author: WRIGHT, Presiding Judge.

text:
    Elaine HAMILTON v. STATE of Alabama, Limestone County Department of Pensions and Security.
    Civ. 2548.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.

      W. Clint Brown, Jr. and K. Elise Moss, for Legal Services of North, Central Alabama, Inc., Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is a case relating to termination of parental rights to children.

On January 2, 1980, the Department of Pensions and Security (DPS) filed a petition in the Juvenile Division of the Limestone County District Court seeking permanent custody of Mrs. Elaine Hamilton’s five minor children. The district court granted the petition. Mrs. Hamilton appealed to the circuit court which heard the case de novo. After an ore tenus hearing, the circuit court ordered on March 31, 1980, that permanent custody of the five minor children be vested in the State of Alabama, Department of Pensions and Security. Mrs. Hamilton appeals.

The main issue before this court is the sufficiency of the evidence to support the trial court’s decree.

Mrs. Hamilton’s five minor children were first placed in the temporary custody and under supervision of DPS in October 1978. According to the record, events leading up to that placement were as follows: Mrs. Hamilton came to Alabama from Pennsylvania in July 1978, bringing her five children. Her husband, the father of only one of her children, followed later. DPS became involved with the family in September of 1978 because of difficulty between Mrs. Hamilton and her husband. Investigation revealed that the family was extremely poor. The children were ill-clothed and dirty, living in a residence which was virtually uninhabitable. There were pornographic pictures on the walls. The children did not regularly attend school and had a repulsive odor when they did attend. The residence was that of a man whose wife left him after Mrs. Hamilton came to live there. Mrs. Hamilton’s husband was apparently an alcoholic, and she admitted that marital fights, occasionally violent in nature, had occurred in the presence of the children. DPS sought temporary custody of the children and such custody was granted on October 12, 1978. Shortly after the October 12 hearing, Mrs. Hamilton moved back to Pennsylvania without notice to DPS. She occasionally wrote to the children and sent birthday cards. She also visited with them in their foster home by telephone. DPS had little contact with her during the year following the temporary custody hearing.

Mrs. Hamilton testified before the circuit court that she was presently living in Pennsylvania in small but habitable public housing. She was receiving disability income and welfare and was in the process of divorcing her husband. She introduced a letter from the public housing authority in Pennsylvania advising her that if she regained custody of her children she would be eligible for a four-bedroom unit. Almost all of the evidence presented by DPS related solely to events which had occurred in 1978. As to Mrs. Hamilton’s present circumstances, DPS introduced no evidence tending to contradict her testimony except written reports of Pennsylvania social workers.

Mrs; Hamilton asserts that the admission of these reports over her hearsay objection was error. We agree. We note that the reports were not prepared at the direction of the trial court, but introduced into evidence by DPS. The author of the reports was not available for cross-examination. See, Kelley v. State Department of Pensions and Security, 366 So.2d 736 (Ala.Civ.App.1979). Neither was there any in-court testimony to corroborate the information in the reports. See, Worley v. Jinks, 361 So.2d 1082 (Ala.Civ.App.), writ quashed, 361 So.2d 1089 (Ala.1978). The reports were therefore not competent evidence.

The right to maintain family integrity is a fundamental right protected by the due process standards of the Constitution. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). In recognition of this right, the Alabama courts indulge a presumption that parental custody will be in the best interests of a child. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973). The ultimate consideration in child custody cases is, of course, the welfare of the child. Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ.App.), cert. denied, 358 So.2d 456 (Ala.1978). The prima facie right of a natural parent to custody of his or her child is therefore overcome where it is shown that such custody would be contrary to the child’s best interest. In re Palmer, 387 So.2d 215 (Ala.Civ.App.1980).

Section 12-15-65(e), Code (1975) provides as follows:

If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the child is dependent and in need of care or supervision ... the court may proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case.

In the record before us, the competent evidence presented by DPS relates primarily to events and conditions existing prior to the initial taking of the children in 1978. It sheds little light on what is the court’s present primary concern, that is, the best interests of the children in light of their mother’s present ability to care for them. We recognize the possible cost and difficulty of obtaining such information and presenting it at trial. However, without evidence as to the parent’s present ability to care for them and existing conditions of her home and life style, there can be no “clear and convincing” evidence that the children’s best interests would be served by terminating the parent’s parental rights and placing them in the permanent custody of the State of Alabama. It is evident that the mother intends to live in Pennsylvania. It is therefore necessary to determine what the circumstances of the mother are or would be if the children were returned to her custody in that state. It is also necessary that evidence be presented by the State as to possible alternatives considered and/or what it plans to do with the children when granted permanent custody.

We therefore reverse and remand this cause and direct the trial court to order additional evidence as appropriate under § 12 — 15—65(f), Code (1975), and as above suggested.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Howard L. WHITE, Jr. v. SIKES, KELLY, EDWARDS AND BRYANT, P. C.
    Civ. 2789.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.

      W. Stephen Graves, Montgomery, for appellant.
    Randolph P. Reaves, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a suit for attorney fees. Plaintiff, Sikes, Kelly, Edwards and Bryant, a professional corporation of attorneys, brought suit against a former client for an unpaid fee on February 1,1980. The complaint alleged an unpaid balance of $29,982.54 from an original sum of $45,359.34, representing charges of $40 per hour for legal services and actual expenses incurred in defending defendant in a felony prosecution. The criminal case was tried and defendant acquitted in November 1974. The complaint here was originally in four counts, charging breach of an oral contract, account stated, quantum me-ruit and a promissory note. The latter count was dismissed during trial. The cause went to a jury on the other three counts. Defendant pled accord and satisfaction, written release and statute of limitations. General verdict and judgment was for plaintiff in the amount of $7,500. Motion for new trial and judgment notwithstanding the verdict was denied. Defendant appeals.

The dispositive issue presented is whether plaintiff’s claim is barred by the applicable statute of limitation, whatever that may be.

Our discussion begins with the proposition that the verdict of the jury must have been founded upon the count of quantum meruit. The evidence presented by plaintiff as to the amount due under any of the counts in the complaint was the amount sued for. That evidence was that the fee was for $40 per hour plus expenses and that there were expended 1007.5 hours with expenses in the amount of $5,059.34. The total fee was therefore $45,359.34. There had been payments by defendant totaling $16,876.80. The balance due was therefore $28,482.54. The evidence from plaintiff was further that the amount charged and allegedly agreed to was also reasonable for the services rendered.

The defendant denied agreeing to any fee, assuming that plaintiff accepted his representation because of long friendship and because it was believed by both parties that when he was acquitted, the State would pay the cost of his defense. Defendant made payments to plaintiff on three occasions. First, from recovery of retirement funds when he resigned from his job as purchasing agent for the State in 1974. Second, when he was paid his salary for the time lost from his job in 1975. Third, when he sold his home in February 1977. Subsequent to his acquittal he returned to his job and secured an opinion from the attorney general that the State could pay the cost of his defense. His efforts to secure such payment were unfruitful, though statements of plaintiff’s charges were filed with the State’s finance officer with request for payment.

It is thus evident that the jury did not accept plaintiff’s claim of an express contract with agreed terms for a fee. The evidence as to Count I would not support the verdict returned in the amount of $7,500.

Plaintiff, in support of Count II of the complaint, introduced statements presented to defendant, and by him to the Finance Department of the State. Plaintiff also introduced collection letters from its members to defendant and a letter in response from defendant. There were letters of July 6, 1979, and November 6, 1979, from plaintiff to defendant concerning payment of, or on, the account with the latter threatening possible suit. There was a letter from defendant to plaintiff dated November 20, 1979, referring to plaintiff’s letter and possible discount of the account, but there is no mention in any of the letters as to a balance drawn on the account then allegedly due. Yet the complaint alleges the account was stated on or about November 19, 1979.

An account stated is not founded on the original liability but is a new agreement between parties to an original account that the statement of the account with the balance struck is correct and that the debtor will pay that amount. Martin v. Stotlenborg, 273 Ala. 456, 142 So.2d 257 (1962). It has been said that the obligation under an account stated is essentially the same as if a promissory note had been given for the balance, so that proof need be only to the agreed balance due. Ingalls v. Ingalls Iron Works, 258 F.2d 750 (5th Cir. 1958). The issue of whether under the evidence there was an account stated in this case was for the jury. Since the verdict was for only approximately one-fourth of the alleged stated amount, it cannot be applied to Count II.

We next look to the evidence to determine if it would support the verdict under Count III. We have said Count III is a common count on quantum meruit.

Plaintiff went to great length to produce testimony and exhibits as to time spent, volume of work product and professional ability used in obtaining the acquittal of defendant. Expert testimony was produced that the fee charged was reasonable in relation to time, work and result. Defendant responded with testimony that the time charged was neither necessary nor reasonable and that the time charge of $40 per hour was unreasonably high, but that a charge of $10 to $20 per hour would have been reasonable. Defendant also disputed the time charge. It is therefore evident that there is conflict in the evidence as to the reasonable value of the work and labor of the plaintiff.

It is to be noted that the approximate amount of the verdict may be reached by using one-half of either the hourly charge or the time charged as a multiplier of the other, with deduction of the sum already paid. We can thus only conclude that the verdict of the jury, in an amount some one-fourth of that claimed by plaintiff by contract and stated account, represents a reconciliation of the conflicting evidence applicable to the quantum meruit count.

