author: TORBERT, Chief Justice.

text:
    James L. BROWN et al. v. Sam W. PIPES, III, et al.
    77-399.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Rehearing Denied Jan. 19, 1979.

      Gould H. K. Blair, Birmingham, for appellants.
    A. Fletcher Gordon of Gordon & House, Mobile, for appellees.
   TORBERT, Chief Justice.

This suit began as an action by appellees to quiet title to certain real property in Mobile County. Appellants intervened in the action and asserted a counterclaim against appellees demanding that title be vested in them. Appellants further sought damages for misrepresentation or nondisclosure and an accounting for rents and income. The trial court heard the evidence ore tenus and quieted title in the appellees. Appellants appeal only the portion of the trial court’s order denying the relief sought in the counterclaim.

This appeal revolves around the validity of certain deeds executed by George Jacobs to appellees Sam W. Pipes, III and Augustine Meaher, Jr. Appellants are the heirs of George Jacobs who died intestate in 1955. The property in question is Lot 7 of the John Chastang tract, which lot is divided into three parcels. There are various other heirs and fractional interests involved; however, it is only necessary for us to consider the interest of George Jacobs.

Jacobs executed three deeds with respect to the property. At the time of the conveyances Jacobs’ actual interest was unknown; as it turned out, he owned a Vi2 interest in the tract.

The first deed was executed on March 24, 1944, and purported to convey an undivided lh interest in the tract to appellee Pipes. Pipes had performed legal services for Jacobs some six months to a year prior to the execution of the deed which Pipes accepted when it became apparent that there was no other way to receive payment for the services performed. Pipes testified that he could not recall the amount of the fee involved and that he placed no value on the interest being conveyed but simply agreed to cancel the bill in return for the deed.

Subsequently, Jacobs attempted to sell Pipes the other V2 interest in the tract, and upon his rejection, Jacobs executed and delivered a deed dated June 2, 1947 purporting to convey the entire interest to appellee Meaher. The third deed was executed by Jacobs to Meaher on February 18,1949, and was in the nature of a correction deed.

Appellants contend that since Pipes represented Jacobs, a confidential relation existed between the parties which created a presumption of undue influence concerning the conveyance of the property. Appellants maintain that undue influence gives rise to a constructive trust in favor of appellants as heirs of Jacobs and legal title should be vested in them. Furthermore, as beneficiaries of this constructive trust, appellants claim that they are entitled to an accounting from appellees.

During the time a confidential relationship exists between attorney and client, there must be no abuse of the confidence whereby an attorney secures an unjust advantage over the client. Scott v. Hardyman, 218 Ala. 515, 119 So. 224 (1928); Kidd v. Williams, 132 Ala. 140, 31 So. 458 (1901). However, after the relationship has ceased, the attorney is entitled to accept what may be offered as compensation for his services. Kidd v. Williams, supra; Lecatt v. Sallee, 3 Port. 115 (Ala.1836). In such a situation, it is not necessary that the attorney show that the client obtained independent advice though such a showing would clearly rebut the presumption of undue influence. Scott v. Hardyman, supra. Instead, the transaction will be upheld if it is shown that the client was competent and knowingly and voluntarily settled his account in an arm’s-length transaction with the attorney. Id.; Kidd v. Williams, supra. This result would obtain as well while the relationship still exists. “All that is necessary is, for the client to be placed in such a position as would enable him ‘to perform' an entirely free and unfettered judgment, indepéndent altogether of any sort of control.’ ” 132 Ala. at 144, 31 So. at 459.

In the instant case, the trial court determined that there was no undue influence and that Jacobs was not suffering from any incapacity. We have reviewed the record and find ample evidence to support the trial court’s findings.

Pipes represented Jacobs on one occasion only. There was no longstanding relationship existing over a period of years, and the relationship of attorney-client had terminated some six months to a year prior to the execution of the deed. Any influence which Pipes had over Jacobs by way of the confidence reposed in him as an attorney had ceased to exist long before the conveyance. Moreover, evidence was adduced that Jacobs, not Pipes, initiated the transaction, and Pipes was reluctant to accept the property and only did so when it appeared that it was the only way to settle Jacobs’ account. Pipes testified:

Q. And you still went ahead and made the purchase — ?
A. I couldn’t get George [Jacobs] to pay me any other way. He asked me to do it and I finally agreed to do it.
Q. Okay, you are talking about your fee; am I correct?
A. Right.

Although there was some evidence that Jacobs may not have been able to read or write, there was evidence that Jacobs was experienced in business matters and often engaged in business deals, including the cutting of timber on various properties. Furthermore, it appears that Jacobs knowingly and at arm’s length entered into the transaction in question:

Q. Mr. Pipes, I would like to ask you ■ whether George Jacobs had ever talked to other lawyers before he talked to you about his problem you spoke of.
A. Yes.
Q. Tell us about that.
A. George, uh, as I said sold land and, uh, when he wanted to deed me this property to settle that lawsuit, sort of pay my legal fees sort of — to pay me half interest in it. I told him , that I didn’t want it because of the— he would have to file a bill to quiet title and George said he knew that, that he had been to the Title Insurance Company and that he had been advised that he didn’t have good title and he would have to file a bill to quiet title to get it and he wasn’t interested in it.
Q. Had he been to a lawyer, too?
A. He had been to several lawyers to try to sell it. To sell his interest or to try to get them to agree his title was good.

Therefore, we find that the evidence supported the trial court’s ruling that Pipes did not abuse the confidence reposed in him as an attorney and that Jacobs voluntarily, knowingly, and advisedly conveyed the property to him in an arm’s-length transaction. Thus, the conveyance to Pipes was valid and appellants have no claim to the property, since their ancestor divested himself of his interest by the conveyances to appellees. The only standing appellants have to assert a claim to the property is derived through Jacobs by virtue of their being his heirs.

We note that appellees contend that they have perfected title by prescription, and the trial court so found. However, it is unnecessary for us to consider this issue, since Jacobs validly conveyed his title to appel-lees and they thereby acquired whatever interest he had. Also, certain preliminary motions were made by the parties; however, it is unnecessary for us to rule on them in view of the underlying decision on the merits.

For the foregoing reasons, the order of the trial court quieting title to the property in appellees is due to be affirmed.

AFFIRMED.

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

      . Appellees call to our attention that appellants have attempted to add additional land to the litigation not made the subject of appellees’ bill to quiet title and to which appellees make no claim.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Daniel J. McKIEVER and Elizabeth L. McKiever v. KING & HATCH, INC.
    77-525.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Rehearing Denied Jan. 19, 1979.
    C. Stephen Trimmier and Albert C. Swain of Trimmier, Daniel & Hartman, Birmingham, for appellants.
    J. Howard Perdue, Jr., Reid B. Barnes, III, Birmingham, for appellee.
   BLOODWORTH, Justice.

This is an appeal by two of seven defendants from the grant of summary judgment in favor of plaintiff in a suit on a promissory note. The appeal must be dismissed because summary judgment against fewer than all defendants where there are multiple defendants is not a final judgment and is not appealable unless the trial judge makes the determination and entry required by Rule 54(b), ARCP.

Plaintiff, a general contractor, sought to recover $125,000 from seven defendants, makers of a promissory note executed to cover construction costs on an apartment complex. Defendants McKiever filed a cross-claim and a third-party claim based upon an indemnity agreement. The contractor moved for summary judgment. The court severed the McKievers’ cross-claim and third-party claim from the action on the note, and granted summary judgment against five of the seven defendants, including the McKievers. Summary judgment as to the two remaining defendants, the Guests, was denied because “these two defendants have petitioned the United States District Court * * * for a discharge of the indebtedness claimed by the plaintiff * * Only the McKievers appealed.

When there are multiple parties or multiple claims, any order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final judgment. Appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b), ARCP; Kelley v. U. S. A. Oil Corp., 363 So.2d 758 (Ala.1978); Chiniche v. Smith, 362 So.2d 853 (Ala.1978).

Multiple claims are not involved here. Rule 54(b) does not apply when claims are severed from the original action under Rule 21. Key v. Robert M. Duke Insurance Agency, 340 So.2d 781 (Ala.1976).

However, there are multiple parties to the original claim. The rights and liabilities of the Guests, who are averred to have filed for bankruptcy, were not finally adjudicated by the trial court when it denied summary judgment as to them.

A denial of summary judgment is interlocutory and is not a final judgment. Whitehead v. Clix Photo Centers, Inc., 355 So.2d 327 (Ala.1978).

The filing of a petition for bankruptcy by a defendant does not terminate an action in state court against him. A pending suit founded upon a claim for which discharge would be a release is automatically stayed until adjudication or dismissal of the bankruptcy petition. 11 U.S.C. § 29(a) (1976); Bankruptcy Rule 401(a), (b). The stay may be annulled as to claims not scheduled in time for proof and allowance. Bankruptcy Rule 401(c). The stay may be vacated by the bankruptcy court upon application by the creditor. Bankruptcy Rule 401(d). Moreover, the petition may be dismissed and the stay vacated if the petitioner has obtained a discharge in bankruptcy within the past six years. See generally 1A Collier on Bankruptcy ¶ ¶ 11.01-.08.

