author: BRADLEY, Judge.

text:
    Clarence H. HODGES v. Linda W. Hodges NELSON.
    Civ. 1656.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
    Rehearing Denied May 2, 1979.
    Sterling G. Culpepper, Jr., Montgomery, for appellant.
    Horace N. Lynn, Montgomery, for appel-lee.
   BRADLEY, Judge.

This is a child custody case.

The parties were divorced on September 5, 1975. The decree incorporated an agreement of the parties that the custody of their two minor children be with the wife. The agreement also included a provision that the husband would deed his interest in the jointly owned home to the wife in lieu of periodic payments of child support. Subsequent judicial proceedings clarified the mechanics of applying any funds from the husband’s interest in the home to the future needs of the children in the event the home was sold.

In July of 1978 the wife brought a petition to modify the child support provisions of the decree and requested that periodic payments of such support by the husband be ordered. The husband filed a cross-petition to modify the child custody provision of the decree and requested that he be given custody of the children — two boys who, at that time, were ages nine and six. The trial court, after a hearing at which oral testimony was taken, denied both the wife’s petition and the husband’s cross-petition. The husband appeals.

The dispositive issue on appeal is whether the trial court abused its discretion in refusing to modify the original award of custody. We find no abuse of discretion and affirm.

Our review of this case is made with due regard to certain well established principles. The primary consideration in this case, as in every custody case, is the welfare of the children. Perez v. Hester, 272 Ala. 564, 133 So.2d 199 (1961); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975). Where the children are of tender years, as in the instant case, their welfare is presumed to be best served by placing custody in the mother unless she is found unfit. Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151 (1959); Gould, supra. The party seeking to modify the custody provisions of the original decree has the burden of proving a substantial change in circumstances since the original decree and that the welfare of the children is thereby adversely affected. Roberson v. Roberson, Ala.Civ.App., 370 So.2d 1008 (1979); Frazier; Gould; Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970). Finally, we accord a presumption of correctness to the decision of the trial court which can be overcome only by a showing that that decision was plainly wrong. Frazier; Gould.

In the instant case the father contends that the evidence overwhelmingly indicates that the mother is morally unfit to be the custodian of the children. He points specifically to uncontroverted testimony that the mother has for two years been openly cohabiting with one David Nelson to whom she has not been formally married and by whom she has had a child. Although the father concedes that Nelson and the mother are in all likelihood common-law man and wife, a concession which is supported by the evidence in the record, he nevertheless contends that this common-law union is immoral and an unsuitable environment for the children.

We agree with the husband that the morality of the wife is relevant to a determination of her fitness as a custodian of the children, Roberson, supra; Anonymous v. Anonymous, Ala.Civ.App., 353 So.2d 510 (1977); Gould, supra, but we do not agree that a common-law marriage is inherently immoral. In fact, just the opposite is true. Common-law marriage has long been recognized in Alabama, Campbell’s Administrator v. Gullatt, 43 Ala. 57 (1869), and is equal in validity with a marriage solemnized by formality, Piel v. Brown, Ala., 361 So.2d 90 (1978). Furthermore, a subsequent remarriage by a party to a divorce, while it is a factor to be considered by the trial court, is not of itself such a material change in circumstances as to justify a modification of custody. Parsons v. Parsons, Ala.Civ.App., 337 So.2d 765 (1976). Therefore, this court cannot say that a common-law marriage is per se an unsuitable environment for children or determinative of the custodial spouse’s moral unfitness. Whether such a relationship is not socially accepted, as the father contends, goes more to the factual determination of whether the welfare of the children is thereby adversely affected. This determination, as with other factual matters, is within the broad discretionary powers of the trial court.

We do not find an abuse of discretion in the trial court’s decision to leave the children with the mother. The evidence which the father advances to show that the best interests of the children would be best served by placing custody with him is persuasive, but not to the point of requiring reversal of the trial court’s judgment.

There was evidence that the mother lived with a man who was involved in an episode of violence in the mother’s home, that the mother was an undependable employee and frequented nightclubs, and that the mother was haphazard in her care for and disciplining of the children. Although the record of the proceedings is not before us, there was testimony that the Department of Pensions and Securities, in connection with a petition for temporary custody filed in 1976 in the Montgomery Circuit Court by the children’s paternal grandmother, conducted an investigation of the mother. The written report of the investigating DPS case worker, introduced into evidence by the father, did not recommend that custody be removed from the mother, but did suggest that the mother be admonished about her parental responsibilities. However, all of these events occurred more than two years before the petition in the instant case was filed. There was also evidence that since the mother and Nelson began living as man and wife in May 1977, the children’s home environment has markedly improved. There was testimony that the mother is properly caring for the children now and that she and Nelson provide the children with a normal and stable family life.

There was testimony that the children were not properly fed or clothed, that their medical care was ignored by the mother and that their behavior was abnormal. However, this testimony was sharply contradicted by the testimony of the children’s teacher and friends, and neighbors of the mother. A conflict of this sort presents an issue of fact to be resolved by the trial court. Nelson v. Nelson, Ala.Civ.App., 354 So.2d 1142 (1978). He resolved this conflict by leaving the children with the mother, and we have frequently stated that we will not substitute our judgment for that of the trial court’s in such matters. Parsons, supra. When all the circumstances are considered, the trial court is in the best position to determine what is in the best interests of the children. He has had the opportunity to hear and weigh the testimony of all the witnesses and to observe the demeanor of the parties. Additionally, in this case the trial court also interviewed the oldest child of the parties in chambers and had the opportunity there to observe the child’s behavior. Based on all of the evidence in this record, we cannot say that the trial court’s refusal to modify the custody provisions of the original decree was plainly and palpably wrong.

A final matter concerns an issue raised by the wife for the first time in her appellee’s brief. She contends that the trial court erred in denying her petition for a modification of the original decree’s provisions for child support. We have previously held that an appellee seeking from this court affirmative relief from an adverse ruling of the trial court must do so by means of a cross-appeal as provided by ARAP 4(a)(2). Johnson v. Salter, Ala.Civ. App., 359 So.2d 417 (1978); Hudson v. DuraWear Corporation, Ala.Civ.App., 344 So.2d 182 (1977). The record reveals that the wife-appellee has not complied with Rule 4(a)(2) and therefore has not raised the issue of child support payments sufficiently for this court’s consideration.

For the reasons stated, the decision of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Carole Moser BILL v. Alan C. BILL.
    Civ. 1677.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
    Rehearing Denied May 9, 1979.
    Richard L. Thiry, Mobile, for appellant.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a petition to modify child support. The mother appeals from the trial court’s decree requiring a reduction in support payments. We affirm in part, reverse in part and remand.

The parties were divorced January 5, 1976. By an agreement subsequently incorporated in the judgment the mother was given custody of the two minor children, then aged six and three, with child support of $325 per month to be increased proportionately as the father received cost of living raises from his employment as a federal Internal Revenue agent. The father was required to pay all extra and ordinary medical and dental expenses in addition to keeping in force medical insurance on the children.

On March 31, 1976, the father filed a motion to reduce support payments alleging as a changed circumstance that the mother had become employed since the divorce. A year later, on March 28, 1977, the court ordered that a reference be held. The mother filed a petition to increase support on June 23, 1977, alleging that the children’s financial needs had increased. On July 21, 1977, the reference was held. The deputy register filed findings of fact and recommended that both parties’ motions be denied. It was also recommended that the provision in the decree requiring the father to pay medical and dental expenses be stricken. Both father and mother filed exceptions to the deputy register’s report, the father contending that the mother was now gainfully employed, and the mother alleging that the children’s expenses had increased. On October 12, 1977, the mother filed a Motion for Rule Nisi, contending that the father had not increased support in accordance with his cost of living pay raises and that he had failed to pay certain medical and dental bills. A year later, on October 31, 1978, a hearing was held on the exceptions to the reference and on the Motion for Rule Nisi.

Testimony at the hearing revealed that the father’s salary was approximately $17,-000 at the time of the divorce and approximately $20,000 at the time of the hearing. He testified that his expenses had increased as a result of his remarriage. The mother worked for Union Carbide with a take-home pay of approximately $600 a month. She testified that she was unemployed at the time of the divorce, but that the parties had agreed then that she would go to work to supplement the father’s support payments and would waive alimony. In support of the charge of contempt, the mother testified that the father had refused to pay certain medical and drug bills in the amounts of $25, $80 and $25.

On April 28, 1978, the trial court entered an order reducing the father’s support payments to $275 per month. It set aside the provision requiring automatic increases in support based on cost of living raises. It also ordered that the father would be required to pay only the “extraordinary” medical and dental expenses of the children.

. The mother on appeal contends that the trial court abused its discretion in modifying the divorce decree, erred by not ruling on her Motion for Rule Nisi, and further abused its discretion by failing to grant her an award of attorney’s fee.

A trial court’s modification of a prior decree for child support, because of changed circumstances of the parties, is a matter within the trial court’s judicial discretion which will be disturbed on review only if it is so unsupported by the evidence as to be plainly and palpably wrong. Morrow v. Morrow, 351 So.2d 923 (Ala.Civ.App. 1977); Shepard v. Shepard, 338 So.2d 1016 (Ala.Civ.App.1976). The burden is upon the petitioner to show a material change in circumstances sufficient to warrant modification of a decree relating to child support. McEntire v. McEntire, 345 So.2d 316 (Ala. Civ.App.1977). The father based his petition on the circumstance that the mother had obtained employment and he had married since the divorce. He presented evidence of the mother’s income and of his own diminished capacity due to increased expenses since his marriage.

