author: SHORES, Justice.’

text:
    J. GURLEY and Helen Gurley v. The BANK OF HUNTSVILLE et al.
    SC 2219.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      Phillip A. Geddes, Huntsville, for appellants.
    Michael C. Moore, Huntsville, for appel-lees.
   SHORES, Justice.’

This is an appeal from a summary judgment granted against J. and Helen Gurley, plaintiffs, and in favor of the Bank of Huntsville and its president, individually, defendants.

The Gurleys entered into an agreement with one David Dishman for the sale by the Gurleys to Dishman of stock in Cathedral Caverns, Inc. As a part of the agreement, Dishman, as purchaser, deposited $20,000 in an escrow account with the Bank of Huntsville on February 23, 1974. The escrow agreement between Dishman, the Gurleys and the Bank directed the Bank to hold the funds until the stock transfer was consummated and a promissory note tendered by Dishman to the Gurleys in the amount of $180,000, the balance of the purchase price. If Dishman failed to make such tender by May 20, 1974, the Bank was to pay the $20,000 to the Gurleys as liquidated damages. On May 2, 1974, Dishman tendered the promissory note and the Bank released the escrow fund to appellants as directed by the agreement.

During the period in which the Bank was acting as escrow agent, Dishman submitted a loan application to the Bank stating his purpose for the request as the improvement and development of the Caverns. The application included an assignment of certain of Dishman’s personal assets as collateral for the loan and the proposal that the money expended on the corporate assets would be in return for a promissory note by the corporation to Dishman which he would assign to the Bank as further collateral. Dishman’s loan was approved by the Bank on May 2, 1974, the same day the Bank, as escrow agent, delivered the $20,000 to the Gurleys, and the stock was delivered to Dishman in exchange for the $180,000 note. The Gurleys did not retain any security interest in the stock, but simply delivered it to Dishman in consideration of the $20,000 cash and his note for $180,000.

On October 24, 1974, the Bank entered into a further agreement with Dishman releasing his personal assets as collateral for the loan of May 2,1974, and substituting as collateral for that loan the stock transferred to him by the Gurleys. Dishman became delinquent in his payments to the Bank on the May 2, 1974, loan and on August 7, 1975, the Bank foreclosed on the stock. On March 24, 1976, this action was filed by the Gurleys against the Bank, claiming damages and alleging a breach of the Bank’s fiduciary duty under the escrow agreement to make a full disclosure to them of all transactions between Dishman and the Bank. The complaint further alleged fraud in the Bank’s acquisition of the stock. The Bank filed a motion for summary judgment supported by an affidavit of the president of the Bank, the individual defendant; the agreement between the Gurleys and Dishman; the promissory note of Dishman to the Gurleys; the escrow agreement between the Gurleys, as sellers, Dishman, as purchaser, and the bank as escrow agent; and an affidavit by Dishman’s attorney stating that he represented him in a suit brought by the Gurleys on the note; and further stating that the Gurleys claimed no security interest in the stock in that suit, which was still pending. A copy of the suit itself was also attached.

Documents in support of the defendants’ motion for summary judgment established that the Bank’s role in the Gurley-Dishman transaction was merely the acceptance from Dishman of the $20,000 earnest money to be held until Gurley and Dishman directed the Bank to pay that sum over as down payment on the purchase price of the stock. The Gurleys acknowledged that they received that sum from the Bank on May 2, 1974.

Thereafter, the Bank had no further obligation to either party under the terms of the escrow agreement.

In opposition to this motion, the Gurleys filed counter-affidavits asserting that the Bank was a creditor of Dishman at the time the escrow agreement was entered into and failed to disclose that fact to the Gurleys at the time the Bank agreed to act as escrow agent. They also asserted that the Bank had accepted a loan application from Dish-man by the terms of which the loan would ultimately be secured by the stock in Cathedral Caverns, Inc. when it was acquired by him under his agreement with the Gurleys. They asserted that the Bank did not disclose this information to them.

The facts are not disputed. The issue here is whether, under the undisputed facts, the defendants are entitled to summary judgment. They are so entitled if the Gur-leys cannot prevail in their suit under any theory cognizable as a matter of law. This issue turns on the duty owed to a principal by an escrow agent. If the escrow agent was not required to disclose to the Gurleys the matter made the basis of their claim, the trial court properly granted its motion for summary judgment.

An escrow agent is generally considered to be the agent of both parties to an escrow agreement. Williams v. Northside Realty Associates, Inc., 116 Ga.App. 253,157 S.E.2d 166 (1967); 30A C.J.S. Escrows § 8, page 985. Such an agent is akin to a special agent and is limited in its liability to the proper performance of those duties and obligations specifically delineated in the escrow agreement for the achievement of a specific goal. The escrow instructions constitute the full measure of the agent’s obligations and any other matters which arise in the transaction are collateral to the specific objectives of the escrow agreement. Jones v. First National Bank of Greensboro, 206 Ala. 203, 89 So. 437 (1921); Blackburn v. McCoy, 1 Cal.App.2d 648, 37 P.2d 153 (1934).

There is no duty to disclose information received by an escrow agent unless such a duty is required by the terms of the agreement. Caldwell v. Caffey, 269 Ala. 543, 114 So.2d 560 (1959); Cunningham v. Security Title Ins. Co., 241 Cal.App.2d 626, 50 Cal.Rptr. 724 (1966).

The Gurleys assert that the Bank breached its fiduciary duty to them. But it is uncontradicted that the only obligation undertaken by the Bank was to hold the escrow fund and pay it out to the proper party at the proper time. It is uncontro-verted that it performed its undertaking under the escrow agreement. Its loan agreement with Dishman in no way conflicted with its duty under the escrow agreement. The two transactions were separate and distinct. There is no question that the Bank was free to deal with Dish-man in accepting the stock as collateral following the performance of the escrow agreement and the consummation of the stock transfer. No facts were advanced which would support the allegation that the subsequent foreclosure by the Bank of the stock upon Dishman’s default on his note constituted a breach of any duty owed the Gurleys.

A summary judgment is properly granted in those cases where there appears no genuine issue of material fact and the trial court’s application of the law to the undisputed facts is correct. Fox v. Title Guaranty & Abstract Co. of Mobile, Inc., Ala., 337 So.2d 1300 (1976); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). In the instant case, there is no genuine issue of fact, and the Gurleys have shown no legal liability which would require the Bank or its president to bear the burden of their loss. The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    LOCAL 1127 OF the AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO, et al. v. BLACKBURN’S MANUFACTURING CO., a corp.
    SC 2553.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      Robert L. Wiggins of Bryan, Wiggins & Quinn, Birmingham, for Local 1127 and 9 of its members.
    M. L. Taliaferro, Birmingham, for appel-lee.
   SHORES, Justice.