The stay does not operate as a dismissal of the action. 1A Collier on Bankruptcy ¶ 11.07, at 1167. There is no statute or rule authorizing dismissal of a pending claim simply because the defendant has filed for bankruptcy. Johnson Dry Goods Co. v. Drake, 219 Ala. 140, 121 So. 402 (1929). See Piel v. Harvard Interiors Manufacturing Co., 490 F.2d 1272 (8th Cir. 1974).

There is no indication of the progress or status of the bankruptcy petition. The stay may have been, or may soon be, dissolved or vacated and the contractor will be able to pursue his claim against the Guests. Since there has been no final disposition of the rights and liabilities of two of the defendants, the order granting summary judgment as to the other five is not a final judgment and, because there has been no entry and determination under Rule 54(b), it is not appealable.

The appeal must be dismissed ex mero motu. Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974).

APPEAL DISMISSED.

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


author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    Grover A. NEVIN v. Cecil W. NEVIN, et al.
    77-443.
    Supreme Court of Alabama.
    Jan. 12, 1979.

      0. S. Burke, Jr. of Burke & Thigpen, Marion, for appellant.
    W. Ryan deGraffenried, Jr. of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellees.
   TORBERT, Chief Justice.

This is an appeal from a summary judgment granted by the Circuit Court of Hale County. We affirm.

Grover S. Nevin died testate in 1954, survived by his widow, lia J. Nevin, and four children, Grover A., Julia, Cecil, and Marie. When he died, Nevin owned several parcels of real estate situated in Hale and Tuscaloosa Counties. This appeal concerns a 320 acre parcel situated in Hale County, devised to his widow for life with the power of disposition, and the remainder given to his children.

The pertinent provision of Nevin’s will dispositive of this case is:

ITEM THREE: I do also give, devise and bequeath unto my said wife, the said lia J. Nevin, for and during the term of her natural life only, with remainder in fee simple to our children as hereinafter stated, all real estate owned by me at the time of my death, wherever located, with fall, complete and unlimited power and authority to use and dispose of said real estate as to my wife seems best. My said wife is hereby given full, complete and unlimited power and authority to sell, convey, mortgage or otherwise dispose of or handle said real estate as she in her discretion shall deem best, according to her own wishes and desires, and she may execute a valid absolute fee simple conveyance thereto, mortgage it, or otherwise dispose of or handle the same, and she shall not be accountable for its use or disposition. I wish to state, however, that it is my feeling that said real estate should not be disposed of by my said wife unless for her own comfort, maintenance or welfare.
After the death of my said wife, lia J. Nevin, and if she has not disposed of the same during her lifetime, I hereby give, devise and bequeath said real estate (subject to the life estate of my said wife and the right of use and disposition by her as hereinabove provided), unto our four children — Grover A. Nevin, Julia C. Champion, Cecil W. Nevin, and Burlia M. Wright — share and share alike, in fee simple forever. In the event any of our said children should die before taking under this my will, then the share which such child would have received, if living, shall be and become the property of the child or children (my grandchild or grandchildren) of such deceased child. (Emphasis supplied).

Assuming that she had authority, under the power contained in the will, to devise the land, Mrs. Nevin executed a will in 1962, giving the land to her four children. Subsequently, she was advised that she did not have the power to convey by will. So, in November, 1965, she executed four deeds conveying to each of her four children 80 acres of land. Grover A. Nevin refused delivery of the deed to him.

lia J. Nevin died sometime in 1976, and in August, Grover A. Nevin filed suit to declare the deeds ineffective and to order a sale for division. On motion of the defendants, the trial court granted summary judgment, decreeing lia J. Nevin had absolute power to convey the land by deed to the children.

We affirm the decision of the trial court and hold that Mrs. Nevin had the power to convey the lands to her children and that the deeds were effective.

The first issue is the proper construction of the will of Grover S. Nevin to determine the extent of the power granted his wife. Under Ala.Code § 35-4-292 (1975), an owner of a life estate with an absolute power of disposition may convey a fee absolute as to creditors and purchasers, but if the power is not executed the future estates limited thereon are effective. That statute provides:

(a) When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power is not executed or the lands sold for the satisfaction of debts during the continuance of such particular estate.

That it was Nevin’s intent to give his wife an absolute power of disposition is clear from the language of the document.

The law is well settled in Alabama that the touchstone for construction of a will is to ascertain a testator’s intention by giving effect to all the provisions of the will as a whole. Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975). From an analysis of the testator’s language in Item Three of the will set out above, it is difficult to conceive of more exact words which would endow a life tenant with broader powers. Ila Nevin’s power is not limited to any ascertainable standard such as maintenance and support, but the testator expresses an intent to give her “full, complete and unlimited” authority as if the property had been given to her absolutely. In furtherance of such intention the testator provides that she may “dispose of or handle” the property in her own discretion and according to her wishes and desires and that she should not be accountable to anyone for its use or disposition.

Appellant contends that in looking to the four corners of the will to determine the testator’s intent that the following words, though precatory, must be considered:

I wish to state, however, that it is my feeling that said real estate should not be disposed of by my said wife unless for her own comfort, maintenance or welfare.

Appellant urges that a reasonable construction of this language is that Grover Nevin intended to limit his wife’s power of disposition. We disagree. The meaning of preca-tory words has been stated earlier by this court:

The meaning of precatory words is well understood. Words of entreaty request, desire, wish, or recommendation employed in wills are distinguishable from direct and imperative terms. Thomas v. Reynolds, 234 Ala. 212, 216, 174 So. 753, 757 (1937).

Nevin’s expression of his feelings as to the standards for disposition of the property by his wife immediately follows the clear and direct imperative that she have unlimited authority to dispose of it without accountability to anyone. Following this as it does, the precatory phrase should not be read to limit the absolute power of disposition already given. This court said in Austin v. Pepperman, 278 Ala. 551, 562, 179 So.2d 299, 309 (1965):

Where an estate or interest is given in one clause of a will in clear and decisive terms, the interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.

This supports the construction of Item Three of the will that after Nevin’s grant of absolute discretion to his wife, he intended to express his own feelings about the disposition of the property as a guideline or recommendation. Support and maintenance are merely an advisory standard rather than a limitation under the facts of this case. Thus, the will of Grover S. Nevin granted to his wife an absolute power of disposition.

The second question at issue here is whether Ila Nevin conveyed a fee absolute to her children as purchasers under § 35-4-292. If the children who received deeds from Mrs. Nevin are purchasers under the statute, then they take fee simple title as grantees and not as remaindermen under the will.

Appellant relies heavily on Yockers v. Hackmeyer, 203 Ala. 621, 84 So. 709 (1919), as to the question of who qualifies as a purchaser within the meaning of the statute. The court held there that the life estate with a power of disposition granted testator’s widow was not absolute because it could only be exercised (1) in the continuance of a business left by testator and (2) for support and maintenance of the widow. The widow conveyed property to her son in consideration of love and affection. This conveyance was not within the power conferred upon her by the will so that on her death, the remainder took effect. While the Yockers court further observed that the son was not a purchaser within the meaning of § 3423, Code of 1907 (the predecessor of § 35-4-292), because the consideration of love and affection made him a volunteer not a purchaser, such observation is not controlling here. Justice Sayre, writing for the court in Yockers, specifically held that the provision of the will in question “was not an absolute power”, and hence the conveyance there was not governed by the statute. Therefore, the discussion of the definition of purchasers for the purpose of the powers statute is dictum since the case did not involve an absolute power of disposition, and the conveyance was disallowed on the basis of limitations set out in the will, not on the basis of the powers statute. Additionally, the Yockers definition of purchaser as one who receives a conveyance by deed for a valuable consideration is no longer applicable in light of current law. Act No. 170, Acts of Alabama 1971, Third Extraordinary Session, p. 4420, codified as Ala. Code § 35-4-34 (1975), reads in part:

No deed or other conveyance creating or transferring any interest in land shall be invalid or ineffective because of the fact that it does not recite a good or valuable consideration or no such consideration exists or is given.

Provision is also made for the retroactive operation of this statute. This is further supported by the decision of this court in Ingram v. Horn, 294 Ala. 353, 355, 317 So.2d 485, 486 (1975). The court said:

[W]e agree with appellants that a deed may represent a gratuitous conveyance of realty, and that even a ‘total failure of consideration’ such as that alleged by ap-pellee is insufficient grounds for the cancellation of an otherwise valid deed.
As this court has pointed out, “A deed is valid and operative as between the parties and their privies, whether founded on a consideration or not.” Porter v. Roberson, 263 Ala. 294, 296, 82 So.2d 244 (1955).

