author: ALMON, Justice. EMBRY, Justice

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, SYSTEMS COUNCIL U-19 and Local 841 of the International Brotherhood of Electrical Workers v. James C. POWELL.
    77-377.
    Supreme Court of Alabama.
    April 12, 1979.
    Rehearing Denied May 4, 1979.

      George C. Longshore of Cooper, Mitch & Crawford, Birmingham, for appellants.
    Ernest C. Hornsby, Steven F. Schmitt, Tallassee, John M. Patterson, Edmon L. Rinehart, Montgomery, for appellee.
   ALMON, Justice.

Three union defendants appeal from the rendition of a $40,000 jury verdict against them jointly and severally in favor of the appellee, James C. Powell. We reverse.

In September, 1975, Alabama Power Company (APC), terminated James C. Powell’s employment as a company lineman, based upon a determination that Powell had a spondylolytie condition in his lower back which rendered him incapable of heavy lifting and therefore unfit for lineman’s duties.

This condition, characterized as a congenital back defect was discovered while Powell was being treated for a severe back sprain sustained in the early spring of 1975. Following this injury Powell returned to work as a lineman in June, 1975. Powell has maintained throughout that he is fit and capable of performing lineman’s duties and he is, in fact, currently employed as a lineman with Alexander City, Alabama.

In March, 1976, Powell sued APC for his wrongful discharge, alleging inter alia, breach of contract, defamation and wrongful interference with future prospective employment. Powell also sought workman’s compensation benefits. The three union defendants, International Brotherhood of Electrical Workers (IBEW); Local 841, IBEW (Local) and System Council U-19 (Council) were added in the APC suit in January, 1977, sixteen months after Powell’s termination. Powell claimed that the Unions breached their duty of fair representation with respect to his termination by failing to invoke the grievance/arbitration procedure.

The unions raised the defense of Alabama’s one year statute of limitations, § 6-2-39(a)(5), Code of .1975, however, the trial court found that the fair representation claim against the union was ex contrac-tu and therefore timely. Powell and APC agreed on a pro tanto settlement prior to trial and only the claims against the unions were presented at the trial. The jury returned with a $40,000 verdict in favor of Powell against all three union defendants.

The unions have appealed this verdict, contending alternatively that:

1) Powell’s claim against them was barred by the one year statute of limitations for tort actions, § 6-2-39(a)(5), Code, 1975;
2) Powell failed to sustain his burden of proof with respect to the alleged breach of the duty of fair representation according to the guidelines set out in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967);
3) Powell’s pro tanto settlement with APC was a complete settlement of all damages arising from the termination of his employment and
4) Powell failed to exhaust his internal union remedies prior to the commencement of this action.

We agree with the trial court’s determination that this action against a union alleging a breach of the union’s duty of fair representation is contractual in nature and the action is therefore controlled by § 6-2-34, 1975 Code (six years) instead of § 6-2-39, 1975 Code (one year).

The United States Supreme Court has imposed a duty of fair representation upon unions as the quid pro quo for the unions’ position as the exclusive bargaining representative of the employees they represent. Laborers & Hod Carriers Local No. 341 v. N.L.R.B., 564 F.2d 834 (9th Cir. 1977). The seminal case enunciating the fair representation doctrine dealt with the Railway Labor Act, Steele v. L. & N. R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) but under the comparable provisions of the National Labor Relations Act, the unions are granted the exclusive right to represent employees “in respect to rates of pay, wages, hours of employment or other conditions of employment.” National Labor Relations Act, § 9(a), 29 U.S.C., § 159(a) (1970).

In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) the Supreme Court noted that this “statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” (citation omitted.) 386 U.S. at 177, 87 S.Ct. at 910.

State and federal courts have concurrent jurisdiction over fair representation claims. Vaca v. Sipes, supra. Where, as here, a fair representation case is adjudicated in state courts, the state courts must apply federal substantive law; Wheeler v. International Woodworkers of America, 274 Or. 373, 547 P.2d 106 (1976); Rosales v. General Motors Corp., 78 Cal.App.3d 94, 144 Cal.Rptr. 83 (1978); Handwerk v. United Steelworkers of America, 67 Mich.App. 747, 242 N.W.2d 514 (1976); but the application of the federal substantive law is contingent on how a fair representation claim is characterized for a determination of the appropriate state statute of limitations. In U. A. W. v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the United States Supreme Court, addressing a claim under § 301 of the Labor Management Relations Act, 29 U.S.C., § 185 (1970) stated that where it is necessary to characterize an action for determining the appropriate statute of limitations, “there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy.” 383 U.S. at 706, 86 S.Ct. at 1113.

Alabama has not had an occasion to characterize a fair representation case for purposes of deciding the appropriate statute of limitations but we now hold that where a union member presents a claim against his union for a breach of its duty of fair representation in conjunction with a breach of contract claim against his employer, the contract statute of limitations is applicable.

We are cognizant of the requirement that our characterization be consistent with national labor policy and it is our view that the heart of our national labor policy is the formulation and administration of collective bargaining agreements. These collective bargaining agreements are essentially contracts defining the rights and duties of the employer and the union. The rights and duties embodied in a collective bargaining agreement impose obligations on the employer and the union which ultimately benefit the individual employee.

In Tennessee Coal, Iron & R.R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952), an employee was allowed to recover against his employer who had breached a safety provision contained in collective bargaining agreements. The employee alleged that under the collective bargaining agreement, the company had an obligation to install proper ventilation systems and that it had failed to do so and was therefore liable for breach of contract. This Court affirmed the jury verdict returned in favor of the employee noting that

“ * * * the injured employee, who is a party to the contract or one for whose direct benefit it was made, may sue for its breach in assumpsit, or may sue in tort for negligence in failing to perform a duty imposed by law. He has an election in that respect.
* * * * * *
“The contract, as set forth in the complaint in connection with its allegations, shows that it was made in respect to the ventilating system for the direct benefit of a class of which plaintiff was a member, and therefore he may sue for its breach when suffering damages as a third party beneficiary.” (citations omitted.)

It would be incongruous to allow an employee to sue his employer for the breach of a contract made for his benefit yet disallow his contract action against the union which is vested with the exclusive power to create and enforce that contract.

We recognize that a union’s duty of fair representation is not dependent on the underlying collective bargaining agreement, but rather that duty is of independent origin; Steele, supra, and may be capable of separate vindication, Abrams v. Carrier Corporation, 434 F.2d 1234, 1252 (2d Cir. 1970). We do not find these reasons compelling enough to preclude the application of the contract statute of limitations in this case.

We find the reasoning of the Eighth Circuit Court of Appeals in Butler v. Teamsters Local 823, 514 F.2d 442 (8th Cir.) cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975) very persuasive. That court concluded that the policies underlying federal labor law would be “best effectuated by applying the written contract statute of limitations . . . for the following reasons:

“First, it is clear since Vaca v. Sipes that to recover against his employer, an employee will first have to establish that the union has breached its duty of fair representation. Thus, the traditional argument favoring statutes of limitations— that claims based on stale evidence ought to be barred — is simply not applicable. The ‘stale evidence’ is necessary anyway.
“Second, the damages assessed against the union are inextricably tied to the breach of contract. If a court determines that the employer has not breached the contract, even if the union has breached its independent duty of fair representation, the employee will not be entitled to collect from the union damages flowing from the alleged contract breach.
“Third, only by providing the same limitations period against both employer and union, will the court be able to fashion a remedy which properly allocates the damages between them. In instances where the employer has acted entirely in good faith in its interpretation of the contract, it will be protected if the union has fairly represented the employee, but it will be vulnerable if the union has acted unfairly. Because the good faith employer’s liability is dependent on the union’s conduct, there is an inherent unfairness in a rule which would allow the union to raise a limitations defense while denying such a defense to the employer. The Supreme Court in Vaca recognized the importance of having both defendants before the court:
* * [I]t is obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions. If a breach of duty by the union and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. Presumably in at least some cases, the union’s breach of duty will have enhanced or contributed to the employee’s injury. What possible sense could there be in a rule which would permit a court that has litigated the fault of employer and union to fashion a remedy only with respect to the employer? * * * >

Id. 386 U.S. at 187, 87 S.Ct. at 915.

“The Court continued:
“ ‘The governing principle, then, is to apportion liability between the employer and the union according to the damage caused by the fault of each. Thus, damages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer. * * * ’
Id. at 197-98, 87 S.Ct. at 921.
The goal of fairly apportioning damages will best be met by a rule which subjects both defendants to an equal period of vulnerability to suit.” (citations and footnotes omitted) 514 F.2d at 447-48.

We perceive that the duty of fair representation is designed to encourage diligent, non-discriminatory union representation. It is our feeling that, absent compelling policy considerations, this goal can best be achieved by applying the longer limitations period.

The appellants’ second contention on this appeal is that the appellee did not satisfy the federal standard set out in Vaca v. Sipes, supra, with respect to a breach of the union’s duty to an individual employee in its processing of grievances under a collective bargaining agreement. As previously noted, state courts are obligated to apply federal substantive law in fair representation cases.