We find the order reducing the child support payments is not supported by the evidence and is contrary to law. Though the mother now has income which she did not have at the time of the divorce, the father’s income has also increased by approximately $3,000 annually. We have held that the primary legal and moral duty to support minor children rests with the father when he has the financial ability to provide it. Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976). The comparison of income and financial ability between the mother and the father is not the proper criteria for determining the amount of support required of the father. The fact that the mother’s income is as great or greater than the father’s in no way changes the primary and compelling responsibility of the father to furnish support according to the needs of the children within his reasonable ability to do so. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975), cert. denied, 295 Ala. 429, 321 So.2d 664.

It is evident that the mother also contributes to the support and care of the children in any case when she has custody and maintains a home for them. An increase in her income only inures to their joint benefits by enabling them to have a better standard of living. The payments required of the father are obviously insufficient to provide all the needs of two children. The obligation of the father in this ease is not diminished by the income of the mother, though the children evidently will benefit from it.

We further conclude that the remarriage of the father, in light of his consonant increase in income and the increased need of the children arising from inflation and advancing maturity is not of itself a circumstance sufficient to merit a reduction in child support. Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688 (1964).

We therefore set aside the portions of the order of April 28, 1978 which reduced child support to $275 per month; which set aside the provisions relating to increases in support in proportion to defendant’s cost of living increases in pay and which altered the provisions of the original judgment as to payment of medical and dental expenses of the children. We find such changes to be unsupported by evidence of. change in circumstances and thus an abuse of discretion.

We further find no foundation in the record before us for the court dismissing plaintiff’s Motion for Rule Nisi on the ground that it was moot. The evidence indicated there were medical bills incurred for the children which were unpaid. Whether these were liabilities of the father under the prior judgment and whether failure to pay them constituted contempt should have been determined by the court.

The mother contends error in the failure of the trial court to award her an attorney fee. Our review of the record discloses no request for an attorney fee except in the Motion for Rule Nisi. That motion is being reinstated by this decision and whether she is entitled to an attorney fee thereon is subject to the future exercise of the discretion of the trial court. Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1968). The court cannot be in error for failing to grant an attorney fee in the proceedings on the defendant’s petition to modify when such fee was not requested. Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970).

In response to request by the wife for an' attorney’s fee on appeal, we grant to her for such use the amount of $500.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    GULF FISHING AND BOATING CLUB, INC. v. Thomas B. BENDER and River Yacht Basin, Inc.
    Civ. 1471.
    Court of Civil Appeals of Alabama.
    May 2, 1979.

      Robert E. Gibney, of Kilborn & Gibney, Mobile, for appellant.
    Jerry A. McDowell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
   HOLMES, Judge.

This is a contract case.

The defendant-Bender operates River Yacht Basin, Inc., on land leased from the plaintiff. The plaintiff brought this action to terminate the lease and to recover delinquent rental payments. The trial court, after an ore terms hearing, awarded the plaintiff rent due but refused to terminate the lease. Plaintiff appeals.

The dispositive issue on appeal is whether the trial court erred in refusing to terminate the lease. We find no error and affirm.

The record reveals the following: The plaintiff is a nonprofit social club which owns river front property on Dog River in Mobile County. In 1960, the plaintiff leased a portion of this property to defendant for thirty years. The leased property adjoins plaintiff’s club facilities.

Under the terms of the lease, the defendant was to build and operate a full-service marina. The lease required defendant to maintain the marina in a clean condition and in good repair. The contract further required defendant to remit 3% of its gross monthly receipts to plaintiff as rent.

At the time the lease was executed, the plaintiff had an active membership of approximately two hundred fifty and had plans for construction of a new clubhouse. Over the years, however, plaintiff’s membership decreased to approximately fifty members (with only a few having boats) and the proposed new clubhouse was never constructed. In 1970, plaintiff leased its club facilities to the Elks Club.

Because of the decline of plaintiff’s membership, defendant gradually cut back on the services it offered. By the time plaintiff filed its complaint, defendant’s principal business was the rental of boat stalls.

The record further reveals that defendant used trash and debris for landfill. Some of this debris was scattered over defendant’s premises. Additionally, there was testimony that some of the marina facilities deteriorated to an unsafe and unsightly condition. Finally, the record indicates that a boat sales company stalled four boats on defendant’s premises during 1973, which boats were eventually sold for a price of approximately $119,000.

The learned judge found that the lease was ambiguous with respect to whether the defendant was unconditionally bound to maintain a full-service marina. In construing the contract, the court determined that the parties intended that defendant maintain a full-service marina in order to provide services to plaintiff’s members. However, the court found that because there was no longer any significant demand for a full-service marina due to the decrease in plaintiff’s membership, the contract did not require defendant to continue an unprofitable business.

On appeal, the plaintiff, through able counsel, initially argues that the trial court erred to reversal in finding the contract to be ambiguous.

In reviewing the trial court’s decree we are guided by certain well recognized legal principles.

Ambiguities in a contract are, as a matter of law, to be resolved by the court. International Harvester Co. v. Bostick’s Int’l., Inc., Ala.Civ.App., 365 So.2d 84 (1978). In construing ambiguous contracts, a court will look to the intention of the parties. Charles H. McCauley Assoc., Inc. v. Snook, Ala., 339 So.2d 1011 (1976). The court determines the intent of the parties from the contract as a whole, Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So.2d 289 (1974), and by examining the conduct and relation of the parties and the subject matter of the contract. Snook, supra.

Because it is presumed that parties intend to make reasonable contracts, Indus. Machinery, Inc. v. Creative Displays, Inc., Ala., 344 So.2d 743 (1977), a court will give an ambiguous contract a reasonable construction. International Harvester, supra.

Where the provisions of a lease are ambiguous, those provisions are to be construed most strongly against the lessor. Marcrum v. Embry, 291 Ala. 400, 282 So.2d 49 (1973).

In the instant case, the contract provisions at issue are subject to more than one possible interpretation and are therefore ambiguous. See, e. g., Southern Cafeteria Operating Co., Inc. v. Eley, 52 Ala.App. 656, 296 So.2d 743 (1974). Paragraph 4)i) of the lease agreement provides in part:

i) A moving consideration to the Club for execution of this lease is that there be available adjacent to the Club premises used for its other purposes, boating facilities for the storage, repair, construction and care of boats, a principal feature of the Club objectives being the conduct of a boating club. Therefore lessee agrees that during the term of this lease lessee will operate and conduct a first class boat repair service and boat-stall rental service on the leased premises, . . . and that all such operations shall be of top quality and kept in first class condition and repair, free of dilapidated and unsafe wharves, stalls, buildings and the like. . (Emphasis supplied.)

The plaintiff contends this provision unconditionally obligates the defendant to maintain a full-service marina and defendant’s failure to do so is a material breach of the contract. The defendant maintains the obligation to operate a full-service marina is contingent upon sustained operations of the plaintiff’s club as contemplated at the time of the contract. The trial court agreed with the defendant and we affirm.

As we noted above, the plaintiff’s membership diminished over a ten-year period until the plaintiff finally leased the facility to the Elks Club. The record indicates that without the demand for marina services by plaintiff’s members, defendant could not profitably operate the marina. Were we to accept the construction of the contract that plaintiff advances, i. e., that defendant is unconditionally obligated to maintain the facility, defendant would be unreasonably required to operate at a loss or terminate the lease. We find this result unreasonable considering the fact that the demand for a “full service” marina was eliminated by the actions of the plaintiff in abandoning its club facilities. See, e. g., International Harvester, supra.

The plaintiff, however, contends that the unprofitability of a contract is an insufficient excuse for non performance. While we agree, the record reveals that economic infeasibility was merely a factor examined by the trial court in reaching its conclusion. As set forth above, the trial court’s basic premise was that the parties did not intend for defendant to maintain full facilities if plaintiff abandoned active operations. Furthermore, we note that this is a reasonable construction of the contract because it does not deprive plaintiff of its right to realize income from the lease.

The plaintiff next maintains the defendant materially breached the terms of the lease which requires defendant to maintain a “reasonably adequate” facility. Specifically, the plaintiff argues that defendant failed to maintain the premises in good appearance and in a safe condition. In this regard, we note the trial court concluded that the lease was ambiguous but that defendant’s business was a reasonably adequate facility as required by the contract. We agree.

We are of the opinion that the contractual requirement that defendant maintain a “reasonably adequate facility” is unclear. This is so because the contract does not set forth the standards by which “reasonably adequate” may be determined. It was therefore appropriate for the trial court to construe the agreement most favorably for the defendant. See Marcrum, supra.

In its determination of the meaning of the term “reasonably adequate facility,” the trial court permitted testimony as to the condition of similar marinas in order to determine whether defendant’s marina was reasonably adequate. The plaintiff contends this was error.

