author: LEE, Justice, For the Court:

text:
    Billy J. ERVIN v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    No. 50721.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Rehearing Denied Jan. 24, 1979.
    Stephen L. Beach, III, Roland C. Lewis, Jackson, for appellant.
    Heidelberg, Woodliff & Franks, George F. Woodliff, Timothy R. Smith, Robert A. Biggs, III, Richard M. Edmonson, McDavid & Edmonson, Shell, Buford, Bufkin, Calli-cutt & Perry, Cary E. Bufkin, Richard S. Bush, Jackson, for appellees.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   LEE, Justice, For the Court:

Billy J. Ervin filed suit in the Circuit Court of the first Judicial District, Hinds County, Honorable Russel Moore, presiding, against Bobbie M. Ervin, E. P. Reeves, Clyde C. Scott Insurance Agency, Inc., F. W. Williams State Agency, United States Fidelity & Guaranty Company, Mississippi Automobile Assigned Risk Plan, All Members of the Governing Committee of the Mississippi Automobile Assigned Risk Plan, and Does 1 through 250, for personal injuries sustained as a result of an automobile collision. Demurrers were interposed by all defendants except Bobbie M. Reeves and the demurrers were sustained by the trial court. The case was settled as to the Reeves and Ervin appeals here from the judgment in favor of all other defendants sustaining the demurrers. Those defendants cross-appeal, contending that motions filed by them to dismiss the declaration should have been sustained.

Ervin contends that the trial court erred in sustaining the several demurrers of the defendants. The declaration charged that he sustained injuries as a result of the negligent acts of Bobbie M. Reeves and E. P. Reeves, her son; that Bobbie M. Reeves, at the time of the accident, was seventy-nine (79) years of age, feeble minded, senile, and not physically and mentally qualified to operate a motor vehicle safely; that she applied for liability insurance through Clyde C. Scott Insurance Agency, Inc., the producing agent for assignment of Bobbie M. Reeves to the Mississippi Automobile Assigned Risk Plan [MARP], which is an unincorporated association of insurance companies authorized by the laws of the State of Mississippi and operating according to rules and regulations set forth in the minutes of the Insurance Commission of the State of Mississippi; and F. W. Williams State Agency; and United States Fidelity & Guaranty Company; and Does 1-250, various insurance entities doing business in the State of Mississippi and constituting companies involved in MARP.

The declaration further charged that the appellees were jointly and severally liable to appellant for the negligent failure to properly investigate the mental and physical capabilities of Bobbie M. Reeves as required by Section 9 of the Mississippi Automobile Insurance Plan, which would prohibit sale of insurance to, and successfully screen and investigate, applicants such as Bobbie M. Reeves, who are incompetent to operate motor vehicles safely; that all the defendants contributed to the issuance of an insurance policy in the amount of ten thousand dollars ($10,000) maximum, in violation of the intent of the statute; that the issuance of said policy at the instance of the defendants induced Bobbie M. Reeves to believe that she was a qualified driver and could safely operate her automobile; that such inducement and belief on the part of Bobbie M. Reeves directly and proximately caused the accident in which appellant was injured; and that the defendants, in issuing (and causing to be issued) the said policy of insurance, breached a duty which they owed to appellant and the general public.

Mississippi Code Annotated Section 63-15-65 (1972), as amended, provides for an assigned risk plan as follows:

“Insurance companies, authorized to issue motor vehicle liability policies in this state, shall establish an administrative agency and make necessary reasonable rules in connection therewith, relative to the formation of a plan and procedure to provide a means by which insurance may be assigned to an authorized insurance company for a person required by this chapter to show proof of financial responsibility for the future and who is in good faith entitled to motor vehicle liability insurance in this state, but is unable to secure it through ordinary methods. Such insurance companies shall establish a plan and procedure for the equitable apportionment among such authorized companies of applicants for such policies and for motor vehicle liability policies, including, but not limited to, voluntary agreements by insurance companies to accept such assignments. The premium for assigned risk plans shall not exceed the basic manual rate for risks of like classification at time of application, plus any surcharge as set by the insurance commission. When any such plan has been approved by the insurance commission, all insurance companies authorized to issue motor vehicle liability policies in the State of Mississippi, shall subscribe thereto and participate therein.
The insurance commission may determine, fix, prescribe, promulgate, change, and amend rates or minimum premiums normally applicable to a risk so as to apply to any and every assignment such rates and minimum premiums as are commensurate with the greater hazard of the risk, considering in connection therewith the experience, physical or other conditions of such risk of the person applying for insurance under any such plan.”

Mississippi Code Annotated Section 63-15-39 (1972) sets forth the manner of proving financial responsibility:

“Proof of financial responsibility may be furnished by filing with the department the written certificate of any insurance company duly authorized to write motor vehicle insurance in this state certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. Such certificate shall give the effective date of such motor vehicle liability policy, which date shall be the same as the effective date of the certificate, and shall designate by explicit description or by appropriate reference all motor vehicles covered thereby, unless the policy is issued to a person who is not the owner of a motor vehicle.”

Also, Mississippi Code Annotated Sections 63-15-49 and 63-15-51 (1972) provide methods of filing a bond as proof of financial responsibility and depositing money or securities as proof of financial responsibility, which methods are in addition to obtaining liability insurance coverage.

The case of Nipper v. California Automobile Assigned Risk Plan, et al., 19 Cal.3d 35, 136 Cal.Rptr. 854, 560 P.2d 743 (1977), has decided the question now before this Court. The case involves statutes of California similar to those of Mississippi and the defendant parties are essentially the same. Demurrers were sustained by the trial court of California. The judgment of the trial court was reversed by the Court of Appeals, Fifth District of California, on May 27,1976. Appellant apparently relied upon that decision as authority for his action because his declaration was filed October 7, 1976. However, a hearing was granted by the Supreme Court of California on July 21,1976, and on February 28,1977, the decision of the Court of Appeals was reversed and the judgments of dismissal entered by the trial court were affirmed.

We hold that the Mississippi statute and the Mississippi Automobile Assigned Risk Plan, adopted pursuant to the statute, have the same purpose as found by the California court in Nipper:

“The general purpose of the plan was to provide automobile insurance for those marginal motorists who, because they were considered ‘bad risks,’ were otherwise unable to secure and maintain such insurance. (Id., at p. 881, 216 P.2d 882; see Billington v. Interinsurance Exchange (1969) 71 Cal.2d 728, 740, 79 Cal.Rptr. 326, 456 P.2d 982.) These persons included ‘violators of traffic laws, . . . persons with minor physical disabilities, the young and the old drivers, and, of course, those who had bad accident records.’ (Cal. State Auto., supra, 96 Cal.App.2d at pp. 881-882, 216 P.2d at p. 886.) To this extent the plan complements the state’s financial responsibility laws by providing a limited fund of insurance to compensate persons injured by drivers who otherwise would be uninsurable.
It is apparent that the Insurance Commissioner, who is authorized by law to issue the plan, has assumed that the eligibility standards set forth in section 11624 are permissive standards which need not be considered by CAARP in processing applications for insurance. In fact, by reason of the 1971 amendments to the Administrative Code, CAARP must (with minor exceptions not herein relevant) provide insurance to all licensed drivers. As a corollary, with few exceptions, those carriers authorized by law to write liability insurance must participate in the plan (§ 11625) on the apparent theory that, for the purpose of extending insurance coverage as widely as possible, insurers in sharing the greater risks in the liability field must ‘take the bad with the good.’ ” 19 Cal .3d at 41, 44-45, 136 Cal.Rptr. at 856, 858-859, 560 P.2d at 745, 747-748.

In California, the Department of Motor Vehicles and not the California Auto Assigned Risk Plan has the primary authority and statutory responsibility of determining which California drivers are capable of driving safely. The Commissioner of Public Safety of Mississippi, and not appellees, has a similar responsibility and authority. Mississippi Code Annotated Section 63-1-1 (1972), et seq.

The California Supreme Court further said:

“The imposition upon CAARP, however, of general civil liability to members of the motoring public for CAARP’s failure to investigate and ‘screen out’ potentially dangerous drivers would serve to defeat that primary purpose of the assigned risk plan. To avoid such tort liability, CAARP would be under almost irresistible compulsion to reject doubtful or borderline applicants. (See Matthias v. United Pacific Ins. Co. (1968) 260 Cal. App.2d 752, 754-755, 67 Cal.Rptr. 511.) This in turn would reduce rather than increase the number of insured drivers on California’s streets and highways. In our view, the strong public policy of extending insurance coverage which underlies the existence of the plan itself outweighs any countervailing policy favoring the utilization of CAARP, in effect, as an auxiliary arm of the DMV in the general policing or control of the driving qualifications of California’s motorists. Since we cannot assume that those who are desiring coverage will cease driving, the inevitable result will be to increase the number of uninsured motorists among the very class possessing the highest risks.
We conclude that CAARP had no statutory obligation to inquire regarding Warkentin’s driving ability.” 19 Cal.3d at 46, 136 Cal.Rptr. at 859, 560 P.2d at 748.