In Vaca v. Sipes, supra, the United States Supreme Court set out these controlling principles:

“A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith.” (citations omitted.) 386 U.S. at 190. 87 S.Ct. at 916.
sit * * * * *
“Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.” 386 U.S. at 191, 87 S.Ct. at 917.
* * * * * *
“[I]f a union’s decision that a particular grievance lacks sufficient merit to justify arbitration would constitute a breach of the duty of fair representation because a judge or jury later found the grievance meritorious, the union’s incentive to settle such grievances short of arbitration would be seriously reduced. The dampening effect on the entire grievance procedure of this reduction of the union’s freedom to settle claims in good faith would surely be substantial. Since the union’s statutory duty of fair representation protects the individual employee from arbitrary abuses of the settlement device by providing him with recourse against both employer . . . and union, this severe limitation on the power to settle grievances is neither necessary nor desirable.” 386 U.S. at 192-93, 87 S.Ct. at 918.

The United States Supreme Court has subsequently observed that these principles mean that the burden of showing a breach of the union’s duty of fair representation “involves more than demonstrating mere errors in judgment.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231, 245 (1976).

Applying these standards to the facts in this case as they are reflected in the record, this Court may determine the sufficiency of the evidence as a matter of law. Vaca v. Sipes, supra.

Powell’s evidence indicated that: the Company doctor released him and told him that he could return to work as a lineman; he was subsequently discharged by APC and he told his job steward that he wanted to file a grievance; pursuant to the job steward’s instructions, he called Jerry Hood, business manager of the Systems Council, and told Hood that he wanted to file a grievance; Hood told him that there was nothing that the Union could do about his termination.

Powell’s evidence also indicated that: he drew unemployment compensation and made about $1,000 at odd jobs; he was ultimately hired by the Alexander City Light Department as a lineman and he is currently employed in that capacity; APC never made any firm offers of employment to him after his discharge and he was in good health, ready, willing and able to perform lineman’s duties as of the date of his discharge.

Powell and other witnesses called on his behalf revealed that he had previously had an argument with Jerry Hood about coffee breaks and that the appellee had told Hood “that if they wasn’t going to represent the construction department, that the best thing we could do was to get out [of the union] and get some more representation.” There was also testimony on cross-examination of Jerry Hood which indicated that after Jerry Hood was informed of Powell’s pending termination, Hood did not make any efforts to secure independent medical advice. Hood also testified that if he had any notes or memoranda relating to this matter, he would have destroyed them and that he was currently employed as a supervisor with APC.

On the other hand, the union’s evidence indicated that: the collective bargaining agreement provided that APC was the sole judge of competency; the collective bargaining agreement provided that the Company surgeon has the exclusive right to determine physical competency and that the union had been unsuccessful in modifying the effect of this competency clause in previous arbitration efforts.

The unions presented evidence which showed that: Jerry Hood was the business manager of the Systems Council which coordinated the activities of nine local brotherhoods of the IBEW in Alabama; Jerry Hood attended a meeting where company officials informed him that since Powell had a permanent “no heavy lifting” restriction, he could not continue work as a lineman; the company had attempted to find another job within the company that Powell “could perform without prejudice to his physical condition”; and that there was no other job available at that time.

After Hood was informed of these matters there was testimony to the effect that: Hood got upset and criticized the company for “not finding a place for Powell within a company the size of Alabama Power Company”; Hood told the company that Powell had clerical experience which was not reflected in his employment records and the company renewed the search for a position for the appellee subsequent to Powell’s termination. There was evidence which indicated that: after the company learned of Powell’s clerical experience, they arranged interviews with him for a clerical position; Powell expressed no interest in a clerical job that kept him inside and he expressed dissatisfaction with the salary of a clerk.

Extensive medical testimony was presented with regard to Powell’s back condition, spondylolysis. The thrust of this testimony was that his back disability was asymptomatic; spondylolysis was characterized as a degenerative arthritis of the spine where a portion of the bony substance of a vertebra is missing; spondylolysis never undergoes a healing process; a person with spondylolysis has a greater likelihood of experiencing back problems and there was no reliable and accurate way to predict whether a person with spondylolysis would have future back problems.

We have carefully reviewed the entire record and we have examined many federal and state cases considering alleged union misconduct in the context of a breach of the duty of fair representation. The law requires that union conduct be perfunctory, arbitrary, discriminatory or in bad faith before it is determined that the union has breached the duty of fair representation. We conclude that the union’s actions in this case were a legitimate exercise of discretion on behalf of an employee. Factors that we consider significant in this decision are: the potentially debilitating nature of the appel-lee’s back condition; the plenary authority of the company to determine physical competency within the meaning of the collective bargaining agreement; the inability of the union to challenge this competency clause in either arbitration proceedings or collective bargaining agreement negotiations and the union’s activity in securing alternate employment opportunities.

A Fifth Circuit Court of Appeals case is instructive. In Turner v. Air Transport Dispatcher’s Association, 468 F.2d 297 (5th Cir. 1972) the court observed that

“ * * * this duty of representation does not confer an absolute right on an employee to have his complaint carried through all stages of the grievance procedure. As Vaca makes clear, unions should have considerable discretion to control the grievance and arbitration procedure, subject only to a duty of fair representation, and an employee is subject to the union’s nonarbitrary discretionary power to settle or even abandon a grievance, even if it can be later demonstrated that the employee’s claim was meritorious. Turner argues that ATDA treated his grievance in a perfunctory fashion. It is beyond doubt that the duty of fair representation includes an obligation to investigate and to ascertain the merit of employee grievances. But in the case sub judice, the union officials and members listened to Turner’s arguments at an open meeting and after discussion informed him of the Union’s position. Further union investigation was unnecessary since the only difference between Turner, on one side, and Braniff and the ATDA, on the other, concerned the interpretation of the collective bargaining agreement, and not a dispute over facts.
The mere fact that the ATDA refused to file Turner’s grievance through the Association’s grievance representative does not amount to perfunctory or arbitrary treatment. A union’s broad discretion in prosecuting grievance complaints includes not only the right to settle the dispute short of arbitration but also to refuse to initiate the first steps in the appeal procedure when it believes the grievance to be without merit.” (citations and footnotes omitted) 468 F.2d at 299-300.

We believe that the union’s representative, Mr. Hood, pursued a “common sense and practical approach toward resolution” of this problem. See Bures v. Houston Symphony Society, 503 F.2d 842, 843 (5th Cir. 1974). It was his judgment that filing a grievance to reinstate Powell and pursuing the grievance through arbitration would be fruitless. He chose instead to attempt to procure another position within the company for the appellee and the record indicates that to a certain extent, he was successful.

The evidence in the record does not support a finding that Hood’s decision was either perfunctory or arbitrary, in light of these facts: (1) the company had the power to terminate Powell for “sufficient and reasonable cause”; (2) the company reserved the exclusive right to determine competency, physical or otherwise and (3) “it is questionable that the union could expect to prosecute successfully a grievance attacking the . . . agreement entered into with the [company] which agreement the Local had procured and negotiated.” Watson v. Int'l. Brotherhood of Teamsters, 399 F.2d 875, 880 (5th Cir. 1968). Powell did not establish that the union breached its duty to him.

In view of our decision, it is not necessary to discuss the remaining issues. This case is reversed and remanded to the trial court so that judgment may be entered for the defendants.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER and BEATTY, JJ., concur.

JONES, SHORES and EMBRY, JJ., concur in part and dissent in part.

EMBRY, Justice

(dissenting in part and concurring in part):

I agree with the majority that this ease must be reversed and judgment entered in favor of defendants because Powell failed to prove appellant Union breached its duty of fair representation. I dissent from the majority’s holding that the cause of action is contractual and, therefore, from its application of the six-year statute of limitations, Code 1975, § 6-2-34.

The duty of fair representation is imposed by law. 29 U.S.C. §§ 158, 159 (1970); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It is not contractually created and cannot be contracted away, de Arroyo v. Sindicato de Trabajadores Packing, AFL-CIO, 425 F.2d 281 (1st Cir. 1970). Consequently, a breach of this duty can only be considered tortious in nature. Canada v. United Parcel Service, Inc., 446 F.Supp. 1048 (N.D.Ill.1978).

Incredibly, the majority concedes the duty arises by operation of law, yet finds no compelling reason to classify the breach of that duty as tortious and apply the tort statute of limitations. I submit no compelling reason need be given.

The United States Court of Appeals for the Fifth Circuit has had no difficulty in making such a determination, specifically holding that fair representation actions are to be governed by Alabama’s one-year tort statute of limitations. Code 1975, § 6-2-39; Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973); Craig v. Bemis Co., Inc., 374 F.Supp. 1251 (S.D.Ala.1974) aff’d on other grds, 517 F.2d 677 (5th Cir. 1975). No federal appellate court has held this cause of action, in and of itself, is contractual in nature. The contract statute of limitations has been applied only in cases in which the action has been joined with a § 301, LMRA, action against the employer. Butler v. Teamsters Local, 823, 514 F.2d 442 (8th Cir.), cert. denied 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975); Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970). In this case the employer is not made a party defendant to a § 301 action.

It seems the majority applies the contract statute of limitations for two reasons. First, if an aciion is brought against the employer for breach of the collective bargaining agreement, the contract statute of limitations applies and thus it would be incongruous to allow the shorter tort statute of limitations to apply to an action against the Union which caused the collective bargaining agreement to be created and is charged with the duty of enforcing it in behalf of members of the bargaining unit. Second, an employee in order to recover of his employer for breach of the collective bargaining agreement must prove his Union has breached its duty of fair representation. This being true, then why not apply the longer contract statute of limitations in the action against the Union for breach of its duty of fair representation. These arguments were considered and rejected in de Arroyo v. Sindicato de Trabaja-dores Packing, AFL-CIO, supra, and although they may be valid in some circumstances, they are not applicable to this case. They serve only to highlight the fact that the majority deems them so compelling that they are willing to call a zebra a giraffe.

