author: BRADLEY, Judge.

text:
    Lloyd L. O’DELL, Jr. v. Juanita O’DELL.
    Civ. 663.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1976.

      Jones, Arnold & Baddley, Birmingham, for appellant.
    Denaburg, Schoel, Meyerson & Ogle and Rodney A. Max, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Jefferson County, Tenth Judicial Circuit, denying a former husband’s petition to discontinue alimony.

Appellant and appellee were divorced on May 5, 1972. Appellee was awarded $400.-00 monthly alimony, to continue until such time as appellee remarried. On April 9, 1975 appellant filed this petition, requesting that the alimony be discontinued. The petition set forth as grounds for reduction an allegation that appellee had remarried on or before November 1974, and that ap-pellee was currently living with a man who provided her support and maintenance. It is apparent that the remarriage referred to in the complaint was a common-law marriage appellant intended to prove existed between appellee and Olin Wilson, the man with whom appellee was alleged to be living.

Appellee answered, denying the allegations of the complaint and counterclaiming for $1,200 alimony overdue and unpaid.

The matter was heard ore tenus on June 24, 1975, and the trial court issued its decree denying the reduction of alimony and ordering appellant to pay to appellee $1,200 arrearage and $500 attorney’s fees.

On appeal appellant argues that he is being compelled to pay alimony to support his former wife in idleness and immorality, and, furthermore, that his wife’s cohabitation with Wilson amounts to a common-law marriage, automatically terminating alimony. We disagree and affirm the trial court.

The original determination of the amount of an allowance for alimony lies within the discretion of the trial court:

“There is no fixed rule for the determination of the amount of alimony. The amount to be awarded depends upon all the relevant circumstances, in the light of which it must be just and reasonable. [Citation omitted.] These elements are not susceptible of proper enumeration since the court in the exercise of its discretion may and should select or emphasize certain ones appropriate to the facts of the particular case, and since regardless of how exhaustive a list of such factors may be additional ones are constantly making their appearance. [Citation omitted.]” Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89.

However, where a decree has set an allowance for alimony, the court will not modify the amount except upon proof of changed conditions which justify the modification, and then only to the extent of such changed conditions, Block v. Block, 281 Ala. 214, 201 So.2d 51. Although Garlington cautions us to remember that no enumeration can be exhaustive, there is an often-quoted recital of factors to be taken into account by the trial court in its inquiry relevant to modification of alimony:

“ . . . [T]he court may and should inquire into the earning ability of the parties and their probable future prospects, their age, sex, health and station in life; the duration of the marriage, the conduct of the parties with particular reference to the cause of the divorce. . . . ” Block v. Block, supra.

This list discloses two clearly discernible types of circumstances the trial court must concern itself with in exercising its discretion.

First, the court must not lose sight of certain unchanging factors such as the du-ation of the marriage, Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348. In a modification proceeding, the consideration of such factors is necessary to give the equity court a realistic perspective on the alimonial scheme of the former decree, and to limit its exercise of discretion to dimensions appropriate in light of the qualities of the marriage enjoyed by the parties prior to divorce. In virtually every case, however, these considerations would have been fully accounted for in the original decree, Hutton v. Hutton, supra.

On the other hand, the court must be principally concerned with the crucial issue of whether or not there has been a material change in the circumstances of the parties since the entry of the former decree. We are persuaded that the overwhelming weight of Alabama authority is to the effect that changed circumstances in this context means changed financial circumstances.

It has been held that the movant for modification has the burden of showing changed financial circumstances, Brumlow v. Brumlow, 282 Ala. 170, 209 So.2d 849; where there is an absence of evidence as to the financial status of one party, a modification decree cannot be supported, Block v. Block, supra; and where a movant’s testimony admits that no financial change has occurred, refusal to modify is proper, Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797.

Furthermore, it has been reiterated in several cases that the changed health of a party — one of the traditionally enumerated factors for inquiry — justifies a modification in alimony only where it has resulted in an evidenced change in financial condition, Steele v. Steele, 277 Ala. 13, 166 So.2d 790; Whittle v. Whittle, 272 Ala. 32, 128 So.2d 92; Young v. Young, 262 Ala. 254, 78 So.2d 265. The sound reasoning of this line of cases is equally applicable to every factual condition which might be asserted as changed circumstances: the proper basis for the trial court’s exercise of its discretion in alimony modification proceedings is the financial significance of the proofs before it, Morgan v. Morgan, 203 Ala. 516, 84 So. 754.

It is clear from the record that the primary thrust of appellant’s case was not directed toward a financial analysis of the evidence. The direct financial evidence offered by appellant was minimal and controverted by appellee; appellee and Wilson admitted that on occasion Wilson would spend the night at appellee’s apartment, and that there had been instances of sexual intercourse between them. They denied that Wilson lived at her apartment continuously or that he supported her: ap-pellee works as a waitress to supplement her income from alimony. Although the economics of a particular romantic arrangement might submit to discovery and reveal some evidence of a changed financial status for the exspouse involved, post-divorce sexual conduct is not of itself relevant evidence of changed financial circumstances affecting the amount of alimony. The trial court acted within its discretion in denying modification based on this evidence, Hartsfield v. Hartsfield, 261 Ala. 386, 74 So.2d 420.

Nor is there merit in appellant’s argument that the rule allowing reduction of alimony pendente lite upon proof of wife’s sexual misconduct, Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591; Robertson v. Robertson, 213 Ala. 114, 104 So. 27, should be extended to the present facts. The crucial distinction is that alimony pendente lite is awarded prior to the dissolution of marriage, whereas, in the instant case, there is no marital relationship remaining, and thus no marital obligation of the wife to the ex-husband.

It is also clear that appellant did not establish that a common-law marriage existed between his former spouse and Olin Wilson.

A valid common-law marriage must rest on the mutual consent of the parties to it: a mutual agreement to be husband and wife followed by cohabitation and living together as husband and wife, Tartt v. Negus, 127 Ala. 301, 28 So. 713; Moore v. Heineke, 119 Ala. 627, 24 So. 374. Above all else, it is the intention of the couple to become husband and wife which must be established: “parties may eat, live, and sleep together as mistress and keeper without any intention of entering into marriage,” Topper v. Perry, 197 Mo. 531, 95 S.W. 203. Evidence may present objective manifestations from which such intentions may be inferred, Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822. In the instant case the evidence does not require reversal of the trial court.

The evidence of occasional cohabitation merely establishes that Wilson and appellee stayed together at her home both night and day. This, without more, establishes only a meretricious and not a matrimonial cohabitation, Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485.

The admitted fact of sexual intercourse does not per se prove the existence of a common-law marriage:

“ ‘If intercourse between persons of opposite sex was illicit in its inception because of their failure to enter into a marriage by ceremony or by agreement, it is presumed to continue so, and the burden of proving a subsequent intermarriage rests on the party asserting it.’ ” Gilbreath v. Lewis, supra.

Nor is this result changed by the evidence of an isolated incident in which Wilson, giving an account of himself to a police officer, referred to appellee as his “wife”. The repute of a common-law marriage among friends, associates, acquaintances of the parties, etc., is evidence of a persuasive not a conclusive nature, Maryland v. Baldwin, supra. We therefore grant the usual presumption of correctness with which the findings of a trial judge hearing evidence ore tenus are favored, Strickland v. Strickland, 285 Ala. 693, 235 So.2d 833. Moreover,, this single instance is insufficient to show a consensual repute of common-law marriage: it is noteworthy that appellee was out of earshot when the statement was made, and never ratified Wilson’s reference to her. Marriage must be based on mutual assent; we see no evidence that appellee ever knowingly allowed herself to be referred to as Wilson’s wife.

Appellee has requested that appellant be compelled to pay her attorney’s fees incurred on this appeal. It is within our discretion to award reasonable appellate attorney’s fees in a case such as this one, Davis v. Davis, 274 Ala. 277, 147 So. 2d 828. Due to the outcome of the case and other factors we consider $350 to be a reasonable fee due appellee’s attorney for services rendered on appeal. It is ordered that appellant pay this amount.

There being no error in the proceedings below, the decree of the trial court is affirmed.

Attorney’s fee granted.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Peggy Jean MARONEY v. LIBERTY LOAN CORPORATION, a corporation.
    Civ. 651.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1976.
    Philip A. Geddes, Huntsville, for appellant.
    None for appellee.
   BRADLEY, Judge.

Peggy Jean Maroney filed an action in the Circuit Court of Madison County against Liberty Loan Corporation, a corporation, seeking damages in the amount of $813.68, plus costs and reasonable attorney’s fee. The complaint alleged that she entered into a loan agreement with Liberty Loan to borrow a certain amount of money and said agreement failed to comply with the Federal Truth in Lending Act, 15 U.S. C., and Regulation Z promulgated pursuant thereto. Liberty Loan answered by denying the allegations and counterclaimed for the balance due on the loan contract. A pre-trial conference was held and the court ordered that a single interrogatory be submitted to the jury for it to decide whether “. . . Block D, ‘Annual Percentage Rate’ of the ‘Combined Statement, Note, Security Agreement, Disbursement Schedule and Election as to Insurance Pertaining to a Loan,’ which is attached to Defendant’s Counterclaim and marked as ‘Exhibit A,’ was filled in at the time the Plaintiff signed the said combined statement,” and that all other issues would be resolved by the court after verdict by the jury on the special interrogatory. Jury trial on special interrogatory was held on September 11, 1974. Liberty Loan, at the close of Mrs. Maroney’s case in chief, moved for a directed verdict. Trial court denied the motion. Liberty Loan then rested and refiled its motion for directed verdict. Trial court again denied the motion and submitted the question to the jury. The jury returned a verdict as follows:

“We, the jury, find that Block D of plaintiff’s exhibit was not filled in at the time, or before the consummation of the loan to the plaintiff on December 5, 1972. Roy Williamson, as foreman.”

