author: BRADLEY, Judge.

text:
    PENNSYLVANIA LIFE INSURANCE COMPANY v. Oscar E. GREEN.
    Civ. 1530.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Michael B. Maddox and William M. Boul-din for Guin, Bouldin, Porch & Maddox, Russellville, for appellant.
    Bill Fite, Hamilton, for appellee.
   BRADLEY, Judge.

Defendant, Pennsylvania Life Insurance Company, perfected this consolidated appeal from two adverse judgments rendered by the Circuit Court of Marion County.

Plaintiff-insured, Oscar E. Green, filed two actions against his insurer, Pennsylvania Life. In the first suit (Civil Action No. Cv-77-55) plaintiff claimed that insurer owed him a sum of money under a certain provision (“Part Eleven”) of an accident and sickness insurance policy issued to insured by defendant. The second suit (Civil Action No. Cv — 77—71) was based on insurer’s alleged breach of an agreement to settle the first suit. The two actions were consolidated for trial pursuant to ARCP 42.

The trial court, sitting without a jury, rendered judgment for $4,800 in favor of plaintiff-insured, and directed that an original signed judgment be placed in the files of both actions. After its motion for new trial was denied, defendant appealed. We reverse the judgment in Civil Action No. Cv-77-55 and affirm the judgment in Civil Action No. Cv-77-71.

Plaintiff purchased an accident and sickness insurance policy from Pennsylvania Life in September 1971. Certain portions of that policy, relevant to this case, read as follows:

PART TEN CONFINING TOTAL DISABILITY BENEFITS FOR LIFE — SICKNESS
If sickness causes continuous total disability, requires continuous confinement within doors and requires the regular and personal attendance of a physician, commencing while the policy is in force . the Company will pay periodically the Monthly Benefit stated in the Policy Schedule for each month . . . during which such total disability continues so long as the Insured lives and is so disabled and confined.
PART ELEVEN TOTAL DISABILITY BENEFITS FOR NON-CONFINING SICKNESS TWELVE MONTHS
If sickness causes continuous total disability but does not require continuous confinement within doors and requires the regular and personal attendance of a physician, commencing while this policy is in force and continues uninterrupted until the expiration of the elimination period stated in the Policy Schedule, if any, or immediately following a period of total disability for which benefits were payable under Part Ten, the Company will pay periodically the Monthly Benefit stated in the Policy Schedule for each month . during which such total disability continues, but not to exceed twelve months for any one period of sickness.
DEFINITIONS
ANY ONE ACCIDENT OR ANY ONE PERIOD OF SICKNESS, whenever used in this policy, means successive periods of disability which arise out of the same accident or sickness and which are separated by a period of less than six months shall be deemed to constitute any one accident or any one period of sickness. Successive periods of disability which arise out of the same accident or sickness commencing while this policy is in force and which are separated by a period of six months or more shall be deemed to constitute new periods of disability and each such new period shall be indemnified to the extent provided in this policy for any one accident or any one period of sickness.

Plaintiff entered the hospital with a heart problem in July 1974, and remained for about ten days. His sickness was diagnosed as “arteriosclerotic hypertensive heart disease with coronary insufficiency.” For this sickness defendant paid to plaintiff those benefits due under Part Ten (“confining benefits”) and Part Eleven (“non-confining benefits”) of the policy.

Plaintiff was hospitalized again in August 1976, this time for about a week. His diagnosis was as follows: (1) arteriosclerotic hypertensive disease; (2) prostatic hypertrophy and prostatitis; (3) osteoarthritis of the back with some disc degeneration; (4) arteriosclerosis with cerebral arteriosclerosis causing dizziness; (5) diabetes mellitus adult type; and (6) left inguinal hernia, large.

For this second hospitalization defendant paid to plaintiff the “confining benefits” under Part Ten of the policy. However, defendant refused to pay any further “non-confining benefits” under Part Eleven.

Defendant’s refusal was based on its contention that plaintiff’s disability, caused by heart disease and having been continuous from the date of the first hospitalization in 1974 until the present, constitutes a “single period of disability” under the definitions in the policy. Therefore, defendant, having paid to plaintiff the maximum twelve months’ benefits provided for in Part Eleven after plaintiff’s first hospitalization, was not liable for any further “non-confining” benefits claimed to be due for plaintiff’s “subsequent disability” in 1976. Based on this reasoning, defendant contends that it was entitled to judgment as a matter of law in Civil Action No. Cv-77-55 (the action on the policy).

On the other hand, plaintiff contends that the policy provisions are ambiguous, and that the trial court correctly followed the well established rule of law in Alabama which states that such ambiguities should be construed in favor of the insured, citing Southern Guaranty Insurance Co. v. Wales, 283 Ala. 493, 218 So.2d 822 (1969).

Plaintiff insists that defendant incorrectly interprets the policy’s definition of the phrase “any one period of sickness” to require that the successive periods of disability be separated by a period of at least six months of non-disability in order to be com-pensable under Part Eleven. Plaintiff argues that the phrase, as defined in the policy, requires only that the successive periods of disability be separated by a period of time (i. e. six months) in order to be compensable.

In construing an insurance policy, courts are guided by the rule that its terms and provisions must be construed as written so long as those terms and provisions are clear, unambiguous and not in conflict, and courts are not permitted to change or alter the wording of policies so as to write a new contract for the parties thereto. Cheek v. Vulcan Life & Accident Insurance Co., 52 Ala.App. 192, 290 So.2d 654, cert. den. 292 Ala. 715, 290 So.2d 658 (1973).

While we are not unmindful of the great weight given to the judgment of the trial court which heard the evidence ore tenus, we believe that the above-quoted provisions of the policy are clear and unambiguous. See Pennsylvania Life Insurance Co. v. Howell, 346 So.2d 368 (Miss.1977), wherein the Mississippi Supreme Court, in considering a policy which contained a Part Ten and a Part Eleven identical to those provisions under consideration in this case, concluded that “. . . Parts Ten and Eleven of the policy are in clear and unambiguous terms.”

Plaintiff himself testified that from the date of his first hospitalization in July 1974 until the time of trial he has neither worked nor been employed, and that his activities consisted primarily of driving short distances in his car and visiting with friends. He also testified that he sees his doctor every thirty to ninety days, and that he has considered himself “as suffering from heart disease since July of 1974 through today [time of trial].”

When asked on cross-examination if there had been any period of time that he had not been disabled since the last payment of non-confining benefits (following the hospitalization in 1974), plaintiff replied, “No, I’ve been disabled.”

The inescapable conclusion to be drawn from this uncontradicted testimony is that there have been no “successive periods of disability,” but rather, as defendant contends, a single, continuous period of disability from July 1974 until the present. The evidence is subject to no reasonable inference other than that during this period plaintiff has been “totally disabled.” Our case law defines the term “total disability” as the “inability to substantially perform the duties of any substantially gainful occupation for which he is qualified by training, education or experience.” Pan Coastal Life Insurance Co. v. Malone, 40 Ala.App. 325, 114 So.2d 277, cert. den. 269 Ala. 515, 114 So.2d 283 (1959).

If not contrary to statute or public policy, insurers have the right to limit their liability, and courts have no right to add to or take from such policies. Aetna Life Insurance Co. v. Hare, 47 Ala.App. 478, 256 So.2d 904 (1972).

It follows that defendant was not liable to plaintiff following the second hospitalization under Part Eleven of the policy, because defendant had already paid out the maximum benefits due under that part following plaintiff’s initial heart attack. We hold that the trial court erred in rendering judgment for plaintiff in Civil Action No. Cv-77-55.

Civil Action No. Cv-77-71

In Civil Action No. Cv-77-71 plaintiff contended that after the filing of the suit on the policy a settlement agreement was entered into by the parties, but that defendant breached that agreement. The agreement was alleged to have been reached on August 31, 1977, during telephone negotiations between defendant’s claims supervisor and plaintiff’s attorney.

The breach complained of in plaintiff’s second action concerns the release form sent by defendant for plaintiff’s signature. The pertinent portions of the release read as follows:

RELEASE
WHEREAS, I, Oscar E. Green of Hack-leburg, Alabama, the insured named in Policy Number 3408321 issued to me by the Pennsylvania Life Insurance Company, hereafter referred to as the Company, have presented claim against the Company under said policy by reason of accident or sickness commencing on or about the second day of August, 1976; and including the following diagnoses, Arterioscle-rotic hypertensive heart disease, Diabetes Mellitis, Hypertrophy with Prostatitis, Arteriosclerosis with Cerebral Arteriosclerosis causing previous dizziness, Osteoarthritis of the Back with Disc Degeneration, and Left Inguinal Hernia, Large; and
WHEREAS, I am still disabled but at this time desire that the Company shall make a lump-sum payment to me in consideration of a full release by me of all mv rights under said policy for accrued indemnity and all indemnity which mav accrue to me in the future, and after full consideration, I have requested the Company to make such a settlement;
NOW, THEREFORE, in consideration of the premises and in further consideration of the Company making said lump-sum settlement at this time in lieu of regular indemnity installments provided by said policy, and in consideration of $4,800.00 to me paid, receipt of which is hereby acknowledged, I do hereby release and forever discharge the said Company from any and all claims, actions, causes of action, suits and demands whatsoever, in law or in equity, which I now have or which I, my heirs, executors, administrators, assigns or beneficiary may hereafter have against the Company under said policy on account of said injury or sickness, or any loss which has resulted or which may hereafter result from such injury or sickness, and I definitely understand that I am hereby releasing all claims for future indemnity under said policy irrespective of the time when mv present disabili-tv ceases, and irrespective of whether it shall continue longer than now anticipated. (Emphasis supplied.)

