has a sufficient separate estate, so that it was error to reversal for the trial judge to grant any alimony in this case.

While we are impressed with the ingenuity of appellant’s argument, we are of the opinion that it cannot avail him. Assuming the correctness of appellant’s analysis as it concerns the interaction among the pertinent Code sections, we do not agree that the .wife’s estate is sufficient so that alimony could not be awarded under § 31.

The language of § 31, as set out above, demonstrates that the sufficiency of the wife’s estate is a necessary element in the trial court’s determination regarding alimony. The legal principles concerning alimony awards in general are thus relevant to decisions as to the sufficiency of the wife’s estate. These principles include the trial court’s discretionary power over the amount of alimony awards and the necessary inclusion in the calculation of those awards of such pertinent factors as the parties’ future prospects, their age, health, sex, station in life, and how long they were married. Phillips v. Phillips, supra.

As seen from our previous description of the parties’ assets, the wife’s separate estate consists at best of certain bonds and monies of a valuation not in excess of $1,500, and certain household furnishings. When we consider the relatively meager size of the wife’s estate together with the principles noted above and the fact that no periodic alimony was awarded, we reach the conclusion that the wife’s estate was not so large as to preclude the award of alimony in gross made by the trial judge.

Furthermore, we disagree with appellant’s contention that the divorce statutes of Alabama do not permit consideration of the parties’ fault in alimony awards made under § 20 no-fault divorce proceedings.

The statutory analysis advanced by appellant and set out earlier is deficient in that it fails to take notice of a basic aspect of the Alabama divorce laws. The legislature by enacting the divorce statutes intended to create a comprehensive and harmoniously interacting system. Such a legislative intent is generally presupposed by the courts when dealing with a body of statutes on the same subject matter. 73 Am.Jur.2d Statutes §§ 191, 254; State ex rel. Rountree v. Summer, 248 Ala. 545, 28 So.2d 565.

At the inception of the system, divorce could only be predicated upon the fault of one of the parties. Tit. 34, § 31, previously quoted, provided for alimony awards based upon the insufficiency of the wife’s estate, apparently without regard to which party was at fault. Section 32 allowed for alimony based on the husband’s fault when the divorce was granted due to his misconduct. Section 33 provided for divorce based on the wife’s misconduct, and stated that in such a case if alimony was awarded (presumably under § 31) her misconduct was to be considered in computing the amount of the award. The integrated design was furthered by the Supreme Court of Alabama, which held that in the case of divorce granted under § 32 due to the husband's misconduct, the misconduct of the wife could be considered together with that of the husband in arriving at an award of alimony, even though the Code sections do not specifically provide for that result. Pope v. Pope, 268 Ala. 513, 109 So.2d 521; Owens v. Owens, 281 Ala. 239, 201 So.2d 396. All factors present in the system before the adoption of a no-fault ground for divorce were thus operative and interacting.

Appellant would have us hold that by its enactment of the § 20 provisions for divorce based on the irretrievable breakdown of the marriage or incompatibility of temperament, the legislature injected into this comprehensive scheme an alien element which could not be fully assimilated. It would be far more reasonable to hold that the legislature intended these provisions to mesh smoothly with the existing design. To this court, the purpose of the original legislation was simply to provide that fault could permissibly be a consideration in alimony awards. Fault as an element in alimony awards appears to be tied to divorces based on fault for the sole reason that divorces were based only on fault when the pertinent statutes were enacted. Furtherance of the legislative intent requires that fault may be considered in awards of alimony regardless of the ground for the divorce itself.

As noted earlier, statutes should be resolved in favor of each other when possible so as to form one harmonious plan. State v. Community Blood and Plasma Service, Inc., 48 Ala.App. 658, 267 So.2d 176; Bryce Hospital Credit Union, Inc. v. Warrior Dodge, Inc., 50 Ala.App. 15, 276 So.2d 602.

The supreme court holdings in Pope and Owens, supra, illustrate the courts’ effectuation of the legislative purpose to create an integrated body of divorce law, which example we would be remiss in not following here. In our cases of Phillips v. Phillips, supra, and Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, we have recognized the principle that fault may be considered in alimony awards where the divorce is based upon irretrievable breakdown of the marriage or incompatibility of temperament. While we did not directly hold to that effect in those cases, we do so hold now.

As the above discussion indicates, there was no reversible error committed by the trial court in its award of alimony in gross.