On September 12, 1974 judgment was entered by the court in conformity with the verdict. On February 27, 1975 Liberty Loan filed a motion for judgment notwithstanding the verdict. After hearing, the court issued an order setting aside the verdict on the special interrogatory and entered judgment n.o.v. in favor of Liberty Loan. By express statement in the order, all other issues were reserved for decision by the court. Appeal was filed from the order granting the judgment n.o.v.

The facts show that Mrs. Maroney and her former husband, Wiley Maroney, entered into a loan agreement with Liberty Loan to borrow a certain amount of money. The copy of the agreement received by the Maroneys and introduced into evidence as Plaintiff’s Exhibit 1, failed to contain a recital of the rate of interest being charged in the loan in Block D of the written contract. Block D of the contract provided for insertion of the “(D) ANNUAL PERCENTAGE RATE Plaintiff’s Exhibit 1 was signed by Mrs. Maroney but was not signed by Mr. Maro-ney.

Defendant’s Exhibit 1, which was the original loan agreement, also introduced by plaintiff with the consent of defendant’s counsel revealed that both Maroneys had signed it. Defendant’s Exhibit 1 also contained the numerals “20.11%” in Block D.

Both Maroneys testified that Block D was not filled in when they signed the original agreement. They also stated that Block D of their copy of the loan agreement was blank. There was no evidence for Liberty Loan.

Mrs. Maroney argues in brief that the trial court erred in setting aside the jury verdict and judgment entered thereon in favor of her and then entering a judgment n.o.v. in favor of Liberty Loan. In support of her contention, Mrs. Maroney says that the trial court could enter judgment n.o.v. only if it could have granted Liberty Loan’s motion for directed verdict at the close of all the evidence, and that the motion for judgment n.o.v. came too late.

This court is of the opinion it cannot reach the arguments propounded by appellant. The judgment entered after the jury verdict on the special interrogatory is incomplete. It is not a judgment that will support an appeal.

Mrs. Maroney’s claim for damages was based on five alleged violations of the Truth in Lending Act and Regulation Z. Any one of these — if found to be true— would authorize the award of statutory damages, i. e., twice the amount of $406.84, which is alleged to be the actual amount of finance charges; plus costs and reasonable attorney’s fee. The special interrogatory submitted to the jury for resolution one of the alleged violations — failure to place an annual percentage rate in the agreement at time it was signed. The verdict answered this factual issue. The “judgment” entered thereon merely confirmed the jury’s finding; it did not award damages, costs, or attorney’s fee as requested in the complaint. In fact the judgment specifically reserved all other issues for action by the court.

In this posture, the plaintiff’s claim had not been adjudicated. Rule 54(a), ARCP, provides that a judgment includes a decree and any order from which an appeal lies. The Alabama cases decided before the adoption of the ARCP held that a judgment is not final unless it disposes of the whole subject, gives all the relief contemplated and leaves nothing to be done save superintend execution. Ex parte Jonas, 186 Ala. 567, 64 So. 960; Pake v. Leinkauf Banking Co., 186 Ala. 307, 65 So. 139. The judgment entered by the court in this case did not give all the relief contemplated, did not dispose of the whole subject, and left a great deal to be done other than superintend the execution. The judgment entered on the verdict did not determine the actual amount of interest charged; it did not decide what if any damages were due Mrs. Maroney; and it did not decide the question of attorney’s fee. If, in addition to affirming the jury’s finding on the special interrogatory, the judgment had also decided these other matters, it would have been final as to Mrs. Maroney’s claim and would have been appealable by virtue of the provisions of Title 7, Section 754, Code of Alabama 1940, as Recompiled 1958. Moreover, had the trial court specifically directed that judgment be entered on less than all the claims and rights of the parties, and made an express determination that there was no just reason for delay, then the limited judgment entered thereon would have been final within the purview of Rule 54(b), ARCP. No such express findings appearing in the record, the judgment is not final and will not support appeal, Cates v. Bush, Ala., 307 So.2d 6.

The judgment entered pursuant to the jury verdict is not final; such a judgment will not support an appeal. The appeal in this case must, therefore, be dismissed.

Appeal dismissed.

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


text:
    BLUE CROSS AND BLUE SHIELD OF ALABAMA, a corporation v. Ellen BOWEN.
    Civ. 672.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1976.

      Lawrence B. Clark, Birmingham, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment against Blue Cross and Blue Shield of Alabama, a Corporation, hereinafter referred to as Blue Cross, in the amount of $2,727.-35 and costs, rendered by the Circuit Court of Tallapoosa County.

The evidence discloses the following:

On September 21, 1968 Mrs. Ellen Bowen, appellee here, applied for group hospital, medical, and surgical benefits insurance with Blue Cross. Her husband, Omer Bowen, was listed within the coverage as the spouse of the applicant. Several children were also listed as dependents of the applicant.

Mrs. Bowen, her spouse, and dependent children were accepted by appellant for hospital, medical and surgical benefits insurance coverage effective October 1, 1968.

At all times relevant to this suit, Omer Bowen, the husband of appellee, was the named insured (as distinguished from a spouse or other eligible dependent) on a group hospital, medical and surgical benefits insurance policy written by the Jefferson County, Alabama and Vicinity Carpenters District Council Health and Welfare Fund (hereinafter referred to as “The Fund”.) The premium for this insurance was paid by Omer Bowen’s employer as a part of the benefits agreed to in collective bargaining negotiations between the employer and Mr. Bowen’s union. Eligibility for coverage under The Fund’s policy depends upon the number of hours each union member works during each quarter. This policy of insurance does not have any “coordination of benefits” provision.

On August 13, 1974 Omer Bowen was admitted to Montgomery Baptist Hospital where he remained until his discharge on September 6, 1974. He was treated for a prepyloric autral ulcer with obstruction and underwent surgery during that stay. Appellee and her husband told the Montgomery Baptist Hospital insurance or admitting clerk that they had insurance with both The Fund and with the appellant.

The total cost of the medical treatments incurred during that stay is $3,882.75. Blue Cross paid Montgomery Baptist Hospital $3,178.75; The Fund paid the hospital $3,573.64.

On October 25, 1974, at the same time Blue Cross approved payment to the Montgomery Baptist Hospital, it mailed to Mrs. Bowen an inquiry requesting information on other group insurance coverage available for Mr. Bowen’s hospitalization. Following receipt of this inquiry, on a date unknown, Mrs. Bowén answered and returned that inquiry to appellant along with a letterhead of The Fund.

Following receipt of this information, on December 16, 1974, appellant sent a “medical expense insurance duplicate coverage inquiry” to The Fund. That inquiry was answered by The Fund on December 17. The answer listed insurance benefits provided by The Fund for Mr. Bowen’s hospitalization. After receiving The Fund’s response, on December 18, 1974, Blue Cross mailed coordination of benefits advisory letter to appellee and the Montgomery Baptist Hospital. Blue Cross claimed a refund from Mrs. Bowen of Three Hundred Nineteen and 88/100 Dollars ($319.88), and a refund from the hospital of Two Thousand Three Hundred Two and 43/100 Dollars ($2,302.43). Blue Cross never obtained its refund from the hospital or from appellee. On December 27, 1974 Mrs. Bowen filed this suit seeking a $3,800 judgment against appellant.

The Blue Cross contract with Mrs. Bowen provides that Blue Cross has no obligation to pay for benefits provided under another group plan if that other group plan is the “primary plan”, and there is further provision for determining which plan is primary. Section V.12(a) of the Hospital Service Certificate portion of the contract issued by Blue Cross provides that the plan other than Blue Cross will be the primary plan “[i]f the other plan does not include a coordination of benefits or non-duplication provision, ...” Section V.12(d) of that same portion of the Blue Cross contract specifically gives Blue Cross the right to recover any payments it has previously made when benefits are also provided by a group plan which has primary coverage:

“If it is determined that benefits under this Contract should have been reduced because of benefits provided under another group plan, the Corporation [Blue Cross] will have the right to recover any payment already made which is in excess of its liability. ...”

Departmental Regulation 56 adopted by the Alabama Commissioner of Insurance dealing with coordination of benefits among group health insurance companies became effective on September 1, 1974, during Omer Bowen’s hospitalization.

On March 24, 1975 the trial court issued an order stating:

“The Court is of the opinion that the only basis of claim by the Plaintiff in this cause is possibly waiver by the defendant of the defense of payment by the primary group carrier. The waiver would depend on whether the defendant paid for the hospitalization after receiving the written response to the inquiry concerning other coverage which is Exhibits 8 and 9. In this regard, the stipulation of facts states that the date of receipt of Exhibits 8 and 9 by the defendant is unknown and that payment was authorized prior to receipt of notice.
“The case is reopened for additional evidence to clear up the point concerning notice and to receive any other evidence the parties may want to introduce. This may be done by affidavits or orally before the Court at the option of the parties.”

On June 18, 1975 the trial court entered judgment for Mrs. Bowen.

At one point there was confusion as to whether or not any oral testimony was heard. However, as a result of the trial court’s order of December 1, 1975, it is established that this case was submitted entirely on stipulations, affidavits, and exhibits. Therefore, it is the province of the appeals court to tender a judgment on the evidence, McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163. This evidence is insufficient to make out a case of waiver or es-toppel against Blue Cross. The judgment below is reversed. There is no direct evidence that Blue Cross had notice or knowledge at the time it paid the instant claim that, under the . provisions of appellee’s contract, another insurer was primarily liable on the claim. Such prior knowledge would be essential to a finding of waiver, Spivy-Johnson Portrait Co. v. Belt Automobile Indemnity Ass’n, 210 Ala. 681, 99 So. 80.

