author: SHORES, Justice.

text:
    John J. PAPASTEFAN and Linda M. Papastefan v. B & L CONSTRUCTION CO., INC. OF MOBILE, a corp.
    SC 2457.
    Supreme Court of Alabama.
    March 10, 1978.
    Rehearing Denied April 7, 1978.

      Michael A. Figures, of Crawford, Blacksher, Figures & Brown, Mobile, for appellants.
    Jerry A. McDowell, of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   SHORES, Justice.

The plaintiffs appeal from a summary judgment rendered on motion of the defendant.

Plaintiffs sued B & L Construction Company, Inc. alleging fraud in the sale of a house. The defendant filed an ARCP Rule 12(b)(6) motion to dismiss the complaint; but before it was ruled on, defendant also filed a motion for summary judgment, supported by deposition of the plaintiff, John J. Papastefan, and correspondence between plaintiffs and defendant.

Defendant’s motion to dismiss was grounded on the statute of limitations, asserting that the plaintiffs’ complaint showed on its face that the claim was barred. The complaint, in pertinent part, states:

“1. On or about December 4, 1972, defendant and plaintiffs were negotiating concerning the purchase by plaintiffs from defendant of the following described property:
“2. At that time defendant represented to plaintiffs that said property was fit for the purpose for which it was being sold ...”

An action for fraud is subject to the one-year statute of limitations. § 6-2-39, 1975 Code. However, the running of the statute does not commence until discovery of the fact constituting the fraud, or discovery of facts which would provoke inquiry in the mind of a reasonable and prudent man which, if followed up, would lead to the discovery of the fraud. § 6-2-3, 1975 Code; Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So.2d 636 (1973); Moss v. Davitt, 255 Ala. 513, 52 So.2d 515 (1951). The complaint in the instant case does not contain averments which would bring the cause within the provisions of the “saving clause” of the statute. To withstand a motion to dismiss, it is necessary that a complaint show the time and circumstances of the discovery of the alleged fraud. Board of School Commissioners of Mobile County v. Reynolds, 294 Ala. 21, 310 So.2d 876 (1975); Associates Financial Services Co., Inc. v. First National Bank of Mobile, 292 Ala. 237, 292 So.2d 112 (1974). Considering nothing more than the complaint and the defendant’s motion to dismiss, it would not have been error had the trial court granted the defendant’s motion to dismiss. In that posture, the plaintiffs would have had the right to amend their complaint to remedy the defect. ARCP, Rule 15. However, the trial court was not bound to limit itself to the pleadings and, under the last sentence of Rule 12(b), the motion to dismiss was converted into a motion for summary judgment when the court considered matters outside the pleading, whether or not a motion was so denominated. Wright and Miller, Federal Practice and Procedure: Civil § 1366. Once matters outside the pleading are considered, the requirements of Rule 56 become operable and the “. . . moving party’s burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.” Wright and Miller, supra. We must, therefore, determine whether the defendant met that burden, which is appropriately shifted to the defendant-movant for summary judgment because the plaintiff cannot amend as a matter of right after a summary judgment has been rendered against him. Clardy v. Duke University, 299 F.2d 368 (4th Cir. 1962); Wright and Miller, Federal Practice and Procedure: Civil § 2712.

In determining whether any genuine issue of fact exists, we must view the record before us in the light most favorable to the party opposing the motion for summary judgment. U. S. v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). On deposition, Mr. Papastefan testified to the following:

The plaintiffs purchased a house from defendant for $24,500 on January 16, 1973. Prior to the purchase of the house, plaintiff John Papastefan noticed a “wet spot” in the front yard near the street curb. He was told by a representative of the defendant that a drain had been installed under the property and that the wet spot was the result of heavy rains. The plaintiffs moved into the house in late January, 1973, and discovered several defects in the house. On April 16,1973, they submitted a written list to the defendant of some twenty defects. The list included a request to repair the driveway which was cracked and caving in on the sides, and included the following statement:

“(5) The spring or whatever at the foot of the lot causes a perpetual mud hole and a real mess. The water bubbles up from the ground. If a drain was put in, then there is something very seriously wrong and it must be rectified immediately.”

Although some of the listed defects were repaired in May, 1973, the driveway and “wet spot” were left unremedied. The wet spot appeared to dry up on its own and no further action was taken by the plaintiffs.

In March, 1974, the water problem reoccurred. Believing that a water main had burst, the plaintiffs notified the City Water Department, which located no break in the water main; but several drain tiles were found when a high velocity pipe cleaning machine was inserted in a catch basin adjacent to the plaintiff’s property. The Water Department informed plaintiffs that the problem was under their land and could not be remedied by the City. The plaintiffs employed an independent contractor to deal with the problem. He dug two trenches across the front of plaintiffs’ yard parallel to the street in order to drain the land. These trenches uncovered two streams of water running under the property near the street curb. The installed trenches carried the water across the property into a catch basin, and the lower half of the front yard dried up.

The water again appeared in the spring of 1975. This time, the problem was far worse than anything the plaintiffs had previously experienced. Mr. Papastefan found the flower bed in front of his home to be so wet and soggy that he sank up to his knees in mud while inspecting the soil there. The problem encompassed much of the front yard. The Papastefans again called in the same independent contractor, and two more trenches were dug in the front yard. The new trenches ran from the house down to the curb perpendicular to the street and uncovered six streams of running water. The trenches served to drain the yard and again the moisture dried up.

In December, 1975, the Papastefans’ entire yard, back and front, became wet and soggy. At this point, the plaintiffs sought legal assistance. The complaint in this case was filed in June, 1976.

On appeal, the plaintiffs argue that a genuine issue of fact exists as to when they discovered the fraud. Defendant, on the other hand, insists that the deposition of Mr. Papastefan shows without contradiction that he discovered sufficient facts as to justify the conclusion reached by the trial court that the statute of limitations had run. Plaintiffs contend that they are entitled to have a jury pass on the question. We agree. Although there is evidence from which the jury could find that the plaintiffs discovered the fraud more than a year before bringing suit, that question should be submitted to the jury. Mitchell Homes v. Tew, 294 Ala. 515, 319 So.2d 258 (1975), also involves an action based on fraud in the sale of a house. The purchasers in that case brought suit more than one year after the sale of the house to them. There, as here, the defendant raised the statute of limitations. This court held that the question of when the fraud was discovered was for the jury. In Loch Ridge Construction Co., Inc. v. Barra, 291 Ala. 312, 321, 280 So.2d 745, 752 (1973), the following appears:

“Where there is evidence reasonably affording an inference as to whether a plaintiff was defrauded, and if so, when the plaintiff discovered the fraud, the case is one for the trier of fact. Letson v. Mutual Loan Society, 208 Ala. 285, 94 So. 288. ...”

In the instant case, as in Mitchell v. Tew, supra:

“ . . . it can be said that there was certainly evidence from which the jury could have found the plaintiffs discovered the fraud more than a year before bringing suit. . . . ” (294 Ala. at 518, 319 So.2d at 260)

But, it is equally true that there is evidence from which the jury could conclude that the suit was brought within one year from the discovery of fraud. In either event, a genuine issue of fact exists on this issue and it should be resolved by the trier of the facts. The court, therefore, erred in granting the defendant’s motion for summary judgment.

In the instant case, the defendant filed a motion to dismiss the appeal, contending that it was not timely filed. After the trial court granted the defendant’s motion for summary judgment on November 29, 1976, the plaintiffs filed a motion for reconsideration, which, after hearing, was denied on February 11, 1977. The notice of appeal was filed on March 18, 1977. An order granting a motion for summary judgment goes to the merits of a case. Heyward v. Public Housing Administration, 238 F.2d 689 (5th Cir. 1956). The motion for reconsideration was a post-trial motion under Rule 59, ARCP, and was, therefore, effective to suspend the running of the time for filing a notice of appeal under ARAP, Rule 4. The notice of appeal was timely filed in this case, having been filed within 42 days of the date the court entered its order denying the plaintiffs’ motion for reconsideration.

REVERSED AND REMANDED.

All the Justices concur.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Benjamin F. COURTNEY v. Ocllo G. BOYKIN.
    SC 2650.
    Supreme Court of Alabama.
    March 10, 1978.

      Robert A. Wills, of Owen, Ball & Wills, Bay Minette, for appellant.
    Sidney H. Schell, of Pillans, Reams, Tap-pan, Wood, Roberts & Vollmer, Mobile, for appellee.
   PER CURIAM.

This appeal is from a judgment rendered against Benjamin F. Courtney, Plaintiff-Appellant, in favor of Ocllo G. Boykin, Ap-pellee, in an action in the nature of ejectment. The trial court found that Boykin had established title to the subject property by adverse possession, stating, in part:

“On November 29, 1976 this cause came on for trial by the Court, sitting without a jury, and after considering the record, the exhibits and testimony of the witnesses, having viewed the lot in question with the counsel for both parties on December 1, 1976, and after having studied the applicable law, the Court finds as follows:

“1. The Plaintiff, Benjamin F. Courtney, owned the property in question in this cause on April 2, 1959, by virtue of a trustee’s deed from Albert I. Patrick, which deed was dated October 26, 1954, and recorded in Deed Book 214, pages 569-70, Baldwin County, Alabama records.

“2. The Plaintiff conveyed the property to Edna F. Anderson on April 2, 1959 by deed recorded in Deed Book 276, page 529, Baldwin County, Alabama records. On April 2,1959, Edna F. Anderson executed to Benjamin F. Courtney, Plaintiff herein, a mortgage describing the subject property, which mortgage is recorded in Mortgage Book 314, page 477, Baldwin County, Alabama records.

“3. Edna F. Anderson conveyed subject property to Ocllo G. Boykin on April 24, 1959 which deed is recorded in Deed Book 288, page 258, Baldwin County, Alabama records.

