text:
    DENVER-ALBUQUERQUE MOTOR TRANSPORT, INC., a corporation v. Cecil GREEN and Thomas Hudson.
    Civ. 743.
    Court of Civil Appeals of Alabama.
    May 5, 1976.

      Russell L. Irby, Eufaula, for appellant.
    William H. Robertson, Clayton, for ap-pellees.
   BRADLEY, Judge.

This is an appeal from a judgment of the Barbour County Circuit Court, Clayton Division, awarding Cecil Green and Thomas Hudson, appellees here, $4,357.96 plus costs. The amount is equal to mileage payments due appellees for four truck hauls, less fuel permit fees and incidental expenses already paid by appellant, Denver-Albuquerque Motor Transport, Inc., (hereinafter D & A).

D & A filed a complaint which commenced this suit on May 14, 1975. This complaint, sounding in detinue, sought possession from Green and Hudson of two identified Fruehauf refrigerated trailers, and claimed damages for wrongful detention thereof in the sum of two hundred dollars per day from May 7, 1975.

After a hearing held May 15 the county sheriff was ordered to seize the trailers and, upon D & A’s posting of bond, to deliver the trailers to D & A. D & A posted such bond and was given possession of the trailers.

On June 23, 1975 Green and Hudson filed an answer and counterclaim. The answer admitted that D & A had title to the equipment in question, but alleged that Green and Hudson had a lien against the equipment for money owed them on a contract with D & A. The counterclaim sought judgment in the amount of $5,000, costs and attorney’s fees.

In its amended complaint and reply, D & A denied the lien and demanded judgment in the sum of $2,036.60 for the unlawful detention of the trailers.

Trial was held before the judge sitting without a jury. On September 5, 1975 judgment was rendered in favor of Green and Hudson. D & A’s motion for new trial was denied.

The facts of the case appear to be as follows :

On January 27, 1975 Green entered into a contract with D & A. In March, Green signed another identical Contractor Operating Agreement with D & A, to which Hudson was also a party. Under the terms of these form contracts, Green and Hudson, independent truckers, agreed to supply and operate tractors on behalf of D & A, who would supply trailers and arrange cross-country hauls for its customers. The contract gave D & A broad authorization to schedule hauls, and placed a great many requirements on Green and Hudson regarding operation of the vehicles. Clause 2(a) of the contract provided:

“Contractor [Green and Hudson] shall be paid .38 cents-per-running-mile for each mile that the Equipment is operated for and on behalf of Carrier [D & A]. Such mileage shall be computed on the basis of the dispatch instructions communicated by Carrier to Contractor, from the origin to the destination of each movement specified on the dispatch, using the mileages published in the current edition of the Household Goods Carriers’ Mileage Guide.”

Green and Hudson testified that they made two hauls apiece for which mileage payments were never made by D & A.

In late April or early May, Green and Hudson completed their last hauls for D & A, unloading at separate points in Georgia. Thereafter they drove their equipment to Green’s residence in Barbour County, Alabama, where they remained until the court order of May 15, 1975.

At the trial, Ralph E. Morach, witness for D & A, testified that, to his belief, the two truckers never contacted D & A’s dispatcher after making their last Georgia deliveries. On cross-examination Morach conceded that he had no firsthand knowledge of the matter.

Green and Hudson testified that they did contact the dispatcher, and that the dispatcher specifically told them to go to Green’s home to await further instructions because business was slack.

Green and Hudson further testified that on May 3 or 4 the dispatcher instructed them over the telephone to proceed to Lakeland, Florida. However, they were told they would not be paid thirty-eight cents per mile for the Lakeland run, but instead would only be reimbursed for fuel, about fifteen cents per mile. Green, who was speaking to the dispatcher on the phone, replied that they would not make the run for fuel costs only. The dispatcher answered that they would be in breach if they did not drive to Lakeland; Green told the dispatcher that D & A had breached first by ordering the Lakeland trip for fuel only.

After this phone call, Green and Hudson filed a lien on the trailers.

Subsequently, according to Green, the dispatcher was contacted and told by Green that the trailers would be delivered to any point requested if D & A would pay Green and Hudson all money owed them. Green’s request for payment received no answer.

On approximately the 9th of May, Morach was told by officials at D & A to recover the trailers. Over a period of several days he repeatedly tried to reach Green and Hudson from Denver by telephone. None of these attempts succeeded.

Morach then flew to Barbour County and went with the deputy sheriff to Green’s residence. Green was not there, so no contact was made.

Shortly thereafter the detinue suit was filed.

On appeal, D & A presents us with two issues. We shall address the second issue first, for it is dispositive of most matters involved here.

This issue is whether or not the trial court erred in finding that Green and Hudson were justified in “rescinding” the contract. Actually, the trial court made no finding of rescission, nor does the evidence show that recission was the issue involved. It is apparent that the trial court did find that D & A had breached the contract, thereby excusing Green and Hudson from further performance and supporting their counterclaim. The evidence is legally sufficient to support such a finding.

The previously recited evidence shows conflicting testimony as to whether or not the trips from Georgia to Barbour County and from there to Lakeland were ordered by D & A’s dispatcher. It is the province of the trier of fact to resolve such conflicts, Morgan v. Larde, 282 Ala. 426, 212 So.2d 594. Presumably, the trial court decided that the dispatcher had so ordered. In such case, Green and Hudson were clearly entitled to thirty-eight cents per mile for the Lakeland run. D & A’s insistence that the truckers perform for substantially less than one-half their contracted-for compensation was a repudiation of the contract, Mid-State Homes, Inc. v. Brown, 47 Ala.App. 468, 256 So.2d 894. Green and Hudson were within their legal rights in treating the contract as totally breached, Saliba v. Brackin, 260 Ala. 103, 69 So.2d 267. Their further performance was excused, and they had an immediate cause of action, Waters v. Weintraub, 255 Ala. 530, 52 So. 2d 510.

We are not impressed with D & A’s contention that the drivers were not entitled to thirty-eight cents per mile because the Barbour County trip was for the drivers’ benefit and not that of D & A. Contractual provision 2(a) expressly indicates that the test to be applied in determining the applicability of the thirty-eight cent rate is the dispatcher’s instructions. There was testimony that the dispatcher had instructed appellees to drive to Barbour County. The findings of the trial court sitting without a jury based on oral testimony are presumed correct, Skipper v. Wright & Colquett, 30 Ala.App. 409, 6 So.2d 896.

D & A also asserts that their refusal to pay thirty-eight cents per mile, while inconsistent with the contract, is not sufficient to justify finding total breach, McAllister-Coman Co. v. Matthews, 167 Ala. 361, 52 So. 416. We note that in the McAllister case the defaulting party’s breach was a very minor incident in the course of a sizeable commercial contract. By contrast, D & A’s repudiation of the thirty-eight cent rate goes to the very heart of the contract: this rate is the only consideration which passes to appellees. Insisting on performance at a much lower, unauthorized scale of compensation is clearly a substantial breach.

Our determination that the trial court committed no reversible error in finding the contract breached disposes of the great bulk of D & A’s first issue. In arguing this issue D & A asserts that the trial court erred in construing certain provisions of the contract which require Green and Hudson to pay $100 per day for detaining the trailers, allow D & A to withhold payments to the truckers pending property damage claims, require certain paper work to be submitted by appellees, and require thirty.-day notice of the termination of the contract. All of these points are argued on the basis of construction of the contract placing these obligations on Green and Hudson.

Since the contract has been breached, Green and Hudson are excused from further performance, Waters v. Weintraub, supra. Thus the arguments under appellant’s first issue fail in every particular, including one aspect which requires some discussion :

Provision 1(g) of the contract reads in pertinent part:

“. . . [I]t is agreed that Carrier [D & A] may immediately deduct, from any monies otherwise due to Contractor [Green and Hudson] hereunder, up to $2,500 per occurrence for any public liability or property damage claims which may be asserted against Carrier, . . .”

Relying on this provision, D & A argues that they are entitled to deduct $997.18 for a traffic accident in which Green was involved while driving a D & A truck. There is no proof that D & A has paid this claim or that the claim has been adjudicated and reduced to judgment. The sole question is whether D & A is authorized to withhold the sum from Green’s final settlement pending such payment to claimant or adjudication.