The record reveals that while the trial court found that some trash was scattered about defendant’s premises, this was a normal condition for marinas in the area. The court also found that although some of defendant’s structures were dilapidated (and ordered them repaired), defendant’s operations were not unsafe. While such testimony could be considered immaterial, the determination of the materiality of evidence is largely within the discretion of the trial court. Mersereau v. Whitesburg Center, Inc., 47 Ala.App. 146, 251 So.2d 765 (1971). Therefore, we cannot say the trial court abused its discretion in considering the evidence.

Finally, the plaintiff maintains that it is due approximately $4,000 from the sale of four boats which were stalled at defendant’s docks in 1973 by Mobile Bertram, Inc., a boat sales company. Specifically, the plaintiff relies on its contract which provides that it is to receive 3% from the sale of boats “sold by businesses conducted on the leased premises.” We agree with the trial court’s determination that plaintiff is not entitled to a percentage of these sales.

The record indicates that Bertram kept the four boats at defendant’s marina, Bertram advertised that they were docked there, they were demonstrated there, and the defendant’s employees worked on the boats. However, it is uncontroverted that Bertram had no office, telephone or salesmen at defendant’s marina.

It is clear to this court that where, as here, a boat sales company does not have an office at defendant’s marina, its sales are not covered by the contract. This is so because the contract expressly requires that in order for plaintiff to receive a percentage of the sale proceeds, the boats must be “sold by a business conducted on the leased premises.” As noted above, the record shows that Bertram’s business was not a business “conducted on the property.”

Furthermore, the phrase “business conducted on the leased premises” is ambiguous as to these facts. It was therefore incumbent upon the trial court to interpret the phrase reasonably, construing it most strongly against the lessor. Marcrum, supra. Thus, the trial court was free to conclude that any set of circumstances not specifically included in the contract would be excluded. We also observe that had plaintiff desired such a contract provision, it could easily have drafted the agreement in clear language. See, e. g., Wiregrass Construction Co., Inc. v. Tallapoosa River Elec. Co-op, Inc., Ala.Civ.App., 365 So.2d 95 (1978).

For the reasons stated, the verdict of the trial court is affirmed.

AFFIRMED.

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


text:
    REESE FUNERAL HOME v. KENNEDY ELECTRIC COMPANY, INC.
    Civ. 1604.
    Court of Civil Appeals of Alabama.
    May 2, 1979.
    Michael A. Figures, Mobile, for appellant.
    Horace Moon, Jr., Mobile, for appellee.
   HOLMES, Judge.

The plaintiff sued defendant for $3,850 for work performed under a construction contract. After an ore tenus hearing, the learned trial judge entered a judgment for the plaintiff in the amount of $3,050. Defendant appeals.

The dispositive issue on appeal is whether there is sufficient evidence in the record to support the judgment of the trial court. We find that there is and affirm.

The record reveals the following: Plaintiff entered into an oral contract with defendant to install electrical wiring. The full contract price was $9,000. A dispute arose concerning whether the contract required plaintiff to install an exit lighting system and a door chime signal system. Plaintiff never installed these two systems and left the job after completing all the work which plaintiff contended he was obligated to perform. The defendant withheld $3,850 for the failure to perform the contested work. Plaintiff brought this action to recover the withheld amount.

At the outset, we note that the parties stipulated in open court that there were only two issues for the trial court’s consideration: 1) whether plaintiff was obligated under the construction contract to install the exit light and chime system; and if so, 2) what was a reasonable value for that work, to be allowed as an offset against the contract price.

The law in Alabama is that parties may agree to try their case on any theory they choose and agreements or stipulations fixing the issue are binding. See Hilfer v. Hilfer, 53 Ala.App. 549, 302 So.2d 237 (1974); Rule 47 ARAP.

It is clear to this court that the trial court found that the plaintiff was obligated under the contract to perform the disputed work and that approximately $800 was a reasonable value for the unperformed work.

Keeping in mind the stipulation and the resulting issues to be resolved, the only determination for this court is whether there is evidence to support the trial court.

We do not deem it necessary or prudent to set out the evidence supporting the trial court. Suffice it to say the record reveals ample evidence supporting the trial court’s conclusion. In fact, the defendant, on appeal, does not seriously contest that there is evidence to support these conclusions.

Defendant’s contention through able counsel is that the trial court could not as a matter of law find that plaintiff was required to do the disputed work and still be entitled to an award. As noted above, in view of the stipulation and the rule of law as enumerated in Hilfer, supra, we do not in this instance agree with defendant. Put another way, the parties agreed as to the issues to be determined by the trial court. The trial court determined these issues. There is evidence to support the trial court’s conclusion.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Anne Lloyd KITCHIN v. Claude KITCHIN, III.
    Civ. 1709.
    Court of Civil Appeals of Alabama.
    May 30, 1979.
    Rehearing Denied July 11, 1979.

      William S. Halsey of Burnham, Klinefel-ter, Halsey & Love, Anniston, for appellant.
    Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals from the trial court’s award of alimony, child support, and disposition of property. We affirm.

The parties were divorced on the ground of incompatibility after a lengthy marriage. Pour children were born of the marriage: Claude, age twenty-one; Jean, age eighteen; Elizabeth, age sixteen; and Mary Anne, age fifteen.

The trial court awarded the wife custody of the two minor children, and ordered the husband to make support payments of $600 per month. When Elizabeth reaches majority, the payments were to be reduced to $400 per month and then discontinued at Mary Anne's majority. The husband was also ordered to pay $300 per month in alimony to the wife for a period of three years. Thereafter the payments would be reduced to $200 monthly for an additional year and then cease. The wife was given exclusive use of the parties’ residence until she remarried or Mary Anne reached majority. The home would then be sold with the proceeds divided equally. While the home remained in the wife’s possession, the husband would be responsible for maintaining mortgage payments, taxes and insurance.

The wife contends on appeal the trial court abused its discretion in its award of child support and alimony. She also submits that she should receive title to the home.

The general rule is that the award of alimony, child support and division of property in divorce cases are matters within the discretion of the court and should not be reversed except for palpable abuse. Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App. 1977).

The husband is President and General Manager of Kitchin’s Department Store in Anniston. The evidence indicates that he has been very liberal in providing for his wife and children. He has distributed by gift substantial amounts of stock in Kitch-in’s Department Store, Inc. to his wife and children. The wife has a separate estate of greater value than that of the husband.

The husband and wife showed net income of $29,486; $26,061; $28,595; $41,753, and $50,346 for the years 1973 through 1977. The wife does not work but does receive income from her stock portfolio obtained through inheritance and gifts from her husband. In 1977, approximately $13,000 of income shown on the parties’ joint income tax return was attributed to the wife. The wife also received a long-term capital gain of $18,879.28 from the sale of stock in 1977.

We cannot say the trial court abused its discretion in the amount of alimony and support ordered, particularly in light of the separate income- producing estates of the wife and children. We find no error in requiring a sale of the parties’ residence with an equal division of the proceeds when the children are no longer dependent. The home was purchased primarily with money from the husband, and the husband is required to provide insurance, taxes, and continue making mortgage payments in the amount of $175 per month as long as the wife remains in residence there.

The trial court’s judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Harold Van WITTMANN v. Brenda J. WITTMANN.
    Civ. 1789.
    Court of Civil Appeals of Alabama.
    July 11, 1979.
    John T. Kirk, Montgomery, for appellant.
    Sterling G. Culpepper, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a domestic relations case. The parties were divorced in an action initiated by the wife. The judgment was entered on May 5, 1978. All matters relating to custody of children, their support and division of property were agreed upon and the agreement was incorporated in the judgment.

On July 24, 1978, the husband filed a motion to modify the judgment because of changed circumstances, discovery of matters unknown to him at the time of the divorce relating to the conduct of the wife, and fraud of the wife. The matter was heard orally by the court and modification was denied. The husband appealed. We affirm.

The sole issue is whether the trial court abused its discretion in refusing modification.

We see no point in setting out a lengthy recitation of the testimony. It consisted of speculative accusations against the wife and mother, the alleged conduct of the eighteen-year-old son of the wife’s new husband toward the fifteen-year-old daughter of the parties and a general charge of failure to properly keep house and supervise the children. The trial judge saw the witnesses and heard the testimony. The matter of custody of children is for his discretion. The exercise of that discretion is presumed correct and will not be disturbed on appeal unless from the evidence there is shown clear and evident abuse. Rogers v. Rogers, 345 So.2d 1368 (Ala.Civ.App.1977). After examining the evidence we find no abuse of discretion in the denial of the petition to modify.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Gene Albert HUGHES v. JEFFERSON COUNTY BOARD OF EDUCATION et al.
    Civ. 1683.
    Court of Civil Appeals of Alabama.
    May 2, 1979.
    James H. Davis and William M. Dawson, Jr., Birmingham, for appellant.
    Donald B. Sweeney, Jr., Birmingham, for appellees.
   BRADLEY, Judge.

Plaintiff appeals from a final judgment rendered by the Circuit Court of Jefferson County denying declaratory and injunctive relief. Plaintiff’s principal contention on appeal is that certain policies and criteria used by defendants in determining whether to grant additional compensation to teachers for previous teaching experience violates the constitutional guarantees of due process and equal protection. We affirm.