“4. On June 26,1961 Benjamin F. Courtney, acting by and through James R. Owen, as Auctioneer and Attorney-in-fact for Edna Anderson, foreclosed the aforesaid mortgage and the foreclosure deed is recorded in Deed Book 305, page 545, Baldwin County, Alabama records. Mrs. Boykin subsequently learned of the foreclosure and in 1965 filed a lawsuit to clear the title by redeeming from Courtney in the U.S. District Court for the Southern District of Alabama but that Court found that it did not have jurisdiction of the cause at that time since the value of the lot was less than the $10,000.00 Federal diversity jurisdictional limit.

“5. Ocllo G. Boykin then filed a lawsuit during 1964 against Benjamin F. Courtney in the Circuit Court of Baldwin County, Alabama, in Equity (Case No. 8198) seeking to exercise her statutory right of redemption from the aforesaid foreclosure sale. This Court in 1967 entered an order sustaining a demurrer to the amended complaint; finding that the complaint could not be amended to give it equity and dismissed the complaint. No appeal was taken from this final order.

“6. The Court finds that the Defendant, Ocllo G. Boykin, has had such open, continuous, exclusive, hostile and notorious possession of the subject property as applied to the adverse holding of land by another evidence by such act and conduct as are sufficient to put a man of ordinary prudence on notice of the fact that the land in question was held by her as owner.

“7. The evidence tended to show that Mrs. Boykin and her family made use of the land in question for a variety of purposes, such as, using the property as a garbage dump; as a means of access by engaging contractors to build and maintain an asphalt road onto the property and a red clay road across the property; building and maintaining a fence across the south end of the lot; burning brush annually on the property for mosquito control; using the property as a parking area; using a bulldozer to move sand from the road and to stop the encroachment of sand upon the road; building a boardwalk over it; by maintaining a snow fence and other acts of possession; and assessing and paying the taxes. Mrs. Boykin owns both Lots 10 and 12 on either side of the lot in question and she or members of her family had built houses thereon and continued their use and occupancy as part of their compound.

“8. The possession of the Defendant, Ocllo G. Boykin, of the subject property was so open, notorious and hostile that the Plaintiff could reasonably be presumed to have notice of her possession or of her claim of title to the property which continued under color of title since April, 1959.

“9. It is the finding of this Court that the Defendant, Ocllo G. Boykin, had exclusive, open, notorious and continuous possession of the subject property coupled with color of title and the annual listing and payment of taxes for the statutory period as set forth in Code of Alabama, Title 7, Section 829 (sic) to give her title by adverse possession.”

In 1965, Boykin filed a suit in the Circuit Court of Baldwin County seeking to exercise a statutory right of redemption as the vendee of the foreclosed mortgagor. Courtney’s demurrer to the complaint was sustained on November 16, 1967, and the court found that the complaint could not be amended so as to give it equity. The complaint was ordered dismissed and no appeal was taken from this order.

Both Courtney and Boykin have regularly assessed and paid taxes on the property since 1959.

The only question presented is whether the trial judge’s finding that Boykin had adversely possessed the tract was clearly and palpably wrong.

Title 7, § 828, Code, provides:

“Adverse possession cannot confer or defeat title to land unless the party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for ten years before the commencement of the action; or unless he . shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action, if the land is subject to taxation; or unless he derives title by descent cast, or devise from a predecessor in the title who was in possession of the land.”

Section 828 is written in the alternative. Satisfaction of any one of the three alternatives satisfies the statute. M. C. Dixon Lumber Company, Inc. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972); and Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).

In addition to fulfilling the requirements of one of the three alternatives, all essential elements of adverse possession must be met. In this regard, this Court has held:

“. . .In order to establish adverse possession, as against the holder of the legal title, ‘the law is stringent in requiring clear proof of the requisite facts. There must be, first, an actual occupancy, clear, definite, positive, and notorious; second, it must be continued, adverse, and exclusive during the whole' period described by the statute; third, it must be with an intention to claim title to the land occupied.’—Washburn on Real Property (4th Ed.) pp. 135, 136. ‘Where a party enters upon land and takes possession, without claim of title or right, his occupation is subservient to the paramount title, not adverse to it.’ ” McDaniel v. Sloss-Sheffield Steel and Iron Co., 152 Ala. 414, 44 So. 705 (1907).

See also, Miller v. Jones, 280 Ala. 612, 196 So.2d 866 (1967); Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962); and 2 C.J.S. Adverse Possession, § 25. Moreover, each of these elements must be shown to have existed the entire term. Miller, supra; Raper v. Belk, 276 Ala. 371, 162 So.2d 466 (1964); and Millican v. Mintz, 255 Ala. 569, 52 So.2d 207 (1951).

Because adverse possession divests title from the record titleholder, a very strict burden of proof rests upon the party claiming title by it. Dixon Lumber, supra; James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972); Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760 (1956); and Webb v. King, 268 Ala. 282, 105 So.2d 653 (1958). Rare and widely separated acts do not satisfy this burden; they constitute mere transitory trespasses. Hagan, supra, and Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).

Boykin claimed that she had acquired title pursuant to the first alternative in Section 828—under color of title for ten years. She also claimed that she adversely possessed the lot and listed it for taxation for ten years.

Title by adverse possession may be obtained by listing the property for taxation for the statutory period. Title 7, § 828, Code. The stipulation that Boykin assessed and paid taxes on the property for over ten years satisfies the first element of this alternative. This, however, does not fully satisfy this option because such listing for taxation is not alone sufficient to give her title. It must also be shown that she had been in actual adverse possession of the land during the ten years she listed the property for taxation. Hagan v. Crowley, supra. See also, Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972); and Webb v. King, 268 Ala. 282, 105 So.2d 653 (1958).

Unquestionably, there was evidence that Boykin, as owner of Lots 10 and 12 had used subject Lot 11 in ways as indicated by the trial court’s finding in paragraph 7 of his order. Appellant says, however, that possessory acts by Boykin prior to the date of the foreclosure deed should not have been considered by the trial court, and that any right, title or interest which Boykin had in the property was divested when the mortgage was foreclosed and title was vested in him, subject only to Anderson’s or Boykin’s statutory right of redemption, which right was not timely exercised. Courtney also contends that Boykin’s pos-sessory acts after foreclosure of the mortgage were subservient to the superior title of Courtney and were presumed permissive.

It is obvious that the trial judge considered possessory acts prior to the date of the foreclosure deed because of the findings he made in paragraph 7 of his order. Boy-kin, in brief, answers Courtney, as follows:

“. . . Whether Mrs. Boykin was or was not holding subservient to Mr. Courtney subsequent to the foreclosure deed of 1961 is immaterial to her claim of title by prescription since twenty years possession without more absolutely vests title in the person in possession. There was substantial legal evidence upon which the Judge could and did find title in Mrs. Boykin by prescription.”

We hold that the trial court was clearly wrong in considering Boykin’s pos-sessory acts prior to the date of the foreclosure deed.

In holding that the findings of fact made by the judge are clearly wrong, we are guided by legal principles which were applied in two Alabama cases, namely, Lowrey v. Mines, 253 Ala. 556, 45 So.2d 703 (1950), and Waters v. Mines, 260 Ala. 652, 72 So.2d 69 (1954).

In Lowrey, the appellant’s predecessor in title, Reconstruction Finance Corporation, had acquired legal title to the subject property through a Register’s Deed issued upon a foreclosure on the property. The appel-lee’s predecessor had been in actual possession of the premises and had legal title prior to the foreclosure. Either she or her agents remained in possession subsequent to the foreclosure. A jury found in favor of the appellee on her ejectment action. This court reversed.

In Waters v. Mines, supra, the case was tried again, this time on the theory of Title 7, Section 828, of listing and paying taxes for ten years prior to the commencement of the suit. Again plaintiff/appellee was successful, and once again this Court reversed and remanded. The court stated that there had not been sufficient evidence to send the case to the jury. The Court, after stating all the tendencies of the evidence concerning the adverse nature of the claim, opined:

“To have the benefit of section 828, supra, in so far as concerns this appeal, there are two principles which must be met. One is that the property must be annually listed for ten years prior to November 20, 1945; and the other is that the possession of Mrs. Crook must not only be open and notorious, but there must be an explicit disclaimer of holding the possession in subordination to the R. F. G. or its purchaser and that disclaimer must be brought home to the actual knowledge of said R. F. C. or its purchaser. In some cases it is said that this may be by such open and notorious acts of ownership as to raise a presumption of notice, the equivalent of actual notice. Lowrey v. Mines, supra; Bellenger v. Whitt, 208 Ala. 655, 95 So. 10; Yancey v. Savannah & Western R. Co., 101 Ala. 234, 13 So. 311.” (emphasis added).

The effect of these decisions on the instant case is two-fold: first, the defendant Boykin was divested of any color of title for purposes of claiming under Title 7, Section 828, by the conveyance of the foreclosure deed to Courtney in 1961, and second, despite the fact that she listed and paid taxes for ten years subsequent to the foreclosure deed and prior to the commencement of this action, she could not claim that any possession that she allegedly had during that period was adverse to Courtney unless she had made a distinct disavowal of the subordinate nature of the possession, or that her acts of ownership were so open and notorious as to raise a presumption of notice.

Boykin attempts to distinguish Lowrey and Waters on the ground that Lowrey “was concerned only with the very narrow question of whether a claimant can hold under color of title when the claimant had been divested of title by a judicial decree,” and Waters is “relevant only in holding that any listing of taxes prior to a judicial sale is not to be included in the required ten years. Suffice it to say that the only difference between Lowrey and Waters and this one is that the R.F.C. foreclosed its mortgage in court and got a Register’s deed, and in this case, Courtney foreclosed under the powers given in the mortgage and got a foreclosure deed. We see no legal distinction.