JONES and SHORES, JJ., concur.

      . Compare Butler v. Local Union 823, International Brotherhood of Teamsters, Etc., 514 F.2d 442 (8th Cir.) cert. denied, 423 U.S. 924, 96 S.Ct. 265, 46 L.Ed.2d 249 (1975) with Sander-

        son v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973). See Canada v. United Parcel Service, Inc., 446 F.Supp. 1048 (N.D.Ill.1978); Note, Statute of Limitations Governing Fair Representation Action Against Union When Brought With Section 301 Action Against Employer, 44 Geo. Wash.L.Rev. 418 (1976).
      It is interesting to compare the views of the dissenters in this case with those expressed in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975) and Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala. 1976).

      . Mr. Edsel Webster, a superintendent, testified that he interviewed the appellee for a position in his office as a Junior Payroll Clerk. He testified that the appellee didn’t feel “like he was able to sit at a desk and work all day with his back problem” and he “stated his reasons why he didn’t think he could take the job because of the reduced rate of pay.”
      Mr. Thomas Wood testified that he talked with the appellee about a position in his department as a Senior General Clerk. On direct examination Mr. Wood testified:
      Q. And, the job of senior general clerk, was it . were you prepared to offer him
      the job?
      A. Yes, sir.
      Q. Was the job his for the asking?
      A. Yes sir, it was.
      On cross-examination, Mr. Wood testified that Q. You did make him a firm offer of the job?
      A. Depends on your interpretation of the comments that were made, sir. I told him what the job entailed, and he indicated a lack of interest in the job. I told him that if he wanted to think it over, that I would hold the job open for him and if he wanted to talk some more about it, to give me a call and we would certainly get together and pursue it further. I did [not?] hear from him.

      . The by-laws of both Systems Council U-19 and IBEW set out intra-union appeal procedures and unless the adequacy of an internal remedy is questioned and its inadequacy established, these internal union remedies must generally be exhausted before a claimant can turn to the courts for relief.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Claud Millard McNUTT and wife, Carol Dean McNutt v. Loma B. BEATY and Patrick H. Tate.
    Civ. 1498-A.
    Court of Civil Appeals of Alabama.
    Aug. 9, 1978.
    Rehearing Denied Sept. 6, 1978.

      Robert H. King, Gadsden, for appellants.
    Loma B. Beaty, Patrick H. Tate, Fort Payne, appellee/guardian ad litem.
   HOLMES, Judge.

This is an appeal from a denial of relief under Rule 60(b), ARCP. We affirm.

A brief review of the history of this case is necessary for an understanding of the issue on this appeal. The appellants were divorced in July, 1975, by decree of the Circuit Court of DeKalb County. The decree was set aside by order of the court in October, 1975. After the divorce decree was set aside, numerous other proceedings not relevant to this appeal dealing with the final determination of matters between the appellants were held. Also, during this period, various claims and liens accompanied by affidavits were filed by several different attorneys who had represented the respective parties during their divorce proceedings.

On October 5, 1977, the court awarded attorney’s fees to Charles Scott, attorney for the appellant-husband, in the amount of $775. The attorney for the appellant-wife, Loma Beaty, was awarded a fee in the amount of $1,800. This order was amended on October 24, 1977, to include a $500 fee for services rendered by Patrick Tate as guardian ad litem. The record reflects that notice of this order, as amended, was sent to the parties’ then attorney of record. No appeal was taken from the above order.

On January 4, 1978, appellants were notified of levy on their property to satisfy the above judgments. Thereafter, on March 29, 1978, the appellants filed a motion requesting relief under Rule 60(b) and also for independent relief from the October order. Appellants contend the October judgment “was acquired without notice” to them and that relief should be granted on that basis. Appellants further request relief on the allegation that the judgment was “obtained through fraud.” As noted above, the court held the appellants were not entitled to relief and denied their motion.

The dispositive issue on appeal is whether the trial court erred to reversal in denying the appellant’s 60(b) motion for relief.

At the outset, we would note that the determination of whether to grant or deny relief pursuant to Rule 60(b) is largely a matter within the judicial discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. See Wilger v. Department of Pensions and Security, Ala.Civ.App., 343 So.2d 529 (1977); Modernage Homes v. Wooldridge, 55 Ala. App. 68, 313 So.2d 190 (1975).

Furthermore, the only matter reviewable on appeal is the order of the denial itself. The motion does not serve as a substitute for appeal and, therefore, cannot present for review the underlying judgment. See Marsh v. Marsh, Ala.Civ.App., 338 So.2d 422 (1976); Halstead v. Halstead, 53 Ala.App. 255, 299 So.2d 300 (1974).

Put another way, this court on appeal will not consider the merits of the underlying October judgment nor matters which would properly be brought on appeal. Rather, we look solely to determine if the trial court abused its discretion in granting or denying 60(b) relief.

As noted above, appellants’ 60(b) motion was bottomed on the allegation that the October, 1977, decree was obtained without notice to them. Appellants further contend the decree was obtained through fraud.

Rule 60(b) provides, in pertinent part, the following:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four months after the judgment, order, or proceeding was entered or taken. . . ”

It is clear to this court that the contentions raised in appellants’ 60(b) motion fall within Rule 60(b) subsections (1), (2), or (3). Furthermore, the circumstances involved in this appeal are not such so as to fall within subsection 6 of Rule 60(b) and its longer limitation period. See Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538 (2nd Cir. 1963); Wright and Miller, Federal Practice and Procedure: Civil §§ 2864, 2865.

As noted above, the October 5, 1977, order, as amended, noted that a copy of the order was sent to each attorney of record in the case. The law is settled in this regard, in that notice to an attorney operates as notice to the client, i. e., appellants in this instance. See 3 Ala. Digest Attorney and Client Key 104; 7 C.J.S. Attorney and Client §§ 69, 70. By virtue of this, appellants’ contentions do not fall within subsection (6) of Rule 60(b). See Radack v. Norwegian America Line Agency, Inc., supra.

Motions based upon subsections (1), (2), or (3) must be made within four months from the entry of the order. See Committee Comments, Rule 60, ARCP; 7 Moore’s Federal Practice, ¶ 60.28(2), [2d ed. 1971]; Wright and Miller, Federal Practice and Procedure, supra, § 2866. As noted above, appellants’ motion was made over five months after the order was entered. In view of this time lapse, we cannot say the trial court erred in denying appellants’ relief under their 60(b) motion.

Appellants also have pending before this court a petition for mandamus. This petition relates to the same subject matter as the instant appeal and is due to be dismissed.

There are additional motions before this court. However, in view of the above, they need not be discussed. For clarity, these motions are deemed to be denied.

Appellees have requested this court to award them attorney fees for this appeal. In consideration of the above and the circumstances surrounding this appeal, we decline to make such award.

The above being dispositive of the issues in this appeal, the trial court is due to be and is affirmed.

AFFIRMED.

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

      . This motion was made over five months after the October, 1977, order was entered.

      . We note again that this notice was sent to the McNutts’ then attorney of record who is not involved as a party to this appeal.


author: PER CURIAM.

text:
    In re Claud Millard McNUTT et al. v. Loma B. BEATY et al. Ex parte Claud Millard McNutt and Claud Millard McNutt, as Administrator of the Estate of Carol Dean McNutt, Deceased.
    77-802.
    Supreme Court of Alabama.
    April 6, 1979.
    Rehearing Denied May 4, 1979.
    Robert H. King, Gadsden, for petitioners.
    Loma B. Beaty, Patrick H. Tate, Charles M. Scott, Fort Payne, for respondents.
   PER CURIAM.

The issue in this case is whether a circuit court has continuing jurisdiction over a divorce case permitting it to enter an order awarding attorneys’ fees some two years after reconciliation of the parties. We hold it does not.

Petitioner, Claud Millard McNutt, filed an action for divorce from his wife, Carol Dean McNutt. The divorce was granted by the Circuit Court of DeKalb County on 16 July 1975. Three months later the divorce decree was set aside and the parties were reconciled shortly thereafter. Notice of the reconciliation was given to the circuit court by the parties in January 1976. By an undated letter to the court they requested the case be dismissed at a hearing which was set for 26 January 1976. On 5 October 1977, one year and nine months later, the court entered an order dismissing the case and awarding attorneys’ fees of $1,800 to respondent, Loma B. Beaty, Carol McNutt’s attorney, and $775 to respondent, Charles M. Scott, Claud McNutt’s attorney. The order was amended on 24 October 1977 to award $500 to respondent Patrick H. Tate, an additional attorney appointed by the court as guardian ad litem for Carol McNutt. The aggregate sum of $3,075 was charged to Claud McNutt.

Petitioners, Claud and Carol McNutt (since deceased), did not appeal the orders awarding the attorneys’ fees. Five months later they filed a Rule 60(b), ARCP, motion for relief alleging the court was without jurisdiction to enter the orders. The court denied their motion and the McNutts appealed to the Court of Civil Appeals. That court held the trial court did not abuse its discretion in denying the McNutts’ motion and affirmed.