There is a conflict in the evidence regarding the date appellee might have mailed its reply to Blue Cross’ coordination of benefits letter. However, resolving this conflict either way would not determine the notice question. Granted, upon receipt of that reply letter from appellee, Blue Cross would have had notice that another insurer existed. But that letter did not contain facts essential for the determination of primary and secondary liability. It is undisputed from the evidence that this necessary information was received by Blue Cross, subsequent to their own inquiry, no earlier than December 17, sometime after appellant had made its payments to the hospital. Thus, Blue Cross did not have knowledge of the facts necessary to decide it was only a secondary insurer until after it had already paid as a primary insurer. This cannot support a waiver of the right to a refund.

In the instance of coordination of benefits, it is not proper for an insurer to withhold payment of claims while a prompt, good-faith determination of its primary or secondary status continues. Regulation 56 provides:

“ . . . Occasionally, this [delay in determination] will necessitate a carrier making payment as the primary carrier with a right of recovery in the event that subseqeunt investigation proves that payment as a secondary carrier should have been made.”

Accordingly, the regulation further provides :

“Whenever payments have been made by the insurer with respect to Allowable Expenses in a total amount, at any time, in excess of the maximum amount of payment necessary at that time to satisfy the intent of this provision, the insurer or service plan shall have the right to recover such payments, to the extent of such excess, . . . . ”

Regarding the sequence of payment and determination, it is not material that appel-lee’s claim accrued prior to the effective date of the regulation because appellee is neither involved in nor prejudiced by the payment process: payments were made directly by Blue Cross to Montgomery Baptist Hospital. Because the regulation was effective prior to the date of payment, and because the payment was hastened rather than delayed thereby, Blue Cross was correct in following Regulation 56.

Thus the evidence in this case shows that Blue Cross was complying with regulations in paying Montgomery Baptist Hospital while its inquiry to determine its liability continued. This is no waiver. Hence, the judgment below is reversed and the cause remanded to the trial court for the entry of a judgment in favor of defendant, Blue Cross and Blue Shield of Alabama, a Corporation.

Reversed and remanded.

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


author: HOLMES, Judge. WRIGHT, Presiding Judge

text:
    Ruby GRANT v. J. M. GRANT.
    Civ. 673.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1976.
    Alice L. Anderson, Enterprise, for appellant.
    Cassady & Fuller, Enterprise, for ap-pellee.
   HOLMES, Judge.

This is an appeal from the granting of a motion to dismiss a complaint.

While it is the policy of this court and the spirit of ARAP to reach the merits of an appeal wherever possible, we cannot so do in this instance.

Rule 28(a)(2) of ARAP provides that the brief of appellant shall contain under appropriate headings and in the order here indicated:

“(2) A statement of the case (The statement shall first indicate briefly the nature of the case, the course of proceedings and its disposition in the court below)

Rule 28(a) (5) provides:

“(5) An argument (The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on); . . .”

Appellant’s brief contains no statement of the case. The argument section in its entirety is as follows:

“The facts are plain as follows:
“Mrs. Grant prior to Civil Case No. 20 in this Honorable Court and down to the present time has been a large portion of the time very distrubed [sic] and very ill both physically and mentally.
“During this same period to [sic] time Mr. J. M. Grant the appellee, has practiced consistent deceit and fraud upon the courts. However, the mental condition of Mrs. Grant and the apt concealment of this fraud by Mr. Grant has placed Mrs. Grant in an unfortunate position with the courts.
“In cases of serious illness such as Mrs. Grant’s laches will not run against her under the circumstances set forth in her petition and transcript herein. (Cunningham v. Wood [224 Ala. 288], 140 So. 351, and 1940 Code of Alabama, Title 7 Sec. 42.)
“In cases of this type Alabama has not abandoned the remedies available in a bill of review, a bill in the nature of a bill of review or an independent action. {Rule 60 and Rule 60(b) ARCP and Hadden vs. Rumsey Products [2 Cir.], 196 F{2nd) 92.)
“The Court should not have 'dismissed this cause but transferred it to an impartial tribunal for consideration as requested.”

We cannot perceive how the above argument relates to the assignments of error and/or issues involved in the appeal. To ascertain the issue or issues involved in this appeal, this court would have to search the record on appeal and then try to determine whether any error was committed by the trial court. Such a burden has not been placed on this court either by the legislature or the supreme court. The duty of presenting civil cases for review in an appellate court in a format prescribed by ARAP still rests with the appealing party and his attorney.

It is clear that appellant has not complied with Rule 28(a)(2) and (5).

Rule 2(a)(2)(D) provides that an appeal may be dismissed when a party fails to comply substantially with these rules. Appellant has so failed. Pursuant to Rule 2(a)(2), this court gave appellant an appropriate time to correct the deficiencies noted above. This has not been done.

Appeal dismissed.

BRADLEY, J., concurs.

WRIGHT, Presiding Judge

(dissenting).

Though counsel for appellant made little conspicuous effort to comply with the rules of appellate procedure in presenting the issues or a brief and argument thereon, even after notice to correct deficiencies, I disagree with my brothers of the court that the appeal should be dismissed. Under the meticulous requirements of the prior rules of the supreme court and the decisions interpreting them, there is no question but that the decision of the majority would have been correct and required. However, applying the spirit of the new rules of appellate procedure, effective December 1, 1975, to the particular situation in this case, dismissal of the appeal for the inadequacies of counsel’s presentation in brief is not appropriate.

The record in this case contains a petition to set aside or review two prior judgments under Rule 60(b) of ARCP, a motion of defendant to dismiss the petition and an order of dismissal. For purposes of consideration, it doesn’t matter whether the pleading filed by plaintiff is designated as a motion to set aside or a bill of review. Either may be filed under Rule 60(b) on the ground of fraud upon the court within three years after entry of the judgment.

The motion to dismiss states two grounds: failure to state a claim upon which relief can be granted and want of jurisdiction to set aside. The motion to dismiss was granted without being set for hearing as required by Rule 78 ARCP. The ground for dismissal is not stated.

Though the petition or motion is ineptly drawn and contains other matter not germaine to fraud, it does allege fraud upon the court which is a ground for setting aside a judgment within three years. Rule 60(b). Thus, the ground in the motion to dismiss that the court lacked jurisdiction to grant relief requested was not valid. Neither of the decrees sought to be set aside were entered more than three years preceding the filing of plaintiff’s petition.

The ground in the motion to dismiss for failure to state a claim upon which relief can be granted comes from Rule 12(b)(6) ARCP. Such ground has been stated to be a “lineal descendant of the common law general demurrer.” 5 Wright & Miller, Federal Practice and Procedure, § 1355, p. 587. Dismissal of a complaint upon such ground should be sparingly granted. International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service, 5 Cir., 400 F.2d 465. It is available usually only when an affirmative defense which is a bar to relief appears on the face of the complaint. Joe E. Freund, Inc. v. Insurance Co. of North America, 5 Cir., 370 F.2d 924. The common law general demurrer had been eliminated from Alabama practice even before enactment of the ARCP.

Even when dismissal is granted upon the ground of failure to state a claim, Rule 78 ARCP grants an automatic right to amend within 10 days of the order of dismissal. Such dismissal cannot be granted without notice and opportunity for oral hearing. Rule 78 ARCP. The record is devoid of either notice, hearing, or waiver thereof.

Though the averments of plaintiff’s petition are prolix, ambiguous and confusing, there is contained therein a charge of fraud upon the court. The allegations of fraud may be insufficient and unprovable in fact; however, such is not ground for dismissal without opportunity to amend. Rule 78 ARCP. It cannot be said that no circumstance of fraud could be shown which would entitle plaintiff to relief.

The majority dismisses the appeal because of the insufficiency of plaintiff’s brief. In this particular case I would not do so. Plaintiff has stated in brief with citation that the court had jurisdiction to entertain her petition and erred in dismissing it. This points to the issue to be determined on appeal, and defendant has answered that issue in brief.

The majority points out that the brief contains no statement of the case. This is true. However, the record of 13 pages contains nothing other than pleadings and orders of the court. It presents no difficulty of examination to determine what transpired below. I do not advocate the abandonment of the responsibility of counsel on appeal to succinctly and correctly present issues and argument. In cases such as this one, I would not dismiss the appeal if the issues are clear from the record and may be considered with little difficulty.

I respectfully dissent from the opinion of my brothers on the court. I would reverse and remand for notice and hearing on the motion to dismiss, with opportunity to amend by plaintiff if the motion is granted.


author: WRIGHT, Presiding Judge.

text:
    The TENURE COMMISSION of the State of Alabama et al. v. ANNISTON CITY BOARD OF EDUCATION.
    Civ. 692.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1976.

      William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for appellant.
    Merrill, Porch, Doster & Dillon, An-niston, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of a writ of mandamus from the Circuit Court of Calhoun County directing the State Tenure Commission to set aside its judgment setting aside the transfer of a teacher by the Board of Education of the City of Anniston. We reverse.

Eugene Trammell, a teacher with continuing service status, was transferred from a position teaching basic math at An-niston High School to a position teaching math at Cobb Junior High School without loss of status. All procedural requirements for transfer and contest thereof as directed by Title 52, Sections 355 and 356, Code of Alabama (1940), were duly complied with. The reason given by the Board for the transfer was a surplus of math teachers at Anniston High School.