Boykin also argues that her possession of the property was not subservient to that of Courtney and consequently no disclaimer by her was necessary to transform a permissive possession into an adverse possession. She cites Foster v. Foster, 267 Ala. 90, 100 So.2d 19, as being directly in point and supportive of her contention. The Foster case is factually distinguishable. In Foster, the party claiming title by adverse possession was put in possession by an agreement between himself and the respondents’ predecessor in title as a settlement of an estate problem. However, no deed was transferred. Thus, at the time the complainant was put into possession of the property, he was viewed as holding the possession of the property as against all of the world. At a subsequent point in time, the respondents’ predecessors in title mortgaged the same piece of property, along with other property. Subsequently, the respondents were conveyed title to this property by a foreclosure deed. Since the complainant was placed in possession of the property prior to the existence of the mortgage, this Court found that he was not viewed as holding possession of the property in subservience to a subsequent mortgagee. The facts as established in this case are significantly different. The evidence here shows that Boykin received a deed from Anderson after Courtney gave Anderson a deed to the property and took back a mortgage. When Boykin received her deed, she was fully aware of this fact and even paid Anderson monies to be applied by her to the mortgage debt owed to Courtney. Consequently, any possession which Boykin claims to have taken in 1959, the point at which she began assessing it for taxes, after receiving a deed from Anderson, was with the actual knowledge that it was subservient to Courtney’s superior interest as the mortgagee of Anderson.

We are acutely aware of the principle that when a trial judge hears a case ore tenus, as here, his findings of fact are presumed correct and will not be disturbed on appeal unless palpably erroneous or manifestly unjust. Ratliff v. Giorlando, 343 So.2d 506 (Ala.1977). We are also aware that a fact-finding based on evidence which is insufficient as a matter of law to establish adverse possession cannot stand. That principle is clearly implied in Waters v. Mines, supra, where this Court reversed a judgment based on a jury verdict, and asserted that the affirmative charge was due to be given.

The judgment is due to be reversed and remanded.

REVERSED AND REMANDED.

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

JONES, J., dissents.

JONES, Justice

(dissenting).

I respectfully dissent.

I, of course, agree with the majority in holding that the strict burden of proof rests upon the party claiming title by adverse possession. M. C. Dixon Lumber Company, Inc. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1958). Our point of difference concerns what need be shown to prove adverse possession.

Courtney contends that Boykin could not adversely possess this lot because any color of title was effectively eliminated by the mortgage foreclosure proceeding. See Lowrey v. Mines, 253 Ala. 556, 45 So.2d 703 (1950). Thereafter, he asserts, possession is subordinate and permissive, and only becomes adverse upon disclaimer. Waters v. Mines, 260 Ala. 652, 72 So.2d 69 (1954).

As I understand Boykin’s position, however, she does not claim to have acquired title by adverse possession coupled with col- or of title. Instead, she insists that her title has been acquired by adverse possession coupled with annually listing the land for taxation for ten years. Accordingly, I believe the principle relied upon by Courtney, though a correct statement of the law, is not applicable. See Foster v. Foster, 267 Ala. 90, 100 So.2d 19 (1958).

Moreover, I do not read either the Low-rey or the Waters case as requiring wholly new evidence of adverseness and a new commencement of the statutory period. Instead, acts which exhibit complete adverseness, when performed on separate occasions subsequent to the foreclosure sale, may be considered as evincing the requisite notice. Merely because such acts were also performed prior to the foreclosure does not prevent their use as evidence of adverseness and notice since that time.

In the final analysis, the validity of the claim of adverse possession turns upon questions of fact. The evidence in this case, on the points in issue, is conflicting. Prom a consideration of this conflicting evidence, the trial Court resolved the factual issues in favor of Boykin. Where, as here, testimony is taken orally before the trial Court, the established rule is that the court’s findings upon the facts has the effect of a jury’s verdict; and, when supported by credible evidence, they will not be disturbed on appeal unless palpably wrong or manifestly unjust. Raper v. Belk, 276 Ala. 371, 162 So.2d 466 (1964); and Hagan v. Crowley, 265 Ala. 291, 90 So.2d 760 (1956). Particularly is this true where, as in this case, the trial Judge has personally viewed the property in question. Robertson v. Fincher, 348 So.2d 466, 468 (Ala.1977).

The evidence introduced at trial fully satisfies the above-mentioned standard of review. Virtually every witness called by Courtney acknowledge the presence of a single-strand barbed wire fence and a red-clay drive across the width of the property. (This drive led from an asphalt road located on a lot owned by Boykin’s relatives, across the tract in question, to an adjacent lot undeniably owned by Boykin herself.) Furthermore, Boykin’s witnesses testified to such copious acts of possession as bulldozing the property annually; burning off marsh grass annually; using the strip as a parking lot; and placing upon the lot a garbage dump, a fish-house, snow fences, a road to the beach, birdhouses and a boardwalk. Though none of these acts, taken alone, would satisfy the strict burden of proof, when taken collectively, as they must, they evince a clear intent to claim the property adversely and reflect such open, notorious, and exclusive possession as to justify the trial Court’s decree. See W. T. Smith Lumber Company v. Cobb, 266 Ala. 146, 94 So.2d 763 (1957); and Chastang v. Chastang, 141 Ala. 451, 37 So. 799 (1904). Therefore, I would affirm the judgment of the trial Court.


author: FAULKNER, Justice.

text:
    Donald B. JONES, etc., et al. v. The TOWN OF COOSADA, etc., et al.
    77-78.
    Supreme Court of Alabama.
    March 10, 1978.

      George P. Howard, of Howard & Dunn, Wetumpka, for appellants.
    John E. Enslen of Reneau & Enslen, Wet-umpka, for appellees.
   FAULKNER, Justice.

This action, brought by taxpayers and resident citizens of the Town of Coosada, sought an injunction, or in the alternative, a writ of prohibition to prevent the Town from constructing a building on a certain 5 acres of land, and requested that the deed to the property be declared null and void. Jones argues that the Town’s act of buying, owning and dedicating the property for use as a Community Center was invalid because there was no legal and valid ordinance or minutes authorizing the Town to purchase the land under T. 37, § 456, Code of Alabama, and ordinance No. 75-1, § 19 and § 21. The trial court granted the Town’s motion for summary judgment. We reverse.

On September 9, 1975, the Town Council unanimously adopted Resolution 75-4 concerning participation in a Housing & Urban Development grant to secure a community facility. The resolution reads as follows:

“WHEREAS, the Town of Coosada, Alabama has expressed a desire to apply for Community Development Block Grant Funds, and
“WHEREAS, the Town has held public hearings and complied with other required application procedures for this program.
“NOW THEREFORE BE IT RESOLVED, that the Town Council hereby adopts the application as prepared by citizens, local officials and the regional planning commission as the official application for the first years activities, and
“BE IT FURTHER RESOLVED that the Mayor and Town Attorney are hereby authorized and directed to execute any and all documents required by this application and program or to provide any additional information which may be required.
“Approved and adopted this the 9th day of September, 1975.
“Oscar Tate, Mayor”

The minutes of the Town Council dated September 9, provide:

“Councilman Weekley read and introduced Resolution 75-4 concerning the participation of the Town of Coosada in the HUD grant program to secure a community facility and moved that it be adopted. A second was made by Councilman Thornton. On roll call the vote was as follows: Yea — Councilmen Cheatham, Hall, Jackson, Thornton, and Weekley. Motion carried unanimously.
“Mayor Tate discussed the appraisals on property that is available for acquisition and invited comment and discussion by the councilmen. After considerable discussion Councilman Jackson moved that the mayor proceed with the signing of the necessary papers for the filing of an application for the grant. It was seconded by Councilman Hall. On roll call the vote was as follows: Yeas— Councilmen Cheatham, Hall, Jackson, and Thornton, and Mayor Tate. Nay — None. Abstentions — Councilman Weekley. Motion carried by a majority vote.”

On June 9, 1976, the Town Council purchased 5 acres of land from C. P. Storrs and wife Katherine D. Storrs. Consideration in the deed is shown to be $100, and other valuable consideration.

On July 27, the following Resolution 76-22 concerning the purchase of the land was adopted by a majority of the Council:

“WHEREAS, the Town of Coosada, Alabama, purchased certain real estate from C. P. Storrs and wife, Katherine D. Storrs, for development of a community center, and
“WHEREAS, said purchase was made in accordance with a Resolution previously unanimously adopted by the Council on September 9, 1975, and
“WHEREAS, the proposed purchase of the Storrs property was discussed in one or more meetings of the Council prior to the consummation of said purchase, And,
“WHEREAS, certain persons are purported to question the validity of said purchase, and it is the desire of the Council to ratify and approve said purchase in order to remove all doubts concerning the same.
“NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Coosada, Alabama, does hereby ratify and approve the purchase of the hereinafter described real estate which is situated in Elmore County, Alabama, from C. P. Storrs and wife, Katherine D. Storrs, as evidenced by warranty deed dated June 9, 1976, and recorded in the Office of the Judge of Probate of Elmore County, Alabama, on Deed Card 8296.”

On December 20, Jones filed suit, and on February 8,1977, the Town Council adopted Resolution 77-45, to ratify and approve the purchase of the property.

