author: MERRILL, Justice.

text:
    Harry FREEMAN, Jr. v. JEFFERSON COUNTY, Alabama, etc., et al.
    SC 1649.
    Supreme Court of Alabama.
    May 7, 1976.
    Rehearing Denied July 16, 1976.

      George M. Boles, Birmingham, for appellant.
    Edwin A. Strickland and John S. Foster, Birmingham, for appellees.
   MERRILL, Justice.

This appeal is from a final decree, in equity, denying plaintiff’s claim for the computation of additional years’ service on his claim for longevity. We affirm.

In Jefferson County there is a Personnel Board which was empowered by the legislature to promulgate rules and regulations governing incidents of employment of the employees of Jefferson County and certain municipalities in' the county, including the City of Homewood. The Personnel Board was created by Act 248, General Acts of Alabama 1945, p. 376, which created a county-wide Civil Service System. The Act has been amended several times but the rules and regulations of the Personnel Board are binding upon both employers and employees.

There is no dispute as to the facts. Plaintiff Freeman was first employed by Jefferson County as a Deputy Sheriff in October, 1951. He worked in this capacity until the Fall of 1963, at which time he transferred, pursuant to applicable rules of the Personnel Board of Jefferson County, to the City of Homewood, at a similar pay grade and promotion rating. Subsequently, he advanced to the rank of Sergeant in the Homewood Police Department. In 1967, plaintiff transferred back to Jefferson County, again pursuant to applicable Personnel Board rules and legislative enactments, and assumed the position of Deputy Coroner. In this capacity, plaintiff was accorded pay and grade rating equivalent to a police sergeant. Plaintiff was employed as a Deputy Coroner until 1972 when he was transferred to the new Mercy Hospital (now Cooper Green Hospital) as Senior Security Officer, for practical purposes the director of security for the hospital. At all times since his transfer to Jefferson County, plaintiff has been accorded credit for all prior years of service for the county and with the City of Home-wood except in one particular. The exception involves the payment of longevity to county employees during the Fall of each of the years 1972-1975. These represent payments of additional compensation to county employees which, while not mandatory, have come to be routine.

Defendants have refused to pay plaintiff longevity so as to include his prior years’ service for the county or the City of Homewood. These same years' of prior service have been included with respect to all other incidents of plaintiff’s employment including, for example, his: (1) 15-year service pin; (2) salary; (3) promotional status; (4) retirement system monthly payments, benefits, and equalizing contributions to cover those years when plaintiff was not contributing to the retirement system; (5) vacation, and (6) sick leave.

On October 2, 1973, the Jefferson County Commission passed a resolution authorizing longevity pay, which would be calculated on the annual base salary as of October 1, 1972.

The single legal question presented on this appeal is whether the first sentence of § 5 of the resolution, quoted post, is effective. Section 5 provides:

“Longevity time will be computed on total uninterrupted full-time employment service with Jefferson County, Alabama. Leaves of absence approved by the Personnel Director shall not be construed as an uninterruption of time. Absences without leave, layoffs and suspensions-without pay will not be considered in computing total longevity time.”

The trial court held, in part, that “In the computation of County longevity pay for the Plaintiff and other civil service County employees only uninterrupted full-time service with the County is considered.” This was based on the fact (conceded by both sides) that neither the Homewood service nor the prior county service was uninterrupted county service.

Freeman contends that the denial of longevity for the Homewood service and his prior county service is in conflict with some Personnel Board rules and regulations. We cannot agree. None of those rules or regulations cited in brief deal with the subject of longevity. Since the Civil Service rules do not touch on longevity, it is difficult to agree that there is a conflict.

It is reasonable that the county would like to keep as many employees as possible on “uninterrupted full-time employment service with Jefferson County”; and that longevity would be computed on that total uninterrupted service.

Freeman originally worked for the county. He was transferred to Homewood and he worked there for four years. This constituted an interruption of his county service. The transfer could not, under Personnel Board rules, be effected without the consent of “both appointing authorities concerned,” § 665. The base pay, seniority, vacation, sick leave and over-time leave rights that may have accrued went with the employee to his new position, but there is no mention of longevity.

Freeman concedes in brief that “At the time of passage of the 1972 Resolution a request was made by certain employees that the Commission include previous classified service with Jefferson County and municipalities subject to the Jefferson County Personnel Board Act.”

Federal cases support the rule that the rejection o-f an Amendment by the Congress which would have made the statute applicable to a given situation furnishes a strong inference that the statute was not intended to be applicable to that given situation. United States v. Pfitsch, 41 S. Ct. 569, 256 U.S. 547, 65 L.Ed. 1084 (1921); United States v. Great Northern R. Co., 287 U.S. 144, 53 S.Ct. 28, 77 L.Ed. 223 (1932); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933), and Madden v. Brotherhood & Union of Transit Employees of Baltimore, 147 F.2d 439 (4th Cir. 1945). The fact that the Commission was requested to amend the resolution to effect the same result as plaintiff has sought in this suit is very persuasive that the Commission did not choose to recognize interrupted service in the computation of longevity.

We have said that while a legislative construction of a constitutional provision cannot be accepted as final by the judiciary, yet it is justly influential when the provision is of doubtful meaning or effect, and this legislative interpretation of the provision has not been questioned, has been acquiesced in, and acted upon for a considerable period. Board of Revenue of Jefferson County v. Huey, 195 Ala. 83, 70 So. 744. This statement was followed in Opinion of the Justices, 247 Ala. 195, 23 So.2d 505.

We note that the County and Personnel Board have continuously and consistently excluded a county employee’s prior county service and city service sincethe enactment of the longevity resolution in administering the resolution. This administrative interpretation, while not binding on this court, will be considered and given weight by this court. State v. Southern Electric Generating Co., 274 Ala. 668, 151 So.2d 216; Jones v. Phillips, 279 Ala. 354, 185 So.2d 378.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    S & S DISTRIBUTING COMPANY, a corp. v. TOWN OF NEW HOPE.
    SC 1490.
    Supreme Court of Alabama.
    June 18, 1976.
    Robert E. Willisson, and Carl A. Mor-ring, Jr., Huntsville, for appellant.
    None for appellee.
   SHORES, Justice.

The Town of New Hope brought a declaratory judgment action against S & S Distributing Company seeking construction of a beer tax ordinance. The trial court held that the ordinance was clear and unambiguous and directed a judgment in favor of the Town of New Hope. S & S Distributing Company appealed.

Involved is Ordinance No. 87, an amendment of Ordinances Nos. 32 and 82, which had been, prior to that time, duly adopted by the town council and had been in full force and effect until the date of the amendment, March 6, 1968. The taxable period in question is from March 6, 1968, to June 19, 1974, since Ordinance No. 87 was repealed on the latter date. The ordinance provided in pertinent part:

“(a) (2) Each wholesale distributor of malt or brewed beverages, whose warehouse or principle point of distribution to retail stores within the town limits or the police jurisdiction of the Town of New Hope, Alabama, is within the town limits or police jurisdiction at the Town of New Hope, Alabama, shall, prior to engaging in such business pay to the Town of New Hope, Alabama, for the privilege of so engaging, an annual license of $50.00 and in addition thereto, upon delivering of any malt or brewed beverages in the Town of New Hope shall pay to the Town of New Hope, for the privilege of having so engaged in the next preceding calendar month or part thereof, an additional license tax of $.02 upon each twelve fluid ounces of all such beverages so received for sale. The license tax upon each bottle or container of such beverage shall be prorated if the contents thereof are more or less than twelve fluid ounces.”

The Town of New Hope contended that all beer received and deposited by the. defendant in its warehouse “. . . for purpose of resale at wholesale to retail stores, whether within or without the Town or its police jurisdiction was subject to the tax levied by its beer tax Ordinance S & S Distributing Company contends that the tax applied only to beer received and deposited in its warehouse which was later sold by the defendant at wholesale to retail stores located within the town limits or its police jurisdiction.

S & S Distributing Company called three witnesses, who were on the Town Council when the first beer tax ordinance was passed in 1959 (Ordinance No. 32) and through 1968, when Ordinance No. 87 was passed. All three testified that it was the purpose of Ordinance No. 32, and its amendments, Ordinances Nos. 82, 84, and 87, to tax only sales from wholesalers to retailers in New Hope. Witness J. C. Taylor testified that the Town Clerk-Treasurer developed forms whereby the wholesalers reported the amount of beer they sold in New Hope, and retailers reported the amount of beer purchased from the wholesalers. He further testified that he was interested in only what went through the retail stores until 1974, when Ordinance No. 102 was passed, which taxes all beer coming into New Hope.

Witness Albert Butler testified that, during his time on the Council, no attempt was ever made to determine the amount of beer coming into New Hope that was not sold to retailers in New Hope.

The testimony of witness Dave Mann was, in substance, the same as that of the previous two witnesses, and he testified that the Clerk-Treasurer’s duties were changed by the 1974 Ordinance to include collection of taxes on beer stored within New Hope.

Bernice Clark, the Clerk-Treasurer for New Hope, testified that the pre-1974 procedure required the distributor and retailer to report monthly on the amount of beer sold in New Hope, and these reports were checked against each other. She testified that, under Ordinance No. 102, S & S Distributing Company would have to pay tax on the storage on the receipt or delivery or deposit of beverages, less whatever credit they were entitled to for the sale of beverages to other retail distributors in other municipalities.

Witness Johnny Cobb, an employee of S & S Distributing Company, and a member of the City Council of New Hope, testified as to the method of determining the tax due the city and stated that he was on the council when Ordinance No. 102 was passed, which placed a tax on the storage of beer in New Hope.

