author: BRADLEY, Judge.

text:
    Evelyn L. BAILEY v. James D. BAILEY.
    Civ. 988.
    Court of Civil Appeals of Alabama.
    April 27, 1977.

      Pat C. Boyd, Birmingham, for appellant.
    James M. Fullan, Jr., Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The suit was initiated when Evelyn L. Bailey filed a complaint in the Circuit Court of Jefferson County seeking a divorce from her husband, James D. Bailey, on the grounds of adultery and incompatibility. She also sought custody of the parties’ two minor children, certain real and personal property, and one-half of the business known as the Handy Mart No. 1 located in Springville, Alabama. By subsequent amendments she claimed that during their marriage the parties had formed a partnership to own and operate grocery stores called Handy Mart No. 1, located in Spring-ville, Alabama, Handy Mart No. 2, in Ashe-ville, Alabama, and Springville Big Saver, in Springville, Alabama.

The trial court separated the partnership issue from the remaining issues and tried that issue on February 11, 1976. On March 16, 1976 the court ordered that no partnership had existed between the parties as to any of the three grocery stores which they had operated.

The hearing on the remaining issues was held in April 1976 and the trial court’s final decree was issued on June 10, 1976. The court divorced the parties on the ground of incompatibility, awarded custody of the two children to Mr. Bailey, made a property division, and awarded Mrs. Bailey periodic alimony of $500 a month. She was also awarded an attorney’s fee.

Both parties moved for an amendment of the judgment and a new trial. These motions were denied. Mrs. Bailey has appealed and Mr. Bailey has requested this court to dismiss the appeal.

On the Motion

Mr. Bailey’s ground for dismissal of the appeal is that Mrs. Bailey has accepted the awards made to her in the divorce decree without filing a supersedeas bond in that she has accepted the $500 monthly payment of alimony, accepted $2,500 in attorney’s fees for her lawyer, refused to vacate the marital home which was awarded to Mr. Bailey, and continued to possess and use the Lincoln automobile which she was awarded. Citing Earle v. Reid, 25 Ala. 463 (1854), and Murphy's Heirs v. Murphy’s Adm’r, 45 Ala. 123 (1871) as authority, Mr. Bailey maintains that since Mrs. Bailey has advantaged herself of the provisions of the divorce decree, she is estopped to deny the validity of the decree.

The wife replies by pointing out that the husband has not cross-appealed nor has he asked for a stay of the judgment pending the appeal; therefore, he has no standing to protest the appeal, especially since her complaint is that the trial court did not permit her to share equitably in the division of assets, i. e. she did not receive her fair share.

We agree with the wife. Since Mr. Bailey did not cross-appeal, we are faced with the alternatives of either affirming the judgment of the trial court or holding it in error for not awarding more assets to Mrs. Bailey. In neither event would her award be reduced; hence, we fail to perceive in what respect Mr. Bailey is injured by permitting Mrs. Bailey to have the judgment enforced pending the appeal. See Fitts v. Fitts, 284 Ala. 109, 222 So.2d 696 (1969); Ryan v. Ryan, 267 Ala. 677, 104 So.2d 700 (1958). Consequently, the motion to dismiss the appeal is denied.

On the Merits

Mrs. Bailey presents to this court three issues for decision:

1. Whether failure of the trial court to find that a partnership existed between the parties and to dissolve said partnership is against the evidence, palpably wrong, and manifestly unjust.
2. Whether the division of the assets of the marriage is manifestly unjust and grossly inequitable on the evidence adduced in this cause.
3. Whether granting to the husband the use and occupancy of the parties’ home without compensation to the wife is an award of alimony from the wife to the husband which is not permitted by Alabama law.

The facts will be discussed as they apply to the issues raised and argued.

I

Mrs. Bailey contends that she and her husband operated a prosperous grocery concern as a partnership. Since Mr. Bailey denies the existence of a partnership, the facts pertaining to the acquisition and operation of the business are crucial.

Sometime prior to 1968 the parties to this appeal decided to go into business for themselves. Since their marriage, Mr. Bailey had worked in the food business, first as a store clerk in a supermarket and then as a buyer for a food broker. In his travel for the food broker Mr. Bailey discovered a grocery business, the Springville Big Saver, for sale. He took Mrs. Bailey to inspect the business and after discussion together they decided to buy it. The purchase was financed by a note for $22,500 cosigned by Mr. Bailey and an uncle; Mrs. Bailey did not sign the note. Several weeks before they took over the business, Mrs. Bailey worked in the store so that she could learn the grocery business, as she had no prior experience in that field.

At this time the parties discussed forming a corporation but discarded the idea when they learned that three people were required to incorporate. They did not want to include a third person in the business. Mrs. Bailey said they also discussed forming a partnership; Mr. Bailey said they did not. In any event, no formal agreement of any kind was ever drawn between them. The business never filed income tax returns as a partnership.

Initially both parties worked diligently to make the grocery business a success. Generally, Mr. Bailey did the buying and took care of stock and Mrs. Bailey kept the books and operated the cash registers, since that was where her past experience lay. In Mr. Bailey’s words, “We just had to do everything we could to start with, cut help down as close as we could.” Neither drew a salary so that as much profit as possible could go back into the business. Net profits from its operation were put into a checking account and a savings account owned jointly by the parties. The $22,500 note signed by Mr. Bailey and his uncle was repaid with funds withdrawn from these joint accounts.

The Springville Big Saver was successful and the parties were able to purchase and open another store, the Handy Mart No. 1, using funds from the joint accounts. No debt was incurred by either party. At some point a third store, the Handy Mart No. 2, was also purchased and opened in the same manner. Mr. and Mrs. Bailey divided their time between these stores.

In 1971 the Springville Big Saver was sold. Proceeds from the sale were placed in a joint savings account and later used to purchase the house in which the parties lived at the time of the divorce. In 1972 the Handy Mart No. 2 was also sold and the proceeds placed in a joint savings account.

The financial operation of all three stores was the same. Both parties were entitled to draw on the accounts opened in the name of each store, i. e. the Springville Big Saver, the Handy Mart No. 1, and the Handy Mart No. 2. Additionally both had equal access to a joint checking account and several joint savings accounts all of which were funded with checks drawn on the business accounts. Neither was paid a salary; rather, they used the joint checking account to pay personal and family expenses. Sometimes the parties would take cash directly from a store register, leaving a receipt in the drawer to indicate what amount had been withdrawn, and deposit that amount into the personal accounts. These three grocery concerns were the parties’ only source of income after 1968.

Although both Mr. and Mrs. Bailey worked equal hours initially in the operation of the business, after the Springville Big Saver and the Handy Mart No. 2 were sold only Mr. Bailey worked full time at the Handy Mart No. 1. Mrs. Bailey worked one day a week. However, when Mr. Bailey became ill Mrs. Bailey replaced him at the Handy Mart No. 1 throughout his illness. It was Mr. Bailey who dealt directly with the employees and made decisions to hire and fire personnel.

Sometime in the latter part of 1974 the parties’ relationship began to deteriorate. It seems that after January 1975 Mrs. Bailey no longer worked in the store at all; how much or little she worked during 1974 was disputed. In 1975 Mr. Bailey had the Handy Mart No. 1 checking account changed by removing Mrs. Bailey’s name from the signature card.

On March 16, 1976 the trial court entered a decree finding that no partnership exists or existed between the Baileys in any of the three business ventures previously named. Mrs. Bailey says the trial court is due to be reversed as its finding is against the great weight of the evidence. '

Where, as here, there is no written partnership agreement between the parties, and the question is whether as between the two a partnership existed, the question is one of part law and part fact. Adams v. State, 43 Ala.App. 281, 189 So.2d 354, cert. den., 280 Ala. 707, 191 So.2d 372 (1966). The trial court has already made the factual determination that no partnership existed. The ore tenus rule applies in partnership cases as in all others. The finding of the trial judge has the effect of a jury verdict, and the decree will not be disturbed unless it is palpably wrong. Hair v. Beall, 274 Ala. 699, 151 So.2d 613 (1963); Dicks v. McAllister, 20 Ala.App. 5, 100 So. 631, cert. den., 211 Ala. 422, 100 So. 632 (1924). Thus, the decree stands with a presumption of correctness.

Alabama has adopted the Uniform Partnership Act found in Title 43, Chapter 1A, Code of Alabama 1940 (Recomp.1958) (Supp.1973), but this case is not due to be decided under that act, since section 5(6) explicitly exempts any association existing prior to the enactment of the act. The act became effective January 1,1972; all of the businesses in question were acquired prior to 1972. Thus, pursuant to section 5(5), the rules of law and equity will govern the decision of this case.

Where there was no written partnership contract and no express agreement between the parties for the creation of a partnership, whether a partnership existed must be determined from the character and conduct of the business and the intent of the parties as gathered from the attending circumstances. Zuber v. Roberts, 147 Ala. 512, 40 So. 319 (1906); Hair v. Beall, supra.

The critical factor in making this decision appears to be whether the parties have agreed to share the losses as well as the profits. See, e. g., Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968); Norden v. Capps, 272 Ala. 473, 131 So.2d 679 (1959); Price v. Cox, 242 Ala. 568, 7 So.2d 288 (1942); White v. Jackson, 36 Ala.App. 643, 62 So. 477 (1953); Cox v. Fielding, 24 Ala.App. 68, 130 So. 164 (1930). The obligation to bear loss must be legally binding; it is not sufficient that one is to receive a percentage of net profits and be paid nothing if there are no profits. Stafford v. Sibley, 106 Ala. 189, 17 So. 324 (1894).