Resolution 77-45 reads:

“TOWN OF COOSADA
“STATE OF ALABAMA
“RESOLUTION — 77-45
“WHEREAS, on September 9, 1975, the Town Council of the Town of Coosada unanimously adopted that certain resolution which is attached hereto as Exhibit A and made a part hereof, and
“WHEREAS, under the authority granted by said resolution attached hereto as Exhibit A the Honorable Oscar Tate, Mayor of the Town of Coosada, entered into negotiations with C. P. Storrs for the purchase of a suitable site for the development of a community center, and
“WHEREAS, said negotiations culminated in the acquisition by the Town of Coosada of certain real property as shown by deed recorded in the Office of the Judge of Probate of Elmore County, Alabama, on Deed Card 8296, a copy of which is attached hereto as Exhibit B and made a part hereof, and
“WHEREAS, on July 27, 1976, the Town Council of the Town of Coosada adopted that certain resolution which is attached hereto as Exhibit C and made a part hereof, and
“WHEREAS, there is presently pending in the Circuit Court of Elmore County, Alabama, in Civil Action No. 8314 a certain law suit seeking to enjoin the construction of a community center on the real property previously described herein, and
“WHEREAS, the Town Council of the Town of Coosada is of the opinion that all acts heretofore accomplished in connection with the acquisition and use of said real property have been performed in accordance with law and under proper legislative and executive authority and power, but nevertheless the Town Council of the Town of Coosada is anxious to proceed with the development of said community center on said previously acquired site, and
“WHEREAS, the Town Council of the Town of Coosada is furthermore anxious to bring about an expeditious and inexpensive termination of said law suit by unquestionably proper and valid political action, thereby rendering said law suit moot, and
“WHEREAS, this proposed resolution was first submitted to the Town Council of the Town of Coosada at a regular meeting on February 8, 1977, and
“WHEREAS, it continues to be the present desire of the Town Council of the Town of Coosada to ratify, confirm and approve the acquisition of said real property for the construction of a community center and to remove all questions regarding the validity of said acquisition and proposed construction, regardless of the fact that such questions pertaining to the validity thereof are without merit, and
“WHEREAS, the Town Council of the Town of Coosada is of the opinion that this resolution and the matters pertaining thereto are not of a permanent operation, and it is the legislative intent that it not be of a permanent operation,
“NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
“1. That the Town Council of the Town of Coosada, Alabama, in regular meeting assembled on this 22nd day of February, 1977, does hereby ratify, confirm and approve the purchase of the real property situated in Elmore County, Alabama, from C. P. Storrs and wife, Katherine D. Storrs, as evidenced by and described in said warranty deed dated June 9, 1976, and recorded in the Office of the Judge of Probate of Elmore County, Alabama, on Deed Card 8296.
“2. That the Town Council of the Town of Coosada, Alabama, in regular meeting assembled on this 22nd day of February, 1977, does hereby ratify, confirm and approve the purchase of said real property for the purpose of constructing a community center thereon.
“3. That the Town Council of the Town of Coosada, Alabama, in regular meeting assembled on this 22nd day of February, 1977, does hereby ratify, confirm and approve all acts heretofore accomplished by the Honorable Oscar Tate, Mayor of the Town of Coosada, in connection with the acquisition and use of said real property for the development of a community center.
“Dated this 22nd day of February, 1977.”

The minutes dated February 22 show that two councilmen and the mayor voted yea, while three councilmen voted nay. There being a tie vote, the mayor voted again and broke the tie.

Jones contends Resolution 75-4 only adopts an application for the first year’s activities, and authorizes execution of documents, and provides for information. It does not, he says, authorize acquisition of real property. Furthermore, he says that ratification of Resolution 76-22 must be governed by the same requirements as if the resolution had been passed before the act needing ratification. Jones applies the same reasoning to Resolution 77-45. In short, Jones is contending that a validating resolution must be passed identically as a void resolution.

As we read Resolution 75-4, it does not authorize money to purchase 5 acres of land. The land is not described or identified, the sellers are not identified, and no amount of consideration for the land is mentioned. The minutes of the September 9, 1975 Town Council meeting add little to the Resolution. They speak of appraisals on property available for acquisition, but there is no mention of any appropriation of money to acquire property. While the Town may own property by virtue of legislative authority, authority for expenditure of funds must come from an ordinance or resolution, under §§ 19 and 21, Town’s Ordinance 75-1.

The Town, by Resolution 76-22, attempts to validate Resolution 75-4 regarding the purchase of the land, by ratifying its purchase. If this was the Town’s intent, Resolution 76-22 falls short, because a validating resolution must be passed in the same manner as the resolution it seeks to validate. See 62 C.J.S. Municipal Corporations § 432, p. 828.

Resolution 77-45 seeks to accomplish that which Resolution 76-22 sought, viz., ratify purchase of the land. It is also a nullity. Section 404, Tit. 37, Code of Alabama 1940 was not intended by the legislature to give the mayor two votes on a matter before the council. This section, as amended in 1961, provides that in cities and towns having a population of less than 12,-000 inhabitants, the mayor “at his discretion . . . may vote as a member of the council . . . except in case of a tie, in which event he must vote.” The mayor may vote once — but not twice.

The judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Justices concur.

      . Section 19 of Ordinance 75-1:
      “All ordinances, resolutions or propositions submitted to the Council which require the expenditure of money shall lie over until the next regular meeting; provided that such ordinances, resolutions, or propositions may be considered earlier by unanimous consent of the Council; and provided further, that this rule shall not apply to the current expenses of, or contracts previously made with, or regular salaries of officers, or wages of employees of the city.”
      Section 21 of Ordinance 75-1:
      “No ordinance or resolution of a permanent nature shall be adopted at the meeting at which it is introduced unless unanimous consent be obtained for the immediate consideration of such ordinance or resolution, such consent shall be by roll call and the vote thereon spread on the minutes.”


text:
    OPINION OF THE JUSTICES.
    No. 242.
    Supreme Court of Alabama.
    March 28, 1978.
   To the Honorable Speaker and Members of

The House of Representatives State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We acknowledge receipt of House Resolution No. 416 requesting an advisory opinion upon the constitutionality of the following:

“SYNOPSIS: This act further amends Section 11-6-2, Code of Alabama 1975, so as to add Houston County to the list of counties not required to have a qualified land surveyor as county engineer.

“A BILL

TO BE ENTITLED

AN ACT

“To further amend Section 11-6-2 of the Code of Alabama 1975 as last amended so as to add Houston County to the list of counties exempt from the requirement that the county engineer be a qualified land surveyor.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

“Section 1. Section 11-6-2, Code of Alabama 1975, as last amended, is hereby further amended to read as follows:

“ ‘§ 11-6-2. The person appointed as county engineer, or chief engineer of the division of public roads within the meaning of this article shall be a registered professional engineer and land surveyor in the state of Alabama in good standing and in addition he shall have had not less than three years experience in the maintenance and construction of highways and bridges; except, that in all counties having populations of not less than 300,000 nor more than 600,000 inhabitants according to the most recent or any subsequent federal decennial census and in Cleburne, Crenshaw, Chilton, Fayette, Winston, Lamar, Cullman, Perry, Bullock, Houston, Macon, Montgomery, Clay, Walker and Coffee counties, the county engineer need not be qualified as a land surveyor in order for the state highway department to participate in the payment of a portion of said county engineer’s salary as provided in section 11-6-4; provided, however, that the exemption for Montgomery county shall expire on May 1, 1979.’

“Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

Under § 12-2-10, Code of Alabama 1975, the Supreme Court is authorized to issue advisory opinions on important constitutional questions. However, this court has heretofore restricted these opinions to questions on the constitutionality of proposed legislation arising under specific provisions of the Constitution. In re Opinion of the Justices, 335 So.2d 392 (Ala.1976); In re Opinion of the Justices, 291 Ala. 128, 278 So.2d 711 (1973); In re Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970). We view “proposed legislation” as a bill introduced and pending in the Legislature.

The constitutional questions raised by House Resolution No. 416, so far as is shown by the language of the resolution itself, do not appear to pertain to a bill which has been introduced in the House of Representatives. There being no reference to a House Bill Number on the face of the request, House Resolution No. 416 fails to show this court that the attached document, which is in the form of a bill, is currently pending before the Legislature. Therefore, we must respectfully decline to answer the questions presented.

We direct your attention to House Resolution No. 465 which was submitted to this court for an advisory opinion and covers substantively the same subject matter and constitutional questions raised in House Resolution No. 416.

Respectfully submitted,

C. C. TORBERT, Jr.,

Chief Justice

JAMES N. BLOODWORTH

ALYA HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

Justices.


author: BRADLEY, Judge.

text:
    Barbara G. ALBRIGHT v. Ronald F. ALBRIGHT.
    Civ. 1174.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1977.
    Rehearing Denied Jan. 4, 1978.

      Lydia Quarles, Birmingham, for appellant.
    J. Howard McEniry, Jr., Bessemer, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this proceeding were divorced on December 6, 1976 for incompatibility and irretrievable breakdown of their marriage after four and one-half years of married life. The defendant-wife’s request for a rehearing was denied and she appeals.

The primary contention on appeal is that the trial court erred in the manner in which it divided the parties’ property in its award of alimony in gross.

There was no court reporter present during the trial of this cause, thus there is no reporter’s transcript of the evidence available for review; nonetheless, this court received a summary of the evidence heard by the trial court pursuant to the provisions of Rule 10(d), ARAP.

The facts gleaned from the Rule 10(d) summary demonstrate that the parties were married on January 29, 1972. Both had been married before and had minor children by those marriages. The plaintiff-husband’s children visited only on weekends while the defendant’s three children resided with plaintiff and defendant.

The defendant was under the care of a psychiatrist when the parties were divorced. Moreover, the evidence shows that defendant was an excessive user of alcohol and that her drinking materially contributed to the breakup of the couple’s marriage.

Plaintiff was employed on the night shift of U. S. Pipe & Foundry Company and earned approximately $15,000 to $18,000 annually. Defendant had worked parttime for about a year during the marriage at a weekly wage of approximately $12. She was unemployed, however, at the time of the divorce.