The record reveals that notice of the claim did not reach D & A until June 27, 1975, more than six weeks after their breach of the contract. It was too late then for D & A to invoke contractual privileges against Green, for those privileges had been lost with breach. The trial court was not in error in refusing to allow D & A’s $997.18 deduction.

This interpretation in no way impairs any further recourse D & A may have against appellees arising out of the property damage claim: it merely denies them the contractually-created privilege of holding a reserve fund consisting of money due appellees pending the determination of such claim.

There being no error in the record, the judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J„ and HOLMES, J., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    STATE of Alabama v. INFANTS DIAPER SERVICE, INC., a corporation.
    Civ. 710.
    Court of Civil Appeals of Alabama.
    April 28, 1976.

      Herbert I. Burson, Jr., Acting Counsel, Dept, of Revenue, and Asst. Atty. Gen., and B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Long & Reynolds and James M. Wright, Jr., Montgomery, for appellee.
   BRADLEY, Judge.

This case originated with an appeal to the Circuit Court of Montgomery County of a final tax assessment entered by the State of Alabama. The circuit court rendered a decree in favor of the taxpayer, setting aside the assessment. The State has appealed that decree.

The tax involved is levied under Title 51, Section 629(22), Code of Alabama 1940, Recompiled 1958, which states in pertinent part:

“In addition to all other taxes now imposed by law, there is hereby levied and shall be collected as herein provided a privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting tangible personal property at the rate of 4% of the gross proceeds derived by the lessor from the lease or rental of tangible personal property; . . . provided further, that the privilege or license tax on each person or firm engaging or continuing within this state in the business of the leasing and rental of linens and garments, shall be at the rate of 2% of the gross proceeds derived by the lessor from the lease or rental of such linens and garments.” (Emphasis supplied.)

The taxpayer here is regularly engaged in the linen supply rental business. Two items the taxpayer regularly rents are “dry mopheads” and “walk-off mats,” both cloth products. The State’s assessment taxed the rental of these items at four percent, rather than at the reduced rate of two percent applicable to the rental of linens. The State contends that these two items are not linens.

The decree of the trial court was based on oral testimony heard without a jury on September 8, 1975. After consideration of the evidence, the trial court ruled that dry mopheads and walk-off mats are linens as contemplated by the statute. The correctness of this ruling is the sole question on appeal.

The term “linens” is not defined in Section 629(22), supra; and the generally accepted rule is that, in the absence of statutory definition, the commonly acquired definition of such term must be applied, Republic Steel Corp. v. Horn, 268 Ala. 279, 105 So.2d 446. The trial court’s ruling as to whether or not the items in dispute before it fit into the definition must be affirmed or reversed according to its support in the evidence of record, State v. Wallis, 48 Ala.App. 652, 267 So.2d 172.

In the present case the evidence tended to show that “linens” are no longer considered to be only cloth products made of flax, but may be cotton or synthetic, as are the mopheads and mats in this case. It is the analogy to products which in earlier times were flax-derived that determines whether a product today is considered “linen.” The list of products so considered numbers in the hundreds. There is but a vague distinction between what is and what is not “linen” in today’s usage.

The trial judge had before him samples of the mopheads and mats to examine. This physical evidence was supplemented by testimony to the effect that the products are primarily made from cotton cloth, and both are used for purposes of maintaining the cleanliness of floors.

Additionally, there was testimony to the effect that the State does not object to taxing ‘‘wet mopheads” and “bath mats” as linens at the two percent rate. According to one witness there is no difference, other than the use to which they are put by the customer, between these two products and the. dry mopheads and walk-off mats which the State now denies to be linens.

The dry mopheads and walk-off mats are marketed exactly like undisputedly “linen” products: clean ones are delivered to a customer, who uses them until they become soiled; the linen service then picks up the dirty ones and exchanges a clean set for them; the service launders the dirty products and then re-delivers them to the customer in exchange for the now-soiled second set, which are then washed and re-delivered, etc. A fee is charged to the customer for this entire cycle of service. Labor costs are the largest part of the fee.

Although the marketing techniques employed by appellees would not be controlling, it is of some persuasive value, and supports the tendency of the evidence to show that the products in question are quite similar in characteristics to many “linen” products.

With this state of the record before us, we cannot say that the findings of the trial court are unsupported by the evidence. The decree below is therefore affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Leon Edward ADKINS v. Sarah Frances ADKINS.
    Civ. 810.
    Court of Civil Appeals of Alabama.
    May 5, 1976.
    Taylor & Taylor, Russellville, for appellant.
    Holt, McKenzie & Holt, Florence, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of construction and enforcement of a prior judgment for divorce and property division. We affirm.

The parties were divorced by judgment entered July 12, 1973. The pertinent part of that judgment is as follows:

“10. Sarah Frances Adkins shall have exclusive use, possession, and control of the lot, house and all outbuildings including the mobile home for the duration of her natural life or until such time as she remarries or until such time as she wishes to sell the property as a whole. Under any of the above events in which the property is sold, any equity realized after the payment of all indebtednesses against all of the properties, shall be divided ¿4 to Sara Frances Adkins and 1/3 to Leon Edward Adkins. Leon Edward Adkins is hereby directed to execute the necessary instruments in such an event.”

On June 6, 1975, Mrs. Adkins filed a petition styled “A Petition To Cite For Contempt and For Supplemental Decree.” The essence of the petition was that under authority of the original divorce judgment, plaintiff had for some time attempted to sell the property for $50,000.00; that defendant refused to execute the necessary instruments of conveyance and had harassed and embarrassed plaintiff and prevented the sale; that defendant was in contempt of the court by his failure to abide by the decree. The petition then requested an order supplementing the original judgment by authorizing plaintiff to secure a sale and directing defendant to cooperate by executing necessary instruments of conveyance of his interest.

The petition upon being presented to the court was set for hearing on June 16, 1975. Defendant appeared specially, objecting to the early setting for hearing. However, defendant at the same time filed an answer and cross-bill. The cross-bill requested construction of the original judgment and averred that plaintiff had failed to maintain the property as directed. Certain other parties were alleged to be interested in the property and were requested to be made parties.

The court continued the matter generally to be reset upon motion of either party. It recognized the oral offer of defendant to pay $51,000.00 for the property if such offer was accepted the same day.

On July 3, 1975, plaintiff filed answer to the cross-bill. The same date, defendant amended his cross-bill by offering to pay into court the sum of $51,000.00 less the mortgage indebtedness if the property were conveyed to him. However, it was requested that the interest of plaintiff be charged for the alleged cost of necessary maintenance not performed. The amended cross-bill was answered on July 15 with a counter proposal of sale and purchase.

September 9, 1975, plaintiff moved for an oral hearing which was set for October 29, 1975. On October 22, 1975, a written motion for continuance on the ground of a conflicting setting in Walker County was filed by defendant. Denial of continuance was given orally via telephone by the judge and written on the motion. On October 24, 1975, defendant filed written motion for recusal by the judge on the grounds of bias and prejudice against defendant. The motion avers bias and prejudice because of the refusal of the requested continuance and because the original petition of plaintiff for contempt had been set with only 10 days’ notice. On October 28, 1975, defendant withdrew his offer of purchase.

The court proceeded to hear the matter on October 29, without the presence of defendant or his counsel. Judgment was entered authorizing plaintiff to secure a good faith sale. The register was directed to convey the interest of defendant in event of sale. Report and accounting of the sale was directed to be made to the register.

Motion for rehearing was filed, set and heard by the court. Motion was denied.

Defendant presents three issues on appeal. The first is'that the court erred in failing to recuse itself.

The only argument on this issue presented by defendant is that the setting of the original petition for hearing with 10 days’ notice instead of 30 days demonstrates a bias and prejudice against defendant. Such argument has no merit.

The petition alleged willful failure to comply with a prior judgment of the court. It further set out details of such noncompliance. Though it requested additional supplemental relief through enforcement, the sworn petition contained sufficient allegations for the issuance of a rule nisi. Such brought it within the exception to Rule 12(a) of the Rules of Civil Procedure requiring 30 days to answer. If such action were erroneous, it would fall far short of giving grounds for recusal.