Plaintiff refused to sign this release on the grounds that it, for all practical purposes, constituted a surrender of the policy.

Defendant contends that the judgment rendered in the suit for breach of the settlement agreement was contrary to the great weight and preponderance of the evidence.

Defendant argues on appeal the following points: first, that there was no contract created between the parties because there was no meeting of the minds as to the wording of the release; second, that the terms of the alleged verbal agreement were too uncertain to be enforceable; third, that plaintiff’s failure to sign the release and accept the check was equivalent to a rejection of defendant’s offer to settle; and fourth, that plaintiff’s attorney was without authority to settle or compromise his client’s claim in the absence of special authority from plaintiff.

We think these arguments are without merit. The testimony of both defendant’s employee and plaintiff’s attorney reveals that the following terms were agreed upon. Plaintiff was to receive $4,800 (an amount equal to the maximum twelve months non-confining benefits under Part Eleven), in exchange for dismissal of the action on the policy and the release of defendant from future liability for the six medical conditions listed as the diagnosis during plaintiff’s second hospitalization in August 1976. Plaintiff refused to surrender the policy, and no such term was included in the agreement.

The law does not favor but leans against the destruction of contracts because of uncertainty. Alabama National Life Insurance Co. v. National Union Life Insurance Co., 275 Ala. 28, 151 So.2d 762 (1963). We think the respective rights and duties under the verbal agreement were sufficiently delineated to justify the trial court’s conclusions that a binding agreement had been reached. Agreements made in the settlement of litigation are as binding on the parties thereto as any other contract. Brocato v. Brocato, Ala., 332 So.2d 722 (1976).

The testimony by both defendant’s employee and plaintiff’s attorney indicates that plaintiff had agreed to release defendant from liability only as to such future claims that might arise from the six medical conditions listed above. However, the broad wording of the release form sent to plaintiff — specifically, those provisions underlined above — could reasonably be construed as providing for a surrender of any and all claims by plaintiff under the policy. Plaintiff’s refusal to sign the release was not a failure to accept the offer of settlement, as defendant contends, but rather a non-performance of his contractual duty justified by defendant’s breach of the verbal agreement.

Defendant’s arguments regarding the authority of plaintiff’s attorney to settle his client’s claim are, at best, untimely. A party may not raise an issue for the first time on appeal. Lee Associates, Inc. v. Specialty Construction Co., Ala.Civ.App., 341 So.2d 150 (1976).

Before a reviewing court can set aside a judgment rendered by the trial court sitting without a jury, it must appear that the judgment is plainly and palpably contrary to the evidence heard by the court. Scroggins v. Alabama State Board of Pharmacy, 51 Ala.App. 104, 283 So.2d 178 (1973). We think there is sufficient evidence to support the trial court’s judgment in Civil Action No. Cv-77-71.

CIVIL ACTION NO. CV-77-71 IS AFFIRMED.

CIVIL ACTION NO. CV-77-55 IS REVERSED AND THE CAUSE REMANDED FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Oscar E. GREEN.
    78-163.
    Supreme Court of Alabama.
    March 2, 1979.
   SHORES, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Carolyn J. HAGLER v. FORD MOTOR CREDIT COMPANY.
    Civ. 1426.
    Court of Civil Appeals of Alabama.
    Nov. 8, 1978.
    Rehearing Denied Dec. 13, 1978.

      Edward Still, Birmingham, for appellant.
    Charles Cleveland, Birmingham, for ap-pellee.
    Charles G. Spradling, Jr., Legal Services of North-Central Ala., Inc., Huntsville, for amicus curiae Robert P. Darrow.
   HOLMES, Judge.

The plaintiff sued the defendant in deti-nue. The defendant counterclaimed on the basis that plaintiff had committed certain violations of the Federal Truth in Lending Act.

The learned trial judge found the defendant’s counterclaim to be barred by the statute of limitations. 15 U.S.C. § 1640(e). The dispositive issue on this appeal is whether the trial judge was correct in the above determination. We find that he was not and reverse and remand.

The facts are virtually without dispute and pertinently are as follows:

On January 19, 1976, the defendant purchased an automobile from a dealership. The transaction was financed by the plaintiff. In August of 1976, the defendant defaulted on the monthly payments. On February 22,1977, the plaintiff filed the above-mentioned detinue action. On May 23, 1977, the defendant filed its counterclaim.

While able counsel for plaintiff who has favored this court with an excellent brief argues otherwise, we find that this court, in Hewlett v. John Blue Employees Federal Credit Union, Ala.Civ.App., 344 So.2d 505 (1976), cert. denied, Ala., 344 So.2d 509 (1977), has held that the defendant’s claim is not barred by the statute of limitations.

This court, in Hewlett, supra, found that a Truth in Lending counterclaim is allowed if the plaintiff’s cause of action arose within one year of the alleged Truth in Lending violation by the plaintiff. Put another way, defendant’s counterclaim is not barred by the statute of limitations if the breach by defendant giving rise to plaintiff’s claim occurred within one year of the violation of the Act by plaintiff.

The “Truth in Lending Act,” 15 U.S.C. § 1640(e), provides that:

“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”

Assuming arguendo that plaintiff’s action constituted a violation of the “Truth in Lending Act,” the time of the violation is deemed to occur at the moment the loan transaction was consummated, i. e., January 19, 1976. See Hewlett v. John Blue Employees Federal Credit Union, supra.

As noted above, defendant’s counterclaim was filed May 23, 1977. This was filed more than one year after the alleged occurrence of the violation and by the terms of 15 U.S.C. § 1640(e), appears to be untimely.

However, ARCP 13(c) states, in pertinent part, that:

“All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff’s claim arose.”

Rule 13(c) contains express consideration of relation back of counterclaims. The Committee Comments to that section of the rule reflect that it was “drawn so as to harmonize with Tit. 7, § 355, Code of Ala. 1940. This corresponds to § 6-8-84, Code of Ala. 1975, which reads as follows:

“When the defendant pleads a counterclaim to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his counterclaim, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in the action.”

It is clear to this court, by virtue of the above, that a setoff or counterclaim is to relate back to the inception of the original plaintiff’s claim. See 1 Lyons, Alabama Practice, Rules of Civil Procedure Annotated 250-51 (1973); Committee Comments, Rule 13, ARCP.

In the instant case, plaintiff’s claim occurred in August, 1976, the date defendant defaulted on the loan. At that time, defendant had a “legal subsisting claim” due to the alleged violation by plaintiff occurring on January 19, 1976, the date of the sale.

Therefore, by virtue of Rule 13(c), ARCP, defendant’s counterclaim relates back to the time plaintiff’s claim arose in August, 1976. Due to the above, defendant’s counterclaim is not barred by the statute of limitations since the action is deemed to be brought “within one year from the date of the occurrence of the violation.”

To summarize, a Truth in Lending violation must be brought within one year of the occurrence of the violation. However, Rule 13(c), ARCP, allows a relation back to the time plaintiff’s claim arose. As noted earlier, the alleged Truth in Lending violation occurred in January, 1976, and the plaintiff’s claim arose in August, 1976. Thus, we hold that defendant’s counterclaim, although filed in May, 1977, relates back to August, 1976, since it was a “legal subsisting claim” at the time plaintiff’s claim arose.

It follows that the learned trial court erred in holding defendant’s counterclaim was barred by the statute of limitations.

We would note that both parties have, in excellent briefs, addressed themselves to additional issues that are not discussed above. We would further note that the trial court, in its order of judgment, specifically found that the statute of limitations did apply and that other issues raised were therefore “moot”, hence, making no determination of these issues. While it might well be expeditious in the long “run” for this court to decide these issues, to do so would not be appropriate. See Burch v. Southeastern Sand & Gravel Co., 278 Ala. 504, 179 So.2d 83 (1965).

The case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    Ex parte FORD MOTOR CREDIT COMPANY.
    78-166.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Bobby BARBOUR v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 1591.
    Court of Civil Appeals of Alabama.
    Nov. 8, 1978.
    Rehearing Denied Dec. 13, 1978.

      W. Clark Campbell, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the father of a minor child from a judgment permanently revoking parental rights and granting permanent custody of the child to the State Department of Pensions and Security (hereafter referred to as DPS) for the purpose of planning and possible adopting. The only issue is whether the evidence supports the finding that the court’s action is for the best interest of the child. We find the judgment supported by the evidence and it is affirmed.