If we followed the argument of appellant — that appellees are guilty of negligence under the allegations of the declaration here — it could also be said that any insurance company which issued a policy of liability insurance to an incompetent driver or any individual or company executing bond as proof of financial responsibility, or any individual or company depositing money or securities as proof of financial responsibility for an incompetent driver likewise could be held guilty of negligence which would sustain judgments against them.

Appellant contends that on demurrer the facts pleaded are taken as true; that he alleged facts constituting negligence on the part of appellees, and a duty incumbent upon them which was violated; and that the demurrers should have been overruled. We agree that on demurrer, all facts well pleaded are admitted as true. However, questions of law arising from those facts are for the court to decide. We hold that the allegations of the declaration failed to state a cause of action against appellees and imposed no duty, either statutory or at common law, against them, and that the demurrers were properly sustained.

The cross-appellants contend that the trial court erred in overruling their motions to dismiss, quash process and returns, and for additional time to plead. Since the decision on direct appeal sustaining the judgment of the trial court in dismissing the declaration is dispositive of the ease, it is not necessary for us to consider the cross-appeals.

The case is affirmed on direct appeal and the cross-appeals are dismissed.

AFFIRMED ON DIRECT APPEAL; CROSS-APPEALS DISMISSED.

PATTERSON, C. J„ SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING, and COFER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    K. M. PRUETT v. STATE of Mississippi.
    No. 50810.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Rehearing Denied Jan. 24, 1979.
   Appeal from Circuit Court, Calhoun County; W. W. Brown and William R. Lamb, Judges.

Lee B. Agnew, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., WALKER and BROOM, JJ., and J. RUBLE GRIFFIN, Commissioner.

AFFIRMED.


text:
    James Elton COMER v. R. D. GREGORY, Administrator of the Estate of Sherman K. Chesnutt, Deceased.
    No. 50312.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    Rehearing Denied Jan. 24, 1979.
    Parker, Averill, Funderburk & Butts, Roy 0. Parker, Tupelo, for appellant.
    Ed W. Jenkins, Booneville, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   ROBERTSON, Presiding Justice, for the Court:

James Elton Comer appeals from a judgment of the Circuit Court of Itawamba County, Mississippi, in his favor and against Sherman Chesnutt, for $125 damages based on a jury verdict for that amount rendered on a second trial of his suit for personal injuries against Sherman Chesnutt, now deceased.

This suit was based on an assault and battery committed upon Comer when he was shot in the lower right back by Sherman Chesnutt.

The jury returned a verdict in Comer’s favor for $9,000 on the first trial. Comer moved for an additur or, in the alternative, for a new trial on the issue of damages only. The trial court granted an additur of $5,500, thus raising the verdict to $14,500. Defendant rejected the additur and a second trial on damages only was held on September 9 and 10,1975. The jury on the second trial returned a verdict for $125 damages, and the trial court refused Comer’s Motion for an additur or a new trial.

Comer has assigned as error:
(1) The verdict of the jury for $125 damages where plaintiff’s actual damages were $9,433.58, was palpably against the weight of the evidence;
(2) The verdict of the jury for $125 damages evinces bias, passion and prejudice on the part of the jury; and
(3) Circumstances did not exist to mitigate plaintiff’s damages, as provided in Mississippi Code Annotated section 11-7-61 (1972).

Chesnutt has assigned as error on his cross-appeal:

(1) The trial court committed reversible error by refusing to grant jury instruction No. D-19.
(2) The trial court committed reversible error by the exclusion of testimony offered on behalf of the defendant concerning the intoxication of the plaintiff and his companion.

Shortly after midnight on May 9, 1973, 25-year-old James Elton Comer and his companion, Ricky Griggs, went upon the posted property of Sherman Chesnutt to fish in his catfish pond. Chesnutt stocked his pond with channel catfish, regularly fed these fish, and charged a fee for fishing in it. He supplemented his income as a farmer with these fishing fees. He had been having trouble with people fishing in his pond without his permission, so on this particular night his pond was being guarded by Danny Chesnutt, his 28-year-old son. After observing Comer and Griggs fishing in the pond, Danny went to his father’s home nearby and woke him up.

Sherman Chesnutt dressed and with his son walked down a public gravel road which bordered his property. Sherman stationed himself at a gate on a small dirt road leading to the catfish pond, and Danny walked down the public road in search of the fishermen’s car.

After fishing for a short time, Comer and Griggs walked back up the dirt road to the gate. There they were confronted by Sherman Chesnutt. He pointed his 12-gauge shotgun at them and ordered them to raise their hands above their heads. When they raised their hands one of them dropped a rod and reel and also a bottle of rum, which was %rds empty. Neither Comer nor Griggs would give his name nor would they tell Chesnutt where they were from. Ches-nutt thought that they were drunk from the way they were acting. Chesnutt informed Comer and Griggs that he was taking them to the law. Griggs walked down one side of the road and Comer the other side. Sherman Chesnutt moved his flashlight from Griggs to Comer and testified that Comer at that time brought his hand down “and was going for the front of his coveralls”, and that Comer appeared to be turning toward him. That is when Ches-nutt shot Comer. He testified that he thought Comer was going for a gun and that he was fearful that Comer would shoot him.

Comer was transported to a hospital where he was operated on and was in the hospital in serious condition for several weeks. His doctor testified that he would not have any permanent injuries but that he would have , a disfiguring scar from the operation.

After the shooting, Sherman Chesnutt immediately reported the incident to Constable Billy Gene Burns, who accompanied Chesnutt back to the scene of the shooting and there noted the bottle of rum %rds empty. Sherman’s testimony was corroborated by that of his son, Danny Chesnutt.

Comer’s testimony was that his medical and hospital expenses amounted to $7,833.58, and that he had missed eight weeks from work as a pharmacist at a salary of $200 per week, so he contended that his total actual damages were $9,433.58.

Mississippi Code Annotated, section 11-7-61 (1972), provides:

“Mitigating circumstances. In actions for libel or slander, assault and battery, and false imprisonment, the defendant, under the plea of not guilty, may give in evidence any mitigating circumstances to reduce the damages, notwithstanding he may also have pleaded a justification.” (Emphasis added).

Mitigating circumstances certainly would have been that these two young men were knowingly trespassing on the defendant’s property in the middle of the night, willfully disregarding his posted signs; and that Sherman Chesnutt was at home asleep and was awakened by his son, Danny, who advised him of these trespassers. Sherman Chesnutt believed that Comer and Griggs were drunk and he saw a two-thirds empty rum bottle fall from their hands. These also were mitigating circumstances. However, the most important mitigating circumstance was that when Comer lowered his hand and went into his coveralls, and partially turned toward him, Sherman Ches-nutt could reasonably have thought, as he testified he did think, that Comer was going for a gun and that that was the reason he shot him.

The jury was entitled to consider all of these mitigating circumstances and to reduce damages accordingly, even though no instruction was given on mitigating circumstances.

Mitigating circumstances are closely akin to contributory negligence, and Mississippi Code Annotated section 11-7-17 (1972), says:

“All questions of negligence and contributory negligence shall be for the jury to determine.” (Emphasis added).

In Carr v. Cox, 255 So.2d 317 (Miss.1971), involving an automobile accident, we said:

“This Court agrees that the damages are inadequate and no doubt would reverse but for the question of contributory negligence.
“Although the jury was not given an instruction on contributory negligence, the jury was justified in reducing the plaintiff’s damages in proportion to the amount of negligence attributable to her.” 255 So.2d at 317-318.

In the later case of Altom v. Wood, 298 So.2d 700 (Miss.1974), after citing Carr v. Cox, supra, this Court said:

“We are mindful that although contributory negligence is not pleaded and no instruction on comparative negligence is requested, the jury may reduce an award by taking into account plaintiff’s contributory negligence.” 298 So.2d at 702.

Mitigating or extenuating circumstances were involved in Blanton v. Tri-State Transit Company of Louisiana, Inc., 194 Miss. 393, 12 So.2d 429 (1943), which was an assault and battery case in which the jury returned a verdict of $200. In affirming this small verdict for Blanton, this Court said:

“Under Section 535, Code of 1930 [Section 11-7-61], in actions for assault and battery, defendant may show any extenuating circumstances in mitigation of damages. The jury could have concluded that the wrongful conduct of Blanton was such a mitigating circumstance as to largely reduce liability for the actual damages suffered by him.” 194 Miss, at 398, 12 So.2d at 431.

The defendant would have been entitled to a properly worded instruction on mitigating circumstances, but the trial court was correct in refusing to grant instruction No. D-19. It was an abstract instruction and not tied in in any way to the mitigating circumstances in evidence in the case at bar. It furnished no guide whatsoever to the jury. '

Because it is the duty and responsibility of the trial jury, as required by statute (11-7-17) to determine all questions of negligence and contributory negligence, and because by statute (11-7-61) the jury may consider any mitigating or extenuating circumstances in evidence in reducing damages, we are of the opinion that the judgment of the trial court, even though based on a small jury verdict, should be affirmed.