In any event, the court granted defendant’s motion for continuance and the petition was not heard or set. In fact, it was more than four months later and after extensive pleading that the petition and cross-petition was heard. Such forbearance at the request of defendant certainly doesn’t support the charge of bias and prejudice.

The second charge is that the court erred in denying a continuance because counsel had a case set in another jurisdiction.

The record discloses the order setting the hearing for October 29 was entered September 9, 1975, and mailed to counsel. It was not until October 22 that defendant’s counsel requested a continuance. This was 42 days after the order. Notice of conflicting setting was given only seven days before the hearing date. There is no indication that other counsel was not available to try one or the other of the cases.

The granting or refusing a continuance of a case set for trial is a matter for the sound discretion of the trial court. The burden of showing gross abuse of that discretion was upon the defendant. In light of the propositions stated in the case of City of Birmingham v. Goolsby, 227 Ala. 421, 150 So. 322, we find no such abuse in this case.

The third issue is that the trial judge erred in entering judgment without taking testimony. Defendant says that the court failed to act as required by Rule 55 (b) (2) ARCP. We can find no violation of Rule 55. 'That rule merely provides for the taking of testimony in event of default if it is necessary to enable the court to enter judgment or carry it into effect. The relief requested in this case was nothing more than to construct and enforce a prior decree of the same court. That was the judgment rendered. Defendant has failed to indicate what testimony was pertinent to such a determination by the court. We perceive no violation of Rule 55.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Joetta LESTER v. PROTECTIVE LIFE INSURANCE COMPANY, a corporation and Alabama Motorists Association, Inc. a corporation.
    Civ. 691.
    Court of Civil Appeals of Alabama.
    May 5, 1976.

      O’Bannon & Gonce, Florence, for appellant.
    E. B. Haltom, Jr., Florence, for appellees.
   HOLMES, Judge.

This appeal is from the Circuit Court of Lauderdale County. Plaintiff-appellant, Mrs. Joetta Lester, brought an action against the defendant-appellees, Protective Life Insurance Company and Alabama Motorists Association, Inc. The action sought recovery of accidental death benefits payable under an accident insurance policy issued by defendant Protective Life Insurance Company. The policy insured Theo Lester, husband of plaintiff-appellant. The trial court, sitting without a jury, found in favor of defendant-appellees, and plaintiff appeals.

The issue for our determination, as presented by able counsel for appellant, is the construction to be accorded certain terms of the accident insurance policy which is the subject of this lawsuit.

The facts which gave rise to this litigation are not in dispute, and were stipulated by the parties.

On October 13, 1973, a tractor-trailer truck ran off the paved portion of Alabama Highway 20 and turned on its side. Wreckers dispatched to the scene pulled the unit into an upright position. One wrecker was then hooked onto the front of the tractor and began to pull the unit off, when the tractor and trailer separated. The trailer turned over on the deceased, Theo Lester, and crushed him to death.

The only witness to testify at trial was the District Engineer of the Alabama State Highway Department, who described the layout of Highway 20 at the location of the accident.

Alabama Highway 20 is a public highway in Lauderdale County. The right of way for Highway 20 is 200 feet wide. The paved portion of the highway is a strip 24 feet wide running down the center of the right of way. This center strip is bordered on each side by a 10 foot wide shoulder. At the point where the shoulder terminates, a 10 foot wide strip known as the “front-slope” angles down into a ditch. • The back of the ditch rises up to form a 7J4 foot high embankment which is called the “back-slope” of the highway. The right of way itself then extends back for some 50 feet beyond the back slope.

Described more generally, the highway plan consists of a cutout or channel containing the paved portion and running down the center of the right of way.

The witness also testified that the entire right of way is maintained and mowed by the highway department, where physically possible, rather than just the cutout portion.

The exact point where the deceased was killed was also stipulated by the parties. When the trailer turned over on- him, the deceased was standing or squatting on the above described embankment or back-slope.

The applicable provisions of the insurance policy upon which this lawsuit is based provide that death benefits shall be payable if the insured dies due to injury accidentally caused in the following manner:

“As a result of a motor-driven vehicle striking the insured while he is standing, walking, or riding a bicycle on a public highway, as defined below except while on the job as a flagman or otherwise directing traffic; . . .
“PUBLIC HIGHWAY DEFINED— Public Highway as used herein shall mean the traveled and improved portion of the highway open to the public generally for vehicular traffic, and shall not be construed to include any private road or driveway, nor any portion of the driveway or grounds of a gasoline station or railroad yards, station grounds or right of way, nor any river, stream or waterway.”

This policy was written by defendant Protective Life Insurance Company, and was issued to the deceased by virtue of his membership in the Alabama Motorists Association, also a defendant herein.

As noted initially, the trial court rendered judgment for the defendants, and plaintiff appeals. Plaintiff-appellant contends that the deceased, when killed, was on a public highway as defined by the policy. We disagree.

While we have found no Alabama cases exactly on point, the Louisiana case of Davis v. Union National Life Ins. Co., La.App., 54 So.2d 860, is instructive. There the deceased was insured against being struck by a vehicle while on a public highway. The policy defined “public highway” exactly as does the policy here in question.

The deceased was struck and killed while standing on a 4 foot-wide strip of ground between the curb of the street and a sidewalk. The Louisiana Court of Appeals held that under such facts there was no liability under the policy. See also Couch on Insurance 2d § 41:316, wherein it is said:

“The policy of insurance, however, may exclude the shoulder or adjacent area by defining public highway as the traveled and improved portion of the highway open to the public generally for vehicular traffic.”

Under the instant set of facts, within the meaning of this particular policy of insurance, we hold that the deceased did not meet his death while on “the traveled and improved portion of the highway open to the public generally for vehicular traffic.” A steep embankment at least 20 feet from the paved portion of the highway, even though inside the right of way, is to this court not within the policy term quoted above.

It is settled law that the language of an insurance policy where clear and unambiguous must be given effect as such. Southern Guaranty Ins. Co. v. Wales, 283 Ala. 493, 218 So.2d 822. The policy provision in question is clear as applied to the facts before us, and must be effectuated.

In view of our disposition of the foregoing, it is unnecessary to discuss other matters raised by appellant’s brief.

The case is due to be affirmed.

AFFIRMED.

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


text:
    James F. PAULK v. Kathryn U. PAULK.
    Civ. 667.
    Court of Civil Appeals of Alabama.
    May 5, 1976.

      Cassady & Fuller, Enterprise, for appellant.
    Pittman & Whittaker, Enterprise, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from a decree of modification of alimony after remarriage of wife.

This case has traversed a long and complicated course.. There have been several exhaustive hearings resulting in comprehensive and erudite decrees beginning with the original divorce decree and culminating in that from which this appeal was taken. We are impressed with the patience of the trial judge and with his effort to render equity between the parties.

This matter began with suit for divorce with cross-complaint. Divorce was granted on the ground of incompatibility, with custody of four children given to the mother. Child support of $1,000.00 per month and periodic alimony of $500.00 per month was granted the wife. Determination of property division and other alimony provisions was specifically reserved for future consideration.

The testimony disclosed that the parties had married while they were students in college. After the marriage the wife dropped out of college and began work while the husband continued his medical course. After completing undergraduate school the husband entered medical school at the University of Alabama in Birmingham. The wife bore two children while the husband completed his medical studies. The husband worked at various jobs after school hours to support his family and finance his education. He received financial assistance from his family and from scholarship and loan funds. The wife worked between babies and made a contribution to the family’s support.

After receiving his medical degree, husband spent two years in the army. One of the years was spent in Viet Nam. Upon release from the army, the husband set up practice in Enterprise, Alabama. At the time of the divorce, he was practicing medicine with two other doctors in a professional association. His gross income approached $48,000.00 annually.

After the birth of her fourth child, the wife again began to pursue her own education. She ultimately received a baccalaureate degree. A few months before their separation, parties had purchased 85 acres of land and constructed a large home thereon. Because of overruns in construction, the cash assets of the parties had been dissipated and two mortgages were placed on the property. It was because of the anticipated difficulty of disposing of such an expensive property that the court reserved consideration of property division and alimony in gross in the original decree.