It has been necessary to decide which count of the complaint the verdict of the jury could be applied to in order to consider the applicable statute of limitation.

It is established that damages for the reasonable value of services rendered under an implied contract, the terms of which were not fixed by the parties, is merely an open account. Suit thereon is subject to be barred after three years under the provisions of § 6-2-37, Code (1975). Humphrey v. Boschung, 47 Ala.App. 310, 253 So.2d 760 (1970); Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967). This rule is applicable to Count III of plaintiff’s complaint.

However, § 6-2-16 provides that a partial payment made on a debt by the debtor before the bar is complete removes the bar of the statute and begins it anew. Howard v. Pritchett, 207 Ala. 415, 92 So. 782 (1922). It is undisputed in the evidence that defendant made a last payment on the account with plaintiff in the amount of $1,500 at the time of the sale of his home on February 18, 1977. The statute had been running since the last payment in 1976. The bar of statute was not complete on February 18, 1977. The payment on that date began the statute anew. This action was filed February 1, 1980. It was thus timely brought within three years of the last payment.

The remaining issue presented and briefly argued in defendant’s brief is: “Did the cancellation and release signed by plaintiff Sikes operate to extinguish defendant’s obligation to plaintiff?”

This issue is based upon exhibit and oral testimony that on February 18, 1977, Stanley B. Sikes executed a written instrument entitled “Individual Cancellation and Release.” The instrument states that the debt secured by a mortgage dated September 10, 1975, executed by defendant White has been paid in full and is cancelled, satisfied and released. There was testimony that the debt referred to in the instrument was the same debt claimed in the present suit. Plaintiff relies upon the authority, § 8-1-23, Code (1975), in contending that the instrument operated as a full release of the indebtedness claimed in each count of the complaint, and the jury should havé been so instructed.

However, defendant fails to consider extensive oral evidence admitted without objection that the instrument was executed by plaintiff solely to accommodate defendant so that he could sell his home free of the lien of plaintiff’s mortgage. It was shown that defendant was able thereafter to sell his home and paid from the net proceeds of the sale the sum of $1,500 to plaintiff on the account. Defendant did not deny in his testimony that the intent and purpose of the execution of the release was as stated by plaintiff, and not as a release of the debt.

It appears to this court that the evidence presented raised an issue of fact for the jury as to the intent of the parties in the execution of the instrument. The issue presented in brief is an issue of law. The requested charge presented to the trial court was couched in the words of the statute and if given would have been in effect an affirmative charge in favor of defendant on the factual issue of whether there was an intent to release the debt. The court did not err in refusing it.

Finding no basis for reversal in the issues presented on appeal, the verdict and judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SCRUGGS, Retired Circuit Judge.

text:
    W. D. McCOY, Jr. and Leonard Ray Hardy v. Ishmael WALKER and Mary Davidson.
    Civ. 2738.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Bert W. Rice of Maxwell & Rice, Atmore, for appellants.
   SCRUGGS, Retired Circuit Judge.

This case concerns the common-law dedication of a public' way.

McCoy’s farm was transected by an interstate highway in 1964, with an eight-acre tract remaining north of the highway. Since his existing method of entry to that field was eliminated by the highway, in 1964 McCoy and his tenant cleared bushes from a fifteen-foot strip of land (strip) running north from his small tract to a public road, and they also filled some holes with gravel. None of the parties owned that strip. He and his tenant thereafter used the road to gain access to his eight-acre field for farming purposes. That use was without significant interference until in April 1977, when Walker enclosed the strip by a fence and planted it in soybeans. A fertilizer truck had already spread fertilizer on McCoy’s field. McCoy and his tenant sought a permanent injunction against blocking the strip and also desired consequential damages.

A public way may be established by many methods, some of which being by the delivery and acceptance of a conveyance, by condemnation, by other statutory proceedings such as dedication, by prescription whereby the way is used by the public for at least twenty years, and, lastly, by a common-law dedication. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980); Powell v. Hopkins, 288 Ala. 466 at 472, 262 So.2d 289 at 294 (1972).

McCoy concedes that the strip could have become a public road only through a common-law dedication. A dedication under the common law consisted of an intent by the owner to dedicate the property and an acceptance by the public or by some authorized person or body of persons acting in its behalf; and, in that regard public acceptance by public use may be shown. Hall v. Polk, 363 So.2d 300 (Ala.1978); Trustees of Howard College v. McNabb, 288 Ala. 564 at 571, 263 So.2d 664 at 670 (1972); Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924).

Here, the only problem is over acceptance and McCoy contends that their use of this strip for ingress and egress to his eight acres constituted adequate evidence of the public acceptance of the strip. We disagree. The only use disclosed by the evidence was either by McCoy, his tenant or by the fertilizer truck. All of the evidence upon the issue has been previously detailed. It was inadequate proof of acceptance. The evidence rather indicates a private utilization of the strip for a limited purpose, farming, by only three people without any specifics as to how often they traveled over it. That could hardly be characterized as public acceptance by its general use by the public. Parker v. Fuller, 248 Ala. 457, 28 So.2d 207 (1946).

Since the strip was not dedicated as a public way according to the common law, McCoy and his tenant, the plaintiffs, could only have a cause of action against the landowners who obstructed it if the plaintiffs had acquired some personal private right, title, claim or interest in and to the strip, or its use. This they did not possess. The plaintiffs’ recovery of any of the relief sought would have to be founded upon their own legal right to use the strip and could not be based exclusively upon any weakness in the defendants’ ownership of it. Having shown no lawful right of use on their behalf, they could not recover from the defendants for fencing in and cultivating the strip.

Accordingly, we find no fault in the action of the trial court as to any issue raised, and we affirm.

The foregoing opinion was prepared by retired circuit judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    John YAKELY v. Joe STEWART.
    Civ. 2890.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.

      John S. Casey, Heflin, for appellant.
    Charles Ned Wright, Wedowee, for appel-lee.
   HOLMES, Judge.

The plaintiff sued the defendant for defendant’s failure to pay for the construction of a house. The defendant counterclaimed, alleging the house was not completed per the parties’ agreement.

After an ore tenus hearing the trial court entered judgment for the plaintiff on his claim in the amount of $6,750. The trial court also entered judgment for defendant on his counterclaim in the amount of $1,200.

The defendant, through able and distinguished counsel, appeals, contending the trial court’s action is contrary to the great weight and preponderance of the evidence. We find the evidence supports the trial court’s action and affirm.

It is axiomatic that conclusions and the decree rendered by the lower court when the case is heard ore tenus have the force and effect of a jury verdict and cannot be disturbed by an appellate court unless palpably wrong. Thompson v. Mitchell, 337 So.2d 1317 (Ala.1976); 2A Ala. Digest Appeal & Error key 1008.1(1).

This court has carefully reviewed the record in this case. We do not deem it necessary or prudent to set out in detail the supporting facts.

We do note the following supportive of the trial court’s decree.

The plaintiff’s amended complaint demanded judgment in the amount of $6,750. There is evidence as revealed by the record that the plaintiff incurred expenses in the construction of defendant’s home of over $11,200. There is further evidence that the defendant only paid to plaintiff approximately $4,400.

This evidence alone is, to this court, supportive of the trial court’s judgment in favor of the plaintiff.

While the evidence regarding the counterclaim is not a paragon of clarity there is evidence that the defendant incurred approximately $1,210 of expenses due to faulty workmanship on the part of plaintiff. However, there is some evidence that this figure would not exceed $800. In any event, in view of the above, we find the $1,200 judgment on the counterclaim to be supported by the evidence.

We would be remiss in not commenting, in deference to able counsel’s contention as contained in his excellent brief, that there is evidence which would support different results and amounts than those found by the learned trial court. However, it is incumbent upon the trial court to resolve conflicting and confusing testimony. Hover v. Whittaker-Warren Agency, 56 Ala.App. 255, 321 So.2d 213 (1975).

Without, hopefully, unduly lengthening this opinion we quote the following from Hover v. Whittaker-Warren Agency, supra, 321 So.2d at 214:

It is appropriate to quote what this court said in American Home Building & Loan Ass’n v. Long, 24 Ala.App. 34, 129 So. 793:
“To hold in line with the contention of appellant would in effect necessitate a ruling by this court that the judgment so rendered is manifestly and palpably against the evidence in this case, and that the preponderance of the evidence is decidedly adverse to the judgment pronounced and entered. This we cannot do under the general and well-settled principle of law that the verdict of a jury, or judgment by the court upon a trial without the intervention of a jury, should not be disturbed unless the adjudication reached below is far afield from the evidence and the law applicable thereto. A rule of this import is declared in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. The rule therein stated has been approved and followed by innumerable decisions of the appellate courts of this state.”

The case of Cobb v. Malone, supra, was reaffirmed by the Supreme Court on September 25, 1975, in Hubbard Bros. Construction Co. v. Halstead, 294 Ala. 688, 321 So.2d 169. (Emphasis supplied.)

The case is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte COLONIAL LIFE & ACCIDENT INSURANCE COMPANY. (Re Arnold McKINLEY v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY).
    Civ. 2924.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    David Scott Wright of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for petitioner.
    Kenneth Cooper, Bay Minette, for respondent.
   PER CURIAM.