The testimony at trial revealed the following facts. Plaintiff is an employee of the defendant Jefferson County Board of Education, having taught at Leeds Junior High School for approximately three years at the time of trial. The other defendants are the members of the Board, individually and in their respective capacities. Plaintiff was initially employed prior to the 1975-76 school year. The Board’s policy at that time was, and continues to be, to give “credit,” i. e. additional compensation, to those new employees who have had previous “quality” teaching experience, as evidenced by (1) possession of an Alabama Teacher’s Certificate and/or (2) teaching experience at a school accredited by the Southern Association of Colleges and Schools (hereinafter the “Southern Association”). At the time of his employment in 1975, plaintiff had no previous teaching experience at a school accredited by the Southern Association, nor had he taught in any school while possessing an Alabama Teacher’s Certificate.

The record indicates that plaintiff, after his graduation from Southern Missionary College in Tennessee, received a Tennessee Teaching Certificate in August 1970, and that he had been employed as a teacher in the following schools operated by the Church of the Seventh-Day Adventists: 1970-1971, Idaho Falls SDA Schools, Idaho Falls, Idaho; 1971-1972, Waycross SDA School, Waycross, Georgia; 1972-1974, Montezuma Oglethorpe SDA School, Montezuma, Georgia. These schools are properly accredited within their particular denominational system. In 1974 plaintiff received both an Alabama and a Georgia Teaching Certificate; but did not teach during the 1974-1975 school year. Plaintiff testified that his previous teaching experience (duties, subjects taught, discipline of students, etc.) at the Seventh Day Adventist schools was comparable to that at Leeds Junior High School; and that he had possessed sufficient qualifications in 1970 to have obtained an Alabama Teacher’s Certificate had he chosen to do so.

Plaintiff testified that upon being hired he inquired about receiving credit for his previous teaching experience; he was told that the matter would be checked into and he would be given credit if he qualified. Plaintiff stated that he received no written guidelines or statement of policy regarding the Board’s procedure for determining eligibility for credit for previous teaching experience. His request for credit was denied.

The only written statement of policy regarding the giving of credit existing at the time plaintiff was hired appears in the 1973 Jefferson County Board of Education policy manual. That policy is stated as follows:

In setting the salary of an appointee to a teaching position, full credit is allowed to outside teaching . . experience, which must be verified.

Dr. J. Revis Hall, Superintendent of Jefferson County Schools, testified that he personally ruled on plaintiff’s request for credit. He stated that he concluded plaintiff was ineligible for credit because the information and experience indicated on plaintiff’s application “did not measure up” to the standards used by the Board in making such determination.

In implementing the above-quoted Board policy over the last ten years, the Board has looked for those factors which indicate that an employee has had such experience by applying the two criteria — teaching experience at a school accredited by the Southern Association (or an accreditation association with similar standards), and/or teaching experience received while in possession of an Alabama Teacher’s Certificate. Dr. Hall stated that the applicant has the responsibility to present the necessary information supporting the request for credit.

After an ore tenus hearing, the trial court rendered a final judgment dated August 31, 1978 denying the relief sought by plaintiff. The trial court found that plaintiff had failed to show by the evidence that the defendants' policy regarding additional compensation for prior teaching experience was discriminatory or exercised in an unlawful or unconstitutional manner; and that plaintiff had failed to show by the evidence that the standards utilized and exercised by the superintendent of the Jefferson County Board of Education were unlawful, arbitrary or not consistent with valid educational standards or criteria for the purpose of evaluating prior teaching experience.

We note that the trial court’s judgment states that the deposition of Dr. D. K. Griffith was considered by the lower in reaching its decision, but that deposition apparently was not included in the record on appeal.

Plaintiff contends on appeal that the defendants’ policy violates the constitutional guarantees of due process by creating a set of irrebuttable presumptions which are inconsistent with defendants’ stated objective of rewarding teachers for prior experience. He argues that defendants, upon determining that plaintiff had not met the two above-mentioned criteria, conclusively presumed that plaintiff did not have the requisite experience entitling him to receive credit for his previous teaching experience; and that the Board failed to allow him an opportunity to offer other evidence as to the quality of his prior experience, preferring to use the two simple criteria for reasons of administrative convenience. Plaintiff argues that the use of such irrebuttable presumptions “which are not necessarily or universally true in fact” is impermissible, since the two criteria used to show that his four years of previous experience were not meritorious are not reasonably, or even rationally, related to an objective inquiry into the quality of that experience, citing, inter alia, Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

Plaintiff further contends that the application of the Board’s policy results in disparate treatment of individuals with equal experience, thereby violating the constitutional guarantees of equal protection. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). He argues that his teaching experience in the Seventh Day Adventists’ institutions, for which he was denied credit, may well have been equal to or better than that he would have obtained at a non-accredited public school in Jefferson County or in an accredited school elsewhere, for either of which he would have been given credit.

The defendant, Jefferson County Board of Education, is vested by statute with the general administration and supervision of the public schools in that county (except those schools under the supervision of city boards of education), Code of Alabama 1975, § 16-8-8, and is vested with policy-making authority. § 16-8-10. The Board has the authority to enter into contracts of employment with teachers for fixed compensation. Id.-, § 16-8-23. Local boards of education may establish in their budgets general salary schedules for their employees. § 16-13-143.

It is widely recognized that school boards have the authority to classify teachers for purposes of compensation. Indeed, this is common practice. See 78 C.J.S. Schools and School Districts § 224 (1952); 68 Am.Jur.2d Schools § 144 (1973); Annot., 133 ALR 1437 (1941). It is generally held that such a classification must be reasonable, natural, and based upon substantial differences germane to the subject. See, e. g., Hutton v. Gill, 212 Ind. 164, 8 N.E.2d 818 (1937); Richards v. Board of Education of Township High School District No. 201, 21 Ill.2d 104, 171 N.E.2d 37 (1960); Gilbert v. Highfill, 139 Fla. 444, 190 So. 813 (1939). The classification must not be arbitrary, discriminatory, or unreasonable. Hutton v. Gill supra; Morris v. Williams, 149 F.2d 703 (8th Cir. 1945); Rible v. Hughes, 24 Cal.2d 437, 150 P.2d 455, 154 A.L.R. 137 (1944). See also, 78 C.J.S. Schools and School Districts § 224 (1952) and 68 Am.Jur.2d Schools § 144 (1973) for discussions of other cases invalidating teacher classifications based on improper criteria such as race, sex, and marital status.

The question of the validity of a classification of teachers for purposes of compensation has been passed upon by the courts in several cases, in most of which the classification has been sustained as based upon reasonable distinctions and as promotive of the progress and welfare of the school system. See cases collected in Annot., 133 ALR 1437 (1941). Specifically, these classifications have withstood claims of invalidity where, as here, the claimant asserts violations of due process and equal protection. See e. g., Phelps v. Board of Education of Town of West New York, 300 U.S. 319, 57 S.Ct. 483, 81 L.Ed. 674 (1937); Lompoc Federation of Teachers v. Lompoc Unified School District, 58 Cal.App.3d 701, 130 Cal. Rptr. 70 (1976); Richards v. Board of Education of Township High School District No. 201, supra.

After careful consideration of the above-cited authorities, we conclude that plaintiff’s contentions are without merit. Defendants’ policy of providing additional compensation to those employees who have acquired previous teaching experience and its utilization of the stated criteria in making its determination are reasonably and rationally related to the purposes for which that policy was promulgated. The record in this case supports the trial court’s conclusion that the plaintiff has failed to prove arbitrary or discriminatory treatment.

Nor can we agree that plaintiff, upon initial denial of his claim for credit, was wrongfully denied a further opportunity to present evidence regarding the quality of his previous teaching experience, where the burden was on plaintiff to present such evidence and the record does not indicate that plaintiff sought a reconsideration of that initial determination.

Our conclusion is further supported by the opinion in Fry v. Board of Education of the City and County of San Francisco, 17 Cal.2d 753, 112 P.2d 229 (1941). In Fry the Supreme Court of California indicated that the city board of education, in the exercise of its discretionary control over teachers’ salaries, could reasonably make a classification between teachers with teaching experience within the city and those with teaching experience outside the city, and upon this classification could allow or disallow credit in setting the salary ratings for incoming teachers.

A determination by an administrative agency is not “arbitrary” or “unreasonable” where there is reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions & Security v. Whitney, Ala.Civ.App., 359 So.2d 810 (1978).

If reasonable minds may well be divided as to the wisdom of administrative board’s action, or there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body. Rible v. Hughes, supra.

Before a reviewing court can set aside a judgment rendered by the trial court sitting without a jury, it must appear that the judgment is plainly and palpably contrary to the evidence heard by the court. Scroggins v. Alabama State Board of Pharmacy, 51 Ala.App. 104, 283 So.2d 178 (1973). The record contains sufficient evidence to support the trial court’s conclusion that the Board’s policy does not suffer from the constitutional infirmities suggested by plaintiff. This case is affirmed.

AFFIRMED.

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


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    Mary H. INMAN v. Virgle INMAN.
    Civ. 1741.
    Court of Civil Appeals of Alabama.
    May 2, 1979.

      Kathleen M. Warren, Legal Services Corp. of Ala., Gadsden, for appellant.
   BRADLEY, Judge.

This is a child support modification case.

The mother appeals from an order of the circuit court modifying a previous award of child support.

The dispositive issue on appeal is whether there was a material change in circumstances since the original decree sufficient to warrant a modification of that decree’s provisions for child support. We find no material change in circumstances, and reverse.