The Yockers definition of purchaser is incorrect in view of the current law of this state that consideration is not necessary and in view of the legislative intent in the passage of the powers statutes. The Alabama Supreme Court in Reeves v. Tatum, 233 Ala. 455, 172 So. 247 (1937), recognized that § 35-4-292 and its predecessors were enacted “to relieve against the com mon-law rule, which often resulted in a clear defeat of the testator’s real and evident intention.” Reeves at 457, 172 So. at 249. The Legislature merely confirmed the existing general law as to creditors and purchasers. “The Legislature’s concern over preserving the remainder in cases of non-exercise does not import an intention to prohibit a gratuitous exercise, and it seems clear that a volunteer was intended to qualify as a purchaser under these statutes.” Note, Powers of Appointment in Alabama — A Plea for Reform, 26 Ala.Law Review 355, 388 (1974). Since consideration is no longer necessary for the validity of a deed and since the powers statutes restate the common law except as to unexercised powers, the legal definition for purchaser as one who takes gratuitously or for value clearly governs. For purposes of § 35-4-292, concerning powers of disposition, a purchaser includes every transferee by deed.

Appellant also contends that the rule in Braley v. Spragins, 221 Ala. 150, 128 So. 149 (1930), and Bell v. Killian, 266 Ala. 12, 93 So.2d 769 (1957), is applicable here, that a life tenant with power of disposition cannot exercise the power by an inter vivos gift. A careful reading of the Braley opinion, however, reveals the following appropriate qualification:

That is to say, unless the power is ample, sufficiently specific and full, a life tenant may not give the property away by deed, merely to defeat a remainder interest limited on such life estate. Braley at 158, 128 So. at 156.

The language in the Nevin will could hardly bestow more “ample, sufficiently specific and full” a power of disposition. In Bell as in Yockers, supra, the decision turned on the express limitation of the power of disposition, to a standard of support and maintenance. By virtue of the absolute and unlimited power of disposition granted Ila Nevin in her husband’s will, a conveyance made by her during her lifetime would clearly pass fee simple title to the grantee.

For the above stated reasons we affirm.

AFFIRMED.

BLOODWORTH, MADDOX, JONES, ALMON and SHORES, JJ., concur.

FAULKNER, J., with whom EMBRY and BEATTY, JJ., join, dissents.

FAULKNER, Justice

(dissenting):

I dissent.

In my opinion, the majority has misconstrued a statute, and the decisions of this Court. The majority holds that the power of appointment given to the testator’s wife was general rather than limited.

The statute, that is now § 35-4-292 of the 1975 Code, construed by this Court in Braley v. Spragins, et al., 221 Ala. 150, 128 So. 149 (1930), held that a donee by deed cannot be a “purchaser”, because he is not a purchaser for a valuable consideration. Moreover, the Court said:

This Court has held that a power of disposition is limited, and not within the terms of said sections (§ 6928 Code of 1928 — now § 35-4-292, Code of 1975) where the power conferred is limited to a disposition during the life of the donee of the power, and where there is no power to devise the property by will. (Citing cases).

The majority, apparently, will agree that the life tenant could not will the property under the terms of this will. (The appel-lees’ mother attempted to convey the land by will on one occasion; she was advised that she could not will the property; subsequently, she had deeds prepared, and delivered them to her children. The appellant refused delivery of the deed to him).

It is obvious the majority has misconstrued Braley. This is evident from its lifting a statement from the opinion out of context. This is what the Court said:

However, it may be said, in this connection, that such a life tenant with the power of disposition must act in good faith to the remainderman, and not give the property away to defeat or defraud the latter of his right or interest. That is to sav. unless the power is ample, sufficiently specific and full, a life tenant mav not give the property awav bv deed. merely to defeat a remainder interest limited on such life estate. It must be admitted that under the terms employed in the instant will there could be no devise of the interest or the power of appointment of those to enjoy what remained of the estate after death of the life tenant. Powell v. Pearson (Ala.Sup.), 220 Ala. 247, 125 So. 39. Such result could not be accomplished by way of a voluntary conveyance merely to destroy the corpus and prevent a remainder; or without a valuable consideration moving to and for the material benefit in good faith to such life tenancy.
Any other rule would defeat the purposes of a testator (who stipulated for or contemplated a remainder or residue), and such action would be in the nature of a fraud upon her whom testator named to have and enjoy the residue of that estate. Yockers v. Hackmeyer, 203 Ala. 621, 84 So. 709.

The underlined part of the quotation is quoted in the majority to anchor its position that the power in the Nevin will constituted a general (absolute) power of appointment. The majority has to interpret words “ample”, “sufficiently specific” and “full” to constitute a general power of appointment, thus giving the life tenant the power to appoint by will.

Additionally Braley held:

Appellant could not claim protection as a purchaser from his wife under § 6928, because he is not a purchaser for a valuable consideration. . . . It is our opinion that appellant is correct in the statement that § 6928, Code, is without application as to the attempted conveyance, or rather gift, by Mrs. Braley to her husband.

The majority also has misconstrued Yockers v. Hackmeyer, 203 Ala. 621, 84 So. 709 (1919). That case, cited in 27 ALR 1388, holds:

A life tenant with power to dispose of the estate, the unconsumed remainder being cared for in the original gift cannot exercise his power of disposition by a gift of the property inter vivos.

Finally, in Alford v. Alford, 56 Ala. 350, this Court declared:

Whatever doubts may have been entertained of the correct rulings of this court, heretofore made, on the question we are considering, those doubts are resolved by the statute copied above [§ 1325, Rev. Code, 1595, the same as § 6928, Code of 1928, we interpolate], so far as that statute extends. Where a life-estate is created, and an absolute power of disposition conferred on the life-tenant, this enlarges the life-estate into a fee; not absolutely, but in favor, and only in favor, of the creditors of, and purchasers from the life-tenant.

As already noted in this dissent “purchaser” means “purchaser for a valuable consideration” not an inter vivos gift. By extending the meaning of “purchaser” in § 35-4-292 to include gratuitous donees, the majority has construed the statute is a way never contemplated by the Legislature, and has defeated the testator’s intent and purpose.

EMBRY and BEATTY, JJ., concur.


text:
    GUY H. JAMES CONSTRUCTION CO., a corp. v. Charles A. BOSWELL, as Commissioner of Revenue of the State of Alabama.
    77-539.
    Supreme Court of Alabama.
    Jan. 19, 1979.

      James A. Harris, Jr. and John D. Saxon of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., State of Ala.; Herbert I. Burson, Jr., B. Frank Loeb, Bill Thompson, Asst. Counsels, Dept, of Revenue and Asst. Attys. Gen., for appellee.
   BLOODWORTH, Justice.

This is an appeal by Contractor from a judgment denying petition for writ of mandamus and motion to alter, amend or vacate a judgment. This case involves the interpretation of what is now § 40-23-50(d) (Code 1975). We affirm.

Contractor, Guy H. James Construction Company, is a general contractor incorporated under the laws of the State of Oklahoma, and is qualified to do business in Alabama. From 1972 to 1976, Contractor performed highway and bridge construction work under four contracts with the Highway Department of the State of Alabama, and paid taxes to the State under the Contractor’s Gross Receipts Tax Law, now codified at § 40-23-50 (Code 1975). This statute levies a privilege or license tax on each person, firm or corporation engaged within this state in building any public highway, road, bridge or street. The amount of the tax is equal to 5 percent of the gross receipts of such business. At the time it paid taxes pursuant to this section, Contractor made no claim of exemption from gross receipts received under the contracts.

In August 1976, Contractor sought a writ of mandamus to Charles A. Boswell, Commissioner of Revenue of the State of Alabama, to compel a refund for alleged overpayment of taxes from 1973 to 1976. Specifically, Contractor claimed that the first clause of § 40-23-50(d) excludes from gross receipts that portion of gross receipts used to purchase tangible personal property sold, used, stored or consumed in performance of the contracts when such property has been taxed by the sales or use tax laws. Contractor contends the 5 percent contractor’s gross receipts tax is then levied on the remaining gross receipts.

The provision in question reads as follows, in pertinent part:

“(d) The taxes levied herein shall not apply with respect to the sale, use, storage or consumption of tangible personal property taxes by the provisions of the sales tax law, or the provisions of [the use tax law] . . . .”

The trial court disagreed with Contractor and found that subsection (d) provides for no such deduction for purchases on which sales or use taxes had been paid.

At the outset we note that the word “taxes” in the phrase “tangible personal property taxes by the provisions of the sales tax law” appears to be a typographical error. It is plain from the context in which it is used that “taxes” should be read “taxed.” An obvious error in the language of a statute is self-correcting. State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In such an instance, the Court may substitute the correct word when it can be ascertained from the context of the act. C. Sands, 2A Sutherland Statutes and Statutory Construction § 47.36 (1973). The trial court found the correct word to be “taxed.” Both parties appear to agree it should be “taxed.” We think so too.

On this appeal the contractor’s argument proceeds as follows. Subsection (d) excludes something from the operation of the statute. Because the tax applies to gross receipts, whatever is excluded is excluded from gross receipts. Moreover, “gross receipts” subject to this tax does not mean the same thing as “gross receipts” for sales tax purposes, rather, the former is clearly limited to proceeds received under contracts with the Highway Department. Contractor concludes that the legislature intended to avoid double taxation by excluding from “gross receipts” an amount equal to the purchase price of tangible personal property, used or consumed in performing the contracts, on which a sales or use tax has been paid. In effect, contractor concludes subsection (d) applies to property (or its purchase price) and not to activities.