This is a mandamus proceeding challenging the authority of a trial court to set aside a summary judgment more than ninety (90) days after the filing of an application for rehearing (filed within 30 days of the summary judgment). Stated differently, does the ninety (90) days limitation of ARCP rule 59.1 apply to an application for rehearing of the granting of a summary judgment so as to deny the trial court the jurisdiction to rule on the motion?

Post trial motions filed within 30 days of the judgment have generally been held to be ARCP rule 59 motions subject to time limitation of rule 59.1. Holt v. First National Bank of Mobile, 372 So.2d 3 (Ala.1979) (motion to set aside judgments dismissing the action treated as rule 59 motion subject to rule 59.1); Cleveland v. Hare, 369 So.2d 1226 (Ala.1979) (motion for reconsideration of granting of summary judgment treated as rule 59 motion subject to rule 59.1). We hold that this application for rehearing was a rule 59 motion subject to application of rule 59.1. We decline to follow respondent’s invitation to treat the motion as a motion for relief under ARCP rule 60(b) on authority of Simmons v. Simmons, 390 So.2d 622 (Ala.Civ.App.), cert. denied, 390 So.2d 624 (Ala.1980) and Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.App.1978), cert. denied, 365 So.2d 985 (Ala.1979). Therefore, the trial court lacked jurisdiction to grant relief from the summary judgment. Thompson v. Keith, 365 So.2d 971 (Ala.1979).

The petition for mandamus is granted unless the trial court within 14 days vacates its order of July 1, 1981, which set aside the summary judgment order of March 5, 1981.

MANDAMUS GRANTED CONDITIONALLY.

All Judges concur.


text:
    Alton Doran ELLIOTT, Jr. v. Eleanor Anne Pollard ELLIOTT.
    Civ. 2925.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.

      L. Tennent Lee, III of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellant.
    M. H. Lanier and E. Cutter Hughes, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The husband has appealed and contends that the trial court erred in awarding all of the household furniture and effects to the wife, in ordering the payment of certain indebtednesses from the sales proceeds of their residence and in limiting the duration of the wife’s periodic alimony payments to the husband.

Each of those issues was a matter which was within the sound judicial discretion of the trial court, whose judgment is presumed to be factually correct upon appeal and will not be altered by this court if the judgment was supported by legal evidence in the ore terms trial before that court unless the judgment is unjust or palpably wrong. Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980); Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977); Nix v. Nix, 348 So.2d 802 (Ala.Civ.App.1977). We are required to review this case under those legal precepts.

Generally, as to the property division, the trial court ordered that the home of the parties be sold, that certain debts be paid from the sale proceeds, and that the balance of those proceeds be divided equally between the parties, with the evidence indicating that each would receive a net of approximately $63,000 therefrom. The house was constructed upon a lot given to the parties by the wife’s mother, the lot presently having an appraised value of $40,-000. The wife’s father made available $40,-000 to them and they borrowed an additional $40,000 to construct the home.

The court awarded the furniture to the wife and found that “substantially all of the household furniture and effects were gifts from the plaintiff’s (wife’s) parents or acquired with money that plaintiff (wife) received as beneficiary of life insurance policies upon the death of her father .... ”

Outside of the house and furniture, the ownership of the balance of the assets belonging to either party was not disturbed by the judgment. Hence, each party retained the same right, title, claim or interest therein which they already possessed. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980). Therefore, the husband was left with the following undistributed assets: an office building which he testified was worth between $30,000 and $50,000, his I.R.A. account of $11,000, mutual funds of $11,000 and his one-half interest in a television cable device which prevents breaking such cables during their installation, as to which he has sought a patent. We cannot consider a fact that was not in evidence before the trial court, namely that after the rendition of the judgment the husband sold the office building for $90,000 to the television cable company which is owned by one of the wife’s trusts. Wilger v. State Dept. of Pensions and Security, 390 So.2d 656 (Ala.Civ.App.1980).

As to property not disturbed by the judgment, the wife retained her automobile as to which she must pay an outstanding debt against it of $8,000. She also keeps her interest as a beneficiary in two trusts which were established for her benefit by her father. In one of the trusts she has only a life estate, and, in the other, some of its corpus will be distributed to her if a named third party predeceases her. In the meantime, distribution of funds from both trusts is made to her which, over the past four years, has averaged a total of $44,000 per year.

Specifically as to the furniture, she testified to and filed itemized lists of furniture and she detailed its sources as to individual pieces of furniture as being almost entirely received either as gifts from her parents, or as purchases by her from life insurance proceeds received by her upon her father’s death or from her trust income. The husband did not, with any degree of specificity, dispute her evidence, but he generally asserted that some of the furniture was purchased from joint funds and that none of it had been given to them by the wife’s family. Admittedly, the evidence was in conflict as to the source of the furniture. The wife was granted the custody of the youngest daughter, the only child who has not reached majority age. The furniture was appraised at $14,225.

Even if we assume that section 30-2-51 of the Code of Alabama of 1975 applies as to these household goods, we find no trial court abuse of discretion in awarding all of it to the wife. In our review we must look at the whole picture, not just at one item. While the parties did not receive equal parts of either the total property or of the furniture, the division of property as a whole was not inequitable. Keleher v. Keleher, supra; Cobb v. Cobb, supra; Nix v. Nix, supra.

In addition to the balance due on the house mortgage, the trial court’s judgment ordered the payment of three other debts from the sale proceeds of the jointly owned home of the parties. One of those debts of over $15,000 was a note of the husband to his employer, the television cable company which is wholly owned by the trust under which the wife is the sole beneficiary during her lifetime. The second note was the husband’s to a bank for almost $12,500. The third debt was the wife’s note to a bank for $6,000. In his brief the husband admits that the evidence is clear that the first two of those obligations were incurred by the parties. There was evidence that the $6,000 third debt was incurred by the wife to pay some of the school tuition for some of the children, to enable the parties to take a daughter to Washington to school and for the wife’s trip to Europe.

Apparently the husband did not owe any other debts except those which will be satisfied when the house is sold. The wife did owe some accounts as well as the automobile note, the $6,000 note and her portion of the house mortgage indebtedness. Some weight must be given to the fact that, in effect, the wife was ordered by judgment to provide for the support and maintenance of the youngest daughter. Additionally, she is continuing to provide funds to meet the college expenses of an adult daughter.

The trial court did not abuse its discretion in ordering the payment of the enumerated debts from the funds which will be received when the house is sold.

Our alimony statutes now extend to the husband the same rights as to alimony as were previously granted exclusively to the wife. Ethridge v. Ethridge, 379 So.2d 87 (Ala.Civ.App.), cert. denied, 379 So.2d 89 (Ala.1979).

The factors which may be used in determining the amount and duration of an alimony award to either spouse include the future earning prospects of the parties, their training, education, experience, and job or professional history and earning record, their ages, health, station in life, the length of the marriage, the misconduct of the parties, if any, and any other matter which would be material to the issues and of assistance to the court in reaching a just and fair decision upon the matter in controversy. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980).

With regard to a husband’s award of alimony, the Florida court in Pfohl v. Pfohl, 345 So.2d 371 (Fla.App.1977), aptly stated the following:

Quite properly, these are criteria of the broadest nature, not susceptible to a precise formula automatically translatable into dollars and cents. We are dealing with a tragically human problem which touches peoples’ lives during a period of immense personal crisis. One cannot dispense substantial justice in such explosive cases as if the answer lies in a computer or a rigid rule book. Mathematical exactness is neither possible nor desirable. The trial court of necessity has a wide discretion to apply the established criteria in fashioning a fair and equitable alimony award in the infinite variety of cases which come before it. Absent a showing that the trial court exercised this discretion arbitrarily or unfairly, alimony awards made pursuant to such criteria must be sustained on appeal. ...
Although in most marriages, the husband remains the sole provider of the family, with the wife making the home and raising the children, if any, an increasing number of marriages do not fit this mold. In some marriages, both parties work and jointly support the family, although the degree of support by either party may vary. In others, the wife is the sole support of the family unit with the husband fulfilling some noneconomic role. It is in these nontraditional type marriages where the question of alimony for the husband may arise.

345 So.2d at 375, 376.

In Alabama, the authorization for an alimony award to a husband was occasioned by the equal protection clause of the federal constitution. Presently, the same laws govern both spouses, without any discrimination between the sexes, as to the entitlement to alimony, its amount or its duration.

In the instant case, the husband is forty-eight years of age and enjoys excellent health. He completed three and one-half years of college where his major was in mechanical engineering. The parties married in 1953. The wife worked for only five months during the marriage, while the husband has been constantly employed except for a short period of time while attending college. She is forty-five years of age.

The husband must be esteemed in the cable television field by his peers, for he has served as president and director of the Alabama Cable Association. He holds a class 1 operator license, which qualifies him to be a station engineer. For many years he has very capably and successfully managed the television cable company so owned by one of the wife’s trusts. From 1964, when he became its manager, to the present, that company’s customers have increased from sixty-five to over ninety-four percent of the homes in its franchise area. Financially, he turned this company from a losing venture into a modern going concern which earned a $46,000 profit in 1980. Its assets have dramatically increased. In 1980 his annual salary was $44,000 and he, additionally, received a bonus of $8,000.

Much money was expended in each recent year on personal or family living expenses, but the husband testified that his personal expenses were most frugal under the circumstances when compared with what he considered to be great extravagances by his wife.