After hearing, Trammell appealed to the State Tenure Commission as provided by Title 52, Section 357, Code of Alabama (1940). After consideration of the record of the hearing by the Board of Education, the Commission found that there was no evidence supporting the reason given for transfer and thus the action of the Board was arbitrarily unjust. The Commission directed the re-instatement of Trammell as a teacher at Anniston High School.

From the order of the Commission, the Board sought writ of mandamus from the Circuit Court to be directed to the Commission as permitted by Title 52, Section 361, Code. The Circuit Court determined the action of the Commission unjust, directing it to set aside its order of re-instatement and to enter an order affirming the order of the Board of Education transferring Trammell. The court in its order directing issuance of the writ of mandamus stated that it was of the opinion that the questions presented in the case had been adequately answered by the opinion of this court in the case of DeCarlo v. Tarrant City Board of Education, 52 Ala.App. 220, 291 So.2d 155. The Tenure Commission appeals.

It appears from the order of the trial court and the brief of the Board that there is a misunderstanding of what we said in DeCarlo. The basis of misunderstanding is clear and we accept the responsibility of clarification.

In DeCarlo, commenting on the differences in Section 355, Title 52, Code of Alabama (1940), pertaining to transfer of teachers and Section 358 of Title 52 pertaining to cancellation of employment contract, we said:

“Transfer does not require cause and is limited only by personal or political reasons or arbitrary unjustness..."

In the same case, we said on rehearing, the following:

“Section 355 does not require a board to have grounds for a transfer. It provides only reasons for which a transfer may not be given.”

Perhaps each of these statements contained an unfortunate choice of terminology. When we used the terms “cause” and “grounds” they were intended in the context in which they are used in Section 358. In that section the term “grounds” is used in the caption of the section. The term “cause” is found in the body of the section. The section sets out specific “grounds” or “cause” upon which a contract of employment may be cancelled. In DeCarlo we pointed out that section 355 did not state specific ground or cause was required in order to effect a transfer. This is evident by our saying therein as follows:

“Section 358 requires that, a board may not cancel a contract except for specific grounds and further provides reasons why a contract may not be cancelled. Thus it is very clear that transfers and cancellations were not intended by the legislature to be viewed alike. Their ultimate effect is markedly different.”

We did not intend to say that a transfer could be made without some legitimate administrative reason. We perceive a wide difference in a statutorily specified ground or cause for cancellation as in Section 358 and an administrative reason.

Section 356 requires that a teacher requesting a hearing before the Board, after notice of transfer, be given notice of the time and place of the hearing, “and the reasons for the proposed transfer.” The object of stating the “reasons” for transfer is obviously for the purpose of allowing the teacher to examine witnesses and offer testimony to the end of determining the truth and validity of the stated “reasons” and if they serve legitimate or reasonable administrative purposes or whether they are an abuse of administrative discretion and thus arbitrary and unjust. It is from such evidence in the record, when viewed upon appeal by the Tenure Commission, that it may determine whether the action of the Board is arbitrarily unjust. Title 52, Section 357, Code of Alabama (1940); Marshall County Board of Ed. v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130.

From the statement of the Court below referring to DeCarlo, and from the argument of the Board on this appeal, we can only conclude that the court understood DeCarlo to hold that the Board was not required to have reasons for transfer nor produce substantial evidence to sustain a stated reason upon the hearing before the Board. Such understanding was not correct. A superintendent does not recommend nor does a board of education approve a transfer without a reason. Such reason must be stated if the transfer is contested. The stated reason must be shown by the evidence to serve a reasonable administrative function, not be personal or political or arbitrarily unjust. If the evidence does not sustain the reason given, the transfer is not sustained.

In this case there was no issue presented that the transfer was for personal or political reasons. Therefore, upon appeal to the Tenure Commission it was the statutory duty of the Commission to determine from the record if the hearing before the Board was according’ to statutory procedure and if the evidence reasonably sustained the reason given for transfer. If the evidence was insufficient to sustain, the transfer must be found without reason and thus arbitrary and unjust.

We have carefully examined the record of testimony before the Board. The reason stated for transfer to Trammell by letter was that there was “a surplus of mathematics teachers at Anniston High School and the projection for the 1975-76 school year calls for a reduction in the mathematics staff . . . .” The only testimony as to a surplus -was merely the statement of the principal that there was a surplus. It was not shown how many teachers of mathematics there were at the school nor how many courses were offered. It was shown by cross-examination of the principal that a new mathematics teacher had been employed at the school; that the course taught by Trammell in 1974 — 75 remained on the curriculum; that Trammell had asked to teach high mathematics such as that to be taught by the teacher newly employed. There was no evidence that Trammell was not qualified by education or certificate to teach classes for which the new teacher had been employed. It follows that the evidence does not reasonably or substantially support the reason for transfer and the Tenure Commission did not act unjustly in so finding. It further follows that the writ of mandamus was issued in error and the order must be reversed and set aside.

The judgment of the trial court is reversed and the cause is remanded to that court with directions to rescind and set aside its peremptory writ of mandamus directed to the State Tenure Commission.

Reversed and remanded with directions.

BRADLEY and HOLMES, JJ„ concur.


text:
    Owen F. PARKER, Jr. v. MID-SOUTH BUILDING & IMPROVEMENT CO., INC., and Joe Cotten a/k/a Joseph Milton Cotten, et al.
    Civ. 636.
    Court of Civil Appeals of Alabama.
    Jan. 28, 1976.

      Charles Cleveland and Kenneth H. Milli-can, Birmingham, for appellant.
    Ralph E. Coleman, Birmingham, for ap-pellees.
   WRIGHT, Presiding Judge.

Suit was filed by Parker Supply Co., Inc. against Mid-South Building and Improvement Co., Inc., and Joe Cotten upon two notes in the respective amounts of $9,222.25. By amendment, Owen F. Parker, Jr. was made a party plaintiff. Parker claimed the sum of $18,444.49 from Joe Cotten as an accomodation endorser of the two notes for Cotten. Parker claimed the additional sum of $3,425.00 of Cotten for rent. Parker Supply Co., Inc. claimed the sum of $6,333.83 from Mid-South due by account.

Joe Cotten filed counterclaim against Owen Parker as an endorser on the notes.

Upon jury verdict, judgment was entered in favor of Parker Supply Co. and against Mid-South in the amount of $6,711.30. Judgment was rendered in favor of defendants on the claims of Owen F. Parker, Jr. and the counterclaim of Cotten. Owen F. Parker) Jr. appealed.

Though there were numerous errors assigned, only one is argued in brief. The brief is written as though the appeal was taken by both plaintiff, Parker Supply Co., Inc., a Corporation, and plaintiff, Owen F. Parker, Jr. However, the bond for security for costs was made by Owen F. Parker, Jr. as principal with two sureties. The citation of appeal recites only Owen F. Parker, Jr. as appealing. There is neither bond for costs nor notice of appeal for the corporate plaintiff, Parker Supply Co., Inc. Therefore, Parker Supply Co., Inc. has not invoked the jurisdiction of this court on appeal. This court must recognize ex mero motu its absence of jurisdiction of an appeal by Parker Supply Co., Inc., Gray v. State, 279 Ala. 333, 185 So.2d 125.

The one assignment of error argued is the refusal of a written charge requesting the affirmative charge in favor of Parker Supply Co., Inc. The refusal of such charge, even if properly drawn and erroneously refused, may not be assigned as error by Owen F. Parker, Jr. Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So.2d 255.

Without intention to overkill, but for possible value to counsel, we are of the opinion that refusal of the charge was not error by the learned trial judge.

First: Counsel did not preserve error under Rule 51, ARCP. Rule 51 requires that counsel must state the ruling to which he objects and the grounds of his objection. The rule removes pre-ARCP practice of giving automatic exceptions to refused written charges.

At the close of the court’s charge the following colloquy occurred between court and counsel for plaintiff:

“THE COURT: Any objections by the Plaintiff ?
“THE PLAINTIFFS’ COUNSEL: Yes, sir, Judge. You didn’t cover any of my requests.
“THE COURT: I refused them.
“PLAINTIFFS’ COUNSEL: All right. Requests numbers five and six, of course, relate to what you said for later. So, I don’t have any response about those. I would like to object for the failure to give the Parker Supply the affirmative charge on the notes on the grounds that the evidence was that the notes were not liable, that Mr. Cotten wouldn’t be liable on the notes, is that— is all based on evidence as barred by the statute of frauds, and it is a matter of law that he would be entitled to — Parker Supply Company would be entitled to a judgment on those.
“THE COURT: All right. Anything further ?
“PLAINTIFFS’ COUNSEL: That is all.”

Plaintiffs presented six written charges, five of which in some form requested direction of a verdict in favor of one or the other of plaintiffs. The statement of counsel quoted above, though eliminating two charges, is completely devoid of any logical indication of reasons why the other three charges should have been given. The comment as to the statute of frauds is unintelligible in the record.

Second: We find the charge substantively improper. It is as follows:

“Plaintiff’s charge #2—
“If you are reasonably satisfied from the evidence that at the time the defendant, Joe Cotten, endorsed the promissory notes in evidence as plaintiff’s Exhibits 1 and 2, he was aware that he would be liable for payment in the event that Mid-South Building and Improvement Company, Inc. did not pay the notes, you must return a verdict in favor of Parker Supply Company, Inc. and against defendant, Joe Cotten, in the amount you find is due and unpaid on the notes.”