III

We perceive appellant’s argument regarding attorney's fee to be that the trial court has no authority to grant the wife an attorney’s fee where a divorce is granted on the ground of incompatibility, unless she is justifiably awarded alimony. He contends the award in this instance is not justifiable.

We find no merit in this contention. As noted earlier, the trial court did not err by his award of alimony in gross. Furthermore, the allowance of attorney’s fees in a divorce case is within the sound discretion of the trial court. See Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637; also 8 Ala.Dig. Divorce 223.

IV

Appellant’s final contention is that Alabama statutes make no provision for an allowance of alimony to the husband and therefore husbands as a class are denied equal protection of the law. Appellant then argues that the amount of alimony in gross, in this instance, should therefore be set aside.

This constitutional question is raised for the first time on this appeal.

It has long been the law in this state that constitutional questions not raised in the court below will not be considered for the first time on appeal. See Gamble v. Gamble, supra; 2 Ala.Dig. Appeal and Error 170(2). Appellant’s contention thus cannot be treated by this court.

However, we note that this argument was discussed in Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458, wherein the validity of the Georgia divorce statutes authorizing awards of alimony and attorneys’ fees only to wives was upheld. The United States Supreme Court declined to review this decision in Murphy v. Murphy, 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed. 87.

Appellee-wife has petitioned this court for an award of an attorney’s fee for representation on this appeal. A fee of $250 is hereby awarded.

The case is due to be and is, therefore, affirmed.

AFFIRMED.

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


text:
    CUMBERLAND CAPITAL CORPORATION, INC. v. Dorothy M. ROBINETTE.
    Civ. 716.
    Court of Civil Appeals of Alabama.
    April 28, 1976.

      Donald L. Newsom, Birmingham, for appellant.
    Nina Miglionico, Harry Asman and Samuel A. Rumore, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This appeal is from the Circuit Court of Jefferson County. The trial court sitting without a jury found in favor of plaintiff-appellee Dorothy Robinette, and against defendant-appellant Cumberland Capital Corporation, Inc. Defendant appeals from that judgment.

The determinative issues before this court are whether the trial court erred to reversal by granting plaintiff’s motion to set aside a prior final decree in the cause and granting a motion for a new trial, and whether the trial court erred by cancelling a mortgage held by defendant-appellant.

The controversy centers around certain real estate transactions between plaintiff, defendant, and plaintiff’s son and his wife, Robert L. and Linda S. Robinette. Two deeds and a mortgage are involved. The following facts pertinent in this regard are revealed by the record:

The first deed with which we are concerned is dated July 12, 1971, and conveys title to certain real property on which plaintiff Dorothy Robinette’s homeplace is situated. It is purportedly executed by Dorothy Robinette and conveys title to Robert L. and Linda S. Robinette and Dorothy Robinette.

Plaintiff denied signing this instrument. She testified that in July of 1971 she signed a blank paper presented to her by Robert Robinette. She further testified Robert told her only that the purpose of this transaction was to state that she was an unmarried woman.

Robert Robinette testified that the deed was duly executed. He stated that plaintiff was at that time divorced, that she was then contemplating another marriage, and that the conveyance was made so that her prospective husband could obtain no interest in her property through the marriage.

The second deed pertinent here concerns the same property discussed above, is dated September 27, 1972, and conveys title to Robert and Linda Robinette from Dorothy Robinette Wright, her then husband John Harold Wright, Robert Robinette, and Linda Robinette.

Plaintiff also denied signing this deed. Her testimony was that she signed a blank paper in September of 1972 presented to her by Robert Robinette for the purpose of stating that she was a married woman. She also testified Robert at that time requested that she furnish him with a copy of John Harold Wright’s signature. She gave him a cancelled check or other instrument, not a deed, bearing the signature of John Harold Wright.

John Harold Wright denied ever having signed this deed.

Robert Robinette again asserted the regularity of the conveyance, stating that its purpose was to protect plaintiff’s interest in the property in the event she obtained a contemplated divorce from Wright.

The parties stipulated that the two deeds were notarized without the grantors being in the presence of the notary. The attorney who purportedly witnessed the second deed testified the only grantor’s signature which he witnessed was that of Robert Robinette, and that no other signatures were on the deed when Robert signed it.

The mortgage noted earlier is on the same property which is the subject of the above mentioned deeds. It bears the date of September 28, 1972, and is executed to defendant Cumberland Capital Corporation, Inc., from Robert and Linda Robinette.