The testimony was clear that he would no longer be retained in his capacity as president of the company since the wife desired to bring their youngest son into the business and the son and the father were most incompatible. The wife and her counsel, however, made assurances to the trial court that the husband would be retained as a consultant with the company for one year at a salary or fee of $30,000.

The July 16, 1981 divorce judgment contained the following provisions regarding the husband’s periodic alimony from the wife:

It further appearing to the satisfaction of the court that the defendant is an able-bodied man, in good health, able to work and has been working; that the defendant has been working for several years for TV Cable Company, a business held in trust for the plaintiff, that he has been adequately and substantially paid for his services, but it further appearing to the satisfaction of the court that in the event that he is discharged he should have a reasonable time to locate another job and in the event he is unemployed he is entitled to periodic alimony as hereinafter provided....
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event the defendant is unemployed at any time within the next three years from the date of this decree, the plaintiff shall pay the defendant periodic monthly payments of alimony, during any monthly period of unemployment, of One Thousand Two Hundred Fifty ($1,250.00) Dollars per month, but said periodic monthly payments of alimony shall not exceed a total of $30,000.00 nor shall any monthly alimony payment be payable after three years from the date of this decree.

The husband has gone outside of the record in an attempt to show that he was fired from his position with his employer on August 1, 1981, and he contends that the trial court was misled and, consequently, fashioned its alimony judgment in strict reliance upon the assurances made to the trial court of his retention as a consultant for one year. Again, we cannot consider such extraneous matter. Wilger v. Dept. of Pensions and Security, supra. If the husband had a complaint in that regard, it was a matter that could have been readily called to the attention of the trial court by an appropriate post-trial motion, for only fourteen days elapsed between the date of the judgment and his alleged firing. No such motion was filed. We do not know and, outside of a pure guess, we cannot ascertain from the record before us that the judgment was so framed because of any such assurances.

The amount of the award of periodic alimony, which is not contested, and the duration of the required payments to the husband allow an adequate, ample and reasonable length of time and opportunity for him to obtain suitable permanent employment. Clearly, he is an experienced and most capable cable television system executive. The limited time for making the alimony payments possibly prevents unnecessary and prolonged economic dependence upon an ex wife by a former spouse who is, without question, capable of supporting himself. We do not discern from his testimony that the husband desires, or even intimates, that he is entitled to a lifetime of alimony from the wife.

The duration of his entitlement to periodic alimony is reasonable under the presented evidence and it was a matter within the sound discretion of the trial court. Keleher v. Keleher, supra. The judgment of the circuit court was not palpably wrong and no abuse of judicial discretion occurred in that regard.

We would be remiss if we failed to commend the attorneys for both parties for favoring this court with exceptionally scholarly, excellent and most helpful briefs.

We affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the 1975 Code of Alabama and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Joseph Neville WIER v. Sheila Gant WIER.
    Civ. 2937.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.

      A. Allen Ramsey of Engel, Hairston, Moses & Johanson, Birmingham, for appellant.
    Douglas P. Corretti of Corretti & New-som, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties were granted a divorce on November 18, 1971. The present appeal arises from a petition to modify which the husband filed on June 11, 1981. In his petition the husband asked that those provisions of the original divorce decree which provided for him to bear the costs of paying educational expenses for his adult children should be voided. Further, the husband asked that the alimony provisions of the decree be modified due to a substantial change of circumstances.

The 1971 divorce decree provided that the husband was to pay the wife $500.00 a month as alimony. Further, he was ordered to pay $200.00 a month per child as child support. At that time he had three children whom he was ordered to support. The decree also provided that the husband was to pay the cost of a college education for his two youngest children at a state-supported university. If the child lived away from home while attending college, then the husband could discontinue child support payments to the wife.

In October 1977 the wife filed a petition for rule nisi on the ground that the husband was in arrears in payments due under the final decree. After a hearing the husband was found to be in arrears in the amount of $5,525.00. Very shortly thereafter the husband filed a petition for reorganization of his debts under Chapter 13 in the Bankruptcy Court.

At the time of his Chapter 13 petition, the husband’s only source of income was from the sale of his food brokerage business. Under the sales agreement the husband was to receive a portion of the income of the business for ten years. That ten year period ends in 1987. Since 1977 this income has been paid into Bankruptcy Court. The court has made all payments to the wife under the decree since 1978.

The husband has subsequently become totally disabled. He now receives social security of $500.00 a month as disability. His youngest daughter, who is eighteen, also receives a check for $251.00 for his disability. She will continue to receive these checks until she reaches majority age or finishes college.

After a hearing on the husband’s petition for modification, the court relieved the husband of any further obligation to support his son, who was then age twenty-four. The court, however, upheld that portion of the original decree ordering the husband to pay for his daughter’s college education. The husband was required to finance the daughter’s education until the daughter reached age twenty-three, got married, or finished college, whichever came first. The court further found that the amount still due of the judgment subject to the claim in Bankruptcy Court was $2,015.00. Finally, the court declined to modify the husband’s alimony payments. From this order the husband perfected a timely appeal to this court.

The husband raises three issues in this appeal. First, he contends that a parent is not liable to pay educational expenses for .an adult child. Second, he contends that he is due credit against future alimony and child support payments for the educational expense payments he has made for his adult son. Finally, he argues that the court clearly erred in refusing to modify his alimony payments.

In addressing the first issue, it is clear that, absent an agreement to that effect, a parent is under no legal obligation to support or educate an adult child. Holmes v. Holmes, 410 So.2d 115 (Ala.Civ.App.1982); Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980). In the present case the parties never entered into an agreement whereby the husband agreed to pay for his children’s education. The trial court, therefore, could not legally order the husband to support or pay educational expenses for his adult children. As a result, that portion of the judgment ordering the husband to pay child support or educational expenses for his daughter after she reaches majority age is hereby reversed.

The husband next argues that since that portion of the original decree ordering him to pay child support for an adult child is void, he should be given credit against future alimony and child support payments. He bases this argument on the fact that he has made child support payments for his son, who had reached age nineteen in September 1975. Since these payments could not legally be required, the husband asks that he be given credit for them.

We have held that a trial court, in determining an arrearage in child support and alimony, can give a husband credit for amounts designated as child support for periods of time during which the child is no longer dependent on him for support. McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978); Nabors v. Nabors, 354 So.2d 277 (Ala.Civ.App.1978). In these cases the credits allowed, if any, were assessed against arrearages in child support. We find no support for allowing a credit against future alimony and child support payments. As we have stated previously, in this case the husband is relieved of his duty to support his children, each of whom has reached the age of majority. He is obligated in the future merely for the payment of alimony to the wife for her support. Allowing a credit against future alimony payments would in effect deprive the wife of that support. We cannot condone such a result.

As against an amount in arrearage, we have stated that the award or denial of a credit is within the sound discretion of the trial judge, and will not be reversed absent a showing of plain and palpable abuse of that discretion. Sutton v. Sutton, 359 So.2d 392 (Ala.Civ.App.1978). In this case we do not think that the trial court abused its discretion in disallowing a credit for the amounts paid by the husband for the support and education of the children after they reached the age of majority. The husband did not contest the support provisions of the 1971 decree until he filed the present petition. To find now that the husband must be reimbursed for money paid by him and expended by the wife for the children’s education would be inequitable. While the husband was not legally obligated to finance his children’s education, neither was the wife so obligated. Allowing the husband a credit for those amounts would place the burden on the wife to pay back those amounts out of her future alimony payments, and in effect require the wife to retroactively bear the burden of putting the children through school. Such is not the intent of the case law in this area.

We do, however, find that the court erred in not granting the husband a credit for child support payments made for the son during the period of November 1980 to June 1981. The wife testified that the son did not live at home during this period, was not in school, and was working. It is clear that under the original decree of divorce the husband was relieved of any further duty of support at this point. The wife should not be able to retain the benefits of child support payments made during a period when the child was self-supporting and not living at home. See Nabors v. Nabors, supra. As a result, we reverse this part of the judgment and remand it to the trial court to enter a credit for the amounts paid during this period of time against the ar-rearage determined to be owing.

Finally the husband contends that the trial court erred in refusing to modify the alimony payments due to a substantial change in circumstances. Modification of alimony based upon changed circumstances is within the discretion of the' trial court and will not be reversed unless plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). We cannot find such an abuse of discretion as to require reversal.

The husband is now on disability and is unable to work. He receives, however, $500.00 a month social security. Further, he sold his business and is to receive a portion of income until 1987. This income is paid into Bankruptcy Court. His debts, including alimony, are being paid by the court. So far the income from the sale of his business has been sufficient to pay his debts and alimony.

We cannot find such a change of circumstances as to warrant reversal. This portion of the judgment is affirmed. We would note, however, that the testimony supports a conclusion that the husband’s future income will substantially decline. Should this occur, the husband could at that time petition the court for a modification of his periodic alimony payments.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., and HOLMES, J„ concur.


text:
    John W. BOLES and Elsie Boles v. MIDLAND GUARDIAN COMPANY.
    Civ. 2944.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Jane DeLissovoy of Legal Services Corporation of Alabama, Montgomery, for appellant.
    Jock M. Smith, Tuskegee, for appellee.
   WRIGHT, Presiding Judge.

This is an action in detinue.