The evidence compels the conclusion that Mrs. Bailey incurred no liability on the indebtedness in the acquisition of the first grocery store, the Springville Big Saver, since Mr. Bailey and his uncle signed the note. Thus, Mrs. Bailey did not initially incur any legal obligation for the losses of the business as required by our decisions, even though it was through the joint effort of both that the indebtedness was discharged and even though she shared equally in the profits of the business.

The second and third grocery stores, the Handy Mart No. 1 and No. 2, were purchased with profits from the Big Saver which were placed in savings. The evidence does not reflect any more responsibility in Mrs. Bailey for losses in regard to these two stores than was the case with the Springville Big Saver.

Considering the evidence in its most favorable light to Mrs. Bailey, we cannot say that the trial court palpably abused its discretion in holding that no partnership arrangement existed between Mr. and Mrs. Bailey in the operation of their three grocery stores.

II

Mrs. Bailey next says that the evidence in this case clearly shows that the trial court’s division of property order is manifestly unjust and grossly inequitable and should be reversed. The evidence adduced in this case revealed the following pertinent facts.

The parties were married in 1954 when Mrs. Bailey was still in high school. Upon her graduation she worked for one year in a dress shop. In 1968 when the Springville Big Saver was acquired Mrs. Bailey was working for the U. S. Post Office. Mr. Bailey’s employment history has already been stated.

At the time of their marriage the Baileys owned nothing; all of their assets have been acquired through their joint effort since their marriage. After acquisition of the grocery business in 1968 both parties worked together to build that business into a lucrative enterprise. By the time of the divorce their assets were valued between $150,000 and $180,000.

Two children were born of the marriage. The son is now nineteen and the daughter is sixteen. Mr. Bailey testified that prior to the breakdown of the marriage, Mrs. Bailey, in addition to her work in the business, was a good homemaker for their family; she cooked and cleaned house and washed clothes without outside help. Mr. Bailey said that for the past two years he had had the primary responsibility of caring for the children, even though Mrs. Bailey then worked very little at the store and it was she who was at home.

It is evident that sometime in 1974 Mrs. Bailey began having problems in her perception of reality. On two occasions she consented to visit psychiatrists but refused to be treated. It appears that this problem was the primary cause for the breakdown of the marriage and the termination of Mrs. Bailey's participation in the grocery business. It further appears that her condition has strained her relationship with the parties’ children as well as with Mr. Bailey.

After the divorce action was filed, Mrs. Bailey was enjoined from interfering with any of the funds held in the parties’ various joint savings accounts. In violation of that order Mrs. Bailey transferred some $20,000 held in one joint account into her own name. Taking this action into account, the trial court divided the parties’ assets as follows:

1. Mr. Bailey was given custody of the children. He was also given the right of exclusive use and occupancy of the marital home until the youngest child reaches majority, marries or becomes self-supporting, at which time the house is to be sold and the proceeds divided between the parties.
2. Title to the household furniture, furnishings and equipment was vested in Mr. Bailey. Mrs. Bailey was awarded $3,000 as alimony in gross in lieu of a division of the household furnishings, furniture and equipment. There was no testimony as to its value.
3. Mrs. Bailey was given the income of $124.28 per month from a lease-sale contract between the parties and a Mr. and Mrs. Campbell, which could eventually amount to a total of about $20,450.
4. Mr. Bailey was given title to certain cemetery lots.
5. The money in joint savings accounts was split as follows: $12,986 was divided evenly between the two. Mr. Bailey additionally was given $20,000; $23,192; $1,409; and $1,000, totalling $45,601. Mrs. Bailey received additionally $5,700; $20,000; and $600; adding this to the $20,000 she had already appropriated, she received a total of $46,300.
6. Mrs. Bailey received a 1973 Lincoln automobile valued at $5,900. Mr. Bailey received a 1975 Honda valued at $2,400; a motor home valued at $7,000; a 1932 automobile valued at $3,000; and a motor boat valued at $1,500.
7. Mr. Bailey was given twenty shares of capital stock in the Asheville Savings Bank. He also received full title to the Handy Mart No. 1 and the Handy Mart No. 2, including the assets thereof and the property used therein.

In addition, Mr. Bailey was required to maintain a life insurance policy of $20,000 .with Mrs. Bailey as beneficiary, and a life insurance policy of $5,000 with the minor children as beneficiaries. He also was required to pay Mrs. Bailey $500 per month as alimony and $2,500 as attorney’s fees. (By a separate order Mr. Bailey was required to pay fees of $3,000 to the guardian ad litem which had been appointed at his request.)

We have said that a court, in making a property settlement, should consider:

“. . . the earning capacity and future prospects of the parties, their ages, sex, health and station in life, how long they were married, whether there are children to support, and the conduct of the parties with reference to the cause of the divorce, Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856.” Hamaker v. Hamaker, 57 Ala.App. 333, 338, 328 So.2d 588, 592 (1975).

But we have also said that the distribution of marital property lies within the sound discretion of the trial court, Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (1976); Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975), and that the division of property is not required to be equal but is to be graduated according to the nature of the case. Griffin v. Griffin, Ala.Civ.App., 338 So.2d 416 (1976); Hamaker v. Hamaker, supra; Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150, cert. den., 291 Ala. 782, 280 So.2d 155 (1973).

After a careful consideration of the facts in this case, we are impressed with the trial court’s effort to equitably dispose of the fruits of this marriage. It was not a fifty-fifty division of assets. Mr. Bailey received money and property valued in excess of $70,000 in addition to the Handy Mart No. 1, valued at about $21,0(30; Mrs. Bailey received approximately $65,000 and no part of the business assets. However, as we have just pointed out, such a mathematically equal distribution is not required.

In Horsley v. Horsley, supra, we upheld an award of one-third of the parties’ total assets where the wife had assisted in the business, had received no salary for her endeavors, and had no outside income. During the marriage she had performed all the work necessary to run the household and had reared the parties’ five children without any outside assistance. There was also evidence that the wife was in ill health and had been advised to have an operation. We did however reverse the trial court for its failure to award periodic alimony. In the case at bar the wife received a periodic alimony award of $500 per month. This places the ultimate outcome of Horsley on a comparable footing with the decision in the instant case.

In another case similar to the case at bar, Grant v. Grant, 49 Ala.App. 559, 274 So.2d 329 (1973), the wife contested an award to her of $5,000 where the rest of the parties’ property was vested in the husband. The evidence showed that both parties had worked hard to acquire what they had. All earnings had gone into a joint bank account and all purchases of property, both real and personal, had been made from that joint account. A lot on which the parties built a house was purchased. Funds from the account were used to start a business wherein the husband did plumbing and electrical contracting; the wife did the bookkeeping. Receipts from the business were deposited into the joint account and the wife deposited her wages into that account. Apparently the parties lived solely on her wages. Funds from the account purchased three trucks and a car. Cash was paid for an additional lot and a building erected thereon from which the business operated. The husband held title to all the motor vehicles, the business, and the marital house and lot; the wife had joint title only in the lot on which the business was located. At the time of the divorce the parties had $11,459 in the bank. We reversed the trial court and said that an equitable division of the property would be to give the husband the business and the wife the home, with the wife additionally to receive the $5,000 initially awarded from the bank account. We did emphasize the fact the wife had contributed as much to the parties’ assets as had the husband.

It is true that in the case at bar Mrs. Bailey was not only the homemaker but she also worked in the grocery businesses, although to what extent is not clear. The parties were obviously hard working and by plowing the profits back into the business were also very successful. It is conceded that the wife’s efforts contributed to the success of their grocery businesses. Nevertheless we cannot say, based on the evidence in this case, that the trial court plainly and palpably abused its discretion in the division of these parties’ property. Had this court been faced with the initial decision the outcome might have been different, but we are not permitted to substitute our judgment for that of the trial court. Hence we do not find reversible error in that aspect of the trial court’s decree dividing the parties’ property.

Ill

Mrs. Bailey finally asserts that the trial court erred in that part of its decree wherein it awarded the parties’ residence to Mr. Bailey for his use and benefit until the younger child reaches majority, marries or becomes self-supporting, at which time the property is to be sold and the proceeds divided equally. Mrs. Bailey argues that during the time Mr. Bailey is using the property, she is being required to contribute to his support and he is well able to support himself. This requirement of support is in effect a directive that she pay her former husband alimony, and there is no authority for a court in Alabama to order a wife to pay alimony to a former husband. She says her contentions are supported by the holding in Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966).

In Davis the husband was awarded custody of the minor child of the parties and also given the use and benefit of the parties’ jointly owned home until the child reached majority or became self-supporting. The supreme court held it was reversible error for the trial court to have awarded the use of the parties’ home to the husband for the use of the child. The court said:

“. . . In effect, the wife, to the extent of her one-half interest in the Gadsden property, is being required to contribute towards the maintenance and support of the husband. Since the evidence clearly shows that the husband is well able to care for himself and the child, no question is presented as to the duty, if any, the wife might have to maintain and support an indigent husband.
“In the absence of a statute so providing there is no authority in this state for awarding alimony against the wife in favor of the husband. See: Atkins v. Curtis, 259 Ala. 311, 315, 66 So.2d 455; 24 Am.Jur.2d Divorce and Separation, § 527, p. 651; 27A C.J.S. Divorce § 204, p. 886. There is no statute in this state authorizing such award. The statutory scheme is to provide alimony only in favor of the wife. . . . There is no provision for an allowance to the husband out of the wife’s estate.” 279 Ala. at 644, 189 So.2d at 159.

Davis has never been overruled, and indeed has been reemphasized. In Baggett v. Baggett, 47 Ala.App. 539, 542, 258 So.2d 735, 738 (1972), this court said:

“. . . Davis held that the granting of the use of jointly owned property to the husband to be used as a home for himself and a child in his custody was in effect requiring the wife to contribute to the support of the husband contrary to the common law. Davis does not apply to a division of jointly owned property.”