AFFIRMED ON DIRECT AND CROSS APPEALS.

PATTERSON, C. J., SMITH, P. J, and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: EMBRY, Justice.

text:
    Mary M. THAMES v. GUNTER-DUNN, INC., et al.
    77-473.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Rufus M. King, James R. Seale, Clinton B. Smith, Montgomery, for appellant.
    M. R. Nachman, Jr. of Steiner, Crum & Baker, Montgomery, and Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellees Whitcher, Kittridge, Steeves, Stewart, Skelton & Co. and Finesse Co.
   EMBRY, Justice.

The dispositive issue in this case is whether an appeal which was invalid because it was taken from a judgment that disposed of fewer than all claims and did not contain the certificate required by ARCP 54(b), divested the circuit court from further power over the judgment. Mary M. Thames filed this action and by amended complaint added as parties defendant, appellees Skel-ton and Co., Stetson Whitcher, Ray R. Steeves, Finesse Co., C. J. Kittredge, and Jamie B. Stewart.

Appellees filed a motion, supported by affidavits, to dismiss for lack of personal jurisdiction, improper venue and failure to state a claim upon which relief could be granted. On 1 December 1977 the circuit court entered an order which granted appel-lees’ motion to dismiss, but did not expressly determine there was no just reason for delay, nor expressly direct the entry of judgment as required by Rule 54(b), ARCP. Thames filed notice of appeal on 15 February 1978; however, she did not file a petition for permission to appeal an interlocutory order as required by Rule 5, ARAP.

Subsequently, Thames moved that the order of dismissal be made a final judgment as permitted by Rule 54(b). This motion was granted and a final judgment entered on 15 March 1978. On 12 April 1978 we dismissed Thames’ appeal because the order of 1 December 1977 was not a final judgment. Thames now appeals from the 54(b) final judgment of 15 March 1978.

We hold the circuit court was without jurisdiction when it entered the final judgment and will dismiss this appeal.

Filing of the first notice of appeal on 15 February 1978 immediately transferred jurisdiction of the 1 December 1977 order to this court. Consequently, the circuit court was without jurisdiction to amend the 1 December 1977 order and could not make it an appealable judgment under 54(b) so long as the appeal reposed in this court. See District 65, Distributive, Processing and Office Workers Union of New York and New Jersey, Formerly Local 65 v. McKague, 216 F.2d 153 (3rd Cir. 1954); see also Bush v. United Benefit Fire Insurance Co., 311 F.2d 893 (5th Cir. 1963).

We observe that without permission from this court a nunc pro tunc certification by the circuit court is ineffective under these circumstances. Accordingly, the appeal must be dismissed and the case remanded to the circuit court. The circuit court may re-enter and certify the judgment and upon timely appeal the case may be heard upon the present record and briefs if the parties are of a mind to do so. See 6 Moore’s Federal Practice ¶ 54.41[4] (1976 & Supp. 1978).

APPEAL DISMISSED.

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

      . “ * * * When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” (emphasis added)

      . This action was originally against, among others, First National Bank of Boston, of which appellees are officers and employees. The bank had been previously dismissed as a party defendant for lack of jurisdiction and improper venue. 12 U.S.C. § 94 restricts venue of actions and proceedings against national banking associations in federal court to the federal district in which such associations are established or located and in state, county or municipal court to the county or city in which such associations are established or located.


author: BRADLEY, Judge.

text:
    Brenda M. GREEN v. FAIRFIELD CITY BOARD OF EDUCATION et al.
    Civ. 1564.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Joseph E. Carr, IV, Montgomery, for appellant.
    Maurice F. Bishop, Birmingham, for ap-pellees.
   BRADLEY, Judge.

This is an appeal from a final judgment of the Circuit Court of Jefferson County, Birmingham Division, holding that appellee (Fairfield City Board of Education) was entitled to withhold one day’s salary from appellant (Brenda M. Green) as a result of her unexcused absence from her duties as a teacher at Fairfield High School.

The record reveals that in early November of 1977 Mrs. Green filed a request for a one day “professional” leave of absence in order to attend an educational seminar. Initially her request was granted by the principal of Fairfield High School. However, this gentleman was subsequently instructed by the superintendent of the city schools to ask Mrs. Green what educational seminar she would be attending. Mrs. Green responded that she planned to attend a “parentrStudent and teacher affair” at a local parochial school. The principal of the parochial school was contacted to determine the nature of the “educational seminar,” and as a result of the conversation with the principal it was learned that Mrs. Green had volunteered to chaperone her daughter’s second grade class on a tour of a local hamburger establishment. Upon learning of the purpose of Mrs. Green’s planned absence, the city superintendent denied her request for “professional leave.” Mrs. Green then requested a personal leave so that she could participate in the field trip by her daughter’s class. This request was also denied by the superintendent. Despite the denial of her request, Mrs. Green informed the superintendent that she would not report to work on the date of the scheduled field trip. Upon being so informed, the city superintendent told her that if she failed to report to work on that date she would not be paid. When she subsequently did not appear to perform her duties as a teacher, the superintendent ordered that a day’s pay be deducted from her salary. Thereafter, Mrs. Green filed a suit seeking to recover one day’s pay ($74.40). Her suit was premised on the ground that the city superintendent had no authority to deny her request for personal leave since the right to two days of personal leave was guaranteed to state teachers by virtue of Act 384, § 4-N(d), Acts of Alabama 1973. Following a hearing ore tenus the trial court found that the laws of Alabama permitted the exercise of discretion by school superintendents with respect to a grant or denial of a request for personal leave by a school teacher. The court thus concluded that the superintendent had not abused his discretion in denying Mrs. Green’s request for leave, and that, accordingly, she was not entitled to recover the money withheld from her salary as a result of her failure to report to work. We feel that the trial court acted properly and therefore affirmed its decision.

Act 384 appropriated money for the support, maintenance and development of public education in Alabama for the 1974-75 fiscal year. Section 4-N(d) of Act 384 provides:

In addition to the appropriations here-inabove made to the Minimum Program there is hereby appropriated funds for two (2) days personal leave for each teacher earned under the Minimum Program formula to be granted upon request of the teacher and administered by the State Board of Education and by local school boards under procedures governing-sick leave.

Mrs. Green maintains that subsection (d) has been construed to prevent the establishment by local school boards of rules and regulations which would allow a superintendent of schools discretionary authority to deny a teacher’s request for personal leave. In an informal opinion the Attorney General concluded that when personal leave is requested by a teacher, no rule or regulation “differing from those regulating the granting of sick leave . . . may be employed to determine whether or not the teacher is allowed personal leave.” 153 Quarterly Rep.Att’y.Gen. 30 (Dec. 6, 1973). Mrs. Green thus argues that the sick leave plan established by the State Department of Education does not allow local boards of education to exercise discretion in denying a teacher’s request for sick leave and that, as a consequence, local boards cannot exercise discretion in denying a teacher’s request for personal leave. We disagree.

The language of subsection (d) (and the identical language found in subsequent minimum program fund appropriations) must be construed in pari materia with other statutes relating to the same subject matter. 18 Ala.Dig., Statutes 206 and 223.2. Accordingly, section 16-8-26 of the 1975 Alabama Code must be construed in pari materia with subsection (d) since both deal with the subject of personal leave for teachers. Section 16-8-26 provides that:

Any county or city board of education may, at its discretion, grant to any teacher within its school system personal leave of up to five days annually noncumulative, during the time schools are in session. The board shall determine whether the leave is to be with part pay, full pay or without pay.

Although subsection (d) contains no reference to discretionary power by local school officials with regard to personal leave, section 16-8-26 not only accords local boards of education the authority to grant a teacher up to five days of personal leave annually, but it also allows the boards to determine whether a teacher will be paid during his (or her) absence. Thus, it is obvious that section 16-8-26 is more specific in its terms than subsection (d). And it is a rule of statutory construction that where statutes are related to the same subject and embrace the same matter, a specific or particular provision is controlling over a general provision. 73 Am.Jur.2d Statutes § 257. While subsection (d) creates a fund from which money may be made available to compensate teachers during personal leaves of absence, section 16-8-26 establishes the framework by which such leaves may be granted and the amount of compensation to be allowed therefor.

Statutory construction is subject to the dominant rule that statutes should be construed as a whole to determine legislative intent. Marengo County v. Wilcox County, 215 Ala. 640, 112 So. 243 (1927); Street v. Cloe, 207 Ala. 631, 93 So. 591 (1922). It is our conclusion that the legislature did not intend to deprive local school boards of the statutorily authorized power to review applications by teachers for personal leave by the passage of subsection (d) (and identical subsections contained in subsequent minimum program fund appropriations). Instead, we believe that the legislature merely sought to use the latter provisions as a means for making funds available for personal leave should such leave be granted. Such a view is supported by the fact that the language contained in subsection (d) and the subsequent acts appropriating funds for personal leave is not found in the codified version of Alabama’s minimum program fund. Code of Alabama 1975, § 16-13-50 et seq. Thus, the two day personal leave funded by subsection (d) and subsequent appropriation bills is not part of our state code, but rather, funding for such leave is subject to continuing legislative largesse in future appropriation bills. Consequently, it cannot be said that statutory language which is subject to continuation by means of each new educational appropriation should take precedence over the terms and conditions contained in a statute specifically authorizing local boards of education discretion in granting or denying a teacher’s request for personal leave.