In January 1981, Midland Guardian Company (Midland) filed suit against John W. and Elsie Boles in Macon County Circuit Court. Midland sought possession of a mobile home and damages for its alleged wrongful detention. A pre-judgment writ of seizure was quashed. Defendants answered and pled the non-qualification of Midland, a foreign corporation, to do business in Alabama. After an ore tenus hearing, the court awarded Midland possession of the mobile home and damages for detention in the amount of $2,000. From a denial of their motion to alter, amend or vacate the judgment, Mr. and Mrs. Boles appeal to this court.

The record reveals the following pertinent facts. In July 1973, Mr. and Mrs. Boles purchased a used mobile home from the lot of Mustang Mobile Homes of Alabama, Inc. (Mustang), an Alabama corporation. The home was used as their residence in Macon County, Alabama. The mobile home had been previously purchased by David and Joann Robinson, who had purchased it new from Mustang. Financing for the Robinsons had been arranged with Midland, a foreign corporation not qualified to do business in Alabama. Upon the Rob-insons’ default, Midland repossessed the mobile home and it was returned to the lot at Mustang to be resold.

Before the purchase Midland’s office in Pensacola, Florida, had been consulted by phone. The credit of the Boleses was checked and the purchase approved. The Boleses signed a document entitled “Assumption of Liability” at the lot of Mustang. According to its terms Mr. and Mrs. Boles acquired in the home the rights previously held by the Robinsons and assumed liability under the terms of the Robinsons’ contract. The Assumption of Liability, which by its terms incorporated the Credit Sale Contract and Security Agreement previously signed by the Robinsons was sent to Midland’s offices in Pensacola, Florida. Payments were made irregularly to Midland in Florida until this suit was filed in February 1981.

The first issue to be determined by this court is whether Midland, a foreign corporation not qualified to do business in Alabama, may sue in detinue in an Alabama court. We hold that it may.

However, the question arises whether or not a non-qualified foreign corporation, illegally doing business in Alabama, may prosecute to judgment an action in detinue which proof necessitates reliance upon a contract either made in Alabama or to be performed in Alabama.

Defendants contend that Midland, at the time of entering into the contract with them, was a foreign corporation not qualified to do business in Alabama, illegally doing business contrary to the provisions of Ala.Const., art. XII, § 232, and subject to the provisions of § 10-2A-247, Code (1975). Those pertinent provisions are as follows:

No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association....

Ala.Const., art. XII, § 232

All contracts or agreements made or entered into in this state by foreign corporations which have not obtained a certificate of authority to transact business in this state shall be held void at the action of such foreign corporation or any person claiming through or under such foreign corporation by virtue of said void contract or agreement.. ..

Section 10-2A-247, Code (1975).

Plaintiff responds by saying that it was not in violation of the Constitution and statutes because: (1) It was not doing business in Alabama; (2) The contract was executed when it signed at its offices in Florida; (3) An action in detinue is an action ex delicto, not ex contractu and not prohibited to a non-qualified corporation.

We will address plaintiff’s last contention first. Plaintiff is correct in contending that an action in detinue is classified as an action ex delicto as opposed to an action ex contractu. Gossett v. Morrow, 187 Ala. 387, 65 So. 826 (1914). This court in the case of Trax, Inc. v. Tidmore, 349 So.2d 597 (Ala.Civ.App.1977), reversed the dismissal of a detinue action because the action was brought by a non-qualified foreign corporation. Our reversal was based upon the distinction noted in Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969) that the statutes prohibit only suits founded upon contracts by non-qualified corporations. The issue of whether the suit in Trax, though in detinue, depended for proof upon a contract made or to be performed in Alabama was not reached since' we had before us only the propriety of a dismissal before trial.

It is to be noted that the supreme court in the cases of Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980), and Jones held that actions ex delicto are not prohibited under the statute when brought by a non-qualified foreign corporation. The Jones case was an action for conversion by the foreign corporate owner of automobiles after the cancellation of a lease contract. The court stated that the statutes did not prevent the recovery of possession of property where the action did not involve the enforcement of a contract. In Shiloh, the action was for fraud in procuring of a contract. The court again stated that fraud was an action ex delicto. Such claim lies independently of the existence of a valid contract and is not an action upon a contract.

In this case, we look to what the supreme court said in C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1972). In that case there was a bill of complaint filed by a non-qualified foreign corporation, charging a former employee with a conspiracy to procure breaches of non-competition clauses in its agents’ contracts. Injunctive relief and damages were sought.

The court examined the complaint to determine whether it sounded in contract or in tort, recognizing that its allegations sounded in tort. However, as the court stated in Shiloh when referring to the C & C Products decision, “The gist of this court’s holding was that, any way you slice it, the action was ex contractu.” Therefore the court would not permit the prosecution of the action.

The statement in Shiloh also sums up the facts of this case. Though the action is in detinue, it cannot be proved without depending upon the contract between plaintiff and defendants. The recovery of the mobile home in detinue is impossible without establishing the security interest provided by the contract. At the time of sale of the mobile home and delivery of possession to defendants, title passed. § 7-2-401(2), Code (1975). Thus plaintiff had no title or right to possession (the vital elements of an action in detinue) without depending upon the rights given by the contract. In other words, the action is an enforcement of the rights derived from the contract.

As to plaintiff’s first contention, there can be little question but that Midland, a non-qualified foreign corporation was doing business in this state, not only in the making and performance of this contract, but also in its other activities. The evidence showed Midland to be a corporation organized for the purpose of financing the sale of mobile homes in several states, including Alabama. It does substantial business with dealers in Alabama; at least two of such “dealers” are wholly-owned subsidiaries of Midland. Midland’s representative travels in Alabama visiting the various dealers, purchasing contracts and servicing the accounts which it finances, and its representative writes letters to and visits delinquent debtors. Midland obviously, through counsel or otherwise, repossesses mobile homes in this state and resells them through its dealers, as it did in this case. This transaction was not simply a purchase of paper from a dealer. It was an actual sale by Midland after a repossession from a prior sale in this state and the assumption by the Boleses of the obligations of the prior purchaser. This transaction alone was the doing of business in this state. SAR Manufacturing Co. v. Dumas Brothers Manufacturing Co., 526 F.2d 1283 (5th Cir. 1976); Marcus v. J. R. Watkins Co., 279 Ala. 584, 188 So.2d 543 (1966); King Homes, Inc. v. Roberts, 46 Ala.App. 257, 240 So.2d 679, cert. denied, 286 Ala. 736, 240 So.2d 689 (1970).

It has long been the interpretation of our constitutional and statutory prohibitions of a foreign corporation doing business in this state without lawful qualification that such corporation could not use our courts to enforce its contracts with Alabama citizens. Such interpretation applies whether the contract is void because made in this state under § 10-2A-247 or whether made outside this state. Midland contends its contract is not void because it was not completed until signed and accepted in its office in Florida. There is much factual and legal basis for argument to the contrary. However, in view of its doing business in this state as we have previously shown, whether the contract was made outside the state to be performed in the state or made in the state and void, it is not entitled to enforcement in our courts.

It was said in the case of Alabama Western R.R. Co. v. Talley-Bates Construction Co., 162 Ala. 396, 50 So. 341 (1909), speaking of a contract made outside the state:

The doing of a single act of business, if it be in the exercise of a corporate function, is prohibited. The policy of the Constitution and statute is to protect our citizens against the fraud and imposition of insolvent and unreliable corporations, and to place them in an attitude to be reached by legal process from our courts in favor of citizens having cause of complaint. Foreign corporations may not sue until they put themselves in a position to be sued in domestic courts. (Citation omitted.)

In a subsequent case, Alexander v. Alabama Western R.R. Co., 179 Ala. 480, 60 So. 295 (1912), the supreme court reiterated what it had said in Talley-Bates. By way of explanation it said:

It was not held that the contract was void in the making, nor that at any time it became a mere nullity. It was held only that the Talley-Bates Company, a foreign corporation, could not enforce its contract, nor any rights dependent upon it in the courts of this state. (Emphasis ours.)

We consider that the learned Judge Richard Rives, writing for the court in the case of Lee v. Great Northern Nekoosa Corp., 465 F.2d 1132, 1136 (5th Cir. 1972) and quoting from Citizens’ Nat. Bank v. Buckheit, 14 Ala.App. 511, 71 So. 82, 86 (1916), and citing Alexander and Talley-Bates, stated the law applicable to this case as follows:

Where the contract is to be performed in this state, although not entered into here, and in the performance the nonresident corporation must engage in business in this state, although the contract is valid, the policy of the state, as evidenced by the Constitution and statutes, compels the courts of the state to refuse their aid to such offending corporation in the enforcement of such contract or recovering the benefits accruing thereunder. (Emphasis ours.) (Citations omitted.)

The emphasized statements from Alexander and Citizens Nat. Bank are in accord with the comments of the court in Boulden v. Estey Organ Co., 92 Ala. 182, 9 So. 283 (1890). In that case, the court permitted an action and recovery in detinue because the contract involved was a title retention sale of a piano. The court found the contract illegal and void under the statute but allowed recovery by the seller because it still had title in spite of the void contract. The court said that in such cases the law would leave the parties where it found them and leave the title where they left it. There having been no valid contract passing title from the seller, it remained there and the seller could recover in detinue because it still had title. However, if title had passed under the contract, and delivery made, the seller would be without power to coerce payment, or to repossess the piano.