In Hamaker v. Hamaker, supra, we said:

“To award the husband the use of property as a home for the child is indeed alimony to the extent that the wife’s interest is contributed towards the maintenance and support of the husband, Davis v. Davis, 279 Ala. 643, 189 So.2d 158. However, the Davis case has explicitly been held inapplicable to a permanent division of jointly owned property, Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735. The instant award is clearly a property division, not an interlocutory award of support.” 57 Ala.App. at 337, 328 So.2d at 591.

The award in the case at bar fits squarely within the rationale of Davis and is governed by the holding of that case. Hamaker and Phillips v. Phillips, 52 Ala.App. 234, 291 So.2d 322 (1974), are distinguished for the reason that in each of those cases the trial court ordered a final division of the parties’ jointly owned property at the time of the divorce. In the case at bar, as well as in Davis, the property settlement was postponed until the younger child reaches her majority or becomes self-supporting.

For the error in awarding the use of the parties’ residence to appellee, that aspect of the judgment is reversed and the cause remanded for other and further disposition of this property. The remainder of the judgment appealed from is affirmed.

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

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Eunice WHITE v. Joseph PACKER and Mrs. Joseph Packer.
    Civ. 1028.
    Court of Civil Appeals of Alabama.
    April 27, 1977.

      Maurice A. Downing, Mobile, for appellant.
    Michael Gillion and Philip H. Partridge, Mobile, for appellees.
   HOLMES, Judge.

This is an appeal from the trial court’s granting of a motion for judgment notwithstanding the verdict. We affirm.

The dispute arises out of the following facts:

On August 25, 1974, Mrs. Eunice White, the plaintiff-appellant, and Mrs. Joseph Packer, one of the defendant-appellees, returned to the Packer home after having taken their daughters to Springhill College. A short time later, they left the house to investigate a disturbance at a nearby street corner.

It was dusk at the time of their return to the house. Mrs. White and Mrs. Packer stepped from the street into Mrs. Packer’s front yard on their way to the front door of the house. Somewhere between the curb and three or four steps into the yard, Mrs. White stepped into a hole. Her left leg, which went down into the hole up to her thigh, was broken.

Mrs. White testified that the grass, which needed cutting, had overgrown the hole and that fact, coupled with the darkness, made it impossible for her to see the hole. Her husband testified that he went to examine the hole the day after the accident. He stated that it was approximately 4 to 6 inches around. He was able to put his entire leg into the hole without his foot touching the bottom.

Mrs. White testified that she had been on the Packer premises on a number of previous occasions. She stated that she had never seen the hole. Neither had she ever seen a pole or any other object which would account for the hole.

Mrs. Packer and her husband, who is also a defendant in the suit, both testified that they had no knowledge of the hole prior to Mrs. White’s injury. They have five children who frequently play in the yard, and they had never been informed of the hole before Mrs. White’s accident. The Packers have lived at this house for 19 years.

Additionally, Mrs. Packer testified that her neighbor’s entire front yard curb, which is located approximately 30 feet from the hole where Mrs. White sustained her injury, had collapsed subsequent to the accident. She stated the city had done some work in the vicinity of the two yards prior to Mrs. White’s accident.

Mrs. White’s resulting incapacitation from the fall was of 3 months duration.

She filed suit against the Packers in 1974. Her complaint alleged as Count 1 that she stepped and fell into an artificial hole or excavation, which the Packers negligently permitted to remain on the premises and of which they knew, or in the exercise of due diligence should have known, and forewarned her. Count 2 alleged Mrs. Packer willfully and wantonly led Mrs. White upon the negligently maintained premises, thereby causing her to sustain grievous injuries.

Trial before a jury was had in the Circuit Court of Mobile County on September 22, 1976. At the conclusion of the evidence, the Packers’ motion for a directed verdict as to Count 2 of appellant-White’s complaint was granted.

The jury returned a verdict of $10,000 for Mrs. White on Count 1.

On September 24, 1976, the Packers presented to the trial court a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Nineteen grounds were asserted in support of the motion for judgment notwithstanding the verdict, ten as the basis for the new trial. The trial court ruled on this motion as follows:

“It is ordered and adjudged by the Court that defendants’ said motion filed September 24, 1976, for Court to enter a judgment notwithstanding the verdict, or in the alternative, for a new trial in this cause be, and the same is hereby granted, and judgment by Court for the defendants entered.”

Mrs. White thereafter took this appeal.

Mrs. White contends the trial court erred to reversal in granting the Packers’ motion for judgment notwithstanding the verdict. She states the motion was granted on the basis of the defendants’ objection to an oral jury charge which, she contends, was a correct statement of the law. The record fails to support this contention.

No objection to the jury charge is found in the Packers’ motion for judgment notwithstanding the verdict; and, as shown above, the trial court’s entry does not reflect the basis for the granting of the motion. Hence, this contention is without merit.

Mrs. White also states the trial court’s granting of the motion was erroneous in light of the evidence adduced at trial. We cannot agree.

In ascertaining the propriety of a trial court’s grant of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the most favorable manner for the party for whom the jury returned the verdict. Spurlin v. General motors Corp., 528 F.2d 612 (5th Cir. 1976); Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975). The motion should not be granted if there is any conflict in the evidence for the jury to resolve, and the existence of such conflict is to be determined by the scintilla rule. McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

Examination of the trial court’s ruling with due regard to the above principles establishes the correctness of that ruling.

A landowner’s duty to one upon his premises depends upon the status of the latter with regard to the land. Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976). In Alabama, a social guest has been defined as a licensee. Tolbert, supra; Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973); Deese v. Espy, 284 Ala. 551, 226 So.2d 332 (1969); Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650 (1963). A licensee “is owed the duty not to be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril.” (Tolbert v. Gulsby, supra, 333 So.2d at 131). Accord Standifer and Deese, supra; Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).

As stated by the Alabama Court of Appeals in Alabama Great Southern R. Co. v. Campbell, 32 Ala.App. 348, 26 So.2d 124 (1946):

“The duty owed by estate holders toward bare licensees is not an active one to safely maintain the premises. The bare licensee must accept the premises as he finds them. The only limitations imposed on landholders in such cases is that he must not set traps or pitfalls, nor wilfully or wantonly injure the licensee. . .” [Emphasis supplied.] (32 Ala.App. at 351, 26 So.2d at 126).

Accord W. S. Fowler Rental Equipment Company v. Skipper, 276 Ala. 593, 165 So.2d 375 (1963); Scoggins v. Atlantic & G. P. Cement Co., 179 Ala. 213, 60 So. 175 (1912); Pratt Coal & Iron Co. v. Davis & Davis, 79 Ala. 308 (1885).

In this case, there was absolutely no evidence from which the jury could reasonably have concluded that the Packers created the hole which resulted in Mrs. White’s injury. Mrs. White had been on the Packer premises on many occasions. She had never observed any sign, pole, mailbox, etc., which the Packers might have erected, thereby creating the hole. In fact, there was no evidence to even show the hole had been dug. There were no loose clods or mounds of dirt proximate to the hole. The only evidence presented by Mrs. White was the existence of the hole and the fact that the Packers had lived there for 19 years. In this instance, such facts do not constitute a scintilla of evidence toward proving the creation of a trap, pitfall, or obstruction by the appellee property owners. The court correctly granted the Packers’ motion for judgment notwithstanding the verdict.

Mrs. White also asserts two other grounds for reversal. She contends the trial court erred in failing to specify the grounds upon which the Packers’ motion was granted. We find no such requirement in Rule 50, ARCP.

She also submits the trial court erred by failing to comply with that portion of Rule 50(c)(1), ARCP, which provides:

“(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. . . ”

She is correct. However, such error does not require reversal of the trial court’s granting of the motion for judgment notwithstanding the verdict.

Where the trial court has failed to rule on the motion for a new trial, one alternative is to remand the case in order for the trial court to make such a ruling. Nodak Oil Co. v. Mobil Oil Corporation, 526 F.2d 798 (8th Cir. 1975). However, in light of the decision herein reached, we perceive no useful purpose to be accomplished by such action in this case.

The finding which would be made by the trial court upon remand would only become relevant were we to reverse that court’s ruling with respect to the judgment notwithstanding the verdict. Rule 50(c)(l)’s provision is to assist the appellate court in reaching its decision with regard to the granting of another trial when the trial court’s judgment notwithstanding the verdict has been reversed. Committee Comments, Rule 50, ARCP. Hence, since we here affirm the trial court’s granting of the motion for judgment notwithstanding the verdict, the case would be remanded merely to enable the trial c. urt to make a decision which would have no operative effect. In this instance, no benefit is derived from such a course of action. See Mays v. Pioneer Lumber Corporation, 502 F.2d 106 (4th Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975).

The ruling of the trial court is to be affirmed.

AFFIRMED.

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


text:
    Robert Lee McENTIRE v. Mary Rebecca Meeks McENTIRE.
    Civ. 1059.
    Court of Civil Appeals of Alabama.
    April 27, 1977.

      L. A. Farmer, Jr., Dothan, for appellant.
    Douglas M. Bates, Dothan, for appellee.
   BRADLEY, Judge.

Appellant petitioned the Circuit Court of Houston County to modify a prior divorce decree by awarding him custody of his only child, eliminating alimony payments to his former wife, and eliminating a $213 monthly mortgage payment on the house awarded to his former wife. Petitioner also sought to be relieved of the requirement that he maintain a $2,000 surety bond posted to assure compliance with the court’s order concerning child visitation. After an ore tenus hearing, the court refused petitioner’s request for relief. He appeals.