At the outset of the marriage the parties owned their own homes; however, they decided to sell their respective homes and buy a new dwelling in which to live. They subsequently sold their houses and bought another house. This house was purchased for $25,050.15. A down payment of $7,900 was made and the balance owed on the house was financed at monthly installments of approximately $137.76. The $7,900 down payment was paid by defendant out of her own funds. On the other hand, the monthly payments were made by plaintiff from his own earnings. When the marriage ended, plaintiff had provided $6,400 for the purpose of meeting the monthly house payments. However, since a large portion of the $6,400 represented payment on the interest incurred on the loan used to finance the purchase of their home, the principal amount of the mortgage was only reduced by approximately $2,000. Consequently, when the marriage terminated, a balance of about $15,000 was still owed on the house.

The parties also held a joint savings account in the First Western Bank of Bessemer. At the beginning of the marriage, plaintiff had placed the proceeds ($7,000) from the sale of his own home in this account. Periodically he deposited additional funds in this account. Most of these subsequent deposits were the result of income tax refunds from the couple’s jointly filed income tax returns. Toward the end of the marriage, the balance in this account, i. e. $4,313.54, was transferred to an account in plaintiff’s name only. The evidence showed that a sizeable amount of money from this account was used to purchase cars for defendant. However, these purchases were commenced by the use of defendant’s car (which she owned at the time of her marriage) as a trade-in. The defendant also paid a portion ($1,000) of the purchase price of one of the automobiles obtained for her from her own separately held funds.

In addition to their savings account, the parties had a joint checking account at First Western Bank into which plaintiff placed his earnings. From this account plaintiff paid the monthly installment on the house loan, the utilities, about one-half the monthly grocery bill, automobile expenses and the other usual household expenses. At the time of the separation, plaintiff transferred the balance in this account, i. e. $314.20, to an account listed in his name only.

The defendant paid the other one-half of the grocery bill, bought clothes for herself and her children, and occasionally purchased some of plaintiff’s clothes. These expenses were paid by defendant out of the couple’s joint account with Birmingham Trust National Bank. The deposits were made to this account by defendant as a result of funds received from the Veterans Administration, Social Security, and U. S. Pipe & Foundry. These funds represented death benefits which the defendant was entitled to due to the death of her first husband. Plaintiff never placed funds into this account, nor did he ever withdraw any funds from the Birmingham Trust account.

The defendant also had a joint savings account with her mother at Birmingham Trust National Bank. The defendant had placed into this account insurance and workmen’s compensation proceeds which she had obtained as a result of the death of her former husband. Furthermore, $4,000 of the $7,900 down payment on the parties’ marital residence was paid out of this account.

At the time of the divorce the parties owned the following personal property: a 1975 Pontiac, a 1975 pick-up truck, and the furniture and household appliances accumulated from their prior marriages.

In its decree the trial court divorced the parties for incompatibility. The defendant was awarded the use of the marital residence, but the court specifically retained jurisdiction to dispose of the property at a future date. Pursuant to the latter provision, the plaintiff was given a $6,400 lien on the property. The defendant was required to make the mortgage payments, pay the taxes and insurance and keep the property in good repair. The title to the 1975 Pontiac was placed in defendant’s name, and plaintiff received the 1975 pick-up truck. The plaintiff was authorized to take possession of the furniture and household goods he owned prior to the marriage to defendant.

On appeal to this court, defendant’s initial argument is that since there is no material conflict in the evidence, the decree which was rendered by the trial court after an ore terms hearing is not entitled to a favorable presumption. Plaintiff contests this assertion and claims that there were conflicts in the evidence even though the summary of evidence prepared in accordance with Rule 10(d) does not indicate any conflicts. Moreover, plaintiff contends that a Rule 10(d) summary ordinarily would not show conflicts in testimony and therefore defendant’s proposition that the trial court’s decree is not entitled to the usual presumptions is incorrect.

However, we need not make a determination on the validity or invalidity of the rather unique contentions regarding this matter which the able attorneys for both parties have submitted to this court since the record before us, i. e. the 10(d) summary, fails to persuade this court that the trial court’s judgment treated the defendant-wife so unfairly and unjustly in its division of the marital property as to constitute an abuse of discretion. It has become axiomatic that in divorce cases the trial court’s decree will not be reversed unless it clearly appears that the decree is plainly and palpably erroneous. In this case the trial court’s division of property cannot be said to have been plainly and palpably in error. Accordingly, the trial court’s decree is affirmed.

Parenthetically, we must note one final matter which was called to this court’s attention during the course of this appeal. After the trial court’s decree was rendered, counsel for defendant moved the trial court for a rehearing on his client’s cause. The trial court refused to grant the motion and as our decision today indicates it was not in error for so doing. However, in argument before this court, the lawyer who represented the plaintiff asserted that defendant could not appeal from the trial court’s order overruling her application for rehearing because the trial court did not modify the divorce decree. Instead, plaintiff’s attorney maintained that defendant’s appeal was limited to the substantive facts and findings presented and made during the trial.

Plaintiff’s argument in regard to this matter is based on Equity Rule 62 which provides “that no appeal shall lie from [an order denying a rehearing] unless it modifies the decree. . . Tilley, Alabama Equity Pleading and Practice Annotated, § 182 (The Harrison Co. 1954). However, the Alabama Rules of Civil Procedure have superseded Alabama Equity Rules. 1977 Alabama Rules of Court (Desk Copy) Appendix II at 332 (West Publishing Co. 1976). Consequently, all proceedings in equity are now governed by the Alabama Rules of Civil Procedure. Moreover, the committee comments to Rule 59, ARCP, state that the concept of a new trial under Rule 59, ARCP, is broad enough to include a rehearing of any matter for which rehearings were granted in equity. In brief, Rule 59 permits an application for a rehearing in equity to be designated as a motion for a new trial. Despite this fact, plaintiff contends that because defendant’s request for post-trial relief was designated the other way about — that is, what was in effect a motion for new trial was denominated as an application for rehearing — she is precluded from appealing the trial court’s denial of her post-trial request on the grounds that the court had not first modified the divorce decree. But given the fact that the rules of equity are no longer in effect, we do not believe such a harsh interpretation of the manner in which a motion is designated or labeled is warranted. Indeed, with the exception of the instances specified in our rules of civil procedure, motions, pleadings, and other procedural matters should be construed with liberality. Thus, we must conclude that a party who seeks relief from the denial or grant of a post-trial motion is entitled to appeal from the trial court’s action on his motion regardless of whether it is denominated as a motion for new trial or as an application for rehearing. See Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975).

AFFIRMED.

WRIGHT, P. J„ and HOLMES, J., concur.


author: MADDOX, Justice.

text:
    Ex parte Barbara G. ALBRIGHT.
    77-266.
    Supreme Court of Alabama.
    March 24, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Fay Robertson BURGESS v. Arthur E. BURGESS.
    Civ. 1197.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.
    Rehearing Denied Feb. 1, 1978.
    Marion F. Walker, Birmingham, for appellant.
    Frank M. Bainbridge, Birmingham, for appellee.
   HOLMES, Judge.

The Circuit Court of Jefferson County denied the wife’s petition to modify a decree of divorce. The wife appeals, contending the trial court abused its discretion in failing to increase awards to the wife and in failing to award an attorney’s fee to the wife’s attorney.

We find no abuse of discretion requiring reversal and affirm.

The pertinent facts reveal the following:

The parties were divorced in 1974. In the final decree of divorce, the wife was awarded a home, which was at the time of the divorce valued at over $300,000; $1,800 per month alimony; medical protection; certain other benefits; and her attorney was awarded a fee of $30,000. Additionally, child support was awarded in the amount of $350 per month per child. Medical and educational benefits for the children were also awarded. This decree was appealed to this court by the husband and in 1975 we affirmed. A detailed recitation of other facts not necessarily pertinent to this appeal may be found in Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1975).

Thereafter, in January, 1977, the wife filed the aforementioned petition to modify.

The matter was heard in April of 1977, with the result as indicated above.

The wife’s petition and evidence presented is bottomed on the premise that she has increased expenses since the divorce, owes money, and needs additional funds to repair the home. Furthermore, the husband’s net worth has increased and his yearly income has substantially increased.

We do not deem it necessary to set out in detail the financial “picture” of both parties.

It is clear to this court and apparently was to the trial court that the wife’s financial problems are related to a business venture she entered into after the rendition of the divorce decree and in attempting to maintain the home.

Specifically, the wife entered the antique business and lost money. The trial court could have found that this was in large measure due to her own business failing and lack of attention to the business. It is interesting to note that the husband loaned her money for the venture although he certainly was not required to. Additionally, the court could have found that an offer of $350,000 for the sale of the home, if accepted by the wife, would have alleviated most of her financial problems. We note this even though there was testimony that the home had a value in excess of $400,000.

We would be remiss in not noting that the evidence is without dispute that the husband’s net worth and yearly income has increased substantially.

Keeping in mind the previous decree and the pertinent facts as set out above, we believe the following, as stated by Judge Bradley of this court, in Capra v. Capra, 56 Ala.App. 90, 92-93, 319 So.2d 286, 288, is dispositive of this issue.

“The matter of alimony is largely discretionary with the trial court, and where the evidence below was taken orally, as it was in this case, the determination will not be disturbed on appeal unless palpably wrong. See Divorce Section 286, Alabama Digest. We are not prepared to say that the trial court was palpably in error on this issue. It is true that appel-lee’s income has increased dramatically in the years since the original decree of divorce. This alone, however, is not sufficient to justify a concomitant increase in periodic alimony. The original award of alimony is to be deemed appropriate unless the party seeking modification can demonstrate a substantial change in material circumstances. See Divorce, Section 245(2), Alabama Digest. The essential element in the determination of alimony is the wife’s need; the magnitude of the husband’s income, and fluctuations thereof, is material as it relates to his ability to respond to that need. However, the mere fact that the husband’s ability to pay exceeds the amount necessary to satisfy the wife’s need does not in and of itself warrant an increase in alimony payments to the wife.”