Under present Alabama law, local boards of education may exercise discretionary authority in granting or denying teachers personal leave. Likewise, the boards have the authority to determine whether the leave is to be with part pay, full pay or without pay. In the instant case the Fair-field City Board of Education delegated the power to grant or deny a teacher’s request for personal leave to the superintendent of city schools. In the exercise of this power the city superintendent denied Mrs. Green’s request for personal leave. The trial court held that the superintendent did not abuse his discretion by taking such action. In view of the ore tenus rule we will not substitute our judgment for that of the trial court, particularly where, as here, the trial court heard evidence not contained in the record on appeal. Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976). See California Teachers Ass’n v. Board of Trustees, 70 Cal.App.3d 431, 138 Cal.Rptr. 817 (1977).

The trial court’s determination that the Fairfield City Board of Education was entitled to withhold one day’s salary from Mrs. Green because of her unexcused absence from her duties as a teacher is hereby affirmed.

MOTION TO STRIKE TRANSCRIPT AND DISMISS APPEAL DENIED.

AFFIRMED.

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

      . The language contained in Act 384, section 4-N(d) has been carried forward by our legislature in subsequent appropriation bills. Act 197, § 3-Q(e), Acts of Alabama 1976; Act 637, § 3-16(ee), Acts of Alabama 1977; Act 12, § 3-20(ee), Acts of Alabama 1978. And like the statutory language found in subsection (d), the provisions involving appropriations for personal leave in these subsequent acts are a part of the minimum program fund.


author: MADDOX, Justice.

text:
    Ex parte Brenda M. GREEN.
    78-154.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


author: HOLMES, Judge. ON REHEARING

text:
    KEY MORTGAGE COMPANY, a corporation v. COPELAND GLASS COMPANY, a corporation.
    Civ. 1598.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.
    Thomas A. Caddell, Decatur, for appellant.
    James F. Hinton, Gadsden, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant, claiming the defendant owed the plaintiff a broker’s fee. The circuit court, sitting without a jury, found for the defendant and plaintiff appeals.

The dispositive issue on appeal is whether the evidence before the trial court required a finding that the broker was entitled to a fee. We hold that the evidence does require such a finding and reverse and remand.

The pertinent facts are without any significant dispute and are as follows: The plaintiff is in the commercial loan brokerage business. The defendant hired the plaintiff to assist defendant in obtaining financing for a construction project. The plaintiff submitted a loan package to a lending institution. The lending institution made a loan commitment to defendant. This loan commitment was accepted, in writing, by the defendant. The loan was never in fact closed as one of the conditions could not be complied with. Specifically, the loan was not closed because the lender had conditioned its commitment on a seventeen-year lease guarantee by a specified third party. The third party’s standard lease guarantee was ten years, and, for undetermined reasons, a longer guarantee was not obtained within the time required by the lender. As a result, the lender canceled his commitment and did not extend credit to defendant.

The defendant’s position, as we perceive it, is that the agreement was that the loan must be actually “made” before the brokerage fee is due. The plaintiff contends that the fee is due and owing when the loan commitment was obtained and accepted by defendant.

The decision of this court in Johnson v. Boggan, 56 Ala.App. 668, 325 So.2d 178 (1975), a case quite similar to the instant case on its facts, is instructive in the instant appeal.

In Johnson, supra, a mortgage broker had an agreement with his client to procure a loan commitment. The broker’s fee was to be paid when the client accepted the commitment. The broker subsequently found a suitable lender, who then tendered a commitment to the client. The client accepted after imposing a condition that the commitment would be canceled if the client could not obtain a five-year lease of his proposed facility from the state. The lease could not be obtained, the commitment was canceled, and the client refused to pay the brokerage fee.

This court noted:

“[T]he brokerage contract between [the broker and the client] and the loan commitment between [the client and the lender] are two separate and distinct agreements.
“. . . The contract [between the client and the lender] provides that the commitment is to be subject to the condition that the lease with the State of Alabama be obtained. However, [the client’s] obligation to pay the [brokerage] commission is not made so contingent. [The client’s] duty to pay is to arise when he accepts the commitment, with its attached condition. The condition is solely referable to the loan commitment between [the client and the lender], and has no application to the instant contract between [the broker and the client].” 56 Ala.App. at 671-72, 325 So.2d at 181.

If the agreement between plaintiff and defendant in the instant case was that plaintiff procure a loan commitment, then the plaintiff has earned his broker’s fee, because, as previously noted, the defendant had accepted, in writing, the lender’s loan commitment with its attached conditions. As we noted in Johnson, supra, the conditions imposed on the loan commitment have no bearing on the defendant’s duty to pay the broker’s fee.

The issue before us now becomes whether the contract between plaintiff and defendant was for plaintiff to procure a loan commitment or to procure a loan. We find that it was a contract to procure a loan commitment.

The law regarding mortgage brokers and their clients may be derived by analogy from cases dealing with real estate brokers. 12 Am.Jur.2d Brokers § 194 (1964); Annot., 45 A.L.R.3d 1326 (1972).

The law in this state regarding a real estate broker’s right to his commission is that “unless the seller and the broker have agreed to the contrary the broker is entitled to receive a commission when he procures a purchaser ready, willing, and able to buy on the seller’s terms, even though the sale is never consummated. . . . ” (Emphasis supplied.) Alabama Fuel Sales Co. v. Vulcan Energy Resources Corp., Ala., 339 So.2d 1007, 1009 (1976) (and cases cited therein).

In the instant case, there was no express provision in the contract between the parties that plaintiff’s responsibilities would extend past the procuring of a loan commitment.

Plaintiff began his services for defendant under an oral contract. See Hover v. Whit-taker-Warren Agency, 56 Ala.App. 255, 321 So.2d 213 (1975) (broker-client contract need not be in writing to be valid). Our review of the record reveals no testimony that either plaintiff or defendant intended that plaintiff’s services would extend past the procurement of a commitment. In fact, it was the uncontroverted testimony of plaintiff and an agent of defendant’s would-be lender that a mortgage broker earned his fee when a commitment was procured.

It is clear to this court that the learned trial judge determined that the contract in question was that plaintiff procure a loan. This finding is apparently based on a document dated March 20, 1974, and signed by plaintiff and defendant on March 24, 1974. This document reads in part, “Broker has obtained a loan [for client].” This is the only evidence of any intent of the parties that plaintiff would be obligated to procure a completed loan transaction rather than a loan commitment. However, it is clear to this court that this document is in the nature of a receipt rather than a contract for future services. The document states that the defendant agrees to pay for “services rendered.” The document was signed two days after defendant had accepted the lender’s commitment. According to the testimony, the procurement of this commitment was the “services rendered” to which the document refers. Additionally, plaintiff neither performed any services nor was requested by defendant to perform any services after signing the document in question.

Summarizing, a broker may obligate himself by contract to ensure that the client’s loan is closed as opposed to obtaining a loan commitment. Walker v. Dorsett, 221 Ala. 623, 130 So. 380 (1930) (and cases cited therein); 12 Am.Jur.2d Brokers § 195 (1964). However, this obligation must be expressly stated. Alabama Fuel, supra; accord, Taylor v. Riley, 272 Ala. 690, 133 So.2d 869 (1961); Oates v. Lee, 222 Ala. 506, 133 So. 44 (1931). We find that no such express statement has been made in the instant case. In this instance, once defendant accepted the lender’s commitment, the brokerage fee was owed and the burden of future financial negotiations fell upon the defendant. Accordingly, the decision of the trial court is due to be reversed and remanded.

REVERSED AND REMANDED.

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

ON REHEARING

On rehearing, the mandate of this court is amended to read as follows:

“REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.”

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: JONES, Justice.

text:
    Ex parte COPELAND GLASS COMPANY, a corporation.
    78-150.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   JONES, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    George W. ROBERSON, Jr. v. George Taylor FAIRCLOTH.
    Civ. 1504.
    Court of Civil Appeals of Alabama.
    Nov. 8, 1978.
    Rehearing Denied Dec. 13, 1978.
    James E. Hart, Jr., Brewton, for appellant.
    Johnnie B. Byrd, Jr., of Caffey & Byrd, Brewton, for appellee.
   WRIGHT, Presiding Judge.

This is an action to have a deed of mineral acreage declared an equitable mortgage and to have the mortgage indebtedness determined. Judgment after oral hearing was for the plaintiff Faircloth. Defendant Roberson appeals.