We conclude that such is the situation in this case. There was no title retention contract here. Midland conveyed title and delivered possession under its contract. At the suit in detinue, the title was in the Boleses. In order to establish right to recovery, Midland must establish either title or an immediate right to possession. Such right to possession could arise only from a construction and enforcement of the contract illegally made. The right to possession was dependent upon and arising from the contract. This action is an enforcement of the contract, “any way you slice it ” and may not be enforced in the courts of this state. Lee, Birmingham Terminal Association, Inc. v. United Produce and Products Equipment Co., 289 Ala. 80, 265 So.2d 863 (1972); Alexander and Talley-Bates.

The parties should have been left as the court found them. The judgment below is reversed and the case is remanded with direction to enter judgment in favor of defendants Boles.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte David R. SERNS. In re State of Alabama v. Maurico Noguera.
    Civ. 2946.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Wade H. Baxley, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a petition for a writ of mandamus. The circumstances surrounding this appeal are highly unusual.

Maurico Noguera was arrested and charged with trafficking in cocaine on January 2,1981. Bail for his release was set at $100,000. Noguera was released on January 23, 1981, after cash in that amount was deposited with the Houston County district court in lieu of an appearance bond. A cashier’s check from David R. Serns, appellant herein, was noted on the criminal fee sheet as the source of the cash deposit. Serns is defendant’s father-in-law. The fee sheet also set out that the cash was received from Jaime Noguera, the defendant’s father, via attorney Wade Baxley. The father signed the appearance bond along with his son. On January 27, 1981, defendant Noguera moved that the district court change the conditions of the January 23 “Order of Release” which prohibited the defendant’s leaving the State of Alabama. The district court granted the motion and modified the “Order of Release” to allow Noguera to live with his wife in Tallahassee, Florida, provided that he report to the district court in person once a week. The district court also granted defendant’s request that the cash bond be deposited in an interest-bearing account with such interest payable to the defendant’s father upon fulfillment of the conditions of the modified “Order of Release.”

Upon defendant’s failure to report weekly in person, a conditional forfeiture of the cash bond was ordered February 23, 1981, along with an “Alias Writ of Arrest.” A final forfeiture for the full amount plus interest accrued on the cash deposit was ordered March 30, 1981. That same day, a motion was filed in the district court asking that the interest earned be paid to the “surety” in the cause of State of Alabama v. Maurico Noguera. David R. Serns, appellant herein, claimed the interest as “surety” of the cash appearance bond on the grounds that “said $100,000 cash deposit came through the offices of David R. Serns, Attorney at Law, North Miami Beach, Florida.” Serns also asserted that the law of Alabama does not provide for forfeiture in excess of the principal sum of the cash bail and that the state is not entitled to recover interest on appearance bonds. The district court denied the motion to pay the interest to Serns on March 30, 1981.

Serns filed a petition for writ of mandamus in the Circuit Court of Houston County on June 9, 1981, some seventy-one days after the district court’s denial of his motion and order of final forfeiture. No appeal was taken. The circuit court denied his petition for writ of mandamus on July 31, 1981. From that order, Serns appeals.

The circuit court stated several grounds for dismissal of Serns’ petition. Among those were:

(9)That, further, the Petitioner, David R. Serns, does not have standing to bring this action as he is not a proper party.
(10) That the Petitioner, David R. Serns, has suffered no property nor personal loss, therefore, he is without standing to complain.
(11) That the Petitioner, David R. Serns, has no standing at all since all bond monies deposited were deposited in the name of Maurico Noguera.

Much emphasis is placed on standing in this case, but we do not find that to be the dispositive issue. If Serns had standing to file a claim for the interest earned on the cash bond, his remedy upon denial of the claim was an appeal to the circuit court within fourteen days. § 12-12-70 Code (1975). Mandamus does not lie where there is an adequate remedy by appeal and cannot be used as a substitute therefor. Echols v. Housing Authority of Auburn, 377 So.2d 952 (Ala.1979).

On the other hand, if Serns did not have standing, he was not a proper party to petition for writ of mandamus, and the circuit court properly dismissed his petition. Mandamus is an extraordinary writ that should be used only under unusual circumstances. Petitioner must show a clear legal right to mandamus and a refusal by the respondent to perform an imperative duty. See, Hess v. Butler, 379 So.2d 1259 (Ala.1980). “An indispensable requirement for mandamus is the presence of a right in the applicant to the thing applied for.” Campbell v. City of Hueytown, 289 Ala. 388, 268 So.2d 3 (1972).

Either way, the order of the circuit court dismissing the petition was correct.

We pretermit the issue of whether the interest earned on the cash bond should be forfeited to the State. That issue is not properly before us at this time.

The State’s request for sanctions under Rule 38, A.R.A.P. is denied.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Nathaniel BRYANT v. Anthony LEE.
    Civ. 2971.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.

      William F. Prendergast, Montgomery, for appellant.
    No Brief for appellee.
   HOLMES, Judge.

Appellant, Nathaniel Bryant, petitioned the Circuit Court of Montgomery County for a writ of habeas corpus. A hearing on the petition was held on September 15, 1981. After hearing the evidence, the trial court denied Bryant’s petition.

Bryant appeals to this court from the denial of his petition for a writ of habeas corpus. We affirm the decision of the trial court.

The record reveals the following: Bryant and his wife were divorced in 1978. The divorce decree, among other things, required Bryant to pay thirty-five dollars each week for the support of the parties’ minor child.

In March, 1981 Bryant’s former wife instituted contempt proceedings against him. She alleged that as of March 27, 1981 Bryant’s child support payments were $4,400 in arrears. A hearing was held on April 22, 1981 for the purpose of determining whether Bryant should be held in contempt for failure to pay child support. After considering the evidence presented at the hearing, the trial court found Bryant was $4,415 in arrears and ordered him to pay $150 per month until the arrearage was eliminated. The court stated that it would review the decree some four months later to determine if compliance was being effected.

On August 26, 1981 the trial court reviewed its April 22 order to determine if there had been compliance. The trial court found that Bryant had not complied with the April 22 order and ordered him confined to jail and subsequently released into the custody of the Montgomery County Restitution Center. While at the Restitution Center Bryant would be allowed to continue to work and make current payments of child support and additional sums that would be applied toward the reduction of his arrear-age.

In September, 1981 Bryant petitioned the trial court for a writ of habeas corpus. In support of his petition Bryant alleged that he was being held in the custody of the Restitution Center for contempt of court in failing to pay child support. He further alleged that his income and assets were insufficient to satisfy the child support ar-rearage and he was therefore unable to purge himself of contempt. Consequently, he contended that he was being held in violation of the Constitution of the United States and the Constitution of the State of Alabama.

A hearing on the petition was held on September 15, 1981. Bryant was the only witness at the hearing and his testimony was generally limited to his present income and assets and his previous child support payment record. The trial court, after hearing the evidence, denied appellant’s petition. In so doing it noted in the order that involvement at the Restitution Center was voluntary in nature.

Appellant Bryant appeals to this court from the denial of his petition. The issue before us is whether the trial court abused its discretion in denying the habeas corpus petition. We hold that it did not and affirm.

The court of appeals in Phillips v. State, 40 Ala.App. 698, 701, 122 So.2d 551, 553 (1960), described the writ of habeas corpus as “a high prerogative writ of ancient origin designed to obtain immediate relief and release from unlawful imprisonment.” See Stinson v. State, 43 Ala.App. 257, 188 So.2d 287, cert. denied, 279 Ala. 691, 188 So.2d 288 (1966); Shuttlesworth v. State, 42 Ala.App. 34, 151 So.2d 734 (1962), cert. denied, 275 Ala. 698, 151 So.2d 738 (1963). The writ will not lie unless the appellant’s liberty is actually restrained. Williams v. State, 42 Ala.App. 140, 155 So.2d 322, cert. denied, 275 Ala. 702, 155 So.2d 323 (1963).

It is apparent from the record and order that, in this case, appellant’s liberty was not restrained. We reach this conclusion based upon statements made at the hearing relating to the voluntariness of participation with the Restitution Center along with the trial court’s statements in its order denying appellant’s petition that appellant’s participation was voluntary. We note also that appellant offered no evidence that his participation was other than voluntary and does not appear to contend otherwise. It is axiomatic that if appellant was at the Restitution Center voluntarily and participated in its program voluntarily, appellant’s liberty was not restrained.

Our conclusion that Bryant was not deprived of his liberty is not changed because the contempt order of August 26 specifically required the appellant to be confined to jail and then released into the custody of the Restitution Center. Though the record does not specifically so state, it is apparent, in light of the above discussion, that some agreement regarding the Restitution Center was reached with appellant before the contempt order was issued.

In summary, we hold that appellant Bryant’s participation with the Restitution Center was voluntary. Consequently, his liberty was not being restrained. Therefore, a writ of habeas corpus does not lie and the trial court properly so held.

This case is due to be affirmed.

AFFIRMED.

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


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    TONGUE, BROOKS & COMPANY, INC. v. Robert J. WALSER.
    Civ. 2973.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.

      J. Donald Banks of Loveless & Banks, Mobile, for appellant.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant on a foreign judgment. After an ore ten us hearing, the trial court entered judgment for the defendant. The plaintiff appeals and we reverse and remand.

The plaintiff, through able counsel, in effect contends the trial court erred in allowing the defendant to attack the foreign judgment.