This matter came on for hearing upon the petition of DPS for permanent custody. The record reveals that the male child was first before the court at the age of seven months in 1976. He was at that time taken from the custody of his parents and temporary custody granted to DPS. He has been in foster care since that time. Efforts were made by DPS to give counseling and mental health services to the mother. She did not respond. She separated from the father and disappeared in July 1976. Investigation as to other familial resources for care and custody was negative. The paternal grandmother indicated a desire for custody, but support resources were not present. Three children of her only daughter were given permanently to DPS. The Barbour family has been known to DPS for many years because of family problems and crises.

The father prior to the birth of the child had a criminal record and had served time in the penitentiary. He is again in prison because of conviction of forgery in November 1977. There are two other forgery cases presently pending. He appeared in court and was represented by court-appointed counsel. He requested the court to give custody to his mother under supervision of DPS until he can be paroled and settle his pending cases. He told the court that he was qualified as a welder and believed that in two or three years he would be out of prison, have a job and be married so that he could care for the child.

The paternal grandmother expressed love for the child though she has seen him only twice in two years. Her husband is totally disabled and draws disability checks in the amount of $360 per month. She has a temporary job making $160 per month. There are two adult sons living at home who are employed from time to time on construction jobs. The child knows none of his family and is well adjusted in a foster home.

It was the recommendation of counsel appointed as guardian ad litem for the child that custody be given to DPS. This appeal was taken by the father in forma pauperis through appointed counsel.

In reviewing the record in this case, we have kept in mind two principal rules of law. The first rule is common to all cases in which the trial judge sits as the finder of fact and hears and observes the witnesses as they speak. The rule is that the judgment is presumed correct and will not be reversed if it is supported by the legal evidence and is not clearly wrong and unjust. Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ.App.1978).

The second rule is one of law and equity. It is that the polestar of all child custody cases is the best interest and welfare of the child. Smith v. State Department of Pensions and Security, 340 So.2d 34 (Ala.Civ.App.1976).

A third rule applicable to the facts of this case is even the prima facie right of a parent to custody of his child must yield to the superior rule of the best interest and welfare of the child.

It is evident from the testimony here that the parent — yea, even the grandparents, have neither present ability nor future prospects which may reasonably be considered as contributory toward the best welfare of this three-year-old child who does not even know them. It is the judgment of this court that the trial court reached the only reasonable conclusion from the evidence. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex parte Bobby BARBOUR.
    78-168.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    JOHN LEE PAINT COMPANY, INC. v. PARKTOWNE, LTD., a limited partnership.
    Civ. 1566-X.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.

      Allen W. Howell, Montgomery, for appellant/cross-appellee.
    Robert S. Lamar, Jr., Montgomery, for appellee/cross-appellant.
   HOLMES, Judge.

This is an action to enforce a material-man’s lien.

The plaintiff, John Lee Paint Company, sued the defendant to establish a material-man’s lien. The trial court, after an ore tenus hearing, entered judgment for the plaintiff in the amount of $1,307. The plaintiff appeals, contending the amount of the lien established by the trial court is not supported by the evidence. Specifically, the plaintiff argues that the amount of the judgment should have been approximately $7,000.

The defendant cross appeals and maintains that the trial court erred in that there was insufficient proof to establish plaintiff’s entitlement to the statutory lien.

The dispositive issues before us are (1) whether there is evidence to support the trial court’s finding that the plaintiff is entitled to a materialman’s lien and, (2) whether the evidence supports the amount of the lien awarded the plaintiff. We answer both issues in the affirmative and affirm the verdict of the court below.

Viewing the record with the attendant presumption of correctness, we find the following: The defendant is the record titleholder of the Parktowne apartments, having purchased said property from the Singer Housing Company in September, 1976. The defendant gave a mortgage on the land to Molton, Allen and Williams in the same month. The defendant, through its managing partner, the Mitchell Company, was constructing improvements on this land. One of the independent contractors on the construction project during the spring and summer of 1977 was a Mr. Marvin Hicks, a paint contractor.

The plaintiff in this action sold paint and other supplies to Mr. Hicks for use and incorporation into the defendant’s apartment complex. In June of 1977, the plaintiff, because Mr. Hicks was in arrears on his account with the plaintiff, refused to extend further credit to Mr. Hicks for painting materials until it was paid.

After plaintiff refused to make further deliveries to the defendant’s property, a Mr. C. D. Walters, apparently an agent of the defendant by virtue of being the project superintendent of the defendant’s managing partner, the Mitchell Company, telephoned the plaintiff to inquire as to the reasons why the plaintiff had ceased delivering supplies to the project. This conversation between the plaintiff and defendant’s agent occurred sometime between the 3rd and 24th of June, 1977. The record reveals that in substance, C. D. Walters informed the plaintiff that he would make a check in the amount of $2,500 payable jointly to Hicks’s company and plaintiff, and that he wanted plaintiff “to keep the paint coming.”

Plaintiff recommenced delivering paint and supplies to the project on the strength of this conversation and ultimately delivered materials valued at $1,307.13, in addition to the debt previously owed it by Mr. Hicks. Prior to the conversation between the defendant’s agent and the plaintiff, Hicks owed plaintiff approximately $9,000.

Subsequently and pursuant to the requisites of Code of Ala.1975, § 35-11-210 et seq., the plaintiff timely filed its verified lien statement in the appropriate records of probate court establishing its right to mate-rialman’s lien. When the defendant refused to make payment on plaintiff’s $7,000 claim for the value of the construction materials, plaintiff brought an action to enforce the lien which resulted in this appeal.

At the outset we note that the trial court’s conclusions, after hearing the evidence, will be affirmed by this court when there is evidence to sustain the conclusions. Jabco, Inc. v. Kelly, Ala.Civ.App., 342 So.2d 791 (1977). The trial court’s decision will not be disturbed unless it is palpably wrong and manifestly unjust. Acker v. Protective Life Ins. Co., Ala., 353 So.2d 1150 (1977).

The defendant in its cross appeal maintains that the plaintiff is not entitled to the statutory lien because such a lien can only be asserted against the record titleholder of the land and improvements. Defendant argues that there was insufficient evidence presented at trial to establish that the defendant is in fact such an owner.

Specifically, the defendant contends that, notwithstanding the fact that there is proof it is the owner of the land, it is encumbent on the plaintiff to prove that the defendant is the owner of both the land and the improvements on the land as well, and in this, plaintiff has not sustained its burden of proof. We do not agree with defendant’s assertion.

Our cases hold that when the defendant is the record titleholder of the land at the time the supplier furnishes construction materials, the lien attaches to the improvements and on the land on which the same are situated to the extent of all the right, title, and interest therein of the owner. Code of Ala.1975, § 35-11-210. See, e. g., City Realty & Mortgage Co. v. Tallapoosa Lumber Co., 231 Ala. 238, 164 So. 55 (1935); Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157 (1891). Further, once the supplier produces proof of delivery of materials to the building site, a prima facie presumption arises that the materials delivered were in fact incorporated into the improvements on the land and it then becomes the burden of the owner to show that they were not so used. Southern Sash of Huntsville, Inc. v. Jean, 285 Ala. 705, 235 So.2d 842 (1970).

In the case before us, the record reveals that plaintiff introduced into evidence both a deed and a mortgage which conclusively established that the defendant was in fact the record owner of the property at the time the plaintiff supplied materials for the project. Additionally, there was adequate evidence that the plaintiff delivered materials to the construction site without any corresponding rebuttal proof by the defendant that the materials were not in fact incorporated into the improvement. Therefore, under the authority noted above, we find no error in the conclusion that the plaintiff sustained its burden of proof that its lien attached to the land and improvements of the defendant to the extent of the defendant’s right, title, and interest therein. Southern Sash; City Realty; and Wimberly, supra.

Defendant further contends in its cross appeal that the plaintiff is not entitled to the statutory lien of an “original contractor” because there was insufficient evidence presented at trial to support the conclusion that Mr. C. D. Walters was an agent of the defendant and thus could not validly bind the defendant to a contract with the plaintiff. We disagree with this contention for the reasons noted below.

Initially, we note that the learned trial judge went to some length to ensure that plaintiff’s proof established the status of Mr. Walters as an agent of the defendant. Clearly, an agent may validly contract with a materialman and thus bind his principal as the owner of realty, and thereby create statutory liability to the material-man under Alabama’s lien statute. See, e. g., Brown v. Oldham, 263 Ala. 76, 81 So.2d 331 (1955).

In the instant case, our review of the record reveals ample evidence to support the trial court’s conclusion that Mr. Walters was in fact the agent of defendant and that the defendant’s agent validly bound the defendant to pay for materials used in the improvements to the defendant’s property. Particularly, Mr. Hicks testified that Mr. Walters, the alleged agent of defendant, was the superintendent of the defendant’s construction project and actively directed the contractor’s daily activities. The testimony shows that Walters told Hicks what to do, when to do it, and how it was to be done. In addition, Walters inspected Hicks’s progress and the quality of his work. Walters authorized progress payments and personally hand delivered these checks to Hicks. Under the standard of review noted above, we find no error in the trial court’s conclusion that Walters was the defendant’s agent.