Plaintiff and defendant were in the respective relationship of debtor-creditor for a period of several months prior to September 2, 1976. On more than two occasions plaintiff had borrowed money from defendant. Loans had occurred with and without the giving of security. There was one occasion on which plaintiff had given defendant a mortgage on mineral acreage as security for a loan of six hundred fifty or more dollars. Plaintiff testified that on September 2, 1976 he repaid all loans and was not indebted to defendant. Defendant testified that plaintiff owed him a balance on the mortgage on September 2, 1976.

It was undisputed that on September 2, 1976 plaintiff requested a loan of money from defendant. There is no dispute that defendant loaned plaintiff a sum of money on that date. It is further undisputed that plaintiff executed a warranty deed conveying the defendant five mineral acres of land, and contemporaneously defendant executed an instrument agreeing to sell to plaintiff the mineral acreage described in the deed upon the payment of $665 on or before September 25, 1976. That instrument subsequently was endorsed by defendant agreeing to extend the time for purchase until October 25, 1976 for a purchase price of $775. Plaintiff failed to pay by October 25. Defendant recorded the deed and refused plaintiff’s offer of payment thereafter.

Plaintiff was permitted, over objection of defendant, to testify that the deed was not intended to be a sale and conveyance but was to be held as security for a loan. The deed was not to be recorded but was to be returned when the loan was paid. The plaintiff was also permitted to testify over objection that the time for repayment or repurchase under the written agreement was extended by oral agreement on the 26th of October until December 25, 1976. He testified that it was agreed that he would pay to defendant $65 per week until December 25. There was evidence that he made two of those weekly payments, though defendant said they were upon a separate debt. Plaintiff further testified that after recording the deed, defendant informed him of the amount of indebtedness due. When he offered a cashier’s check in that amount, defendant refused to accept it.

The first issue presented by defendant on appeal is that the court erred in allowing parol testimony concerning the deed and written agreement to sell the mineral acreage back to plaintiff. Defendant relies upon the general principle that parol evidence is not admissible to vary the terms of a written instrument. Such reliance in this case is misplaced. In an action to declare a deed absolute on its face to be a mortgage, the essential fact to be established is that the deed was intended as security for a debt. Such fact may be proved by parol evidence. Nowell v. Pate, 264 Ala. 644, 89 So.2d 170 (1956); Cousins v. Crawford, 258 Ala. 590, 63 So.2d 670 (1953); Hooper v. Reed, 211 Ala. 451, 100 So. 875 (1924).

The second and third issues are in reality one and that is whether the plaintiff met the burden of proving that the deed was in fact not intended to be a conveyance but security for payment of a debt.

The principle supporting an action to have a deed, absolute on its face, declared a mortgage arises in equity. That principle has been expressed in many cases as follows: Equity looks through form to substance. Smith v. Thompson, 203 Ala. 87, 82 So. 101 (1919). Equity regards the substance not the form, and it matters not what form the transaction may assume. If it was intended by the parties to accomplish the securing of a debt, equity regards the transaction as a mortgage. Lewis v. Hickman, 200 Ala. 672, 77 So. 46 (1917).

The opinion in the case of Cousins v. Crawford, Supra, written by a distinguished jurist over twenty-five years ago, is a well-researched and erudite relation of the many principles of law applicable to cases of this kind. We have neither the time nor inclination to repeat all of them here but refer readers of this decision to that opinion. However, it is necessary to restate some elements of proof regarded of controlling importance in answering the question of whether a transaction is to be determined an absolute sale with the right to repurchase or a mortgage. Such elements are: Did the relation of debtor and creditor exist before and at the time of the transaction? Or, did the transaction commence in a negotiation for a loan of money? Was there great disparity between the value of the property and the consideration shown to have been paid? Is there a debt continuing for the payment of which the vendor is liable?

“If any of these facts are found to exist in a doubtful case, it will go far to show a mortgage was intended.” Cousins v. Crawford, 258 Ala. 590, 599, 63 So.2d 670, 678.

The evidence in this case supports a finding of the existence of each of the above elements. There was an existing debtor-creditor relationship. The transaction involved commenced with a request for a loan of money by plaintiff from defendant. There was great disparity between the $665 stated as consideration in the deed and the nine to twelve thousand dollars shown to be the actual fair market value. There was also evidence that there was a continuing debt. It was undisputed that it was agreed between the parties that the deed was to be held without recording from September 2 to September 25 and by extension for an additional consideration until October 25, 1976. It was intended that the deed not be effective unless that time expired without payment of the debt. Also available for consideration in determining intent is the admitted fact that defendant did not notify the lessee of the mineral rights, Exxon, of his title until some two months after the deed was recorded. It is also for consideration that plaintiff’s wife did not sign the deed. It is our judgment that in considering and weighing the parol testimony as to the intent and purpose of the transaction, the trial court was at liberty to view the agreement to sell executed by defendant contemporaneously with the deed and for the same consideration, as a defeasance of the deed and as forming one transaction therewith. Palmer v. Lundy, 293 Ala. 463, 305 So.2d 369 (1974).

When the evidence and overt acts of the parties are considered in light of the presumption of correctness of the judgment of the trial judge after oral hearing, we cannot find the judgment erroneous.

As a fourth issue, defendant contends the court erred in ruling against his defense of the Statute of Frauds. We are unable to see the applicability of the Statute of Frauds except as a defense against the enforcement of the agreement to resell. Defendant contends that the claim of plaintiff that the agreement was orally extended is void as against the statute. The court did not direct the enforcement of the agreement, but rather found the deed to be in fact a mortgage. Therefore, the issue appears to be moot. However, the oral extension of time for payment of a mortgage is not in violation of the Statute of Frauds. Land v. Cooper, 250 Ala. 271, 34 So.2d 313 (1948); Woolen v. Taylor, 241 Ala. 316, 2 So.2d 413 (1941).

Finding no error below we affirm the judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte George W. ROBERSON, Jr.
    78-177.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Caroline R. FOSTER v. Edward E. FOSTER.
    Civ. 1571.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.

      Ronald P. Slepian and Gordon 0. Tanner, Mobile, for appellant.
    Herndon Inge, Jr., Mobile, for appellee.
   BRADLEY, Judge.

This appeal is from a divorce decree entered by the Circuit Court of Mobile County. The wife (appellant-Caroline Foster) maintains that the trial court improperly ordered a property division which resulted in the award of a portion of her separate estate to her former husband (appellee-Ed-ward E. Foster). The wife also claims that the property settlement between the parties constituted an award of alimony to the husband.

The parties were divorced in May of 1978. Although the ground for their divorce was incompatibility of temperament, the underlying cause of the marital breakup was the husband’s discovery that the wife had established a number of savings accounts in two banks into which she deposited her earnings from a position as a clerical worker at a local hospital. The accounts in one bank were held in the name of the wife, her daughter by a previous marriage, and the wife’s father. Some of the accounts in the second bank were in the name of the wife and the parties’ minor child while others were in the name of the wife and her daughter. Although the husband was aware of the existence of the savings accounts, it was his belief that his name was listed as a joint owner in the funds contained in the accounts. When the husband learned that such was not the case, marital problems arose between the parties which culminated in their divorce. It is the funds contained in the savings accounts which are at issue on this appeal.

The trial transcript reveals that both the husband and the wife were employed throughout most of their marriage. They maintained a joint checking account in which the husband’s salary was deposited, along with portions of the wife’s earnings. The family expenses were drawn from this account. In addition, the wife maintained the aforementioned savings accounts. Into these accounts the wife placed approximately half of her salary. One of the accounts which was held in the name of the wife and her daughter by a previous marriage also contained funds earned by the daughter during summer employment as a lifeguard. Other accounts included money from child support payments received from the wife’s first husband. The funds contained in the savings accounts amounted to approximately $21,000-$22,000. At the termination of the proceedings in this matter, the trial court directed that the wife transfer to the husband the sum of $6,500 as “his share of the savings accounts.” We hold that the trial court’s action in awarding the husband that amount constituted a plain and palpable abuse of its discretion.

It is axiomatic that the parties to a divorce submit themselves and their property to the equity jurisdiction of the trial court. Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). And a divorce decree dividing the property of the parties is a matter addressed to the discretion of the trial court subject to review only for abuse of that discretion. Hamaker v. Hamaker, 57 Ala.App. 333, 328 So.2d 588 (1975). Moreover, a divorce decree which divides the couple’s jointly owned property is not improper nor does such a decree violate the rule prohibiting a grant of alimony to the husband from the wife’s estate. Bailey v. Bailey, Ala.Civ.App., 345 So.2d 304 (1977); Hamaker v. Hamaker; Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735 (1972); Body v. Body. However, there is no authority for an award of the wife’s separate property to her ex-husband regardless of whether she acquired such property prior to or after the marriage. § 30-4-1, Code of Alabama 1975.