We granted certiorari because of the unprecedented order requiring McNutt to pay his own attorneys’ fees; the questionable need of Carol McNutt to be represented by two attorneys; the lengthy amount of time between the setting aside of the divorce decree and the award of attorneys’ fees, and the strong public policy of this state against continuing litigation in divorce cases in order to allow for attorneys’ fees.

The Court of Civil Appeals believed the contentions raised in the McNutts’ motion fell within ARCP 60(b)(1), (2) or (3) which provides:

“ * * * On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * * ”

Motions under (1), (2) or (3) are required to be made no later than four months after entry of the order or judgment complained of. The Court of Civil Appeals held the McNutts’ motion to be filed too late because it was filed five months after the orders awarding attorneys’ fees.

There is, however, another ground upon which the motion was based; one which we hold to be valid. ARCP 60(b)(4) allows a court to relieve a party from a judgment or order if it is void. A motion for relief based on Rule 60(b)(4), that the judgment is void, need only be filed within a reasonable time.

A judgment is void if the court rendering it lacks jurisdiction over the subject matter or of the parties. Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907). Thus, the issue is whether the trial court retains jurisdiction to award attorneys’ fees after reconciliation of the parties. In Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926), a wife brought suit against her husband for divorce and requested an order for temporary alimony and attorney’s fees. Pending the order, the parties reconciled and the wife filed a request for dismissal. At the instance of the wife’s attorney, the court entered a decree awarding attorney’s fees. This court reversed, holding:

“ * * * The attorney has no separate equity, but must derive it from that of his client. The proceeding must be in her name for her benefit. When by her act she cuts off all claim to such allowance the right of the attorney cannot arise.
“We are fully in accord with the view that public policy forbids the reopening of the grounds of divorce after reconciliation for the purpose of allowing attorneys’ fees against the husband. * * * “ * * * On the filing of the wife’s application to dismiss, it was the duty of the register to enter the order of dismissal and proceed no further with the reference. * * * ” 214 Ala. at 576, 108 So. at 378-379.

In Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927), the parties to a divorce reconciled after a divorce decree was rendered. Subsequently, the court allowed the wife’s attorney to intervene and awarded him attorney’s fees. The parties’ petition for mandamus in this court was granted and the opinion of this court reaffirmed the public policy stated in Bell. In Johnson, this court held the wife’s right to dismiss is unqualified. Consequently, the trial court was required to dismiss the case and vacate its order allowing attorney’s fees. In Murphy v. Murphy, 56 S.D. 355, 228 N.W. 464 (1929), the parties to a divorce reconciled after an order had been entered requiring the husband to pay temporary alimony and fifty dollars in attorneys’ fees. Upon receiving notice of the reconciliation the attorneys for the wife applied for and received a modification of the prior order which increased the attorneys’ fees by seventy-five dollars. In reversing the modification order the South Dakota Supreme Court held:

“ * * * [The attorneys] contend the alimony may be allowed so long as the action is pending and that until final judgment is entered the action is pending. In a sense this is true. It is pending for final judgment of dismissal, but the parties by their acts have withdrawn all issues between them and the court has lost jurisdiction * * (emphasis added) 56 S.D. at 359, 228 N.W. at 466

Thus, as stated in Bell, we hold that reconciliation between the parties to a divorce abrogates the cause of action; the suit as a legal proceeding no longer exists. After reconciliation no order or judgment may be entered awarding attorneys’ fees and, in most cases, no order of any kind will be allowed other than one dismissing the case. Bell v. Bell, 214 Ala. at 575, 108 So. at 378, quoting Kuntz v. Kuntz, 80 N.J.Eq. 429, 83 A. 787 (1912). See Annot., 92 A.L. R.2d 1009, 1014 (1963). Litigation for divorce is not conducted for the benefit of attorneys. An award of attorneys’ fees is derivative and solely for the benefit of the party who is granted the divorce and cannot pay his or her attorney. Where reconciliation takes place, the attorneys can collect their fees from their respective clients as they do in other cases.

In this case the orders awarding the attorneys’ fees came almost two years after reconciliation of the parties. So much of the orders as awards those fees is void because the court lost jurisdiction upon reconciliation of the parties.

Respondent, Tate, contends his fee should be awarded as part of the costs of the action pursuant to Rule 17(d), ARCP. The trial court did not tax Tate’s fees as a part of the costs and we will not. Public policy against continuing litigation in order to provide attorneys’ fees applies equally to all attorneys involved in the case. Additionally, Rule 17(c) provides:

“ * * * The court shall appoint a guardian ad litem (1) for an infant defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the infant or incompetent person. * * * ” (emphasis added)

At the time of the appointment of Tate as guardian ad litem, Carol McNutt was already represented by respondent Beaty.

Because the portion of the orders of the trial court awarding attorneys’ fees were void for lack of jurisdiction of the trial court to award those fees, the McNutts’ motion for relief was properly based on ARCP 60(b)(4) and should have been granted. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand to that court for decision not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    Claud Millard McNUTT and wife, Carol Dean McNutt v. Loma B. BEATY and Patrick H. Tate.
    Civ. 1498-A.
    Court of Civil Appeals of Alabama.
    May 2, 1979.
   HOLMES, Judge.

The prior opinion of this court having been reversed and remanded to this court, and in compliance with the supreme court’s opinion c' April 6, 1979, this cause is now reversed and remanded to the Circuit Court of DeKalb County.

REVERSED AND REMANDED.

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


text:
    Robert DARROW v. BENEFICIAL FINANCE COMPANY.
    Civ. 1642.
    Court of Civil Appeals of Alabama.
    March 7, 1979.
    Rehearing Denied April 4, 1979.

      Charles G. Spradling, Jr., Huntsville, for appellant.
    Charles E. Richardson, III, Huntsville, for appellee.
   HOLMES, Judge.

This appeal presents this court with two dispositive issues: (1) whether defendant’s counterclaim under the Federal Truth in Lending Act is in the nature of a setoff and was properly dismissed as barred by the one year statute of limitations of 15 U.S.C. § 1640(e); and (2) whether the plaintiff’s suit should have been dismissed because the loan contract upon which the action was premised failed to meet the disclosure requirements of § 5-18-16(a)(l) of Alabama’s Small Loan Act. We hold that the trial court properly determined that defendant’s counterclaim was time barred but that it erred in failing to dismiss plaintiff’s complaint for a violation of § 5-18-16.

The plaintiff, Beneficial Finance Company, sued defendant Darrow on a note of indebtedness. The defendant filed a motion to dismiss on the grounds that plaintiff had violated the disclosure requirements of the Alabama Small Loan Act, Code of Ala.1975, §§ 5-18-1 et seq. Defendant also filed a counterclaim alleging violations of the disclosure requirements of the Federal Truth in Lending Act (hereinafter TILA), 15 U.S.C. §§ 1601 et seq. (1974). From a judgment for the plaintiff in circuit court on both the motion to dismiss and the counterclaim, the defendant appeals.

The facts in this case are not in dispute. The plaintiff and defendant entered into a loan contract in the amount of $300 on June 6, 1972. The debt was secured by the defendant’s furniture and automobile. At the time of the transaction, the plaintiff gave the defendant a number of documents which include a copy of the loan contract and a security agreement.

The defendant defaulted on the loan in November 1973, and plaintiff successfully brought suit in district court. The defendant appealed to the circuit court and thence here.

The plaintiff is a licensee under Alabama’s Small Loan Act. Because the amount of the loan was $300, the transaction comes within the provisions of Alabama’s Small Loan Act.

The defendant contends that the trial court improperly dismissed his counterclaim against the plaintiff as time barred. The defendant argues this is so because a TILA counterclaim is in the nature of a recoupment rather than a setoff and thus is not subject to the statute of limitations which applies to setoffs under Code of Ala. 1975, § 6-8-84.

This court is not unfamiliar with the issue. In Hewlett v. John Blue Employees Federal Credit Union, Ala.Civ.App., 344 So.2d 505 (1976), cert. denied, Ex parte Hewlett, Ala., 344 So.2d 509 (1977), we held that counterclaims based on disclosure violations of the Federal TILA are in the nature of setoffs and not recoupments. Therefore, the “relation back” doctrine of ARCP 13(c) will not save defendant’s counterclaim from the applicable statute of limitations unless it is a legally subsisting claim at the time the plaintiff’s cause of action arises. Hewlett at 507; Code of Ala.1975, § 6-8-84. The statute of limitations applicable to the instant case is one year from the date of the violation, 15 U.S.C. § 1640(e), which is held to occur, if at all, when the loan contract is consummated. Wachtel v. West, 476 F.2d 1062 (6th Cir.), cert. denied, 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114 (1973).

In the instant case, any violation by plaintiff of the disclosure requirements of the TILA occurred on the day the loan contract was signed, June 6, 1972. The plaintiff’s cause of action for breach of that contract did not arise until defendant’s default more than seventeen months later, i. e., November, 1973. At this later date, the defendant no longer had a legally subsisting claim based on violations of the disclosure provisions of the TILA. Defendant’s counterclaim is therefore barred by the one year limitation period of 15 U.S.C. § 1640(e). Compare Hagler v. Ford Motor Credit Corp., Ala.Civ.App., 367 So.2d 468 (1978), cert. denied, 367 So.2d 470 (1979).