We find the trial court is not palpably wrong in refusing to modify this approximately two year old decree of divorce.

The award of an attorney’s fee to the wife rests within the sound discretion of the trial court. In view of the facts, as set out above and as found in this court’s prior opinion, we find no such abuse. See Burgess v. Burgess, supra.

In addition to the above, the wife urges reversible error regarding certain evi-dentiary rulings by the trial court. We do not deem it necessary to set these matters out in detail. We note that the wife did not set this matter out in great detail in brief. We deem it sufficient to state that any error committed by the trial court in this regard, if there be error, was harmless error. See Rule 61, ARCP.

The wife has requested of this court an award of an attorney’s fee for representation on appeal. In view of the above, we do not believe an award to be appropriate. In declining to make an award, we should not be understood as reflecting on the performance of the wife’s attorney before this court. In fact, the attorney favored this court with an excellent brief and her oral presentation was, as always, of the highest quality.

The case is due to be and is affirmed.

AFFIRMED.

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

      . We note that the attorney awarded this fee does not represent the wife in this appeal nor did he represent her below.


author: BEATTY, Justice.

text:
    Ex parte Faye Robertson BURGESS.
    77-326.
    Supreme Court of Alabama.
    March 24, 1978.
   BEATTY, Justice.

Motion to suspend rules granted; writ denied.

WRIT DENIED.

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


text:
    In re Bobby E. HARBIN v. UNITED STATES STEEL CORPORATION, a corporation. Ex parte UNITED STATES STEEL CORPORATION, a corporation.
    Civ. 1231.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Robert G. Tate and Joseph W. Letzer, Birmingham, for appellant.
    James D. Turner of Turner, Turner & Turner, Tuscaloosa, for appellee.
   BRADLEY, Judge.

United States Steel Corporation petitions this court for the issuance of a writ of certiorari to review a judgment rendered by the Circuit Court of Tuscaloosa County awarding respondent, Bobby E. Harbin, benefits under the Alabama Workmen’s Compensation Act.

U.S. Steel contends that the judgment of the trial court was in error on three grounds. First, U.S. Steel submits that the judgment rendered by the trial court made no finding on whether or not Harbin notified U.S. Steel (or its agents) that he (Harbin) had been injured. Next, U.S. Steel argues that there was no evidence to support the trial court’s determination that Harbin had incurred fifty percent permanent partial disability. And finally, U.S. Steel maintains that there was no eviden-tiary basis for the finding by the trial court that Harbin had been fraudulently (or mistakenly) induced to execute a disability claim form whereby he elected to receive health and accident benefits instead of workmen’s compensation.

The record before us reveals that Bobby Harbin was employed by U.S. Steel as a coal miner. In August of 1975 Harbin was injured when a rock fell on him in the coal mine in which he was working. The rock struck Harbin in the back and as a result of the injury incurred from this accident he was unable to work. Eventually he underwent surgery on his lower vertebra to correct his condition. Despite some improvement after surgery, Harbin was still incapacitated. Indeed, after an evidentiary hearing in regard to this matter, the trial court found that Harbin had suffered a fifty percent permanent partial disability. The trial court also found that Harbin had become mentally depressed because of his accident and that as a consequence of this depression he had attempted suicide. Harbin was awarded $75 a week for a period of three hundred weeks as workmen’s compensation for his injury. However, the trial court converted this award into a lump-sum payment of $19,900. In addition, the court concluded that U.S. Steel’s insurance carrier had fraudulently or mistakenly induced Harbin to sign an agreement limiting Harbin’s recovery to health and accident benefits of $100 a week for a period of twenty-six weeks. The trial court held that this agreement was null and void. As a result of the trial court’s finding of facts and conclusions of law, U.S. Steel presented a writ of certiorari to this court asking for a reversal of the judgment rendered below.

The first issue necessitating our consideration involves the notice issue. At the conclusion of the evidentiary phase of this case, the trial court entered its finding of facts and conclusions of law. However, the court neglected to make a finding on the question of whether U.S. Steel had been notified by Harbin that he had been injured. The record does not reflect why the court failed to make a finding on what was one of the most hotly contested issues of the trial. Nevertheless, the trial court subsequently attempted to correct its error by amending its judgment to include a finding of fact in regard to the issue of notice. This action was purportedly taken pursuant to Rule 60(a), ARCP, which permits the correction of clerical mistakes in a judgment. Upon learning of the court’s action attorneys for U.S. Steel filed a motion to strike the amendment to the judgment.

We believe that the trial court’s failure to include a finding of fact on the notice issue in its original judgment was reversible error and that the subsequent action taken by the court in amending its earlier judgment did not cure this error.

It has been repeatedly held by the appellate courts of this state that if a judgment entered in a workmen’s compensation case does not contain a finding of facts and conclusions of law the matter must be reversed. E. g., Richardson Lumber Co. v. Pounders, 254 Ala. 285, 48 So.2d 228 (1950). And this rule applies regardless of whether the judgment is in favor of the employer or the employee. Bass v. Cowikee Mills, 257 Ala. 280, 58 So.2d 589 (1952).

The purpose of the requirement for the filing of facts and law with or in the judgment is clear when it is considered that the only method for review of the proceeding below is by writ of certiorari. Such a method of review would be worthless without the findings and conclusions of the trial court as to the facts and the law.

Consequently, the trial judge has a duty to make a finding on each issue presented and litigated before the court. And in instances where the trial judge fails to make a finding responsive to the issue presented the case must be reversed. Pinkney v. James B. Clow & Sons, Inc., 277 Ala. 648, 173 So.2d 811 (1965).

In the present case the question of whether Harbin notified his employer of his injury was pleaded, contested and submitted to the trial court for its determination. Despite this fact there was no finding made on this issue in the court’s original judgment. Nonetheless, Harbin maintains that the absence of a finding of notice of injury does not require reversal since a number of Alabama cases have held that when the finding of the trial court is merely meager or omissive, the reviewing court may examine the evidence in order to decide if the trial court’s judgment can be sustained. E. g., West Point Mfg. Co. v. Bennett, 263 Ala. 571, 83 So.2d 303 (1955); Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955). However, such is not the rule when, as here, there was no finding made on the issue in question.

In Lingo v. Dixie Veneer Co., Ala.Civ.App., 349 So.2d 591 (1977); Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973) and B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971), we recognized that in instances where the trial court has neglected to make a finding of fact necessary to support the award of workmen’s compensation benefits there is no alternative but to reverse the judgment and remand the case to the trial court.

Title 25, chapter 5, section 78, Code of Alabama 1975 provides in applicable part:

“Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article

As this provision indicates, the failure of an injured party to give his employer notice of the accident which caused the former’s injury precludes the receipt of compensation by the injured party. Notice of injury is the first step in the compensation procedure. It must be given to the employer within a comparatively short time. The purpose of notice is two-fold: first, to enable the employer to provide immediate medical diagnosis and treatment in an effort to minimize the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury. Without the existence of notice the employee is not entitled to workmen’s compensation benefits. Consequently, in situations where the notice requirement is at issue there must be a finding of fact in the trial court’s judgment which notes the existence or absence of notice to the employer. Since a finding of every fact necessary to sustain the judgment is mandatory, Pinkney v. James B. Clow & Sons, Inc., supra, this case must be reversed and remanded to the trial court for a determination of whether Harbin provided his employer (or its agents) with notice of his injury.

Nor do we believe that the trial court’s subsequent amendment of its original judgment to include a finding that Harbin had notified U.S. Steel of his injury was sufficient to correct the court’s error in this matter.

Harbin contends that the action of the trial court in amending its judgment was within the scope of the court’s authority to correct clerical mistakes in its judgment under Rule 60(a), ARCP. However, Alabama Hide & Tallow Co. v. Pincheon, 282 Ala. 404, 211 So.2d 896 (1968), held that the failure of the trial court in a workmen’s compensation case to include its finding of facts and conclusions of law in its judgment amounted to a procedural error which was judicial in nature rather than clerical. Thus, the supreme court concluded that the error of the trial court could not be corrected by an amendment nunc pro tunc.

In the instant case the trial court’s supplemental findings and conclusions did not alleviate a clerical error. The action of the court modified and enlarged a judgment which had failed to embrace a matter which should have been clearly pronounced. The trial court erred when it did not adjudge and render findings of fact and conclusions of law relevant to the notice issue. These findings and conclusions were required by law. Title 25, chapter 5, section 88, Code of Alabama 1975. Accordingly, action by the trial court taken pursuant to Rule 60(a) did not correct the court’s error. The amended judgment was improper and therefore the motion offered on behalf of U.S. Steel urging us to strike the judgment as amended is hereby granted.

On the other hand, the trial court’s finding and conclusion that Harbin incurred a fifty percent permanent partial disability was supported by a significant amount of the evidence presented at trial. Thus, we must reject U.S. Steel’s contention that the trial court erred in its determination of this matter. Moreover, in assessing the argument submitted by U.S. Steel, we would again point out that in reviewing workmen’s compensation cases our duty is to affirm the judgment of the trial court if there is any legal evidence to support it.

In the case at bar the evidence demonstrated that Harbin was thirty-nine years of age at the time of trial and that he had only a sixth grade education. He has been employed as a manual laborer throughout his adolescent and adult life. Most of the jobs he has held have involved the lifting and loading of heavy items. Furthermore, he apparently lacks sufficient training or skill to work in any other capacity but manual labor.