As noted previously, the plaintiff’s basis for appealing the judgment of the trial court is premised on the contention that the plaintiff presented sufficient evidence to warrant a lien greater in value than that granted by the learned judge. The plaintiff, in essence, argues that when the defendant’s agent phoned the plaintiff and later presented the $2,500 check to the plaintiff, the defendant ostensibly agreed to pay Hicks’s entire indebtedness to the plaintiff. We do not agree.

While there is no doubt that a mate-rialman’s lien based on a contract with the owner may arise by virtue of subsequent ratification of such a contract, Richardson v. Little, 209 Ala. 351, 96 So. 144 (1923), the materialman must factually establish such a contract with the owner. See, e. g., Sturdavant v. First Ave. Coal & Lumber Co., 219 Ala. 303, 122 So. 178 (1929); Thornton v. Vines, 213 Ala. 646, 106 So. 42 (1925).

As the record indicates, the court below was well within its fact-finding power to conclude that the parties had mutually agreed that the defendant would only be liable to the plaintiff for future deliveries. Specifically, we would note that our review of the record reveals it is possible to conclude, as the trial court apparently did, that the $2,500 payment was offered and paid to plaintiff as an inducement to ensure the continued delivery of materials to the defendant’s property, and was not, as the plaintiff contends, an assumption of the entire indebtedness owed plaintiff by Hicks. Because this court cannot substitute its judgment for that of the trier of fact, Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972), we find no error in the amount of the trial court’s award.

In view of the above, the judgment of the trial court is due to be and is affirmed.

AFFIRMED.

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


text:
    Ex parte JOHN LEE PAINT COMPANY, INC.
    78-217.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Ray Columbus GARGIS v. Edna Earl GARGIS.
    Civ. 1409-X.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.
    Rehearing Denied Jan. 17, 1979.

      Inge P. Johnson of Johnson & Johnson, Muscle Shoals, for appellant and cross-ap-pellee.
    Robert M. Hill, Jr., Florence, for appellee and cross-appellant.
   WRIGHT, Presiding Judge.

This is a case reinstating alimony after termination by a foreign court.

We will briefly outline the course of this case in the courts of Alabama and Florida as pertinent to the issues.

In March of 1970, a judgment for temporary child support and alimony for the wife was entered by the Circuit Court of Lauder-dale County, Alabama. On April 20,1972, a final divorce was granted awarding the wife $150 per month in child support and $125 per month in alimony. The only minor child married on April 28, 1972. No child support payments ever became due under the divorce decree. Contemporaneously with the divorce decree, the court issued a decree on ne exeat ordering the husband to pay $6,500 to the wife, representing the total amount then due for child support and alimony under the court’s order of March 17, 1970. On August 20, 1973, the wife filed a complaint in the Circuit Court of Bay County, Florida, where the husband resided, to enforce the Alabama judgment. The husband defended and counterclaimed for a reduction in alimony. The Florida court gave full faith and credit to the Alabama orders and determined the amount due and unpaid from the evidence presented to it. It found the net sum of $2,347.44 due the wife from the husband. It then modified the final divorce decree of the Alabama court by terminating the wife’s right to any future alimony. The wife accepted the judgment of the Florida court without appeal. The money found due her was paid to and received by her.

On December 15, 1976, the wife filed garnishment in Lauderdale County, claiming over $9,000 in past due support and alimony. The garnishment was dismissed because of giving full faith and credit to the Florida judgment. The wife then sought modification of both the prior Alabama divorce decree and the Florida decree terminating alimony. The court modified the Florida decree by reinstating alimony at $100 per month. The husband seeks to reverse that judgment. The wife cross-appeals the order dismissing the garnishment.

The primary issue presented to this court for consideration is whether an Alabama court has the power to make a new award of alimony to the wife after a Florida court has terminated the wife’s right to future alimony by modifying the original Alabama divorce decree.

The general rule in this state is that future periodic alimony awards may be modified upon showing a change in circumstances. Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App.1976); See 8 Ala.Dig., Divorce, 245(1). The power to grant alimony is derived solely from statute and the obligation of the husband is derived from the marriage relationship. The granting of alimony is incident to a divorce decree. If a divorce is granted without grant of alimony or reservation of consideration, the power to grant is lost. Northcutt v. Northcutt, 262 Ala. 98, 77 So.2d 336 (1955). If a grant of periodic alimony expires according to its term or is terminated by decree of modification, without reservation by the court, it is not subject to revival or reinstatement. Banks v. Banks, 336 So.2d 1365 (Ala.Civ.App.1976); Jennings v. Jennings, 353 So.2d 921 (Dist.Ct.App.Fla.1978). 43 A.L.R.2d 1384.

The wife contends that this latter principle should not be applicable when the termination of alimony is accomplished by a state other than the state issuing the original divorce decree. She contends that because Alabama granted the divorce with its incident order for alimony, its jurisdiction to modify cannot be terminated by the courts of another state. The contentions of the wife are contrary to the principle of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947), and to the full faith and credit clause of the U.S. Constitution (Art. 14, Sec. 1) and 28 U.S.C. Sec. 1738.. We have previously discussed and applied these principles in the case of Speed v. Speed, 341 So.2d 156 (Ala.Civ.App.1976), and will not again discuss them here.

In this case the wife invoked the jurisdiction of the Florida court for the purpose of collecting alimony. Upon being brought into court, the former husband sought his own relief. Having assumed personal jurisdiction of the parties, the Florida court was clothed with as much authority as the Alabama court and could proceed with modification as fully as the Alabama court. Speed v. Speed, supra. That court gave full faith and credit to the Alabama decree and enforced it. The wife accepted the benefits from that decree and did not appeal the termination of her alimony. It is our opinion that she would be bound by the decree, by estoppel or res judicata if by nothing else; however, the Florida decree in its entirety was due full faith and credit in the Alabama court. Our court extended that recognition to it only in part, as did the wife. In that it erred. To hold otherwise would require parties to an Alabama order for alimony, though subject to personal jurisdiction of a foreign court, to ever return to Alabama for modification or termination of alimony. That cannot be the law. With the parties before it a foreign court is as competent as the Alabama court to modify. Speed v. Speed, supra.

Finally, the wife asserts a cross-appeal as to the trial court’s dismissal of her garnishment. The wife contends that the Florida court improperly modified the Alabama judgment for past-due and accrued installments of alimony when it issued its May 21, 1974 decree ordering the husband to pay $2,347.44 to the wife representing all past due payments.

The wife contends that the Alabama judgment representing installments already due is final and should have been given full faith and credit by the Florida courts. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905. The wife asserts that there was a “misapplication of the Alabama law” by the Florida court which resulted in an improper modification of the Alabama judgment.

Again, we cannot agree with the wife’s position. The Florida court had jurisdiction of the action, and both parties submitted themselves to the jurisdiction of the Florida court. The Florida court noted in its final decree that full faith and credit had been given to the Alabama judgment for past due alimony. The issue was completely litigated in the Circuit Court of Bay County, Florida. The wife’s remedy would have been an appeal of that Florida judgment to the appellate courts of Florida at that time. However, rather than appealing, the wife accepted the Florida judgment and the benefits thereunder. The Circuit Court of Lauderdale County, in its order dismissing garnishment, correctly determined that even if the Florida decree was based in part on the misapplication of Alabama law, it was nevertheless entitled to full faith and credit. “Judgment of court of sister state which appears on its face to be valid and binding and rendered in a case in which the court had jurisdiction of the subject matter and the parties is to be given full faith and credit.” Warner v. State, 52 Ala.App. 361, 292 So.2d 480 (1974).

AFFIRMED AS TO ORDER DISMISSING GARNISHMENT. REVERSED AS TO ORDER AWARDING ALIMONY.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Edna Earl GARGIS.
    78-265.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Todd Marsala and Jayne A. MARSALA v. GULF SHORES BUILDING SUPPLY, INC.
    Civ. 1586.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.
    Rehearing Denied Feb. 7, 1979.

      Robert A. Wills, Bay Minette, for appellants.
    Kenneth Cooper, Bay Minette, for appel-lee.
   WRIGHT, Presiding Judge.

Defendants appeal from judgment in favor of plaintiff after suit on account. Defendants entered into a written contract with contractor Maynard whereby Maynard was to furnish materials and construct a beach house according to plans and specifications for defendants in Gulf Shores, Alabama. Plaintiff is a building supply firm in Gulf Shores.

In March or early April of 1977, defendants inquired of officers of plaintiff as to their knowledge of Maynard as a contractor in Gulf Shores. They were informed that Maynard had been building for about a year and had purchased materials from plaintiff and had a good reputation.

Thereafter, on April 9, defendants executed the contract with Maynard. The total contract price was $21,756 payable in four installments. The types of materials to be furnished and used by Maynard were generally set out in the contract. Thereafter, defendants informed plaintiff that they had contracted with Maynard to build their house.