The appellant insists that the trial court should have considered the construction placed on the ordinance by the officials charged with administering the tax laws, and the contemporary history surrounding the passage of the ordinances. It also argues that municipal taxing ordinances are to be strictly construed against the taxing power.

The evidence in this case was uncontro-verted that the ordinance was intended to tax beer sold by wholesalers to retailers within the Town of New Hope. However, the trial court found that construction of the ordinance was not required, concluding that ". . . The language of the ordinance is clear and concise to the effect that the two cent license tax was to be levied upon each twelve ounces of all beverages ‘received for sale.’ ” The question, therefore, is whether the trial court was correct in determining as a matter of law that the ordinance was clear and unambiguous. We think not. We have said that a statute is ambiguous when it is of doubtful meaning. Ex parte Alabama Public Service Commission, 268 Ala. 322, 106 So.2d 158 (1959). Ambiguity in this sense has been defined as whether “A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses. . . .” State ex rel. Neelen v. Lucas, 24 Wis.2d 262, 267, 128 N. W.2d 425, 428 (1964).

Ordinance No. 87 requires a wholesale distributor within the Town of New Hope to pay “. . . upon delivering of any malt or brewed beverages in the Town of New Hope ... [a tax] upon . all such beverages so received for sale.” The trial court looked only at the language “received for sale” to determine the taxable event. The ordinance could be read, however, to mean that the taxable event is the delivery of the beer by the wholesale distributor to a retailer within New Hope, since the language suggests that the wholesaler will deliver and someone else will receive the beverages.

This ambiguity necessitates the use of rules of construction to determine the intent behind the statute. We resort to the usual rules of construction since “. Rules governing in the construction of state statutes are likewise applicable to municipal ordinances. . . . ” American Bakeries Co. v. City of Opelika, 229 Ala. 388, 392, 157 So. 206, 208 (1934).

“One of the most significant aids of construction in determining the meaning of revenue laws is the administrative interpretation given such acts by the agency that is responsible for its administration and enforcement. . . .” 3 C. Sands, Sutherland Statutory Construction, § 66.04, at 192 (4th ed. 1974). “It is an established rule of statutory construction that when a tax statute has been construed by the highest officials charged with the duty of administrating the tax laws, such construction should be given favorable consideration by the courts . . .” State v. Birmingham Rail & Locomotive Co., 259 Ala. 443, 448, 66 So.2d 884, 889 (1953). It is clear that the Clerk-Treasurer of New Hope was charged with the enforcement of this ordinance. Ordinance No. 87; Alabama Code, Title 37, §§ 424-25 (1958).

The evidence is uncontradicted that the procedure was to tax only sales to retailers made in the Town of New Hope or its police jurisdiction. The original beer tax ordinance was amended four times without substantial modification before it was changed in 1974 to apply to beverages stored in New Hope. The 1959 ordinance contains virtually the identical language as Ordinance 87 with respect to the taxable event. The Council, in the amendments, in no way expressed its disapproval on the construction placed on the ordinance by the Clerk-Treasurer. This supports the conclusion that this was what the Council intended. Jones v. Phillips, 279 Ala. 354, 185 So.2d 378 (1966).

It is, therefore, our conclusion that the Town Council intended to tax only the sale of beer to retailers in New Hope. In arriving at this conclusion, we are also aided by the rule of construction which requires municipal taxing ordinances to be strictly construed against the taxing authority. Al Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So.2d 816 (1958).

REVERSED AND REMANDED.

HEFLIN, C. J., and MADDOX, JONES and BEATTY, J J., concur.


author: BRADLEY, Judge.

text:
    Shelby Gene WHITE v. Ann Johnson WHITE (Gregson).
    Civ. 829.
    Court of Civil Appeals of Alabama.
    June 30, 1976.

      C. LeNoir Thompson, Bay Minette, for appellant.
    T. M. Brantley, Bay Minette, for appel-lee.
   BRADLEY, Judge.

This appeal is from a decree denying a request for modification of a prior child support order.

In 1973 the parties to this appeal were divorced and the appellee-wife was awarded custody of their two minor children. The appellant-husband by written stipulations later incorporated in the divorce decree agreed to pay to the appellee $300 per month as child support. At the time of the divorce decree, appellant was earning, after taxes, $7,834 per year.

In his petition for modification of child support, appellant alleged that for the year 1975 his yearly earnings after taxes were only $6,500, and he was unable to continue to pay $300 a month child support. Appel-lee answered that, due to inflation, the cost of supporting two children was more than in 1973, and she urged the court not to reduce the child support.

After hearing the testimony of witnesses and receiving other evidence, the trial court concluded that child support should not be reduced and denied the request for modification.

The modification of a prior decree for child support, based on changed circumstances of the parties, is a matter within the judicial discretion of the trial court; the exercise of such discretion is to be disturbed on appeal only if there is such an abuse of discretion as to be plainly and palpably wrong. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616.

Appellant’s proof of changed circumstances relates primarily to the decrease in his personal income; however, he also suggests that the evidence offered by appellee makes it doubtful that the current needs of the children warrant support payments of $300 per month.

Appellant has shown that recent financial changes left him with only forty-five percent of his earnings for his maintenance. Appellant is required to pay over half his net income as child support, although the actual amount of money left for his own expenses is greater than the amount he agreed to accept in 1973.

Appellee testified that the $300 was needed as much or more now than it had been in 1973, due to the increase in the cost of living. Moreover, appellee pointed out that in 1973 the appellant had agreed to pay the $300 monthly child support payment plus $200 per month alimony, leaving him $1,834 annually to live on. Because of appellee’s remarriage the alimony payments have been discontinued, leaving appellant $2,950 to live on for the current year.

Appellee further testified to the effect that her present husband has four children of his own living at their home. The second husband gives her $50 per week for the family to live on. Appellee takes this money and commingles it with the $300 paid by appellant to pay all family living expenses, including rent. Appellant is thus paying almost sixty percent of the costs of maintaining six children, only two of them his.

In our opinion, such purely financial circumstances as appellant finds himself in should not cause us to say that the trial court plainly and palpably erred in refusing to reduce child support. The amount of child support to be awarded depends on the facts of each case, and there is no mathematical formula for determining an appropriate award, Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437. In Whitfield v. Whitfield, 283 Ala. 433, 218 So.2d 146, the husband had a net income of $800 per month, out of which he was ordered to pay $300 per month child support and $200 per month alimony. The husband argued that this award of five-eighths of his salary was excessive. The supreme court disagreed and affirmed the award.

Similarly, the fact that the award in the instant case exceeds half appellant’s net income does not call for reversal. However, we do find error in the trial court’s failure to take into account the evidence that appellant’s children either do not need $300 per month to meet their needs, or that some of the child support payments are being diverted to support the second husband’s four children.

A custodial parent who receives child support payments is not free to deal with that money as she shall desire, but must apply the funds for the benefit of the child. Unaccounted for or unjustifiable surpluses of support money received over amounts actually spent for the particular child may imply that the amount of the existing support is excessive and should be reduced. In the present case, the facts do raise the suspicion that child support money has been diverted from its intended purpose: appellant’s only legal duty is to provide for his own two children, Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627. However, we do not mean to imply that strict accounting methods must be employed when the household is situated as it is in this case, but we do insist that there be adequate proof that the child support money being paid by the father is in fact being used for the support of his children.

The proof in the record suggests three possible conclusions: (1) appellant is subsidizing someone else’s children; (2) appellant’s children do not need $300 per month for their support; or (3) the $300 per month awarded for support of appellant’s children is needed and is being used for appellant’s children’s support. If either one of the first two conclusions is found to be true, a reduction in support payments would be required. On the other hand, if the third conclusion is adopted, the $300 a month award must be continued.

We hold that further inquiry into this matter might dispel the inference that an impermissible state of affairs exists; and we think further inquiry should be made, for we are of the opinion that the trial court did not adequately consider the first and second possible conclusions that could have been reached in this case. We therefore reverse the decree of the trial court and remand the matter to it for further proceedings in accordance with this opinion.

The appellee has asked this court to award an attorney’s fee for the services required of her attorney on this appeal. Such a request can be granted by this court, Lyons v. Lyons, 279 Ala. 329, 185 So.2d 121. The remarriage of appellee has not relieved appellant of his duty to support the children, and the wife’s opposition to the present appeal has as its object the protection of these children’s entitlements. We feel that $300 is a reasonable fee for the representation appellee has received on appeal, and that amount is hereby awarded.

ATTORNEY’S FEE AWARDED; REVERSED AND REMANDED.

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


text:
    Ex parte Almeta Howell PARKER.
    Civ. 801.
    Court of Civil Appeals of Alabama.
    June 23, 1976.

      Elliott, O’Rear & Robinson, Jasper, for appellant.
    No appearance for appellee.
   BRADLEY, Judge.

Review by writ of certiorari is sought here of an order holding petitioner, Almeta Howell Parker, in contempt of court.

Almeta Howell Parker and A. P. Howell were divorced by the Circuit Court of Walker County, Alabama on June 13, 1973. The divorce decree incorporated a prior settlement agreement which, among other things, provided that A. P. Howell would transfer his interest in the homeplace of the parties to petitioner for $5,500.00. In return, petitioner gave a note and mortgage to A. P. Howell. The terms of the note and mortgage required that petitioner pay to Howell not less than $100 per month until said indebtedness was paid.

Almeta Parker subsequently conveyed the property to her daughter, Sybil Ingram. The daughter testified that she agreed to assume the mortgage given to A. P. Howell by her mother, but Howell testified that he had no agreement with Sybil Ingram, and he wanted Almeta Parker to pay him.