The record reveals that defendant discussed the mortgage with Robert before title to the property was purportedly conveyed to him and Linda alone. It is also evident from the record that defendant was aware plaintiff initially had an interest in the property and lived thereon at the time of the mortgage. The mortgage monies were disbursed on October 3, 1972, and the formal mortgage application was dated October 4 of that year.

The mortgage proceeds were used by Robert Robinette mostly to secure various personal and business debts.

The trial court found that the two deeds were not properly acknowledged and witnessed, that the deeds had been procured by fraud on the part of Robert and Linda Robinette, and that defendant Cumberland Capital Corporation had notice of sufficient facts to apprise it of plaintiff’s interest in the property. The trial court accordingly cancelled the deeds and mortgage, and rendered judgment in favor of Cumberland Capital Corporation against Robert and Linda Robinette in the amount of the unpaid mortgage indebtedness. Defendant Cumberland Capital appeals from the cancellation of the mortgage.

I

When this lawsuit was first begun, the parties entered into a consent judgment by which, inter alia, defendant’s mortgage was allowed to remain in force and effect as an encumbrance on the subject property. However, plaintiff’s subsequent motion to set aside the judgment and for a new trial was granted, and the trial of the cause described above ensued. Defendant contends the granting of this motion by the trial court was reversible error. We disagree.

Rule 59, ARCP, provides in pertinent part as follows:

“(a) Grounds. A new trial may be granted to all or any of the parties . and (2) on all or part of the issues in an action tried without a jury, for any of the reasons for which rehearings have theretofore been granted in suits in equity in the courts of Alabama. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
“(b) Time for Motion. A motion for a new trial shall be served not later than 30 days after the entry of the judgment.
“(e) Motion to Alter, Amend or Vacate a Judgment. A motion to alter, amend, or vacate the judgment shall he served not later than 30 days after entry of the judgment.”

Plaintiff’s motion was timely filed within thirty days after entry of the consent judgment.

Rehearings in equity previously were granted based upon the sound discretion of the court. Ex parte Upchurch, 215 Ala. 610, 112 So. 202. Here, the trial court’s order setting aside the consent judgment recited that the court had heard statements and arguments of counsel. Plaintiff’s motion alleged that the prior consent judgment was contrary to law and equity and that plaintiff had been uninformed as to the terms of the judgment. As such, and bearing in mind the trial court’s findings in its final order, we cannot perceive how the trial court’s discretion was abused in the instant case.

The cases cited by defendant for the proposition that consent judgments can only be set aside for fraud, accident and the like, are inapposite here. Initially, we note that defendant’s cases do not refer solely to consent judgments, but to all judgments. Furthermore, they do not concern motions filed within thirty days after judgment as does the instant case, but rather deal with those judgment vacation proceedings formerly commenced by a bill in the nature of a bill of review and now begun by a motion under Rule 60(b), ARCP.

The trial judge accordingly did not err by granting plaintiff’s motion.

II

Defendant also contends the trial court erred to reversal by its final order cancel-ling defendant’s mortgage. Defendant argues that it is a bona fide purchaser without notice of the true state of plaintiff’s title, and that the validity of its mortgage is thus unaffected by any wrongdoing.

We initially note that the deeds purporting to convey the property to Robert and Linda Robinette were, by the parties’ stipulation, improperly acknowledged. Furthermore, the evidence indicates that one deed was improperly witnessed, although these defects are not apparent from the face of the instruments. We express no opinion on the manner on which the defects affected defendant’s mortgage as such is not necessary to this appeal.

As noted earlier, the trial court found that the deeds were procured by fraud. Clearly, the evidence previously set out is sufficient to support this finding.

In view of this finding by the trial court, it is apparent from the record that the signatures of the grantors Dorothy Robinette and John Harold Wright were placed upon the deeds either by forgery or by the grantors having been deceived into signing the instruments in ignorance of their true character. A signature procured by this character of fraud is considered forged under Alabama law. Warren v. State, 247 Ala. 595, 25 So.2d 698. See also 11 A.L.R.3d 1076. A forged deed is void, and completely ineffectual to pass title. 23 Am.Jur.2d Deeds §§ 137, 139, and cases cited thereunder.