In December 1975 petitioner and his former wife, Mary Rebecca Meeks McEntire, were divorced and the custody of the only child of the marriage, a son, was given to the former wife. She was awarded child support of $400 per month, periodic alimony of $200 per month, title to the marital house and all its contents, $7,000 in cash, and an attorney’s fee. The husband was required to maintain certain insurance policies of which the wife and child were beneficiaries, to continue automobile payments of $102 per month until the indebtedness on the automobile is satisfied, and to make monthly mortgage payments of $213 on the house awarded the wife until the mortgage is satisfied. The wife was required to convey to the husband her one-half interest in their jointly owned real property in the state of Arkansas.

After the divorce the husband continued to reside in Louisiana, where he was employed and living at the time of the divorce. He is still working for the same company by which he was employed at the time of the divorce at a slightly increased salary.

The husband is now married to the woman he had anticipated marrying at the time of the divorce. This present wife has one child, a son, by a previous marriage; her son receives some support from his natural father. The appellant’s present wife is not employed. At the time the parties to this action were divorced, the husband testified he would be able to support two households. At the hearing before the trial court below he said he is still able to maintain two households.

After the divorce the wife remained in Dothan, where the parties had resided during their marriage. During this time she was unemployed. She and the child then moved to Atlanta, Georgia where she obtained employment with ARC Security at the Atlanta airport. Her present income consists of her take-home pay, which is approximately $200 bi-weekly, the combined alimony and child support payments of $600 per month she receives from the husband; and $270 per month income from renting the house in Dothan. She says her expenses average $900 per month.

The wife and son live in an apartment in an Atlanta suburb. The child walks to school, which is three blocks from the apartment. The wife testified that the child is doing well in school. The child told the court in chambers that he likes living in Atlanta and likes his school.

We begin our review of the issues raised by this appeal by reciting some familiar principles of law. In Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616 (1973), this court said:

“We approach this appeal, as in all cases in which the testimony is heard orally by the court, with the presumption that the decree of the court is correct. That the modification of a prior decree for support and alimony, based upon changed circumstances of the parties, is largely a matter within the judicial discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if from a review of the evidence this court finds in the decree such an abuse of discretion as to be plainly and palpably wrong.” 50 Ala.App. at 160, 277 So.2d at 618 (citations omitted).

We would also point out that the burden of proving a material change in circumstances sufficient to warrant a modification of a previous decree relating to child support and periodic alimony is on the petitioner. Brumlow v. Brumlow, 282 Ala. 170, 209 So.2d 849 (1968); Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972).

The only significant change in circumstances we are able to glean from the record is the remarriage of the husband. The effect of this event is minimal in view of his testimony at the divorce trial that the marriage would occur and that he would be able to support two families. Furthermore, the remarriage of one of the parties to a divorce, even though a factor to be considered by the trial court, is not, standing alone, a sufficient change in circumstances to warrant a modification of a divorce decree. Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688 (1964); Massey v. Massey, 276 Ala. 502, 164 So.2d 498 (1964); Lloyd v. Lloyd, 52 Ala.App. 374, 292 So.2d 668 (1974). After a careful consideration of all the evidence in the record, we cannot say that the trial court abused its discretion in refusing to modify the periodic alimony and child support aspect of the former decree.

With regard to whether the trial court erred in refusing to change custody of the child from the wife to the husband, the same rules which govern modification of child support and periodic alimony payments apply here. Modification of a decree awarding custody of a child must be based upon allegation and proof of a material change of circumstances affecting the best interests of the child since the last decree. The proponent of the change in custody has the burden of proving the material change in circumstances. Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App., 1977). Furthermore, where it is the mother who has custody and the children are young, our courts seldom deprive the mother of custody absent a showing that she is unfit. Cox v. Cox, 48 Ala.App. 574, 266 So.2d 784 (1972); Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970).

Here the appellee-wife has not been shown to be an unfit mother in any manner. It does not appear that the child is not being loved or well cared for by the mother. The court interviewed the child in chambers and this testimony indicates the child prefers to live with the mother. We cannot say the trial court abused its discretion by refusing to give custody of the child to the father.

The next issue raised by the husband is the refusal of the trial court to eliminate the requirement that he pay off the mortgage on the residence awarded to the wife in the prior decree.

The pertinent portion of the divorce decree provides as follows:

“(7) That as and for a property settlement between the parties and alimony in gross to the Plaintiff, the Defendant shall convey by proper deed, within 10 days of the date hereof, all of his right, title and interest in and to the real estate at 105 North Roberta Avenue in the city of Do-than, Alabama and the Defendant shall assume and pay as his sole debt and obligation any indebtedness owing on said real estate and shall make any monthly installments due thereon as the same become due and upon the Defendant’s failure to execute said deed as aforesaid, the said Clerk shall make such conveyance by Register’s Deed; . . .”

It appears that the trial court intended the requirement that the husband assume the mortgage liability to be part of either the property settlement or the award of alimony in gross. However, whichever classification is placed on the award to the wife is irrelevant here for the reason that neither type of award can be modified once it becomes final.

In contrast to an award of child support and periodic alimony, a provision for a property settlement in a decree of final divorce is not a continuous provision. After a lapse of thirty days from the date of rendition of the decree, a court of equity cannot modify a property settlement provision except to correct clerical errors. Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974); Rule 59, ARCP. See also Cochran v. Cochran, 289 Ala. 615, 269 So.2d 897 (1972). There was no appeal from the original decree and it is therefore now final. The trial court had no authority to modify the requirement that the husband make the mortgage payments on the house if that requirement is characterized as part of the property settlement.

If not a portion of the property settlement, then the requirement of which the husband complains is alimony in gross. Under Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974), an award is alimony in gross when the amount of payment is fixed, the time of payment is certain, the award is clearly denominated as “alimony in gross,” and the trial court reserves no right in itself to later modify the provisions. The award in question meets all of these requirements. The amount is fixed, as the outstanding indebtedness on the mortgage is certain of calculation. The time of payment is certain, namely monthly until the mortgage is satisfied. The trial court denominated the award as alimony in gross or a property settlement, clearly intending the award by whatever name called to be compensation to the wife for loss of her rights in the husband’s estate. Finally, there was no reservation of control over the award by the trial court. Hager reaffirmed the long line of decisions in this state holding an award of alimony in gross is not modifiable. Again, as there was no appeal from the original decree, the order is final and the trial court had no authority to modify the provision in question.

Finally the husband contends that the trial court erred in not eliminating the requirement that he maintain a $2,000 surety bond to assure compliance with the child visitation aspect of the former decree.

This court and the supreme court have approved in certain situations the requirement by the trial court that one of the parties to a divorce decree post a surety bond to assure compliance with the child visitation schedule prescribed by the decree. Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561 (1946); Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976). In the case at bar the husband was required to post the bond to assure compliance with the trial court’s visitation schedule after the wife had made known to the court that the husband had threatened to keep the child in Louisiana. The wife said that since the posting of the bond no problem had developed about the child’s return from visiting his father.

We find no abuse of discretion by the trial court in maintaining the surety bond to assure compliance with its visitation decree. The husband argues, however, that since the wife no longer lives in Dothan the child is not returned to the jurisdiction of the court after visitation with him; consequently he should not be required to keep the bond on file with the court.

The primary purpose of the surety bond is to assure compliance with the court’s decree, regardless of whether the child and custodian are present within the geographical jurisdiction of the court. It is true that most of the reported cases involve situations where one of the custodians still resides within the trial court’s geographical jurisdiction. However, as we perceive the purpose of the bond, the presence of the custodian within the geographical jurisdiction is not required in order for the court to enforce its decrees. Such authority in the court exists by virtue of the fact that once a court obtains subject matter jurisdiction in a child custody case, it retains that jurisdiction during the minority of the child for such orders as may be necessary for the child’s best interest. Bianco v. Graham, 268 Ala. 385, 106 So.2d 655 (1958).

No reversible error having been presented, the judgment of the trial court is affirmed.

Counsel for the wife has requested of this court an award of a reasonable attorney’s fee for representing her in this appeal. This court has the power to award a reasonable attorney’s fee for services rendered on appeal to a former wife. Lyons v. Lyons, 279 Ala. 329, 185 So.2d 121 (1966); Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975). We consider $300 to be a reasonable fee for the services of the wife’s attorney in representing her in this appeal and such sum is hereby awarded.

AFFIRMED; ATTORNEY’S FEE AWARDED.

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


author: WRIGHT, Presiding Judge.

text:
    Wayne Allen TRAVIS v. Sandra P. TRAVIS.
    Civ. 1074.
    Court of Civil Appeals of Alabama.
    April 27, 1977.
    Robert E. McDonald, Jr., Mobile, for appellant.
    Bob Sherling, Seale, Marsal & Seale, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This appeal is from the denial of modification of a divorce decree. We reverse.

After seventeen years of marriage the parties were divorced on May 5, 1976. Mr. Travis was ordered to pay $125 weekly child support, all medical and dental bills of the five children, parochial school tuition ($1,282 a year at the time), an appliance service contract ($150 each year), swim club dues ($60 every year), an attorney’s fee for Mrs. Travis, and an arrearage in support payments. On July 30, 1976, Mr. Travis petitioned the court for modification. As amended the petition sought elimination of the tuition and swim club payments and/or a reduction in the amount of support payments on the ground that Mr. Travis’ income was substantially less than at the time of trial. After hearing the evidence ore tenus on November 3, the court denied the motion to modify. Mr. Travis appeals.