The defendant however argues that we should reverse Hewlett contending, inter alia, that the recent decision of our supreme court in Campbell v. Regal Typewriter Co., Inc., Ala., 341 So.2d 120 (1976), substantially changes the law of Alabama regarding set-off and recoupment. Defendant additionally maintains that federal law in this area is controlling and contrary to Hewlett. We disagree.

The defendant contends that because a TILA counterclaim is a federally created cause of action, federal law controls. He cites this court to several recent federal district court cases which hold that because a TILA counterclaim arises out of the same transaction or occurrence as the creditor’s claim, it is considered a compulsory counterclaim, i. e., a recoupment.

While this court gives due regard to these cases as persuasive authority, they are not controlling. As a general rule, the determination of whether a counterclaim is a setoff or a recoupment relates to the remedy and not the right of action. 80 C.J.S. Set-Off & Counterclaim § 13b (1953). It is well settled that in matters of procedure and remedy, the law of the forum governs. Connell v. United States Steel Corp., 516 F.2d 401 (5th Cir. 1975); Macey v. Crum, 249 Ala. 249, 30 So.2d 666 (1947). Therefore, the characterization of defendant’s counterclaim as a setoff is a matter governed solely by Alabama law.

Regarding the Alabama law of setoff and recoupment, Campbell did not, contrary to defendant’s assertion, make any substantial changes. See also Cooper v. Reaves, Ala., 365 So.2d 670 (1979). In fact, Campbell and Reaves expressly state that the traditional law in this area was not changed by the adoption of the Alabama Rules of Civil Procedure. The doctrine in ARCP 13(c), that all counterclaims relate back to the time the plaintiff’s cause of action arose, must be read in harmony with the requirement of Alabama Code 1975, § 6-8-84. Section 6-8-84 provides, however, that a setoff must be a legally subsisting claim at the time the plaintiff’s cause of action arose. ARCP 13(c), Committee Comments. Under our traditional definition, the defendant’s TILA counterclaim is a setoff because it arises not from the mutual rights and obligations of the parties to the contract but as a penalty for a violation of federal law. Hewlett, supra. See also Spartan Grain & Mill Co. v. Ayers, 581 F.2d 419 (5th Cir. 1978).

Because the defendant’s counterclaim is barred in this instance by the one year statute of limitations, we find no error with respect to this part of the trial court’s order.

Defendant additionally contends that the trial court improperly denied his motion to dismiss plaintiff’s suit. Specifically, defendant maintains that the plaintiff violated the disclosure provisions of § 5-18-16(a) of Alabama’s Small Loan Act which require the lender, among other things, to identify the collateral for the loan in clear and distinct terms. Because § 5-18-21 provides that an action on a small loan is to be dismissed at the cost of the plaintiff if any of the provisions of the Act have been violated, the defendant argues that the trial court erred in failing to dismiss plaintiff’s complaint.

The disclosure provisions of the Small Loan Act are set forth in § 5-18-16 which provides in pertinent part:

(a) . . . Every licensee shall:
(1) At the time a loan is made deliver to the borrower ... a copy of the loan contract or a written statement in the English language showing in clear and distinct terms:
h. The collateral or security for the loan.

At the outset we observe that there are no cases interpreting the above quoted provision; however, this court will not allow the purposes of the Act to be eroded by indirection. New Finance, Ltd. v. Ellis, 284 Ala. 374, 225 So.2d 784 (1969). It is incumbent upon this court to interpret the statute according to its plain meaning, giving it a construction which subserves the legislature’s intent. Adams v. Mathis, Ala., 350 So.2d 381 (1977). See also New Finance, supra. In this instance we are guided by the legislative findings of fact and declaration of intent set forth in § 5-18-2 where it is provided that one of the purposes of the Act is “to eliminate practices that facilitate abuse of borrowers.”

Section 5-18-16 imposes an express requirement upon a lender at the time of the transaction to furnish the borrower a document disclosing the information enumerated in the statute. The document which the creditor furnishes the debtor may be either a copy of the loan contract or a written statement. Either of these documents must be written “in the English language” and “show in clear and distinct terms ” the collateral for the loan.

In the instant transaction, the plaintiff, at the time of the loan, furnished the defendant a number of documents, two of which are pertinent to a violation of § 5-18-16. The defendant was given both a copy of the loan contract and a security agreement. On each of these printed form documents there are two boxes provided which can be checked to indicate the collateral for the loan; one labeled “furniture,” the other labeled “auto.” On both documents only the box labeled “furniture” is checked. However, at the bottom of the security agreement document, the defendant’s automobile is listed in addition to furniture. It is the plaintiff’s contention that the security agreement identifies the collateral for the loan in clear and distinct terms. We disagree.

While there is no question that the security agreement in and of itself can be considered to be a written statement in the English language which shows the full extent of the collateral which secures the debt, the copy of the loan contract clearly does not fully disclose the security interest inasmuch as there is no clear and distinct identification on that document of the fact that the debtor’s automobile as well as his furniture secures the loan. Thus, to this court it is readily apparent that where, as here, two or more documents purport to identify the collateral for a small loan, and one of the documents secures to the creditor additional collateral than that to which he is secured under another document, there is not a clear and distinct identification of the collateral which secures the loan as required by § 5-18-16. Put another way, where one document specifies that “X” is collateral and another document provides that “Y” in addition to “X” is the security for the note, there has not been a clear and distinct identification of the debtor’s property which secures the transaction.

To further substantiate what we have said, we observe that our Small Loan Act is a remedial statute. Echols v. Star Loan Co., 290 Ala. 76, 274 So.2d 51 (1973). Inasmuch as the protection of the Act afforded the makers of small loans is only viable where the disclosure of crucial information is made in clear and distinct terms, any other disclosure is misleading and does not comport with the stated purpose of the Act, i. e., to eliminate practices that facilitate the abuse of borrowers.

Because § 5-18-21 specifies that any violation of the Act requires the dismissal of the creditor’s suit, the trial court erred to reversal by improperly denying defendant’s motion to dismiss plaintiff’s complaint.

For reasons stated above, the judgment of the circuit court is affirmed regarding the defendant’s TILA counterclaim, but is reversed with respect to the defendant’s motion to dismiss under the Alabama Small Loan Act. This ease is therefore remanded with directions to enter a judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY-OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


author: SHORES, Justice.

text:
    Ex parte Robert DARROW.
    78-470.
    Supreme Court of Alabama.
    May 25, 1979.
   SHORES, Justice.

Writ denied.

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


text:
    Grady BARFIELD, Jr. v. GENERAL STEEL TANK COMPANY, a corporation.
    Civ. 1676.
    Court of Civil Appeals of Alabama.
    March 7, 1979.
    Rehearing Denied April 4, 1979.

      J. Earl Langner, Birmingham, for appellant.
    William A. Scott, Jr., Wayne Morse, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

After an ore tenus hearing, the trial judge found that the employee’s action for benefits was barred by the one year statute of limitations set forth in Code of Ala.1975 § 25-5-80. The employee appeals. We affirm.

The record, viewed with its attendant presumption, reveals the following: The employee has worked for the employer for approximately ten years. He successfully claimed workmen’s compensation benefits on a number of occasions in the past.

On January 22, 1974, the employee allegedly received a work related injury to his back. On that date, after getting permission from his foreman, he left work and did not return for approximately six months. During this time, the employee had surgery on his back. After his recovery, he returned to his place of employment.

Prior to returning to work, the employee informed a Mr. Evesque, the company comptroller, that he wished to file a claim for workmen’s compensation benefits. The comptroller informed the employee that because the shop foreman, a Mr. Tommy Watson, did not file a certain form showing that the employee was injured on the job, he (Mr. Evesque) would investigate the claim.

The record further reveals that subsequent to the employee’s conversation with Mr. Evesque, the company informed the employee that Mr. Watson was of the opinion that the injury was not job related. The employee brought an action for benefits on April 23, 1975, three months after the statute of limitations had run.

At trial, the employee contended that the company had through fraud prevented him from timely seeking benefits under the Act. Specifically, the employee maintained that at the time he informed the company of his intent to claim benefits in May, 1974, the company promised to investigate the matter and communicate its decision to accept or reject the claim, which it failed to do. Thus, it was argued that the company’s failure to inform the employee of its decision to deny benefits acted as a fraud upon the employee and tolled the one year statute of limitations.

The trial court found no evidence of fraud and held the claim barred by the statute of limitations.

The dispositive issue on appeal is whether there is any evidence to support the trial court’s conclusion that there was no fraud on the part of the employer which would toll the statute of limitations.

Initially, we observe that in workmen’s compensation cases, if there is any legal evidence to support the trial court’s findings, those findings will not be disturbed on appeal. Republic Steel Corp. v. Kimbrell, Ala.Civ.App., 370 So.2d 294 (1979).

The principle enunciated in Dorsey v. United States Pipe & Foundry Co., Ala., 353 So.2d 800 (1977), that fraud may toll the one year statute of limitations in workmen’s compensation cases, is dispositive of the instant appeal. In Dorsey, the supreme court stated:

We hold . . . that when acts are done by the employer which lead the employee to believe that liability under the statute is admitted and will not be contested, or where the acts of the employer either falsely misrepresent to the employee or fraudulently conceal from him the truth of the facts upon which the liability of the employer depends, the running of the statute of limitations may be tolled . . . . 353 So.2d at 803.