After a hearing on the petition for a rule nisi filed by Howell, the trial court found Almeta Parker in contempt of court for failure to pay at least $100 per month to Howell on the indebtedness represented by the note and mortgage previously described. The trial court gave her one month to pay the arrears or be incarcerated in the Walker County jail until such time as she purged herself of contempt by complying with said order.

Petition for the writ of certiorari was then filed here seeking a review of that contempt order.

Almeta Parker says that she has been found in contempt of court for-failure to pay a debt, and such an order contravenes Section 20, Constitution of Alabama 1901, which provides:

“That no person shall be imprisoned for debt.”

The Supreme Court of Alabama has held that Section 20 is limited to contract liabilities. Bray v. State, 140 Ala. 172, 37 So. 250. The court has also said that alimony is not a matter of contract within the meaning of Section 20, supra. Ex parte Stephenson, 252 Ala. 316, 40 So.2d 716.

Petitioner contends in brief (respondent did not favor us with a brief) that her agreement with Howell, which was incorporated in the divorce decree, was a simple contract whereby she was to pay him $5,500 for his interest in some real estate that he conveyed to her. She says there was nothing in the agreement or the decree to suggest that alimony was involved in the arrangement.

Our examination of the agreement entered into by the parties hereto prior to the divorce decree and the testimony heard by the court at the rule nisi hearing convinces us that the transfer of property interest in exchange for the payment of a certain sum of money was either a simple business transaction, or, at most, a property settlement upon the dissolution of a marriage. Either view of the evidence compels us to say that a debt ex contractu was involved, the payment of which could not be coerced by a contempt citation. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808; Ex parte Hardy, 68 Ala. 303.

Had the agreement to pay $5,500 in exchange for the former husband’s interest in the property been considered by the parties and the court as alimony in gross, we might have been faced with a different solution to the problem. Bray v. State, supra. The award of alimony has as its sole object the support of the wife and is not to be considered a property settlement. Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867.

In the case at bar the,intent of the agreement was for the wife to pay the husband for his interest in some property he was giving up, as evidenced by a note and mortgage, not to give support to the wife or to compensate her for her lost inchoate property rights as would be the case in the award of alimony in gross. This ordinary money obligation is not attended with any of those peculiar equitable considerations which attach to alimony. Therefore, the debt created by the agreement of the parties hereto is within the ambit of Section 20, supra, and is not subject to enforcement by contempt proceedings.

We conclude that the trial court erred in holding petitioner in contempt of court for failure to pay the indebtedness represented by the note and mortgage executed by A. P. Howell, the former husband. The decree of the trial court is reversed and the cause remanded for a decree to be entered in accordance with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: WRIGHT, Presiding Judge.

text:
    Virginia W. PETTIS v. Claude M. PETTIS.
    Civ. 790.

    Court of Civil Appeals of Alabama.
    July 7, 1976.

      James D. Sullivan, Mobile, for appellant.
    Leon G. Duke, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a divorce decree.

The parties were married in 1969. Two children were born, a boy age 5, and a girl age 3. The wife is age 34 and the husband age S3. The husband is an automobile mechanic operating his own business. His income is approximately $20,000.00 per year. The parties jointly hold title to a home and the business property. The home is approximately valued at $30,000.00 to $40,000.00 with $15,000.00 indebtedness. The business property is valued by the wife at $100,000. The husband invested $16,000.-00 to $17,000.00 in the property and thereafter built a building. The total cost was about $35,000.00. It has an indebtedness of some $25,000.00 to $30,000.00. There is a chain link fence about the back of the business property with a house trailer where the husband has been living since the separation.

The parties separated in May of 1975. The wife left the home taking the girl with her. The boy was with the father at the time and she did not take him. The husband kept and cared for the boy at the garage. The wife did not see the boy again until divorce proceedings were begun. The wife stated that the husband drank heavily and on an occasion prior to separation kicked in the door of the home. The husband stated the wife wanted to go out and drink.

After oral hearing of the testimony of only the parties, the court divorced them upon the ground of incompatibility. Custody of the boy was given tó the husband. Custody of the girl was given to the wife with child support of $25.00 per week. All property was given to the husband including household furniture, except for an automobile given to the wife. As a property settlement, the husband was ordered to pay to the wife the sum of $4,500.00. Alimony and attorney fees were refused the wife.

Giving full credence to the presumption of correctness of a decree rendered after oral hearing and further considering the grant of liberal discretion to the trial judge, we conclude from our review of the evidence that the decree is unjust and plainly wrong in several respects and that the discretion of the court was abused.

First, we conclude that the trial court erred in granting custody of the 5-year-old boy to the husband. There was no evidence that the wife was an unfit mother. Perhaps the trial court inferred from the delay of the wife to seek custody or to go to see the boy from May to July that she displayed insufficient concern. This was a reasonable inference. However, when weighed against the evidence that the husband had been and would continue to keep the child at the garage while he worked, practical judgment dictates that the dangers inherent in such an environment should not be permitted. Whatever the reason of the wife in leaving the boy for such a period with the husband under such conditions, it must be considered in light of the lack of evidence that she had previously failed to properly care for the children.

There is the further consideration of the need of the children to be together. A separation of two such young children should, in the judgment of this court, be permitted only out of extreme necessity. Apparently the court was of the opinion that the wife was a suitable custodian of the girl. We perceive no cause for concluding that she was not an equally suitable custodian for the boy. It has long been an accepted principle in our courts that absent proof of unsuitability, the mother is best suited to have custody of children of tender years. Messer v. Messer, 280 Ala. 395, 194 So.2d 552.

We further consider that the trial court erred in taking from the wife her joint interest in real estate, according to the evidence, of the approximate net value of $95,000.00 and awarding her only $4,500.00 in cash. We are unable to discern from the testimony, the equity of such a disparate division of property. Such disparity is compounded by the further taking of all household furnishings, and denial of alimony and attorney fees.

We have many times recognized that an equal division of property is not required as a measure of the limits of the discretion of the trial court. However, we have always indicated that such division should be the result of weighing the rights and equities of the parties as disclosed by the evidence in each case. Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180; Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150. The conclusion that the discharge of the marital rights and legal interest of the wife in jointly-owned property with a mere token payment of $4,500.00 is unfair and unjust is inescapable.

It is further the undisputed evidence that the wife is without means of support and suffers an allergy which prevents her from working at her pre-marital vocation. We consider that it would be fair for the court upon remandment to consider the need of the wife for alimony in light of evidence of the ability of the husband to pay.

We also must comment upon the refusal of the trial court to grant to the wife a reasonable attorney fee. Without further discussion of the undisputed evidence of the husband’s means and the lack thereof of the wife, it appears to this court that the discretion of the trial court was abused by the refusal of a reasonable attorney fee.

For palpable error, we reverse the judgment of the trial court in every aspect except that granting the divorce, and remand the case to the trial court for rehearing on the issues of property division, custody, alimony, child support and attorney fees with judgment thereon not inconsistent with this decision.

We grant to Virginia W. Pettis the sum of $350.00 as a fee for her attorney on this appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Wanda J. SMITH v. Gerald Douglas SMITH.
    Civ. 806.
    Court of Civil Appeals of Alabama.
    June 30, 1976.

      George E. Trawick, Ariton, for appellant.
    Kenneth R. Cain and David C. Emery, Ozark, for appellee.
   HOLMES, Judge.

This is a child custody case from the Circuit Court of Dale County. The trial court, on petition of appellee-father, modified the custody provisions of a prior decree which divorced the parties. The modification order removed two of the parties’ children from the custody of appellant-mother and placed them in the custody of appellee-father. The mother appeals from this action of the trial court.

The sole issue before this court is whether the learned trial court erred to reversal by its modification order described above. We affirm in part and reverse in part.

The facts as revealed by the record are as follows:

The parties, Gerald Douglas Smith and Wanda J. Smith, were divorced by decree of the Circuit Court of Dale County on September 5, 1975. The decree incorporated an agreement between the parties which provided, inter alia, that the father would have custody of two of the parties’ minor children and the mother custody of the remaining four children.

On September 8, 1975, the father filed a petition to modify the custody provisions of the divorce decree. The petition alleged that since the decree the mother had begun to leave the minor children in her custody alone at night, and had begun to live with a man out of wedlock. The petition prayed that the two youngest of the children in the mother’s custody be placed in the custody of the father. It was recited in the petition that the other two children in the mother’s custody desired to remain with the mother.

The hearing on the petition was held on . September 29, 1975. The father testified that the minor children in the mother’s custody were left alone at night while the mother worked. He further testified that the mother had lived out of wedlock with one Renfro and was continuing to carry on an adulterous relationship with this individual in the presence of the minor children.

Renfro’s wife testified that since the rendition of the divorce decree she had seen Renfro’s truck parked all night in front of the mother’s abode. She also testified that Renfro had lived with the mother.

The mother denied leaving the children alone at night and carrying on the adulterous relationship with Renfro depicted above. There was also testimony by a relative of the mother, and by one of her neighbors, to the effect that she was a fit person to have custody of the minor children.

Based on the above testimony, the learned trial judge granted the relief prayed for in the father’s petition, changing custody of two of the children from the mother to the father. The mother prosecutes this appeal.

It is appropriate to state at the outset the well-established legal principle that a trial court which has heard oral evidence in a child custody modification proceeding will not be reversed on appeal save for plain and palpable error and abuse of discretion. Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686; Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185. The reviewing court cannot supplant its judgment for that of the trial court if there is any reasonable inference presented from the evidence that the trial court’s decree was correct. Northcutt v. Northcutt, 45 Ala.App. 646, 235 So.2d 896.