The record reveals the following. During the marriage the husband was in military service, and at the time of the divorce was stationed in Virginia. In 1974 the parties separated. The wife returned to the husband’s original hometown in Etowah County and in 1975 filed for divorce. By agreement, the wife was given custody of the parties’ two minor children, then ages twelve and nine, “subject to the right of reasonable visitation” on the part of the husband. The husband was to pay $150 per month per child in child support.

Two months after the divorce the wife returned with the two children to her home state of California. The husband subsequently retired from the military, returned to Etowah County, and remarried. In July 1978 the husband filed a petition to modify the original decree, alleging that the wife had refused to allow him to exercise his rights of visitation. He sought to have his visitation rights specified and requested that the wife be ordered to allow the children to visit him or, alternatively, that he be relieved from paying child support. The husband also requested that the monthly child support payments be reduced commensurate with his ability to pay.

After a hearing, at which the husband was the only party to testify, the trial court ordered the wife to allow the children to visit the husband for two weeks each summer. The court also reduced the child support payments from $150 to $100 per month per child. The wife appeals only from that portion of the decree ordering a reduction in child support payments.

The basis for our review is the principle that an order modifying the child support provisions of a divorce decree will not be reversed on appeal unless it is such an abuse of discretion as to be plainly and palpably wrong. Little v. Little, Ala.Civ. App., 349 So.2d 48 (1977). However, a modification may be ordered only upon a showing of a material change in the circumstances of the parties. Meyer v. Meyer, Ala.Civ.App., 346 So.2d 972 (1977). The burden of showing a material change in circumstances rests upon the moving party. O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (1976).

We, therefore, look at the record to see if there is sufficient evidence therein upon which the modification order can be grounded.

One ground for reducing or terminating child support payments is the removal from the court’s jurisdiction of the child by the custodial parent. Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1965); Clark v. Clark, 46 Ala.App. 432, 243 So.2d 517 (1971). However, it must be shown that the removal of the child from the state was expressly prohibited by the divorce decree. Clark. The decree in the instant case contains no such express prohibition. Additionally, there was no finding by the trial court that the wife was preventing the husband from visiting the children. Hence the wife was free to leave the state with the children, and the fact that it is economically impractical for the husband to exercise his visitation privileges is not a ground for reduction of child support. Clark.

The second ground offered for a reduction, a reason advanced by the husband in his testimony at trial, is an increase in the cost of living due to inflation. A court may take judicial notice of an increase in the cost of living due to inflation, Bearden v. LeMaster, 284 Ala. 588, 226 So.2d 647 (1969), and may properly consider it as a factor in determining whether there has been a material change in circumstances. Jones v. Jones, 53 Ala.App. 309, 299 So.2d 751 (1974). However, in every case in this state in which an inflationary increase in cost of living has been considered, it has been in support of an increase in child support payments. Hopper v. Hopper, 54 Ala. App. 144, 306 So.2d 13 (1974); Howard v. Howard, 53 Ala.App. 426, 301 So.2d 191 (1974); Jones, supra. In the instant case the father attempts to justify a decrease in child support payments because of the effects of inflation. However, we would point out that the children are affected by inflation just as much as the father. Hence we do not consider inflation to be a factor warranting a decrease in child support under the facts of this case.

A third factor, and one which may properly be considered in support of the order of modification, is the remarriage of the husband. However, the husband’s remarriage is not, standing alone, a change in circumstances sufficient for a modification. Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965); McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977).

Finally, we find no evidence in the record of a substantial decrease in the father’s financial status. The husband testified that his annual incomes since the divorce were: 1975,$11,007; 1976, $15,194; and 1977, $14,-216. He testified that he was employed and also receiving military retirement pay. There is no indication in the record that the husband is in ill health or in any way disabled.

The evidence in the record of the wife’s financial status is meager. However, the record shows that the wife is unemployed, has become disabled since the divorce, and receives as her sole source of income a supplemental security income check of $307 a month. We find nothing in this evidence which would justify a decrease in child support.

After a careful examination of the record in this case we are unable to find that there has been a decrease in the father’s earnings or that there has been such a legitimate demand made on those earnings as to warrant a reduction in child support. Nor has it been shown by the evidence that the financial needs of the children have decreased to the point where less support would be required of the father. Accordingly, we conclude that the trial court’s order reducing the father’s support payments from $150 to $100 per month per child was plainly and palpably erroneous. This case is therefore reversed and remanded with directions that the support provisions of the original decree, i. e. $150 per month per child, be reinstated.

The wife has requested a reasonable attorney’s fee. A fee of $500 is hereby awarded.

REVERSED AND REMANDED WITH DIRECTIONS.

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


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    BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC. v. Timothy L. TAYLOR.
    Civ. 1692.
    Court of Civil Appeals of Alabama.
    May 9, 1979.
    James D. Pruett, Gadsden, for appellant.

      Douglas Burns of Burns, Shumaker & Davis, Gadsden, for appellee.
   BRADLEY, Judge.

The defendant, Blue Cross and Blue Shield of Alabama, Inc. [hereinafter the insurance company] appeals from a final judgment and jury award in favor of the plaintiff in the amount of $1,584.30 and costs.

The action began with a complaint alleging the plaintiff and insurance company had entered into an agreement wherein the insurance company promised to insure the plaintiff and his wife for all medical and doctor bills. The insurance company allegedly breached the contract by refusing to pay hospital and doctor bills incurred from surgery performed on the wife. The insurance company alleged the wife’s condition was noticed before the effective date of coverage and that the contract contained a waiting period of nine months before benefits became available for any disease, condition or ailment which existed on or prior to the effective date of coverage. The insurance company moved for summary judgment and was denied. The case proceeded to trial before a jury. At the close of evidence for both sides, the insurance company moved for a directed verdict on the basis no estoppel was proven in the case. Counsel for the plaintiff answered waiver or estoppel was shown and there remained a sufficient question of fact for the case to be decided by the jury. The motion for directed verdict was then denied and the court proceeded to instruct the jury.

The record reveals the following pertinent facts:

Subsequent to March 1, 1972 the plaintiff’s wife was covered under her father’s insurance as a “dependent” by Blue Cross-Blue Shield of Tennessee. She was married to the plaintiff on November 15,1975. The Tennessee contract contains a provision that coverage of a child of an insured will automatically cease when such child is no longer a dependent. “Dependent” is defined under the contract as an unmarried child. The contract further provides that if such termination occurs, the prior “dependent” may within thirty days of the date coverage terminates apply to the corporation for its standard contract. Because a new contract would be issued without evidence of insurability, continuous coverage would result. The plaintiff’s wife, i. e. former dependent, did not apply within thirty days, however. Instead, her mother-in-law made a phone call to the insurance company on January 5, 1976 (fifty days after termination) and said her son had married; that his wife previously had insurance with Blue Cross and Blue Shield; and that they needed some insurance. The insurance company sent application forms and they were filled out by the plaintiff. A policy was issued and became effective February 10, 1976.

An ovarian cyst was discovered by the wife’s doctor on December 22, 1975. The plaintiff’s wife underwent surgery for the removal of the cyst on June 2, 1976. The plaintiff filed a claim for medical and hospital expenses and was denied coverage by the insurance company in a letter dated July 11, 1976. The letter stated that the contract had not been in effect the required nine months and referred the plaintiff to the provision pertaining to limitations and waiting periods. The pertinent provision reads:

PRE-EXISTING CONDITIONS — Benefits hereunder shall not be available to any member for any condition, disease or ailment, congenital or otherwise, which existed on the effective date of his coverage hereunder, whether manifested in any way or not, or for which medical or surgical treatment or advice has been rendered within one (1) year prior to the date his coverage hereunder became effective, until the member shall have been covered by a Blue Shield in-hospital medical benefit rider for a period of nine (9) consecutive months immediately preceding the date of his hospital admission.

In response to a letter written by the wife’s mother, a letter dated August 26, 1976 was sent stating that coverage was not effective until February 10, 1976; thus there was a lapse in coverage and previous denial of payment must be upheld. Thereafter, a third letter, dated October 20, 1976, was sent to the wife. It reads, in pertinent part:

We have been advised by the Tennessee plan that in order for you to receive continuous coverage from your father’s contract we should have been notified within 60 days from your date of marriage.
As we were not within 60 days we will be unable to give you original contract dates from your father’s contract. [Emphasis theirs.]

There are two issues to be resolved: (1) whether the letter of October 20, 1976 operates as an effective waiver and (2) whether the elements of estoppel are proven in this case.

The insurance company formally appeals from the judgment; however, it asserts that the denial of its motion for a directed verdict was erroneous and that as a matter of law it should have been granted. In reviewing the trial court’s refusal to grant a directed verdict, we will consider the evidence in a light most favorable to the plaintiff and will affirm if there is a scintilla of evidence to support the plaintiff. Carolina Casualty Insurance Co. v. Tisdale, 46 Ala. App. 50, 237 So.2d 855, cert. den. 286 Ala. 741, 237 So.2d 861 (1970).

The insurance company asserts that estoppel is not proven in that no reliance is shown by the evidence. The plaintiff asserts that his reliance lies in the fact that he did not pay his hospital and doctor bills because he believed proper notice within sixty days had been given to the insurance company according to the letter of October 20, 1976.