The Commissioner agrees that subsection (d) excludes something from the operation of the statute. But he maintains that the definition of “gross receipts” in the sales tax statute is incorporated in the contractor’s gross receipts tax statute. Because this incorporation widened the operation of the gross receipts tax beyond the scope intended, the legislature included subsection (d) to restrict its operation to Highway Department construction contracts only. In effect, subsection (d) excludes activities subject to the sales or use taxes, not property (or its purchase price). This is essentially the holding of the trial court.

Examination of the gross receipts tax statute [§ 40-23-50] reveals that the tax applies to specific business activities and is in addition to. all other taxes imposed:

“(a) There is hereby levied, in addition to all other taxes of every kind now imposed by law, and shall be collected, as herein provided, a privilege or license tax against the person on account of the business activities engaged in and in the amount to be determined by the application of rates against gross receipts, as follows:
“Upon every person, firm or corporation engaged or continuing within this state in the business of contracting to construct, reconstruct or build any public highway, road, bridge or street, an amount equal to five percent of the gross receipts of any such business . . .”

The statute provides for incorporation of provisions from the sales tax law:

“(c) ... All provisions of the state sales tax, with respect to definitions, payment and assessment of the state sales tax, making of reports and keeping and preserving records with respect thereto, interest after the due date of tax, penalties for failure to pay tax or otherwise complying with the state sales tax statutes, the promulgation of rules and regulations and the administration and enforcement of the state sales tax statutes, which are not inconsistent with the provisions of this section when applied to the tax levied pursuant to subsection (a) of the section, shall apply to the tax levied herein. . . .” (Emphasis added.)

Subsection (d) then follows.

The incorporation of the sales tax definition of “gross receipts” seems awkward and unnecessary. The sales tax definition is “value proceeding or accruing from the sale of tangible personal property [and other items constituting such receipts].” § 40-23-1(8) (Code 1975). It is evident that this definition is inconsistent with the provisions of the gross receipts tax law, which is measured by gross receipts from public construction contracts. Subsection (a), quoted above contains a sufficient explanation of “gross receipts” for contractor’s gross receipts tax purposes: the Value received from “contracting to construct, reconstruct or build any public highway, road, bridge or street * * *.”

While Contractor may be correct on this point that the two definitions of “gross receipts” are different, it does not necessarily follow that its interpretation of the ultimate effect of subsection (d) is correct. To the contrary, the language of the subsection shows that it concerns activities subject to the sales and use taxes. Subsection (d) speaks of the “sale * * * of tangible personal property” and the “use, storage or consumption of tangible personal property,” the very activities subject to the sales and use taxes. Under this interpretation, which we adopt, subsection (d) appears to have been passed, through an abundance of caution, to clarify that only “gross receipts” received under public contracts for the construction of highways, roads, bridges or streets is subject to the contractor’s gross receipts tax. Activities on which a sales tax or use tax has been paid are excluded from the operation of the gross receipts tax.

In other words, the exclusion is directed towards “activities” of the contractor outside of the gross receipts from contracts with the state, etc., to build roads, bridges, etc., on which sales or use taxes have been paid. The Commissioner gives the following example:

“A contractor who is subject to the contractor’s gross receipts tax has an asphalt plant. The contractor uses some of his asphalt on a public road project. He also sells asphalt to another contractor. The sale of asphalt would be subject to the sales tax and the money received would be taxable gross receipts for the purpose of the sales tax and, because of Section (c), also taxable gross receipts for the purpose of the contractor’s gross receipts tax. Clearly this was not the intention of the legislature.
“Out of an abundance of caution and to clarify exactly what was meant to be included in the contractor’s ‘gross receipts’, as defined in (a), the legislature put in Section (d).
******
“Section (d) removes from the definition of gross receipts for the purpose of the contractor’s tax those activities that might have been inadvertently included by Section (c). That is to say, Section (d) makes the contractor’s tax inapplicable to the activities taxed by the sales and use taxes, thus excluding the receipts from those activities from the measure of the instant tax. By doing this the legislature made it clear that only the money, or receipts, received on contracts with the Highway Department to build public roads and bridges were to be the measure of the tax.”

To summarize, the first clause of § 40-23-50(d) is interpreted to read: “The taxes levied herein shall not apply with respect to [activities] taxe[d] by the provisions of the sales tax law, or the provisions of [the use tax law] * * *.” There is no exclusion from gross receipts for the purchase price of tangible personal property used or consumed in performing highway construction contracts.

AFFIRMED.

TORBERT, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    Rebecca Lott MARTIN v. Lot 8, Magnolia TERRACE, etc., et al.
    77-567.
    Supreme Court of Alabama.
    Jan. 19, 1979.
    William H. Saliba, Harold R. Reed, Jr., Mobile, for appellant.
    Billy C. Bedsole, Mobile, for appellee, Betty Ann Hallman.
   EMBRY, Justice.

This is an appeal from a summary judgment quieting title to Lot 8, Magnolia Terrace, as recorded in Map Book 5, Pages 597-598 of the records in the Office of the Judge of the Probate Court of Mobile County, Alabama; one-half interest in appellant, Rebecca Lott Martin, and one-half interest in appellee, Betty Ann Hallman.

We reverse.

Martin brought this action to quiet title. It was the homeplace of Martin and her former husband, Jaysie Thomas Lott. The property had been conveyed to them jointly with right of survivorship. Subsequently, they were divorced pursuant to an amended decree of the Mobile Circuit Court which provided:

“ * * * that the Complainant and Cross-Respondent shall have the exclusive use of the homeplace located at 1457 Shelton Drive in the City of Mobile but that the title to the said homeplace shall remain as provided in the original deed to the said homeplace, and that the Respondent and Cross-Complainant shall be liable for the regular monthly house note payments on the remaining balance due on the said homeplace.”

Despite this decree Lott deeded his interest in the property to Hallman, his daughter by a previous marriage. Thereafter, Lott died and Martin brought this action. Hallman answered and filed a motion for summary judgment with supporting affidavit. The trial judge, who was not the one who granted the divorce, granted the motion based upon pleadings, admissions and affidavit.

The sole issue before this court is whether the quoted divorce decree barred Lott from conveying his interest in the property to Hallman. We hold it did.

Hallman contends the decree simply allowed Lott and Martin to continue owning the property as joint tenants. Therefore, she reasons, Lott could lawfully convey to her his interest since a joint tenancy is destructible by conveyance. See Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

This construction of the divorce decree ignores the obvious intent of the trial court which granted the decree of divorce. Had the trial court intended such a result it need not have addressed the issue of ownership of the property. Title to the property would have then remained as it was. See Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356 (1970).

The decree specifically stated that Martin was to have “the exclusive use of the home-place.” If Lott were permitted to convey his interest in the property his grantee could force a sale for division and deny Martin exclusive use of the property, thus thwarting the intent of the divorce decree in that regard. The intention was that title to the property was to pass to the survivor of Lott and Martin upon the death of one.

It is the intent and purpose of the divorce court evidenced from the proceedings and decree as a whole which must control. See generally Coffey v. Cross, 185 Ala. 86, 64 So. 95 (1913). We, therefore, hold the decree prohibited Lott from conveying his interest in the property. His conveyance to Hallman was a fraudulent attempt to defeat the decree and deprive Martin of her lawful right to the exclusive use of the property. As such the conveyance is void and Martin is entitled to the property by right of survivorship. See § 8-9-6, Code 1975.

Accordingly, the judgment of the circuit court is reversed and the case remanded for rendition of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: ALMON, Justice.

text:
    STATE of Alabama v. Maggie Ryan BENDERSON, et al.
    77-579.
    Supreme Court of Alabama.
    Jan. 19, 1979.

      William P. Gray, Jr., Tuscaloosa, for appellant.
    Richard Y. Roberts, Tuscaloosa, for appel-lees.
   ALMON, Justice.

This is a condemnation case. The State initiated proceedings in the Probate Court of Tuscaloosa County to take property located in the City of Tuscaloosa for highway purposes. Unhappy with the probate award, both parties appealed to the Circuit Court. A jury found the fair market value of the property to be $77,000. After the denial of a motion for a new trial, the State appealed.

The State’s expert witness testified that the property was worth $41,250. The landowners’ expert witnesses placed the value of the property between $96,000 and $107,-000.

The State claims error at trial because of the admission of certain testimony. More specifically, the State says opinion evidence cannot be based on hearsay; opinion evidence on the highest and best use of property is improper where that use is illegal under current city zoning laws unless other evidence is also presented indicating a reasonable possibility of rezoning and; proper predicates were not laid for the admission of comparable sales of other property in the vicinity.

When a jury verdict places the value of property within the range of the highest and lowest value placed upon that property by expert witnesses, the conclusion of the trier of fact is to be given much weight. State v. Central of Georgia Railroad Company, 293 Ala. 675, 309 So.2d 452 (1975).