A change in custody must be justified by a material change of circumstances since the rendition of the original decree, or by proof of material facts which, though existing at the time of the original decree, were then undisclosed, and have since been revealed. Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144; Stephens v. Stephens, 47 Ala.App. 396, 255 So.2d 338. However, it is well recognized that the trial judge who hears the evidence ore tenus is in the best position to ascertain if there has been a change of circumstances or revelation of undisclosed facts such as will necessitate custodial change.

The prevailing consideration in child custody matters is, of course, the best interest of the child. 8 Ala.Dig. Divorce Key 298(1).

Applying these principles to the facts of this case, we find no error to reversal by the learned trial judge concerning custody of the children.

The record in this case is far from a model of clarity. It is unclear whether the alleged misdeeds of the wife took place before or after the divorce decree, with the exception of Mrs. Renfro’s discovery of Renfro’s truck parked all night outside the mother’s house. This event definitely occurred after the decree. The remaining transgressions of which the mother is accused are, however, not fixed as to time.

The father several times during his testimony remarked that changes had taken place since the decree. Although he did not always specify those changes, he at points apparently indicated that he meant the alleged adultery with Renfro. Furthermore, the tenor of the testimony indicates that facts undisclosed at the time of the original decree may have been revealed by that testimony. Applying the presumptions in favor of the trial court’s decree, and drawing all favorable inferences from the evidence in the record, we do not feel it is an unfair characterization of that evidence to say that it shows either a material change in conditions since the decree or a revelation of undisclosed facts. As noted earlier, either will suffice to justify a change in custody.

The evidence is certainly sufficient to demonstrate that the mother engaged in an adulterous relationship, the nature of which was made apparent to the minor children. The trial judge by his decree apparently so found. While we have held that a mother will not be denied custody for every indiscretion, Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, we feel that, in this instance, the mother’s immoral behavior justified the change in custody. This result is strengthened by the fact that the mother apparently made a practice of leaving the minor children alone at night.

We finally note that the trial court’s modification order enjoins the appellant-mother to “. . . discontinue any harassment of the Plaintiff or of anyone with whom he should happen to leave the minor children. . . .” There is no evidence whatsoever in the record to indicate that appellant-mother has in any manner harassed appellee-father or any other person. This part of the learned trial judge’s order, concerning harassment by the mother, is therefore reversed.

The order of the trial court is affirmed in all other respects.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.'

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


text:
    ASSURED GROWTH CORPORATION, a corporation, et al. v. Charles G. TOMBERLIN.
    Civ. 873.
    Court of Civil Appeals of Alabama.
    July 7, 1976.

      James L. Shores, Jr., Birmingham, for appellánts.
    Tipler & Fuller, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

Assured Growth Corporation, American Properties, Inc., and Diversified Securities, hereinafter called the corporations, appeal from a judgment from the Circuit Court of Covington County, Alabama. The original action was on account, for money had and received, and for breach of a written agreement. The corporations filed a plea in abatement challenging venue. The plea was denied after an evidentiary hearing. Thereafter, the court proceeded to hear the case without a jury. The court found for the plaintiff, Charles G. Tomberlin, and granted him damages in the amount of $7,000.00 plus $3,202.50 as interest. Reversed.

The corporations are domestic corporations with their principal offices in Birmingham, Alabama. American Properties, Inc. is the successor of Assured Growth Corporation through a name change in 1969. Assured Growth was organized in 1967 for the purpose of capitalizing and managing a life insurance company. Diversified Securities, Inc. was incorporated to sell and distribute stock in Assured Growth.

In 1968 Diversified undertook to sell an issue of stock of Assured Growth. Information concerning Assured Growth including assets, stockholders and directors, and its future plans was accumulated in a prospectus. Diversified hired Frank Mackin as an agent to sell Assured’s' stock and furnished him with the prospectus and stock subscription agreements to be executed by-purchasers of stock.

Mackin became licensed as a securities salesman on January 8, 1968. On January 16, 1968, plaintiff Dr. Tomberlin subscribed for 120 shares of stock from Mack-in. According to the prospectus and the subscription agreement, the price of a share of stock was $4.00. Tomberlin issued his check to Assured Growth through Mackin for 120 shares at $4.00 per share or in the sum of $480.00. He subsequently stopped payment on the check and the stock was not delivered. It is not clear why the sale was not completed.

On or about January 29, 1968, Mackin forwarded his last sale to the corporation. Efforts by the corporation thereafter to locate him were unsuccessful and the material furnished him as a salesman was not recovered.

The basis of the suit by plaintiff against the corporations was a stock subscription agreement executed between plaintiff and Frank Mackin dated March 4, 1968. According to the agreement, plaintiff purchased 2,500 shares of common stock of Assured Growth Corporation at $4.00 per share for $10,000.00 cash. Receipt of $10,000.00 was acknowledged by Frank Mackin as sales representative. The agreement signed by plaintiff acknowledged receipt of a copy of the prospectus issued by Assured Growth. The prospectus contained the following language:

“No dealer, salesman or other person has been authorized to give any information or to make any representation other than those contained in this prospectus, and if given or made such information or representation must not be relied upon as having been authorized by the corporation.”

The agreement further stated that Diversified Securities could reject the subscription and that deposit by Diversified of the funds paid would constitute acceptance.

It is upon this agreement that plaintiff brought suit against the corporations, though his own testimony was that he gave as consideration therefor not $10,000.00 as expressed therein, but $7,000.00. Plaintiff also admits that he gave a cashier’s check made out to Mackin individually at Mack-in’s request. That check was subsequently cashed by Mackin in Jacksonville, Florida and never reached the corporation.

On Denial Of Plea To Venue

After taking testimony on the plea of venue the trial court entered judgment. The judgment specifically stated that the court found that at the time of the filing of the suit the principal offices of the defendants were in Jefferson County, Alabama; that they were not doing business by agent in Covington County at the time of filing the suit nor at the time the cause of action accrued; that defendants had done business by agent in Covington County within 60 days prior to the date the cause of action was alleged to have accrued; that the agent was clothed with in-dicia of agency and had authority to bind defendants; that the agent absconded with all supplies of defendants and continued to hold himself out as agent up to and through the date the cause of action accrued, on March 4, 1968.

The court then found that the principle of apparent authority should be applied and that through such principle the court of Covington County had venue of the cases under the statute.

It is our opinion that the court erred in its judgment.

Sec. 60 of Title 7, Code of Alabama (1940) provides as pertinent to this action as follows:

“[A] domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose.

The terms of the statute are plain and unambiguous. In order to be subject to suit within the boundaries of the trial forum, a domestic corporation must be in fact doing business there by agent at the specified times. The trial court in this instance found as a fact that neither at the time of bringing suit nor at the time the cause of action arose, were defendants doing business by agent in Covington County. Though we are not cited to, nor has our extensive research located, any case applying the theory of apparent authority or es-toppel to venue, this court believes such theory to be inappropriate when applied to the venue statute.

The authority of the forum to entertain an action under the venue statute is founded upon the fact of agency — the express authority granted by the corporation to one to act for it in the doing of its business. The apparent authority of an agent is a substantive principle of law which arises by implication from the fact of agency and may determine the nature and measure of liability of a corporation to a third person. There is a clear distinction between the apparent authority of an agent and an apparent agent. A corporation cannot apparently be doing business by agent for purposes of venue. It is factually doing so or it is not. In this case the court found that the defendants had stopped doing business by agent in Coving-ton County. That factual finding is not challenged. Termination of the agent’s express authority to do business for the corporation does not necessarily terminate his apparent authority to bind the corporation and cause it to be liable at law for his acts done within the scope of that authority. Herndon v. Stanton, 221 Ala. 427, 129 So. 18; Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505; Restatement of Agency 2d Chap. 5, Termination of Agency Powers. However, such liability must be litigated, upon plea of venue in a county where the corporation was represented by its authorized agent at the time of suit or at the time the cause of action arose.

In view of the finding of the trial court that defendants were not doing business in Covington County at the statutory time, the plea of venue should have been sustained, and the cause transferred to the proper forum. Title 7, Sec. 64(1), Code; Rule 82(d) ARCP.

On The Merits

The case was appealed on both the ruling on the plea of venue, and on the final judgment granting plaintiff damages against defendants in the principal sum of $7,000.00 plus $3,202.50 interest. We find the trial court erred therein.

As we said hereinabove, the court found that the agency of Mackin had ended before the cause of action arose on March 4, 1976. Such being the fact, the liability of defendants could only be founded on the apparent authority of Mackin at the time the plaintiff executed the subscription agreement of March 4, 1968, and paid Mackin $7,000.00 by cashier’s check. We have said that termination of agency does not necessarily terminate apparent authority of the agent. If, as in this case, the principal has given to an agent materials and supplies manifesting authority, and which is intended to be shown to third persons, and these are retained by the agent and exhibited to third persons, the termination of his agency does not prevent him from having apparent authority to those who have no notice of the termination of his authority. Restatement of Agency 2d, Chap. 5, Termination of Agency Powers, § 130.

However, the principles of notice of termination do not apply unless there was.apparent authority to do the particular act complained of. In this case, the evidence is clear that Mackin never possessed apparent authority to execute the agreement upon which plaintiff bases his suit.

This court has said on more than one occasion that apparent authority does not arise from the acts of the agent, his statements of his authority or from what one thinks his authority may be. The apparent authority of an agent arises from the acts of the principal, either by omission or commission. Apparent authority is implied where the principal has actively or passively permitted the agent to appear to the third person to have the authority to perform an act. Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593; Owens v. Wood, 43 Ala.App. 366, 190 So.2d 734.