Shortly after the divorce, the wife moved from the home to Mobile where she intended to study for an advanced degree. The oldest child, by agreement, returned to live with the father. When a sale for the home had not been found after several months, the parties entered into an agreement on January 31, 1975, whereby the husband purchased the interest of the wife. As a full and final property settlement the husband paid to the wife, $12,-860.00—$7,500.00 in cash and $5,360.00 payable monthly at the rate of $100.00 or $250.00 if husband’s annual net income increased 10% over that of 1974. Other provisions, including attorney fees and maintenance of $50,000.00 in life insurance for benefit of the children, were included. It was also agreed that child support would be reduced $225.00 per month as long as the oldest child remained with his father. The agreement was incorporated in a decree of the court on February 18, 1975.

February 12, 1975, the wife remarried. On March 4, 1975, husband petitioned for modification of alimony because of the remarriage. Wife answered averring that she had not adequately been compensated for her contribution to the marriage and in particular for foregoing her education and aiding the husband in securing his. She further stated that her new husband was unable to support her in the style to which she was accustomed as the wife of Dr. Paulk. She requested continuation of alimony for at least ten years.

Upon the petition and answer another hearing was held.

The evidence disclosed that the wife, Mrs. Paulk, hereafter called Mrs. Williams, remarried on February 12, 1975; that she now resided with her new husband and children in his home on Dauphin Island; that Williams owned and operated a service station, netting income therefrom of $8,000.-00 to $10,000.00 annually; that she was employed, netting $425.00 per month; that Dr. Paulk had also remarried and his wife earned a substantial income as a nurse; that the income of Dr. Paulk remained approximately what it was as of the date of the divorce; that his obligations remained substantially the same except he was now paying the monthly sum of $250.00 on the $5,360.00 involved in the property settlement, and that Dr. Paulk had ceased paying the $400.00 alimony to Mrs. Williams as of March 1, 1975.

There was a rehash of the previous testimony concerning the contribution of the wife to the marriage and the education and career of Dr. Paulk.

The court proceeded to enter a six-page decree recounting the prior decrees, their purpose and intent. It was recalled that the determination of property settlements and alimony in gross was reserved in the original decree. The court considered what power it now possessed to grant either alimony in gross or a continuation of periodic alimony, even though the wife had remarried.

The result was that the court ordered the additional payment to Mrs. Williams of $7,200.00 payable $200 per month for three years. It further ordered a payment of $1,600.00 to Mrs. Williams representing full alimony for the months of March, April, May and June, 1975.

Motion for new trial was filed and additional testimony was taken thereon. A decree was entered denying a new trial, but setting specific dates and times for custody of and visitation of Dr. Paulk with his children.

The appeal of Dr. Paulk presents only one issue. That is: did the court err in requiring payment of alimony after the remarriage of his former wife?

We approach the issue by first stating that the trial court in its decree found that it had the authority to grant Mrs. Williams the additional sum of alimony upon either of two theories. It first said that it had reserved the determination of alimony in gross in the original decree and that the additional sum of $7,200.00 could be granted as alimony in gross. It next said that if it were determined that authority was lacking to grant alimony in gross, there was authority in the court to continue the periodic alimony even though the wife had remarried.

We shall consider the theories of the trial court in the order presented. In reality each theory presents two questions. (1) Did the court possess authority? (2) Is the award supported by the evidence?

What is alimony in gross and how may it be identified has been in considerable confusion in the trial and appellate courts of this state until the decision of the Supreme Court in the case of Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Accepting certiorari of a decision of this court, the Supreme Court, speaking through an erudite opinion written by Mr. Justice Bloodworth, clarified the meaning of many prior decisions concerning alimony in gross,

We set out from Hager v. Hager, supra, several pertinent statements concerning alimony in gross as follows:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce. . . .”
“In addition to compensation for the wife’s inchoate marital rights, an award in gross may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly-owned assets is not practicable. For this very reason, ‘alimony in gross,’ which has come to represent a settlement of property rights is often coupled with an award of periodic alimony.”

The court further said in Hager that

“(A)n award may be made in gross, payable presently or as directed (in installments) based on the value of the wife’s inchoate rights in her husband’s estate, and that absent an express reservation of control such an award is not modifiable.”

Hager further said:

“When the type of award or awards intended is not particularly specified, the source of payment and the purpose are of prime importance. Borton v. Borton, 230 Ala. 630, 162 So. 529.”

Considering the above principles from Hager v. Hager, supra, and applying them to the testimony and the statements of the trial court in its decree, we arrive at the following conclusions. First, the court in the original decree did reserve determination of settlement of property rights until a future time relative to a sale or disposition of the home. Thus the authority of the court to modify the original decree as to property rights and disposition is not in question. Such right was specifically reserved.

Second, the agreement of the parties entered into January 31, 1975, and incorporated in the judgment of the court on February 18, 1975, contained the following :

“The parties hereto enter into this agreement for the purpose of resolving and accomplishing a full and final settlement between them with respect to property settlement arising out of their former status as husband and wife.”

The judgment incorporating this agreement containing the above-stated purpose contained no further reservation of control of the property or marital rights of the parties. The agreement contained remuneration of $12,860.00 to the wife and $250.00 fee to her attorney. Such remuneration was paid to the wife even though the home was admittedly subject to debt in amounts probably greater than its market value. We believe the intent of the agreement, entered into by the wife just 12 days before her remarriage, is clear. It was intended to terminate all of her rights and interest in the estate of the husband as it existed at the time of the divorce. We conclude that such intent was completed by the incorporating judgment of the court. Having reserved no further control in its judgment of February 18, 1975, the matter of property settlement and/or alimony in gross was not thereafter modifiable. Hager v. Hager, supra.

We would further speak to the question of support in the evidence for such an award from the estate of the husband. We have already said, as did the trial court in its decree, that the property was heavily indebted. It had been on the market for sale for some eight months subsequent to the divorce. The evidence was that no offer had been made in a sufficient amount to pay the indebtedness. The only other estate possessed by Dr. Paulk was a half-interest in office property of undetermined value and equity. It is the opinion of the court that the evidence does not support an award of $7,200.00, in addition to the $12,860.00 paid, to be paid from the estate of Dr. Paulk as it existed at the time of the divorce. The indebtedness of such estate exceeded its market value.

We come now to the second theory upon which the court based its award: that of continuation of periodic alimony after remarriage of the wife.

The trial court has correctly stated the law of Alabama that the remarriage of the wife does not ipso facto annul alimony, but only affords a ground for doing so upon petition for modification. But as our esteemed brother Thagard said in Hora v. Hora, 46 Ala.App. 513, 244 So.2d 601.

“(A) subsequent marriage . . . , affords a cogent and convincing reason for the court to modify or cut off the allowance altogether. Morgan v. Morgan, 211 Ala. 7, 99 So. 185.”

At the time of her remarriage, Mrs. Paulk-Williams was receiving $400.00 per month in periodic alimony from Dr. Paulk. Periodic alimony is an allowance for the future support of the wife, payable from the current earnings of the husband. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808. In Hager v. Hager, supra, the court said of periodic alimony that it was

“(S)ubject to modification as circumstances change and ceasing upon the death or remarriage of the wife when the marital duty to support naturally terminates.”

We concede that the last phrase of this statement is mere dicta and does not overrule the rule of Morgan v. Morgan, supra, but it does represent this court’s belief of what the law of alimony should be.

The evidence in this case is that Mrs.' Williams while receiving $400.00 per month in alimony chose to remarry. She had a perfect right to do so. However, having taken such a course, the legal responsibility for her support was placed upon her new husband. How many husbands, present and past should a woman be able to secure support from? If a prior husband’s obligation to pay alimony is not terminated by the remarriage, the result might well be that he is furnishing financial support not only to his former wife but to her husband as well.

The evidence in this case from the wife is that her new husband supports her “in every way.” Though the present husband does not have the income of Dr. Paulk, he does earn enough to replace the alimony being paid by Dr. Paulk. In addition, the wife is working and earning over $6,000.00 per year. It is clear that the wife does not require further payments from Dr. Paulk for her support. In fact, the respected and learned trial judge stated at length that the primary consideration for granting the additional sum of $8,800.00 in alimony after remarriage was not for support but to aid the further education of the wife. Emphasis was placed upon the fact that Mrs. Williams withdrew from college after her marriage to Dr. Paulk and assisted in his education. Though Dr. Paulk financed her pursuit of a college degree after he began his practice, Mrs. Williams wishes to now obtain a master’s or a doctorate degree so that her ability to earn will be increased. The trial judge states that the additional payment is primarily for this purpose and as compensation for the .prior sacrifice of Mrs. Williams during her marriage to Dr. Paulk, rather than a need for present support. This court considers that continuation of periodic alimony after remarriage, as compensation for services freely given during the prior marriage rather than need for present support, is an abuse of discretion. Such basis for an award of periodic alimony is new to the law and if implemented on appeal will have serious precedential consequences. We therefore must respectfully reverse the judgment insofar as it awards the sum of $7,200.00, payable $200.00 per month for three years.