The State’s first contention is that it was improper for the court to allow the landowners’ experts to give their opinion on the value of the property and subsequently give the facts upon which that opinion was based and that certain evidence should have been excluded when it later developed that it was based partly on hearsay information.

With respect to the State’s first point, two of the landowners’ expert witnesses testified that they had participated in real estate transactions in and around the Tuscaloosa area for a number of years; that they were familiar with property values in the area generally; that they were familiar with the property in question and that they had formed an opinion as to the value of the property. Each of the witnesses then gave their opinion of the property’s value. Subsequently each witness recounted instances of other sales of property in the same general area to support their opinion.

This court has previously noted that whether a witness has had an opportunity to form a correct opinion on the value of property is a preliminary matter and is left largely to the discretion of the trial court. Only where it clearly appears that the ruling was unjust will the exercise of discretion be disturbed. Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959). In our opinion, the trial court did not abuse its discretion.

In two instances, the expert witnesses conceded on cross-examination that their opinion was based in part on hearsay testimony.

Testimony of Bill Deal

Q. I asked you if on those three [pieces of property] is that the only way that you know it that Mr. Shelby told you?
A. Yeah, he had records proving it.

Testimony of Lee Pake

Q. So, you don’t know what the price of that property was, do you, except what Mr. Shelby has told you?
A. That’s not necessarily true, no. Well, Mr. Boles, I can give you a list of folks.
Q. They all told you how much the property was?
A. They told me about the property.

Even though the expert’s opinion on value was based in part on hearsay, the trial court did not err in refusing to exclude the evidence. In McLemore v. Alabama Power Company, 285 Ala. 20, 228 So.2d 780 (1969) we noted that

“ * * * an expert should be permitted on direct examination to state the sales prices of ‘comparable lands’ even though his knowledge of such sales prices is obtained from, or is founded upon, hearsay, for the reason that he should be permitted to show the basis for his opinion of the value of the land in question.
Our court has long recognized that, in part, opinions as to value by expert witnesses may be based on hearsay.” (emphasis deleted). 285 Ala. at 32, 228 So.2d 791.

It is clear that not only were the experts qualified to testify and familiar with the property, but their conclusions were based upon considerations not supported by hearsay. Compare McLemore v. Alabama Power Company, 289 Ala. 643, 270 So.2d 657 (1972).

The State contends that it was improper to admit evidence of comparable sales of property located in areas where the zoning classifications are different from the zoning classification of the condemned property. Sayers v. City of Mobile, 276 Ala. 589, 165 So.2d 371 (1964) merely sanctioned the admissibility of evidence concerning possible zoning changes. That case does not require evidence concerning the probability of a zoning change before property zoned differently can be used by expert witnesses in formulating their opinion of value. The zoning differentials were elicited by counsel for the State on cross-examination and the differentials went to the weight of the experts’ testimony. The trial judge stated the law in this regard correctly:

“Now, the rule that you can use to consider value of the subject property for its highest and best use contemplates the lawful use, one not prohibited by laws or zoning regulations. It would be improper to arrive at the market value of the subject property based entirely on prohibitive or illegal use.”

The State’s final contention is that the trial court erred in refusing to allow counsel for the State to fully cross-examine one of the landowners’ experts on the vol-untariness of one of the comparable sales. The error, if any, in this regard was minimal because an examination of the record reveals that only one of the three expert witnesses was questioned with respect to this matter and only one transaction was involved. Rule 45, ARAP.

We have examined the entire record and are of the opinion that there is no reversible error. Some of the evidentiary predicates were admitted after the fact. Many of the objections to testimony were general and not specific. Some of the objections that should have been sustained were rendered harmless by subsequent admission of the same testimony without objection. The judgment of the Circuit Court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: FAULKNER, Justice.

text:
    Joan K. VOLD et al. v. Cletis D. HAND.
    77-738.
    Supreme Court of Alabama.
    Jan. 19, 1979.
    Carl E. Chamblee, Birmingham, for appellants.
    Hugh W. Roberts, Jr. of Phelps, Owens, Jenkins & Gibson and Roberts & Davidson, Tuscaloosa, for appellee.
   FAULKNER, Justice.

In this appeal we are asked to determine whether the trial court abused its discretion in dismissing plaintiffs’ action with prejudice for want of prosecution. We find no abuse of discretion and affirm.

Plaintiffs filed a malpractice action against Hand, a dentist, on January 12, 1977. The case was originally set for trial October 18, 1977, but was continued over the objection of the defendant on the grounds that plaintiffs had additional preparation and discovery to do. The case was then set for trial the week of May 22, 1978, and was again continued. The case was next set for trial the week of June 12,1978. The week before plaintiffs again moved for a continuance on the ground that a material witness would not be available. That motion was denied when a telephone call to the witness revealed that she would be in town and available for trial on June 12. Defendant’s counsel proceeded to prepare for trial on Monday the 12th.

On Friday, June 9th, however, plaintiffs again requested a continuance, this time in a telephone conversation with the trial judge. As a justification plaintiffs’ counsel asserted that he was required to appear in court in Cullman County on June 12 for trial on three felony cases. The trial judge replied that he could not grant a motion over the phone, but would entertain a proper motion after notice to opposing counsel and a hearing. The hearing was set for June 12. When no one appeared to argue the motion plaintiffs’ counsel was sought in the Tuscaloosa County courthouse but was not found. The trial judge then ordered the case to trial instanter and, when plaintiffs and their counsel did not appear, dismissed the complaint for want of prosecution. Plaintiffs’ motion to set aside the judgment of dismissal was denied.

This Court stated the rule governing the granting of continuances in circumstances such as these in the case of City of Birmingham v. Goolsby, 227 Ala. 421, 150 So. 322 (1933). We consider it appropriate to restate that rule here in full:

“ ‘Ordinarily the fact that an attorney is professionally engaged elsewhere in the trial of a cause does not give an absolute right of continuance, and a denial of the application is generally sustained as an exercise of sound discretion. The courtesy existing between members of the bar, and recognized by trial courts, will usually in such cases enable a counsel to postpone a cause for a few days in one of the courts so as to enable him to be present at both trials. But this is purely a matter of grace and not of law. The rights of litigants in one court are not to be determined by the condition of the docket in another, nor because an opposing counsel has assumed duties in different courts which may conflict. Cases may of course arise when the denial of the right of continuance might amount to an abuse of discretion; but under such circumstances it is not sufficient to show that the absent attorney was expecting a case to be called in another court, but it must be shown that he is at the time actually engaged in the trial of the other cause. Moreover it must be made to appear that under the circumstances other professional advice is unavailable, and that there is a meritorious cause of action or defense thereto which cannot be effectively presented without the presence of the absent attorney.’ ” (Emphasis supplied.)

In Steele v. Gill, 283 Ala. 364, 217 So.2d 75 (1968), we reiterated the point that the attorney against whom the dismissal is granted must be actually engaged in the trial of another case at the time the judgment of dismissal is taken. Here it appears that plaintiffs’ counsel was not engaged in the trial of another case on June 12 but was merely “directed to appear” and “be ready for trial” on the cases in Cullman County. The Cullman County felonies were not addressed by that , court until Thursday, June 15, and, in fact, were never tried. The defendant should not be penalized by opposing counsel’s obligations to his other clients, where counsel is not actually engaged in the trial of another case. Under the circumstances the trial court did not abuse its discretion when it refused to grant the continuance, ordered the case for trial instanter, and dismissed the complaint with prejudice for want of prosecution.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Jack D. GOODMAN v. Virginia James GOODMAN.
    Civ. 1442, Civ. 1442-B.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.

      Michael C. Moore, of Watson, Moore & Chesnut, Huntsville, for appellant.
    James W. Woodroof, Athens, for appellee.
   BRADLEY, Judge.

Former husband appeals from decrees rendered by the Circuit Court of Limestone County in a domestic relations case. The appeal in Case No. Civ. 1442 is from the final decree of divorce dated September 14, 1977 and from the decree on rehearing dated December 20, 1977. The appeal in Case No. Civ. 1442-B is from that portion of the decree dated March 8, 1978 which denied the husband’s petition to modify the divorce decree. We affirm in each case.

The husband’s primary contention on appeal is that the trial court abused its discretion in granting to the wife excessive awards of child support and alimony and in ordering an inequitable division of property and allocation of debts. He contends that the trial court further abused its discretion by refusing to modify these awards of child support and alimony because his net income is simply insufficient to pay these obligations.

The amount of child support is a matter for the discretion of the trial court. Phillips v. Phillips, 277 Ala. 2, 166 So.2d 726 (1964). Likewise, the award of alimony and the division of property on divorce are matters within the discretion of the trial court, and each case must be decided on the basis of its own facts and circumstances. Stewart v. Stewart, Ala.Civ.App., 341 So.2d 490 (1977); Elsevier v. Elsevier, Ala.Civ.App., 355 So.2d 382 (1978).

Thus, the issues raised by the husband necessitate a review of the facts out of which these appeals arose in order to determine whether or not the trial court has abused its discretion. The relevant facts, as revealed by the rather lengthy records in these cases, are as follows.