No appearance or indicia of authority to perform the act complained of by plaintiff were shown by the evidence in this case.

To the contrary, the indicia of Mackin’s authority were express in the prospectus issued by Assured Growth and Diversified Securities. The limits of his authority were implicit ifl the stock subscription agreement which plaintiff signed and which he attached to his complaint. It was plainly stated therein that the price of the stock was $4.00 per share and that the acceptance by the corporation was the deposit of the price in its bank. The testimony of plaintiff that he executed an agreement to purchase $10,000.00 worth of stock for $7,000.00 is conclusive against him. The evidence is devoid of an act, express or implied, by defendants which could give color to any authority of Mackin to accept a cashier’s check made to him individually for $7,000.00 as the purchase price of 2500 shares of stock at $4.00 per share.

The evidence of plaintiff that he entered a contract with Mackin to assist him in the sale of stock and insurance in Houston County, availeth him nothing. Again, there is no evidence that defendants knew of or authorized such a contract. Plaintiff testified that he made an inquiry of some person in the home office of defendants as to whether Mackin was in fact an agent. There was no evidence of inquiry as to the extent of his authority or whether he was authorized to make such a deal.

The purport of plaintiffs case is that he was “taken” by Mackin. Such seems to be true, but his error was in believing the representations of Mackin which were totally outside of his authority, express or apparent.

The case is reversed and rendered in favor of defendants.

REVERSED AND RENDERED.

BRADLEY and PIOLMES, JJ., concur.


text:
    Odelle DICK, a/k/a Odell Dick, Individually and as Executrix of Estate of W. M. Webb, Deceased, and Annie Jane Webb, a/k/a Mrs. W. M. Webb v. The FIRST NATIONAL BANK OF BIRMINGHAM, a National Banking Association, and Edna W. Murray.
    Civ. 856.
    Court of Civil Appeals of Alabama.
    June 16, 1976.

      James H. Weaver, Jr., Birmingham, for appellants.
    William A. Robinson and Donald J. Stewart, Birmingham, for appellee, The First National Bank of Birmingham.
    Donald L. Newsom and Samuel Maples, Birmingham, for appellee, Edna W. Murray.
   WRIGHT, Presiding Judge.

This is an appeal from judgment permitting interpleader, discharging the stakeholder under Rule 22, Alabama Rules of Civil Procedure, and denying motion for summary judgment.

On May 16, 1973, First National Bank of Birmingham filed a Bill of Interpleader under Equity Rule 36. The bill set out in detail progressive facts which occurred between the Bank and certain depositors, beginning in 1962 and culminating in 1973. Bank alleged that it possessed $6,116.07 claimed by defendants separately. It stated it had no interest in the claim of either claimant. It presented the money in court asking to be discharged from further liability.

After pleas in abatement were overruled, claimants filed answers. The answer of claimant Dick alleged that the Bank was not merely a disinterested stakeholder, but had by fraud and collusion with the other claimant brought about the controversy. Dick charged the Bank had an independent liability to her arising from contract and/or tortious conduct. Dick further alleged that her right to the funds sought to be interpleaded had been previously determined by an order of the probate court approving final settlement of an estate. The court was requested to deny interpleader and award Dick interest and attorney fees.

Motion to Dismiss

Claimant Murray has filed a motion to dismiss the appeal on the grounds that neither of the aspects of the judgment below from which appeal is taken is such a final order as will support an appeal.

We agree that an order denying summary judgment is usually not appeala-ble. Such order is usually based upon the existence of a triable issue of fact and retains the matter pending for trial. The order is interlocutory and unless made ap-pealable by statute, will not support an appeal. Moore’s Federal Practice, 2nd Ed. Vol. 6, Part 2, Sec. 56.21(2), (cases footnoted therein). We dismiss the appeal from the denial of motion for summary judgment.

The granting of interpleader and discharging the stakeholder is not a final judgment as to all the matters before the court. The claims to the interpleaded funds remain before the court. Therefore, the granting of interpleader, even though one of the claimants asserts independent liability against the stakeholder, is interlocutory and not appealable unless made so by certification under Rule 54(b) ARCP. Guy v. Citizens Fidelity Bank & Trust Co., 6 Cir., 429 F.2d 828; Republic of China v. American Express Co., 2 Cir., 195 F.2d 230; Wright & Miller, Federal Practice & Procedure, Vol. 7, Sec. 1720. The “certification” referred«to is, in the words of Rule 54(b),

“[A]n express determination that there is no just reason for delay and . an express direction for the entry of judgment.”

The court in this case exercised its discretion, apparently sua sponte, and expressly found no reason for delay and entered judgment granting interpleader and discharging the Bank. Such entry provided the authority for an immediate appeal. We find the judgment granting interpleader proper for appeal.

On Merits

The bill of interpleader may be summarized to aver as follows: In 1962, a joint savings account was opened at a branch of the Bank by W. M. Webb and Annie Jane Webb. The terms of the account provided that either party or the survivor could withdraw the account. In 1970, a daughter of the Webbs, defendant Edna Murray, informed the Bank that her parents had entered a nursing home and wished to close the old account and open a new joint account in the names of W. M. Webb and Edna W. Murray. A signature card executed by Edna W. Murray and W. M. Webb was furnished the Bank. The funds in the old account were then transferred to a new account as requested. Subsequently, at the request of Edna Murray, the second account was closed and the funds therein were transferred to a third account in the sole name of Edna W. Murray. Thereafter, Murray informed the Bank that W. M. Webb was out of the nursing home, had possession of the account passbook and wished his name added to the account. Webb appeared at the bank and executed a signature card.

The account continued in this manner, with deposits being made until the death of W. M. Webb on October 2, 1972. On October 6, 1972, Odelle Dick advised the Bank that she was the executrix of the will of W. M. Webb, presented letters testamentary with the account passbook and requested transfer of the funds to a new account in the name of the Estate of W. M. Webb, Odelle Dick, Executrix. A checking account was opened in the same name and on March 20, 1973, the funds in the savings account were transferred to the checking account.

April 4, 1973, attorney for Edna W. Murray demanded delivery of the balance in the joint account she shared with her father W. M. Webb at the time of his death. Odelle Dick, as executrix, demanded that the balance in the checking account be paid to her so that distribution might be made according to a decree of the Probate Court of Jefferson County, approving final settlement of the estate of W. M. Webb.

The Bank averred that it was a mere stakeholder of $6,116.07 and had no interest in the funds. It requested that Odelle Dick, as executrix, Edna W. Murray and Annie Jane Webb be made defendants and that it be discharged from further liability. The sum of $6,116.07 was deposited with the court. The answer of Dick to the bill alleged that the Bank was not a disinterested stakeholder but had incurred an independent liability to her by placing the funds in her account, accepting and paying various checks written by her. She alleged that there had been fraud and collusion between the Bank and Edna W. Murray which resulted in the name Murray being placed on the account. Dick further averred that the decree of the probate court in the estate of W. M. Webb made the claim of Murray res judicata and binding upon the bank.

The judgment of the trial court granting interpleader specifically stated that judgment was entered under Rule 22, ARCP. At the time interpleader was filed, the Alabama Rules of Civil Procedure were not in effect, but became effective July 3, 1973. All of the pleadings except a plea in abatement were filed and considered by the court after the new rules became effective. The judgment granting interpleader was entered in August, 1975, more than two years after the effective date of Rule 22, ARCP.

Rule 86, ARCP provides that the rules

“[GJovern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice . . . .”

The primary contention of Dick on appeal is that under the case law of this state, applying Equity Rule 36, Bank’s in-terpleader was not due to be granted. We find no contention that interpleader would not be proper under Rule 22, ARCP.

The contention that Rule 22 should not be applied when the court considered the bill and answer over two years after the effective date of Rule 22 is not well taken. Dick would have us find Rule 22 not applicable while taking full advantage of Rule 12, Rule 34 and Rule 56 in her pleadings. We conclude that the trial court did not err in considering the bill of interpleader as if filed under Rule 22, ARCP. With this conclusion we find it unnecessary to determine whether interpleader would have properly been granted under the interpretations of Equity Rule 36.

We are convinced that the bill of inter-pleader was properly granted under Rule 22. Rule 22(a) is, in part, as follows:

“(a) Plaintiff or Defendant. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are advers&to and independent of one another or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants.

The four historical conditions for sustaining interpleader at law or in equity in this state were removed by Rule 22 according to Committee Comments thereunder. Such has been the construction of Federal Rule 22, Royal School Laboratories, Inc. v. Town of Watertown, 2 Cir., 358 F.2d 813, and in states which have adopted rules of interpleader patterned after Federal Rule 22. Jersey Ins. Co. v. Altieri, 5 N.J.Super. 577, 68 A.2d 852. Thus case law applying Equity Rule 36 and Sec. 1179 of Title 7, Code of Alabama (1940) is of little assistance.

The avowed purpose of inter-pleader has always been to avoid multiple and vexatious litigation, with possible double liability. Pratt v. First Nat. Bank of Fayette, 243 Ala. 257, 9 So.2d 744. With the demise of common law procedure which imposed restrictions upon joinder of parties and actions and the trial of separate issues, the historical reasons for restrictive use of interpleader are largely removed. Considering the liberality of the new rules of civil procedure, it appears counter productive to their purpose to deny interpleader when there is a fund to which there are or may be adverse claimants, so long as the court has jurisdiction of the parties. The argument of Dick that inter-pleader was improperly granted because of an independent liability to her by the Bank arising from contract or tort is not acceptable. Claim of independent liability will not prevent the protection of the stakeholder against the title claims of the adverse claimants. Knoll v. Socony Mobil Oil Co., 10 Cir., 369 F.2d 425 (1966). That is the primary purpose of interpleader — to prevent multiple suits and possible double recovery of one liability. Pratt v. First Nat. Bank of Fayette, supra.