Estoppel is an equitable principle which is often confused with waiver. However, es-toppel and waiver are distinct and each has its own legal requirements. Mooradian v. Canal Insurance Co., 272 Ala. 373, 130 So.2d 915 (1961) stated the elements of estoppel as: “ ‘(1) A position of authority assumed by defendant [insurer] under the color of right; (2) submission to and reliance upon that assumption, by plaintiff [insured]; and (3) injury suffered by plaintiff as a proximate consequence of such submission and reliance.’ ” (Brackets theirs.) 28 Am.Jur.2d Estoppel and Waiver § 35 (1966) states that the essential elements of equitable estoppel as related to the party to be estopped are:

(1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. [Footnotes omitted.]

As related to the party claiming estoppel, the essential elements are:

(1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice. [Footnotes omitted.]

The inaction in this particular case was the nonpayment of the medical bills by the plaintiff. The plaintiff was sent two letters in July and August which informed him that the policy had lapsed and that he had no coverage. He had not paid any bills at that time. After receipt of the October 20, 1976 letter, the plaintiff continued his position of nonpayment. The obligation to pay arose prior to the October 20, 1976 letter. In fact, failure to comply with the contract provision for application within thirty days of the termination of the policy caused the February 10, 1976 policy to become a new policy instead of continuous coverage.

We cannot deduce from the evidence that there was reliance by the plaintiff on the third letter of October 20, 1976. The question becomes whether the plaintiff suffered any detriment by his nonpayment of medical bills if estoppel is not invoked and the insurance company is allowed to assert the defense of lapse of coverage. We find none. There could have conceivably been detrimental reliance had the insurance company written the letter containing the “sixty day notification” before or during the thirty day period after the marriage, i. e. termination date, and the plaintiff waited until after the thirty day period to apply for a policy. The detriment suffered would be non-coverage under the policy.

Under the present facts if there is no estoppel there is also non-coverage. However, the non-coverage would not result from the nonpayment of the medical bills. Non-coverage results because of the plaintiff’s earlier failure to apply for coverage within thirty days, as provided in the contract.

Because reliance, an essential element of estoppel, is not found in the facts of this case, there can be no estoppel arising in favor of the plaintiff.

The next issue that must be dealt with is that of effective waiver. According to 7 Couch on Insurance 2d Waiver § 35:247 (1961), waiver is the intentional relinquishment of a known right. Once the waiver is made, it is irrevocable unless it was induced by fraud on the part of the insured. In addition, a new consideration or estoppel in the alternative is necessary to establish waiver if the waiver is made after the loss. See: Equitable Life Assurance Society of United States v. Brandt, 240 Ala. 260, 198 So. 595 (1940). This rule does not apply when waiver occurs before the loss.

In this case evidence of the October 20, 1976 letter along with testimony of an agent of the insurance company could not amount to a scintilla of evidence showing waiver, for there is absolutely no evidence indicating there was any new consideration for the waiver given after the loss, i. e. after the surgery. We previously held that no estoppel was shown. Therefore, we find the trial court’s denial of the insurance company’s motion for directed verdict was erroneous as a matter of law, for the necessary elements of estoppel and waiver were not shown.

REVERSED AND REMANDED,

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


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    Samuel V. NERO, Individually and d/b/a Nero General Construction Company, and Nero General Construction Co., separately and jointly v. MOORE-HANDLEY, INC., a corporation.
    Civ. 1693.
    Court of Civil Appeals of Alabama.
    May 9, 1979.

      James H. Reid, Jr., Fairhope, for appellant.
    Augustine Meaher, III and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for appellee.
   BRADLEY, Judge.

Plaintiff, Moore-Handley, Inc., a corporation, recovered a judgment against defendants, Samuel V. Nero, individually and doing business as Nero General Construction Company and Nero General Construction Company, separately and jointly, for $9,233.64 plus costs. Defendants appeal.

On November 30, 1977 plaintiff filed a complaint against defendants which contained three counts. Count One was for an open account between the parties for the period June 8, 1977 through October 28, 1977; Count Two for an account stated between the parties on June 8, 1977; and Count Three for merchandise, goods and chattels sold during the period from June 8, 1977 through October 28, 1977. The complaint was subsequently amended to add a fourth count for hardware and building materials furnished from December 1, 1975 through October 31, 1977. Attached to the complaint was a signed affidavit showing that defendants owed $7,956.03 due on account from June 8, 1977 with interest. The record does not show that a counter affidavit was filed by defendants.

The case was heard by the court sitting without a jury, and a judgment was rendered for plaintiff in the amount of $9,233.64 and costs.

The facts in the case show that defendants had been buying building materials and supplies from plaintiff for several years. Defendants would purchase the materials and supplies on account and would be billed monthly with a total amount owing appearing on each bill. Defendants did not complain to plaintiff that the bills were incorrect.

Defendant Nero admitted he signed the application for credit and the guarantee agreement that were attached to the complaint.

An employee of plaintiff testified that there was an unpaid, outstanding balance owed to plaintiff of $7,733.64 plus interest of at least $1,500.

Nero testified that he had received duplicate billings and that plaintiff was seeking a double recovery in many instances.

This case was tried before the court sitting without a jury. The evidence accepted by the court was developed ore tenus, or partly so, and where this is the case, the trial court’s judgment will not be disturbed unless it is contrary to the great weight of the evidence. Deal v. Houston County, 201 Ala. 431, 78 So. 809 (1918). Furthermore, a judgment entered by a court sitting without a jury is to be given the effect of a jury verdict and is not to be reversed on appeal unless plainly and palpably wrong. Thompson v. Mitchell, Ala., 337 So.2d 1317 (1976). In the instant case we do not consider that the trial court’s judgment is contrary to the great weight of the evidence, nor do we consider it to be plainly and palpably wrong.

Consequently, we find no merit to defendants’ contention that the trial court failed to give weight to evidence that plaintiff was attempting to collect twice from defendants for materials and supplies bought by Nero. The evidence presented a factual dispute for resolution by the trial court, and it resolved the dispute. No error here.

Defendants’ next argument concerns their allegation that the trial court’s judgment included an award of attorney’s fees for plaintiff.

Plaintiff’s complaint did include a request for the award of a reasonable attorney’s fee to plaintiff for being put to the expense of collecting the alleged indebtedness. The credit application signed by defendant Nero when seeking an extension of credit from plaintiff contained a provision whereby defendants agreed to pay a reasonable attorney’s fee should plaintiff be required to attempt the collection of any outstanding indebtedness which defendants might owe.

Notwithstanding the agreement of the defendants to pay an attorney’s fee for collection of a debt they had incurred or the request in plaintiff’s complaint for the award of an attorney’s fee, nothing in the record or the trial court’s judgment establishes that an attorney’s fee was included in the award of $9,233.64 to plaintiff.

The complaint set out a request for $7,733.64 as being the amount owed on account to plaintiff by defendants, and the testimony revealed that plaintiff was seeking interest on the amount owed of “at least $1,500.” When these two amounts, i. e. $7,733.64 and “at least $1,500,” are added together, the total amount comes to $9,233.64, the exact amount of the judgment. Thus, we conclude that the judgment included the amount sued for plus interest of $1,500, and no attorney’s fee was included in the judgment. No error shown here.

Finally, defendants say the trial court erred by admitting into evidence a credit application signed by Sam V. Nero when the credit application which had been attached to the complaint had been signed by Sam V. Nero, Jr. This, says defendant Nero, placed him in an unfair position because his defense was based on the premise that he was not the person against whom plaintiff was seeking a judgment for failing to pay the amount sued on.

To begin, defendant Samuel V. Nero admitted signing the application for credit with plaintiff that was admitted into evidence; further, the credit application in question was attached to the amended complaint that was served on defendants’ attorney. Consequently, we are unable to perceive that any harm was done defendants when they were made aware, prior to trial, that they had applied for credit and had agreed to pay for the materials and supplies bought from plaintiff. Furthermore, the question of whether defendants did sign the application for credit and did incur an indebtedness with plaintiff was a factual matter for the trial court to resolve. It did resolve the issue and we find no error in its action.

For the reasons above stated, we affirm the judgment of the trial court.

AFFIRMED.

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


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    Norman HAMILTON and Diane Hamilton v. DUERINGER CORPORATION et al.
    Civ. 1730.
    Court of Civil Appeals of Alabama.
    May 9, 1979.
    R. Howell Dean, Montgomery, for appellant.
   HOLMES, Judge.

Plaintiff-appellant appeals from an order of the trial court granting a new trial. The dispositive issue on appeal is whether the trial court erred to reversal in granting the new trial. We find that it did not and affirm.

The record reveals the following: The plaintiff, a homeowner, entered into a written contract with defendant that defendant construct a swimming pool on plaintiff’s residential lot. The pool was completed in April of 1976. Shortly after construction, the pool began leaking and a number of defects were discovered. Most of the defects were repaired at no charge to plaintiff. In the fall of 1977, plaintiff noticed a number of spots or blisters had begun to appear on the fiberglass sides of the pool. Plaintiff notified defendant of these blisters, but no action was taken by defendant to repair them.

Plaintiff then brought the instant action based on the express warranty of the installation contract that defendant would repair any defects occurring within one year of installation which were due to defective materials or workmanship. The jury returned a verdict for plaintiff for $6,800 and defendant moved for a new trial. The trial court granted the new trial but did not state the grounds.