There is no contention of error by appellant in the order of payment of the $1,600.00 which accrued prior to the decree of modification. Therefore, we do not disturb the judgment for that amount.

We affirm the judgment in part. We reverse the judgment for the payment of $7,200.00, and render a judgment granting modification which terminates payment of further alimony as of June 1, 1975, whether denoted alimony in gross or periodic alimony.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    Col. Eldred C. DOTHARD, Director of Public Safety, State of Alabama v. Stanley Eugene WHITMAN.
    Civ. 720.
    Court of Civil Appeals of Alabama.
    April 28, 1976.

      William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for appellant-petitioner.
    No appearance for appellee-respondent.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Coffee County and in the alternative a petition for writ of mandamus. The trial court entered an order requiring the Director of Public Safety to withdraw his order revoking the driver license of Stanley E. Whitman. The Director now appeals from that action of the trial court and in the alternative requests the issuance of a writ of mandamus directing the trial court to rescind his above described order.

It is the contention of the Director that the trial court had no jurisdiction over the cause. For the reasons set out below, we agree.

The record reveals the following pertinent facts:

Stanley E. Whitman was arrested on June 27, 1974, by police officers of the City of Enterprise, and charged with driving while intoxicated. He testified that he appeared at the Enterprise police station the following day and there plead guilty to the offense of reckless driving and paid a fine.

The Director later received on the prescribed form DL-6 a report that Whitman had been convicted of driving while intoxicated. There was some testimony presented at the hearing before the trial judge to the effect that this report was erroneous.

In January of 1975, Whitman received a notice from the Director stating that he had been convicted of the offense of driving while intoxicated. The Director revoked Whitman’s driver license the following February, pursuant to Tit. 36, § 68, Code of Alabama 1940, which provides in pertinent part:

“The director of public safety shall forthwith revoke the license of any driver upon receiving a record of such driver’s conviction of any of the following offenses, when such conviction has become final: . . . driving a motor vehicle by a person . . . while intoxicated; . . .”

In June of 1975, Whitman appealed the Director’s action to the Circuit Court of Coffee County. Whitman also prayed that a writ of mandamus be issued commanding the Director to withdraw his order revoking Whitman’s driver license.

The trial court, after a hearing ore ten-us, issued an order by which the Director was required to vacate his action revoking Whitman’s driver license. In his order, the trial judge found that Whitman was never convicted of the driving while intoxicated offense, as is required for his driver license to be revoked. As noted earlier, the Director contends that the trial court’s order is void in that the court had no jurisdiction over the action commenced by Whitman.

We initially note that Tit. 36, § 68, Code of Alabama 1940, contains the following provision:

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

As pointed out earlier, the same code section imposes a mandatory duty upon the Director to revoke the license of a driver upon receiving a record that the driver has been convicted of driving while intoxicated. Rogers v. Russell, 284 Ala. 477, 225 So.2d 879.

The Alabama Supreme Court has interpreted § 68 of Tit. 36 as meaning that any action brought to review a mandatory act of the Director of Public Safety must be brought in the Circuit Court of Montgomery County, the official residence of the Director. See Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683; Ex parte State ex rel. Russell, 280 Ala. 448, 194 So.2d 851. Accordingly, no other circuit court has jurisdiction to entertain such an action, with the result that an order in such a proceeding is void if issued by any court other than the Circuit Court of Montgomery County. Boyd v. Garrison, 246 Ala. 122, 19 So.2d 385; 46 Am.Jur.2d Judgments § 24.

The able and learned trial judge entered a very detailed order in which he distinguished the Kelley and Russell cases, supra, from the present case in that Kelley and Russell involved actual convictions for proscribed offenses, while Whitman alleges he was not in fact so convicted. He therefore reasoned that Whitman was not bound to bring his action in the Circuit Court of Montgomery County. However, the import of Kelley and Russell, as they interpret Tit. 36, § 68, is that review of the Director’s action is confined to the Montgomery Circuit Court whenever his action is mandatory. The Director’s action is mandatory whenever he receives a report, as in this instance, of a driving while intoxicated conviction.

The initial inquiry before the trial court was thus a jurisdictional one: whether the Director’s action was mandatory. As noted earlier, the Director received a report that Whitman had been convicted of driving while intoxicated, so that his action revoking Whitman’s driver license was mandatory. The answer to this threshold question shows that jurisdiction of the cause was vested in the Circuit Court of Montgomery County. See Kelley, supra, and Russell, supra. The determination of whether or not a conviction actually took place has nothing to do with the matter of jurisdiction, but rather is a question to be addressed in the proceeding before the Montgomery Circuit Court.

We therefore hold that the learned trial judge erred by not granting the Director’s motion to dismiss the cause for want of jurisdiction.

The order of the Circuit Court of Coffee County is void, as discussed above. A void judgment will not support an appeal. Thornton v. First National Bank of Birmingham, 291 Ala. 233, 279 So.2d 496. Accordingly, the appeal is dismissed, and a writ of mandamus will issue directed to Honorable Eris F. Paul, Judge of the Circuit Court of Coffee County, unless within thirty days he shall set aside the judgment commanding the Director of the Alabama Department of Public Safety to withdraw his order revoking Stanley E. Whitman’s driver license.

APPEAL DISMISSED; WRIT OF MANDAMUS AWARDED CONDITIONALLY.

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


text:
    Sally C. FRIDGE v. Charles F. FRIDGE, Jr.
    Civ. 491.
    Court of Civil Appeals of Alabama.
    April 28, 1976.

      W. A. Kimbrough, Mobile, for appellant.
    Caffey & Owens, Brewton, for appellee.
   HOLMES, Judge.

This is an appeal by the appellant-mother from a decree granting appellee-father’s petition to modify the custody provision of a prior decree of divorce.

The parties were divorced by the Circuit Court of Escambia County in 1969. Custody of the two male minor children born of the marriage was awarded to the mother. This decree was modified in 1970 and custody of the oldest child was awarded to the father. This decree was also rendered by the Circuit Court of Escambia County. In 1971, other proceedings initiated by appellant-mother were had in the Escambia County Circuit Court.

In August of 1974, the appellee-father filed a petition in the Circuit Court of Es-cambia County seeking custody of the other minor child, now age 6. At the time of this proceeding the father and his family resided in Mississippi. The mother, her new husband, and the minor child resided in Georgia. After a hearing ore tenus the trial court modified the previous decree and awarded custody to the father. The mother appeals from this order.

The issues as presented by able and distinguished counsel for appellant-mother are: (1) Did the Circuit Court of Escambia County have jurisdiction? and, (2) Was the decree modifying custody supported by the evidence? We answer both in the affirmative.

I

While counsel for appellant presents able and interesting argument that the trial court either does not have jurisdiction or should not entertain jurisdiction since the parties resided elsewhere than in the state of Alabama, the law is contrary.

As seen from the above, the court entered the original decree and prior to this proceeding both parties petitioned the same trial court for relief. We should further note there is no contention that both parties were not residents of the state of Alabama and Escambia County at the time of the original decree.

It is the law of this state that in cases of this nature, jurisdiction, once acquired, cannot be defeated by subsequent events, notwithstanding their character is such as would have prevented jurisdiction originally attaching. Lassiter v. Wilson, 207 Ala. 669, 93 So. 598. As our Presiding Judge Wright said in Leigh v. Aiken, 54 Ala.App. 620, 625, 311 So.2d 444, 449:

“There is another distinctive peculiarity of custody cases and decrees. They are interlocutory in nature, not final; the court retains a continuing jurisdiction. The decree is subject to modification if circumstances change affecting the best interest of the child. . . .”