It is not a requirement of sustaining interpleader that the stakeholder be discharged from further liability or participation in the action. Royal School Laboratories, Inc. v. Town of Watertown, supra. Rule 22(b), ARCP. If one seeking interpleader has no interest in the outcome of the contest of the claimants, does not deny liability in whole or in part to any of the claimants or a claim of independent liability is not presented, he may be discharged from liability. However, if the pleadings create a genuine issue of fact as to independent liability to a claimant other than upon title to the fund, the stakeholder should be kept in the action and the issue of independent liability be determined at some stage of the proceeding. It is concerning the point in the proceedings that the issue of independent liability is to be determined that differences arise. Moore’s Federal Practice, 2d Ed. Vol. 3A, Sec. 22.-14(3). It would appear that the proper point for determining the issue of independent liability should come after settlement of the claimant’s dispute. If the claimant asserting independent liability prevails in that dispute, there would be no need to proceed further, since he could not recover twice.

It was in discharging the Bank from further liability without giving opportunity for determining the issue of independent liability that the trial court erred. We reverse the judgment insofar as dismissal of the Bank from further liability and remand for further proceedings on the pleadings. •

Dick contends that the decree of the probate court in the matter of the estate of W. M. Webb bars interpleader of the fund.

It affirmatively appears that the Bank was not a party to any action relating to the estate of W. M. Webb. The decree merely reviewed an accounting of funds stated by the executrix to be assets of the estate and approved their distribution under the terms of the will. We perceive no reason and are cited to no authority that such a decree is a determination that the funds stated as assets of the estate as a matter of law rightfully belong to the estate. In any event, the question of title to the funds in the hands of the Bank is the issue between the claimants. That issue still is pending trial. Whether the decree of the probate court is determinative of title to the funds may be placed before the court and settled at the trial of the respective claims. This court therefore does not decide that matter on this appeal.

THE GRANTING OF INTERPLEADER IS AFFIRMED. DISCHARGE OF THE BANK IS REVERSED. APPEAL OF DENIAL OF SUMMARY JUDGMENT IS DISMISSED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM. ENGLAND, J.,

text:
    Frank ISOM, Appellant, v. STATE of Florida, Appellee.
    No. 48665.
    Supreme Court of Florida.
    June 30, 1976.
    Edward L. Harvey, Asst. Public Defender; for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. Dirk v. State, 305 So.2d 187 (Fla.1974). Cf. State v. Bryan, 290 So.2d 482 (Fla.1974); Rigot v. Bucci, 245 So.2d 51 (Fla.1971), Rule 3.390, Florida Rules of Criminal Procedure.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HAT-CHETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, J.,

dissenting.

I respectfully dissent. This case raises the constitutional validity of Section 832.05 (6), Florida Statutes (1975), the “bad check” statute which facilitates merchants’ check collections by permitting criminal arrest and possible conviction based on mere presentment of a dishonored check and without any proof of a criminal intent. Justice Ervin thoroughly analyzed the due process infirmity of this provision in Dirk v. State, 305 So.2d 187, 188-190 (Fla.1974) (dissent). His analysis was correct in 1974, and it is equally cogent now. Cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).


author: PER CURIAM.

text:
    Elmore MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 48733.
    Supreme Court of Florida.
    June 30, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Richard E. Gerstein, State’s Atty., and George Volsky, Asst. State’s Atty., for ap-pellee.
   PER CURIAM.

We here review the judgment of the County Court of Dade County finding appellant guilty of disorderly conduct in violation of Section 877.03, Florida Statutes, by use of profane language to police officers in the presence of other persons.

Appellant alleges the statute to be unconstitutional on its face for vagueness, and in violation of the First, Fifth and Fourteenth Amendments to the Constitution of the United States.

The facts here are similar to those in our recent Opinion of White v. State, 330 So.2d 3, Opinion filed March 24, 1976, in which we construed the statute to meet federal standards. In that case we said:

“We find ourselves in a similar position, and we require that, for conviction under our statute to be acceptable, more must be shown than that the words were offensive to a part of the general population.
“In sum, the words used by the defendant are protected even though they may not be acceptable in certain strata of society. It is the degree of loudness, and the circumstances in which they are uttered, which takes them out of the constitutionally protected area. Indeed, his conduct would have been equally disorderly had he merely recited ‘Mary Had a Little Lamb’ in the same tone and under similar circumstances.
“We hold that mere words, used a4 a tool of communication, are constitutionally protected. The protection fails only when 1) by the manner of their use, the words invade the right of others to pursue their lawful activities, or 2) by their very utterance, they inflict injury or tend to incite an immediate breach of the peace. Limited by this construction, we hold the statute constitutional.”

Applying the above standards to the facts in the record before us the judgment of the court does not meet constitutional standards.

Accordingly, the judgment is reversed and remanded to the County Court of Dade County for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in result only.

      . 887.03 Breach of the peace; disorderly conduct. — Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.


text:
    In re TRANSITION RULE 20, TRAFFIC COURT RULE 6.340.
    No. 46571-G.
    Supreme Court of Florida.
    June 30, 1976.
    Larry J. Sartin, Tallahassee, for The Traffic Court Review Committee, petitioner.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, Rule 6.340 of the Florida Rules of Practice and Procedure, 311 So.2d 665, is amended in the manner as appended to this opinion and said amendment is hereby adopted. This amendment shall be effective immediately.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

Rule 6.340 Rule on Admission that Traffic Infraction Was Committed; Affidavit of Defense

(a) If any person admits that a traffic infraction was committed, the official shall set the civil penalty and enter judgment accordingly and for this purpose may hear evidence on the nature of the case and after the hearing may refuse to accept the admission in his discretion.

(b) No admission shall be received by the court other than by appearance of the offender or the offender’s attorney in open court or as herein provided in these rules of by statutory law. The acceptance by a court of a signed admission or waiver of trial, contrary to the provisions of these rules or statutory law is forbidden.

(c) Any person charged with the commission of a traffic infraction who is not a resident of or domiciled in the county where the alleged infraction took place may, at the direction of the clerk or traffic violations bureau, file a written statement setting forth facts justifying the filing of an affidavit of defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the official.

Any person charged with the commission of a traffic infraction who is a resident of or domiciled in the county where the alleged infraction took place, if unable to appear because of an extended illness or extended absence from the county, may, at the direction of the clerk or traffic violations bureau, file a written statement setting forth facts justifying the filing of an affidavit of defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the official.

If a written statement of facts is filed and in the opinion of the official, it affirmatively appears from these facts that the interests of justice will best be served by allowing the alleged offender to file an affidavit of defense, such affidavit, upon the posting of a reasonable cash appearance bond set by the official, may be filed with the clerk of the court or the traffic violations bureau.

Any such affidavit shall be sworn to before a notary public, deputy clerk or clerk. Upon acceptance of an affidavit by an official it shall be accepted as an appearance. Such affidavits may be accepted where a mandatory hearing is required to either deny or admit the commission of the infraction or as an appearance denying the commission of the infraction where no mandatory hearing is required. Such affidavit shall be considered in evidence by the official presiding at the time when such case is scheduled for hearing and the case may be adjudicated upon evidence offered in support of the complaint and such affidavit.

Committee Note

The following is a recommended form to be used as an affidavit of defense. Information as to who may file such an affidavit and any other pertinent information may be provided on the back of the form.

AFFIDAVIT OF DEFENSE

(Name of Alleged Offender)

IN THE COUNTY COURT, (Number of Complaint) IN AND FOR_COUNTY, FLORIDA

Before me, personally appeared,-who having

(Name of Alleged Offender)

been duly sworn, deposes and says:

1.) My name is: _; I reside permanently at _; _; and I received the above num-

Street and No. City and State

bered complaint charging me with-on-at_AM-PM Description of Violation

Date Time

2.) At the time of the alleged violation, I was driving a-

Type of Motor Vehicle

in a_on_in_County,

Direction Street or Avenue

Florida.

3.) I am leaving _ County on _, and my hearing date is

Date

-at Court Location_, at_

Date Location Time

4.) I am DENYING/ADMITTING (strike one) the commission of the infraction because: (Explain your defense in your own words, being as brief as possible, but omitting no material facts that will help the Official arrive at a judgment in your case. (PRINT OR TYPE)

(IF MORE SPACE IS NEEDED FOR EXPLANATION-USE REVERSE SIDE)

_Sworn to and subscribed before

Signature of Affiant (Alleged Offender) me, this-day of-,

19_

Deputy Clerk, County Court or Notary Public

NOTE: This Affidavit will be presented to the presiding Official together with the complaint against you, on the date noted on your copy of the complaint or as soon thereafter as possible. You will be advised by mail of the result, and will, at that time, receive from the Court a check covering the balance of your bond, after deduction of penalty, if any is imposed. The Judges of this Court reserve the right to compel personal appearance as may be determined by the gravity or seriousness of the offense charged.


author: By the Court:

text:
    John Edward SHANNON et al., Petitioners, v. STATE of Florida, Respondent.
    No. 47611.
    Supreme Court of Florida.
    June 30, 1976.
    Louis G. Carres, Asst. Public Defender, for petitioners.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz and Michael M. Corin, Asst. Attys. Gen., for respondent.
   By the Court:

The First District Court of Appeal, in a 2-1 decision, has held that comments on petitioners’ right to remain silent which were made during closing remarks to a jury by a legal intern prosecuting these cases for the state “bordered on error, but the trial court’s instruction was .enough to render the remarks as harmless.” 320 So. 2d 855, 856. That decision conflicts with our more recent decision in Bennett v. State, 316 So.2d 41 (Fla.1975), where we held that any comment on an accused’s exercise of his right to remain silent is reversible error, without regard to the harmless error doctrine.