The condition of liability required by the charge is that the jury be reasonably satisfied from the evidence that Joe Cotten was, at the time of his endorsement, aware that he would be liable for payment of the notes if Mid-South did not pay. The liability of an endorser of a note is not conditioned upon his awareness of liability at the time of endorsement. Such charge required the jury to determine the mental condition of Joe Cotten at the time of his endorsement. There are other deficiencies in the charge, such as failure to premise the liability of Cotten on a finding of- default by Mid-South. However, we have sufficiently stated reasons for sustaining the judgment of the trial court. Therefore, we affirm.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


text:
    Patricia Ann OSBORNE v. George E. OSBORNE.
    Civ. 633.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1976.
    James L. Shores, Jr., Birmingham, for appellant-plaintiff.
    James N. Brown, III, Birmingham, for appellee-defendant.
   WRIGHT, Presiding Judge.

The parties were divorced in 1966. Custody of two children with support of $130.-00 per month was awarded to the plaintiff. Each party remarried. The defendant adopted the daughter of his second wife. The second husband of plaintiff is deceased. She and defendant’s children each receive $82.60 per month in social security-benefits from the second husband’s account. Defendant has had little contact with his children and has never paid support as ordered in the divorce decree.

In July, 1974, petition was filed by plaintiff seeking determination of amount due in support and an order of contempt against defendant. The trial court found the sum due and unpaid to be $12,220.00. Defendant was not found in contempt, but was ordered to pay the amount due in payments of $100.00 per month. The court then modified the former decree by lowering future support payments to $50.00 per month.

Plaintiff presents three issues on appeal: (1) Interest should have been granted on the past-due support. (2) The court had no authority to permit payment in installments. (3) There were no changed circumstances supporting the reduction in support payments. We will discuss the issues presented in order.

It has often been stated by the Supreme Court of Alabama that accrued installments of alimony and child support are not subject to change. Scott v. Scott, 265 Ala. 208, 90 So.2d 813; Hall v. Hall, 280 Ala. 275, 192 So.2d 727. Such installments become final judgments as of the date due and may be collected as other judgments. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834; Wood v. Wood, 275 Ala. 305, 154 So.2d 661. It is the law that judgments for the payment of money bear interest from the date of rendition. Title 9, Section 63, Code of Alabama (1940). Fuller v. Martin, 41 Ala.App. 160, 125 So. 2d 4. If installments for support become final judgments as of the date they become due, as stated by the above citations, it follows that such judgments would bear interest from due date. We have not been cited to any divorce case in this state which has decided this issue. However, our research discloses the following from the case of Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825:

“Interest is properly chargeable on an amount which is ascertainable by a legal standard. There was no error in allowing interest after default in paying deferred installments. (Citations omitted.)
“We think the court should proceed with the proper steps to be taken to collect the amount ascertained ... in the principal sum of $4,925 and that interest should be added to each installment to the extent it was not paid, calculated until it is paid ...” (Emphasis added.)

We find the holding of Rochelle disposi-tive of the issue of whether interest should have been added in this case. Therefore, the court erred in not determining interest due according to the formula of Rochelle.

Our study of the second issue presented has raised some apparent inconsistencies in the case law of this state. Alabama through expressions in cases beginning with Epps v. Epps, 218 Ala. 667, 120 So. 150, has followed the rule that there is no power in the court to modify decrees for installment payment of alimony and support retrospectively. As previously stated herein, installments become final judgments as they are due, and may be collected as any other judgment, Armstrong v. Green, supra, yet there are appellate decisions approving payment of such “judgments” themselves in installments. Armstrong v. Green, supra; Bright v. Bright, 275 Ala. 473, 156 So.2d 158; Evans v. Evans, 264 Ala. 2, 84 So.2d 337. In the instant case the court found the total of “final judgments” to be $12,220.00, yet directed that defendant pay such judgments in payments of $100.00 per month. Such direction is $30.00 per month less than the installments through which the judgments accrued. After the addition of the accrued interest as we have herein determined, two-thirds of such payments will likely be interest and only one-third will be applied to principal. It follows that it will be impossible for defendant to pay the accrued judgment and interest at the rate of $100.-00 per month during a normal lifetime.

To approve such payments is to effectively modify the original decree retrospectively. Contrary to the prohibition stated in Armstrong v. Green, supra, payment of such “judgments” in installments is inconsistent with their being “final judgments and collectible as other judgments.” This is the inconsistency in the cases we previously referred to above. We know of no other judgment upon which execution may be prevented by direction of payment in installments.

We comprehend that a contempt of court may be purged by an order of payment of a sum upon past-due installments, but such order should not be a bar to collection of the judgment by execution or garnishment if assets of defendant are available to such process. It is not clear from the decisions of the Supreme Court that this issue has ever been precisely presented on appeal. We believe that the approval of payment of “final judgments” for alimony or support by installments has been merely dicta, and is not binding on this court. We therefore follow the rule that accrued installments of support are final judgments and may be collected as any other judgment. An order of the trial court permitting the payment of such judgments in installments is not a bar to any other process for collection of judgments. This must be the law unless the Supreme Court overrules Armstrong v. Green, supra, and other cases, and follows the rule of many other states which permit retrospective modification of judgments for alimony and child support. The prospect for such consideration by the Supreme Court would be a factor for seeking certiorari in this case.

The third issue presented in this case is whether the evidence shows a change of circumstances sufficient to support the modification of the original decree of support. We find it fails to do so.

The burden of showing changed circumstances is on the party seeking a modification of the original decree. Clarke v. Clarke, 47 Ala.App. 558, 258 So. 2d 902; Sneed v. Sneed, 279 Ala. 344, 185 So.2d 135. The evidence showed that the income of defendant increased from $3,800.00 at the time of the original decree to approximately $15,500.00 at present. Defendant has a new wife and an adopted child. He argues that his payments should be reduced because the children receive social security benefits through their stepfather and live in a home rent free belonging to their maternal grandparents. Were it not for these benefits the children would indeed have been in dire circumstances. Defendant has not been of any assistance through the years. The primary duty of support of children is upon the father. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660. The largesse of others does not relieve the father of contributing according to his ability and the need of the children. Brock v. Brock, 281 Ala. 525, 205 So.2d 903. No doubt the reduction of support granted by the court was, at least in part, because of the order to pay $100.00 upon the past-due support. We do not consider such order pertinent to the determination of present and future support. In view of the income of the father, $50.00 monthly support for two children now in or approaching their teens is clearly inadequate and unsupported by the evidence. The modification must be reversed.

For error on all the issues presented by plaintiff, the judgment below is reversed and the case remanded.

Reversed and remanded.

BRADLEY and HOLMES, JJ., concur.


text:
    Earlene W. COLLIER (Stephenson) v. L. Wayne COLLIER.
    Civ. 625.
    Court of Civil Appeals of Alabama.
    Jan. 7, 1976.
    As Modified on Denial of Rehearing Feb. 4, 1976.

      Volz, Capouano, Wampold & Prestwood, and Al J. Sansone, Montgomery, for appellant.
    L. H. Walden, Montgomery, for appel-lee.
   BRADLEY, Judge.

Complainant and respondent were divorced on September 4, 1973.

On December 16, 1974 a substituted decree of the Circuit Court of Montgomery County awarded custody of Tracy M. Collier, age seven, and Dina Adrienne Collier, age eight, to complainant. Respondent was granted annual visitation with the children from June 15 through August 15 and for the AEA or spring holiday. Complainant was required to pre-pay air or automobile transportation costs for the visitation, and further was ordered to pay respondent $400 on June 15 and July 15 of each year.

On May 21, 1975 complainant petitioned for modification, alleging that respondent resides in Indiana, and that she had related to numerous persons that she did not intend to return the children to Alabama after the next visitation, but intended to commence legal action relating to custody in courts foreign to Alabama. On May 23 Judge William Thetford voluntarily re-cused himself from the action and the case was reassigned to Judge Frank Embry. That same day Judge Embry entered an order setting aside respondent’s visitation privileges until June 25, the date appointed for hearing the petition. Respondent moved on June 6 to dissolve this temporary order and have an immediate hearing on the motion.

On July 1, 1975 respondent answered and cross-petitioned for custody of the children. The hearing originally set for June 25 also commenced on July 1. The following day the circuit court issued its decree of modification which left unchanged the custody of the children and the dates of respondent’s visitation; extended the visitation for 1975 until August 18; required respondent to post a $10,000 bond to guarantee return of the children; required respondent to pay for transportation; deleted the $400 due respondent on June 15 and July 15; and taxed costs of the proceedings to respondent.

Respondent’s assignments of error one through four contend that the May 23 order was issued under conditions inconsistent with Rule 65 ARCP. We feel that respondent is mistaken in equating the order below with a temporary restraining order or preliminary injunction. The provisions governing those devices found in Rule 65 are designed to protect parties in the context of injunctive relief. In the present case .we deal with child custody, a matter over which chancery’s jurisdiction is continuous, Hayes v. Hayes, 192 Ala. 280, 68 So. 351. The chancellor, having acquired jurisdiction' over the children, may make such orders for their well-being as it deems appropriate; the welfare of the children being paramount, the interests of the other parties are secondary, Ex parte Bates, 247 Ala. 391, 24 So.2d 421. The May 23 order was not a Rule 65 order, but was an interlocutory ruling to be reviewed by mandamus, Brady v. Brady, 144 Ala. 414, 39 So. 237, but is not reversible in this appeal.

Respondent argues that the requirement of $10,000 bond to guarantee the return of the children after visitation discriminates against her in violation of the fourteenth amendment to the United States Constitution. ■ However, she cites no authority which would lead us to reject as unconstitutional either the trial court’s power of setting bond to protect its jurisdiction over the children, or the general rule that the amount of such bond lies within the sound discretion of the court, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891; Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561.