This appeal is by Local 1127 of the Amalgamated Clothing and Textile Workers Union, AFL-CIO (Local) and nine individuals from an order granting a preliminary injunction sought by Blackburn’s Manufacturing Company (Company) and against Amalgamated Clothing and Textile Workers Union, AFL-CIO (International). The International did not appeal.

The International is the duly certified labor organization representing the Company’s production and maintenance employees.

The original collective bargaining contract between the Company and the International contained a no-strike clause. The Local was not a party to this contract, which had an expiration date of January 7, 1977. The contract was extended by the International for ninety days on January 7, 1977. The trial court found:

“. . . Negotiations for the purpose of reaching a new agreement were conducted during such time [the ninety-day extension period]. Without dispute, the parties agreed to extend the terms of the contract pending further and continuing negotiations. On April 6, 1977, the employees of Local 1127 of said union voted to strike notwithstanding the agreement between the company and the International Union to extend the contract period. At the meeting wherein the strike vote was taken, the members of the Local were advised by the International representatives that the strike was illegal and was not sanctioned by the union. .
“. . . the picketing being conducted by the members of the Local is for an unlawful purpose. The contract between the company and the union has been duly extended by the parties to such agreement and the strike and picketing is in direct violation with the terms of such agreement. . . . ”

When the International presented the employees with the Company’s proposal on April 6, 1977, the International informed the employees that the thirty-day notice required to be filed with the Federal Mediation and Conciliation Service had been filed on April 5th and, until that thirty-day period expired, no strike was authorized. The International also informed the employees that a strike before that time was illegal. On April 7, the International and the Company agreed to an additional thirty-day extension. The next day, a number of employees began picketing the Company. The International again notified the Local on April 11th that the strike was illegal.

The trial court issued a temporary restraining order on April 15th prohibiting picketing and interfering with ingress and egress at the Company’s plant. Thereafter, after a hearing, the temporary injunction from which the Local appeals, was entered on April 28, 1977. It was amended by further order on May 2, 1977.

On appeal, the Local argues that the trial court was without jurisdiction in this matter.

If there was a valid collective bargaining agreement in effect between the Company and the collective bargaining agency (International) at the time the strike took place, the state courts may enjoin the strike to specifically enforce the collective bargaining agreement. Title 29, § 185, U.S.C. The Supreme Court of the United States has repeatedly held that state courts have jurisdiction to enjoin strikes and picketing in violation of a no-strike clause in a collective bargaining contract and their jurisdiction is not pre-empt-ed even though such conduct may also constitute an unfair labor practice under Title 29, § 158(b), of the National Labor Relations Act. William E. Arnold Co. v. Carpenters District Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974); Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). This court has so held in Dean v. Scott Paper Co., 284 Ala. 115, 222 So.2d 701 (1969).

If, therefore, there was a valid contract existing between the Company and the International, the exclusive bargaining agent of the employees, the trial court had jurisdiction in this case.

It is undisputed that the International was the employees’ exclusive, bargaining agent under Title 29, § 159, U.S.C. The Company is under a duty to deal exclusively with that agent and has the right to rely on that agent’s authority, whether real or apparent. United Steelworkers of America v. CCI Corp., 395 F.2d 529 (10th Cir. 1968); International Longshoremen’s & Warehousemen’s Union v. Hawaiian Pineapple Co., 226 F.2d 875 (9th Cir. 1955). In the absence of an express provision in the agreement, or in the constitution or bylaws, rules and regulations of a union, there is no requirement that an agreement reached between the company and the exclusive bargaining agent be ratified by a local or its membership to be binding on the employees represented. Confederated Independent Unions v. Rockwell-Standard Co., 465 F.2d 1137 (3rd Cir. 1972); Cleveland Orchestra Committee v. Cleveland Fed. of Musicians, 303 F.2d 229 (6th Cir. 1962).

There is no dispute that the International and the Company had agreed to extend the existing contract for an additional thirty days and that the agreement was in effect at the time the strike was undertaken by some employees. The trial court so found as a matter of fact, and both parties to that agreement were free to make it as a matter of law. The court, therefore, had jurisdiction.

The fact that the existing contract was extended by the exclusive bargaining agent contrary to the expressed desire of the members of the Local does not affect its validity, absent some indication that consent of the Local is a prerequisite to the exclusive bargaining agent’s ability to make that agreement. The record discloses no such limitation on the International’s authority.

The Local is not a party to that agreement and the Company was not a party to the decision of the Local at its meeting of January 7, 1977, to approve the ninety-day extension only on the condition that the International perfect all termination notices required by the National Labor Relations Act within the extension period.

Inasmuch as we agree with the trial court that the collective bargaining agreement was still in effect at the time of the picketing, which was clearly in violation of the no-strike clause of the agreement, we need not address the issue of whether the trial court had jurisdiction to enjoin the picketing under the “violence” exception of Title 29, § 107, U.S.C.

The order appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER and BEATTY, JJ„ concur.


author: BRADLEY, Judge. HOLMES, Judge,

text:
    Raymond L. LITTLE v. Alice R. LITTLE.
    Civ. 1138.
    Court of Civil Appeals of Alabama.
    July 20, 1977.
    Rehearing Denied Aug. 24, 1977.

      Frank W. Riggs, Montgomery, for appellant.
    Oakley Melton, Jr., Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Montgomery County denying requests for modification of an alimony provision incorporated into a divorce decree.

The action was initiated when the former husband, Raymond L. Little, filed a petition for modification of the decree divorcing him from Alice R. Little, asking that he no longer be required to pay alimony to his former wife or maintain certain insurance policies for her benefit. The wife, now Mrs. Opielinski, responded by filing a crosspetition for modification of the decree, seeking to have the alimony in question declared to be in gross and thus not modifiable and asking that she be awarded a larger property settlement. Both the petition for modification and the cross-petition for modification were amended.

Prior to the modification hearing the trial judge entered an order declaring the alimony in question to be “periodic in nature as opposed to alimony in gross.” The issues and contentions of the parties to be décided at the hearing were defined in a joint stipulation to be as follows: on behalf of Mrs. Opielinski that the agreement to pay alimony should be enforced as a contractual obligation, that her award of permanent alimony should be increased to give her a larger share in the husband’s estate, and that her attorney be awarded a reasonable fee for his representation; on behalf of Mr. Little, that changed circumstances justify the elimination, reduction or other alteration of the amount of alimony provided in the divorce decree.

After a hearing the trial court entered an order finding that there had been no change in the conditions or circumstances of the parties which would justify a modification of the divorce decree. The modification requests of both parties were denied and Mr. Little was ordered to pay Mrs. Opielinski’s attorney the reasonable fee of $3,300.00 for his services. Mr. Little filed a motion for new trial, which was denied, and now appeals the trial court’s refusal to modify the divorce decree. Mrs. Opielinski did not cross-appeal the order declaring the alimony in question to be periodic rather than in gross nor the final order denying her request for modification of the divorce decree.