At trial the neurosurgeon who had treated Harbin testified that when he last examined Harbin the latter was suffering approximately twelve to fifteen percent permanent partial disability. The physician also stated that although he believed therapy would improve Harbin’s condition, it was nevertheless his (the neurosurgeon’s) opinion that Harbin was almost one hundred percent disabled in respect to the performance of manual labor. The physician concluded by testifying that he felt Harbin was unable to do manual labor but that the latter might function as a guard or in some other sedentary capacity.

Based on the aforementioned evidence we find that there was sufficient legal evidence before the trial court to sustain its finding of fifty percent permanent partial disability.

The final issue presented by U.S. Steel pertains to its claim that there was no evidentiary basis for the finding of the trial court that Harbin had been fraudulently (or mistakenly) induced by an agent of U.S. Steel’s insurance carrier to execute a disability claim form whereby Harbin elected to receive health and accident benefits instead of workmen’s compensation.

The trial transcript discloses that Harbin testified that the insurance carrier’s agent provided him with a blank form, showed him where to sign it and advised him that if he (Harbin) signed he would receive $100 a week for workmen’s compensation. Harbin also stated that the agent told him (Harbin) that when he stopped receiving the $100 a week the agent would send additional forms. Harbin said that it was his understanding that once the additional forms were signed his workmen’s compensation would continue until he could work.

Rebuttal evidence by U.S. Steel showed that the form which Harbin signed contained printed language stating that, “This form is not a claim for workmen’s compensation.” Moreover, the insurance agent who made the initial contact with Harbin denied that he had ever told Harbin that the latter would receive workmen’s compensation from U.S. Steel’s insurance carrier.

After the presentation of this evidence by U.S. Steel, Harbin was again called to the witness stand and he testified that he did not read the form provided by the insurance carrier’s agent. Continuing his testimony, Harbin stated that the agent told him to sign the form and that later the agent would “fix it up.” Harbin then said that he did what he was told since he “figured that the agent knew what he was doing.”

As the above stated facts indicate, the evidence dealing with fraudulent or mistaken inducement was in sharp conflict. It was the function of the trial court to weigh this evidence and the contradictory testimony of the parties in order to reach a determination on this matter. The trial court apparently believed the testimony of Harbin and we are unable to say it erred in so doing, particularly since there was some evidence presented at trial to support such a determination. Consequently, we are not persuaded that the court’s conclusion that the agreement which Harbin signed was null and void due to fraudulent or mistaken inducement was incorrect.

That portion of the judgment of the trial court which involves its findings of fifty percent permanent partial disability is affirmed. The trial court’s finding that Harbin was fraudulently or mistakenly induced to execute a disability claim form is likewise affirmed. However, the case is reversed and remanded to the trial court with instructions that the court ascertain whether Harbin provided his employer (or its agents) with notice of his injury.

MOTION TO STRIKE AMENDMENT TO JUDGMENT GRANTED. AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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

      . Actually the trial court awarded Harbin a lumpsum payment of $22,500 but permitted a deduction of $2,600 for payments which Harbin had received in the form of health and accident benefits.

      . We believe this case is distinguishable from Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). In Tombrello Coal Co. v. Fortenberry the original judgment ineluded a clause permitting compensation to continue as long as total disability continued and allowing the reopening of the case to consider this matter. Because such provisions were not authorized by statute, the trial court amended its original judgment by striking the offending language and substituting new language in its place. Our supreme court upheld this amendment nunc pro tunc on the basis that the trial court had attempted to make a finding on the issue of compensation but had used incorrect language in so doing. Thus it is clear that Tombrello Coal v. Fortenberry involved an amendment resulting from an error of a clerical nature while the present case arises from the failure of the trial court to enter any finding on an important issue and the court’s subsequent efforts to correct this error by modifying its original judgment.


author: WRIGHT, Presiding Judge.

text:
    Linda Troupe FITZGERALD, now known as Linda Carol Clarke v. Albert Joseph FITZGERALD.
    Civ. 1238.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Nancy S. Gaines and James M. Gaines, of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    George A. Moore, Huntsville, for appel-lee.
   WRIGHT, Presiding Judge.

The mother brings this appeal from a modification of the visitation and custodial provisions of a prior divorce decree. We affirm in part and reverse in part.

The parties were divorced in 1976 with the mother receiving custody of their son. The father was granted visitation rights and temporary custody the second and fourth weekends of each month and on numerous holidays. He was required to pay $125 per month child support and $131.80 per month for five years as part of the property settlement representing the mother’s interest in their house in Huntsville.

On May 20, 1977, the father filed a petition for modification seeking primary custody of the child or in the alternative a modification of the decree to the extent necessary to preserve the father-son relationship. Testimony was heard ore tenus.

On May 14, 1977, the mother married her present husband, Jerry Clarke and moved to Lithonia, Georgia, which is about twenty miles from Atlanta and two hundred ten miles from Huntsville. The move was made because the mother’s new husband had accepted a promotion with his company.

The child had been enrolled in a preschool program in Huntsville before the change of residence. It was there discovered that he had a learning problem. A developmental psychologist testified this problem was caused by either minimal brain dysfunction or parental conflict. He stated that it was essential that the child have a “lot of firm structure.”

Prior to the move the father visited his son frequently and testified that they were very close. The child’s teacher testified that the child spoke of his father often and they attended school functions together. Since the move the father has continued to visit regularly on alternate weekends, having missed only two scheduled visitations. He customarily drives from Huntsville to Lithonia, picks up the child and flies with him from Atlanta to Huntsville. At the end of the visitation period he flies back to Atlanta, returns him to his mother, and drives back to Huntsville. The round trip airline tickets from Atlanta to Huntsville cost $87.00 for the father and $54.00 for the child. If the child flies alone it would cost $80.00.

The trial court entered an order providing that the mother have the duty of providing transport for the child to the father’s home in Huntsville and back on the second weekend of each month at her expense. It also expanded the time of the father’s summer visitation and temporary custody to the period from two days after school closes until seven days before reopening. The mother was granted the same weekend visitation rights during the summer as the father has during the rest of the year. The mother filed timely notice of appeal.

The mother contends that the grounds shown are insufficient to justify modification of the divorce decree. To authorize a modification of a decree regarding custody, a change in circumstances since the original decree must be shown. Wilson v. Wilson, 53 Ala.App. 201, 298 So.2d 622 (1973), cert. denied, 292 Ala. 761, 298 So.2d 627 (1974). Here, there has been the remarriage of the custodial parent and a change in residence to a different state. In addition, there is the discovery of the child’s learning problem and his stated need for firm structure in his relationships. The effect of a remarriage can be shown with other factors as a circumstance indicating a material change in conditions. Stuckey v. Stuckey, 50 Ala.App. 682, 282 So.2d 283 (1973); Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923 (1970). Each case must rest upon its own facts and circumstances, with the principle always in mind that the welfare of the child is of paramount importance. Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970). It appears that circumstances material to the welfare of the child have changed or facts made known for the first time which sufficiently support consideration of modification.

It is contended that the trial court abused its discretion in requiring the mother to provide transportation for the child for visitations on the second weekend of each month. It is not questioned that a court has the power to order such an apportionment of transportation costs. In Wheeler v. Wheeler, 249 Ala. 119, 29 So.2d 881 (1947), the mother, residing in North Carolina, was required to pay the costs of transporting the child at the beginning and end of the father’s summer custodial period. The mother in the instant case suggests that she is financially unable to bear this burden as she only receives $125 per month child support and $131.80 per month from a property settlement and the father makes $17,500 per year.

In view of the income of the husband and the limited amount of support he pays, it appears that requiring the use of over 60% of such payment for transportation is unfair to the mother, the child and the new husband. The mother has no income. The use of a part of her property settlement is unfair and to this court would amount to a payment of support by the mother. We therefore find that such requirement under the facts of this ease constitutes an abuse of discretion.

The mother contends that the expansion of the father’s summer custodial period constitutes an abuse of discretion. Alabama courts have approved such divisions of custody (Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975)), and in particular have approved the granting of custody to one parent for the entire summer. Davis v. Davis, 255 Ala. 592, 52 So.2d 387 (1951); Wheeler v. Wheeler, supra; Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561 (1946). In view of this child’s need for stable, structured relationships and the particularly strong father-son relationship here, it cannot be said that such division of custody is an abuse of discretion.

Appellant’s request for attorney fee is denied.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Sharon Denise GATCHEL v. Francis Charles GATCHEL, Jr.
    Civ. 1266.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
   HOLMES, Judge.

This is a child custody case.

The Circuit Court of Mobile County awarded the parties’ child, in a divorce proceeding, to the paternal grandparents. The mother appeals and we reverse.

The dispositive issue on appeal is whether the trial court erred to reversal in awarding custody of the child in a divorce proceeding to the paternal grandparents, who were not parties to the proceeding. As indicated above, we answer in the affirmative and reverse.

The husband filed for divorce and asked for custody of the minor child of the parties. This child is less than two years of age. The wife answered and also requested custody of the child. Thereafter, a hearing was held and temporary custody of the child was awarded to the paternal grandparents. The testimony, etc., given at the hearing wherein temporary custody was awarded to the paternal grandparents is not contained in the record before this court.

Approximately four months after the hearing referred to above, the divorce was heard on the merits. After an ore tenus hearing, the learned trial judge divorced the parties and awarded permanent custody of the child to the paternal grandparents. It is from this order, as it relates to the custody award, that the mother appeals. Specifically, the granting of the divorce is not before this court.

The mother contends in brief that the award of custody of the minor child to the paternal grandparents, who were nonparties, is a denial of her right to due process of law because the mother had no notice or opportunity to be heard regarding this issue. She cites to this court Anonymous v. Anonymous, Ala.Civ.App., 353 So.2d 510, rev., Ala., 353 So.2d 515, on remand, Ala.Civ.App., 353 So.2d 519, cert. denied, Ala., 353 So.2d 520 (1977). The father and/or paternal grandparents have not favored this court with a brief.