The parties herein involved were married in 1957. The husband shortly thereafter entered veterinary school at Auburn. His education there was funded by the GI Bill, his wife’s working full-time and his working part-time. The parties moved to Athens, Alabama in 1961, where the husband set up his veterinary practice and where the parties have since resided.

Four children were born of their marriage. The elder son has reached the age of majority. The younger son and the two daughters are minors.

When the parties were married they had little or no property. Over the years they have accumulated considerable property, to wit: (1) a home on 5.5 acres of land in Limestone County, valued at $65,000 and subject to a mortgage with an outstanding balance of $9,733; (2) a 19.4 acre parcel of land adjoining the home, valued at approximately $10,000 and apparently unencumbered; (3) a 289 acre farm with a house purchased in 1972, valued at $100,000 and subject to a mortgage with an outstanding balance of $44,400; (4) land upon which the husband’s office and animal clinic is located, purchased in 1966 and subject to a mortgage with an outstanding balance of $17,-107 (the record indicates that various estimates of the value of this property range from $67,800 to $100,000); (5) at least one cemetery lot; (6) household furniture and fixtures, apparently unencumbered and valued at $7,675; and (7) the wife’s 1975 Pontiac automobile, upon which is owed a debt of $3,100, and several other motor vehicles. In addition to the debts listed above, the husband also owes to the bank open notes in the amount of $26,800. Consequently, his total fixed debt, secured and unsecured, is $101,140.

The record reveals that the net worth of the husband is subject to some dispute. Plaintiff’s exhibit nine, submitted to the trial court by the husband, shows his net worth to be $171,700. However, in a financial statement submitted by the husband to Central Bank (defendant’s exhibit eleven), his net worth as of June 1, 1977 is listed as $272,673.

The record indicates that during the course of their marriage the parties began to have disagreements concerning various matters, primarily involving expenditures and discipline of the children. Dr. Goodman moved out of the marital abode and into the house on the 289 acre farm in November 1975. He has resided there since that date. He filed a complaint with the trial court in May 1977 seeking inter alia a divorce on the grounds of incompatibility and irretrievable breakdown of the marriage and an equitable division of the marital property. The wife’s answer to this complaint contained a counterclaim asking for a divorce on the ground of adultery, as well as custody of the children, child support, division of property, alimony and attorney’s fees.

The trial court heard evidence ore tenus in this cause. Dr. Goodman testified that in his opinion the three minor children could be properly raised with monthly child support payments of $165 per child. He indicated that he could pay this amount “without any problem at all.” He further stated that he was presently paying the mortgage payments, taxes, and fire insurance for the marital home. He admitted having an adulterous relationship with Dr. Sue Kirkpatrick, a university professor. Dr. Kirkpatrick, called by the husband as a witness, confirmed this fact in her testimony.

The record reveals that on one occasion in the fall of 1975 while Dr. Kirkpatrick was visiting at the farmhouse with Dr. Goodman, Mrs. Goodman came to the farmhouse with a pistol and a hammer. On another occasion Mrs. Goodman entered the farmhouse while her husband was away and had taken or destroyed items of clothing belonging to Dr. Goodman and to Dr. Kirkpatrick, and had damaged a sofa given to her husband by Dr. Kirkpatrick.

Mrs. Goodman testified that in the two years prior to the separation, her husband had given her $900 a month to run the household. From this amount she paid the mortgage payment on the home, utilities, groceries, clothing, etc. for the six persons in the family. She testified to current needs of approximately $1,500 per month, and quoted her husband as saying during the year prior to the separation that it took $25,000 per year for the family to live on.

After hearing this testimony the trial court issued a decree dated September 14, 1977 dissolving the marital relationship on the ground of incompatibility of temperament. Mrs. Goodman was awarded $300 per month alimony, custody of the three minor children, $200 per child per month child support for the three minor children, and $1,750 in attorney’s fees. Dr. Goodman was awarded title to the 289 acre farm property and to the animal clinic property. Mrs. Goodman was to have title to the family house, the 5.5 acres upon which it is located, the adjoining 19.4 acre parcel, and to the cemetery lot. Dr. Goodman was to assume responsibility for all liabilities including mortgages on the real estate existing at the time of trial.

Mrs. Goodman was also to have the 1975 Pontiac automobile and all the household furnishings, appliances and furniture (with certain specified exceptions). Dr. Goodman was to have the farm equipment and vehicles, the animal clinic equipment, the horses and cattle, and his personal belongings.

Dr. Goodman was granted the right of visitation with the children at any and all reasonable times. The decree states that “the oldest child is presently attending Auburn University and Dr. Goodman has expressed a willingness to provide him with a college education.” Dr. Goodman was further required to keep in force certain life insurance policies with the children as beneficiaries. He was also required to pay all the reasonable medical and dental bills of the children.

Dr. Goodman applied for a rehearing alleging inter alia that the awards to the wife for alimony and child support were excessive; and that the division of property and the requirement that he assume responsibility for the real estate mortgage on the property awarded to the wife was inequitable. This application for rehearing was later amended to allege that the wife had become gainfully employed since the date of the divorce decree.

The following testimony was given at the hearing on December 20, 1977. The husband’s accountant, Mr. Ralph Dowdy, testified that the husband’s financial records reflect that from January 1, 1977 through November 30, 1977 Dr. Goodman had taken the amount of $10,350.60 as net income from the drawing account of his veterinary practice; that Dr. Goodman’s projected net income for 1978 is $11,000, with an estimated income tax of $2,428; that his projected total obligations for 1978 would be $62,933, or $36,136 if each of the open notes was renewed; and that even if Dr. Goodman’s net income increased by ten percent in 1978, he would still have only about half of the amount required by the obligations to his wife and children.

Dr. Goodman testified that in the four months since the divorce decree he had not paid the full amount of child support and alimony required by that decree ($900 per month) because he “didn’t have the money” to do so. He stated that he had been paying approximately $500 per month to the wife and had paid $500 of the required $1,750 for the wife’s attorney’s fees. He also stated that since 1961 his veterinary practice had changed from work with cattle to the more profitable work with small animals and pleasure horses, and that his 289 acre farm would probably show a profit of about $500 for the year.

The record of the December rehearing reveals that since the original divorce decree had been issued the following events had occurred. Dr. Goodman had sold livestock for $6,928, $550 of which belonged to the children for their cattle and $5,901.50 of which was paid to the Federal Land Bank. He had also earned $400 lecturing for one quarter at the University of Alabama in Huntsville, but had discontinued that job. The elder son, who had dropped out of college, married and begun working, was no longer a dependent. Mrs. Goodman had taken a job in November of that year as a receptionist for a dentist in Decatur. She was earning a weekly net income of $76.12 with commuting expenses of abut $15 per week. This was the first job she had held since helping her husband through college.

The testimony, joint income tax returns, and other exhibits introduced into evidence at the original hearing and the rehearing reveal the following facts about these parties’ financial situation from 1972 through 1976:

Gross Farm Income Loss Business Depre- Net ciation Income
1972 $56,528 $ 2,122 $5,590 $10,511
1973 59,326 10,066 5,807 .6,250
1974 56,518 10,475 5,424 2,810
1975 54,639 5,798 3,559 6,792
1976 48,621 5,378 3,521 2,412

On cross examination at the rehearing Dr. Goodman’s accountant agreed that the kind of farm business owned by Dr. Goodman, which loses money every year, was generally set up to do so and is “a nice way to write off expenses.”

Dr. Goodman testified that their gross income for those years was diminished by farm losses and depreciations arising from improvements to real estate; that due to those improvements and to inflation the real estate for which he had borrowed money to purchase had enhanced in value tremendously since the time of purchase; and that he and his wife had been living in part on borrowed money and the money written off as depreciation of equipment at the animal clinic, without being able to set aside cash for the replacement of this depreciated equipment.

The trial court’s decree of December 20, 1977, issued after the rehearing, modified the divorce decree in certain respects, relieved the husband of responsibility for a certain debt owed by the wife, established specific times for the husband’s visitation with the children and awarded a fee to the wife’s attorney. The terms of the original decree pertaining to alimony, child support and division of property remained unchanged. On January 31, 1978 the husband appealed from the decrees of September 14, 1977 and December 20, 1977.

On February 27, 1978 the husband petitioned the trial court for modification of the divorce decree and for issuance of a rule nisi to the wife ordering her to show cause why she should not be held in contempt of court for her interference with the visitation rights of the husband. This petition stated that the husband was in arrears in child support and alimony payments, and that he was unable to make the ordered payments without a complete liquidation of his assets. The petition further alleged a substantial change of circumstances regarding the wife’s employment and income status which would justify a modification of the alimony and child support awards. The petition also requested a stay of execution on any outstanding deficiencies in these payments pending either a further hearing by the trial court or a determination of the appeal by this court.

The wife’s answer denied that she had interfered with the husband’s visitation rights, denied there had been any material change of circumstances, and further petitioned the court for issuance of a rule nisi to the husband ordering him to show cause why he should not be held in contempt of court for his failure to pay the required amounts of child support and alimony. The wife’s petition also requested a stay of the husband’s petition pending a determination by this court of his earlier appeal.