Plaintiff opened an account with Maynard for furnishing materials to be used in construction of the defendants’ house and the first delivery was made to the site. From time to time thereafter, defendants, by agreement with Maynard, came to plaintiff’s store and selected styles and brands of materials to be used. They opened no account and were given no notice of delivery of materials to the house site as they were made. The materials were billed to C. D. Maynard for the Marsala job.

There was testimony that in May plaintiff’s employees and defendants discussed the delinquency of Maynard’s account and that Mr. Marsala told them that he would check before he made further disbursements to Maynard and would see that they got their money.

On June 29, 1977, plaintiff wrote a letter to defendants referring to the prior conversation with defendant that he would check with plaintiff before making any more payments to their contractor Maynard. The letter stated Maynard had made no payments, his balance was $6,545.60 and that plaintiff’s only recourse would be against defendants.

Subsequently defendant Mr. Marsala contacted Maynard about the account and instructed Maynard to meet him at plaintiff’s store. On July 7, 1977, Maynard and Marsala met at plaintiff’s. Maynard said he had made a payment on the account. Plaintiff’s officer said a payment of $4,000 had been received from Maynard but not on the Marsala job account. At this time Marsala made out a check to Maynard in the sum of $3,439.00, representing the third installment under the construction contract. Maynard endorsed the check and gave it to plaintiff. The account was credited in that amount together with a 2% “contractors” discount.

In early August, Mrs. Marsala inquired of plaintiff as to the balance Maynard owed on the account, and advised plaintiff to let Maynard have a few additional minor items, but not to let him have any large amount of material because he had enough on the job to finish. On August 5, 1977, plaintiff wrote Marsala at his residence in Mississippi advising that Maynard had walked off the job. There was an attached statement of the account of Maynard with the amount then due.

Defendants completed the house after Maynard abandoned it.

We have related the relevant evidence presented as it most favored plaintiff. It was after hearing this evidence without a jury that the judge rendered judgment against defendants in the sum of $4,399.33 plus interest of $163.96. Upon review, we find the evidence insufficient as a matter of law to support a judgment on account in favor of plaintiff.

A suit on account is an action in assumpsit and must be founded upon a contract, express or implied. Dees v. Self Brothers, 165 Ala. 225, 51 So. 735 (1910). The burden is upon plaintiff to show that he is owed a debt by defendant. Stotler & Co. v. Buttram, 57 Ala.App. 511, 329 So.2d 566 (1976). Our review discloses no evidence tending to show that defendants purchased the materials, authorized plaintiff to charge to them or promised to pay for them. The evidence is clear that plaintiff extended credit to Maynard for the materials to build defendant’s house just as they had done when he built other houses. Plaintiff’s effort to place responsibility for the account upon defendants merely because the account was shown to be for the “Marsala” job must fail. Such designation means only what it says. It served only for identification. Such identification would have been of use if this were an action to establish a materialmen’s lien under the statute. It would tend to show that the materials went into the improvements to the Marsala’s property. This is not an action to establish a lien upon property because of furnishing materials which were used to improve that property. This is an action on a contract only. Notice to the owner of the furnishing of materials to the contractor for construction is not a necessary element to the liability of the owner in this case. The evidence of plaintiff that defendants knew of the indebtedness of the contractor and pledged to aid plaintiff in securing payment from him fails to provide any basis for a promise by defendant to pay that indebtedness. Even if defendants had agreed in some oral conversation to pay the indebtedness of Maynard, such agreement or promise would not be enforceable because of the requirement of the statute of frauds. § 8-9-2(3), Code of Alabama (1975).

Defendants have cited the case of Crosby v. Hale, 277 Ala. 542, 173 So.2d 85 (1965), in support of their argument for reversal. We find the opinion of the court in that case to be substantially dispositive of the issues in this case. The distinctions between the facts of that case and the facts in this case relied upon by plaintiff in brief are not of legal significance.

We therefore reverse the judgment rendered below in favor of plaintiff because it is not supported by the evidence. We hereby direct judgment in favor of defendants.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Reita ANDERS v. Joe Lee ANDERS.
    Civ. 1558.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.

      Ralph E. Slate, Decatur, for appellant.
    Clyde Alan Blankenship, Hartselle, for appellee.
   BRADLEY, Judge.

Former wife appeals from a final divorce decree rendered by the Circuit Court of Morgan County. She contends on appeal that the trial court abused its discretion in the award of alimony in gross granted by that decree. We affirm.

The record indicates that the parties to this appeal are in their late thirties. They were married in 1960, divorced in 1973 for several months, then remarried in May 1974. The divorce in 1973 apparently resulted from Mr. Anders’ drinking problems. Two children were born of this marriage. The son, Mark, is about seventeen years old and is afflicted with cerebral palsy. The daughter, Michelle, is about eleven years old.

In July 1977 Mrs. Anders filed a divorce complaint with the circuit court, alleging as grounds therefor incompatibility of temperament and habitual drunkenness of the husband. After hearing the evidence ore tenus the trial court issued a decree dated April 28,1978 divorcing the parties on the ground of incompatibility of temperament.

Under the terms of the divorce decree Mrs. Anders received custody of the two children and $40 per child per week child support, with Mr. Anders having visitation rights under certain specified conditions. Mrs. Anders was awarded the household furniture, furnishings, and appliances and also a 1973 Buick. Mr. Anders was awarded his personal items, clothing, tools, etc., a house trailer and a 1971 Ford. The decree ordered each party to pay his/her own attorney’s fees and the court costs were taxed to Mr. Anders.

The divorce decree further provided:

The parties own two parcels of real estate jointly. One tract of land consists of 5 acres upon which is located the family home. The house and land is worth somewhere between $40,000 and $65,000 but is encumbered by a mortgage to First Federal of about $48,000. As alimony in gross Reita Anders is hereby awarded title to the 5 acres and home and improvements and she shall be responsible for the mortgage thereon.
The other parcel of land is a 68 acre tract of land and was purchased by the parties from Mr. Anders’ kinfolks. The property is encumbered by a mortgage of some $14,000. Mr. Anders is entitled to this property but the Court hereby orders that the property be held in trust as long as Mr. Anders is liable for child support payments. When his duty to support his children no longer exists he shall receive full title to the same otherwise the property shall be held by him in trust for their support. He shall be responsible for the mortgage. [Emphasis supplied.]

Mrs. Anders contends on appeal that the trial court abused its discretion in the award of alimony in gross because the property she received was substantially encumbered, whereas the property received by Mr. Anders was only “nominally” encumbered. She urges that the practical effect of the decree was to decrease the size of her estate and increase the size of her husband’s. This result is especially unfair, she argues, because both parties had contributed equally to the acquisition of all property and title to all property had been in joint ownership.

Mrs. Anders argument is based on Code of Alabama 1975, § 30-2-52, which reads:

If the divorce is in favor of the wife for the misconduct of the husband, the judge trying the case shall have the right to make an allowance to the wife out of the husband’s estate, or not make her an allowance as the circumstances of the case may justify, and if an allowance is made, it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case.

While conceding that the divorce was granted on the ground of incompatibility of temperament, Mrs. Anders cites Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704 (1976), for the proposition that even in “no-fault” divorce proceedings the trial court, in determining the award of alimony, may properly consider fault of the parties in bringing about the marital breakdown. She insists that the evidence was without dispute in placing the husband at fault for the marital turmoil, and therefore her award should have been “as liberal as the estate of the husband will permit.”

While Mr. Anders’ intemperance undoubtedly played a sizeable role in the parties’ marital difficulties, we do not think it automatically follows, as appellant suggests, that this fact entitles her to the “liberal” allowance contemplated by § 30-2-52. The conduct of the parties is but one factor to be considered by the trial court. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. den. 292 Ala. 721, 298 So.2d 260 (1974).

We said in Huggins, supra, that the amount of an award of alimony in gross is a matter within the discretion of the lower court, and such awards will not be revised on appeal in the absence of an abuse of that discretion. Each case stands on its own facts and no mathematical formula may be applied. Huggins, supra.

Plain and palpable error constituting an abuse of discretion exists only where the reviewing court can draw no reasonable inference from the evidence that the decree below is correct. Parsons v. Parsons, Ala.Civ.App., 337 So.2d 765 (1976).

In determining the size of the award of alimony in gross, the trial court may properly consider such relevant factors as:

[T]he parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of divorce.

Mitchell v. Mitchell, Ala.Civ.App., 351 So.2d 602 (1977) and cases cited therein.

Having reviewed the rather lengthy record in this cause, we find no abuse of discretion in the trial court’s award. The testimony indicates that the five acre parcel upon which the marital home is situated was given to the Anders by Mr. Anders’ parents. Mrs. Anders is employed as business manager for a “radiology group.” She earns a salary of approximately $15,000-$16,000 per year. Her employers furnish her the use of an automobile and during one recent year she received an annual bonus of $5,000. Mr. Anders, a very able electrician, earned approximately $25,000 in 1976, but in 1977 his income dropped to $12,000-$14,000.

The contractor who built the Anders’ home estimated its value at $60,000-$65,-000. Mrs. Anders estimated the value of the marital home at $70,000. The value of the farm acreage awarded to Mr. Anders was estimated at $1,000 per acre by Mrs. Anders. Mr. Anders valued the property at $40,000-$45,000.