On July 11, 1975 this court entered the following decree regarding the bond in question:

“That the requirement of defendant posting a $10,000 bond and that surety thereon be a bonding or surety company or collateral in the form of cash, certificates of deposit or negotiable bonds or securities be set aside and superseded; that defendant Earline W. Collier' Stephenson be permitted- to exercise the visitation rights grantd to her upon her entering into a bond with good and sufficient sureties in the amount of $5,000 to be approved by the Deputy Register with condition that said sum be paid to L. Wayne Collier on proof by him that both of said minor children have not been returned to his custody after the expiration of the visitation period granted.” Alabama Court of Civil Appeals, Civ. 626, July 11, 1975.

Our order of July 11, 1975, regarding the bond, shall remain in effect.

Regarding the remainder of the decree of modification, we hold the trial court in error. Although setting bond to protect the court’s jurisdiction over the children lies with the trial judge’s sound discretion, we can find absolutely no authority which permits the withdrawal of child support to accomplish the same purpose. The primary legal and moral duty to support minor children rests with the father, Brock v. Brock, 281 Ala. 525, 205 So.2d 903. The mother can be compelled to contribute to this support only where the father is clearly incapable of providing it, Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660.

The substituted decree of December 16, 1974 had set forth certain child support requirements the father was required to pay: prepayment of transportation costs and $400 due on June 15 and July 15 each year. In the instant modification proceedings, it was never contended, nor is any evidence whatsoever present in the record, that changed circumstances since that earlier decree made appellee incapable of furnishing these needs of his children. The trial-court’s order withdrawing this responsibility from the father and placing it on the mother is therefore palpably erroneous, Wilson v. Howard, 266 Ala. 636, 98 So.2d 425. We reverse those portions of the modification order which affect the dates and expenses of visitation and child support during visitation. This reversal leaves paragraphs 3, 3a, 3b, 3d and 4 in effect as they were rendered on December 16,1974, without modification.

We have said above that there was no evidence in the record to support portions of the trial court’s order. Appellee cites us to the case of Eaton v. Shene, 282 Ala. 429, 212 So.2d 596, for the proposition that, where it affirmatively appears that the trial judge had knowledge of evidence not in the record, findings based on that evidence will not be reversed on appeal. Here, as in Eaton, it is obvious that the trial judge interviewed the children in camera, and no transcript of that interview was made. As in Eaton, neither party objected to the interview, moved for transcription, or moved to exclude any evidence elicited. In the instant case there is a controversy as to whether appellant had any notice or warning that the interview was going to take place. Nevertheless, after being informed that the interview had occurred, appellant’s counsel made no motion to exclude, motion for mistrial, or any other objection to the trial judge’s consideration of that interview. Appellant argues that such tactics would be unavailing since the interview was fait accompli, and the mere interposition of an objection would fail to purge the trial judge’s mind of the matters discussed in camera. Granted, the mental impressions of a judge cannot be totally erased by an objection. However, failure of counsel to object prevents the trial judge from ruling on the admissibility of the evidence, and leaves the appeals court with nothing to review, Boise Cascade Corp. v. Lee, 291 Ala. 666, 286 So.2d 836. In the absence of an adverse ruling, a party is vulnerable to the doctrine articulated in Eaton v. Shene, supra.

However, we do not feel that the Eaton case requires us to affirm the trial court’s instant decree. In the cited case the conjectured evidence presumably elicited from the child in camera related to his personal feelings and relationship with his father. In the present case, in order to affirm we must presume that the children testified to their father’s financial status and ability to earn an income from his legal practice— sophisticated matters in which there is no showing that these children, age seven and eight, have the necessary knowledge on which to base an opinion. We feel that to presume that these children testified competently on this material issue strains the credulity of the appellate court beyond tolerable limits. Regarding in camera testimony of young children, Eaton v. Shene, supra, requires us to presume only disclosures of which the child might reasonably have first-hand knowledge or form an intelligent opinion. It does not require us to unreasonably presume that a child is a genius, has technical proficiency, or is the business confidante of adults. No presumptions arising from matter off the record can salvage this modification decree.

Because we have reversed several portions of the trial court’s decree, we hold that the award of costs below is vacated automatically, see 10 Wright & Miller, Federal Practice and Procedure: Civil § 2668. As a result of our holding both parties have prevailed in part, both have lost in part, and neither one is a prevailing party entitled to costs as a matter of course under ARCP 54(d). We therefore order that each party be taxed half the costs of the proceedings below.

In light of our holdings on the various issues raised by this appeal, the decree of the trial court is reversed; the bond imposed on respondent by this court on July 11, 1975 shall remain in full force and effect.

Reversed and rendered.

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

Opinion corrected; application for rehearing overruled.


text:
    Thomas McGARY v. The CITY OF BIRMINGHAM.
    6 Div. 987.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Atlanta, Ga., for appellant.
    Herbert Jenkins, Jr., Asst. City Atty., Birmingham, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted for the violation of Ordinance No. 67-2, Section 3, of the City of Birmingham. He raised by a demurrer and a motion to quash the complaint the question of the constitutionality of the ordinance, contending (1) that the definition of obscenity contained in the particular ordinance does not meet the test laid down in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and (2) that the application of the principles pronounced by Miller v. California to conduct occurring before the case constitutes ex post facto legislation in contravention of the United States Constitution, Article I, Sections 8, 9 and 10. The first contention was rejected by this Court in McKinney v. City of Birmingham, 52 Ala.App. 605, 296 So.2d 197, cert. denied, 292 Ala. 726, 296 So.2d 202, cert. denied, 420 U.S. 950, 95 S. Ct. 1335, 43 L.Ed.2d 429 and by Harlow et al. v. City of Birmingham, 52 Ala.App. 612, 296 So.2d 202, cert. cenied, 292 Ala. 722, 296 So.2d 206, cert. denied, 420 U.S. 950, 95 S.Ct. 1335, 43 L.Ed.2d 429, and the second contention was rejected by this Court in McKinney, supra, and in Me- Kinney v. State, 52 Ala.App. 615, 296 So.2d 235.

The only other question raised by appellant relates to the process of obtaining names or cards of jurors from which the jury was selected to try the case. The trial judge clearly stated what took place as follows:

“. . . all our jurors who are not serving on a jury or gone out to be struck are kept in the jury room where we have a box where all the numbers and names of all the jurors are kept except those, of course, that are already serving in somebody’s court. And this morning, I sent my bailiff down to the jury room and instead of bringing the box back for me to select the cards and then go and send for the jurors, I had instructed the bailiff to draw up twenty-four cards out of the box and to mark the jury lists and draw them at random, of course, and then instructed him to draw up twelve extra jurors and put them in the order in which they were drawn. In other words, the actual drawing of the cards out of the box was not done in this court room or in the presence of either the City’s attorney or the defendant’s attorney. Of course, the record shows the strikes of the jurors after they were all questioned down here later.”

The bailiff who obtained the cards containing the names of the panel of jurors from which the jury was selected testified as to his strict compliance with the order of the trial judge. In addition, he testified that the usual procedure was “to bring the box back to the court room for the Judge to withdraw the jury venire in the presence of the defendant, his attorney and— well, both parties to the cause.” The trial judge stated as to the procedure followed in the case:

“This is done to expedite matters rather than having this box which contains every card of every juror and has to go to twelve or thirteen different Judges, and I do it because I think it expedites matters rather than to wait your turn for ten ahead of you to get finished with the box.”

The áttorney for defendant objected to the procedure, and the attorney for the City joined in the objection, and the court stated, “I overrule the objection.”

There is nothing in the record pertaining to the particular procedure under consideration until after the jury was selected, the case was stated to the jury by the attorneys and the City had presented a large part of its testimony.

Appellant now complains that the procedure was “violative of Title 30, § 38, Code of Alabama, 1940 (Recomp.1958).” The cited Section requiring a drawing “from the hat or box” and “in open court” is not referable to obtaining a jury for the trial of a particular case but to obtaining from the jury box maintained by the Jury Commission the names of jurors to be called for jury service for a particular week. Appellee relies upon the law, applicable to Jefferson County, for obtaining names from which a jury is to be selected for the trial of a particular criminal or quasi-criminal case. Code of Alabama 1940 (Re-comp.1958) Volume 14, Appx. §§ 714 and 715.

If defendant had made timely objection to the procedure or had moved for a mistrial upon his becoming aware of the procedure, we would have a much more difficult problem to decide than the one actually before us now. With full knowledge of what had been done, defendant merely objected to what had been done and made no motion or suggestion as to what should be done. It appears that he objected no more strongly than did the City, but neither asked for a mistrial or for any action whatever. We also note that experienced counsel for defendant, who was in the case from beginning to end, participating actively in the selection of the jury, was apparently well aware of the usual practice and should have been aware of its nonobservance long before any ruling was invoked of the trial court. There is no efficacy in an objection to something that has taken place hours before the objection is made. For some reason which we do not know, defendant was apparently as satisfied with the jury as was the City. A party cannot speculate on a favorable verdict and thereafter obtain relief from some alleged error for which relief he could have asked before the return of an unfavorable verdict. Ball v. State, 252 Ala. 686, 42 So.2d 626; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.

The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Ex parte Jimmy CARLISLE.
    6 Div. 117.
    Court of Criminal Appeals of Alabama.
    Nov. 20, 1975.
    McDonald & Brown, Birmingham, for petitioner.
    Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This is a petition for bail. Honorable Charles M. Nice, Judge of the Tenth Judicial Circuit, Birmingham Division, has previously conducted a hearing on habeas corpus. He denied bail, announcing at the end of the hearing:

“THE COURT: Well, in view of the Grand Jury notes,. and in view of the three felonies of rape and two robberies, and in view of the past record, no bond.”