We therefore find the trial court to have had jurisdiction to modify its own prior order and, further, did not err in exercising this jurisdiction.

II

While counsel for appellant has favored this court with an excellant brief wherein he urges the evidence is not sufficient to support a modification of custody, we have in this instance no alternative but to affirm.

We find the following in the record:

“THE COURT:
“I expect to do it if the parties agree to it. I know the child is of very tender years, but I would like to talk to the child before I make my final decision.
“MR. KIMBROUGH:
“Your Honor, we do not object to it.”

Additionally, the following is found in the record:

“THE COURT:
“Gentlemen, I want to talk to the young man. It may be if I could talk to him just—I want the Court Reporter with me. I don’t want to take down what he says but I want the Court Reporter there with me. I realize the child is some six (6) years of age but I would like to talk to him.”

Additionally, the trial judge referred to the in camera discussion with the child in his remarks to the parties at the close of the testimony.

As seen from the above, it is clear that the child testified in camera. It is also apparent that appellant made no objection to this procedure. In fact, he specifically stated he had no objection. It is further apparent that the child’s testimony is not contained in the record.

As this court stated in Hagler v. Hagler, 50 Ala.App. 266, 269, 278 So.2d 715, 718:

“This court, as well as the supreme court, (see Ruck v. Ruck, 265 Ala. 29, 89 So.2d 274) is aware of the practice of interviewing minor children in custody cases as was done in the case at bar. We also know that the private examination of children in such cases can in certain instances be more helpful in obtaining full and frank disclosures from them than if examined as ordinary witnesses.”

Again, quoting from Hagler, supra:

“It is apparent from the above that some of the minor children testified in camera. It is further apparent that this entire testimony is not included in the record. The Supreme Court of Alabama, whose decisions we are bound to follow [see Tit. 13, § 111(1), Code of Alabama 1940], has held in Mason v. Mason, 276 Ala. 265, 267, 160 So.2d 881, 882:
“ ‘It is a well-established rule that “we cannot disturb a finding of fact by a trial court where there was evidence before the trial court which may have influenced it in arriving at its finding of fact and which is not before us.”. . . ’
See also Ruck v. Ruck, supra, and Silavent v. Silavent, 281 Ala. 58, 198 So.2d 785. We note that both Mason, supra, and Ruck, supra, involved testimony given by children in camera.” (50 Ala.App. at 269, 270, 278 So.2d at 718)

Here, the trial court found from all the evidence that the best interest of the child would be served by the child being in the custody of the father. He further concluded that there was evidence justifying a modification of custody. As seen from the above, all the evidence upon which the trial court made these findings is not before us. We must therefore, in this instance as in Hagler, supra, affirm.

In any event, this court has reviewed the entire record. A detailed recitation of the evidence is unnecessary. Suffice it to say there is evidence to support the trial court’s conclusions. The trial court heard the evidence, observed the witnesses, and based its decision to modify the custody on these factors in arriving at its determination that the welfare of the child would best be served by appellee having custody. There is a strong presumption favoring the trial court’s finding in cases of this class. See 2A Ala.Dig. Appeal and Error 931(1).

The case is due to be affirmed.

AFFIRMED.

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


text:
    James V. DICKSON v. Anita Elizabeth DICKSON.
    Civ. 734.
    Court of Civil Appeals of Alabama.
    March 24, 1976.
    Rehearing Denied April 28, 1976.
    Kenneth Cooper, Bay Minette, for appellant.
    Arthur C. Epperson, Foley, for appellee.
   BRADLEY, Judge.

This is the former husband’s appeal from a property division contained in the parties’ divorce decree. The divorce was granted on December 2, 1975 by the Circuit Court of Baldwin County. The divorce was awarded on the ground of incompatibility of temperament. There is ample evidence in the record to support the dissolution of the marriage; thus, the only question before us is whether or not the property division is equitable.

The evidence, taken ore tenus, reveals the following:

The property disposed of by the decree consisted of the house wherein the parties lived during marriage, and which was recently damaged by fire; the furniture and personal property in that house; the forty acres of farmland on which the house was located, deeded jointly to husband and wife; the livestock, equipment, and supplies used in the farming operation; a truck; and a trailer. The wife was awarded the house, furnishings, and land; the husband received the remainder of the property. The wife was ordered to pay off the $10,000 mortgage outstanding on the realty. The wife had testified that $5,000 of this mortgage had been incurred to finance a truck for the husband, but the husband’s testimony contradicted this statement.

The parties were married for thirty-four years prior to the divorce. The wife, ap-pellee here, is fifty-two years old. She testified that she worked and took home $141 after deductions, every two weeks. She is under a doctor’s care. She has had major surgery once and may require another operation. She pays $103 per month in automobile payments. The wife further testified that the husband had cleared the forty acres himself and had made the farm into “a nice place.” She testified that she had bought most of the furniture with her own money, and that she had helped her husband “get ahead” by paying for all groceries.

The husband testified that he received $760 per month federal disability payments. These payments are non-taxable. Aside from the disability payment he reported $1,875 taxable income from his farming operation on his 1974 income tax return. He did not plant a crop in 1975 and will not report any income for that year.

The husband’s farming operations include watermelon, corn and soybeans; thirteen head of cattle; pecans; and a small stable of stud and racehorses. The farm property in question is devoted mainly to crops. The husband does not graze the cattle on this land, but has them at a neighboring pasture owned by a friend. The horses are for the most part stabled at the farm, but two of them are presently quartered at a racetrack in Florida

The husband testified that, in his opinion, the value of the property awarded the wife, which cost $20,000 twelve years ago, was $60,000, while the value of his award was about $10,000, including $1,100 for the stud, two mares and two colts.

The testimony of the wife did not place a total value on the property, but it did dispute the husband’s valuation of several individual items he was awarded, reflecting her opinion that the items were worth several times the husband’s estimate. The wife’s testimony in this area included the opinion that the stud horse alone was worth $2,200, and that the trailer was worth $5,000 as opposed to the husband’s estimate of $2,500. The evidence as to the actual value of the property disposed of by the decree is thus in conflict.

The wife also stated that the husband had allowed one racehorse worth $10,000 to die of starvation while he was in a prolonged state of inebriation. She testified that her husband had been arrested numerous times for drunkenness, and has been hospitalized three times for treatment of alcoholism.

The husband testified that he did not believe he could share the farmland with the wife because of the hostility between them. The wife stated that she wanted to continue living on the farm because that was her accustomed home.

It is the husband’s contention on appeal that the relative size of his award, coupled with the loss of land on which to employ his equipment, is an abuse of the trial court’s discretion.

The division of property in a divorce proceeding does not have to be equal; it should be equitable, Pope v. Pope, 268 Ala. 513, 109 So.2d 521. The award lies within the sound judicial discretion of the trial judge, reviewable only for abuse, Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863. Where the trial judge sitting without a jury has heard the evidence ore tenus, as here, the findings are entitled to a favorable presumption, and should be set aside only where plainly and palpably erroneous, Body v. Body, 47 Ala.App. 443, 256 So.2d 184.

Consideration of all the evidence in the record reveals nothing to persuade us that the trial court abused its discretion or rendered an inequitable decree. The decree of the trial court is affirmed.

AFFIRMED.

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


text:
    Don G. MOORE, Sr. v. Isabell Templeman MOORE.
    Civ. 705.
    Court of Civil Appeals of Alabama.
    April 28, 1976.

      Frank W. Riggs, Montgomery, for appellant.
    John S. Bowman, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from a modification decree in a domestic relations case.

The parties were divorced by a decree dated November 11, 1974. There were two minor dependent children. Custody of the children was given to the mother with specific weekend visitation rights to the father. The father was ordered to provide support for the wife and children in the sum of $350.00 per month. Other provisions such as attorney fees and the maintaining of hospital and medical insurance were ordered paid by the husband. The wife was given use and possession of the jointly-owned home until the youngest child reached majority or became self-supporting. After such time the home was directed to be sold and the net proceeds divided equally between the parties.

As a result of the divorce, husband lost his job. He had difficulty obtaining other remunerative employment. In less than a month after the decree, the husband was cited for contempt for failure to comply with the divorce decree. He was permitted to purge himself of contempt by paying $500.00 upon the amount owed.