The parties to this proceeding were divorced by the Circuit Court of Montgomery County on December 11,1975 for incompatibility after a twenty-six year marriage. The divorce decree incorporated an agreement previously entered into by the parties for the settlement of property interests and the award of alimony.

Under the terms of the agreement, the wife received $10,000 in cash, a home in Montgomery with an approximate value of $75,000 a beach house in Florida with approximate value of $33,000, and a 1973 Fleetwood Cadillac. The husband was required either to maintain a hospitalization insurance policy covering the wife or to reimburse the wife for the cost of a hospitalization insurance policy, to maintain a life insurance policy of $25,000 with his wife as beneficiary, and to “. . . pay to the wife as monthly periodic alimony the sum of $1,000.00 per month payable on the 1st of each month beginning January 1, 1976, and continuing each month thereafter until the demise of the wife.” In return the wife was required to convey her interest, including dower, in several pieces of commercial property located in Montgomery. The total value of the assets received by Mrs. Little was approximately $118,000; the value of the assets remaining with Mr. Little was approximately $766,300.

In the trial court Mr. Little alleged and attempted to prove that the remarriage of Mrs. Little and a reduction in his assets showed sufficient changed circumstances to warrant modification of the alimony provision of the divorce decree. The trial court denied the request for modification of the alimony obviously concluding that the proof failed to support the contention that the circumstances had changed sufficiently to warrant modification.

On appeal Mr. Little argues vigorously that the trial court erred in failing to find that the remarriage of Mrs. Little warranted the elimination of the alimony payments and urges us to adopt a rule requiring that extraordinary or exceptional circumstances must exist before a former husband can be required to continue alimony payments to a remarried ex-wife. Mrs. Opielinski replies that the only changed circumstance shown in the trial court was her remarriage to a man who could not support .her and that such circumstance is insufficient to justify modification of an alimony decree.

The rule in Alabama is that while the remarriage of a former wife does not ipso facto dissolve a former husband’s obligation to pay alimony, it is a cogent ground for modification or termination of the requirement. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964); Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911 (1927); Morgan v. Morgan, 211 Ala. 7, 99 So. 185 (1924); Morgan v. Morgan, 203 Ala. 516, 84 So. 754 (1919); Paulk v. Paulk, 57 Ala.App. 721, 331 So.2d 730 (1976); Hora v. Hora, 46 Ala.App. 513, 244 So.2d 601 (1971).

The decisive question at this point is: if the wife’s remarriage does not automatically terminate the husband’s obligation to pay alimony, what further must be shown to place the trial court in error for not terminating alimony payments to the remarried wife?

The answer seems to be that the ex-wife must convince the court that she has a continuing need for support from her ex-husband due to the inability of the present husband to support her. See Morgan v. Morgan, 211 Ala. 7, 99 So. 185 (1924); Morgan v. Morgan, 203 Ala. 516, 84 So. 754 (1919); and Whitt v. Whitt, supra. However the supreme court in Sullivan v. Sulli van, supra, after wrestling with this problem said: “the power or control of subsequent installments of allowances for alimony, as such, are dependent upon the justice of the case and condition and respective necessities of the parties.” 215 Ala., at 630, 111 So., at 913. Hence the apparent burden cast on the ex-wife by both Morgan decisions and Whitt may have been lightened somewhat by Sullivan. In any event, the burden has not been made more onerous.

In deciding the issue presented to this court, we do so by following the timeworn principles that where the testimony is heard orally by the court, its decree is presumed correct and that a petition for modification of an alimony decree is largely left to the sound discretion of the court, the exercise of which is not to be disturbed except for palpable abuse. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616 (1973).

In order to determine whether the trial court abused its discretion in denying the requested elimination of alimony payments, we must look at the pertinent facts. They show that Mrs. Little married Mr. Opielinski about five months after her divorce from Mr. Little. At that time Mr. Opielinski was earning $250 per week out of which he paid taxes, living expenses and child support of $275 per month as a result of a former marriage. He said his salary had averaged between $12,000 and $15,000 for the last several years. The Opielinskis have a joint checking account to which Mr. Opielinski contributes, but there was no evidence that Mrs. Opielinski contributes funds to or withdraws funds from this account.

Mrs. Opielinski testified that Mr. Opielin-ski does not support her; that she pays her own expenses and he pays his; and that she knew he could not support her when she married him. She further stated that although she supposed she had a right to look to Mr. Opielinski for support, she had not done so.

Based on these facts, we cannot say that the trial court abused its discretion in refusing to modify the alimony payments required to be made to the appellee by Mr. Little. Consequently we must affirm the trial court’s judgment.

AFFIRMED.

WRIGHT,' P. J., recuses himself.

HOLMES, J., concurs specially.

PAUL, Retired Circuit Judge sitting by special appointment, concurs.

HOLMES, Judge,

concurring specially.

I concur with the majority opinion. However, I would add that the agreement of the parties, which was incorporated into the trial court’s original decree, although not so found by the trial court, might well constitute an “integrated bargain” agreement.

In the “integrated bargain” category of agreement, the amount of alimony to be paid for support and maintenance has been established by the parties by taking into account the property settlement features of the agreement. In other words, “ ‘integrated bargain’ agreements [provide] for both support and division of property, but with the entire provision for one spouse being in consideration for the entire provision for the other, so that the support and property terms are inseparable.” 61 A.L.R.3d 520, 529. Alimony payments thus established may not thereafter be modified by the court without the consent of both parties.

The rationale for the latter principle is clear. The parties have agreed that the support payments and the provisions relating to the division of property are reciprocal consideration. To modify the alimony provision might drastically alter the entire character of the property settlement agreement to the detriment of one of the parties. Hence, the trial court may not modify the alimony provision of the “integrated bargain” without the consent of both parties. See Plumer v. Plumer, 48 Cal.2d 820, 313 P.2d 549 (1957); Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881 (1954);Movius v. Movius, 163 Mont. 463, 517 P.2d 884 (1974).


author: HOLMES, Judge.

text:
    Monita MALKOVE v. Bernard S. MALKOVE.
    Civ. 1104.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1977.

      Edward B. McDermott, Mobile, for appellant.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife, plaintiff below, appeals from the trial court’s division of property and award of periodic alimony.

The record reveals the following:

Appellant-wife was 20 years of age and appellee-husband was 23 years of age when the parties were married in 1954. They had been married 22 years at the time of trial.

The parties lived together in Mobile from 1964 until the time of their separation in 1975, when the wife returned to her home town of Denver, Colorado, to live. The husband continued to reside at the parties’ home on Marquette Drive in Mobile.