The testimony given at the hearing on the petition for modification on March 8, 1978 revealed the following additional facts. Mrs. Goodman’s job as a receptionist had lasted about seven weeks. She had begun work at her present job in January 1978 and earned a net pay of approximately $470 per month. Her salary from this job plus the $300 alimony and $600 child support payments due from her husband, if paid, would give her a monthly income of $1,370.

Dr. Goodman testified that the maximum cash he could get out of his business for both himself and his wife and children to live on was $750-$800 per month, without selling his assets or increasing his earnings. He also testified that his cattle were currently worth about $5,000.

Following this hearing the trial court issued a decree dated March 8, 1978 denying the husband’s petition to modify. The trial court also adjudged both parties to be in contempt of court. The husband’s contempt citation was based on his failure to comply with the previously ordered payments of child support, alimony and attorney’s fees. Finding that the husband had sufficient means with which to make these payments, the trial court ordered the register to issue and retain a warrant for the husband’s arrest, to be issued upon the husband’s failure to pay within ten days the arrearage in the amount of $2,231 owed to the wife and the $875 in fees owed to the wife’s attorneys. The wife’s contempt citation was based on her refusal to comply with the court’s earlier orders pertaining to visitation rights of the husband. She was fined $50. The decree further ordered the husband to pay $250 toward attorney’s fees for the wife.

The husband’s motion for a stay of the decree of March 8,1978 pending determination of his appeal by this court was overruled by the trial court. The husband appealed from the trial court’s decree of March 8, 1978.

Our review of the issues raised by these appeals is predicated upon some familiar principles of law. The well established rule on appeal from a decree of the trial court rendered upon a hearing of the evidence ore tenus is that such a decree is presumed correct and will be set aside only if it is unsupported by any credible evidence and is plainly wrong. E. g., Fultz v. Fultz, 47 Ala.App. 502, 257 So.2d 362 (1972).

The division of property, grant of child support and award of alimony are matters within the sound discretion of the trial court, and are not to be reversed on appeal absent a manifest abuse of discretion. Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977).

The amount of alimony to be awarded to the wife in a divorce case is addressed to the sound discretion of the trial court, as is the amount to be paid for support of the children, and the exercise of such discretion will not be revised on appeal unless the court is deemed to be palpably in error. Stilwell v. Stilwell, Ala.Civ.App., 357 So.2d 355 (1978).

Likewise, 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. 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. McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977).

After reviewing the foregoing facts we are not persuaded that the trial court abused its discretion either in the awards granted by the divorce decree or in its refusal to modify that decree.

We said in Hendrix v. Hendrix, 56 Ala.App. 178, 320 So.2d 684, cert. den. 294 Ala. 758, 320 So.2d 687 (1975) that the award of alimony in gross or property division made to the wife must depend upon the facts and no mathematical formula can determine what is an appropriate award. We noted that cases had sustained awards of from one-third to one-half of the husband’s estate and concluded that an award of $60,000, to be paid out of the husband’s estate of $123,000, was not excessive.

In the case at bar the approximate value of the home, adjoining acreage and household furnishings awarded to the wife is $83,000. A comparison of this award with either the statement of the husband’s net worth as submitted by him to the court in plaintiff’s exhibit nine ($171,000) or that submitted by him to the bank as shown in defendant’s exhibit eleven ($272,673) reveals no abuse of discretion by the trial court.

The husband cites Travis v. Travis, Ala.Civ.App., 345 So.2d 321 (1977) to support his argument that the award of child support is excessive and for the proposition that the amount of such awards should not be so far beyond his financial ability as to cripple him by compelling him to give up all of his income. In that case we reversed the trial court’s decree which required the father to make child support payments each month of $666 on a net income of $680. As the husband correctly points out, the reversal in that case was based on our finding that the trial court’s conclusions could have been reached only by disbelieving competent and unimpeached evidence.

Such is not the situation in the case at bar, however. Dr. Goodman himself testified that child support payments of $165 per month per child was a “fair” and “realistic” amount, and that he could pay this “without any problem at all.” Moreover, Dr. Kirkpatrick’s testimony indicated that after Mrs. Goodman had entered the farmhouse and destroyed Dr. Kirkpatrick’s clothing, Dr. Goodman reduced the amount of the alimony/child support check sent to Mrs. Goodman, not because of any financial distress, but rather in order to compensate for the destroyed clothing. In view of this testimony and the circumstances presented in this case we are not inclined to agree that the trial court’s award of $200 per month per child was excessive and arbitrary.

Similarly, the award of $300 per month alimony cannot be considered an abuse of discretion under the circumstances in this case. The husband’s accountant testified that Dr. Goodman’s net income for the first eleven months of 1977 was $10,-350.60, and that his projected net income for 1978 was $11,000. Requiring payments of alimony totalling $3,600 annually from such income is neither arbitrary nor excessive. Furthermore the record reveals sufficient evidence to support the conclusion that the required $900 monthly alimony/child support award would not, as the husband contends, compel him to sacrifice his property in order to pay it.

Nor can it be said that the trial court’s allocation of debts was inequitable. The record indicates that-Dr. Goodman is a very competent, qualified veterinarian consistently earning an annual income of approximately $40,000-$60,000. On the other hand, Mrs. Goodman has devoted herself to running the household and raising the children for most of the couple’s married life. Since the divorce decree she has taken a refresher course in typing and accounting and has worked as a receptionist and as a clerk for a construction company. She remains dependent on her husband for the bulk of her sustenance. In view of these circumstances we cannot say the trial court abused its discretion in requiring the husband to assume the entire debt obligation of the parties.

Furthermore, we think the husband failed to demonstrate a material change of circumstances sufficient to warrant a reduction of the child support or alimony awards. The “changed circumstance” upon which the husband’s petition to modify principally relies is the fact of Mrs. Goodman’s employment. We think the evidence in these cases would amply support conclusions by the trial court that the divorced mother has shown fortitude, ambition and energy in working to help support herself and her minor children, and that her receipt of the modest earnings from this job should not serve as a basis for penalizing her in order to relieve the father of the duty primarily cast upon him of supporting his wife and children. Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Code of Alabama 1975, § 30-2-51.

Moreover, the other changes of circumstances revealed by the record of the rehearing — the income received by the husband from the cattle sale and his employment at the university, and the elder son’s leaving college and obtaining gainful employment — tend to indicate that the husband’s ability to make the required payments has been strengthened rather than weakened.

In sum, we are inclined to agree with appellee that the trial court has held three long hearings on the matters herein contested and has concluded that the burdens imposed on the husband are neither arbitrary or excessive. These cases are affirmed.

Appellee has requested an award of attorney’s fee for this appeal. An award of $750 is hereby made.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    OHIO FERRO-ALLOYS CORPORATION v. Frank WHALEY.
    Civ. 1587.
    Court of Civil Appeals of Alabama.
    Jan. 17, 1979.

      Joel E. Dillard, of Steiner, Crum & Baker, Montgomery, for appellant.
    Philip S. Gidiere, Jr., of Carpenter & Gi-diere, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. The plaintiff, Frank Whaley, brought this action against the defendant-employer, Ohio Ferro-Alloys Corporation, and the trial court found in favor of plaintiff. We affirm.

The testimony was substantially as follows:

On April 9,1977, the plaintiff was employed by defendant and acting within the line and scope of his employment when he slipped while ascending a flight of stairs in defendant’s plant. The fall resulted in a back injury. Plaintiff gave prompt notice of his accident to his employer. He was admitted to the hospital on the day of the accident. He later underwent an operation known as a spinal fusion by Dr. Gary Phillips, an orthopedic surgeon. Dr. Phillips testified that the accident aggravated a condition in plaintiff’s back and caused a permanent disability equal to twenty-five percent whole body physical impairment. Before trial the parties stipulated that the average weekly wage of the plaintiff while in defendant’s employ during the fifty-two-week period immediately preceding the accident was $295.75.

After his injury, plaintiff returned to work with defendant for a short period on a part-time basis, but was subsequently discharged. He then obtained employment at Neptune Meter Works in Tallassee, Alabama. His duties at Neptune were basically supervisory in nature with an annual salary of approximately $13,600. Plaintiff had been doing supervisory work with defendant, but had also been required to do a great deal more manual labor because of the newness of defendant’s plant. The plaintiff further testified that the people at Neptune had hired him because of what he knew — not his brawn.

Plaintiff completed three years of college at the University of Alabama where he played defensive end on the football team. He did not complete work for a degree. His work experience since college has included being a carpenter, police officer, and shift supervisor in plants such as the one operated by defendant.

The trial court made a finding of fact that plaintiff was earning $18,000 annually from defendant at the time of the injury, and that he earned $13,600 with his employment after the injury. The court thereafter found as follows:

“7. The court further finds that the plaintiff is 25% permanently disabled. The difference between plaintiff’s average weekly earnings prior to the injury and his probable earnings afterwards would be $73.94 per week. He is entitled to compensation at the rate of 66 and %% of $73.94 per week or $49.29 per week for 296 weeks.” (R.50)

Defendant first attacks the judgment below by contending that there is no evidence to support the finding that “The difference between plaintiff’s average weekly earnings prior to the injury and his probable earnings afterwards would be $73.94 per week.” The contention of defendant is premised upon the assumption that in determining the percentage of loss of ability to earn the computation is to be based upon the average weekly salary before and the average weekly salary thereafter. We find that premise to be in error.