The evidence revealed the following: Mr. Travis was an employee of Dixie Engineering at the time of the divorce trial and earned $1,250 monthly ($900 net take home). For a time after the trial and at the time of the original modification petition he was unemployed. The record does not reveal why Mr. Travis lost his job. Some time later he began to work for Hinton Beef and Provision at $867 per month ($611 net take home). He also works at least one day a week for the Mobile County Racing Commission and earns $18 daily ($16 net take home). Mr. Travis rents an apartment for $155 and lives there with one Cynthia Bryant as he has since prior to the divorce. His monthly individual expenses are $64 for life insurance, $56.68 for hospital insurance for the children, $39 for phone and electricity, $60 for gasoline, $10 for clothing, and $120 for food. Mr. Travis has paid only $50 per week for child support since the decree and is thus in arrears in payment. Mrs. Travis at the time of the divorce trial was working at a local school for $16-$17 a day or about $290 monthly take home pay. Under a trust fund established by her grandfather she received less than $200 annually. She now works at the University of South Alabama Medical Center for $447 each month ($300-$310 net take home). She testified that she spends $200-$250 monthly on food. She now pays for hospitalization insurance on herself and car insurance on herself and her oldest daughter as added expenses since the divorce.

The original decree regarding support remains conclusive so long as there is no material change. Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151 (1959); Buchanan v. Buchanan, 49 Ala.App. 528, 274 So.2d 84 (1973).

Modification of a prior provision for child support in a divorce decree is a matter within the sound discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if there is such an abuse of discretion as to make the decision plainly and palpably wrong. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967); White v. White, 334 So.2d 908 (Ala.Civ.App.1976).

The amount of child support to be granted depends upon the needs of the child and the ability of the parent to pay. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975); Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911 (1972).

Mr. Travis has a duty to support and maintain his children and to educate them in a manner commensurate with his means. Ogle v. Ogle, 275 Ala. 483, 156 So.2d 345 (1963); Scott v. Scott, 247 Ala. 598, 25 So.2d 673 (1946); Farmer v. Coleman, 231 Ala. 527, 165 So. 778 (1936); Hopper v. Hopper, 54 Ala.App. 144, 306 So.2d 13 (1974).

But the payment of child support should be within the reasonable financial ability of the parent. Womble v. Womble, supra. And the payment should not be so much that it will cripple him by compelling him to give up all of his income. Sides v. Sides, 284 Ala. 39, 221 So.2d 677 (1969); Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966); Pruett v. Pruett, 333 So.2d 580 (Ala.Civ.App.1976); Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616 (1973).

To continue to require Mr. Travis each month to pay an average of $666 on a net income of $680 is clearly unjust. After paying his obligations under the divorce decree Mr. Travis does not have sufficient funds to support even a frugal existence.

The substantial decline in his income is a changed circumstance justifying modification and reduction of child support payments. Gambrell v. Gambrell, 268 Ala. 671, 110 So.2d 248 (1959); Sellers v. Sellers, supra.

We find the trial court could have denied modification only by disbelieving the competent and unimpeached evidence. It was not at liberty to do so. Sellers v. Sellers, supra. The trial court plainly committed error requiring reversal.

We reverse and remand to the trial court for reconsideration of the amount of child support, in whatever form, in light of the evidence of appellant’s ability to pay. It will not serve the interest of the children to order payment of child support or private school tuition in an amount which the evidence clearly indicates is beyond the ability of appellant to pay. Pruett v. Pruett, supra.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ruby Ann NOLEN v. Sammie George NOLEN.
    Civ. 1112.
    Court of Civil Appeals of Alabama.
    April 27, 1977.
    Robert E. Paden, Bessemer, for appellant.
    John T. Golden, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

The parties were divorced by decree of November 21, 1971. An agreement was incorporated in the decree. A part of the agreement was that the wife and children would live in the home until the youngest child reached majority or until the wife remarried. In either event the home, to which the husband held title, would be sold and the proceeds of sale divided equally between plaintiff and defendant.

In June 1973, the former wife, appellant here, brought a petition to modify and for rule nisi. She alleged that she had recently married and her alimony should cease. She asked that an amount for support of the minor child remaining at home be set. She further averred that since her remarriage, the part of the original decree as to sale of the home was due to be enforced; that she had secured an appraisal of the home in the amount of $12,500 and had offered to pay her former husband $6,250 for his interest in the home; she had received no answer to her offer, but had learned that the husband had earlier conveyed title to the home to his mother. She prayed for an order of support for her child; that the husband be required to comply with the original decree and that he be held in contempt for failure to comply. She sought general relief.

The court heard her petition. Though the respective briefs refer to apparent evidence presented, the record of the hearing is not before us. There is before us a copy of the decree resulting from the hearing. The court therein held the transfer of title to the former husband’s mother not a bona fide sale for a valuable consideration. It directed the former husband to pay to the petitioner the sum of $5,000, which sum represented the value of the wife’s interest in the proceeds of a sale of the home had a bona fide sale been consummated. The $5,000 was directed to be paid to the wife at the rate of $50 per month, without interest, until paid in full. Petitioner did not move for rehearing nor did she appeal from the decree rendered upon her petition on the 2nd day of August, 1973. She was paid and accepted the payments of $50 per month and by June of 1976 had received $1,700 of the $5,000 directed to be paid.

On June 2, 1976, the former husband requested the court to interpret its order of August 2, 1973, and permit the acceleration of payment of the balance of the $5,000. The former wife answered, saying that the former husband had a purchaser for the property at a price of $19,300 and that she should receive one-half the proceeds; that it would be unfair for her to just receive the $5,000 originally directed to be paid.

The court heard the petition and entered judgment on November 12, 1976. After reciting events and proceedings preceding, including the finding and order of August 2, 1973, the court found that title to the property had always been in the ex-husband; that the interest of the wife in the property was determined to be of the value of $5,000 as of August 2, 1973; that there was no reason why the payment of the balance thereon should not be accelerated and the resulting equitable lien be removed from the property through full payment. The court then directed such payment and removal of any cloud upon the title of the ex-husband.

Rehearing was requested upon the ground that the court had modified the property settlement between the parties as incorporated in the original divorce decree. Rehearing was denied. The wife appeals. We affirm.

The issue presented by appellant is that a real property settlement in a divorce may not be modified after expiration of 30 days from the date of the decree. It is contended that the decree modifies the terms of the agreement for a property settlement contained in the original decree of 1971.

The legal proposition of the appellant is correct. The terms of a property settlement contained in a divorce decree may not be changed, or modified without jurisdiction being retained, after 30 days have expired from the date thereof. DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 (1963); Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974). However, the appellant presents the issue at the wrong time. If appropriate for presentation at any point in this case, it comes too late at this time. If there was ever a modification of the original agreement, it came in the decree of August, 2, 1973. (We do not hold there was a modification at that time, for that is not the decree under assault on this appeal.) That decree was entered in response to relief sought by appellant. She did not appeal from the order, but rather accepted it with its benefits for over three years. It was not until she learned that the sale value of her former home had greatly increased that appellant complained that $5,000 was an unjust representation of one-half the sale value. Her protest comes too late. She accepted $5,000 in lieu of a sale and division. She had received substantial payment thereon. She is now estopped from denying the propriety of a judgment which she accepted and collected. Birmingham Trust & Sav. Co. v. Strong, 239 Ala. 118, 194 So. 200 (1940); Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    Danny Lee SMITH v. STATE.
    4 Div. 345.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      J. Ronald Storey, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   PER CURIAM.

Rape; sentence: thirty years imprisonment.

The appellant was indicted and convicted under the general rape indictment: Title 15, § 259(89), Code of Alabama 1940. The prosecutrix was alleged to be approximately fourteen years old at the time of the incident.

There was testimony presented at trial by relatives of the prosecutrix to the effect that she was retarded and attended a school for retarded children. There was also a statement made by prosecutrix’s mother which indicated that a doctor had told her that the prosecutrix had a mind of a two year old. The age of the prosecutrix at the time of the doctor’s hearsay pronouncement was not specified. There was absolutely no medical testimony presented as to any mental incapacity on the part of the prosecu-trix.

There was substantial evidence presented from which the jury could find the following facts:

The appellant, with permission of the prosecutrix’s father, took the prosecutrix on an alleged shopping tour. They were to be accompanied by the prosecutrix’s younger brother and sister, however, the appellant would not allow the brother and sister to go along. When the appellant and the prose-cutrix returned from the shopping tour, the prosecutrix had a substantial amount of blood on her and her clothes. The appellant had blood on his coat and the prosecutrix was bleeding from the area of her vagina. The appellant fled the premises when questioned concerning the whereabouts of the fruits of the shopping tour.

At trial, Dr. Rufus C. Smith, Jr., testified that he examined the prosecutrix immediately after the alleged rape. There were some slight abrasions around the opening of the vagina. He testified that such abrasions were consistent with the penetration of the prosecutrix’s vagina by a male sex organ. Dr. Smith said the abrasions were also consistent with self-manipulation or the utilization of another type of blunt object. The examination did not reveal the presence of sperm.

The prosecutrix then testified on behalf of the State. The relevant portion of her testimony reads as follows:

“Q. All right. But when he got you out in the woods, he put you down on the ground?
“A. (Nodded head in affirmative.)
“Q. Did he take your pants off of you and your underpants?
“A. (Nodded head in affirmative.)
“Q. Did he get up on top of you?
“A. (Nodded head in affirmative.)
“Q. And did he put something in you?
“A. (Nodded head in affirmative.)
“Q. Did it hurt?
“A. Yes.
“Q. It hurt you?
“A. (Nodded head in affirmative.)”

The preceding facts and testimony have been presented in the light most favorable to the State. The appellant put on evidence, which if believed by the jury, would have explained, controverted, denied and impeached the evidence presented by the State. The appellant made timely and appropriate motions to exclude the State’s evidence and for a new trial.