The husband is the principal stockholder of Gulf States Beauty Supply Company, Inc., owning approximately 85% of the stock of this business. Exhibits introduced by the wife disclose gross sales for the business were slightly in excess of $1,000,-000 in both 1974 and 1975. The sum profit for the business in both years was approximately $4,000.

The parties’ income tax returns revealed the husband’s average annual income for the three years preceding the divorce to be approximately $36,000. Of this amount, $21,000 consisted of wages and $7,000 was office rental fees, both paid by Gulf States Beauty. The remainder of the $36,000 was attributed to investment income and the sale of various investment properties.

A personal financial statement of the husband dated June 1, 1976, valued the husband’s assets at $375,000. Total liabilities were $96,000. Thus, his total net worth was $279,000.

Viewing the evidence with the attendant presumption of correctness, the husband’s assets consisted of $3,000 cash, $46,000 marketable securities, $179,000 nonmarketable securities, $105,000 real estate, and $22,000 in real estate equities of which he was a partial owner. The remaining $20,000 consisted of $15,000 in automobiles and personal property and $5,000 cash value of life insurance. The $105,000 in real estate included business property which Gulf States Beauty leased from him and the parties’ home. The business property was valued at $40,000.

The wife estimated the value of the parties’ residence at $80,000. At the time of trial, $28,000 remained to be paid on the mortgage.

The parties have three children. Cynthia, a graduate of the University of Tennessee, was employed by an accountant and lived with her father, appellee herein, at the house on Marquette Drive at the time of trial. Brian, who was 18, had just begun attending the University of Colorado in Boulder. Teddy, 11, was in Denver with his mother, appellant herein.

The wife had completed three and one-half years of college prior to the marriage. She had not been employed since the couple's marriage except occasionally at Gulf States Beauty. She stated that she had a learning disability; that she had had two nervous breakdowns in previous years; and that she was still taking medication for her nervous condition.

She also testified that she had no separate estate of her own; that she needed approximately $2,700 per month for living expenses in Denver; and that she eventually hoped to obtain employment as a therapist to persons with learning disabilities. Her debts at the time of trial totaled $6,400.

The husband, defendant below, stated that he was sending his son, Brian, to the University of Colorado at a cost of approximately $2,500-$4,800 annually.

Both parties stated there was no chance of reconciliation between them.

In December, 1976, the trial court granted the divorce sought by the wife and awarded to her custody of the 11 year old son. The court divided the personal property between the parties and ordered the husband to make the following payments: $200 per month periodic alimony; $450 per month child support payments for the minor child; $1,350 for the wife’s $6,400 in debts; $2,500 for the wife’s attorney’s fees; and court costs.

Additionally, the decree required the husband to pay to the wife as alimony in gross the sum of $80,000 over a period of ten and one-half years. The wife was ordered to convey to the husband her interest in the residence located on Marquette Drive in Mobile. The husband retained title to the marketable and nonmarketable securities and the business properties.

The court decree recognized that the husband was paying the university expenses for one of the parties’ children and also made the husband liable for any “extraordinary medical and dental expenses” for the minor child.

As previously stated, the wife contends the trial court erred to reversal in its division of property and in its award of periodic alimony.

She recognizes that there is no fixed standard for determining the proper amount of periodic alimony to be awarded and that future prospects of the parties, their ages, sex, health and station in life are appropriate factors to be considered in fixing the amount of alimony payments. See Segars v. Segars, Ala.Civ.App., 334 So.2d 684 (1976). She contends that evaluation of the preceding factors, in conjunction with her testimony stating a need of $2,700 per month, compels a conclusion that the trial court erred in ordering the husband to pay $200 per month as periodic alimony. We disagree.

It is readily apparent that the trial court recognized the husband’s limited ability to pay in establishing the amount of periodic alimony to be paid to the wife. We have previously indicated such a factor to be an appropriate consideration. Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975).

One reasonable view of the evidence fixes the husband’s annual income, without requiring liquidation of his business assets, at $28,000; $21,000 wages, and $7,000 rental income. Reduction of this $28,000 by $7,800, the amount of annual child support and periodic alimony payments, and an additional $2,500, the minimum amount the husband indicated he will have to provide annually for one child’s education expenses, reduces the husband’s income by more than one-third. The husband, in addition to making the aforementioned payments, must also amass sufficient funds to meet the property settlement payments of nearly $8,000 annually.

Awards of periodic alimony in a divorce case are within the sound discretion of the trial court and will not be reversed on appeal absent the showing of a manifest abuse of that discretion. Novak v. Novak, Ala.Civ.App., 339 So.2d 77 (1976); Banks v. Banks, Ala.Civ.App., 336 So.2d 1365 (1976). The facts of this case disclose no such abuse of discretion.

The wife also contends the trial court erred to reversal in its division of property. She states that since the $80,000 is to be paid to her over a period of ten and one-half years, the present value of this sum is far less than $80,000. She states that the husband will be able to invest the unpaid portion of this $80,000 and use the returns therefrom to pay a substantial portion of the alimony in gross she is to receive in subsequent years. Hence, she concludes, there is a larger disparity in the property division than the difference between $279,-000, the husband’s net worth as of June 1, 1976, and the $80,000 awarded to her indicates.

We cannot accept this contention. Such an argument assumes the existence of a greater sum of liquid assets available for investment than is here present and also ignores the tax consequences likely to result from the sale of assets by the husband.

A division of property by the trial court in a divorce decree is subject to reversal only if plainly and palpably erroneous. Stewart v. Stewart, Ala.Civ.App., 341 So.2d 490 (1977); Hamaker v. Hamaker, 57 Ala. App. 333, 328 So.2d 588, cert. denied 295 Ala. 404, 328 So.2d 594 (1976). In this instance, the record discloses no error by the trial court.

Rather than requiring the husband to sell the homeplace, the husband was allowed to continue to reside there along with one daughter who had attained majority. The husband was providing some financial assistance to this daughter until she was prepared to go out on her own. The wife returned to Denver of her own volition. That she chose to do so did not, we think, require the trial court to order the home to be sold and the proceeds divided between the parties.

Likewise, the trial court allowed the husband to retain all of the investment and business property. We cannot state as a matter of law that the trial court should have ordered the husband to sell the property immediately subsequent to the divorce in order that the wife could be awarded more cash at that time. Requiring the husband to sell his business stock or land would have served no useful purpose but would have deprived the husband of his means of livelihood. Additionally, to require mass liquidation of his investment properties might well have resulted in adverse tax and other consequences so as to seriously impair the husband’s future earning power and, consequently, his continued ability to meet his periodic alimony and child support obligations.

One reasonable interpretation of the evidence establishes the net worth of the husband’s property at $264,000. The award of $80,000 to the wife is approximately 30% of this amount. The division of the property in a divorce case does not have to be equal, but must be equitable. Dickson, supra. Under the circumstances of this case, we deem the division equitable. However, we do find that the wife is entitled to some protection to insure payment of the aforesaid $80,000. To afford such protection, the trial court should order, in the event of a sale of the homeplace, a lien against the said homeplace.