It is evident from the recital in its judgment that the court used the difference in plaintiff’s annual salary of $18,000 at the time of his injury and the annual salary of $13,600 which he was earning after the injury as evidence of his percentage loss of earning capacity. There is roughly a 25% differential. We find nothing wrong with the court having made its determination from such evidence. Evidence of his actual salary at the time of his injury and his actual salary earned in his injured condition is material in determining the percentage of loss of ability to earn.

In fact, the comparison of before and after earnings has been said to raise a presumption of the degree of loss of earning capacity. Goodyear Tire & Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So.2d 278 (1957). It is only after the amount of the loss of earning capacity is determined that the formula involving average weekly earnings may be applied under the statute. § 25-5-57(a)(3)(g), Code of Alabama (1975). That is what the court did in its judgment. Comparing the actual salary being earned at injury with the largest salary earned after injury, the court calculated a 25% loss of earning capacity. Applying that percentage to the stipulated average weekly earnings at the time of injury, the court determined the average weekly earnings plaintiff was able to earn after injury. The error of defendant’s contention is that it insists that the latter figure must be the same as the average weekly earnings calculated from plaintiff’s actual earnings since the injury. Actual earnings and earning capacity are not the same. It is the latter that the court determines from the evidence. 2 Larson, Workmen’s Compensation Law, § 57.21; Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743 (1940).

We hold that the finding of loss of earning capacity is sufficiently supported by legal evidence to withstand our review on certiorari. Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977), cert. denied, 354 So.2d 1142 (Ala.1978).

Defendant next contends that the trial court erroneously failed to include in its judgment a finding that plaintiff suffered a loss of ability to earn. Defendant’s contention that a determination of a permanent partial impairment of capacity to earn is necessary to an award is correct. We have so held. B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971). However, we do not consider it imperative that such determination be couched in such specific terms. The statute (§ 25-5-57(a)(3)(g)) requires “Compensation for Permanent Partial Disabilities Not Enumerated.” It is only in using the formula that the need for a determination of loss of ability to earn arises.

The judgment entered is in the exact words of the statute. It found the plaintiff to be 25% permanently partially disabled. Such finding is necessary under the statute. It then continued, as we heretofore quoted, to apply that finding of disability to average weekly earnings before the injury as is required by the statute. The use of the formula exemplifies the loss of ability to earn. This court has not disapproved a judgment worded as in this case. Our disapproval of judgments in permanent partial disability cases has been because the judgment specifically found only a percentage disability of the body as a whole without a finding of a loss of ability to earn, or there was a finding of bodily injury with an award but with no evidence of a loss of capacity to earn. Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973); B. F. Goodrich, supra.

We therefore find the judgment when considered in its entirety to satisfy the requirements of the statute. This being so, the court was empowered under Rule 60(a), ARCP, to clarify its judgment and cause it to speak specifically what it previously spoke by implication. The court did so correct its judgment on November 8, 1978.

Defendant presents a third issue of the sufficiency of the evidence to support a finding that plaintiff’s injury arose out of and in the course of his employment. We cannot believe defendant seriously presents this issue in view of the undisputed testimony that plaintiff fell while at work and proceeded immediately thereafter for emergency medical treatment at the hospital. This court on review by certiorari does not consider the weight of the testimony. We look only to determine if there is any evidence to support the finding of fact by the trial court. Bass v. Cowikee Mills, 259 Ala. 391, 67 So.2d 12 (1953).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Dozier BOULER v. Octavia BOULER.
    Civ. 1633.
    Court of Civil Appeals of Alabama.
    Jan. 17, 1979.

      W. W. Dinning of Lloyd, Dinning & Boggs, Demopolis, for appellant.
    Ronnie E. Keahey, Grove Hill, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals from the trial court’s division of property.

The parties were married in 1948. They lived together until 1968, when the wife moved to New York. The husband filed for divorce in 1977. The wife counterclaimed.

During the parties’ marriage, both worked at relatively meager employment. The husband farmed, painted houses in the summer, and planted trees for American Can in the winter. The wife aided in farming, worked as a cook and contributed her wages to the family income.

Both husband and wife testified as to some violence against each other. The parties’ adult daughter testified that the wife constantly ran around with men, and that she left for New York with another man.

The wife disputed the daughter’s testimony. She said she did not leave her husband until 1970 and then because of his inability to provide for her and pay the bills.

The parties’ primary assets were in real property. The husband inherited an undivided one-third interest in eighty acres of land and an entire interest in forty acres from his father, subject to dower and a life estate of his 89-year-old mother.

The parties built .a house on the forty-acre tract. The husband, his mother, and the wife, resided in this house from 1952 until the wife left to go to New York. The husband, his mother, and daughter continue to live there. The husband testified that the house was constructed with $3,000 of his savings. The wife, however, testified that she and a man built the house where the husband and his mother still reside.

The parties also acquired title to a 113.2-acre tract in Marengo County during marriage. The husband testified that he purchased the land from E. V. Hosea for a consideration of approximately $800. A deed to the property from Hosea recited a consideration of $500. The husband said he paid cash for this property. The wife said she had no knowledge of any payment from the husband for this 113.2-acre tract and considered that it was a gift to her from Hosea, who had been her foster father. There was testimony that the wife had cut and sold timber from this land on three occasions, and that the husband did not receive any of the money from the sales.

The trial court after hearing the evidence ore tenus, granted the divorce requested by the husband on the ground of incompatibility-

The court vested title to the home, the forty-acre tract, the eighty acres, and an additional two acres in the husband. It vested title to the 113.2 acres in the wife. At the conclusion of the evidence, the court noted in remarks from the bench:

“Now, I understand both sides of the issue in this case and I understand we’re not a community property state, but to me under these circumstance[s] and in view of the amount of money that was said was paid for the 113 acres of land, and in view of all the facts that I’ve heard, I think it would be a fair and equitable way to divide their property in which I understand that it has been more or less divided that way some ten or twelve years anyway. He hadn’t had anything to do with the 113 acres of land and she hasn’t had anything to do with the other land. He’s lived in the house with his mother and daughter. So, I think that would be fair under the circumstances.” (R. 78, 79).

The husband contends the trial court erred in considering, in its property division, the 120 acres which were inherited by the husband, and abused its discretion by awarding the remainder of the parties’ jointly-held property, i. e., the 113.2-acre tract, to the wife. The husband also contends that since the wife only requested a division of property acquired during marriage and made no prayer for general relief in her counterclaim, while the husband did not ask for any property division in his complaint, the trial court erred by undertaking to divide anything other than the tract of 113.2 acres, all of which was given to the wife.

The husband’s second issue is without merit. Rules 15(b) and 54(c) of the Alabama Rules of Civil Procedure eliminate the necessity of strict pleading of issues tried expressly or with the implied consent of the parties. In Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975), this court held that where there was an evidentiary basis, the trial court did not err in granting unrequested relief by way of child support, alimony, division of property and attorney fees.

In his first issue, the husband contends the trial court abused its discretion in the division of property. We are cited Creel v. Creel, 342 So.2d 793 (Ala.Civ.App.1977), for the proposition that real property inherited by a party is not subject to a division upon divorce. In Creel, we did not consider a lot of the husband and a house and lot of the wife' in the division of property because title of these properties was already vested in the individual parties. They were gifts or inheritances from their respective families. This was merely an equitable consideration and simplified the remaining division. We uttered no rule that would thereafter bind a trial court in making a property division. In Campbell v. Campbell, 51 Ala.App. 295, 285 So.2d 105 (1973), we held there was no requirement that the trial court should attempt to set aside assets obtained in the past by inheritance or gift when these assets become the property of both spouses. It is for the trial court to make an equitable division according to the nature of the case. Campbell, supra.

In Mullins v. Mullins, 344 So.2d 511 (Ala.Civ.App.1977), we said that while the source of the marital property may be considered, along with other circumstances, in effecting a division of that property, it is not controlling upon the court.

It is the law of this state that a division of property in a divorce case does not require an equal division of the estate but one graduated according to the nature of the case. Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977). In Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977), our court said that a fifty-fifty division of property was not required in a divorce decree, and that there was no error in a property division which primarily returned to the wife full ownership of that property given to her but which the parties jointly owned due to their marital status.

In the present case, after hearing the evidence ore tenus, the trial court rendered a decree that essentially vested in each party the property that it considered had been given to them or inherited by them during the marriage. The court noted that the small amount of consideration stated paid for the 113.2 acres was an important factor in its decision. It further reasoned that the parties themselves had apparently regarded the ownership of the various properties in this manner for some ten or twelve years. In view of the long-standing rule in this state that the division of property between parties to a divorce is a matter resting largely in the discretion of the trial court, subject to reversal only for clear abuse or error, this decree is due to be affirmed. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.