It should be clearly noted at this point that the prosecution elected to try this appellant on the common law charge of rape and not on the “statutory rape” charge of carnal knowledge of a girl over twelve and under sixteen years of age pursuant to Title 14, § 399, Code of Alabama 1940. In so doing, it was necessary to prove each element of that common law offense, i. e. (a) an unlawful carnal knowledge of a woman by the appellant, and (b) that such carnal knowledge was committed forcibly and without her consent. Title 14, § 396, Code of Alabama 1940.

I

An essential element of the offense of rape is to prove carnal knowledge by the actual penetration of the female sex organ by the male sex organ. Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962). Other than Dr. Smith’s assertion that the abrasions were consistent with penetration by a male sex organ, there was not one iota of evidence regarding what was inserted into the vagina. Dr. Smith testified that the abrasions were also consistent with insertion of objects other than a male sex organ.

The facts in Hacker v. State, 31 Ala.App. 249, 15 So.2d 336 (1943) are loosely analogous to those in the present case. There the prosecutrix was seven years old. She testified as follows:

“ ‘ . . . When he got on top of me down there under the bridge he had me under him and he was lying all stretched out on top of me. He took my pants down that I had on and he was on top of me then and all stretched out. I felt something push inside me down between my legs and I felt it four times and it hurt me bad. ... It felt like something stiff that he was putting in me down there . . .

In Hacker, the Court held that whether the penetration was accomplished with a male sex organ was a question of fact for the jury. We, therefore, conclude that the jury in the instant case could fairly infer that there had been a penile penetration.

II

Other essential elements of rape are that the act be committed forcibly and against the consent of the woman. The instant record is void of any reference to force or lack of consent. It should be noted that in Hacker, supra, there was overwhelming proof of force and lack of consent.

If the prosecutrix was so mentally impotent as to be incapable of consent, then it was not necessary to prove force or lack of consent. It must be proved beyond a reasonable doubt that the prosecutrix was so idiotic as to be incapable of expressing any intelligent consent or dissent, or of expressing any judgment in the matter. The capacity to consent to intercourse presupposes the mental capability to form an intelligent opinion on the subject, with an understanding of the act, its nature, and its possible consequences. Stephenson v. State, 35 Ala.App. 379, 48 So.2d 255, cert. denied 254 Ala. 313, 48 So.2d 259 (1950).

In the present case, the jury could have concluded that the prosecutrix was retarded and attended a “retarded school.” The jury could also observe the demeanor of the prosecutrix as she testified. The State contends the jury could infer that the prosecutrix did not have the mental capacity required to consent. From the record it is obvious that the prosecutrix did not possess the mental capabilities of a normal teenager. However, if the prosecution will carefully read Judge Carr’s scholarly opinion in Stephenson, supra, and the cases therein cited as examples, it will become evident that the State failed to prove either lack of consent or lack of mental capacity to consent.

111

There was not sufficient evidence presented at trial upon which the jury could base a verdict of guilty beyond a reasonable doubt. The jury in order to convict the appellant would have had to believe the prosecutrix’s testimony and infer that the prosecutrix was an idiot or incapable of consenting to sexual intercourse. While the jury may infer facts from other established facts, mere suspicion, surmise or conjecture as to what might have occurred will not sustain a conviction. Hand v. State, 26 Ala.App. 317, 159 So. 275 (1935).

Here the State seeks to prove all the material elements of a crime by inference. The inferences were based upon the mental ability of the prosecutrix. The seemingly contradictory nature of the inferences is manifest. Expert testimony on the mental capabilities of the prosecutrix was sorely needed. A layman's testimony simply to the effect that the prosecutrix is retarded is not a sufficient basis from which to draw the inferences sought by the State.

In Stephenson, supra, Judge Carr recites from Bloodworth v. State, 6 Baxt. 614, 65 Tenn. 614, 32 Am.Rep. 546, wherein the testimony of the prosecutrix’s family physician failed to establish that she was mentally incapable of consenting. Referring to the physician’s testimony in Bloodworth, we find:

“ . . . He states that ‘she was a woman of very weak mind, and almost an idiot.’ He gave it as his opinion that she had enough mind to consent to have intercourse with a man, but that he thought she did not have mind enough to know what that consent was, etc. This is, as we have said, very unsatisfactory evidence as to the capacity of the party, and from it we could hardly be justified in concluding that she was an idiot, wholly incapable of assenting to the act complained of; nor could a court or jury well be called on to say with precisely how much intelligent comprehension of the nature and consequence of an act a party under such circumstances must have acted in order to make out the element of this offense, given in the statute, of its being forcible and ‘against her will.’ ”

We should not be understood to hold that in a proper case the jury might not draw the above inferences. A prosecutrix might be competent to testify and that testimony might inferentially prove that sexual intercourse took place between the prosecutrix and a defendant. The State then might, after producing sufficient evidence, contend that the same hypothetical prosecutrix was an idiot or mentally incapable of consenting to sexual intercourse. Not allowing the State to pursue such a course would in many cases amount to a grant of immunity to those fiends who prey on mentally deficient women.

When the prosecutrix was called to testify, the appellant’s counsel approached the bench. There is no record of what was discussed. The prosecutrix then testified. No objection was made to her incompetence as a witness. We assume that on retrial a more in depth exploration of the prosecu-trix’s competence to testify will be made.

If the State was unprepared to prove the lack of mental capacity to consent on the part of the prosecutrix, an indictment under Title 14, § 399, supra, would have pre-termitted the issue of consent. However, since the State chose to proceed under the common law offense, it must meet the full measure of proof in order to sustain a conviction. Failing to do so entitles the appellant to a new trial.

REVERSED AND REMANDED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., and BOWEN W. SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2107.
    Supreme Court of Alabama.
    April 29, 1977.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, petitioner.
    J. Ronald Storey and Richard H. Ramsey, III, Dothan, for respondent.
   EMBRY, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


author: KARL, Justice.

text:
    William SADOWSKI, Appellant, v. Robert SHEVIN, etc., et al., Appellees.
    No. 49769.
    Supreme Court of Florida.
    March 10, 1977.
    Talbot D’Alemberte, of Steel, Hector & Davis, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Michael M. Parrish and Barry Silber, Asst. Attys. Gen., for appellees.
    Jay Hershoff, of Hershoff, Smith, Berlin-sky & Lieberman, Miami and Sheridan K. Weinstein, of Papy, Levy, Carruthers & Poole, Coral Gables, for intervenor.
   KARL, Justice.

This cause is before us on direct appeal from a decision of the District Court of Appeal, Third District, upholding the constitutionality of Section 106.15(1), Florida Statutes, thereby vesting jurisdiction in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

The appellant, William Sadowski, became a candidate for a seat in the Florida House of Representatives by announcing his candidacy, seeking support of citizens, receiving campaign contributions and establishing a campaign account. The legislative seat he opted to seek was in District 113, then occupied by an incumbent state representative. Sadowski could not file his qualification papers or pay his qualification fees and party assessments until noon on July 6, 1976, the sixty-third day prior to the first primary, which was after the scheduled adjournment of the 1976 regular session of the Florida Legislature.

He was desirous of spending campaign treasury funds prior to the qualification date, including funds for media advertising and printing, but was prohibited from doing so by Section 106.15(1), Florida Statutes, which provides:

“106.15 Certain expenditures prohibited
(1) No person, candidate, political party, political committee, or person acting on behalf of another shall, prior to qualifying for office, directly or indirectly in furtherance of any candidacy make any use of:
(a) Advertising on radio or television;
(b) Advertising in newspapers, magazines, or periodicals;
(c) Advertising on billboards, banners, or streamers;
(d) Advertising on campaign literature or any other printing; or
(e) A rented hall in which to address the public.”

Contending that Section 106.15(1), Florida Statutes, would abridge his constitutional right to speak on public issues of the day, including the activities of the Florida Legislature then in session, he filed a complaint for injunctive and declaratory relief seeking to have declared unconstitutional the section of the statute which proscribed such activities.

Ronald S. Lieberman, a candidate for the same elective office who was allowed to intervene in the trial court, contended that, in accordance with the dictates of Section 106.15(1), Florida Statutes, his campaign was geared to July commencement and that he would be substantially disadvantaged by the granting of Sadowski’s request for preliminary relief.

The trial judge denied appellant’s motion for preliminary injunction and found that granting of the motion would disturb the status quo now existing under the Florida election laws and that appellant had been guilty of laches in challenging the act.

Interlocutory appeal was taken to the District Court of Appeal, Third District, from this order denying preliminary relief. The district court initially discussed the broad discretion of the trial judge in granting, denying, dissolving or modifying injunctions and determined that sub judice the trial judge had not abused his discretion since granting of the requested relief would have caused substantial turmoil in the upcoming fall election and campaign. Finding it necessary to resolve the constitutional issue because it concluded that, if Section 106.15(1), Florida Statutes, is unconstitutional, then regardless of the above grounds, appellant’s request for injunctive relief should have been granted, the district court held Section 106.15(1), Florida Statutes, constitutional as a reasonable restriction on First Amendment free speech rights to preserve the integrity of the electoral process and to insure free and fair elections.

Although the questions raised in this cause have become moot with the passing of the qualifying time and the election, we feel constrained to retain jurisdiction and resolve the question as to the constitutionality vel non of Section 106.15(1), Florida Statutes, since this is a matter of great public importance in the administration of the law and is of general interest to the public. Cf. DeHoff v. Imeson, et al., 153 Fla. 553, 15 So.2d 258 (1943), Tau Alpha Holding Corporation, et al. v. Board of Adjustments of City of Gainesville, et al., 126 Fla. 858, 171 So. 819 (1937), Pitt v. Belote, et al., 108 Fla. 292, 146 So. 380 (1933), State ex rel. Railroad Com’rs v. Southern Telephone & Construction Co., 65 Fla. 67, 61 So. 119 (1913), Clark v. State, 122 So.2d 807 (Fla.3rd DCA, 1960), De Coningh v. City of Daytona Beach, 103 So.2d 233 (Fla.1st DCA, 1958).