The testimony further indicates the following facts concerning the encumbrances on the parties’ real property. The payments on the $48,000 outstanding balance of the mortgage on the marital home are approximately $500 per month. The monthly payments on the $14,000 mortgage on the farm acreage awarded to Mr. Anders are $200 per month. A five acre parcel of the farm acreage is encumbered by a mortgage procured to build a swimming pool for the marital home. The $126 per month payments on this latter mortgage are due for two to three more years.

Mrs. Anders testified that living expenses for herself and the two children would total about $1,500 per month. This monthly figure includes the amounts due as payments on the three above-mentioned mortgages. Mrs. Anders testified that during the marriage she had paid from her own salary the house payments and the debt on the pool; and that if she were awarded all the real property of the parties she would be able to meet the monthly obligations thereon.

We are unable to say how much consideration the trial court gave to the testimony regarding Mr. Anders’ “fault” relative to bringing about the marital discord in determining the size of the award to Mrs. An-ders; however, we do believe the trial court’s decree is supported by the evidence in the record.

If, under any reasonable aspect, the decree below is fairly supported by credible evidence, it is our duty to affirm, even though our view of the evidence might be different from that held by the trial court. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

We find no abuse of discretion by the trial court, and this case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J„ concur.


text:
    Stephen James WEISSENBERGER v. Dorothy Mae Burr WEISSENBERGER.
    Civ. 1568.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Joel M. Nomberg, Daleville, for appellant.
    Warren Rowe, Enterprise, for appellee.
   BRADLEY, Judge.

The parties to this proceeding were divorced by the Circuit Court of Coffee County on April 18, 1978 for incompatibility of temperament. The plaintiff-husband appeals.

Plaintiff had sought a divorce on the ground of adultery and had asked the court to award him the custody of the two minor children of the marriage, Andrew James, eleven, and Stephen James, Jr., eight. The defendant-wife answered by denying the allegations of the complaint and requesting a divorce for incompatibility, custody of the two children and child support, plus alimony, certain property, and attorney’s fee.

After hearings ore tenus, the trial court divorced the parties on the ground of incompatibility of temperament and specifically found that adultery had not been proven. Custody of the two minor children was awarded to the mother with reasonable visitation to the father.

The trial court stated that it was not awarding defendant alimony but that it was giving her $275 per month, presumably for child support, although the decree does not specifically so provide. There was a property settlement of $5,000.

A rehearing was requested by plaintiff and it was denied; however, the trial court did modify the decree so as to change the father’s visitation schedule.

On appeal plaintiff says the trial court erred in concluding that the charge of adultery was not supported by the evidence, and, had it not so found, the fact of adultery would have required the award of custody to the father. Further, plaintiff argues that the award of custody to the mother is plainly and palpably erroneous and contrary to the evidence.

The record reveals that the parties had been married for approximately thirteen years at the time of the divorce. The wife separated from the husband and established a separate residence on November 27, 1977. Testimony reveals that the wife was “seeing” another man and that she had previously known him. The record is unclear as to exactly when the wife and third party began seeing each other.

The testimony reveals that the third party separated from his wife about one month before the wife in this case separated from her husband.

After the parties separated, the third party allowed the wife the use of his van and also bought her a dishwasher. There is evidence that the third party received his mail at the wife’s old address. The wife did the third party’s laundry and kept it for him until he picked it up. He also left some personal clothing and toilet articles at the wife’s new residence. Defendant lives now with the Dewey Lees, and has since February 12,1978. Both the wife and third party admitted that they had embraced; however, both denied ever having had sexual relations with one another. Both testified to future marriage plans.

Andy, the twelve year old son, testified that the third party had moved in with his mother and that he had seen his mother “in bed” with this man once or twice. He also testified that he had seen his mother in bed with another man several times before, but that he had not seen that man recently. The son expressed a desire to live with his father. On cross-examination, however, the son admitted that he had previously told the mother’s lawyer that he had not seen his mother and the third party together and that he wanted to live with his mother. The son claims that he has different stories because he did not want to hurt his mother. It appears from the evidence that the son is concerned that if he is required to live with his mother he will not be allowed to visit his father, whereas if his custody is placed with the father, visitation with the mother will be allowed. The mother specifically denied all of the son’s testimony.

Most of the witnesses testified that the mother and the father were fit parents. One witness said the father was unfit to have custody because he left the youngest son at home by himself on one occasion, and he screamed at the children when he was around them. Another witness said she thought that the mother acted indifferent to the children’s needs and desires. The father is employed at Fort Rucker by the U.S. Army as an instructor pilot. His base pay is a little over $1,000 per month. The wife was employed as an apartment manager prior to the separation. She thereafter worked for Gunter-Dunn, a furniture store. She received minimum wage. She left that employment about March 16, 1978.

Testimony for both sides indicated that both parents had a good relationship with their children. Some testimony revealed that the children had undergone some emotional stress during the fall of the separation. However, the record reveals that their overall condition appears to have improved since that time.

To begin, we say that there is a strong presumption in favor of the correctness of a divorce decree in instances where testimony is heard ore tenus. There will be a reversal only after an examination of the record reveals that the decree is unsupported by or contrary to the evidence or where the decree is plainly and palpably erroneous. Roberts v. Roberts, Ala.Civ.App., 354 So.2d 21 (1978). See 8 Ala.Dig. Divorce 184. A careful review of the record evidence convinces us that the trial court’s conclusion that the charge of adultery was not supported by the evidence is borne out by the testimony in this case. The defendant and her male friend both denied sexual relations. No one had seen them in bed together except the oldest son, who on cross-examination admitted that he had previously told his mother’s lawyer that he had not seen his mother in bed with her male friend. Further, the evidence showed that the boy had been in his father’s custody for ten days just prior to the hearing and that the boy had expressed a desire to live with his father. Obviously the evidence was in conflict on this score, and in such situations it is for the trier of fact to resolve that conflict. Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976). We would point out, however, that had there been a finding by the trial court that the wife was guilty of adultery, award of custody of the children to the father would not have been mandated thereby. Eskew v. Eskew, 57 Ala.App. 512, 329 So.2d 567 (1976). Adultery is only a factor to be considered by the trial court along with all the other factors that help the court to decide what would be in the best interests of the child so far as its custody is concerned. Mason v. Mason, 276 Ala. 265, 160 So.2d 881 (1964).

Accordingly, plaintiff’s contention that the trial court erred in finding that the evidence did not prove defendant guilty of adultery is without merit.

Plaintiff’s next contention is that the trial court’s decree awarding custody of these two young boys to their mother is plainly and palpably erroneous and unsupported by the evidence.

As stated previously, a decree based on testimony heard ore tenus is presumed correct and will not be reversed unless shown to be contrary to and unsupported by the evidence or plainly and palpably erroneous. Roberts v. Roberts, supra; Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856 (1974).

After carefully reviewing the evidence contained in the record before us, we cannot say the trial court’s award of these children’s custody to their mother is plainly and palpably erroneous nor that it is contrary to or unsupported by the evidence.

Defendant-wife’s request for an attorney’s fee is granted and we hereby award $350 to her for that purpose.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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


text:
    Ervina A. CINADER v. Lawrence S. CINADER.
    Civ. 1593.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.

      Vanzetta Penn Durant, Montgomery, for appellant.
    James W. Cameron of Cameron & Cameron, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals from the final judgment division of property and award of alimony.

The first issue we will consider that is presented by plaintiff on appeal is whether she was entitled to an award of attorney fees by the trial court.

It has long been case law in this state that §§ 30-2-50, 51, 52, Code of Alabama (1975) provide authority for a discretionary award of attorney fees to the wife. Smith v. Smith, 57 Ala.App. 615, 330 So.2d 439 (1976). Even so a request must be made, and evidence of financial need and performance of the service shown before the authority of the court to grant such fees is properly invoked. There was an appearance by counsel in behalf of plaintiff only through taking of a reference penden-te lite. That counsel withdrew from the case the day of the reference. Plaintiff had no counsel thereafter until the taking of this appeal. There was no evidence presented as to the value of the services of counsel nor whether he had even made a charge. There can be no error in failing to grant relief for which there has been no evidence presented. Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970).

The next issue presented by plaintiff is: Did the evidence before the court support a finding regarding the value of plaintiff’s interest in the parties’ property?

The argument of plaintiff in support of this issue is that the court’s grant of $11,000 to her as her interest in the home is not supported by any evidence. Plaintiff is wrong. The record shows testimony by the defendant husband that in his opinion the home has a value of about $30,000. There is no disputation of that sum in the record. An owner of realty may testify as to the value of his property. § 12-21-114, Code of Alabama (1975); State v. Hastie, 333 So.2d 795 (Ala.1976). The record further shows that defendant made all payments on the house and owed a balance of $500 on it. We are not advised from the record why the court ordered defendant to pay plaintiff $11,000 for “her interest” in the home. However, the division of property in a divorce is a matter for the discretion of the court and an equal division is not required when all equities are weighed. Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975). We find no abuse of discretion in the award of $11,000 to the wife.