In this instance, there is no allegation that the employer falsely admitted its liability for workmen’s compensation benefits. In fact, the evidence shows that the company, at all times pertinent to this dispute, took the position that the injury was not job related and thus they would not concede liability. Consequently, the first portion of the test set forth in Dorsey is not applicable here.

With respect to the employer’s alleged fraudulent misrepresentation or concealment, the employee, as we perceive his argument, contends that the company’s failure to communicate its decision to deny liability amounts to a fraudulent misrepresentation or concealment of the facts upon which the employer’s liability depends. Because it is alleged that the company did not communicate to the employee its decision to deny liability, it is argued that this concealment falsely misled the employee from timely pursuing his remedy. As set forth below, the facts in this instance belie the employee’s claims of fraud.

The record conclusively indicates, from the testimony of both the employer and the employee, that the employee was timely given notice that the company would deny liability because it considered the injury nonwork-related. On cross examination, the employee admitted that he timely knew the company would deny the claim and the reasons therefor:

Q All right. Were you also told . before you obtained the services of an attorney that they were not going to honor this alleged claim of a back injury on the job?
A Yes, sir.
Q And it was denied to you?
A That’s right.
Q Yes, sir. And that was done when? September of ’74?
A I can’t recall the month. That was done the time I had the union trying to get in touch with them to pay my doctor bill and everything. The President of the union went out and talked to them. That is when . . Mr. Evesque . told me that they were not going to pay. It was my word against Mr. Tommy Watson, and he was going to take Mr. Tommy Watson’s word.
Q Yes, sir.
A So I had to go get somebody to try to help me out.
Q Do you know when that was?
A I can’t recall the date.
Q Well, it was before January 1975, wasn’t it?
A I don’t know. I know it was before then, yes, sir.

Based upon this testimony and that of the employer, the trial court did not err in reaching the conclusion that the employee’s claims of fraud were unfounded. Consequently, we find no error in the learned judge’s dismissal of the employee’s action as time barred.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Ex parte Grady BARFIELD, Jr.
    78-473.
    Supreme Court of Alabama.
    May 25, 1979.
   MADDOX, Justice.

Writ denied.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    Marion F. ROBERSON v. James Ronald ROBERSON.
    Civ. 1724.
    Court of Civil Appeals of Alabama.
    March 7, 1979.
    Rehearing Denied April 4, 1979.

      G. Houston Howard, II, of Howard & Dunn, Wetumpka, and Ralph H. Ford of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
    Theron O. McDowell, Jr., and J. Myron Smith, Prattville, for appellee.
   HOLMES, Judge.

This is an appeal by the appellant-mother from a decree of the Circuit Court of Au-tauga County modifying an earlier decree and awarding custody of the parties’ three minor children to the father.

A close examination of the lengthy record reveals the following: The parties were separated in early 1977 and divorced on July 21, 1977. Pursuant to an agreement incorporated into the final divorce decree, the wife was given custody of the parties’ three minor children and the husband was given reasonable visitation rights. The wife was also given all the furniture, household goods and contents of the marital home.

In April, 1978, the husband petitioned to modify the original decree. He alleged that he was unaware of facts at the time of the initial decree which would have, if he had known them, precluded him from entering into the agreement with respect to granting the wife custody of the children. In essence, he contended that the mother was an unfit and improper person to have custody because she had engaged in immoral conduct before their separation.

Prior to our discussion of the facts in this case, we observe that contrary to the wife’s contention in this instance, facts which were known but not disclosed to the trial court in the original divorce proceeding may be considered in a proceeding to modify custody, notwithstanding the fact that these facts do not relate to a change in circumstances subsequent to the original decree. Smith v. Smith, Ala.Civ.App., 334 So.2d 915 (1976). As discussed more fully below, material undisclosed facts prior to the decree, or facts showing a subsequent material change after the original decree which support a modification may be appropriate for the court’s consideration. Smith, supra.

The petition to modify was heard ore tenus in August 1978. The testimony taken from the twenty-nine witnesses who appeared on behalf of the parties was sharply disputed, both as to events and conditions prior and subsequent to the original decree.

With respect to the husband’s allegation that his wife had committed immoral acts which rendered her unfit for custody of the children, which is the basis for the trial court’s award, the record reveals the following:

A Mr. Whiddon, an employee of the husband, testified on the husband’s behalf that a few months prior to the parties’ separation, he and Mrs. Roberson and two of the minor children were alone in the Roberson home. Whiddon’s presence in the home was occasioned by Mrs. Roberson’s telephone invitation to him to visit her there. According to Whiddon’s testimony, shortly after arriving at the residence, Mrs. Roberson enticed him into a bedroom at which time she performed an act of oral sex upon him. He further testified that because Mrs. Roberson’s two minor children were crying and beating on the locked bedroom door, he became nervous and left. In addition, Whiddon testified that Mrs. Roberson had kissed him on another occasion when the children were nearby. The wife strongly disputed the veracity of this testimony.

Mr. Dunlap, another employee of the husband, testified on behalf of the husband that he had occasions to be alone with Mrs. Roberson at the husband’s dental clinic. On these occasions, the minor children were not present. Dunlap stated that he had never physically touched Mrs. Roberson but that they had discussed her marital difficulties including her sex life.

Nancy Hudgens and her nineteen year old daughter, Donna, next door neighbors of the Robersons, testified for the husband. Mrs. Hudgens blamed the demise of her marriage on Mrs. Roberson. She stated that on one occasion she left for work, returned after a few minutes and that her husband had gone next door to the Roberson residence. She could not testify as to the whereabouts of the Roberson children at the time nor to anything that occurred in the Roberson home on the occasion.

Donna Hudgens, herself recently divorced, testified she had observed her father and Mrs. Roberson kissing on more than one occasion at the Hudgens’ home. On these occasions the Robersons’ children were not present.

From evidence introduced by the wife, the record tends to show that since the original decree, the children’s welfare has substantially changed for the better. In essence, the evidence indicates that the unsettled environment occasioned by the divorce in 1977 has considerably stabilized in the past fifteen months.

The mother has remarried. She and her new spouse, Mr. Riley, reside in a large, older home which is more than adequate to conveniently accommodate them, his daughter and the three Roberson children. Both are employed as real estate sales persons. Mr. Riley is also a registered pharmacist.

Mr. Riley testified that he loves the children and there is evidence that the children love and accept him as their father. There is further evidence that he wishes to undertake the responsibility for raising and caring for the children. The family attends church regularly and Mrs. Riley teaches Sunday School. The family frequently enjoys outings together.

There is evidence that prior to the divorce decree, one of the minor children was emotionally disturbed and continually nervous. Another developed a speech difficulty, i. e., stuttering. The evidence indicates that these conditions have steadily improved since the wife was originally given custody of the children. The oldest child is doing well in school.

. After the trial court heard the above noted testimony, it found the welfare of the children would be better served if custody was given to the father. In addition to changing custody, the court awarded the husband all the furniture and household goods which were previously given the wife in the initial property settlement. The wife appeals.

The dispositive issues on appeal are (1) whether the court below erred in changing custody of the children from the wife to the husband and (2) whether the court could modify the prior division of the parties’ property.

The wife initially contends that the court below erred when it divested her of title to personal property which was granted her in the original decree. We agree.

It is well settled that a property settlement award cannot be modified after it becomes final. McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977). Because the trial court’s order improperly attempted to modify a property division which was final, this portion of the court’s decree is reversed.

The wife additionally contends that the court below erred in changing the original custody decree. At the outset we set forth the well settled principles which are applicable to this contention.

The question of custody is never res judicata. Quintanilla v. George, Ala.Civ. App., 340 So.2d 804, cert. denied, Ex parte Quintanilla, Ala., 340 So.2d 808 (1976). This is so because the prevailing consideration in child custody matters is the best interest of the child. Smith v. Smith, supra.

A custody decree will not be modified unless conditions are shown which affect the welfare of children. Nelson v. Nelson, Ala.Civ.App., 354 So.2d 1142, cert. denied, Ex parte Nelson, Ala., 354 So.2d 1144 (1978); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214 (1975). In order to justify a modification, the moving party must convincingly demonstrate that either a material change of circumstances has occurred since the original decree or that material facts existing at the time of the original decree were undisclosed to the court, either of which justify the change. Nelson and Smith, supra. The petitioner’s burden of proof in such cases is a heavy one inasmuch as (1) the original decree is presumed correct, (2) there must be a substantial reason for the change, and (3) the surrounding circumstances affect the welfare of the children. Gould, supra; Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970).

With respect to the modifications premised on the moral unfitness of the mother with whom custody of the children was originally vested, it has long been held that while indiscreet conduct is a factor to consider, a mother will not be denied custody for every act of indiscretion or immorality. Gould, supra. This rule obtains especially where the party seeking modification fails to establish a substantial detrimental effect by the immoral conduct on the welfare of the child. Rowe, supra.

Applying theses principles to the instant case, we are compelled to reverse the remainder of the decree of the court below. We are of the opinion that the husband has not met his burden of proof in showing a substantial change of circumstances since the decree, or material facts, though undisclosed prior to the original decree, which justify a change of custody.

As we noted above, even assuming the husband’s evidence to be undisputed, this testimony in essence shows a single isolated act of impropriety on the part of the mother. Furthermore, the occurrence of the sexual act in question was vigorously disputed by the wife and, more importantly, although it was alleged to have been committed while the children were in the Roberson home, it was not in their presence. The remaining testimony which relates to the mother’s unfitness, particularly that of Mr. Dunlap, at best tends to indicate indiscretion on her part. But here again, there is no proof that it occurred in the children’s presence or that it had a direct bearing on their welfare.