The decision of the district court is reversed on the basis of Bennett, and the case is remanded with instructions to vacate the judgment of the trial court and grant petitioners a new trial.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS, J., dissents.


author: ENGLAND, Justice.

text:
    Madge P. BALL, Petitioner, v. Dexter C. BALL, Respondent.
    No. 46598.
    Supreme Court of Florida,
    June 30, 1976.

      Ernest S. Marshall, Bradenton, for petitioner.
   ENGLAND, Justice.

We granted certiorari in this case, pursuant to Article V, Section 3(b)(3) of the Florida Constitution, to resolve an apparent conflict between the decision of the Second District Court of Appeal, now reported at 303 So.2d 32, and Hegel v. Hegel, 248 So. 2d 212 (Fla.App.3d 1971). The sole issue before us concerns the presumption of gift or special equity which can arise in a marriage dissolution when real property is held as tenants by the entireties. Respondent has not appeared or filed a brief in this Court.

In 1969, Mrs. Ball’s mother died leaving to her, among other valuable property, a one-half interest in a home in Manatee County, Florida. She liquidated the balance of her inheritance and used the proceeds both to purchase from her brother the other one-half interest in the home and to remodel it substantially. Mrs. Ball then transferred this real property to herself and her husband as tenants by the entire-ties.

In a marriage dissolution proceeding, Mrs. Ball asserted a special equity in the home by reason of her use of inherited funds to purchase and remodel the home. The trial court ruled that her conveyance of the home to her husband and herself as tenants by the entireties created a presumption that she intended a gift to her husband. The court further held that the gift presumption was not overcome by a mere showing that the wife supplied all of the funds for the property. The district court affirmed, reasoning that the 1968 constitutional abolition of property right distinctions between husbands and wives now requires the same gift presumption when a wife creates a tenancy by the entireties, with' her property as had existed before 1968 when a husband created a tenancy by the entireties using his separate property. The district court’s decision directly conflicts with Hegel, where the Third District Court of Appeal held that a wife is entitled to a special equity, unless her husband can affirmatively show that a gift was intended, once she has demonstrated that her separate funds supplied the consideration for a purchase of real property.

We begin our resolution of these conflicting decisions with the premise that, in the absence of any showing by either spouse in the marriage dissolution proceeding as to why one should be awarded more than an equal proportion of real property held as tenants by the entireties, record title speaks for itself. The division of property . in these cases, which will encompass the majority of situations, will be equal between the spouses. If property is to be divided equally, whether the division is to be effected before, after or concurrent with the dissolution decree, no judicial action is required because the law will convert that entireties tenancy to a tenancy in common as soon as the marriage is dissolved. We recognize, of course, that the court may direct the execution of deeds to clarify legal title.

The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish, a “special equity” in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended. We are not now called upon to determine the range of circumstances which might create a special equity. Consistent with prior decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.

In using record title as the touchstone and requiring some evidentiary showing beyond that for an award other than an equal division, it becomes unnecessary to use judicially-created presumptions of any sort in these proceedings. All presumptions which the different status of the sexes required the courts to create prior to the constitutional change, and all presumptions developed by the courts since that date are now unnecessary.

To avoid the litigation which would result from the retroactive application of this decision, we hold that it shall apply only to dissolution proceedings instituted after the date this opinion becomes final.

As an independent point for our review, Mrs. Ball suggests that the trial court’s award of attorneys’ fees for her was inadequate. This suggestion is without merit.

Certiorari is granted, the decision of the Second District Court of Appeal is quashed and the cause is remanded for further proceedings consistent with this opinion.

OVERTON, C. J., and ROBERTS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.

      . “There shall be no distinction between married women and married men in the holding, control, disposition, or encumbering of their property, both real and personal . . . .” Fla.Const. art. X, § 5.

      . The district court acknowledged that a counter-presumption of resulting trust in favor of the wife had existed in Florida in these situations. See, e. g., Hegel v. Hegel, 248 So.2d 212 (Fla.App. 3d 1971) ; Mays v. Mays, 203 So.2d 674 (Fla.App. 3d 1967) ; Jones v. Jones, 121 So.2d 811 (Fla.App. 3d 1960). Cf., Pyle v. Pyle, 53 So.2d 312 (Fla.1951), in which the doctrine of resulting trust was applied where a wife put realty in her husband’s sole name. The resulting trust presumption has also been applied as to personal property purchased with a wife’s separate funds and put in joint name. E. g., Mays v. Mays, supra; Olsen v. Olsen, 195 So.2d 864 (Fla.App. 3d 1967) ; Allen v. Allen, 123 So. 2d 355 (Fla.App. 2d 1960).

      . See, e. g., Forde v. Forde, 152 Fla. 142, 10 So.2d 919 (1942) ; Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941).

      . Section 689.15, Fla.Stat. (1973).

      . See Razzano v. Razzano, 307 So.2d 894 (Fla.App. 1st 1975) (real property in husband’s sole name) ; Green v. Green, 228 So.2d 112 (Fla.App. 3d 1969), cert. denied 237 So.2d 538 (Fla.1970) (property in husband’s sole name and jointly held property) ; Tanner v. Tanner, 194 So.2d 702 (Fla.App. 2d), cert. denied, 201 So.2d 560 (FIa.1967) and Roberts v. Roberts, 101 So.2d 884 (Fla. App. 2d 1958) (as to personal property).

      . Cf., O’Shea v. O’Shea, 221 So.2d 223 (Fla. App. 4th), cert. denied, 225 So.2d 919 (Fla. 1969) (gift up to a one-half interest in personal property).

      . Ordinarily a special equity will not arise where property held as tenants by the entire-ties is acquired with the funds generated by one working spouse, while the other spouse performs normal household and child-rearing responsibilities.

      . See Hegel v. Hegel, supra; Mays v. Mays, supra, and Jones v. Jones, supra.

      . See, Maryea v. Maryea, 320 So.2d 882 (Fla.App. 2d 1975); Tonn v. Tonn, 314 So.2d 157 (Fla.App. 4th), cert. dism’d 324 So.2d 93, filed Nov. 25, 1975 (Fla.); Tiffany v. Tiffany, 305 So.2d 798 (Fla.App. 4th 1975); Hanzelik v. Hanzelik, 294 So.2d 116 (Fla.App. 4th 1974); Davis v. Davis, 282 So.2d 655 (Fla.App. 4th 1973); Calligarich v. Calligarich, 256 So.2d 60 (Fla.App. 4th 1971) ; Steinhauer v. Steinhauer, 252 So.2d 825 (Fla.App. 4th 1971).

      . We simply hold that it does not advance the resolution of property distributions to label the fact or lack-of-fact showings as presumptions.

      . We expressly confine our decision in this ease to real property held as tenants by the entireties, the fact situation before us. The customary dictates of judicial restraint which would persuade us not to pass on unlitigated issues, such as the joint tenancies of spouses in personal property, are more compelling than usual by reason of respondent’s failure to argue his side of the case.


author: WALKER, WILLIAM L., Associate Judge.

text:
    MOTEL MANAGEMENT COMPANY, INC., a Florida Corporation, Appellant, v. Mannie WINGER, Individually, et al., Appellees.
    No. 75-1510.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Richard W. Wasserman, Miami Beach, for appellant.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellees.
   WALKER, WILLIAM L., Associate Judge.

Appellant, plaintiff below, sued defendants/appellees on a promissory note in the original principal sum of $117,500, alleging failure to pay a $12,000 installment when due on August 23, 1974. The then remaining principal was $92,682.79. The plaintiff further alleged an acceleration of the principal balance for failure to pay that installment. There is no disagreement by the parties that there is a right by the general terms of the note to accelerate the balance for non-payment of an installment. What is at issue is whether that right was properly exercised. The trial court held that plaintiff was not entitled to accelerate and demand payment from the defendants for anything other than the installment of August 23, 1974.

Defendants Mann, Winger and Arnold are original makers of the note. Slater Properties is a third party defendant. Slater Properties had taken over the properties involved in the mortgage and the primary responsibility to pay the note, but the liability of the original makers was not released nor in anyway extinguished. The note by its terms waives demand. Plaintiff does not seek to foreclose the mortgage but sues the original makers only on the note. Three days after the installment was due, and prior to any acceleration, appellant on August 26, 1974 called Slater Properties informing it of the default, and Slater promised payment of the $12,000 installment. No demand was made at that time upon Mann, Winger and Arnold. Payment was not made as promised and on September 6, 1974 plaintiff telegraphed Slater Properties and the defendants Mann, Winger and Arnold that the plaintiff was accelerating the principal balance. On September 7 a telephone offer of payment was made and rejected. On September 20 a tender of $12,000 certified check was made by defendant Mann. This tender was likewise refused.