Ex parte Bynum, 294 Ala. 78, 312 So.2d 52, is probably the latest decision on the right to bail before conviction, as guaranteed by our constitution, § 16. The test, basically, is whether the defendant would probably be punished by electrocution, if the State could use the electric chair.

We have no preventive detention statute. Nor has our legislature adopted any pretrial release other than to require monetary considerations to ensure attendance at trial.

Here we have three capital felonies: rape and two robberies. We are cognizant that the defendant is wrapped in a cloak of innocence, but this is not a cape to hoodwink a judge.

In the hearing below the court correctly allowed in evidence matters of other charged offenses — particularly a second robbery allegedly committed after release on bond. Moreover, in' addition to the above alleged robberies after the averred rape, Carlisle had recently been released from serving several second degree burglary sentences. In sum, he is a persistent offender with a propensity to use violence. Judge Nice properly considered him a menace to society.

The constitution prohibits excessive bail. Here “no bond” can be expressed as an infinite monetary figure. In this case that is not excessive.

Our decision today is limited to a multiple offender.

Petition denied.

TYSON and DeCARLO, JJ., concur.

HARRIS, J., and SIMMONS, Supernumerary Circuit Judge, dissent.

      . Pretrial Release (ABA Standards relating to the Administration of Criminal Justice) § 5.8 provides:
      5.8 Commission of serious crime while awaiting trial.
      Where it is shown that a competent court or grand jury has found probable cause to believe that a defendant has committed a serious crime while released pending adjudicating a prior charge, the court which initially released him should be authorized, after appropriate hearing, to review and revise the conditions of his release or to revoke his release where indicated. In cases in which release is revoked, the case should be tried as soon as possible.
      See also, State v. Webb, 132 Vt. 418, 320 A.2d 626.


author: ALMON, Justice. FAULKNER, Justice HEFLIN, Chief Justice

text:
    In re Jimmy CARLISLE v. STATE. Ex parte Jimmy Carlisle.
    SC 1586.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    Roger A. Brown, Birmingham, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of Jimmy Carlisle for writ of certiorari to the Court of Criminal Appeals to review and revise judgment and decision of that Court in Ex parte Carlisle, 57 Ala. App. -, 326 So.2d 775 (1975), is denied.

In denying the petition for writ of cer-tiorari, this Court does not wish to be understood as approving or disapproving of all the language used or the statements of law made in the opinion of this case in the Court of Criminal Appeals. In re Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

Writ denied.

MERRILL, BLOODWORTH, MADDOX, JONES, SHORES and EMBRY, JJ., concur.

FAULKNER, J., concurs specially.

HEFLIN, C. J., dissents.

FAULKNER, Justice

(concurring specially) .

The trial court denied bail to Jimmy Carlisle after hearing his petition for ha-beas corpus. The Court of Criminal Appeals affirmed. This court affirmed the appellate court without opinion. I concur specially by adding my thoughts on the issue before the trial court.

The trial court, after hearing the habeas corpus petition for bail, said this:

“Well in view of the Grand Jury notes, and in view of the three felonies of rape and two robberies, and in view of the past record, no bond.”

Section 16 of the Constitution of 1901 provides:

“That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.”

Three prerequisites are necessary to justify the denial of bail in capital cases: The evidence must be clear and strong, leading a well-guarded and dispassionate judgment to the conclusion (1) that the offense has been committed, (2) that the accused is the guilty agent, and (3) that he would probably be punished capitally if the law is administered. Lee v. State, 281 Ala. 631, 206 So.2d 875 (1968); Trammell v. State, 284 Ala. 31, 221 So.2d 390 (1969).

In Ex Parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975) this court retained the classification of capital offenses even though the death penalty had been outlawed by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This court followed a majority of the State Supreme Courts’ holding that offenses classified as capital before Furman are still capital, and bail can constitutionally be denied.

Here the trial court was on sound ground by denying bail to Carlisle. But, be that as it may, the trial judge must have had in the back of his mind that Carlisle was a recidivist and to grant him bail would be turning loose a menace to society.

The whole subject of bail needs a thorough examination by the legislature, the courts, and the people of this state. When I say “people”, I mean the whole body politic. The people should not stand idly by, “cry havoc, and let slip the dogs of war.” William Shakespeare, Julius Caesar. The people are the government, and until they act in an aggressive and force fullike manner, the situation will get worse — not better. Recidivists commit 70% to 80% of all crimes. Granting bail to a recidivist permits him to continue to plague the public, to steal, burglarize, rob, rape, and murder. We have no “habitual criminal” statutes; we have no preventive detention statute, and our constitution permits bail as a matter of right in all cases except capital offenses, before conviction. Recidivism, being the core of our problem, is the subject that demands instant attention. Bail to a recidivist should be a discretionary matter with the trial judge, or committing magistrate, in felony cases, and should be eliminated entirely in capital cases.

HEFLIN, Chief Justice

(dissenting):

I would grant the writ in keeping with the reasons expressed in my special concurrence in Ex Parte Bynum, 294 Ala. 78, 312 So.2d 52, 56 (1975).


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. CATES, Presiding Judge DeCARLO, Judge

text:
    Robert Dennis BROWNING, Junior, alias v. STATE.
    7 Div. 409.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1976.
    Rehearing Denied Jan. 20, 1976.
    David A. Rains, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant filed his petition in the circuit court of Cherokee County for a writ of error coram nobis. The petition was heard and denied. This appeal followed the entry judgment.

The petition sought to review a judgment entered in the circuit court whereby appellant was convicted by a jury for the offense of robbery, with punishment fixed at 50 years imprisonment. An appeal from the judgment was affirmed by this court. Browning v. State, 51 Ala.App. 632, 288 So.2d 170 (1974).

It appears from the records before this court that the indictment was returned on February 29, 1972; arraignment on September 13, 1972; trial was begun on October 11, 1972, and concluded on October 12, 1972.

It appears from this evidence that defendant had contacted counsel in Atlanta, Georgia, about representing him in Alabama, and was impressed that counsel had accepted the employment. Before trial in Alabama, the defendant learned that there was a misunderstanding; that this Atlanta lawyer would not be present. Thereupon, he contacted a Gadsden attorney about such representation. On the coram nobis hearing, he produced a receipt showing that he had paid the Gadsden attorney $200. as a retainer fee to represent him. It appears that this attorney, because of a conflict with another case set for trial, could or would not be present. It may be that an additional unpaid fee to the Gadsden attorney was the reason for this attorney’s failure to appear.

It further develops that because of the uncertainty of the contacted attorney’s appearance, a very competent lawyer, Mr. A1 Shumaker, was appointed to represent the defendant. This attorney testified on coram nobis that he was first appointed to represent defendant only on arraignment, and that his appearance was limited to such arraignment.

It further appeared when the trial date approached, defendant, still relying on his employed counsel, did not have representation. At that time, the same attorney, Mr. A1 Shumaker, who appeared at arraignment, was appointed to represent defendant at the nisi prius trial. The attorney had only fifteen minutes to consult his client before trial.

This attorney, not having had time to prepare the defense and being on the verge of trial, moved the court for a continuance to the next term. The defendant was quite anxious for a continuance, although he knew he would have to stay in jail for several more months until the next regular term of court at which time the court would hear the case.

It also appears from the evidence that due to the mixup in the procurement of employed counsel, the defendant had not contacted some alibi witnesses which he wanted to use in the trial of his case.

He, by necessity, elected to use .an alleged co-defendant as a witness. This witness testified unfavorably to defendant and was used against the advice of defendant’s own counsel. The result was a professional estrangement between defendant and his trial counsel during the rest of the trial.

It appears that the use of this witness was in desperation, because defendant had no alibi witnesses available at the trial. The defendant took over and realized his mistake after he was convicted and given 50 years imprisonment. It appears that this witness had entered a plea of guilty and got 10 years, while a third accomplice went to trial and got 40 years; defendant 50 years.

It appears that on the original appeal this court approved the overruled motion for a continuance and concluded that the trial court was reasonably using his discretion as authorized by law. Browning, supra.

However, we are not sure that the trial court had before it all the evidence under oath that was adduced at the coram nobis hearing. For that reason we will not say that the trial court was in error when it denied the continuance and that this court erred in its affirmance.

Under all the existing evidence, we think that Mr. Shumaker, being plunged into a hurried trial, did not have time to prepare his case as a competent and con-scentious lawyer is wont to do and should do. He had only fifteen minutes after appointment. He was faced with efforts to contact the alibi witnesses in Georgia, with whom he was not acquainted, and try to persuade them voluntarily to come to court; process for such appearance was unavailable under Alabama law. Or failing, he would have to take their depositions the best he could.

In fact we think it was an imposition on this attorney to plunge him into trial minus reasonable opportunity to prepare his case. The trial was too speedy under the circumstances as we hold in Kearley v. State, 52 Ala.App. 405, 293 So.2d 322.

When the defendant’s attorney is not present at time of sentence, dismissal of petition for coram nobis was error. White v. State, 43 Ala.App. 535, 195 So.2d 542. Failure or refusal to appoint counsel can be raised by coram nobis. Short v. State, 46 Ala.App. 445, 243 So.2d 529. Where defendant was prejudiced by lack of counsel at sentencing, coram nobis proceeding will lie. Shellnut v. State, 43 Ala.App. 298, 189 So.2d 587. Writ of coram nobis is available where defendant was not represented at arraignment; also on trial for assault with intent to murder. Dillard v. State, 283 Ala. 245, 215 So.2d 464; Knight v. State, 42 Ala.App. 672, 178 So.2d 101.