The wife’s attorney has requested a fee for representing the wife in this appeal. A fee of $300 is hereby awarded.

AFFIRMED IN PART; REVERSED IN PART FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION; AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Willie Lee BROWN v. ALABAMA STATE TENURE COMMISSION.
    Civ. 1140.
    Court of Civil Appeals of Alabama.
    Aug. 17, 1977.
    U. W. Clemon, Adams, Baker & Clemon, Birmingham, for appellant.
    Donald B. Sweeney, Jr., Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Willie Lee Brown, a teacher with continuing service status in the Jefferson County School system appeals from a denial of writ of mandamus to the Alabama State Tenure Commission by the circuit court of Jefferson County. We reverse and direct that the writ of mandamus be issued.

Before discussion of the basic issue of the appeal, we note that the Board of Education argues in its brief that it is enti-tied to relief requested by it m an action which was consolidated below for trial with the petition for writ of mandamus. Without reference to the merits of that matter, we note that no appeal was taken by the Board from the judgment. There can be no review here. Mutual Sav. Life Ins. Co. v. Montgomery, 347 So.2d 1327 (Ala.1977), 11 A.B.R. 1691 (1977).

We note that Mr. Brown presents as an issue here the failure of the Board to provide a reporter or competent stenographer to take and transcribe the hearing by the Board of Education resulting in his dismissal. We find no reference to that issue in the petition for mandamus presented below. It is therefore not an issue on this appeal. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975).

The only issue properly before us is whether exact compliance with the notice provisions of Title 52, § 359, Code of Alabama (1940) (Recomp.1958) is required before a subsequent cancellation by the Board of Education may be sustained.

The provisions of § 359 which Brown submits were not followed are as follows:

“The employing board of education shall give notice in writing to the teacher stating in detail the reasons for the proposed cancellation and naming the exact time and place at which the teacher may appear before the board to answer said notice, which date shall not be less than twenty nor more than thirty days after the service of such notice to the teacher by United States registered mail with postage prepaid thereon, to said teacher’s last known address, such notice shall also inform the teacher that in order to contest said cancellation the teacher must file with the board at least five days prior to the date the matter is set for hearing notice of an intention to contest.”

It is correctly stated by Mr. Brown that the exact provisions of § 359 were not followed by the Board of Education. The following is a summary of events out of which this appeal arose.

The letter which initially began the proceedings against Mr. Brown was dated March 26, 1975. It was from the first assistant superintendent suspending Brown from all duties as a teacher, charging him with acts which caused the suspension and informing him that he could request a hearing before the first assistant superintendent according to grievance procedures established by the Board of Education of Jefferson County. Brown requested a hearing and by registered letter of April 2,1975, he was informed that the hearing would be held before the Board of Education on April 10 at 8:30 A.M. He was advised of his rights at the hearing and reminded that the letter of March 26 specified the charges. For some reason the hearing of April 10 was not held, but a meeting occurred on May 8, 1975 at which Mr. Brown and counsel met with the Board.

At the meeting of May 8, there was given to counsel for Brown a packet of information documenting the charges originally made by the letter of March 26. Counsel complained of lack of opportunity to examine the contents of the packet. After consultation, the Board continued the hearing to a later time to be agreed upon.

The hearing was subsequently held on June 26, 1975. There was preliminary discussion between counsel. Counsel for Brown inquired if the letter of March 26 constituted the notice to Brown required by § 359. The response was that it did in part and was supplemented by the documentation delivered to Brown personally on May 8 and by the notice given at the previous continued hearing. Counsel for Brown stated that he had been given full notice of the charges, understood them and had been given opportunity to prepare to defend. However, he insisted that the charges and documentation had not been sent by registered mail. After extensive testimony at continued hearings, the Board on August 28,1975 voted to cancel the contract of Mr. Brown. Brown appealed to the Teacher Tenure Commission. The Commission reversed the action of the Board for failure of the Board to send up the complete record of the proceedings before it.

Immediately after the action of the Commission, the superintendent sent Mr. Brown by registered mail, with a copy to his attorney, notice of suspension and another hearing by the Board of the original charges. The letter was dated October 22, 1975 and the hearing before the Board was to be October 30. That date was later changed to November 20 by letter to counsel for Brown. The hearing was held on November 20, 1975 with each of the witnesses for the Board stating on oath that their testimony as transcribed from the first hearing was true and correct. They were present and available for cross-examination. Additional testimony and exhibits were introduced and the Board again cancelled the contract of Mr. Brown as of March 26,1975.

Brown again appealed to the Tenure Commission. On January 7,1976, the Commission sustained the action of the Board, finding that the Board had sufficiently complied with Title 52, § 359.

Responding now to the issue presented, we do not hold that the exact provisions of § 359 as to the manner and form of notice of the proposed cancellation have to be followed. It is evident that the purpose of prescribing a particular manner of giving notice with the provision of time for setting a hearing is to ensure due process. That is, notice of the specific charges brought together with adequate opportunity for preparation for a hearing. We do hold that there must be, in fact, notice of specific charges, and opportunity for hearing not less than that provided by § 359.

In this case, though the letter of March 26, 1975 was not in compliance with § 359 in more than one respect, it did begin the events which ultimately culminated in the hearings. Even Mr. Brown admits that he was given notice of charges by letter and by personal service and that thereafter he had full opportunity to prepare a defense and be heard on those charges. We believe that is all that is necessary so far as form is concerned.

The other contention of Mr. Brown relates to substance rather than form.

Section 359 requires that “the employing board of education shall give notice in writing to the teacher [of] the proposed cancellation . . . Counsel for Mr. Brown from the first hearing through the last very carefully but conspicuously, brought out that there was no action taken by the Board of Education of Jefferson County proposing cancellation of the contract of Brown. He even subpoenaed the minutes of the Board to show the absence of any consideration of action against Brown by the Board. To argue that the Board ratified the act of the first assistant superintendent, fails to meet the statutory requirement. The requirement of pre-no-tice exercise of its authority by the Board is clear. The intent of the legislature is made evident when it is known that prior to Act 773, Acts of Alabama 1953, § 357 stated:

“[B]efore the consideration by the employing board of education, of the cancellation of any such contract, such teacher shall be notified in writing . . . Act 690, Acts of Alabama 1951, pages 1191-92.

As previously quoted, § 359 now requires notice be given by the employing board of the proposed cancellation. The cancellation of a teacher’s contract is the sole prerogative of the employing board of education. It may be said it is the superintendent who proposes cancellation. That is probably the usual case. However, the board does not have to accept the proposal. Only the board may determine that cause exists for cancellation and that notice to the teacher shall be given and a hearing thereon held. Such consideration and determination should be recorded in the minutes of the board.