Viewing the record with the attendant presumptions the following is revealed:

The instant action arose out of a bill for insurance premiums owed by a corporation, Polk and Walser Contractors, Inc., to the plaintiff, Tongue, Brooks & Company, Inc. In 1978, the plaintiff sued Charles Polk individually in Baldwin County Circuit Court for approximately $11,000, the entire debt owed by Polk and Walser Contractors to the plaintiff. That action was settled out of court in 1979 when Polk agreed to pay the plaintiff $5,000 as payment for the debt owed by the Polk and Walser corporation.

Thereafter, in April, 1980, the plaintiff obtained a judgment in the Superior Court of Baltimore City, Maryland, against defendant Robert Walser for apparently the same debt owed by Polk and Walser Contractors. The amount of the judgment was $9,842. The Maryland judgment was never satisfied. In July, 1980, the plaintiff sued upon the foreign judgment in Baldwin County Circuit Court.

At the trial on the plaintiff’s claim, Charles Polk and his attorney testified on behalf of the defendant, stating that the 1979 settlement between Polk and the plaintiff was considered to be full payment of any debt owed by Polk and Walser Contractors to the plaintiff either as a corporation or individually. Further, the defendant entered into evidence a check in the amount of $5,500 drawn by Polk and made payable to his attorney. A notation on the check read: “Full Settlement-payment to Tongue, Brooks by Polk Walser Contractors, Inc.”

Based on this evidence, the defendant contends that, having elected to sue Polk individually on the Polk and Walser debt and then settling with Polk for the entire debt, the plaintiff was barred from suing upon the Maryland judgment obtained subsequent to this settlement. We disagree.

The judgment of a court of a sister state having jurisdiction of subject and persons is due full faith and credit in Alabama. U.S.Const., art. 4, § 1; Hester v. Clinic Masters, Inc., 371 So.2d 915 (Ala.Civ.App.), cert. denied, 371 So.2d 917 (Ala.1979). Full faith and credit prohibits an inquiry into the merits of the original cause of action. Forbes v. Davies, 187 Ala. 71, 65 So. 516 (1914).

The argument made by the defendant would require us to examine the merits of the action upon which the Maryland judgment was rendered. Specifically, the Maryland judgment establishes that the defendant is indebted to the plaintiff for $9,842. The defendant claims he is not indebted to the plaintiff because of the prior settlement between the plaintiff and Polk on allegedly the same debt which was the subject of the Maryland judgment.

The defendant’s contention in this action clearly goes to the merits of the cause of action decided by the Maryland court. As indicated above, Alabama must give full faith and credit to the Maryland judgment if the Maryland court had proper jurisdiction of the parties and subject matter involved in the claim. Thus, we are prohibited from considering a defense which goes to the merits of the foreign judgment. Our holding should not be understood as preventing the defendant, upon remand, from presenting any proper defenses available to him.

In view of the above, this court has no alternative but to remand to the learned trial judge for a determination based upon proper considerations.

REVERSED AND REMANDED.

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


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    Barbara Ann EDWARDS v. John Joseph EDWARDS.
    Civ. 2989.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    C. Winston Sheehan, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    George E. Hutchinson, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife, appellant herein, complains that the trial court abused its discretion especially in its failure to award her periodic alimony.

The Edwards were married in California in 1960. During the majority of the twenty-one-year marriage, Mr. Edwards served in the Air Force. He achieved the rank of E-9, the highest rank afforded an enlisted man, and was in charge of “Quality Assurance for the Northern Communications Area of the Air Force Command” at the time of his retirement. He has received extensive training in the communications field. The wife, on the other hand, has been a wife, mother and homemaker during most of the marriage. Her attention has focused on rearing the couple’s two sons, Michael Joseph, age 16, and Vincent Eric, age 10, while the husband was involved in his career and required to be away from home often. Mrs. Edwards has no job skills, only a high school education and has not worked since the birth of the first son. At the time of the divorce, she was employed, however, on an assembly line in a factory, earning approximately $200 per week take-home pay, with the noted possibility of untimely layoff because of lack of seniority.

The husband receives more than $1,000 per month retirement pay from the military. Shortly before the divorce hearing, he quit a job where he was earning more than $850 per month net income. Because of his experience and training in the communication field, he is highly employable.

The husband resides in Montgomery, Alabama, and the wife in Glassboro, New Jersey. During the last several years, the family had lived first in San Antonio, Texas, and then in Rome, New York, where the husband was stationed. The husband’s ties with Montgomery apparently developed during the marriage while he was here on “TDY” or temporary duty. He has had an apartment in Montgomery since May 1980 and apparently shared it with a Ms. Joyce Sprouse.

The divorce complaint filed by the husband stated as grounds incompatibility of temperament and irretrievable breakdown of marriage. The wife counterclaimed for divorce based on adultery and abandonment, as well as the grounds entered by the husband. The evidence showed that the husband had abandoned the wife and children twice — once in Virginia at the home of her parents and a second time at the home of his mother and stepfather in Glassboro, New Jersey. The wife and children resided with the husband’s parents from July 1980 until November 1980, when the wife rented a house of her own in the same town. The wife was left without transportation or support in New Jersey and was forced to apply for welfare. After looking for more than six months, she found her present job. She also borrowed $3,000 from a friend to get her own house and get her furniture out of storage.

The trial court granted the divorce on the grounds of adultery as alleged by the wife. Custody of the children was given to the mother with reasonable visitation in the father. The trial court ordered the husband to pay $200 per month child support until the youngest child reaches majority, and that he take steps to insure that the children remain eligible for any military benefits available to dependents of a retired military man. The trial court further ordered that the husband maintain, unencumbered, all insurance policies on his life at the time of the divorce and designate the children as beneficiaries until their majority. The husband was ordered to pay all marital debts and a $500 fee to wife’s attorney. He was also assessed court costs, which included an amount for wife’s travel expense from New Jersey.

Following denial of her motion for new trial, the wife appeals contending that the trial court abused its discretion (1) by failing to award periodic alimony and (2) by refusing to clear up a patent ambiguity in the final decree.

We recognize the strong presumption of correctness afforded the trial court’s decision in a case heard ore tenus. That rule of law stands without citation. The burden to overcome the presumption is not, however, insurmountable. The exercise of the trial court’s discretion is judicial, not arbitrary, and reviewable on appeal. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980). The failure of the trial court to award periodic alimony in this case constituted a palpable abuse of discretion. See, Cinader v. Cinader, 367 So.2d 487 (Ala.Civ.App.1979).

Though there are no fixed standards upon which to determine the grant or denial of periodic alimony, there are many factors to be considered. These include the financial circumstances of the parties, their future prospects, age, sex, health, station in life, length of marriage, and in appropriate circumstances, conduct of each with reference to the cause of divorce. See, Schwaiger v. Schwaiger, 392 So.2d 1213 (Ala.Civ.App.1981); Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980). Each case must be determined on its own facts and circumstances.

The trial court’s failure to grant periodic alimony is not supported by the evidence. The vast majority of the factors listed above militate in favor of such an award. The divorce was granted on the basis of the husband’s adultery; the parties were married for twenty-one years; the wife was reduced by divorce from a position as spouse of a high-ranking military enlistee to a low-pay factory worker; though the parties were both in good health, the wife had job skills adaptable only to menial assembly line factory work and being in her forties, a dim prospect for job advancement; the husband receives more than $1,000 per month in retirement benefits and is highly trained in the lucrative communications field.

We note here for the benefit of the trial court, in determining the amount of periodic alimony on remand, that military retirement benefits are proper sources of income from which to pay such alimony. Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979).

We find no patent ambiguity in the portion of the decree relating to the payment of marital debts. Thus there was no correction to be made by the trial court.

For the foregoing reasons, this cause is affirmed in part; reversed in part, and remanded for a determination of an amount of periodic alimony to be awarded the wife.

An attorney’s fee of $500 is awarded to the wife on appeal.

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

BRADLEY and HOLMES, JJ., concur.

      . In light of Ridgway v. Ridgway, — U.S. -, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981), this portion of the decree is probably a nullity as it relates to SGLIA insurance.


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    Dale ZEIGLER v. Mac Sim BUTLER, Sheriff, Montgomery County, Alabama.
    Civ. 3002.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.

      William Prendergast, Montgomery, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is a petition for a writ of habeas corpus.

On May 13, 1977 Dale Zeigler acknowledged paternity of a child born out of wedlock and was ordered by the Circuit Court of Montgomery County to pay to the mother $10.00 a week as support for the minor child.

In August 1979 Zeigler was found guilty of nonsupport. The trial court at that time found Zeigler to be in arrears in his child support payments in the amount of $1,125.00. Zeigler was held in contempt of court and was ordered to be jailed until he paid $500.00. Zeigler testified that his mother borrowed the $500.00 and paid it to get him out of jail.

The present action arose in June 1981 when the minor child’s mother filed another petition alleging that Zeigler was in arrears in his child support payments. On July 15, 1981 the court found Zeigler to be in arrears in his child support payments in the amount of $1,445.00. Further, the court ordered Zeigler jailed until he paid the $1,445.00 arrearage.

Zeigler was incarcerated at the Montgomery County jail. Later he was moved to the Restitution Center. He, however, disappeared from the Restitution Center for one week and as a result was returned to the county jail.