On December 30, 1974, the husband filed a petition to modify, alleging that he was financially unable to comply with the decree and that the wife had failed to comply with the decree in respect to visitation rights and delivery to him of personal property. The petition to modify was heard orally by the court on February 17, 1975.

The evidence tended to show that the husband was only earning about $500.00 per month in gross wages; that he was obligated to pay considerably more in support, notes, debts and living expenses than he made; at the time of the hearing he was delinquent in payments under the decree of $1,181.00; and that he had no assets other than his undivided half interest in the home. The wife earned nearly $9,000.00 per year and had been supporting herself, the children and paying mortgage payments on the home since the divorce.

After hearing the evidence, the court entered judgment finding the husband in arrears in payments due under the decree in the amount of $1,181.00; that he had failed to maintain health insurance on the children; and that the testimony showed the former husband and father was unable to support his family. The court then ordered that the interest of the husband in the home be conveyed to the wife in consideration of the cancellation of the arrear-age and the elimination of obligation to pay future support to the wife and children. It was further ordered that the right of visitation with the children be dependent upon the- expressed desires of the children.

The father appeals presenting two issues of error in the judgment.

The first is: Did the original decree contain a property division which could not be modified? We consider that the order in the original decree might be questioned as to whether it constituted a property division.

However, even if the decree were to be determined to be a property division, it would not prevent the action of the court in its last decree under the facts of this case.

It is well settled that the estate of a husband and father may be subjected to the payment of past and future obligations for support and alimony. Osborne v. Osborne, 57 Ala.App. 204, 326 So.2d 766.

The father in this case subjected himself to the jurisdiction of the equity court. It was shown that he was delinquent in past-due support. It was shown that he was financially unable to provide the previously ordered future support determined to be needed to provide for the needs of his wife and children and maintain the mortgage payments on the home. Such payments on the mortgage were necessary to provide a home for his wife and children and even to protect his own interest and equity in the home. It was shown that the wife had been fulfilling all of these duties of the father from her own labors.

The court merely relieved the father from past and, at least for the present, future duty of support from his earnings, but fastened it upon his estate. Support may be obtained either from present and future earnings or from the estate of the father. Osborne, supra. In view of the evidence that the past, present and future support has fallen upon the wife, we find it within the authority of the court to use the estate of the father as some recompense to the mother. The evidence was that the value of the equity of the husband was only about $7,000.00.

We would make clear that the obligation of the father is not necessarily removed by the subjection of his estate for the support of his children. That obligation cannot be permanently removed by agreement, release or judgment if circumstances require its re-invocation in the future. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660.

The second issue is whether the court abused its discretion by granting visitation rights to the father only if expressly desired by the children.

Under the circumstances and evidence in this case, we find such an order unsupported by the evidence and manifestly unjust.

The natural and proper relationship of a parent and child should be nurtured, encouraged and protected by the court after the breakdown of a marriage. No unreasonable impediment should be raised. There is no testimony that the father in this case has been other than a loving father, particularly in his relationship with his nine-year-old son.

Prior to the divorce and resultant loss of his job, the evidence was that the father had worked and provided for his children to the best of his ability. There was testimony that prior to and since the divorce he had used his visitation rights with his son, and that there was a bond of affection and love between them. There was no indication that the father was a bad influence upon any of his children. Certainly there was no reason in the evidence to require that the perpetuation of the relationship of parent and child depend upon the “expressed desire” of the children. The responsibility for the cultivation of that relationship should rightfully be upon the father, and the mother, not upon the child. To so place it is to probably destroy it, not protect it. Under the evidence in this case, we find the order of the court to be serious, error. We reverse that portion of the modification decree.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: DeCARLO, Judge.

text:
    James Edward LIVINGSTON v. STATE
    6 Div. 922.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    Wilder & Nelson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for appellee.
   DeCARLO, Judge.

Carnal knowledge; 30 years.

Appellant was tried under an indictment which charged he did carnally know, or abuse in the attempt to carnally know, a girl under the age of twelve years.

In support of this charge the State presented the following evidence:

At the time of the alleged incident on August 7, 1974, the prosecutrix was seven years old. She lived with her mother, step-father, three brothers and a sister at 5361 First Avenue North, Birmingham, Alabama.

About 7:30 on the night in question, the prosecutrix’s mother had gone to church, leaving the girl with her step-father, the six-year-old brother, Paul and the four-year old sister, Regina. The children were lying on pallets watching television in the room ordinarily occupied by their parents. Sometime after the mother’s departure, the step-father suggested the girls take a bath. When the prosecutrix began to dress he told her to wear a skirt and not slacks. She complied and subsequently returned to viewing the television.

While the children were thus occupied, the accused allegedly came over and lay down beside the prosecutrix. He removed her underpants, unzipped his trousers and pulled a blanket over them. Appellant then placed his “private place” in her “private place.” She stated it hurt and asked the accused to stop, which he did, and upon re-dressing in her panties, she noticed a white substance.

At that point the appellant led her into the adjoining room and locked the door. While lying on a pallet, he removed one of her legs from her underpants. Again, he placed his “private place” in her “private place.” When she complained it hurt, the accused stopped. The girl then got up, unlocked the door and left the room.

The prosecutrix testified she did not tell her mother about the incident until the next day after she returned from the downtown Girls Club.

During cross-examination prosecutrix responded that appellant was never on top of her but at her side. The girl acknowledged she did not know what “placing his private parts in her private parts meant.” Nonetheless, she reaffirmed her previous testimony. The prosecutrix explained that although what appellant did “hurt a little bit”, the hurt was more than a toothache.

Janette Lucille Livingston stated the girl involved was her child by a former marriage and appellant was her husband when the incident allegedly happened. Mrs. Livingston testified she and James Edward Livingston were now divorced but on August 7, 1974, they were living together with their five children. About 6:45 P.M. on that date, she went to church and left three of the children with appellant. It was during her absence that the alleged incident occurred and she learned of it from Paul and Regina the next day. After her conversation with them, she later confronted the prosecutrix.

The girl told her they, meaning the pros-ecutrix and appellant, had sexual relations. Upon learning this, the police were summoned and after talking with the child, suggested she be examined by a physician. On the following Friday, Mrs. Livingston went to the county courthouse and obtained a warrant for her husband’s arrest.

The mother admitted talking to the girl before the trial about the incident, but maintained the prosecutrix was only instructed to tell the truth. She explained the child had started using the words, “private parts” after hearing them used at the preliminary hearing.

Paul Livingston, the alleged victim’s brother testified he remembered the occasion when his mother went to church and he remained at home with his sisters. He recalled they were lying on pallets watching television and appellant was present.

It was after the prosecutrix had bathed, when the father lay down beside her and “they covered up.” Afterwards, appellant and prosecutrix went into another room and locked the door. When he heard the door lock, Paul stated his father called out not to come into the room. He admitted discussing the incident with his mother the night before the trial and their conversation extended over the same period as two short television programs.

Sergeant O. C. Ellard of the Birmingham Police Department testified he was in charge of the investigation and saw Mrs. Livingston in his office on August 9, 1974. She was alone at the time and he advised her to get a warrant. Sergeant Ellard said he did not go to the hospital with the pros-ecutrix but did talk with her on a later date.

Dr. Benjamin R. Busby was employed by University Hospital in Birmingham, as a doctor in the department of obstetrics and gynecology. He testified the prosecutrix was examined on August 8, 1974, and that the results of his examination were recorded on a form, required for such matters. In that report the doctor stated he did not find any bruises or lacerations in or about the genital organs of the patient. Further, on the question of “penal penetration” the answer that “he put it up me” was written. Dr. Busby stated these were the girl’s exact words.

In the doctor’s opinion the fact that the girl had bathed or had gone swimming, could have caused the sperm test to show a negative result. He stated it was highly unlikely penetration had occurred. However, Dr. Busby responded there could have been a touching of the girl’s sexual organs by that of a male without any indications of trauma.

The State completed its presentation at the end of the medical testimony. A motion to exclude was overruled and appellant was the only defense witness.

James Edward Livingston admitted he remained with the children on the night in question. He stated the prosecutrix and the other children watched television after their bath until they went to sleep.

Appellant denied getting under the cover with the girl and taking her into the other room. Livingston stated he never did any of “those things” that the prosecutrix testified about and said: “I have never had sexual intercourse with _____ at any time during my life.”