To say that the Board in this case did hold a hearing and determine cancellation via the first hearing does not satisfy the requirement of subsequent consideration, decision and notice of the second hearing. It was admitted that the superintendent, Dr. Hall, immediately notified Brown of the second hearing without any consultation with the Board. He even set the time, place, date and the format for the hearing. This appears presumptuous to say the least.

It was said in Board of Educ. of Marshall County v. Baugh, 240 Ala. 391, 395, 199 So. 822, 825 (1941) as follows:

“The authorities are to the effect that an act done in behalf of another without authority is by positive law or public policy declared to be illegal and void. Such act is not subject to ratification.”

We recognize that the school systems are largely run by superintendents and administrative personnel and boards of education usually follow their recommendations. However, the legislature has placed certain non-delegable duties and responsibilities upon the boards. It did so when it began § 359 with the following explicit direction:

“An employment contract with a teacher on continuing service status may be cancelled only in the following manner”. (Our emphasis.)

It was said in Whittington v. Barbour County Bd. of Educ., 250 Ala. 692, 36 So.2d 83 (1948) that the provisions of § 359 are mandatory and jurisdictional. It is there indicated that waiver is not possible. However, there is no evidence of waiver in this case. Counsel objected to the hearing on the ground of improper notice and absence of action by the Board in initiating the proceedings at every step. To say that there was a fair hearing and observance of due process is not enough. To say that the charges were fully supported by the evidence is not enough. To say that to require the statute be followed is a mere technicality is not enough. The statute is the law. Neither the superintendent, the Jefferson County Board of Education nor this court may change that law. The statute has been the law for many years. Its requirements are very simple and easy to follow. The Board of Education, its counsel and superintendent should have been fully cognizant of it. Had they complied with it this court would not be required to reverse the judgment of the circuit court, and direct it to reverse the judgment of the Tenure Commission and direct the Tenure Commission to reverse the judgment of the Board of Education for failure to comply with § 359.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


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    Donald E. McWILLIAMS v. Shirley Ann McWILLIAMS.
    Civ. 1142.
    Court of Civil Appeals of Alabama.
    Aug. 17, 1977.

      Demond B. Toler, Mobile, for appellant.
    Alice M. Meadows, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of divorce containing an order for sale and division of jointly-owned property.

There are some unusual aspects to this matter, to say the least, which require some examination and analysis by this court before our decision on the appeal is announced.

According to the record filed in this court, on September 30, 1974, Shirley McWilliams filed suit against her husband Donald McWilliams for divorce, custody of children, alimony and support. She requested that all property of the parties be given to her. On October 13, 1974, Donald filed an original suit for divorce against Shirley, requesting divorce, custody of children and sale and division of the home. To the suit of Donald, Shirley filed answer and cross-complaint. The cases were consolidated by the court on March 18, 1974. The matter was set for trial on the merits for January 21,1975 and was continued to January 28, 1975.

On July 22, 1976, Donald filed in the original case an “Instantor Motion for Possession of Homeplace and Restraining Order.” He alleged therein that on or about January 2, 1975 a hearing was held before Judge Zoghby who ordered “among other things” that custody of a minor child and exclusive possession of the homeplace be granted to Shirley; that said decree was never signed due to nonpayment of costs; that the parties thereafter resumed living together as husband and wife; Donald had been working in California during the spring and summer of 1976; in April of 1976, Shirley brought one Levi Young to the homeplace and there committed adultery with him; Young there abused and threatened the children; on June 11, 1976, Shirley abandoned the home and went with Young to parts unknown. An instantor order was requested giving to Donald the exclusive possession of the home and restraining Shirley from coming upon the premises. An order as requested was entered the same day as the motion was filed.

On September 20, 1976, a motion for rehearing was filed. It alleged the same matters as were alleged in the previous motion to restrain. It further alleged the depositing of $100 as advance court costs. It requested a rehearing of the cause upon the merits, the divesting of all title of Shirley in the homeplace, the granting of custody of a minor child to Donald, a determination of alimony rights of Shirley and the giving of all personal property to Donald. Affidavit as to the unknown whereabouts of Shirley was made and service of the motion by publication was requested. Certification of publication from October 4 through October 25, 1976 is shown in the record.

An order of court was entered December 15, 1976. That order began as follows:

“This cause coming on to be heard this day on motion for rehearing and motion to sell homeplace filed by the defendant, defendant appearing in court with counsel and the plaintiff failing to appear in court after service being had upon her by publication . . It is ordered that the motion for rehearing be granted; and that the oral ruling of the court on January 28, 1975 be and hereby is, amended as follows: . . ..”

The order then granted custody of Randall Williams to Donald. It directed that the homeplace be sold. A commissioner was appointed to make the sale. The net proceeds were ordered to be divided equally between the parties. Attorney for Donald was directed to redraft and submit to the court a judgment of divorce within 20 days, incorporating therein the ruling of the court made on January 28, 1975 as amended. It was further ordered that the case be placed on the trial disposition docket for February 2,1977 to see that there had been compliance with the order. Donald was directed to pay all cost within 20 days and within 10 days submit a brief, if he desired; showing what authority the court had to divest a wife of her interest in property.

On the 7th day of February, 1977 a judgment of divorce was entered. It contained substantially the provisions of the previous order. In addition it held Donald had no duty to pay alimony to Shirley, made disposition of certain personal property, directed Donald to pay the notes and taxes on the home until sold and ordered Donald to pay a $350 attorney fee to the attorney who had represented Shirley in the original case filed in 1974.

The unusual nature of this case is obvious from what we have herein related. There were rulings, orders or judgments rendered in the original case in January, 1975. Apparently there was no judgment entry because costs were not paid. Perhaps such failure violated Rule 58(c), ARCP. That rule provides that entry of judgment or order shall not be delayed for the taxing of costs.

It is further evident that a motion for rehearing must depend upon a prior entered judgment or order. We are at a loss as to what authority the court possessed to rehear an order entered more than 30 days prior to the motion. Rule 59, ARCP. A last but not least observation relates to the authority for an order for sale and division of property without personal service upon the wife. Though the matters hereinabove commented upon are not involved in the appeal, they have been mentioned to prevent any conclusion by the reader that they have been approved by this court. We turn now to the issues presented on appeal.

Donald appeals from the judgment of February 7, 1977, presenting three issues for review. We shall dispose of them in the order presented in brief.

I

Sections 30-33, Title 34, Code of Alabama (1940) (Recomp.1958) are unconstitutional:

Sections 30-33 of Title 34 are the statutes relating to payment of alimony to the wife by the husband. We must first observe that these statutes have no relevance to an appeal from the judgment in this case. We have already indicated that the court found no duty upon Donald to pay alimony and there was no alimony ordered to be paid. Alimony and the statutes relating thereto are not issues subject to appeal.