In the present case the money deposited in the savings accounts was derived entirely from the earnings of the wife and her daughter by a previous marriage and from child support payments received as a result of that prior marriage. There was no evidence that the husband’s salary was ever deposited in the accounts. Nor was there any evidence that he contributed to the funds contained in those accounts. Finally, the accounts listed the wife and other persons as joint owners — no account was held in the joint ownership of the husband and the wife. Consequently, the savings accounts were the separate property of the wife and should have been excluded from the assets which were divided between the parties upon their divorce. Sides v. Sides, 284 Ala. 39, 221 So.2d 677 (1969); Creel v. Creel, Ala.Civ.App., 342 So.2d 793 (1977).

The obligation of a husband to support and maintain his wife is not absolved by the existence of her separate estate. Guthrie v. Bobo, 32 Ala.App. 355, 26 So.2d 203 (1946). Thus, while it is true that the husband’s earnings were used for family expenses, thereby increasing the portion of the wife’s salary available for her own savings, this fact did not entitle the husband to a share of those savings. For its failure to exclude the money in the savings accounts from the property division between the parties the trial court is reversed.

The final issue to be disposed of on this appeal arises from the wife’s contention that the language found in the divorce decree regarding the residence of the parties is ambiguous. We disagree.

The judgment of divorce states:
THAT the jointly owned homeplace . shall remain in the joint names of the parties and the Defendant [wife] shall have possession of the homeplace for as long as she remains unmarried or until the minor child reaches his majority. It is further Ordered that the Plaintiff [husband] shall be responsible for the house-note, taxes and insurance on the said homeplace and when the child reaches his majority or the Defendant [wife] remarries the said homeplace shall be sold and the equity equally divided between the parties.

This language indicates that upon the wife’s remarriage or the minor child’s nineteenth birthday, whichever occurs first, the home is to be sold and the proceeds divided equally between the parties. We find no error or ambiguity in this part of the trial court’s decree.

That portion of the divorce judgment directing the wife to transfer $6,500 to her former husband as his share of the savings accounts is reversed. In view of our reversal of that portion of the trial court’s decree, we remand the case to the trial court in order that it may reassess the entire property division contained in the judgment of divorce.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    Brenda DeLuna GRUBBS v. James H. GRUBBS.
    Civ. 1544.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.

      Joel M. Nomberg, Daleville, for appellant.
    Dow T. Huskey, Dothan, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Houston County, after an ore tenus hearing, granted a divorce, made a division of property, and awarded the parties’ two minor twin boys, age 3, to the husband.

The wife appeals contending the trial court erred to reversal in awarding custody of the children to the husband. We disagree and affirm.

The evidence is in conflict. However, viewing the record with the attendant presumptions accorded the trial court’s decree, there is evidence that the mother left the children on several occasions. These absences were on occasion for extended periods of time. During these times the husband cared for the children. Additionally, there was testimony that the mother had an “affair” with a man other than the husband while married to the husband.

There was also evidence that the husband had a violent temper and had on occasion “hit” the children leaving marks on them.

Both parties worked. The mother at one time worked two jobs. The mother now works at night and the father during the day. We would note at this point that the work schedules as now existing also existed during the marriage. Presently, the father leaves the children with a baby-sitter in the home of the baby-sitter during the day. The father cares for the children at night.

In addition to the above, there was testimony that both parties were excellent parents and the children would be cared for by either.

While the above is not a detailed statement of the entire evidence presented below, we believe it to be sufficient for purposes of this appeal.

Able and distinguished counsel for the mother in a well written brief argues the “tender years” doctrine.

The following language found in Linderman v. Linderman, 49 Ala.App. 662, 664 — 65, 275 So.2d 342, 343-44 (1973), and quoted in Keele v. Keele, Ala.Civ.App., 347 So.2d 1360,1361 — 62 (1977), is appropriate and controlling in this instance:

“Cases dealing with custody of children are among the hardest to deal with and courts are seldom satisfied in all respects with the results reached; however, the overwhelming consideration in cases of this nature is the welfare of the children.
. The trial court heard the evidence, observed the witnesses, and based its decision of these factors in arriving at its determination that the welfare of the children would best be served by [the father] having primary custody of the children. There is a strong presumption favoring the trial court’s findings in cases of this class. . . . We are further mindful [that] . . . there is no law in this state which gives either parent priority as to the right of custody. It is usually that a child or children, particularly a girl of tender years, is considered to need the peculiar care of the mother, but such consideration is subject to the predominant rule of the best interest and welfare of the child or children. .
“ . . . As the Supreme Court of Alabama has stated, ‘ . . . it is not necessarily a question as to what view the reviewing court might have of the evidence, but that if, under any reasonable aspect, the decree below is fairly supported by credible evidence, it is our duty to affirm.’ See Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809.”

With the above in mind, and considering the evidence of the mother’s absences from the home and her other conduct, as indicated above we cannot say that the trial court erred to reversal.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Robert Emmett MARKS v. Gloria Jean H. MARKS.
    Civ. 1602.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.
    Perry Hubbard of Hubbard, Waldrop, Tanner, Russell & deGraffenried, Tuscaloosa, for appellant.
    Robert B. Harwood, Jr. of Rosen, Wright, Harwood & Albright, Tuscaloosa, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband contests the trial court’s division of property and award of alimony to the wife.

The parties were divorced on March 21, 1978, after a twenty-year marriage. Three sons were born of the marriage. The two older sons are currently attending the University of Alabama on football scholarships. Custody of a minor son was placed in the wife.

The husband is employed by the University of Alabama Athletic Department as a coach and recruiter. The wife has worked at various jobs during the marriage but has no special skill or training, having dropped out of college during her sophomore year in order to marry the husband. She is currently employed as a pre-school teacher in Tuscaloosa.

The parties were granted a divorce on the ground of incompatibility. The trial court did not find either party solely at fault for the failure of the marriage; however, it did note that the wife had given “more devotion to its existence and continuance.”

The husband has a take-home salary of approximately $1,250 a month. There was evidence that the husband receives additional financial benefits such as salary bonuses, travel allowances, free meals in the athletic dormitory, honorariums from speeches, tickets to University of Alabama football games, and clothing store discounts. The wife’s take-home pay from her position as a teacher at the pre-school is approximately $438 a month.

The trial court awarded the parties’ jointly-owned residence to the wife to provide a home for herself and the minor child, and to provide opportunity for the other sons to come home on weekends and vacations from school. There was an equity of about $30,-000 in the home. The wife will be responsible for monthly mortgage payments of $217.82 plus taxes and maintenance expenses on the home. The wife received the bulk of all household furniture and the parties’ 1969 Buick. She was given the funds in the parties’ joint savings and checking accounts which amounted to about $1,300.

The husband retained approximately $800 worth of stock and his retirement fund which is a growing fund valued currently at slightly less than $5,000. The husband was ordered to pay $500 monthly alimony to the wife and $200 monthly in support of the minor son, now fourteen years old.

The husband contends on appeal that the property division and alimony award to the wife were excessive and arbitrary. It is the well established rule of this court that we review a judgment by a trial court in divorce cases with a presumption of correctness in any case where that court has heard the testimony and viewed the witnesses. Weed v. Weed, 358 So.2d 459 (Ala. Civ.App.1978).

The division of property, after consideration of equities and contribution by the parties, is a matter for the discretion of the trial court, and will not be disturbed on appeal except upon a showing of palpable abuse. Caldwell v. Caldwell, 54 Ala. App. 479, 309 So.2d 833 (1975). The division of property in a divorce case does not have to be equal but is graduated according to the nature of the case. Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977). It is evident from the expressions in the judgment that the factors relevant to a fair and reasonable award of alimony were considered by the trial court. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973). Though it is evident that good management and sacrifice must be practiced by both parties, this court cannot supplant the good judgment and discretion of the trial court with our own. Finding no clear abuse of discretion in the judgment below, we must affirm it.

The request of the wife for an attorney fee on appeal is granted. She is awarded the amount of $500 for the services of her attorney on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    DAN RIVER MILLS, INC. v. Barney FOSHEE.
    Civ. 1615.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.

      John M. Milling, Jr. and William I. Hill, II of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    William P. Boggs and J. Marise Mims of Boggs & Mims, Clanton, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The plaintiff claimed compensation for a disabling occupational disease sustained while in the employ of the defendant, Dan River Mills, Inc. The trial judge found that plaintiff had contracted an occupational disease, byssinosis, and that the byssinosis had been caused by a hazard peculiar to the textile industry. As a result of this disease, the court found that plaintiff was 100% permanently disabled and awarded accumulated and future compensation. Defendant appeals.

The issues before this court are whether there is any legal evidence to support the findings of the trial court that plaintiff (1) has the occupational disease of byssinosis and (2) that the disease was caused by a hazard peculiar to plaintiff’s place of employment.

The record reveals the following: The defendant is a manufacturer of cotton products. The plaintiff is fifty-eight years of age and has been employed by the defendant since 1935. He earns $3.40 per hour as a weaver.

Plaintiff’s job is to operate eighty-six looms in the plant’s weave room. The atmosphere in the weave room is constantly dusty and the employees running the looms must blow the dust from the looms with air hoses in order to properly operate the machines. The weave room is apparently not ventilated and there are no exhaust fans to remove the dust from the area. The employer provides no safety equipment to its workers to prevent inhalation of the ever present dust.