The case was submitted to the jury under T. 14, Section 398, Code of Alabama 1940 (Recomp. 1958), which provides:

“Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, shall, on conviction, be punished, at the discretion of the jury, either by death or by imprisonment in the penitentiary for not less than ten years.”

Upon the completion of the court’s oral charge, appellant announced “satisfied.” He did not take any exceptions or request any charges.

The sole question is whether under the facts a case of “abuse in the attempt to have carnal knowledge” was shown. Appellant maintains the court erred in overruling his motion to exclude on the ground the evidence was insufficient to sustain a conviction.

Although abuse refers to an injury to the sexual organs where an attempt is made to have sexual connection, the mere hurting of the female genital organs is an abuse within the contemplation of T. 14, § 398, supra. Lee v. State, 31 Ala.App. 91, 13 So.2d 583.

In Castleberry v. State, 135 Ala. 24, 33 So. 431; hurting of the private parts was held to be an abuse within the meaning of the statute even though the private parts were not bruised, cut, lacerated or torn. See also: Huggins v. State, 41 Ala.App. 548, 142 So.2d 915.

Whether or not this girl understood the meaning and implication of the words, “private place” or “private parts” is a question for the jury. Any disability that she may have had in expressing what had happened to her, or in designating the particular area subjected to carnal abuse may be considered by the jury as bearing upon the weight of her testimony.

If the testimony of the girl was believed that appellant placed his “private place” in her “private place” and that such contact hurt, then under Castleberry, supra, that was sufficient for a submission of the matter to the jury.

In our judgment this testimony when taken in conjunction with that of the six-year-old brother, and the response by the examining physician; that a touching of the prosecutrix’s sexual organs could have occurred and no sign of trauma be present, was legal evidence from which the jury could infer carnal abuse. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

We realize the facts presented were controverted by appellant’s testimony, but at best we still have a question of belief by the triers of the facts. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Blair v. State, 28 Ala.App. 430, 187 So. 645.

No error appears in the record.

AFFIRMED.

All the Judges concur.


author: MERRILL, Justice.

text:
    In re James Edward LIVINGSTON v. STATE. Ex parte James Edward Livingston.
    SC 1798.
    Supreme Court of Alabama.
    May 7, 1976.
    Philip P. Nelson, Birmingham, for petitioner.
   MERRILL, Justice.

Petition of James Edward Livingston for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Livingston v. State, 57 Ala.App. —, 331 So.2d 745.

WRIT DENIED.

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


text:
    Ronald ALLISON v. STATE.
    6 Div. 863.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      L. Kenneth Moore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for the State,
   BOWEN SIMMONS, Supernumerary Circuit Judge.

Indictment for murder in the first degree, conviction therefor, and punishment fixed by the jury at life imprisonment. Application for youthful offender treatment was denied.

The victim was Fred Jackson Harp, a Mountain Brook police officer, who gave chase to defendant and three others riding in a Cadillac automobile. The four occupants were under detention by the victim, Officer Harp, when the homicide occurred on the roadside.

The circumstances surrounding the homicide, so the State contended, did not justify either of the four occupants in firing the fatal shot, nor did they justify either of the four in aiding or abetting the homicide. All four of the occupants fled the scene. They were later arrested.

Walter B. Allen, Jr., was one of the occupants. He was indicted, and convicted for murder in the first degree. He took the stand in his own defense. He appealed. This judgment was affirmed by this Court on June 17, 1975, 55 Ala.App. 549, 317 So.2d 517. This case substantially reports the facts involved in the instant case. The instant appellant was convicted on October 18, 1974.

A crucial witness for the State was Walter B. Allen, Jr., who, as above noted, had been convicted for the same homicide. When put on the stand, he claimed the Fifth Amendment Exemption and after identifying himself, refused to answer any questions concerning the homicide. This was done on the advice of his counsel. The trial court, and the Assistant District Attorney, prosecuting for the State, were informed before the witness took the stand that such claim would be made.

It appears from the record that the State, under the guise of laying a predicate, asked Allen fifty to sixty questions concerning, his testimony under oath at his own trial. The witness Allen refused to answer either of these critical questions that tended to place the blame and the firing of the fatal shot on defendant Allison, and to exonerate himself from any blame for the homicide. These questions were taken from the transcript of the witness’s testimony at his own trial.

' We here also note that the State moved the Court to call witness Allen as the Court’s witness. The Court, over defendant’s objection, granted the motion, and called the witness to the stand as a witness of the Court. The Court then allowed examinations by the parties to proceed. Defendant asserted exemption under the Fifth Amendment and refused to answer.

The State, we again note, propounded fifty to sixty questions to the witness, the trend of which implicated defendant Allison as the guilty person who fired the fatal shot that killed Officer Harp; none of these questions were answered as above noted. The State thereupon proceeded further in adducing illegal evidence against Allison.

Prior to this adduction of illegal testimony, defendant’s counsel propounded a series of questions bearing on the issue of defendant’s guilt. The witness Allen claimed his exemption under the Fifth Amendment and refused to answer.

After this futile examination by defendant was closed, the State proceeded to introduce in evidence—over defendant’s appropriate objection which the Court overruled—a certified copy of the transcript of the witness Allen’s evidence at his own trial wherein he tried to exonerate himself as the offender in killing Officer Harp. He implicated Allison as the one who did the killing. (See Exhibit E, Motion only, Tr. 583 or 596 continuing through p. 641 or 653.) No point was made about the certification.

We note that the trial court cited McCullough v. State, 40 Ala.App. 309, 113 So.2d 905 (1959), as authority for his ruling in admitting in evidence the certified transcript of Allen’s evidence in his own trial. This admission was made over defendant Allison’s objection because the evidence was hearsay and also because he was denied his right of confrontation or of cross-examination as provided by the Sixth Amendment to the federal Constitution. We here note that McCullough was released before Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

The Court noted in Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967), that cross-examination presupposes a witness who affirms a thing being examined by a lawyer who would have him deny it, or a witness who denies a thing being examined by a lawyer who should have him affirm it. Cross-examination is in its essence an adversary proceeding. The extent to which the cross-examiner is able to shake the witness, or induce him to equivocate, is the very measure of a cross-examiner’s success.

Although the trial court produced Allen on the witness stand, he, in refusing to testify, was effectively unchallengeable on his prior testimony in his own trial, and defendant Allison was left only the bare opportunity of confrontation.

Thus the jury sitting in judgment on Allison were not able to judge his demeanor as he confronted defendant with his accusations as the same appeared in his certified testimony at his own trial. Allison could not challenge the accusations against him, and force the witness to answer for inconsistencies and weaknesses in his testimony. Defense counsel could not probe the story of this silent witness and attempt to expose facts that qualify or discredit him. Substantive confrontation was the indisputable right of defendant to hear the accusations directly from the accuser and then to chai-lenge these statements.

The confrontation clause requires not only the procedural opportunity to cross-examine, but requires as a minimum that the witness reiterate at trial his accusations against defendant. The subsequent cross-examination is then an adversary proceeding giving substance to accused’s confrontation right. There are exceptions not here involved.

This is consistent with the rule of confrontation set forth by the Supreme Court in Douglas, supra. The Constitutional right to confrontation must never be sacrificed to the convenience of admitting questionable evidence.

In producing the witness at the trial, the prosecution in Douglas had fulfilled its obligation to the fullest extent. Yet the defendant, as here, had never challenged the witness “face to face.” Thus the confrontation clause was not satisfied even though the witness was physically present.

The Supreme Court’s decision in Douglas stressed that physical presence of a witness cannot satisfy the confrontation clause when the defendant is unable to cross-examine the witness.

Because the trial court erred in admitting the certified copy of Allen’s testimony at his own and separate trial, we hold that the judgment against appellant should be and it is reversed and the cause is remanded for such disposition as the circumstances justify.

The foregoing opinion was prepared by Honorable Bowen Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Reversed and remanded.

All the Judges concur.


author: HEFLIN, Chief Justice.

text:
    In re Ronald ALLISON v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1724.
    Supreme Court of Alabama.
    May 7, 1976.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   HEFLIN, Chief Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Allison v. State, 57 Ala.App. —, 331 So.2d 748.

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.