Even if the signatures are not forged, or considered as such under the rule enunciated in the Warren case, supra, a deed is nonetheless absolutely void where the grantor’s signature is obtained by fraud going to the nature of the instrument he was requested to sign. Gamble v. Moore, 278 Ala. 104, 176 So.2d 35; 23 Am.Jur.2d Deeds § 142, and cases cited thereunder. In the Gamble case, the plaintiff conveyed his lands to defendants in the belief, induced by defendant’s fraud, that he was executing a mortgage to a savings and loan association. Defendants subsequently mortgaged the property. The trial court held the deed to be void and of no effect, and its decree was upheld by the Supreme Court of Alabama.

Deeds are held invalid in the instances described above for the reason that the grantor in such cases cannot be said to have executed the instrument. This is so because in such instances the signature is not that of the grantor, made with the intention to convey, as is required by Tit. 47, § 22, Code of Ala. 1940.

A subsequent innocent purchaser is not protected against such void instruments. Barden v. Grace, 167 Ala. 453, 52 So. 425, and authorities cited, supra. Therefore, defendant’s mortgage is also void.

In this context, we would note that, due to the filial relation of Robert Robi-nette to the plaintiff, we do not regard plaintiff as having been so negligent in her actions as to neutralize the fraud as against a bona fide purchaser.

It is settled law that where a purchaser buys land and has knowledge that a third party is in possession thereof, he is charged with notice as to the nature of that party’s title. See 19 Ala.Dig. Vendor and Purchaser 232, and cases cited thereunder. However, where at the time of sale the vendor has but recently obtained a deed, and the vendor’s grantor remains in possession, such fact alone does not impute notice of the grantor’s title to the purchaser. Evans v. Bryan, 202 Ala. 484, 80 So. 868.

While bearing in mind the above principles, this court is of the opinion that plaintiff’s continued possession was coupled with sufficient other facts to place defendant-mortgage holder on notice as to the state of her title in the subject property.

Here, mortgage negotiations with Robert Robinette began before he purportedly acquired title, he was at that time already in debt to defendant, defendant knew plaintiff was in possession at the time the mortgage was executed, and the deed from plaintiff to Robert was for merely a nominal consideration. Under the circumstances of this particular case, considering the facts set out above as a whole, we are of the opinion that defendant was under a duty of inquiry and was charged with notice of plaintiff’s title. Being so charged, defendant cannot avail itself of the protection accorded an innocent purchaser.

Defendant argues that plaintiff is barred by the one-year statute of limitations or by estoppel from asserting the invalidity of the mortgage due to her son’s fraud. We disagree. The statute of limitation, Tit. 7, § 42, Code of Ala. 1940, and the cases interpreting it hold that suit must be brought within one year from the time the fraud is discovered or should have been discovered. Plaintiff filed suit on January 31, 1974. While there was some testimony by plaintiff that she was aware in the fall of 1972 that Robert Robinette borrowed money “on the house,” she also testified she did not learn of the existence of the mortgage and thus of her son’s fraud until September or December of 1973. This conflict was for the trial judge to resolve. Additionally, we cannot say that she should have earlier discovered the base conduct of one in whom she naturally reposed trust and confidence. She was accordingly not barred from maintaining her action.

In this regard, defendant contends that plaintiff received notice of the deeds when they were recorded by Robert Robinette. We note the general rule, expressed in Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26, that the notice contemplated by the recording statutes affects subsequent parties and not those antecedent in the chain of title. While the opposite result was apparently reached in the case of Cooper v. Cooper, 273 Ala. 694, 144 So.2d 62, cited to us by counsel for defendant, it can be distinguished from the instant case. The result in Cooper was based on special circumstances involving a deed in fact conditional but which appeared on its face to be regular, and which was actually executed by the grantors. Such are not the facts here, and we cannot agree that plaintiff received constructive notice of deeds she did not execute by virtue of their recordation.

Defendant finally argues that the defectively acknowledged deeds will be given effect as agreements to convey. This result will not obtain where the grantor did not execute the instrument, as is the case here.

Based on the foregoing discussion, we hold that the trial judge committed no reversible error by cancelling the mortgage from Robert and Linda Robinette to defendant, and by denying defendant’s motion for new trial.

All issues presented having been considered, and there being no error in the record, the case is due to be and accordingly is affirmed.

AFFIRMED.

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


text:
    Margaret H. BROOKE v. Jefferson P. BROOKE.
    Civ. 708.
    Court of Civil Appeals of Alabama.
    May 5, 1976.