The third issue presented on appeal is that the award of alimony to plaintiff constituted an abuse of discretion.

In order to discuss this issue we must set out the entire award made to the plaintiff. In addition to the $11,000 heretofore discussed, plaintiff was awarded $27,000 which was in a savings account in her name. She was given one-half the proceeds from a sale to be made of a lot owned by the parties in or near Kansas City. The sale value was estimated to be $30,000. Thus if estimates were correct, plaintiff would ultimately have in cash from property and savings the sum of $53,000. The court further gave her the sum of $7,200 as alimony in gross payable $200 per month for thirty-six months. She was not given any periodic alimony. It is in that failure that we find the court to have abused its discretion.

Though plaintiff was given an estimated $53,000 in the division of real and personal property and $7,200 alimony in gross, defendant was not left penniless. He had $9,000 in a savings account; a $30,000 home and was to receive an equal amount with plaintiff from the sale of the Kansas City lot (estimate $15,000). He also has at least $10,000 credited to his account in the partnership business (Sahara Restaurant). In addition he owns a 20% interest in the partnership. He draws a monthly salary of $1,800 and a bonus at the end of the year of $5,000 to $10,000.

On the other hand, plaintiff has no work experience or training. The marriage endured for thirty-six years. There are three adult children. She has borne the burden of keeping the home and rearing the children while the defendant worked as a chef. It is obvious that plaintiff cannot live as she has been accustomed on income from $53,-000. She should not be required to exhaust the principle for her support. Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184 (1950). She is fifty-four years old and not in good health. The payment of the ordered alimony in gross for thirty-six months will be quickly exhausted. Under such circumstances it is the opinion of this court that the trial court abused its discretion in failing to grant periodic alimony.

We reverse the judgment below insofar as the award of $7,200 alimony in gross, payable $200 per month for thirty-six months, and direct the trial court to enter judgment for periodic alimony payable monthly to plaintiff in the amount of $400 per month until she dies or remarries.

This court hereby awards to plaintiff the sum of $500 as attorney fees for the services of her attorney on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


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    COLONIAL CAPITAL CORPORATION and Edward W. Drinkard v. Dallas Wayne SMITH and Phyllis Smith.
    Civ. 1603.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Howard C. Alexander, Montgomery, for appellant, Colonial Capital Corp.
    William P. Sawyer, Montgomery, for ap-pellee, Dallas Wayne Smith.
   WRIGHT, Presiding Judge.

This is a suit upon the covenant against encumbrances contained in a warranty deed. Summary judgment was rendered in favor of plaintiffs as to liability of the defendant. The issue of damages due plaintiffs from defendant was tried to a jury. Defendant filed a third party complaint. Verdict and judgment were in favor of plaintiffs and against defendant for $1,750. Verdict and judgment for $875 were entered in favor of plaintiffs against third party defendant. Both defendants appeal. The dispositive issue is whether plaintiffs were due summary judgment as to liability of defendant and judgment for damages. We reverse.

The affidavits for and against summary judgment for plaintiffs, together with the complaint, pleadings and exhibits thereto, show without dispute that on August 22, 1973, defendant executed and delivered a warranty deed to plaintiff as a result of a sale of certain real estate. Plaintiffs at the same time assumed certain mortgages then outstanding against the property. Plaintiffs went into possession of the property and remained peaceably thereon until on or about June 8,1977. At that time plaintiffs entered into an agreement to sell the property and pending such sale, gave possession to the prospective purchaser.

Title examining attorney for the purchasers or their financing agency, upon examining the mortgage records at the Autauga County Court House, found a mortgage upon the property dated in 1969, unsatisfied of record and not excepted from the warranty deed from defendant to plaintiffs. The purchasers or their financing agency did not complete the purchase because of the unsatisfied record even though defendant informed the agency’s examining counsel that the mortgage had been paid in full prior to execution of the deed to plaintiffs. Plaintiffs subsequently filed suit claiming breach of warranty for a defective title because of the unsatisfied record. Defendant thereafter obtained an affidavit of satisfaction from the mortgage.

We have said plaintiffs were granted summary judgment against defendant upon the issue of liability for breach of warranty due to a defect in the title of defendant. Rule 56(c) ARCP provides that summary judgment is to be entered when there is no genuine issue as to any material fact and that the moving party is entitled to judgment upon those facts as a matter of law. Imperial Group, Ltd. v. Lamar Corporation, 347 So.2d 988 (Ala.1977). There is no dispute as to the material facts. We have set them out above. Defendant did execute a warranty deed. There was an absence of satisfaction shown on a recorded mortgage. That mortgage was in fact satisfied. However, accepting the truth of these facts, were plaintiffs entitled to judgment as a matter of law? We find they were not.

Defendant’s liability and obligations to the plaintiffs arise from the covenants contained in the warranty deed. The language of the deed is that generally contained in a warranty deed in Alabama. Such a deed is considered to encompass five covenants. LeMaistre, George A. Legal Aspects of Real Estate Transactions, University of Alabama 1971, at 109. The covenants of seisin and the right to convey are basically the same and mean that the grantor owns the estate which he proposes to convey. Russell v. Belsher, 221 Ala. 360, 128 So. 452 (1930); Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956 (1913). These covenants are broken at the time of conveyance if the grantor does not have good title. Wolff v. Woodruff, 258 Ala. 1, 61 So.2d 69 (1952). There is no claim that defendant did not in fact own the fee simple to the property. Therefore the covenants of seisin and right to convey are not in issue in this case.

The covenants of general warranty to defend the title of grantee and his successors against the lawful claims of all persons are in substance those for possession and quiet enjoyment. They are not broken so long as the grantee’s enjoyment and possession are not interfered with. Chicago, Mobile Development Co. v. G. C. Coggin Co., 259 Ala. 152, 66 So.2d 151 (1953). Plaintiffs have suffered no eviction or disturbance of possession. They have suffered no breach of these covenants.

The remaining of the five covenants is that against encumbrances. A covenant against encumbrances is a stipulation by the covenantor that there are no outstanding rights or interests to the estate conveyed that will diminish the value, but which are consistent with the passage of the fee. 20 Am.Jur.2d Sec. 81, Covenants, Conditions, Etc. An existing mortgage would be an encumbrance. If such covenant is broken, it is broken at the time it is made, and a cause of action arises at that time and does not pass to any subsequent grantee. Chicago, Mobile Development Co. v. G. C. Coggin Co., supra. It is not broken however, unless the alleged outstanding encumbrance is valid, legal and subsisting. 5 A.L.R. 1086. A paid mortgage, although unsatisfied of record, is not an encumbrance within the meaning of the covenant. Judevine v. Pennock, 15 Vt. 683; Boulware v. Mayfield, Fla.App., 317 So.2d 470 (1975).

It is clear that liability of defendant under the covenants contained in the warranty deed could not arise under any of the covenants when there was in fact no defect in its title which could result in an eviction, either actual or constructive or which did not in fact diminish the interest which was conveyed to plaintiffs. A mortgage which was in fact paid, though not satisfied of record by the mortgagee, could never be a legal basis for an action for breach of general warranties. There was no covenant nor warranty contained in plaintiffs’ deed which has been breached.

The doctrine of caveat emptor generally is applicable to the sale of real estate in this state. Except in cases of fraud, the only protection of title afforded a purchaser is in the covenants contained in the deed. Cochran v. Keeton, 47 Ala.App. 194, 252 So.2d 307 (1970), aff’d, 287 Ala. 439, 252 So.2d 313 (1971).

For the reason that under the undisputed facts plaintiffs could not recover as a matter of law, the grant of summary judgment against defendant must be set aside. For the same reason, summary judgment in favor of defendant should have been granted. However, we find no issue addressed to that failure in the appeal. We therefore reverse and set aside summary judgment on the issue of liability entered in favor of plaintiffs. It follows that the verdict and judgment against defendant as to damages and the verdict and judgment against third party defendant must also be reversed and set aside. Reversed in all aspects and remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


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    Eleanor June KING v. Max KING.
    Civ. 1643.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.

      M. Dale Marsh, of Cassady, Fuller & Marsh, Enterprise, for appellant.
    Charles L. Woods, of Woods & Corbitt, Ozark, for appellee.
   BRADLEY, Judge.

Former wife appeals from divorce decree rendered by the Circuit Court of Dale County and from the denial of her motion for a new trial. Mrs. King’s principal contention on appeal concerns the adequacy of the alimony award, the division of marital property, and the amount determined by the court to be owed by Mr. King as repayment for loans made by Mrs. King during cover-ture. We affirm.

Mrs. King filed a complaint in February 1978 seeking a divorce on the grounds of incompatibility. A hearing was held in June 1978 during which the following facts were revealed. Eleanor June King and Max King were married in June 1972 in Dothan, Alabama. This marriage, the second marriage for each of them, has produced no children. At the time of their marriage Mr. King was employed as an Alabama State Trooper, and had been so employed for fourteen years. He earns approximately $14,000 annually and his current take-home pay is about $400 bi-weekly. He also owns a farm in Pinckard, Alabama.