The Supreme Court of Alabama, in reversing this court in Anonymous, supra, clearly held that the award of custody of a minor child to nonparty paternal grandparents, without notice to the mother and an opportunity to be heard was a denial of due process. The supreme court cited U.S.C.A. Const. Amend. 14.

The decree in this instance is violative of the supreme court’s decision in Anonymous, supra, and this court must reverse. We find the above, even though the grandparents were awarded temporary custody at a prior hearing. Our careful review of the record clearly reveals that the custody dispute centered around and was focused upon the parties. See Anonymous, supra. The following is found in the record and is representative:

“COURT: Mr. Gatchel tell me in your own words why you feel it would be to the best interest of Amanda that the Court award you custody of her and not your wife?
“COURT: If the Court were to award you custody would you have to leave your child with a babysitter?
“COURT: I’m going to ask you the same question now that I asked your husband. Tell me why you feel it would be to the best interest of your daughter that you be awarded custody of her and not your husband?
“A Because I think a child should be with its mother the first few years and I think I can give her the love that she needs.”

In view of the above, this court has no alternative but to reverse the trial court.

We would note that since the above requires reversal, it would not be appropriate for this court to comment upon the evidence as it relates to the fitness of parents.

The appellant has requested that this court award a fee to her attorney for representing her in this appeal. A fee is hereby awarded of $350.

The case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Linda LOVELL v. DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama.
    Civ. 1274-A.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    J. Norman Bradley, Jr., Huntsville, Legal Aid Society of Madison County, for appellant.

      William J. Baxley, Atty. Gen. and Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., Fred B. Simpson, Dist. Atty., 23rd Judicial Circuit, Grady L. Morgan, Asst. Dist. Atty., for appellee.
   HOLMES, Judge.

This is a case involving custody of children. The Circuit Court of Madison County found two children, one five years old and the other one month old, to be dependent children within the meaning of Code of Ala.1975, § 12-15-1 (formerly Tit. 13A, § 5-101, Code of Ala.1940).

The trial court awarded permanent custody and the legal guardianship of the children to be the Department of Pensions and Security. Additionally, the trial court’s order permanently terminated the parental rights of the mother.

From this decree, the natural mother appeals and presents the following issues: 1. Does the evidence support the trial court’s action in awarding custody to the Department of Pensions and Security? 2. Was the mother denied due process of law when the petition seeking permanent custody of one of the children was not served until the day before the hearing?

Viewing the testimony with the attendant presumptions, we find the following: Phillip and Kathy, the children involved, were, at the time of the trial, ages five years and one month, respectively. Each child was fathered by a man not married to Linda Lovell. The mother has been divorced once and her current husband is presently in jail.

Since 1969, the Department of Pensions and Security in Jackson and Madison Counties has been working with the mother in an attempt to bring about a stable home for the children. The training of the mother in basic household skills and parenting-skill training sessions conducted by the Department of Pensions and Security have proved to be unsuccessful.

The mother is mentally retarded. Her full-scale I.Q. has been established at 52. There was testimony from a licensed psychologist to the effect that the mother would need someone to assist her in the areas of housekeeping and mothering. Furthermore, the assistance required would be long-term and extend to “all things we take for granted every day that we do in organizing our lives.”

The record further reveals the oldest child, Phillip, has been subjected to neglect and abuse. This was evidenced in a report by the Madison County Department of Pensions and Security which set out instances of dehydration, bruises on the body of the child, and a general description of the home life in which many of the adults drank excessively.

During the time the mother was approximately eight months pregnant with her youngest child, Kathy, she stayed out late at night on numerous occasions with her cousin, a prostitute. On one of these occasions, the mother and her cousin were questioned by the police concerning solicitation although no charges were brought nor solicitation proven concerning the appellant-mother.

Furthermore, the mother has no means of support notwithstanding her social security and AFDC payments. Over the past nine months, she has lived in six different residences.

The record also reveals that the mother does not have a place in which to raise the children besides the homes of relatives. As noted above, the evidence shows that their homes do not offer any improvement in that excessive drinking, drugs and overcrowded conditions predominate.

At the outset, as indicated above, we note the oft stated rule that decrees of the trial court in child custody cases, rendered after hearing witnesses ore ten us, will be given every favorable presumption and will not be disturbed unless palpably wrong. See Strickland v. Osborn, Ala.Civ.App., 333 So.2d 582 (1976); 12 Ala.Dig. Infants «=» 19.3(7).

The controlling consideration in child custody matters is the best interest of the child. See State Department of Pen sions and Security v. Hornbuckle, Ala.Civ.App., 336 So.2d 1372 (1976); 12 Ala.Dig. Infants «=» 19.2(2). It therefore follows that while the parent has a prima facie right to the custody of a child, this right is not absolute and must yield to the superior criterion of the child’s welfare.

Viewing the evidence as set out above, with the above stated principles in mind, this court can hardly find that the trial court was palpably wrong in finding that the best interest of the children was served by their permanent custody being placed with the Department of Pensions and Security.

For cases where even less evidence than is presented here has been held sufficient to sustain a decree of the trial court awarding custody of a minor to the Department of Pensions and Security, see Smith v. State Department of Pensions and Security, Ala.Civ.App., 340 So.2d 34 (1976); Harrell v. Long, 49 Ala.App. 322, 272 So.2d 248 (1973).

Able counsel for the mother, in an excellent brief, alludes to the contention that the Department of Pensions and Security did not meet its burden of showing that measures less drastic than removal of permanent custody from the mother would be unavailing. Appellant relies on Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976), as its authority.

The trial court, in determining the best interests of the children, looks at several factors. Less drastic measures than permanent removal of custody from the mother is such a factor the trial court should consider. The fact that the Department of Pensions and Security itself takes into consideration many factors in determining the best interest of the child, including less drastic measures than attempting removal of permanent custody, is evidenced by the following statement made by the Department of Pensions and Security at the temporary custody hearing of Kathy:

“[I]f there are any other resources available that the Department is not aware of now that Mrs. Lovell would believe would be a proper resource with whom to place this child, we would like to be aware of it so we can conduct an investigation according to law into that resource. We would like to give her any possible benefit that we can.”

As noted above, the mother does not have an adequate environment in which to raise the children. The mother offers a plan in which she would marry an ex-alcoholic, twice divorced man, who suffers from a nervous condition. Such an arrangement would be purely speculative as to the future living conditions and would not be in the best interest of the children as the trial court correctly held.

In any event, we would point out that while the trial courts of Alabama, in determining the best interest of the children, should look to viable alternatives before terminating parental rights, the criteria as set out in Roe v. Conn, supra, is not binding on this court. See Smith v. State Department of Pensions and Security, supra.

Lastly, the appellant contends she was deprived of due process of law in that she was not served with the petition for permanent custody of Kathy until the day before the hearing and that this prevented appellant from adequately preparing to protect her interest.

The record reveals that the temporary custody hearing of Phillip Lee took place on June 28, 1976. Likewise, Kathy’s temporary custody hearing was on 18-19 January 1977. After the court awarded temporary custody of Kathy to Department of Pensions and Security, the court stated the following:

“The case is reset then for further hearing on February 10th at ten o’clock, at which time the Welfare will have completed its investigation and will be able to offer proof to the Court and be ready to accept either temporary or permanent custody of the child, depending on the evidence presented at that time, and depending on whether or not there is a change of circumstances between now and then. But at that time, February 10th, 1977, at ten o’clock, I will hear the case of both Phillip Lee and Kathy Michelle Lowell.”

This court, speaking through Judge Bradley, in Thorne v. Thorne, Ala.Civ.App., 344 So.2d 165 (1977), stated that:

“Although the state has a compelling interest in determining the best interest and welfare of a child, the interest is not compelling enough to allow the determination to be made without notice to the child’s parents. The purpose of requiring notice is to preserve the fairness of the hearing; and it is of vital importance to the child, as well as the parent, that the hearing be fair. A parent must have notice of the issues the court will decide in order to adduce evidence on those issues before the court, to give the court a basis from which a determination most beneficial to the child can be made. Otherwise, the child, rather than being helped, might even be harmed.”

As noted above, the appellant had notice on January 19,1977, that the hearing would involve the issue of permanent custody of both Phillip and Kathy. The hearing took place on February 10. While this was not an abundance of time, we cannot say it was so inadequate as to constitute a denial of due process.

The issues involved, concerning the permanent custody of Phillip, were substantially the same as those concerning permanent custody of Kathy. Here, the appellant was given due notice of the issues to be presented and she was given the opportunity to be heard. In view of this, it is clear to this court that the appellant was not deprived of due notice and that due process considerations were followed by the trial court in every respect. See Thorne v. Thorne, supra; Ex parte White, 245 Ala. 212, 16 So.2d 500 (1944).

Along the same line, appellant questions the propriety of the action of the Department of Pensions and Security in taking Kathy from the mother, without a prior hearing, on January 14, 1977, which was just two days after the child’s birth. The supreme court, in Ex parte White, supra, quoted from 39 Am.Jur. 604, § 17, as follows:

“ ‘Due process, however, does not in every case require that the determination of the parent’s right to the custody of his child must precede any interference therewith. The child may be taken from his custody provisionally by a summary proceeding, so long as an adequate remedy is available by which the parent may afterward have his rights presented to a proper tribunal. . . . ’ ” (245 Ala. at 215, 16 So.2d at 503)

Here again, we do not perceive a due process violation in that the mother was afforded a hearing on January 18, 1977, in which to have her rights to the child presented.

All issues having been duly considered, the case is due to be and ■ is affirmed.

AFFIRMED.

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