We review the trial court’s order granting a new trial under the following principles: 1) the grant of a new trial is a matter within the discretion of the trial court and is presumed correct; 2) where no grounds for the order are stated, it is presumed that the grounds are that the verdict was contrary to the preponderance of the evidence or that the verdict was unjust in light of the evidence; and therefore 3) if the evidence is in conflict and the appellate court cannot say that the great weight of the evidence plainly and palpably supports the verdict, then the grant of a new trial should not be disturbed. Hubbard Bros. Constr. Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

No good purpose would be served by setting out all the evidence' here. Suffice it to say that the evidence was in conflict as to whether defendant was liable under the warranty of materials and workmanship. There was testimony by a former employee of defendant that the blistering of the fiberglass, the principal defect complained of by plaintiff, was caused by defendant’s poor workmanship and would eventually cause the pool to leak. There was also testimony that the pool was leaking at the time of trial. However, on the other side, there was no evidence which directly indicated that the pool leakage was the fault of defendant. There was testimony by an employee of defendant that the blistering of the fiberglass was something that occurred occasionally with that type of pool, that the cause of the blistering was unknown but that was not due to poor workmanship or materials, and that the blistering was solely a cosmetic imperfection and did not in any way affect the structural integrity of the pool. Finally, there was testimony that the blisters first began appearing after the one-year warranty period had expired.

Such a conflict does not allow this court to say that the verdict is plainly supported by a preponderance of the evidence. Hence, under our law the order granting a new trial cannot be overturned.

The case is due to be affirmed.

AFFIRMED.

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


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    Linda S. Ramsey TOLES v. COOK AND SONS LUMBER CO., INC.
    Civ. 1737.
    Court of Civil Appeals of Alabama.
    May 9, 1979.

      J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
    Michael D. Cook, Lanett, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff, Cook and Sons, recovered of defendant, Ms. Linda Ramsey Toles, a judgment in the amount of $1,667.82, representing the value of materials allegedly sold to defendant by plaintiff. Defendant appeals. We affirm.

Defendant contracted with Henry Bailey to build a room onto her house and to make other repairs. Defendant agreed to pay Bailey $5,200, and Bailey was to “furnish all labor and material.” After receiving part payment from the defendant with the work still uncompleted, Bailey abandoned the job. Defendant executed a new contract to complete the work.

Plaintiff provided materials to Bailey and charged them to the “Henry Bailey — Ramsey job.” When Bailey left the defendant’s job unfinished, plaintiff filed a complaint against defendant to establish a lien on her property for the value of the materials charged out to the “Ramsey job.” Defendant filed a third-party action against Bailey. Defendant obtained a default judgment against Bailey in the amount of $4,525, which she had been unable to collect.

At trial, plaintiff’s employee testified that defendant came into plaintiff’s business and stated that Bailey would be doing some work for her. Defendant allegedly said that if plaintiff would let Bailey have the material, she [defendant] would stand good for it. The invoices were made out to “Henry Bailey — Ramsey job.” The employee testified that the materials were “sold to Bailey with defendant guaranteeing payment.” She stated Bailey’s credit was no good with plaintiff and that they primarily looked to defendant for payment.

After that testimony, defendant moved to dismiss on the ground that the evidence showed that the materials were not furnished to defendant, but to Bailey; and that her liability, if at all, would have to be based on a guarantee and not on the lien statute. Furthermore, since plaintiff’s complaint did not allege a contract with defendant, defendant argued that the case should be dismissed without a finding for plaintiff on the guaranty theory. The trial court granted defendant’s motion, concerning the establishment of the lien, but on the court’s own motion and over defendant’s objection, the plaintiff was allowed to amend its complaint to charge defendant’s liability under a theory of guaranty or primary liability for the debt.

Defendant was called as an adverse witness by plaintiff. She testified that she never had any agreement with the plaintiff as to whether she or Bailey would be responsible for the debt. However, she stated that it was her understanding that Bailey would be responsible for all material costs as evidenced by her contract with him. Without findings of fact, the trial court rendered judgment in favor of plaintiff against defendant for $1,667.82, the full amount of the debt.

On appeal defendant argues that the evidence does not support a judgment against her as a primary debtor or as a guarantor of Bailey’s debt. She also contends that the trial court abused its discretion by allowing plaintiff to amend its complaint without giving defendant adequate time to prepare a defense to the amended complaint.

We feel it unnecessary to address defendant’s contentions regarding an absence of liability for the debt as guarantor, because the evidence was sufficient before the trial court to find the defendant primarily liable for the debt to plaintiff. It was held in the case of Scott v. Myatt, 24 Ala. 489, 60 Am.Dec. 485 (1854) that a letter in which the writer states that if his correspondent will fill the order of another, the writer will be responsible, is an original promise and not a guaranty. An original agreement to be responsible for goods is not affected by the fact that the goods are delivered directly to another corporation, or that the goods are charged on the seller’s books to that corporation receiving the goods. J. Zimmern’s Co. v. Granade, 212 Ala. 172, 102 So. 210 (1924). In order to determine whether a promise is collateral, and thus within the statute of frauds, or original and not within the statute, a determination must be made as to whom the credit is actually given. If the credit is given solely to the promisor, although the goods are delivered to another, then the promise is original and not one of guaranty and not within the Statute of Frauds. Day v. Adcock, 11 Ala.App. 471, 66 So. 911 (1914). The question of to whom the credit was actually given is one of fact to be determined by the trier of fact. Day v. Adcock, supra.

The evidence below showed that the plaintiff had no dealings with Bailey other than to deliver the materials to him for defendant’s job. Plaintiff’s employee testified that Bailey had no credit with the plaintiff other than upon defendant’s request. Defendant made partial payment on the account with plaintiff and objected to certain charges made by plaintiff. We find there was adequate evidence before the trial court for it to determine that credit was extended solely to the defendant by plaintiff, and that the defendant was primarily liable to plaintiff for the debt.

Defendant’s contention that the trial court abused its discretion by allowing the amended pleading is not well taken. ARCP 15(b) provides in part:

“If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The court is to be liberal in granting permission to amend when justice so requires.”

The Committee Comments to Rule 15 state that if an objecting party can show prejudice, the court may grant a continuance; however, refusal to allow amendment can only be justified where the amendment and evidence will not assist in reaching the merits of an action. Robbins v. Jordan, 86 U.S.App.D.C. 304, 181 F.2d 793 (1950). Although the trial court in the present case could have granted a continuance to defendant, one was not requested, and the trial court cannot be put in error unless the matter complained about is called to its attention by objection or other appropriate method. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972).

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    DEPARTMENT OF INDUSTRIAL RELATIONS and Moman’s Optical Dispensary v. Judith S. LYNCH.
    Civ. 1744.
    Court of Civil Appeals of Alabama.
    May 9, 1979.
    George C. Cocoris, Gen. Counsel and Craig A. Donley, Asst. Gen. Counsel, for Dept, of Industrial Relations, State of Alabama.
    James F. Hinton, Gadsden, for appellee.
   BRADLEY, Judge.

This is an unemployment compensation case.

In December 1975 claimant was employed to work for Moman’s Optical Dispensary in Gadsden, Alabama by Mrs. Juanita Moman. At the time of her employment, claimant testified that she was told by Mrs. Moman that she would be paid a weekly wage of $150, that she would receive a raise in salary at the end of three months, and that she would receive another salary increase at the end of six months. She was also told that when the business became a profit making venture, she would receive eight percent of the net profit.

Claimant testified the business prospered and she received the increases in salary as promised; but, upon inquiry of Mrs. Mo-man, after about five months on the job, as to when she would receive the eight percent of net profit she had been promised at the beginning of her employment, claimant testified that she was told by Mrs. Moman there was no such agreement. The next day, so claimant testified, Mrs. Moman reported to her that the agreement was “a” percentage of the profits, not eight percent. Shortly after being told by Mrs. Moman that the profit sharing arrangement was a percentage rather than eight percent, as she had originally understood, claimant quit her job without notice.

Mrs. Moman testified that she agreed to give claimant a percentage of the profit at the end of each year, but denied that she agreed to give claimant eight percent of the profits each year. Upon being asked what amount of profits she meant by “a” percentage of the profits, Mrs. Moman replied that as the business grew, claimant would grow; that claimant would share in the profits of the business. She never told claimant what “a” percentage of the profits meant.

After claimant terminated her employment at Moman’s Optical Dispensary, she applied for unemployment compensation benefits. Her request was denied, and she appealed to the Circuit Court of Etowah County. After a de novo hearing the trial court found for claimant on the ground that she had left her employment for good cause, that she was not disqualified from receiving benefits, and that she had been available for work during the period for which she was entitled to benefits. The Department appeals.

Appellant argues that the trial court erred in finding that claimant had met her burden of proving that she had good cause to quit her job. Claimant replies that she did meet the burden cast upon her to prove that she quit her job for good cause, the good cause being the failure and refusal of her former employer to honor the agreement for her to receive eight percent of the annual net profits of the business.

Section 25-4-78, Code of Alabama 1975, provides in part:

An individual shall be disqualified for total or partial unemployment:
(2) VOLUNTARY DEPARTURE FROM WORK. — If he has left his most recent bona fide work voluntarily without good cause connected with such work.