It further appears that defendant had been quite active in his unsuccessful efforts to employ counsel and not depend on appointed counsel. We conclude that his finances for such employment were limited and possibly accounted for the indifferences of the lawyers he had contacted. Nevertheless, it appears that he tried and wanted to avoid welfare employment counsel. The failure of such employed counsel to appear probably was not the wilful fault of defendant.

The appearance of unprepared counsel, particularly in a serious felony case as here, might be construed to be the equivalent of no counsel at all, which is a denial of a defendant’s constitutional rights. Such protection in recent years 'under our federal and state court decisions is mandated. Amendment 6 to the Constitution of the United States; Article 1, Section 6, Constitution of Alabama, 1901. Hence, state legislation to provide such counsel and free appeals.

We hold that under the evidence the trial court in the original prosecution acted without due circumspect in refusing the continuance. Defendant, not being a lawyer, as he found out when he rejected the advice of his counsel not to use the codefendant as a witness, was no doubt confused and bewildered. He was not acquainted with his appointed counsel; also his appointed counsel did the best he could do under the circumstances, namely, he sought a continuance to the next term.

In view of the confusion and misunderstandings, all in good faith, and the hurried appointment of counsel to defend the case on its merits without reasonable time for planning and consideration of a defense, as any competent lawyer wants to do and should do, we think the petition for writ of error coram nobis should have been granted. Defendant did not have the protection of counsel as mandated by law. The short span of fifteen minutes preparation to defend on the merits, deprives this indigent defendant of representation by counsel.

We note that the trial court in the coram nobis decree referred to this court’s opinion, supra, in the original appeal. The trial judge observed in his decree:

“While this court has reservations about the conclusion reached by the Court of Criminal Appeals, that court’s consideration of the matter precludes a consideration of the matter by this court unless new evidence is presented in support of the petition.”

As we have noted supra, we do not think the trial court and this court had before it evidence as full and complete as here presented.

It is ordered that the judgment denying the petition for writ of error coram nobis be and the same is reversed and the cause remanded. The trial court will enter such orders or judgments as necessary to assure defendant a new trial.

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

Reversed and remanded.

CATES, P. J., and TYSON, HARRIS and BOOKOUT, JJ., concur.

DeCARLO, J., dissents.

CATES, Presiding Judge

(concurring):

In deference to Judge DeCarlo’s dissent, I have reexamined the original record in Browning v. State, 51 Ala.App. 632, 288 So.2d 170. Judge Simmons shows — as the record before Judge Clark did not — that Mr. Shumaker was appointed to “a dock brief” for a single occasion, i. e., arraignment which occurred September 13,1972.

Being under this limitation, Mr. Shu-maker was thereafter naturally under no duty to Browning. Indeed, under the canons of ethics, he could run afoul of the prohibitions against officiously intermeddling in the defense of a case in which another lawyer was already ostensibly employed.

Perhaps, pre-appeal appointments of counsel for indigents ought, by rule, all be made of indeterminate and continuing duration rather than being ad hoc ad hodiem. See ARAP Rule 24(b)(1) and ABA Crim. Justice Standards, Providing Defense Services, § 5.2.

Judge Clark did not (and could not) have the benefit of the subsequent testimony of Mr. Shumaker at the coram nobis hearing. Cases such as this are troublesome: vide Davis v. State, 292 Ala. 210, 291 So.2d 346; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (June 30, 1975).

DeCARLO, Judge

(dissenting).

The reversal of the judgment denying the coram nobis petition is based on the fact that appointed counsel was not afforded a sufficient time to prepare appellant’s case. In accordance with this reason the majority said the failure to grant the continuance necessitated this post conviction relief.

Of course the matter of a continuance is addressed to the trial court’s discretion and is only subject to review upon a showing of abuse. Ballard v. State, 51 Ala.App. 393, 286 So.2d 68.

The original opinion, Browning v. State, 51 Ala.App. 632, 288 So.2d 170, was written by Judge Leigh Clark, Supernumerary Circuit Judge. It was concurred in by all the judges of this court. In that opinion substantially the same facts were considered as are now being relied on in this coram nobis petition. The comparable portion of Browning, supra, reads:

“When the case was called for announcements, the defendant requested a continuance. There was considerable discussion among the court, defendant and defendant’s counsel as to defendant’s request for a continuance. Appearing for him was. his appointed counsel, who had been appointed at the arraignment on September 13, 1972, the trial commencing on October 12, 1972. Defendant stated he had not discussed the case with his appointed attorney until a few moments before the request for a continuance. He said he had paid a retainer’s fee to another attorney and was advised by the other attorney not to speak with anyone concerning the case. The defendant mentioned a previous conversation that day with the judge. The judge reminded the defendant that the judge had previously tried to contact an attorney in Atlanta, whose name had been given to the judge, that 'he was unable to locate him, and that thereafter the judge had been apprised by the defendant of defendant’s claim that he had a lawyer in Gadsden. The judge further told him that he had talked with the mentioned lawyer in Gadsden who told the judge ‘that it would be better if you could obtain service of some other’ attorney.
“Most of the discussion as to the request for continuance was between the defendant and the court, but defendant’s counsel did formally request a continuance as follows: ‘We respectfully ask the Court to continue this case until the next term of Court.’ The court then stated:
“ T appreciate the situation, however it appears from the record that the indictment was returned February 29, 1972, and that the Defendant, of course, has had knowledge of the seriousness of the charge for some time. The Court has previously considered the matter of whether or not a continuance should be granted at this time The motion of counsel for a continuance is overruled.’ ”
“It should be said that appointed counsel, with admirable loyalty to defendant, strongly supported defendant in his request for a continuance, but no contention or showing was made that there was not sufficient time for defendant and the appointed attorney to prepare for trial at that term of court.” (Emphasis ours).

Additionally at the evidentiary hearing on the coram nobis petition we find this testimony by the appointed counsel:

“Q. I believe when Judge Tally appointed you to represent him at arraignment you went outside and talked to him and entered a plea of not guilty and asked permission to file other things. That’s correct, isn’t it?
“A. I generally do that and I probably did that on this occasion.
“Q. And I’ll ask you if Judge Tally didn’t tell him, he didn’t tell Judge Tally he had employed another attorney.
“A. As I recall Judge Tally told him when the trial date would be and if he wanted to make arrangements with the other attorney, he would have time to do that.
“Q. And if he didn’t employ another attorney you would represent him?
“A. He probably did, but I don’t recall him saying that.”
“Q. Now, on the date of the trial do you recall something being mentioned about Rowan Bone — On the day of the trial, I’ll ask you if the defendant stated that Rowan Bone represented him ?
“A. As I recall the defendant stated he had retained Rowan Bone, yes.
“Q. I’ll ask you if Judge Tally didn’t state in Court, it’s in the record, that he had a conversation with Rowan Bone and a recess was taken and we went to the Judge’s office. And you and I were present and Browning was present. Isn’t it a fact that Rowan Bone was paid a retainer’s of $100 and hadn’t been paid any more money .
“MR. RAINS: That’s not a matter of record.
“COURT: Overruled.
“Q. That’s correct, isn’t it ?
“A. I recall — seems like the Judge made a telephone call to Mr. Bone and I don’t think I talked to Mr. Bone myself, but Judge Tally did.
“Q. Rowan Bone stated to the Judge he didn’t represent him?
“A. I think that’s what was indicated.
“Q. And he had been paid a small retainer, I believe it was $100. — I’m not sure — by some woman and they never came back to see him any more and paid him any more money.
“A. I think that’s correct.
“COURT: Mr. Shumaker I want to ask you at least one question. Would it be accurate to say that your delay in getting into the actual preparation for trial of this case was occasioned by Mr. Browning’s insistence that he had someone else representing him ?
“A. I think that would be a fair statement.
“COURT: Would it be an accurate statement ?
“A. That’s correct.”

I respectfully submit that it was appellant’s own doing that prevented appointed counsel from being prepared to defend against the accusation. The post conviction remedy sought was not intended to relieve a party from the consequences of his own negligence. Ex parte Taylor, 249 Ala. 667, 32 So.2d 659.

In referring to certain claims of error set out in a coram nobis petition, this court said in Braswell v. State, 53 Ala.App. 645, 303 So.2d 145:

“ ‘This claimed error could have been raised on direct appeal rather than by way of a coram nobis petition. The office of the writ of error coram nobis is not that of a delayed appeal but rather a vehicle to seek review of certain matters which were not known or could not have been reasonably discovered within the time for taking a direct appeal.’ ’’
Mr. Shumaker further stated during the hearing:
“Q. Did you write a brief for Mr. Browning for an appeal on this case?
“A. I did.
“Q. In that brief, I believe, you said it was impossible to build a winning defense with the time allowed?
“A. I don’t recall the exact words, but I believe that would be a fair statement of my complaint in the appeal.”

Since this question appears to have been settled on appeal, and this proceeding merely seeks to reopen a question already considered and determined on appeal to this court, it should not now be reconsidered. Divine v. State, 285 Ala. 488, 234 So.2d 28.

In deference to Judge Cates’ concurring opinion, I again reexamined this record and the original record. Based on that examination and the foregoing, it is my opinion this case should be affirmed for the following reasons:

First: Judge Clark had substantially the same facts on the original appeal as are now relied on in this coram nobis appeal.

Second: Mr. Shumaker testified he was also counsel for the original appeal and had raised the issue of insufficient time to prepare.

I respectfully dissent.


author: ALMON, Justice.

text:
    In re Robert Dennis BROWNING, Jr., alias Bobby Browning v. STATE of Alabama. Ex parte STATE of Alabama.
    SC 1674.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for petitioner, the State.
   ALMON, Justice.

Petition of the State for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Browning v. State of Ala., 57 Ala.App. -, 326 So.2d 778.

Writ denied.

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