Defendants cited Lieberbaum et al. v. Surfcomber Hotel Corf., 122 So.2d 28 (Fla.App. 3rd, 1960), contending the facts here show an unconscionable acceleration. We believe that case is distinguishable on the facts. Our holding in the present case is supported by Jacobs v. Automotive Repair Center, Inc., 137 So.2d 263 (Fla.App. 1st, 1962), and Campbell v. Werner, 232 So. 2d 252 (Fla.App. 3rd, 1970). There is no requirement a creditor seek out the maker and give him opportunity to cure default. We see no equitable defense in the facts in the instant case. Reversed and remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

ALDERMAN, J., and ADAMS, ALTO, Supreme Court Justice (Retired), concur.


author: BOYER, Chief Judge.

text:
    M. W. B., a child, et al., Appellants, v. STATE of Florida, Appellee.
    Nos. B-145, BB-152 and BB-153.
    District Court of Appeal of Florida, First District.
    July 13, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, A. S. Johnston, Carolyn M. Snurkowski, Asst. Attys. Gen., for appel-lee.
   BOYER, Chief Judge.

Three cases, all of them involving juveniles, have been consolidated for purposes of appeal. The issue in all three cases is identical, to wit: Whether the judge of the juvenile division of the circuit court committed error in imposing a “mandatory” three year minimum term of commitment pursuant to F.S. 775.087.

Two of the cases involve the same factual situation. In all three cases, appellants were adjudicated guilty upon multiple charges to which they entered pleas of nolo contendere. One of the charges for which each appellant was found guilty entailed the presence of a firearm. On that charge, the trial judge, feeling that he was bound by the provisions of F.S. 775.087, committed each appellant to the Division of Youth Services for a period of not less than three years. Since none of the appellants specifically reserved the right to appeal the legality of the three year terms of commitment at the time of the entry of the pleas of nolo contendere and orders of commitment, this Court must resolve the issues on a jurisdictional basis.

F.S. 39.11(4) provides that “any commitment to the Division of Youth Services shall be for an indeterminate period of time * * * ” Therefore, any order of commitment which places a juvenile with the Division of Youth Services for a term other than an indeterminate period of time is beyond the scope of the court’s jurisdiction.

We are also of the view that F.S. 775.087(2) is inapplicable to juvenile proceedings. The provisions of that statute apply only to persons convicted of any one of certain specified crimes. A juvenile who is adjudicated a delinquent child cannot be considered to have been convicted of a crime. F.S. 39.10(5). Thus, the essential prerequisite of F.S. 775.087(2) (i. e. conviction) cannot possibly be met by a juvenile who has been adjudicated to be delinquent. This holding is, of course, applicable solely to juveniles and juvenile proceedings.

Accordingly, these consolidated cases are reversed and remanded to the judge of the juvenile division of the circuit court for resentencing.

Reversed and remanded with directions.

RAWLS and McCORD, JJ., concur.

      . F.S. 775.087(2) provides in pertinent part: “Any person who is convicted of any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes, and who had in his possession a ‘firearm,’ as defined in subsection 790.001(6), or ‘destructive device,’ as defined in subsection 790.001(4), shall be sentenced to a minimum term of imprisonment of three years.”

      . See Hand v. State, Sup.Ct.Fla.1976, 334 So.2d 601.


author: MAGER, Chief Judge.

text:
    Frank Anthony PACE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1331.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.

      Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   MAGER, Chief Judge.

Upon review of the briefs and record on appeal we are of the opinion that the cause must be dismissed for lack of jurisdiction.

The notice of appeal contained in the appellate record which was filed on July 23, 1975 is directed to the “judgment, rulings or minutes of the Circuit Court of the Ninth (9th) Judicial Circuit in and for Osceola County, Florida, bearing the date July 21, 1975, and rendered and recorded in Circuit Court Minutes Book 13, Page 452”. However, a review of the appellate record fails to reflect the existence of any appealable judgment (or ruling) either orally or in writing on the said July 21, 1975. Cf. Williams v. State, 324 So.2d 74 (Fla.1975).

The briefs of the public defender and the state fail to address themselves to the jurisdictional point and have instead sought to present an appellate issue involving an order entered on September 4, 1975 and styled “Order Withholding Adjudication of Guilt and Placing Defendant on Probation”. This order is unfortunately not before the court because the appeal was filed before this order was entered. Except for the briefs, there is nothing in the appellate record seeking a review of this order.

In this regard, we observe that the order of probation contains a condition which on its face is null and void. See Heath v. State, 310 So.2d 38 (Fla.App.4th, 1975); State v. Gansz, 297 So.2d 614 (Fla.App.4th, 1974). However, because of the fundamental jurisdictional problem this court is unable to reach and treat the appellate issue.

Accordingly, the appeal is dismissed without prejudice to the defendant to proceed in the trial court pursuant to' Rule 3.-800, FRCrP, Correction and Reduction of Sentences, or pursuant to any other procedure providing post-conviction relief with the respectful request that the trial court entertain such proceeding upon the defendant’s or the court’s own motion.

WALDEN and DOWNEY, JJ„ concur.

      . The objectionable condition contained in the order provided for the defendant to “submit your person, residence or automobile to search by Probation Supervisor or law enforcement officer upon demand without search warrant.” ,A determination of probation cannot result in depriving the probationer of his constitutional guarantee of unreasonable searches and seizures. See State v. Gansz, supra. The further condition imposing jail time during the probationary period is valid. Lewis v. State, 298 So.2d 540 (Fla.App.4th, 1974).

      . Under Rule 3.800, FRCrP, a court may “at any time correct an illegal sentence imposed by it” or may “reduce a legal sentence imposed by it . . . within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal . . . ”.


author: LEE, THOMAS E., Associate Judge. DOWNEY, Judge

text:
    In re the MARRIAGE OF Frank J. ARNOLD, Appellant, and Catherine M. Arnold, Appellee.
    No. 75-1172.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Abraham B. Rosenberg, Grossbard & Rosenberg, Davie, for appellant.
    Wolff, Gora & Courtney, Ft. Lauder-dale, for appellee.
   LEE, THOMAS E., Associate Judge.

This is an appeal by the Husband (petitioner below) from a judgment of dissolution of marriage proceeding filed by him against the Wife (respondent below) from a marriage that was entered into on August 29, 1937, in Revere, Massachusetts. Except for a World War II separation, the parties lived together as Husband and Wife until April 8, 1965. After which they purchased a home in North Miami, Florida, and took title thereto as tenants-by-the-entirety. Prior to that date, the Husband had been transferred by his employer to Florida; subsequent to the separation the Husband moved to Broward County and has continued in his employment but is approaching retirement. Since the date of dissolution of marriage he has become married and resides in a mobile home. The Wife resides in the North Miami residence and has been employed in past years as a department store cashier but is unemployed at this time.

The trial court in its final Dissolution Of Marriage ordered the Husband to convey his interest in the marital home to the Wife as lump-sum alimony; $75.00 per week as periodic alimony; 5 shares of stock in General Instrument Company as further lump-sum alimony and that the parties submit Affidavits as to attorney fees. The Appellant has assigned as errors the awarding of his interest in the marital home and its furnishings to the Wife; the payment of $75.00 per week as periodic alimony together with the transfer of 5 shares of stock and the ordering of the use of affidavits to prove up attorney fees.

The appellant and appellee were both represented by legal counsel below as well as in this Court but the Wife’s attorney failed to file additional pleadings following her motion to dismiss the appeal. This Court has as recently as August, 1975, indicated its displeasure when an attorney of record in the Appellate Court failed to favor this Court with a brief by stating “failure to file a brief not only places an undue burden upon the Appellate Court but additionally, reflects an omission of the responsibility on the part of the appellee to support the ruling of the trial court. If the trial court’s ruling is not worthy of support then the appellee ought to confess error and to join the appellant in seeking a reversal.” Holden v. City of Fort Lauderdale, Fla.App., 286 So.2d 218; Brown v. Fine, Fla.App., 102 So.2d 830; Ramirez v. Ramirez, Fla.App., 309 So.2d 25 and Bowman v. Bowman, Fla.App., 318 So.2d 186. In the Bowman case the Honorable Gerald Mager wrote a scholarly opinion alluding to the principle that an attorney not only has a duty but an obligation to favor the Appellate Court with a brief.

Considering the first point of this appeal as to whether it was error to award the Husband’s interest in the marital domicile, we find the learned trial Judge erred as there is no showing in the record that the Wife has acquired a “special equity” in it. Hanzelik v. Hanzelik, Fla.App., 294 So.2d 116. The trial court also erred in requiring proof of attorney fees by affidavit. Thoni v. Thoni, Fla. App., 179 So.2d 420; see also Provus v. Provus, Fla., 44 So.2d 656; Lyle v. Lyle, Fla.App., 167 So.2d 256 and Ortiz v. Ortiz, Fla.App., 211 So.2d 243.

As to the other points raised on appeal, the Court has determined there is no abuse of judicial discretion in awarding the Wife periodic alimony of $75.00 per week and transfer of 5 shares in General Instrument Company.

We therefore reverse in part and affirm in part the judgment of the trial court and remand the same to the lower court to conduct such further proceedings not inconsistent herewith.

WALDEN, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

The record in this case: (a) shows that the appellee wife, 62 years old at the time of trial, has not worked since 1945 (eight years after the parties married), and appel-lee is dependent upon the $75 weekly support payments the appellant husband has been making since the parties separated in 1962; (b) supports the circuit court’s finding that appellee’s age and health make it equitable to award appellee lump sum alimony (in the form of the appellant’s share of the marital domicile and securities which pay dividends of $12 a year) ; and (c) demonstrates that the award to the ap-pellee will exercise no financial hardship on the appellant, whose 1974 income tax return (filed as a joint return with a woman other than his wife) showed a g-ross income of $26,617.

I conclude that the record shows appellee needs lump sum alimony and appellant is able to pay it. I would therefore affirm the judgment of the circuit court. Compare Niemann v. Niemann, 294 So.2d 415, 417 (Fla. 4th DCA 1974), with Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975).