Indisputably, the Legislature is charged with the responsibility and authority of regulating the election process to protect the integrity of that process and to insure free and fair elections. Treiman v. Malmquist et al., 342 So.2d 972, filed February 17, 1977, Danciu v. Glisson, 302 So.2d 131 (Fla.1974), Bodner v. Gray, 129 So.2d 419 (Fla.1961). We hold, however, that the Section 106.15(1) regulation of election activities is a restraint of free speech and a restriction on the quantity of a candidate’s communication and diversity of political speech contrary to the dictates of the Supreme Court of the United States in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). It effectually constitutes a limitation on campaign spending.

The Legislature intended 106.15(1) to limit campaign spending by confining certain major expenditures to a designated and limited time period. That intention is manifested in the placement of the section in the chapter of the statutes regulating campaign financing and by the legislative titles of the act as well as the specific section. Berger v. Jackson, 156 Fla. 251, 768, 23 So.2d 265 (1945).

The changes in Section 106.15(1) included in Chapter 74-200, Laws of Florida, do not detract from the clear legislative intent nor do they transform the prohibition on campaign spending into a constitutionally acceptable act. The statute, as it is before us, denies to candidates their fundamental right to speak to political issues and to advocate their candidacy by making use of advertising in various effective media and in rented halls until they are within the described political season. The fact that they may spend unlimited amounts for such purposes in the designated time period does not cure the infirmity nor make the speech restraints any more acceptable.

Determining portions of the Federal Election Campaign Act of 1971, as amended in 1974, limiting political campaign expenditures, to be unconstitutional infringements on the First Amendment right of free speech because they constituted restraints on the quantity and diversity of political speech, the United States Supreme Court, in Buckley v. Valeo, supra, explicated:

“The Act’s contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U.S. 476, 484 [77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498] (1957). Although First Amendment protections are not confined to ‘the exposition of ideas,’ Winters v. New York, 333 U.S. 507, 510 [68 S.Ct. 665, 667, 92 L.Ed. 840] (1948), ‘there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs ... of course including] discussions of candidates. . . ’ Mills v. Alabama, 384 U.S. 214, 218 [86 S.Ct. 1434, 1437, 16 L.Ed.2d 484] (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 [84 S.Ct. 710, 721, 11 L.Ed.2d 686] (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 [91 S.Ct. 621, 625, 28 L.Ed.2d 35] (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’
“. . . In contrast to O’Brien [United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672], where the method of expression was held to be subject to prohibition, Cox [Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487], Adderley [Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149], and Kovacs [Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513] involved place or manner restrictions on legitimate modes of expression — picketing, parading, demonstrating, and using a soundtruck. The critical difference between this case and those time, place, and manner eases is that the present Act’s contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed.
“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.
“. . .In the free society ordained by our Constitution it is not the government but the people — individually as citizens and candidates and collectively as associations and political committees— who must retain control over the quantity and range of debate on public issues in a political campaign.”

The decision as to which contender for a particular political office should be entrusted with the power of that office rests exclusively with the people. They are entitled to all the information that each candidate can provide about himself, his opponent and their respective positions on the relevant political issues. The entire process is hampered if the information is restricted or unavailable. The public’s “need to know” is most critical during an election campaign.

Appellees posit that Section 106.15(1), Florida Statutes, advances an important governmental interest in protecting the public from frivolous or fraudulent candidacies and in avoiding deception and even frustration in the democratic process by limiting the use of campaign advertising to serious candidates. This act, however, does not necessarily effect the result suggested by appellees since nothing in the act prevents an individual from making his candidacy known to the people through methods of communication other than those specified by this statute. Moreover, if the people are given the necessary information, they will fulfill their responsibility to sort the candidates and separate those who are serious from those who are engaged in political frivolity.

Accordingly, we find Section 106.15(1), Florida Statutes, unconstitutionally viola-tive of freedom of speech rights in that it is designed primarily to be a limitation on the quantity of political speech. Therefore, the decision of the District Court of Appeal, Third District, is reversed, and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . Section 106.01 l(l)(b), Florida Statutes.

      . Section 99.061(1), Florida Statutes.

      . Chapter 73-128, Laws of Florida, was entitled “AN ACT relating to elections; regulating campaign finances; . . Section 15, Chapter 73-128, Laws of Florida, was the predecessor of the present Section 106.15, and it was labeled by the Legislature “section 15. certain expenditures prohibited. — .” Chapter 74-200, Section 9, amends Section 106.15(1). The chapter title is “AN ACT relating to elections; revising various subsections of the campaign financing chapter of the election code; . .,” and the particular paragraph is, “Section 9. Subsection (1) of sec. 106.15, F.S., 1973, is amended to read: 106.15 Certain expenditures prohibited. — .”

      . Chapter 74-200, Laws of Florida, amended the statute as follows:
      “(1) No person, candidate, political party, political committee, or person acting on behalf of another shall, prior to qualifying for office, directly or indirectly make any-expenditure in furtherance of any candidacy fer the following purposes make any use of :

      (a) Advertising on radio or television;
      (b) Advertising in newspapers, magazines, or periodicals;
      (c) Advertising on billboards, banners, or streamers;
      (d) Advertising on campaign literature or any other printing; or
      (e) Renting of hall in which to address the public.
      However, a person, candidate, political party, political committee, or person acting on behalf of another shall be permitted to reserve, but make ne use of, -advertising time and space prior to qualifying for office.”


text:
    The FLORIDA BAR, Complainant, v. Richard H. COBOURN, Respondent.
    No. 51379.
    Supreme Court of Florida.
    April 11, 1977.
    Nicholas R. Friedman, Asst. Staff Counsel, North Miami, for The Florida Bar, complainant.
   PER CURIAM.

The Florida Bar has submitted the following Petition, together with sworn convincing proof of misconduct, justifying the entry of the following Order:

“PETITION FOR TEMPORARY SUSPENSION UNDER INTEGRATION RULE 11.10(5)
“The Florida Bar, Complainant, respectfully petitions this Court to temporarily suspend RICHARD H. COBOURN, pursuant to Integration Rule 11.10(5) of The Florida Bar.
“The Florida Bar further petitions this Court to issue an Order of Injunction, pursuant to Integration Rule 11.10(5), preventing any bank from disbursing funds, trust funds, or releasing any other properties from any account or upon any obligation of RICHARD H. COBOURN, except upon further order of this Court.
“And, The Florida Bar further petitions this Court, pursuant to Integration Rules 11.10(5) and 11.10(1), to order the Respondent, RICHARD H. COBOURN, to report and account fully and completely to the Clerk of this Court, with copy to Staff Counsel of The Florida Bar, as to each Trust Account, office account and/or general account upon which he is a signatory, as provided in Integration Rule 11.02(4).
“In support of this petition The Florida Bar states as follows:
“1. The Respondent is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida and the Integration Rule of The Florida Bar.
“2. Attached is the affidavit of Michael D. Bodne, Esquire, attorney for Ms. Olga Hardman, a 74 year old widow. The affidavit shows that Richard H. Cob-ourn was given $50,000 by Mrs. Hardman to invest in tax certificates but has failed to account for or return the $50,000.
“3. Grievance Committee 17A of the Seventeenth Judicial Circuit has found probable cause that Richard H. Cobourn has converted Mrs. Hardman’s $50,000 to his own use .
“4. Attached are the affidavits of Jerry Glick and Louis D. Segall. Their affidavits show that Richard H. Cobourn has failed to promptly deliver or even account for $12,853.49 of trust monies. .
“5. The affidavits . . . also show reason to believe that Richard H. Cobourn’s trust funds and other accounts are in disarray and in violation of the Integration Rule of The Florida Bar.
“6. Attached is the affidavit of Ms. Garnett Kelly. The affidavit shows that Richard Cobourn has failed to account for $11,000 of trust monies. .
“7. The affidavit of Ms. Kelly . also shows reason to believe that Richard H. Cobourn has abandoned his law practice, taking all known monies with him with disregard for clients, the public, and the rules of this Court.
“8. Attached is the affidavit of Paul E. Gilbert. The affidavit shows that Richard H. Cobourn has failed to promptly deliver or even account for $22,000 of trust monies.
“9. The affidavits and attachments clearly show serious and substantial irregularities in the trust accounts and general accounts of Richard H. Cobourn.
“10. The affidavits and attachments clearly show reason to believe that Richard H. Cobourn has already converted to his own use approximately $100,000 of monies entrusted to him by the public.
“11. The affidavits and attachments clearly show reason to believe that Richard H. Cobourn has abandoned his responsibilities to the public, his clients and this Court.
“12. Pursuant to Integration Rule 11.-10(5), this Petition is filed with the authorization of the President of The Florida Bar, Edward J. Atkins.
“WHEREFORE, The Florida Bar fears great public harm will continue to be done unless immediate action is taken to suspend Richard H. Cobourn, pursuant to Integration Rule 11.10(5).”

The Court has carefully examined the accompanying affidavits demonstrating the alleged misconduct of respondent. It is, therefore, ordered that:

(1) Respondent be and is hereby forthwith suspended from the practice of law in this State, such suspension to continue until respondent shall show just cause for modification of said order or until the Court shall modify same.

(2) Respondent shall make a complete financial report of his trust funds and accounts to the Clerk of this Court within thirty (30) days from the entry of this order.