Because a mother will not be deprived of the custody of her children for every act of immorality, especially where it cannot be said that the act adversely affected the children, Rowe, supra, we are of the opinion that the husband’s proof is insufficient to support a change in custody for this reason.

More importantly, and with respect to the paramount consideration in this case, i. e., the welfare of the children, the record supports the conclusion that the family environment in which the children now live has changed considerably for the better. As noted above, the emotional problems which two of the children were experiencing have visibly improved since the divorce. The mother has remarried and she and her new spouse are providing a stable home environment. All of the individuals in the new home appear to love and appreciate each other.

In addition, as noted previously, the family goes to church regularly and they enjoy companionship on their frequent recreational outings. Thus, contrary to concluding that there has been an adverse change in circumstances, it would appear the welfare of the children has improved.

While we are mindful that the conclusions of the trial judge are to be given due weight in cases such as these, we are equally cognizant of the fact that the delicate issue presented by each of them is a hard and difficult question to resolve. No court, appellate or otherwise, has the wisdom or insight to know in uncertain terms that its action with respect to the children is the proper course to pursue. We can only painstakingly review the record and with great deliberation resolve the matter in order to safeguard the best interest of the children. After such deliberation, it is our conclusion, based upon the foregoing, that the best interests of the children would be served by maintaining the status quo and for reasons set out hereinabove the trial court is due to be reversed.

We would further note that both the mother and father would be well advised to concentrate their efforts on the best interest of the children. The children need to have the guidance and love of both their parents. Constant litigation regarding child custody is seldom, if ever, in the best interest of children.

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

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

ON REHEARING

HOLMES, Judge.

In brief in support of his application for rehearing, the husband contends that our original opinion of March 7, 1979, omitted facts which it is argued demonstrate that the husband met his burden of proving the mother unfit for custody of the parties’ children.

In particular, it is asserted that there was evidence presented at trial that the mother openly exhibited sexual misconduct in the children’s presence. In deference to the husband, we set forth additional facts which he deems pertinent to this contention, although, as we originally stated, these do not support the conclusion that this petitioner has overcome the burden attendant in cases such as this.

In our original opinion, we stated that a Donna Hudgens observed the mother and Donna’s father kissing at the Hudgens home at which time the children were not present. The record indicates that this witness additionally testified that she had observed similar conduct on other occasions in the Roberson home when the children were present. It is significant, however, that she additionally stated she had never observed any sexual conduct, i. e., immorality on these occasions.

As we originally stated, aside from the single act of impropriety on the part of the mother, the occurrence of which is disputed, the remaining testimony, when read in its entirety, including that mentioned above, at best tends to show indiscretion on the mother’s part.

We further observe that this evidence loses much if not all of its probative value in view of the fact that the difficulties which the children were experiencing prior to the divorce have visibly improved. Thus, it cannot be successfully contended that this conduct had an adverse direct effect on their welfare.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: BEATTY, Justice.

text:
    Ex parte James Ronald ROBERSON.
    78-468.
    Supreme Court of Alabama.
    May 25, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    The ARROW COMPANY v. STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS and Doris R. Dobbins.
    Civ. 1629.
    Court of Civil Appeals of Alabama.
    March 14, 1979.
    Rehearing Denied April 18, 1979.
    T. W. Thagard, Jr., and David R. Boyd, Montgomery, for appellant.
    George C. Longshore, Birmingham, for appellee-claimant.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case. Employer appeals from the trial court’s award of benefits to the claimant for the week beginning December 29, 1974 and ending January 4, 1975. We reverse.

The claimant worked at employer’s Al-bertville plant. She was subject to a collective bargaining agreement entered into by employer and the Amalgamated Clothing Workers of America. This agreement contained the following language concerning vacations:

“(i) The summer vacation period, which shall be such consecutive two-week period between July 1st and August 30th as the Employer shall designate, and,
“(ii) The winter vacation period, which shall be a one week period during the last two weeks in December in each year. . (Emphasis added).
“In the event that a paid holiday falls within either vacation period, employees entitled to holiday pay shall be entitled to such holiday pay in addition to the vacation pay hereinafter provided. (R. 68). “(1) Time of Payment: Vacation pay shall be paid on the payday immediately preceding the vacation period.” (R. 69).

Several months in advance the employer notified its employees that the “winter vacation period” was to begin on December 25 and end December 31, 1974. Sometime thereafter, the employer decided to close its Albertville plant for the entire two-week period beginning December 23 and ending January 5. On Friday December 20, the last payday before the vacation period, claimant received a paycheck. This check included claimant’s pay for the winter vacation period and holiday pay for Christmas and New Years. Claimant was paid twice for Christmas day since it fell during the vacation period. Claimant was not paid for December 23 and 24, and January 2 and 3, the four days during which the plant was closed before and after the winter vacation and New Years holiday.

Claimant first sought unemployment compensation for the entire two payroll weeks ending December 29, 1974 and January 5, 1975. The Unemployment Compensation Agency denied benefits on the ground that the vacation and holiday pay received by claimant for the two weeks in question exceeded the “weekly benefit amount” as provided in § 25-4-72, Code of Alabama (1975). This result was computed as follows: Claimant received four days’ pay (three vacation days plus Christmas day twice) for the first week totaling $81.58. Her check also included three days’ pay for the second week, $60.70 (two vacation days plus New Years day). Each of these amounts exceeded claimant’s weekly benefit amount of $53.

After administrative hearings, claimant appealed to circuit court where she was awarded a full week’s compensation benefits for the second week of the plant shutdown. In its decree, the court said that the employer should not be allowed to have one week of vacation fall into two different calendar weeks, thus depriving the claimant of a week of unemployment compensation. The court stated that claimant should have received vacation pay during the first week and unemployment compensation during the second week in which the plant was not operating. We think the trial court erred in its ruling and therefore must reverse and render judgment for the employer.

It is generally held that the employer has absolute discretion in scheduling vacations, limited only to the extent that this right is expressly restricted by the applicable collective bargaining agreement. Darling v. Electric Auto-Lite Co., 4 Wis.2d 345, 90 N.W.2d 597 (1958). In the present case, the only limitation upon the employer’s right to schedule a winter vacation is that it “be a one-week period during the last two weeks in December.”

The claimant argues that the issue is not whether the employer can schedule a one-week vacation beginning in the middle of a calendar week but instead whether the employer can designate a one-week vacation to fall within a two-week shutdown in such a manner that employees may lose otherwise compensable unemployment benefits. Claimant cites authority from other jurisdictions for the proposition that vacation pay should be attributed to the week or weeks immediately following receipt of the pay. Parker v. Board of Review, 196 Pa. Super. 344, 174 A.2d 664 (1961); Bradshaw v. California Employment Stabilization Commission, 46 Cal.2d 608, 297 P.2d 970 (1956); Kelly v. Administrator, Unemployment Compensation, 136 Conn. 482, 72 A.2d 54 (1950); Hubbard v. Michigan, 328 Mich. 444, 44 N.W.2d 4 (1950); Grobe v. Board of Review, 409 Ill. 576, 101 N.E.2d 95 (1951). These cases cited by claimant deal with various aspects of vacation pay, severance pay, and bonus pay. However, none can be said to stand for the proposition argued by claimant; /. e., that vacation pay must be attributed to the time immediately after receipt. Some of those cases place reliance upon the employment contract as determinative of when the pay is attributable. In the present case, there seems to be no contract provision governing. There is a section in the collective bargaining agreement before us that provides when vacation pay is actually to be paid; that is the payday immediately preceding the vacation period, which was Friday, December 20. However, this does not solve the problem of what days or weeks the pay should be attributed to.

Our court has held that holiday pay received by employees is paid “with respect to the week in which the holiday occurs” for purposes of the unemployment compensation statute providing that an individual is totally unemployed when he receives no wages or performs no services for a particular week. § 25-4-71, Code of Alabama (1975); Autwell v. State Department of Industrial Relations, 47 Ala.App. 8, 249 So.2d 625 (1971).

We think the principle set down in Autwell should govern the present situation also. Our cases have held, as have those of most jurisdictions, that the receipt of vacation pay for a specified time will serve to disqualify a claimant from receiving unemployment compensation for that same period of time. Speagle v. United States Steel Corporation, 39 Ala.App. 559, 105 So.2d 721 (1958). See also cases annotated at 30 A.L.R.2d 366. Under Autwell, the vacation pay must be deemed earned by claimant during the week of the scheduled vacation. Since the employer scheduled the vacation to overlap into two different calendar weeks, claimant had a proportionate amount of earnings in each of the weeks. This resulted in this instance in claimant’s earnings in each week exceeding her weekly benefit amount and disqualified her from receipt of any unemployment compensation for those weeks.