In 1967, plaintiff began experiencing chest discomfort and coughing which he testified was most noticeable on Monday mornings. When the symptoms progressively worsened, plaintiff terminated his employment in January, 1976.

In December, 1976, Dr. Goodman, plaintiff’s physician examined him and diagnosed his condition as byssinosis. Plaintiff was subsequently referred by defendant to two other medical specialists, Drs. Bran-scomb and Williams, who diagnosed his disease as not being byssinosis. Plaintiff then instituted the instant action for workmen’s compensation benefits.

After hearing the evidence ore tenus, the trial court found for the plaintiff. Specifically, the learned judge’s order found in part the following:

“3. On January 17, 1976, the Plaintiff sustained an occupational disabling disease arising out of and in the course of his employment with the Defendant, Dan River Mills, Inc., to wit, byssinosis.
“4. The Plaintiff has suffered an occupational disease as defined in Article 4 Title 25 — 5—110 Et Seq. to wit byssinosis, caused by a hazard peculiar to the textile industry.’’ (Emphasis supplied.)

The defendant appeals and contends in a well reasoned brief that the plaintiff failed to prove that he in fact has byssinosis, and further, (assuming arguendo the plaintiff has byssinosis) the plaintiff failed to prove that the byssinosis was caused by an agent present at the place of employment.

We agree with the defendant that the burden is upon the employee to establish to the satisfaction of the trial court that his disease arose out of and in the course of his employment. Kroger Co v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Williams v. Tennessee Valley Butane Co., 265 Ala. 145, 90 So.2d 84 (1956). However, we note that in this court’s review of a workmen’s compensation case, we will not review the weight or preponderance of the evidence. Fairfax Mfg. Co. v. Bragg, Ala.Civ.App., 342 So.2d 17 (1977); Romine v. McDuffie, Ala.Civ.App., 341 So.2d 952 (1977). Instead, if there is any legal evidence or a reasonable inference therefrom to support the findings of fact by the trial court, those findings will not be disturbed on appeal. Cochrum v. Kinro Industries, Inc., Ala.Civ.App., 352 So.2d 456 (1977); Conagra v. White, Ala.Civ.App., 348 So.2d 502 (1977). As set forth below, our review of the record indicates there is evidence to sustain both of the learned judge’s conclusions which are at issue here.

To facilitate the discussion of the issues in this case, we briefly review the technical aspects of the disease byssinosis and ;ts causes.

The record reveals that byssinosis is an occupational respiratory disease long associated with workers in the cotton industry. In its later stages, its symptoms are indistinguishable from those of bronchitis and pulmonary emphysema. However, in its early stages byssinosis is distinguishable from these other two diseases in that the subject with byssinosis experiences a symptom known as the “Monday Morning Syndrome.” Subjects with bronchitis or emphysema do not experience this symptom. Victims who experience the “Monday Morning Syndrome” feel extreme chest discomfort on Monday mornings after a weekend absence from inhaling the ever present cotton dust in the mill. The Monday morning discomfort gradually decreases as the work week progresses, presumably because the victims again begin to inhale the cotton dust which causes the disease.

With respect to the causes of byssinosis, the record further indicates that the state of current medical knowledge is not such that there is agreement among the scientific community as to its exact cause. It is agreed however that the disease is virtually unknown outside the cotton textile industry. The primary difference of opinion among experts as to the cause of the disease is whether it is caused solely by inhaling cotton dust in general, or whether the dust which is inhaled must contain a substance known as bract, a leafy substance which grows on the cotton plant near the cotton boll. Although recent studies indicate that the incidence of the disease is highest in mill areas where the cotton dust contains greater percentages of bract, they also indicate that workers in plant areas where the bract content in the cotton dust is lowest (or virtually negligible) contract the disease as well. Given this state of the art we discuss each of the defendant’s contentions.

The defendant first maintains that there was insufficient evidence presented at trial which establishes that plaintiff in fact has byssinosis. We do not agree inasmuch as our review of the record indicates there was conflicting testimony concerning the diagnosis of plaintiffs disease.

The record reveals that three medical experts examined plaintiff and testified as to their findings. All three were specialists in internal medicine and lung diseases. Each of the three had extensive experience in the treatment of occupational respiratory diseases.

Dr. Goodman, a practicing specialist in lung diseases and an associate professor in internal medicine at the University of Alabama in Birmingham, diagnosed plaintiff as having byssinosis. Dr. Goodman testified that byssinosis is caused by prolonged inhalation of the cotton dust. At one point in the questioning, Dr. Goodman testified as follows:

“Q. . . . Doctor, with your examination and review of Mr. Foshee’s history with inhalation of cotton dust over a period of years, which caused him to cough, wheeze, have tightness of the chest and loss in breathing capacity, is this one of the symptoms of byssinosis?
“A. Yes, sir.
“Q. Can you diagnosis Mr. Foshee’s ailment at this time as byssinosis?
“A. I have done so.”,
and later:
“Q. Doctor, with your findings of inhalation of cotton dust over a period of years, with the coughing, the wheezing, the tightness of the chest, what is your ultimate diagnosis of Mr. Fosh-ee?
“A. That he has byssinosis.”

Notwithstanding this testimony, the defendant introduced conflicting evidence by way of two expert witnesses.

Dr. Branscomb, head of the lung disease division of the University of Alabama Medical Center, testified that he diagnosed plaintiff’s affliction as hypertension and bronchitis (possibly due to cigarette smoking), but not byssinosis. Dr. Branscomb stated that he had never heard of a case of byssinosis occurring in the weave room, that the bract and leaf material believed to cause byssinosis were in low concentration in that part of the mill, and the plaintiff’s history of always having worked in that area was in no small measure responsible for the negative diagnosis. We note, however, that he could not be positive that plaintiff did not have byssinosis. At trial Dr. Branscomb stated:

“Q. Yes, sir. There is no way — medically . . that you can tell that this man does not have byssinosis, is it, Doctor Branscomb?
“A. There’s no way that one can positively say that this person has not— yeh, I think that’s right. I don’t think you can positively say that he doesn’t have byssinosis.
“Q. All right, sir.”

Defendant’s second expert witness, Dr. Williams, is an expert in pulmonary disease and internal medicine at Duke University in Durham, North Carolina. By way of deposition, Dr. Williams testified that he diagnosed the plaintiff as having bronchitis ard emphysema but not byssinosis. Dr. Williams’ diagnosis was predicated in part on the fact that he had elicited no history of the “Monday Morning Syndrome” in his examination of plaintiff. Dr. Williams further premised his diagnosis on research which indicates that byssinosis occurs primarily in mill areas where cotton bract is more prevalent in the atmosphere. We note, however, that the doctor stated that more recent articles report the disease in weavers.

To this court, there is ample legal evidence to support the finding of the trial court that plaintiff has byssinosis. There was testimony, according to Dr. Goodman that plaintiff did in fact have byssinosis. In addition, the defendant’s two expert witnesses admitted plaintiff could have byssi-nosis. Further, the plaintiff testified that he experienced extreme Monday morning discomfort and, as we noted above, this is the sole distinguishing factor that sets bys-sinosis apart from other similar diseases. Where, as here, in a workmen’s compensation case, there is conflicting testimony, and some testimony supports the findings of the trial court, that finding is deemed conclusive. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159 (1957); Loggins v. Mallory Capacitor Co., Ala.Civ.App., 344 So.2d 522 (1977).

The defendant next contends that plaintiff failed to meet his burden of proof inasmuch as there was no evidence that he was exposed to a byssinosis causing agent. The defendant maintains this is so because the proven cause of byssinosis is cotton dust which contains bract. Specifically, the defendant maintains that bract-free cotton dust does not cause byssinosis, and since the plaintiff failed to show that bract was continually present in the cotton dust in the weave room where he worked, the evidence fails to establish the disease was caused in a work-related environment. We disagree because our review of the record indicates there was conflicting evidence that plaintiff was exposed to a byssinosis causing agent at his place of employment.

Each of the parties presented evidence at trial as to the cause of byssinosis and the presence of the disease producing agent at the plaintiff’s place of work.

Dr. Hatcher, a Ph.D. in environmental engineering and an associate professor at Clemson University in Clemson, South Carolina, has been studying byssinosis since 1971. In essence, Dr. Hatcher testified that based on his research, bract is the sole agent in cotton dust which causes byssino-sis.

In addition, Dr. Hatcher testified that as an environmental engineer, he performed a variety of sophisticated chemical analyses of dust samples taken from the weave rooms of some fifty different mills and had never detected bract in these samples. We note, however, that he testified that he had not chemically analyzed the dust in the weave room in defendant’s plant. Dr. Hatcher did testify, though that all cotton mills operate in a similar fashion and that he had inspected the Dan River mill and had found its operations to be standard. With respect to the issue of causation, our review of the record indicates that both the plaintiff and defendant introduced evidence which indicates that bract is not the sole substance in cotton dust which causes byssinosis. Specifically, Dr. Goodman testified that there is insufficient evidence to identify the byssinosis causing agent in cotton dust, i. e., the state of the art is not such that experts agree on the cause of disease. In essence, Dr. Goodman testified that byssinosis is caused by the inhalation of cotton dust generally.