We next observe that if such statutes were related to the judgment, there is no indication in the record before us that such matter was raised in the trial court. A constitutional question will usually not be considered when raised for the first time on appeal. Howard v. Pike, 290 Ala. 213, 275 So.2d 645 (1973); Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975).

We finally observe that the issue of constitutionality of the alimony statutes was decided by this court in the case of Orr v. Orr, (Ala.Civ.App.1977) [Ms. 1006] March 16,1977.

II

Does adultery by the wife relieve the husband from all duty of support?

Again we note the absence of any basis for raising this issue. There was no award of alimony nor, in the absence of a transcript of evidence in the record before us, could we determine if adultery of the wife was established below. In addition, were it necessary to respond to the issue presented, we would say that proof of adultery does not prohibit the discretionary award of alimony and support to the wife. Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967).

III

Does the trial court have discretion to divest title of wife in jointly-owned property?

The qualified answer to issue III is yes. Rayburn v. Rayburn, 46 Ala.App. 552, 246 So.2d 82 (1971). Conversely, the court also has the discretion to divest title from the wife. Stewart v. Stewart, 341 So.2d 490 (Ala.Civ.App.1977). Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). Though unpronounced by Mr. McWilliams’ brief on appeal, we assume that the theory behind the presenting of each of the issues stated is that the ordering of the sale and division of the proceeds is that giving anything to the wife in this case is the giving of alimony. Such theory is obviously incorrect. There is a clear and distinct difference in the division of property and the payment of alimony. The court here merely gave to the wife what she had title to already.

We find no merit in any of the issues presented on appeal.

Motion by appellee for attorney’s fee on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Arthur J. GUILLOTTE v. POPE & QUINT, INC.
    Civ. 1161.
    Court of Civil Appeals of Alabama.
    Aug. 17, 1977.
    Maurice A. Downing, Mobile, for appellant.

      J. H. Fernandez, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from summary judgment granting damages to plaintiff for breach of a real estate broker’s listing agreement.

Plaintiff brought suit alleging that defendant executed a written agreement authorizing plaintiff for a commission to find a purchaser for the home owned by defendant and his wife at a price and upon terms set out therein; that plaintiff found a purchaser, ready, willing and able to purchase according to the terms of the agreement and that the offer to purchase was accepted by defendant; that defendant refused to convey title is agreed causing plaintiff to lose the commission and expend money while finding the purchaser another home.

Defendant stated in defense that plaintiff knew through its listing agent that the property was owned jointly by defendant and his wife and was occupied as their homestead; that said agent knew at the time defendant signed the listing agreement that defendant’s wife was in a hospital and incompetent and would be unable to execute valid title to a purchaser; that said agent knew that title to the homestead could not be conveyed without the voluntary signature of the wife; and that the failure of defendant to convey title was because of the refusal of the wife to execute a deed.

Plaintiff moved for summary judgment on the pleadings and affidavits. The affidavits supported the allegations of the complaint and in summary were as follows:

The listing agreement was executed by defendant with plaintiff on October 13, 1975. Agents of plaintiff showed the house to prospective purchasers at least nine times between October 13 and November 16, 1975. An offer to purchase the house was secured from Captain and Mrs. Heath at a price $2,000 above the listing price. The offer was communicated via phone to defendant who authorized plaintiff to accept on his behalf. The acceptance was signed by a vice president of plaintiff as agent for defendant. Defendant later came by and added his signature. All papers were prepared for closing with an approved V.A. loan. A deed was sent to defendant’s wife. She refused to sign.

The listing agreement was secured from defendant by a Mrs. Converse, an agent of plaintiff. She had sold the property to defendant and his wife in 1973. Defendant requested Mrs. Converse to find a purchaser. He told her his wife was then in the hospital but gave no details as to her confinement. He asked if it was necessary that his wife sign the agreement. Mrs. Converse, knowing he was anxious to list the home, told him he could sign and his wife could sign later. Subsequently, Mrs. Converse talked with defendant’s wife on occasion by phone and arranged with her for prospects to view the home. Defendant’s wife said nothing to Mrs. Converse as to any unwillingness to sell.

Defendant responded to plaintiff’s motion by his own motion for summary judgment and filed affidavits with citations of law.

Defendant stated that his wife entered the hospital on October 11, 1975 and remained hospitalized until October 21. He thought that he would sell the home and when she got out of the hospital, he would send his wife to her people in Louisiana. When he contacted Mrs. Converse to list the home, he told her his wife was sick in the hospital and was having mental and marital problems. Defendant asked if he could put the house up for sale without his wife’s agreement. Mrs. Converse told him he could and he signed the agreement. His wife was then mentally unstable and was later treated in a mental unit. His wife came home on October 21 and was most of the time highly tranquilized and asleep. On November 4, she went to Louisiana and was treated there until January 13, 1976. Mrs. Converse came to the home on several occasions and saw that his wife was in no condition to decide whether to sell or not sell the home. On November 17, 1975, defendant’s name was signed to the offer to purchase by an employee of plaintiff after consultation with him on the phone. He told plaintiff’s agent of his wife’s condition and asked him about the wife signing. Plaintiff later attempted to get the wife to sign a deed and she refused saying she had not agreed to sell initially and did not want to sell at that time.

Defendant’s wife stated she took an overdose of sleeping pills on October 11, 1975, and was in an intensive care unit for three days. She later was transferred to the mental ward and subsequently to a private psychiatric hospital. She went home on October 22nd and remained until November 4, 1975. She then went to Louisiana for psychiatric treatment and returned home on December 20, 1975. While in Louisiana she called Mrs. Converse by phone, telling her that she had learned that her house was up for sale and that she wanted it taken off the market as she was returning to Mobile. Mrs. Converse told her that the house had been sold and that the purchaser was to move in on December 15. The wife then said she had not signed any papers and the house could not be sold without her signature.

Summary judgment is proper when the materials on file show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), ARCP.

It is the law in Alabama that when a real estate broker, retained by contract to find a purchaser for real estate, procures a buyer who is ready, willing and able to purchase according to the terms set by the vendor, the broker has earned his commission even though the vendor later refuses to complete the sale. Pirtle v. Harris, 338 So.2d 1018 (Ala.Civ.App.1976); Lanton v. Holly Realty Co., 56 Ala.App. 78, 319 So.2d 276 (1975).

As a general rule the fact that the property offered for sale is a homestead and is owned jointly by the wife and the husband, and the vendor is unable to convey title because the wife refused to join in the conveyance, does not affect the obligation of the husband to pay the broker’s commission. Knowledge by the broker at the time of execution of the listing agreement by the husband, that the property to be sold is a homestead and that the joining by the wife was necessary to a conveyance does not affect the broker’s right to recovery. 10 A.L.R.3d 665.