(3) All commercial banks, savings institutions or others having possession of trust funds received from respondent are directed to retain same and account forthwith to this Court relating to the amounts and conditions of such funds. Such report to be made to this Court within ten (10) days after receipt of a copy of this order.

(4) Respondent is enjoined from withdrawing any escrow funds now on deposit with any commercial institutions without further order of this Court.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and KARL, JJ., concur.


author: KARL, Justice. BOYD, Justice,

text:
    G. Patrick ILEY et al., Petitioners, v. Robert HARRIS, Respondent.
    No. 50715.
    Supreme Court of Florida.
    April 21, 1977.
    W. Gray Dunlap, County Atty., and Scott L. Knox, Asst. County Atty., for petitioners.
    John T. Robinson, St. Petersburg, for respondent.
   KARL, Justice.

We have for review on certiorari granted a decision of the District Court of Appeal, Second District, in Iley v. Harris, 339 So.2d 290 (Fla. 2d DCA, 1976), which passed upon a question which it certified to be of great public interest. Jurisdiction vests under Article V, Section 3(b)(3), Florida Constitution.

Robert Harris, the appellee, applied to appellants, as the Board of County Commissioners of Pinellas County, for a license to carry a pistol under Section 790.06, Florida Statutes. At the time he made application, Harris was sixty-five years of age, of good moral character and described by witnesses as temperate, industrious and, in all respects, fit to have a gun permit. After his request was denied, he obtained an alternative writ of mandamus directed to the Board. Upon denial of the Board’s motion to dismiss, the peremptory writ was issued, and on appeal, the order of the trial court was affirmed. Iley, et al. v. Harris, supra. Therein, the Second District Court of Appeal certified the following question to us:

“Does Section 790.06, Florida Statutes, vest a Board of County Commissioners with any discretion in the issuance of licenses to carry firearms to persons meeting the statutory criteria of age and good moral character?”

Section 790.06, Florida Statutes, is derived from Chapter 4147, Laws of Florida 1893, and has not been amended for over seventy years. It provides:

“How license procured. — The county commissioners of the respective counties of this state may at any regular or special meeting grant a license to carry a pistol, Winchester or other repeating rifle, only to such persons as are over the age of 21 years and of good moral character, for a period of 2 years, upon such person giving a bond payable to the Governor of the State in the sum of $100, conditioned for the proper and legitimate use of said weapons, with sureties to be approved by the county commissioners. The commissioners shall keep a record of the names of the persons taking out such a license, the name of the maker of the firearm so licensed to be carried, and the caliber and number of the same.”

In Smith v. State, ex rel. Osborne, 121 Fla. 241, 163 So. 524 (Fla.1935), affirming the judgment of the trial court awarding a peremptory writ of mandamus directed to the Board of County Commissioners of Marion County, the court considered the subject statute and stated:

“The only question presented here was whether or not where a person over 21 years of age, of good moral character, applies to the board of county commissioners for a license to carry a firearm such as is contemplated under section 5101, R.G.S., section 7203, C.G.L., and it does not appear that the person applying for such license intends to use the firearm for which such license is to apply for an unlawful purpose, it thereupon becomes the duty of the board of county commissioners to issue the license when the terms of the statute have been complied with and it does not appear that it is the purpose of the applicant to use the firearms described in his application for unlawful purposes.”

The District Court certified the question to us in recognition of the considerable changes that have taken place in Florida in the forty years since Smith, supra, and the amendments and additions that have been made to other sections of Chapter 790, Florida Statutes. In answering the certified question, we must determine whether those changes have affected the viability of Smith, supra.

We have considered the effects of the increased urbanization of Florida since Smith. We have carefully reviewed the changes in the laws pertaining to weapons and firearms. We have also determined that the Court did not recede from or modify Smith, supra, when it considered the constitutionality vel non of Section 790.05, Florida Statutes, in Davis v. State, 146 So.2d 892 (Fla.1962). Specifically noted is the addition to Chapter 790 of Section 790.-25(4):

“Construction. — This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act shall be supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.”

We conclude that, in enacting Section 790.06, Florida Statutes, the Legislature intended that the respective county commissions issue the requested permits to all applicants possessing the qualifications of age and good moral character, and that nothing has intervened since the Smith decision to create any doubt as to that intent. We adhere to the precedent established in Smith, supra, and decline to unsettle the law that is so well established.

Accordingly, we answer the certified question in the negative, affirm the decision of the District Court of Appeal, Second District and discharge the writ of certiorari.

It is so ordered.

OVERTON, C. J., and ADKINS and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I respectfully dissent. Section 790.06, Florida Statutes, states that:

“The county commissioners of the respective counties of this state may at any regular or special meeting grant a license to carry a pistol, Winchester or other repeating rifle, only to such persons as are over the age of 21 years and of good moral character . . . .”

The above statutes says that the commissioners may grant permits but does not say they shall issue same.

Section 790.25(4), Florida Statutes, provides:

“This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. . . ."

I have carefully examined these complicated statutes and have found nothing which mandates that all persons over the age of twenty-one years and of good moral character shall be entitled to receive licenses to carry weapons otherwise prohibited in the statutes. County commissioners are closer to the people than other public officials and reflect the thinking of the communities in which they serve. They generally know, or can easily ascertain, the needs, moral character and fitness of applicants, and it therefore appears to me that the Legislature intended that permission to carry prohibited weapons would be granted in the exercise of discretion by the county commissioners. If this were not so, a clerk could routinely investigate and issue permits without involving the boards of county commissioners.

It should be obvious that Chapter 790, Florida Statutes, relating to weapons and firearms, should be revised to meet modern conditions, but I am deeply concerned over the result of the majority opinion which, if literally construed, would require boards of county commissioners to grant licenses to bear firearms to approximately three million Floridians.


text:
    THE FLORIDA BAR. In re AMENDMENT TO the INTEGRATION RULE-SPECIAL ELECTIONS TO FILL VACANCIES ON the BOARD OF GOVERNORS.
    No. 51076.
    Supreme Court of Florida.
    April 21, 1977.
    Edward J. Atkins, Miami, President, Russell Troutman, President-elect, Leonard H. Gilbert, Tampa, and Elinor P. Smith, Tallahassee, The Florida Bar, for petitioner.
   PER CURIAM.

The Petition of The Florida Bar is granted and Article III, Section 5 of the Integration Rule is amended, effective immediately, to read as follows:

5. The members of the Board of Governors from each judicial circuit shall be nominated and elected by the active members of The Florida Bar residing in such judicial circuit. Each elected member shall hold office for two years and until his successor is elected and qualified. Elections • shall be held each year beginning in 1974. The Board of Governors shall, through bylaw adopted pursuant to this section, provide for staggered terms with approximately one-half of the circuit representatives being elected each year. The Board of Governors may provide for interim one-year terms for circuit representatives to institute the establishment of staggered terms. The ByLaws shall provide for all nominations and elections of members of the board of governors. Newly elected members shall take office at the conclusion of the annual meeting of The Florida Bar following election to office. Any vacancy arising on the Board of Governors shall be filled for the unexpired term by a special election held in the circuit in which the vacancy occurs in accordance with the Bylaws, which bylaws shall provide for a nominating and election procedure similar to that provided in this article.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


text:
    In the Interest of A. L. D., a child.
    No. 76-571.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.
    Duane N. Ivester and Chester G. Senf, Jacksonville, and 'Nyjola S. Grybauskas, St. Petersburg, for appellant.
    Robert J. Finck, Walter J. Hunston, Jr., Mark I. Shames and Richard A. Jacobson, Legal Aid Society, St. Petersburg, for ap-pellee.
   PER CURIAM.

This court sua sponte finds that the order on the discovery motion appears to be a nonappealable interlocutory order. Considering the petition as one for review by common law certiorari, the petition should be, and it is hereby, denied as we find no departure from the essential requirements of law.

McNULTY, C. J., and BOARDMAN and GRIMES, JJ., concur.


author: SCHEB, Judge.

text:
    Gloria Sue HARRELL, Appellant, v. Winfred M. HARRELL, Appellee.
    No. 76-670.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1977.
    Ann Loughridge Kerr, Tampa, for appellant.
    James S. Moody, Jr., Trinkle, Redman, Clawson, Alley, Swanson & Moody, Plant City, for appellee.
   SCHEB, Judge.

On this appeal by the wife from a judgment of dissolution, we find one point to have merit. The court erred in partitioning the parties’ nursery business when there was no prayer for partition and the issue was not tried by consent. Doane v. Doane, 330 So.2d 753 (Fla. 2d DCA 1976); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972).

Accordingly, the following paragraph in the court’s final judgment is hereby stricken:

“ORDERED that the nursery plants, and the equipment used in the operation thereof, be divided equally between the parties, or in the alternative be sold and the proceeds divided equally, unless the parties otherwise reach agreement thereon.”

Otherwise, the judgment is affirmed.

BOARDMAN, C. J., and McNULTY, J., concur.


text:
    CONTRA CONSTRUCTION CORPORATION, Appellant, v. James D. ROSENBAUM and Evelyn F. Rosenbaum, his wife, Appellees.
    No. 76-342.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Herman Grayson, Miami Beach, and Frank M. Brezina, Miami, for appellant.
    Lapidus & Hollander, Miami, Green & Kane, Miami Beach, for appellees.
    Before HENDRY, C. J., and NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Truly Nolen, Inc., v. Atlas Moving & Storage Warehouses, Inc., 125 So.2d 903 (Fla. 3d DCA 1961); McMullen v. McMullen, 185 So.2d 191 (Fla. 2d DCA 1966); Rylander v. Sears Roebuck & Company, 302 So.2d 478 (Fla. 3d DCA 1974).