We further note that the defendant’s evidence shows that whatever the cause, weavers as well as workers in other areas of cotton mills contract byssinosis at a significant rate. On this point, the defendant’s witness, Dr. Williams, stated that recent research indicates that the incidence of the disease in weavers is much higher than previously suspected and that weavers in fact contract the disease. The research to which Dr. Williams referred was introduced in evidence and this document reports a significant incidence of the disease in the specific area of the mill in which plaintiff worked, i. e., the weave room.

In view of this conflicting evidence, it is clear to this court that the scientific community is not in harmony as to the cause of byssinosis. Put another way, there is sufficient scientific uncertainty to preclude this court from holding that bract, as a matter of law, is the sole agent which causes byssi-nosis.

We further note that plaintiff’s proof established that he worked in the weave room at Dan River for thirty-eight years and was exposed to high levels of cotton dust throughout this period. There was evidence that the dust was constantly visible in the air. Furthermore, Dr. Hatcher testified that a portion of this dust is respirable. Finally, plaintiff was diagnosed as having byssinosis, and as we noted above, the disease is virtually unknown outside the textile industry.

Given this conflicting evidence the trial court was free to conclude, as it did, that plaintiff’s byssinosis arose out of and in the course of his employment with the defendant. Where, as here, the trial court is reasonably satisfied from the evidence that the employee was exposed to a hazard peculiar to the industry, and that his disease resulted from that exposure, United States Steel Corp. v. Danner, 263 Ala. 310, 82 So.2d 404 (1955), it is not appropriate for this court to substitute its judgment for that of the trier of fact. Cochrum, supra; Conagra, supra.

To further substantiate what we have said, we note that cases of this nature must be interpreted in light of the fundamental beneficent policy of the Workmen’s Compensation Act. Because of the act’s remedial purposes, it should be liberally construed and all reasonable doubts resolved in favor of the employee. Gilmore v. Rust Engineering Co. 289 Ala. 46, 265 So.2d 591 (1972); Hamilton Motor v. Cooner, 254 Ala. 422, 47 So.2d 270 (1950); Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1977).

For the foregoing reasons, we cannot say that the record is devoid of any legal evidence, or reasonable inferences therefrom, to support the trial court’s findings. Accordingly, we find no error in the learned trial judge’s conclusion that the plaintiff contracted byssinosis and that this disease arose out of and in the course of his employment.

AFFIRMED.

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


text:
    Billy Max PARRISH v. Maxine P. PARRISH.
    Civ. 1618.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.

      Jere C. Segrest and Robert F. Northcutt of Hardwick, Hause & Segrest, Dothan, for appellant.
    J. R. Herring, Dothan, for appellee.
   BRADLEY, Judge.

Maxine P. Parrish, the appellee-plaintiff, commenced this action on April 25, 1978 by asking the court to hold Billy Max Parrish, the appellant-defendant, in contempt for his alleged failure to pay support and automobile insurance premiums, as provided in the divorce decree of June 28, 1971. The original divorce decree incorporated an agreement between the parties which provided that the husband would pay to Maxine P. Parrish for the support and maintenance of Maxine P. Parrish and the minor children, Carmilita Parrish and Micah Parrish, the sum of $500 per month. In addition, paragraph five of the agreement incorporated into the divorce decree provided for additional expenses of the children, such as educational, medical, and dental expenses. Car insurance premiums for the wife were also to be paid by the husband to the wife. Defendant answered the motion to show cause and included a request for modification of the support provision in the former decree. The husband prayed that the divorce decree’s amount of support be reduced because of a material change in circumstances. The defendant’s request for modification alleged that since the decree of original divorce Carmilita Parrish had finished college and, further, that Maxine Parrish was presently employed, although she was not employed at the time of the original divorce decree. The trial court heard oral testimony of both the plaintiff and defendant. The record reveals that the plaintiff moved to amend her contempt motion so as to request a judgment against Billy Max Parrish for sums of money he owed for support, and further requested a date be specified upon which support payments would be made. The trial court rendered a judgment denying defendant’s request for modification and granted a modification in favor of the wife, Maxine P. Parrish. Plaintiff’s contempt request was denied. The court further found defendant to be in arrears for support in the amount of $4,800, plus $400 for unpaid car insurance premiums, and added $375 for an attorney’s fee plus costs of the proceeding. A pertinent part of the modification judgment reads as follows:

(5) That the Defendant shall pay the said sum of $500.00 as alimony to the Clerk of the Court, Family Division, on the first day of each month, beginning July 1, 1978, and each month thereafter until the Plaintiff dies or remarries.

The defendant argues that the trial court abused its discretion by refusing to modify the divorce decree as he requested. He contends that such modification was warranted because there was evidence of a substantial change in the circumstances of the parties. Defendant’s contention is apparently based on the evidence in the record to the effect that the wife, who did not work at the time of the divorce, now works as a salesperson earning a net income of $110 per week; plus the fact that the two minor children who were placed in her custody at the time of the divorce are no longer dependent on her for support. Both the daughter and son are married and no longer look to plaintiff for support.

Plaintiff replies that the evidence is insufficient to warrant a modification of the divorce decree and that the trial court correctly refused to accede to defendant’s modification request.

To begin, we would point out that the burden of proof is on the party moving for a modification of a prior divorce decree. McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977). And that the trial court’s judgment will be presumed correct where it heard the evidence orally, and will not be set aside except for plain and palpable error. Morrow v. Morrow, Ala.Civ.App., 351 So.2d 923 (1977); Little v. Little, Ala.Civ. App., 349 So.2d 48 (1977); 8 Ala.Dig. Divorce 286.

It is not disputed that the wife was not working at the time of the divorce decree and that she was working at the time of the filing of the defendant’s petition for modification. Further, it is also undisputed that the two children who were placed in her custody at the time of the divorce decree are no longer dependent on her for support. Nevertheless, there is also evidence in the record showing that the original divorce decree contained an agreement of the parties that the defendant would pay to the plaintiff $500 per month for the “support and maintenance of Maxine P. Parrish, and the minor children, Carmilita Parrish and Micah Parrish, . . .”

The evidence further shows that during the period since the divorce, the defendant has treated the $500 monthly payment as alimony on his income tax returns and in addition has considered the two children as his dependents for income tax purposes. Also, the wife paid income tax on the $500 as if it were alimony.

The trial court, in rendering its decree, specifically commented that it would not permit defendant to treat the $500 monthly payment as alimony for tax purposes and contend in the modification proceedings that a portion of the $500 should be treated as child support and, since the children were no longer dependent, be reduced commensurate with the cessation of that support.

In an alimony modification proceeding there are many factors for the trial court to consider, among which would certainly be the wife’s financial status and need, whether there are dependent children, and the financial ability of the former husband to respond to the needs of the wife and children, if there by any.

The record shows that the wife needs $900 per month to meet her living expenses. She earns a little over $400 per month, and with the addition of the $500 monthly alimony payment would total slightly over $900 per month, which is the amount she stated she needed to defray her expenses.

As mentioned previously, the original divorce decree provided for support and maintenance of the wife and children and did not separate the award into alimony and child support. Thus, when the decree fails to award child support separately, it should not be treated as having done so; although the court, in making the award, might have taken into consideration the fact that the wife had been awarded custody of minor children. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825 (1938).

Here, the trial court considered the award made in the original decree to be alimony, as did the parties subsequent to that decree, and there is evidence to support the trial court’s finding that the plaintiff’s need for $500 per month as alimony had not decreased despite the fact that the children were no longer dependent on her for support. Furthermore, the record does not reflect that the defendant is unable to pay the $500 per month as alimony to his ex-wife. Under these circumstances, we do not find any plain or palpable error in the trial court’s refusal to modify the original decree by reducing the monthly alimony payment.

Lastly, defendant says that the trial court had no authority to modify the divorce decree by awarding alimony to the wife and requiring that the monthly payment be made to the clerk of the court on the first day of each month beginning July 1, 1978, since no such request was made in the petition for the rule nisi.

Plaintiff defends by saying that ARCP Rules 15(b), 54(c) and 61 permit the trial court to render a judgment not based on the pleadings if the proof offered would support the judgment.

Rule 15(b) provides in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

Rule 54(c) provides in part:

[EJvery final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

Whether the $500 monthly payment to plaintiff was all alimony or was part alimony and part child support, and whether the amount should be reduced, was litigated even though not raised in plaintiff’s show cause petition. Hence, as authorized by the rules above cited, and based on the proof offered by both parties, we believe that the trial court was authorized to modify the alimony aspect of the original divorce decree, notwithstanding plaintiff’s failure to request such relief. Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975).

Plaintiff requests an attorney’s fee for the services of her attorney on this appeal. We consider this to be a reasonable request, and hereby award $500 as such a fee.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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