On October 7, 1981 Zeigler filed a petition for writ of habeas corpus. A hearing was held on October 12, 1981 in the circuit court, and the petition was denied. As a result, Zeigler appeals to this court. On October 23, 1981 we granted Zeigler’s petition for stay of order and release pending appeal.

The only issue in this appeal is whether the trial court erred in failing to grant Zeigler’s habeas corpus petition. We find that it did and reverse the judgment.

Zeigler argues that the evidence adduced at trial showed that he is unable to pay the arrearage. As a result, he contends he cannot be incarcerated where he has shown that he is unable to pay. We agree with this contention.

At' the hearing on the habeas corpus petition, Zeigler showed that he had no assets except a 1973 automobile, which had been wrecked twice. At the time of the hearing, he had lost his job due to his imprisonment. Prior to his imprisonment he had worked for the City of Montgomery earning approximately $125.00 a week. He testified that he spent at least $115.00 for his own maintenance and support.

The law is settled that imprisonment for contempt should not be imposed where the failure to pay is due to an inability to comply with the order. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971). In the present case the evidence is undisputed that Zeigler is unable to pay the arrearage. Once the accused puts forth evidence that he is unable to pay, then it becomes the duty of the complainant to show beyond a reasonable doubt that the accused is able to pay. Sewell v. Butler, 375 So.2d 800 (Ala.Civ.App.1979). The complainant in this case admitted that Zeigler was unable to pay.

The evidence is clear that Zeigler is unable to purge himself of the civil contempt citation, and as a result his writ of habeas corpus is due to be granted. We, therefore, reverse and remand this case to the trial court with directions to discharge Zeigler from custody.

REVERSED AND REMANDED WITH DIRECTIONS.

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


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    Billy and Carol FREDERICK v. Evelyn REED.
    Civ. 2767.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.

      Daniel G. McDowell of Fine, McDowell & Cooper, Russellville, for appellant.
    Robert I. Rogers of Bedford, Bedford & Rogers, Russellville, for appellee.
   BRADLEY, Judge.

This is an appeal from the denial of defendants’ motions for directed verdict, new trial and judgment notwithstanding the verdict for plaintiff. Plaintiff, Evelyn Reed, is the mother of defendant Carol Frederick, and the mother-in-law of defendant Billy Frederick. This action arises out of an accident occurring at the home of defendants in December 1977.

On December 15, 1977 plaintiff, on her way home from the beauty parlor, stopped by to visit defendants at their home in Russellville. Plaintiff customarily visited defendants on Thursday of every other week. Plaintiff is a diabetic, and she testified that her daughter would buy insulin for her and that plaintiff would stop by her daughter’s house to pick it up on her every-other-Thursday visit. On the night in question, plaintiff arrived at defendants’ home between 6:30 and 7:00 p. m., approximately an hour before her usual time of arrival. Defendants testified that they were not expecting plaintiff to arrive so early.

Plaintiff testified that she got out of her car and approached the side door of defendants’ house, along her customary route through defendants’ carport. Plaintiff’s route took her along the inside wall of the carport, between the car and the wall, to the side door. The evidence shows that at the time of plaintiff’s arrival it was dark outside, and the carport light had not yet been turned on. As plaintiff neared the side door, she tripped over a roll of carpet stacked in the carport along her path, fell, and was injured. The roll of carpet had been removed from defendants’ house by Discount Carpets and, at the direction of defendants, placed in the carport on Monday, December 12, 1977, just three days prior to plaintiff’s visit. As a result of the fall, plaintiff sustained a fractured right arm, left arm and knee cap, and required approximately twenty-five days of hospitalization.

Both plaintiff and defendants testified that plaintiff did not know the carpet had been removed from the house and placed in the carport.

On December 12, 1978 plaintiff filed suit against defendants seeking damages for personal injury. Plaintiff later amended her complaint to add as defendants the officers of Discount Carpets. Both defendants and Discount Carpets filed an answer, asserting contributory negligence as an affirmative defense. The case came to trial before a jury on November 17, 1980, and a verdict in the amount of $10,000.00 in favor of plaintiff and against defendants Billy and Carol Frederick was returned. A motion for directed verdict was denied to the Fredericks but was granted in favor of Discount Carpets. Defendants-Fredericks subsequently filed a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict (hereafter j.n.o.v.). This motion was overruled by operation of law on or about March 12, 1981. See Rule 59.1, A.R.C.P. On April 22, 1981 defendants filed notice of appeal to this court.

Defendants contend here that the trial court erred in denying their motions for directed verdict, j.n.o.v., and new trial. We affirm the trial court in each instance.

In ruling upon the propriety of the grant or denial of a motion for directed verdict, the court must view the entire evidence in the light most favorable to the nonmoving party. If a reasonable inference may be drawn which is adverse to the party requesting the directed verdict, the motion is properly refused. The scintilla rule applies. Quillen v. Quillen, 388 So.2d 985 (Ala.1980); City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980).

In every action grounded upon negligence there are three essential elements to a right of recovery: (1) a duty owed by defendant to the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by that breach. Quillen v. Quillen, supra. A landowner’s duty to one upon his premises depends upon the status of the latter with regard to the land. White v. Packer, 345 So.2d 312 (Ala.Civ.App.1977). That is, the duty owed depends upon whether the person is a trespasser, invitee, or licensee. McMullan v. Butler, 346 So.2d 950 (Ala.1977). In Alabama a social guest is deemed to be a licensee. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).

Viewing the evidence in the light most favorable to plaintiff, we find that, as to the status of plaintiff on defendants’ property, the facts show plaintiff to be, at the least, a licensee. The facts of this case strongly suggest that plaintiff was a “social guest” of defendants, rather than an “invitee.” The relationship of invitor-invitee arises when an invited person enters upon the land of another for purposes which would be of a material or commercial benefit to the invitor. Quillen v. Quillen, supra. It is problematical whether plaintiff’s visit bestowed any material or commercial benefit upon defendants.

Whether plaintiff was or was not an “invitee” is of no moment in view of our conclusion that plaintiff was at least a “licensee.” Having determined that the evidence supports a finding that plaintiff was a licensee, we find that defendants’ contention that the trial court erred in its denial of a directed verdict as to this aspect of the case is without merit.

The next issue is whether the trial court erred in submitting to the jury the question of whether the defendants breached the duty of care owed to plaintiff as a licensee. Generally, a landowner has the duty, with respect to a licensee, not to wil-fully or wantonly injure the licensee, or negligently injure him after discovery of his peril. White v. Packer, supra. The duty owed a licensee has been further defined by the cases to include the duty not to expose the licensee to new hidden dangers, such as traps, pitfalls or obstructions, which arise through the landowner’s active negligence. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375 (1963). The additional duty requires the landowner, “if he does any positive act creating a new danger to a person who may exercise the license, to give to such licensee reasonable notice or warning of the new danger or to exercise reasonable care to provide safeguards against such new danger.” Id.

Defendants contend that there is no scintilla of evidence to support plaintiff’s contention that defendants breached their duty of care. We disagree! The facts indicate that defendants instructed the Discount Carpet employees to place the roll of carpet in the carport, in a known path to the side door used by plaintiff on her visits. The placing of the carpet in the carport was an affirmative act by defendants. The obstruction thus created was new to the premises, having been placed in the carport only three days prior to plaintiff’s expected visit. It is undisputed that plaintiff was unaware of the obstruction. Testimony also indicates that the carport was dark when plaintiff approached it, effectively hiding the obstructing roll of carpet; it would have been difficult for plaintiff to see any obstruction in her path. Further, defendants had reason to expect plaintiff to visit them on Thursday, although they did not expect her to arrive as early as she did.

In view of the above facts, we find that there is sufficient evidence in support of plaintiff’s contention to require submission of the question to the jury. We find no error here.

With regard to the denial of defendants’ motion for j.n.o.v., we note that a motion for j.n.o.v. is nothing more than a renewal of a party’s motion for directed verdict. A j.n.o.v. cannot properly be granted unless a directed verdict should have been granted. Williamson v. United Farm Agency, Inc., 401 So.2d 759 (Ala.1981). In view of our finding above, the trial court’s denial of defendants’ motion for j.n.o.v. was proper.

Defendants also appeal from the denial of their motion for new trial, asserting as grounds for their position the insufficiency of the evidence. It is well settled that a jury verdict is presumed correct, and will not be set aside unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence is so against the verdict as to clearly convince the reviewing court that it is palpably wrong and manifestly unjust. Maffett v. Roberts, 388 So.2d 972 (Ala.1980).

We find no plain and palpable error in the trial court’s denial of defendants’ new trial motion. On the contrary, there is ample evidence to support the jury’s verdict for plaintiff. Defendants had, only three days prior to plaintiff’s visit, placed an obstruction, i.e. a roll of used carpet, along a well-used path to the side door of their home, a path that the plaintiff normally used to enter defendants’ house. On the night of the accident the obstruction was effectively hidden by darkness. There is no evidence that defendants warned plaintiff of the hazard, or made any effort to protect her against injury; both parties agree that plaintiff had no knowledge of the condition before her accident. Based on these facts, we conclude that the jury could reasonably have concluded that defendants breached the duty of care owed to plaintiff as a licensee. The trial court’s denial of defendants’ new trial motion was proper.

For the foregoing reasons the judgment below is affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.