In the ease of Cofield v. McGraw & Garner, 16 Ala.App. 369, 77 So. 981 (1918) the defendant husband had agreed to pay plaintiff a commission for obtaining a purchaser for his homestead. A ready, willing and able purchaser was obtained and defendant failed to convey title. The court said:

“The fact that the defendant could not convey the lands he employed the plaintiffs to sell without the voluntary signature and assent of his wife certainly does not avoid the defendant’s obligation to pay the plaintiffs for their services in procuring a purchaser for the land at defendant’s instance, and in accordance with the contract between the parties.” 16 Ala.App. at 370, 77 So. at 982.

The court also held frivolous a plea that the contract was void because it related to the homestead and the wife had not signed and acknowledged it. It was pointed out that the enforcement of the obligation to pay a broker’s commission by the defendant did not affect his homestead rights by fastening any lien or encumbrance thereon. It follows that no property right of the wife is affected by the husband’s contractual obligation to pay a broker’s commission. The case of Morgan v. Whatley & Whatley, 205 Ala. 170, 87 So. 846 (1920), supports the decision in Cofield v. McGraw & Garner, supra.

There is no dispute that defendant signed the sales authority agreement with plaintiff. It was his stated intention that plaintiff find a purchaser for his home so that his wife could return to Louisiana when she recovered from the overdose of sleeping pills. It is without dispute that plaintiff found a purchaser and defendant accepted the offer of purchase.

Defendant seeks to avoid the contract on the theory that it was to be a tripartite agreement and not effective until signed by his wife. We find no reasonable support in the defendant’s affidavits for such theory. By his own affidavit, defendant merely asked if it was necessary for his wife to sign the sales authority. This query did not indicate any wish for delay until she signed. He knew that she was at that time in intensive care and physically unable to sign. He, in fact, clearly discloses that he wished immediate action by plaintiff so that a purchaser could be found. Defendant was told truthfully by plaintiff that the signature of his wife was not necessary to authorize plaintiff to seek a purchaser. Defendant’s theory must fall in the face of the undisputed evidence that he subsequently ratified the agreement by accepting the results of plaintiff’s service and even accepted the offer of purchase.

The remaining theory is that plaintiff could not recover because it knew that at the time of the execution of the listing agreement that the defendant’s wife was mentally incompetent to sign a conveyance. We first comment that we find no evidence that plaintiff knew that defendant’s wife was mentally incompetent at the time of entering the agreement. Defendant’s affidavit states that he told Mrs. Converse that his wife “was sick and in the hospital; that she was having mental problems and we were also having marital problems. . . ” Such statement does not disclose incompetency.

Even if it were a fact that at the time of signing the agreement defendant’s wife was mentally incompetent, it would be immaterial, as there is no question that she was competent and able to execute a conveyance when requested by plaintiff after a purchaser was obtained. It was not the incompetency of the wife which prevented performance by defendant. It was her refusal to sign the conveyance which caused the breach of the agreement.

Plaintiff was never advised that defendant’s wife opposed a sale or would be unwilling to sign a conveyance until after the purchaser was secured. There was no intimation of any unwillingness by the wife during the time prospects were being shown the house though she was present on some occasions. If defendant knew of his wife’s unwillingness to convey, he had opportunity to inform plaintiff to discontinue efforts to find a purchaser. Defendant obviously did not know of her unwillingness on November 17 when the offer to purchase was accepted by him. Absent a knowledge by the realtor of a defect sufficient to prevent conveyance of a good title or of the unwillingness or inability of the wife to join in a conveyance, it is our opinion that a husband is liable under a sales authority contract for the commission if the realtor secures a ready, willing and able purchaser. The joinder of the wife in the contract is not required. Morgan v. Whatley & Whatley, supra; Cofield v. McGraw & Garner, supra.

It is the opinion of the court that there was no genuine issue of material fact and that plaintiff was entitled to judgment as a matter of law. We affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Gene Ed CRAWFORD v. Susie Mae CRAWFORD.
    Civ. 1165.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1977.

      Louise I. Turner of Turner, Turner & Turner, Tuscaloosa, for appellant.
    Sam L. Webb, Jr. of Callahan, Nichols & Webb, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is an appeal by the appellant-husband from a decree of the Circuit Court of Tuscaloosa County.

The appellee-wife initiated the proceedings below by filing with the circuit court a petition to modify a previous decree of that court. Specifically, the wife asked for an increase in child support payments. The husband filed an answer to the wife’s petition and additionally filed with the circuit court a petition seeking custody of the minor children.

After a hearing ore tenus, the trial court found that the children should remain with the mother; that the child support payments should be increased; and that the husband was in arrears on the previously awarded child support payments. The trial court ordered this arrearage to be paid at a specific rate per month. We note that the trial court made no specific finding that the husband was in contempt of court.

The husband, through able counsel, contends that since the arrearage was not made an issue by the pleadings, the trial court erred to reversal in its action regarding the past due child support payments. We do not agree and affirm.

This court has carefully reviewed the record and it is clear that the issue of whether there was an arrearage of child support payments was clearly before the trial court. Specifically, there was extensive testimony regarding the arrearage. The examination of witnesses regarding an arrearage was conducted not only by the wife but also by the learned trial judge. No objection was made by the husband regarding this testimony. In fact, it could be said that no objection was ever made by the husband regarding this aspect. However, some comment by the husband’s attorney at the close of the trial could be viewed as an objection. This comment occurred after the trial court indicated that there was an arrearage.

The purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and to renounce the technicality of procedure. See Board of Water and Sewer Commissioners of City of Mobile v. McDonald, 56 Ala.App. 426, 322 So.2d 717, cert. den. 295 Ala. 392, 322 So.2d 722 (1975).

Whether the issue of arrearage was a proper subject for the trial court to consider is dealt with directly by Rule 15(b), ARCP, which states, 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.”

The Committee Comments to Rule 15(b), ARCP, sheds further light on the issue of this appeal in that:

“Under the rule where evidence is introduced or an issue raised with the express consent of the other party, or without objection from him, the pleadings ‘shall’ be deemed amended to conform to such evidence.” [Emphasis supplied.]

It is clear to this court that by failing to object to the testimony regarding the arrearage the husband impliedly consented that the arrearage issue was before the trial court.

As the Alabama Supreme Court stated in Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975):

“[I]f Rule 15 is to be of any benefit to the bench, bar and the public, the trial judges must be given discretion to allow or refuse amendments. . . . But that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.”

Additionally, we find the following comment to be appropriate in this instance:

“Pleadings are a means, not an end, and the action should be resolved on its merits, not upon technicalities. . Without the Rule’s permissive approach to the right to amend, the allegiance to substance over form which permeates these rules would not be attainable.” 1 Lyons Alabama Practice § 15.1, p. 308.

The case is due to be affirmed.

AFFIRMED.

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