      Stone, Patton & Kierce, Bessemer, for appellant.
    Robert E. Paden, Bessemer, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband petitioned the Circuit Court of Jefferson County, Bessemer Division, for a divorce. He alleged incompatibility of temperament as the ground for divorce. The wife answered, admitting incompatibility, but denied that such incompatibility was her “fault.” Additionally, the wife filed a counterclaim seeking a divorce on the grounds of adultery, voluntary abandonment, and incompatibility of temperament. The petition also prayed for a division of the parties’ property and alimony.

After a hearing ore tenus, the learned trial court divorced the parties on the ground of incompatibility of temperament, made what this court determines to be property division, and awarded periodic alimony.

The wife takes this appeal and urges error in that the trial court granted husband a divorce on the ground of incompatibility of temperament and denied the wife a divorce on the grounds of adultery and/or voluntary abandonment for one year or more. The wife also contends the trial court erred to reversal in the award of alimony and the property division.

The record reveals that the parties had been married for approximately thirty years at the time of the divorce. However, they had been separated for about two years prior to the divorce. There were three children born of the marriage. Each of the children is now over the age of twenty-one years. The husband is a practicing physician in Bessemer, Alabama. He earns approximately $60,000 per year income. The wife is not employed and has no apparent marketable employment skills. In fact, she has only worked for a very short time while the husband was in military service during World War II. The testimony reveals that the marriage is characterized by bickering, unhappiness, the husband berating and belittling the wife, a long period of separation (two years) prior to the divorce, and lack of communication. Additionally, the husband testified there was no hope of a reconciliation. There was further testimony that during the marriage the wife maintained a good home, took excellent care of the children, and was not extravagant.

There was also testimony that the husband, after the parties separated, but prior to the divorce, was “seeing” another woman. The husband and this third party went to restaurants, clubs, and played golf together. There also were several out of town trips made together by the husband and the third party. Additionally, there was testimony that the husband had spent the night in the apartment of the third party and testimony that the third party had spent the night in the apartment of the husband. However, explanations were given as to these trips and occasions of spending the night. Specifically, any sexual relationship between the parties was denied.

While there was some conflict as to the assets accumulated during marriage, we find the following: There is a homeplace and adjoining lot with an approximate value of $100,000. This home and adjoining lot are jointly owned. There is a building wherein the husband maintains his office, the husband’s interest being $35,000. There are stocks in various corporations worth approximately $70,000. These stocks are either jointly held or are in the name of the husband. In addition to the above, the wife has approximately $27,000 worth of stock in her own name. It is not clear to this court how these stocks were obtained, but we determine this to be the separate estate of the wife. There were jointly owned savings of a value of approximately $19,000; savings of $10,000 in the husband’s name alone;, and $2,500 in the wife’s name alone. Additionally, there were checking accounts of $8,000 in the husband’s name and approximately $2,000 in the wife’s name. There were also two 1973 automobiles.

In addition to the above, the husband had an interest in a real estate mortgage. This interest was valued at approximately $75,-000 and bore interest at 7% per annum. Additionally, the husband owned stock of a value of approximately $35,000. Both the mortgage and the $35,000 of stock were from the husband’s father’s estate.

The husband’s income, as noted above, was approximately $60,000 per year. The only income the wife had was about $1,200 per year from the aforementioned stock, which was in her name alone.

The trial court divorced the parties on the ground of incompatibility of temperament. Specifically, the trial court stated the following:

“(1) That the prayer of the Plhintiff for an absolute divorce from Defendant on the ground of incompatibility be and the same is hereby granted and the bonds of matrimony heretofore existing between Jefferson P. Brooke and Margaret H. Brooke are hereby dissolved and the parties are forever divorced from one another by decree a vinculo matrimonii on the ground of incompatibility.
“(3) That the prayer of the Defendant, Cross-Plaintiff, for a divorce on the ground of adultery and voluntary abandonment and incompatibility allegedly caused by the Plaintiff’s adulterous relationship and other reasons be and the same is hereby denied.”

Additionally, the trial court ordered the homeplace sold and the proceeds equally divided between the parties. The household goods were divided and each party was awarded one of the automobiles. The wife was given $11,000 worth of “paid-up” life insurance on the life of the husband with the wife as beneficiary. The husband was ordered to give the wife stock of a value of $6,700. In addition, the wife was awarded $8,500 of the jointly held savings account. The wife maintained her stocks, savings, and checking accounts which were in her name alone. The wife was also given $900 per month as periodic alimony.

I

Able counsel for appellant-wife argues that the trial court erred in granting the divorce on the husband’s petition alleging incompatibility of temperament as a ground for divorce. Put another way, the wife contends that the divorce if granted on the ground of incompatibility should have been granted on her counterclaim which alleged incompatibility.