Mrs. King has been employed in police work since 1968. Since 1975 she has been employed by the Coffee County Sheriff’s Department in Enterprise as a deputy sheriff and office clerk with a monthly take-home pay of about $385. She testified that she enjoyed her work. Due to the death of her first husband Mrs. King received a weekly benefit of $50 per week in workmen’s compensation and insurance proceeds of $32,000. Her marriage to Mr. King terminated these weekly payments.

After the marriage the parties moved to a home owned by Mr. King in Ozark, Alabama. In March 1973 they moved to the farm home of Mr. King’s elderly father in Pinckard, where they resided until the time of their separation in February 1978. Prior to the separation Mrs. King worked and also cooked and kept house for her husband and his father.

Mrs. King testified that the principal cause of the marital breakdown was Mr. King’s violent temper, a characteristic which she stated disturbed her very much and which was not exhibited during their courtship. Three or four times during their marriage she had left her husband for short periods of time because of his temper. She related several examples of Mr. King’s ill temper which had occurred in her presence. However, during most if not all of the instances, Mr. King’s anger was directed not at Mrs. King but rather towards other persons.

Shortly after Christmas 1977 an incident occurred which prompted Mrs. King to leave her husband. Her son by her first marriage, Pat, came to the farm house with some friends. Upon entering the house Pat encountered the elder Mr. King, who told Pat he was not welcome there and never to come back to the house again. When her husband arrived at the house, Mrs. King and Pat asked him to talk with his father, but he refused. Mrs. King stayed on a few weeks after the incident, hoping the impasse between the family members would be broken, but left after it became apparent that no such reconciliation would occur.

Mrs. King testified that immediately pri- or to the marriage she had about $17,000 of the money she had received upon the death of her first husband. She stated that during the course of her marriage Mr. King did not support her by providing her clothing, other necessities and transportation, but rather she provided much of these things for herself. She further stated that she used her money to purchase groceries ($50-$60 a week) for herself, her husband and the elder Mr. King from 1972 until 1975 when her money gave out. In 1974 she purchased a deep freezer using funds withdrawn from her retirement account.

Mrs. King testified that during the marriage she loaned her husband money from her savings. She once withdrew $5,000 for him to use as collateral for a loan to purchase cattle. When the loan was repaid she received $1,600 in cash, and the rest was left in a checking account held jointly by her and her husband and was subsequently spent on household expenses. On another occasion she loaned her husband $2,000-$3,-000 to purchase hogs. She also provided some financial assistance for her son’s attorney’s fees in a child custody matter.

Mr. King testified that in his opinion he had repaid all the money owed to his wife except for $2,500 plus interest, which he acknowledged as now being owed her. He stated that all his paychecks had been deposited in joint checking accounts upon which both he and his wife could write checks; that his wife at all times could have drawn upon those funds had she chosen to do so, and that he had never told her not to use their joint accounts for household expenses. He conceded that he possibly had “too much temper” at times, but that with the type job he had “you have got to have a certain amount of push about you to make things go.”

The testimony indicates that Mr. King had acquired title to all the real estate he now owns prior to his marriage to Mrs. King. The parties stipulated that his principal asset, the 278 acre farm in Pinckard, was worth about $165,000 on April 14, 1975 according to a Federal Land Bank and FHA appraisal, and that the property had appreciated in value since that time. Mr. King bought most of this property from his family and paid a total of $109,500 for this property, but the indebtedness on the land — reflecting loans for equipment purchases and for bad crops — totals $168,000. He estimated the current market value of this property at $750 per acre.

Mr. King’s farming operation (peanuts, corn, soybeans, livestock) has, in the last few years, been operated as a partnership with his brother. Mr. King owns a tractor and accessories purchased for about $30,000 with an indebtedness of $15,000-16,000 on it. He and his brother own a peanut picker purchased for about $6,400. During the marriage he purchased for Mrs. King’s use a 1977 Thunderbird automobile, now worth about $7,000 and upon which about $4,000 is still owed. Mr. King also has a retirement account with the State of Alabama in the approximate amount of $17,250 built up over his twenty years of employment as a state trooper.

Mr. King testified that he started in the cattle business in 1960 and that he currently is engaged in extensive livestock operations, principally involving cows and hogs. At the time of the separation in February 1978, his brood cows, yearlings and herd bulls were worth approximately $45,000. He also owned a large number of hogs, all acquired after his marriage, upon which he owes a feed bill debt of about $3,000. The size of his cattle herd has not increased since before he met Mrs. King.

Prior to the hearing in this cause the court allowed Mr. King to sell approximately $23,000 worth of cows and $7,000 worth of hogs. Mr. King stated that the proceeds from these sales were spent on outstanding farm debts accumulated over the years. The court had also issued an order allowing Mrs. King to remove certain articles of furniture and personal property from the farm house.

Following the hearing the trial court entered a decree dissolving the marriage on the grounds of incompatibility of temperament. The decree awarded to the husband the real estate, farm equipment, livestock, the personal property still remaining in the parties’ dwelling, certain bank accounts and all motor vehicles except the 1977 Thunderbird, which was awarded to the wife. The wife was also awarded a certain bank account and the home in Enterprise which she owned prior to the marriage and upon which $3,000 is owed. The decree states that each party shall assume responsibility for the debts upon the property which they were awarded.

Additionally, Mr. King was ordered to pay Mrs. King, in repayment of the loan she had made to him, the sum of $2,500 plus interest at eight percent per annum from January 1, 1974. This repayment was ordered to be made within ninety days of the decree. Mr. King was also ordered to pay Mrs. King the sum of $14,400 as alimony in gross at the rate of $200 per month beginning July 1, 1978 and continuing for seventy-two months. Mr. King was further ordered to pay court costs and $500 as the wife’s attorney’s fees.

Mrs. King’s four principal contentions on appeal, argued in bulk in the brief filed on her behalf, are that the trial court (1) erred in awarding to the wife an inadequate amount of alimony, (2) erred in making a division of the marital property, (3) erred in determining the amount of money the husband was to pay to the wife as repayment for monies borrowed during the marriage, and (4) rendered a judgment that is contrary to the law and facts in this case.

She cites Watson v. Watson, 45 Ala.App. 306, 229 So.2d 807 (1969) for the proposition that the amount of an award of alimony in gross usually varies from one-half of the husband’s estate to one-third or less, and that the determination of this amount depends on what is fair and reasonable in the light of the relevant facts of the case. She argues that Mr. King had a legal duty to support her during the marriage which he failed in large measure to perform, and that the award of $14,400 as alimony in gross is merely a repayment of the monies which Mrs. King received on the death of her first husband and which she expended for loans and necessities during the marriage.

She further argues that the trial court abused its discretion in that Mr. King has not only been allowed the interest-free use of her money during the marriage, but the $200 per month repayment with no interest has allowed Mr. King to “reap a harvest.”

This court reiterated the well-known rule in Burson v. Burson, Ala.Civ.App., 363 So.2d 778 (1978) that the award of alimony by a trial court is largely within the discretion of the trial judge, and that such an exercise of discretion is reviewed by this court only to determine if the judgment is so unsupported by the legal evidence as to be arbitrary and unjust. We also noted that this same standard of review applies equally well to the trial court’s division of property.

We find no abuse of discretion by the trial court in its decree. Under these facts we are not convinced that either the award of alimony in gross or the division of property was arbitrary or unjust.

It is apparent that the trial court chose to believe the husband’s testimony rather than that of the wife regarding the amount of the debt owed to the wife. The law does not permit this court to substitute its judgment for that of the trial court who. heard the evidence ore tenus. Burson, supra. The trial court’s determination of this issue is well-supported by the testimony. Mrs. King herself testified that when her $5,000 had been released as collateral she received a portion of those funds in cash and voluntarily left the remainder in the parties’ joint checking account.

Mrs. King now claims that the funds contributed by her to the marriage form a part of her separate estate. However, she did not treat those funds as such during the marriage. The undisputed testimony of Mr. King was that Mrs. King had access at all times to the funds in the couple’s joint checking account. Mrs. King herself testified that she occasionally wrote checks on that joint account. Under these facts we are not persuaded that Mrs. King was entitled as a matter of law to a return of these voluntarily contributed funds prior to a determination of the amount of alimony in gross.

Appellant contends that the trial court “erred in failing to take into account the dollar value of a typical housewife such as Mrs. King.” She directs our attention to a newspaper article discussing a study by the American Council of Life Insurance wherein it was concluded that “the average housewife with two (2) children was worth exactly $17,351.88 per year.”

While we would not dispute the value of the performance of household services, we think the factors to be considered by the trial court in determining the amount of the award of alimony in gross are set forth in Hughes v. Hughes, Ala.Civ.App., 362 So.2d 910 (1978), and cases cited therein. Those factors are: the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of the divorce. We think the trial court properly considered these factors and that its decree reflects no abuse of discretion.

The wife’s request for attorney’s fees for this appeal is denied.

This case is affirmed.

AFFIRMED.

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