The phrase “good cause” as used in § 25-4-78 has been defined as, “substantial reason; just ground for such action; adequate excuse that will bear the test of reason; and always the element of good faith.” Dwight Mfg. Co. v. Long, 36 Ala. App. 387, 56 So.2d 685 (1952).

It is admitted by claimant that she voluntarily quit her job; therefore the burden falls on her to convince the court that she had good cause connected with her work for so leaving.

The following statement appearing in 81 C.J.S. Social Security § 232 (1977) was quoted with approval in Alabama Textile Products Corporation v. Rodgers, 38 Ala.App. 206, 82 So.2d 267, cert. den. 263 Ala. 698, 82 So.2d 270 (1955):

“ ‘A substantial reduction in earnings is generally regarded as good cause for leaving one’s employment, and, hence, one who leaves for such reason is not disqualified for unemployment compensation on the ground of leaving his work voluntarily without good cause; but in this connection the surrounding circumstances should be considered in determining whether a particular reduction in pay constitutes good cause for leaving one’s employment.’ ”

In the case at bar the evidence showed that claimant contended that she had been promised eight percent of the annual net profits of the business in addition to weekly salary and periodic raises. She stated that based on her selling experience in the optical glass business and based on the quick growth of Moman’s Optical Dispensary, her share of the profits figured at eight percent per annum would be worth between $2,000 and $5,000. She stated this was the incentive for leaving Pearl Vision, where she was making $145 per week plus a commission on glasses sold, to go to work for Moman’s Optical Dispensary.

When a case is heard orally before the court sitting without a jury, the court’s findings are presumed correct unless it is shown to be clearly contrary to the great weight of the evidence. Department of Industrial Relations v. Jaco, Ala.Civ.App., 337 So.2d 374 (1976).

Here, the trial court heard and saw the witnesses testify, and it was for the court to say whether the claimant had sustained the burden cast upon her to prove that she had good cause for leaving the employ of Moman’s Optical Dispensary. The court found that claimant had good cause for leaving her job, and we cannot say that the great weight of the evidence preponderates against such a finding. We therefore affirm the judgment of the trial court.

AFFIRMED.

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


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    Louie MILLER v. BROWN-FIKES FORD, INC., a corporation.
    Civ. 1749.
    Court of Civil Appeals of Alabama.
    May 9, 1979.
    Bill Fite, Hamilton, for appellant.
    Jerry F. Guyton of Vinson & Guyton, Hamilton, for appellee.
   BRADLEY, Judge.

In this contract case Miller, the defendant below, raises three issues on appeal: (1) whether there is sufficient evidence to sustain the judgment or whether it is contrary to the evidence; (2) whether the oral contract for the purchase of a skidder is enforceable; and (3) whether the oral contract should be enforced because of Code of Alabama 1975, § 5-19-16 dealing with unconscionable contracts.

The judgment reveals Miller was ordered to pay Brown-Fikes Ford, Inc., the plaintiff below (hereinafter Brown-Fikes), the sum of $1,651.89 together with costs.

Brown-Fikes filed a complaint consisting of four counts. It alleged Miller owed $2,000 due by open account; Miller owed $2,000 on account stated; Miller owed $2,000 for goods sold and delivered by Brown-Fikes on April 7, 1975; and Miller owed $2,000 on a retail installment contract entered into on April 7, 1975 on which he failed to make payment. Miller answered the allegations in the complaint by stating the complaint failed to state a claim upon which relief can be granted, pleading the general issue, and denying each and every allegation.

The trial court conducted an ore tenus hearing and entered a judgment for Brown-Fikes. Miller filed a motion for a new trial on August 8, 1978, and it was deemed denied pursuant to Rule 59.1, ARCP.

The record reveals the following pertinent facts:

Brown-Fikes and Miller entered into a retail installment contract on April 7, 1975. This agreement was described as in the “nature of a loan.” A 1972 LTD owned by Miller was put up as security for $2,200 less a $650 down payment, which difference came to $1,550, the total amount financed. Brown-Fikes assigned the agreement to Ford Motor Credit for $1,749.06 shortly after April 7, 1975. After Ford Motor Credit purchased the agreement, the agreement became delinquent and Ford Motor Credit assigned the agreement back to Brown-Fikes. Evidence showed two $97.17 payments made to Ford Motor Credit on the account of Miller. One was made on June 16, 1975 and the other on July 1, 1975. Late charges were assessed on May 19, 1975, June 17, 1975 and July 17, 1975. The account was paid off by Brown-Fikes on August 26, 1975 in the amount of $1,466.98. Both of the $97.17 payments were made directly by Brown-Fikes to Ford Motor Credit. Jim Brown, the owner of Brown-Fikes, testified that on occasion Brown-Fikes paid on an account if the customer defaulted. He further testified the first $97.17 payment was actually paid to Brown-Fikes by Miller and Brown-Fikes sent in its own company check for the payment a few days after Miller paid. Miller testified he did not remember making the payment. However, one exhibit indicates Brown-Fikes received $97.17 on June 11, 1975 from Miller. The reason for payment does not appear on the exhibit.

The evidence indicates that Brown-Fikes received a check from Ford Motor Credit in the amount of $1,550 after it assigned the agreement to Ford Motor Credit. It is undisputed that Miller never received the $1,550 personally. Jim Brown testified he and Miller entered into an oral contract for the sale of a truck and skidder and they agreed Miller would use the $1,550 as a down payment on the skidder. Miller disagreed and said there was never any oral agreement to that effect. He claims he asked Brown for the $1,550 to operate on and not to use as a down payment on the skidder. Miller claims he agreed to make payments on the skidder of $260 per month for its use. If he decided to keep the skid-der, the agreement was to make the payments and pay it off. Miller understood the skidder belonged to Jim Brown and his father; however, Jim Brown claims it belonged to his father alone. A check, made payable to Jim Brown, dated December 21, 1974 in the amount of $3,774.07 was introduced into evidence. Miller testified the check was final payment for the truck which he understood was priced around $3,700. Brown made an educated guess that the check was for payment on the truck; however, he was unsure, as Miller had made many payments to Brown over the years for different purchases.

The testimony is in conflict as to the date on which the truck and skidder were to have been purchased. Brown at one point during the hearing testified both were purchased on April 7, 1975. Later Brown said he sold the truck and skidder together in a package deal with two or three days between the purchase of each. Finally, Brown said he really had no idea about the dates of the alleged purchases. Miller claims he purchased the truck and obtained possession of the skidder on December 15, 1974.

Brown-Fikes repossessed the skidder and sold it for $4,500. There was no record of the sale. Miller testified he made about three or four payments on the skidder after December 15, 1974 and Brown repossessed the skidder after he was behind one payment. The exact date of repossession is unclear from the record; although it appears to have been sometime during the period April to June 1975. Brown testified Miller had the skidder approximately six months. He also testified it was possible Miller made payments to his father on the skidder; however, his memory was unclear.

It is apparent from the above summary of the facts that the evidence in this case is conflicting in many respects. The trial court’s finding, based on conflicting evidence, will be accorded the same effect on appeal as jury’s verdict. Williams v. Clark, 45 Ala.App. 478, 232 So.2d 660 (1970); Daniel v. Matthews, 46 Ala.App. 568, 246 So.2d 457 (1971); see 2A Ala.Dig. Appeal & Error <&wkey;931(3). Furthermore, we view the findings as to all questions of fact with a presumption of correctness, and such presumption is strengthened by refusal of the trial court to grant a new trial. Dial v. Graves, Ala.Civ.App., 351 So.2d 598 (1977).

Miller’s next contention is that the oral agreement for the purchase of a skidder is unenforceable because of a failure to comply with the statute of frauds.

Although the asserted defense was directed at count three of the complaint, which states Miller “owes the Plaintiff the sum of Two Thousand and 00/100 Dollars ($2,000.00) for goods sold and delivered by Plaintiff to the Defendant on April 7, 1975,” (the “goods sold and delivered” refers to the oral contract for the sale of the skidder which Brown claimed to have made between Miller and himself), it comes too late.

Rule 8(c), ARCP, requires an affirmative defense such as the statute of frauds to be affirmatively set forth. Miller failed to plead the statute of frauds in either his answer or in his motion for new trial; therefore, the defense is waived. Robinson v. Morse, Ala., 352 So.2d 1355 (1977); e. g. Wineberg v. Park, 321 F.2d 214 (9th Cir. 1963).

Should the defense of the statute of frauds be considered valid, the oral contract would still be enforceable because the transaction in question falls within an exception to the statute of frauds. Section 7-2-201(3)(c), Code of Alabama 1975, provides as follows:

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable:
(c) With respect to goods for which payment has been made and accepted or which have been received and accepted.

The evidence is sufficient to support the conclusion that the skidder was sold to Miller pursuant to an oral agreement and that it was delivered to and accepted by him.

The third issue raised on appeal by Miller, i. e. the oral agreement was an unconscionable contract and therefore should not be enforced, see § 5-19-16, Code of Alabama 1975, will not be considered for the reason that issues not raised in the trial court may not be raised for the first time on appeal. Brown v. Robinson, Ala., 354 So.2d 272 (1978); 2 Ala.Dig. Appeal & Error &wkey;169.

The trial court’s judgment on the merits and its order overruling the motion for new trial are affirmed.

AFFIRMED.

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