While the learned trial court’s choice of words as noted above may be somewhat inappropriate, there was evidence, as seen from tjie above stated testimony to support a finding by the trial court that a state of incompatibility did in fact exist. As this court said in Phillips v. Phillips, 49 Ala.App. 514, 520, 274 So.2d 71, 77:

“If the incompatibility be established by the evidence in the trial court, a divorce may be granted without any specific determination as to whether either, both or neither of the parties is responsible or at fault as we traditionally consider fault. It is only incumbent upon the party bringing the action to establish by the evidence that a state of incompatibility exists.”

As we have noted, there was evidence presented to the trial court that a state of incompatibility existed. We would note that the trial court’s order does not determine who is at “fault,” only that the petition of the husband praying for a divorce on the ground of incompatibility of temperament was due to be granted. We further note that the wife in her answer to the husband’s petition admitted the incompatibility. We therefore find no error which requires reversal.

As to appellant-wife’s contention that the divorce should have been granted on the grounds of adultery or voluntary abandonment, suffice it to say that the evidence in regard to these grounds were somewhat in conflict. It is for the trier of facts to resolve that conflict. While there was evidence to support a finding of adultery, the trial court did not so find. The law in this instance does not allow this court to substitute our own judgment for that of the trial judge. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707.

II

We now address ourselves to a most difficult question presented by this appeal. Did the trial court abuse its discretion in the award to the wife? We find that the learned trial court did err.

This court and the Supreme Court of Alabama have said on numerous occasions that there is no fixed standard in determining what is a proper award. The award to the wife depends upon many relevant factors, considered in light of what is just and reasonable. See Davis v. Davis, 274 Ala. 277, 147 So.2d 828, 1 A.L.R.3d 1. Relevant factors are future prospects of the parties; their ages, sex, health, and station in life; how long they were married; and in appropriate cases, the conduct of the parties with reference to the cause of the divorce.

We should here point out that in this instance, it would be appropriate for the trial court to consider the conduct of the parties even though the divorce was granted op the ground of incompatibility of temperament. We find the following in Gamble v. Gamble, 53 Ala.App. 168, 173, 298 So.2d 254, 258:

“We note, however, that Phillips, supra, has not prohibited the trial court from considering fault as it may be pertinent in determining a proper award of alimony. As we stated in Phillips, in discussing alimony where the ground of divorce was incompatibility, we held:
“ ‘While there is no fixed standard for determination of alimony, it must depend upon many relevant factors, considered in light of what is just and reasonable. Sides v. Sides, supra; Davis v. Davis, 274 Ala. 277, 147 So.2d 828, 1 A.L.R.3d 1. Relevant factors are future prospects of the parties; their ages, sex, health and station in life; how long they were married; and in appropriate cases, the conduct of the parties with reference to the cause of the divorce.’ . . .
“Therefore, in this instance, we can perceive of no reason why the lower court could not properly consider all aspects of the case in its determination of the amount of alimony.”

As the record reveals and as set out here-inabove, the husband has for relevant purposes an estate of over $300,000. In addition thereto, he earns approximately $60,-000 per year. Of this the wife received approximately $65,200 and $900 per month as periodic alimony. It should however be noted that of the $65,200 awarded to the wife, $50,000 is her one-half interest in the $100,000 homeplace.

The wife is fifty-four years of age and for all intent and purpose has never been employed. The husband is fifty-three years of age and is a practicing physician earning $60,000 per year. They were married for approximately thirty years. The wife has, to say the least, enjoyed during the marriage what might be called a high standard of living. There was very little, if any at all, testimony regarding the fact that the wife was not á good “homemaker.” The husband’s conduct with a third party has already been alluded to earlier.

Considering all the above, we find that the learned and distinguished trial judge did abuse his discretion and that the award to the wife is contrary to law and equity. See Grant v. Grant, 49 Ala.App. 559, 274 So.2d 329, appeal after remand 52 Ala.App. 365, 292 So.2d 660, cert. denied 292 Ala. 722, 292 So.2d 662, cert. denied 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105. We therefore find that in addition to the award made by the trial court the wife is entitled to the homeplace and adjoining lot.

The appellant has petitioned this court for an award for attorney’s fee for her attorney on this appeal. A fee of $500 is hereby awarded.

The case is due to be affirmed in part and reversed and remanded in part for the entry of a decree not inconsistent with this opinion.

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