In analyzing the situation before us, we note that claimant would have been entitled to some days of unemployment compensation for one week of the plant’s shutdown if the employer had scheduled the vacation to fall within the first calendar week of the shutdown. However, this was not the case. The employer scheduled its employees’ vacation for the last seven consecutive days of December. This was one of the “last two weeks in December,” though it was not a “work week” (Monday through Friday) or a Biblical or calendar week (Sunday through Saturday). It was the last seven consecutive days and thus a “week.” 45 Words and Phrases 10. In 1974, as in most years, the last two calendar weeks of December did not begin either on a Monday or a Sunday. We consider that the employer scheduled the vacation within the terms of the agreement. If such vacation, together with attendant paid holidays, came within a period of plant shutdown and resulted in a loss of unemployment compensation by the claimant to which she might have been entitled had the employer been required to act otherwise is not a matter for redress here. It would appear to be properly addressed by future collective bargaining. There is some indication in the record that the Christmas vacation had been scheduled in the same manner in two previous years.

It is well to keep in mind the purpose of the unemployment compensation law. That purpose being to provide a worker with funds to avoid a period of destitution after having involuntarily lost his employment and thus his income. It aids in sustaining him while he looks for other employment. It is limited in time and amount. It is not a gratuity. Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970).

The trial court having misapplied the law to the facts, its judgment must be reversed, and judgment rendered for the employer.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Doris R. DOBBINS.
    78-492.
    Supreme Court of Alabama.
    May 25, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Rose Mary GANDY v. William D. GANDY.
    Civ. 1646.
    Court of Civil Appeals of Alabama.
    March 21, 1979.
    Rehearing Denied April 18, 1979.
    Olin W. Zeanah and Larry Bradford, of Zeanah, Donald & Hust, Tuscaloosa, for appellant.

      John A. Owens and Barrie Balzli Stokes, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a divorce case.

The parties were married in 1965; separated in August, 1977; and divorced in September, 1977, on the grounds of the wife’s adultery. Both parties sought custody of the three minor children.

The trial court, after a lengthy ore tenus hearing, awarded custody of the eldest child, a twelve year old female, to the wife. The other children, a daughter age nine and a son age 6, were awarded to the father. The wife appeals contending that the trial court erred to reversal in not awarding custody of all three children to her.

The pertinent facts, when viewed with the attendant presumption accorded the trial court, reveal the following: Both parties were employed during the marriage. The wife worked the evening shift until 1976. It was therefore the responsibility of the husband to care for the children when he returned home from work, feeding, bathing, and putting them to bed. There is evidence that he performed extensive domestic chores at home from the time the children were infants until the present.

Aside from having a major role in caring and raising the children, the record further indicates that the husband placed great emphasis on their spiritual well-being. There is evidence that the husband is a dedicated church member and that he took the family to church regularly.

In 1976, the wife was promoted to an office position at her place of employment. The record reveals that upon this occurrence, she began to undergo a dramatic change in her life style. She removed her wedding rings and refused to wear them. She ceased attending church with the family, choosing instead to ride her horses. She began to arrive home late at night during the work week with alcohol on her breath. She had an affair with a married man and admitted to having sexual intercourse with her paramour. She testified that she was “proud” of her conduct, that she was sorry if it destroyed her marriage but that she had an obligation to herself.

The record further reveals that the wife publicly conducted herself in keeping with her new life style on other occasions. The parties were members of the Northport Riding Club; however, the husband terminated his membership when the club began permitting alcoholic beverages on the premises. The wife continued her membership and the record reveals, enjoyed socializing with club members of the opposite sex. When the parties attended the club together, the husband was responsible for caring for the children while the wife amused herself.

With respect to the wife’s conduct as that relates to the welfare of the children, there is evidence that she and her paramour openly exhibited affection for one another in the presence of the children. The eldest child was visibly upset as a result of this display. We would note, however, that the record is devoid of any facts which indicate that there occurred any sexual misconduct on these occasions.

There is further evidence that the wife lacks discipline in controlling her temperament toward the children. Testimony indicates that she is inclined to subject the children to excessive emotional punishment.

The record further indicates that of the three children, the eldest is a difficult child to control. The child apparently fosters a great deal of hostility toward her father and on occasion exhibits antagonism toward her younger brother and sister whom she is prone to “pick on.” At trial, this child expressed a preference to live with her mother.

At the outset, we observe that in cases such as these, it is the duty of this court to affirm the decree in controversy, where the decree is supported by credible evidence. Wells v. Wells, Ala.Civ.App., 346 So.2d 442, cert. denied, Ex parte Wells, Ala., 346 So.2d 444 (1977); Keele v. Keele, Ala. Civ.App., 347 So.2d 1360 (1977).

The prevailing consideration in child custody matters is the best interest of the child. Stilwell v. Stilwell, Ala.Civ.App., 357 So.2d 355 (1978); Smith v. Smith, Ala.Civ. App., 334 So.2d 915 (1976). In determining that which is in the best interest of the child, courts may consider facts relating to the present and future welfare of the child, ties of affection resulting from years of association between the child and its parents, and facts which relate to the relative fault of the parties in terminating the marital relationship. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975).

The wife initially contends in essence that there is no factual basis to support the award of custody of the two youngest children to the husband. It is contended that the affair with her paramour and the two attendant adulterous incidents are insufficient to justify the grant of custody of these children to the husband.

While we agree that a mother will not be denied custody of her children for every act of indiscretion or immorality, Roberson v. Roberson, Ala.Civ.App., 370 So.2d 1008 (1979), in this instance the record reveals that there are other factors which directly affect the best interests and welfare of the children which justify the trial court’s decree.

As we noted above, the husband figured prominently in caring for the children, both materially and spiritually, from their infant years to the present. The husband’s dedication to his children, viewed as it must be in light of the wife’s social attitudes and behavior, support the award. Thus, we cannot say that in this instance the trial court abused its discretion in determining the best interest of the children would be better subserved by granting custody to the father.

The wife next maintains that the trial court erred in separating custody of the children between the parties. The wife relies upon Pettis v. Pettis, Ala.Civ.App., 334 So.2d 913 (1976), as authority that children have a need to be together and their separation should be permitted only out of extreme necessity. Although this court generally disapproves of separation arrangements, we are of the opinion that the decree is justifiable in this instance.

In Pettis, supra, we held that a separation of children may be warranted in certain extreme circumstances. Without setting forth in detail facts in support of the decree, we are of the opinion that the decree amply sets forth the circumstances, which are supported by evidence, demonstrating a necessity for separation in this case.

The decree pertinently is as follows:

7. The Court finds that the oldest child, Tammy Denise Gandy, who is 12 years old, is an exceptionally rebellious and difficult child to control. This was agreed to in testimony by both parties and other witnesses for both parties. She is obviously hostile to her father. When called as a witness in presentation of Plaintiff’s case, she was almost wholly an untruthful witness. She denied many happenings which even her mother admitted. The Court did not feel that this child’s untruthfulness or hostile attitude was wholly unprompted. Tammy expressed a preference to be placed in the custody of her mother.

In addition to the above, there was testimony that the paternal grandmother desired to assist in the “raising” of Tammy.

Given this child’s hostile attitude toward her father and toward her brother and sister, and her stated preference to live with her mother, the ordered separation unquestionably promotes the best interest of the children. We are aware as well of the fact that this arrangement, in view of the child’s age pragmatically recognizes the impracticability of judicially forcing a child to live with a parent whom she does not want to live with. Thus, we find no error with respect to this contention. We would further note that in this instance the father has not countered on appeal that the trial court committed error in awarding custody of Tammy to the mother.

In addition to the above, the wife, through able and distinguished counsel who has favored this court with an excellent brief, contends that the trial court erred to reversal in refusing to allow the nine year old child to testify concerning her preference for custody. We do not agree.

The law of this state is well settled that the trial court, at its discretion, may consult a child with regard to its preference to live with either parent. McGrady v. Brown, 230 Ala. 484, 161 So. 475 (1935). In cases where such testimony is allowed, it is not binding on the court. Rogers v. Rogers, Ala.Civ.App., 345 So.2d 1368 (1977).

In this instance, the trial court allowed the testimony of the eldest child’s preference, but apparently it concluded that the testimony of the younger daughter was not required. It appears from the record that the court was concerned with the possibility that the wife had molded the testimony of a child of impressionable age. Additionally, we recognize the psychological implications to a child attendant in probing this sensitive issue. See, e. g., Turner v. Bynum, 56 Ala.App. 489, 323 So.2d 377 (1975), cert. denied, 295 Ala. 426, 326 So.2d 120 (1976). Therefore, we cannot say that there was an abuse of discretion in this case. See McGrady, supra.

We are further of the opinion that in any event, any error in disallowing the testimony would be harmless. This is so because, as we noted above, such testimony is clearly not binding on the court. Rogers and Turner, supra. Furthermore, there is evidence to support the trial court’s decree notwithstanding the exclusion of the proffered testimony. See ARAP, Rule 45.

Finally, the wife argues that the trial court abused its discretion in failing to conduct the trial and permit the orderly presentation of evidence. Specifically, the wife contends that the trial court interfered with the examination of witnesses with its questions and by calling witnesses of its own. Suffice it to say that we have carefully reviewed the record regarding these allegations and find no abuse. While we do not necessarily condone some of the trial court’s actions, or consider them necessary or desirable, we find no reversible error. This is so because considerable latitude of discretion is accorded the trial court in the conduct and regulation of its trial. Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277 (1960); State v. 2147 Pounds of Packing Stock Butter, 29 Ala.App. 607, 199 So. 739 (1940).

In view of the foregoing the trial court is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Ex parte Rose Mary GANDY.
    78-504.
    Supreme Court of Alabama.
    May 25, 1979.
   JONES, Justice.

Writ denied.

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