author: FAULKNER, Justice.

text:
    Grams B. OSBORNE v. Scott COBB.
    80-250.
    Supreme Court of Alabama.
    March 2, 1982.

      Grams B. Osborne, pro se.
    Clyde C. Owen, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   FAULKNER, Justice.

This is a negligence action arising out of a traffic accident between the appellant, Grams Osborne, and the appellee, Scott Cobb.

. On January 18, 1980, Cobb and two friends were returning from a Montgomery night club, at approximately 1:30 A.M., where they had spent several hours. Cobb traveled north on Perry Street. Osborne left the house of a friend, and traveled east on Arba Street, which is perpendicular to Perry Street. The automobiles driven by Cobb and Osborne collided at the intersection of Perry and Arba Streets. Osborne suffered a head wound and was taken to a Montgomery hospital for treatment.

Osborne allegedly continued to have physical problems following the accident. Osborne filed suit against Cobb, alleging that Cobb’s negligence in operating his automobile caused the accident and Osborne’s injuries. The action was tried before a jury in Montgomery County. Cobb introduced testimony at trial that the traffic light at the intersection of Perry and Arba was green in Cobb’s favor. Cobb and one of the passengers in his car testified that Osborne failed to stop for the red light on Arba Street.

Osborne introduced the contrary testimony of Elaine Humphrey, a Montgomery resident, who allegedly saw the accident. Humphrey testified that she was traveling north on Perry Street. She testified that Cobb passed her traveling at a high rate of speed. She also testified that the traffic signal on Perry Street was red, but that Cobb failed to stop for the red light and crashed into Osborne’s automobile.

Although Miss Humphrey stated that she was not a personal friend of Osborne’s, Cobb introduced Osborne’s record from St. Margaret’s Hospital naming Miss Humphrey as the person to “Notify In Case of Emergency.” Osborne explained that this was his second visit to a hospital, sometime after the accident. At the first visit, he listed another person. He testified that he listed Humphrey because he and the nurse misunderstood each other when filling out the form. Osborne is a citizen of Nigeria and stated that Alabamians often have difficulty understanding his accent. Osborne stated that he thought the nurse asked him who to call concerning the events on the night of the traffic accident.

The officer at the scene of the accident testified that both drivers had been drinking, but did not say either was driving under the influence of alcohol.

The jury returned a verdict in favor of Cobb. Osborne made a motion for a new trial, which the trial court denied. Osborne appeals. The appellant asserts three major points as error. First, the appellant contends that the verdict is contrary to the evidence and the law presented in the case, and is not supported by sufficient evidence. Second, the appellant argues that the trial court erred in admitting the medical record of Osborne naming Miss Humphrey as a person to be notified in case of an emergency. Finally, Osborne urges this Court to find the trial judge erred by denying the appellant’s Rule 26(b) motion to produce a prior statement of one of the appellee’s witnesses.

A jury verdict is presumed to be correct. Marshall County v. Uptain, 409 So.2d 423 (Ala.1981), Trans-South Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979). It is the function of the jury to resolve disputed issues of fact. Id. The jury’s resolution of disputed issues of fact will not be reversed on appeal unless the verdict is against the preponderance of the evidence, or is clearly wrong or unjust. S. S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977). A trial court’s denial of a motion for a new trial strengthens the presumption of correctness of the verdict, and will not be reversed unless it is plainly and palpably wrong.

In the present case, the issue of which driver failed to stop for the red light was hotly contested. The jury obviously resolved this factual issue in favor of the appellee. There is evidence in the record showing that Cobb was not negligent in operating his automobile. The jury acted within its proper fact finding function by resolving the issues in Cobb’s favor. We cannot say that there is not sufficient evidence to support its verdict.

The appellant argues that the jury was obligated, under Code 1975, § 12-21-111, to accept the testimony of Elaine Humphrey as true. If the jury had not violated section 12-21-111, it would not have rendered a judgment in Cobb’s favor. Section 12-21-111 provides that an account-creditor may establish a prima facie case against an account-debtor by filing a verified, itemized statement of account. Filing of a verified account places the burden on the account-debtor to disprove his or her liability. Osborne argues that Miss Humphrey “gave a verified account” of the accident, thus placing the burden of proof on the appellee to disprove her statement. Obviously, the statute was not intended to apply to a witness’s “account” of an accident in a tort action. The statute is applicable only to actions on an open account. Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So.2d 872 (1945).

The appellant also argues that the trial court erred by admitting the medical records of the appellant which named Miss Humphrey as the person to be notified in case of an emergency. The records were authenticated in accordance with Code 1975, § 12-21-7. The trial court has discretion to admit evidence to show the bias, prejudice, or interest of a witness. Insurance Co. of North America v. Mays, 278 Ala. 20, 174 So.2d 700 (1965); Williams v. State, 44 Ala.App. 503, 214 So.2d 712 (1968). The medical record naming Miss Humphrey tends to show that Miss Humphrey and the appellant might be close friends. The trial judge did not' err by admitting evidence which might have shown the bias of Osborne’s key witness. The denial of any friendship with the appellant by Miss Humphrey and Osborne’s explanation of the incident do not make the evidence inadmissible, but merely presented an issue of fact and credibility for the jury.

Finally, Mr. Osborne contends that the trial judge abused his discretion by denying Osborne’s motion for production of a previous statement given by a witness who was giving testimony. First, it should be noted that a pretrial order was entered in this action pursuant to ARCP 16. The order provided that all discovery was to be concluded on October 13, 1980, ten days before testimony began at the trial. The order gave the trial judge discretion to modify the pretrial order for good cause or to prevent manifest injustice. At trial, counsel for the appellant sought to obtain a prior statement made by Randy Knapp, a witness for the appellee. Counsel for the appellant questioned Mr. Knapp as follows:

“Q. Have you given a statement to anyone?
A. To anyone besides the Court?
Q. Yes, sir.
A. No, sir.
Q. And have you told in this statement anything different from what you told today?
A. Not to my knowledge, no, sir.
Q. Have you been show that statement?
A. Yes, sir.
Q. When did you see it?
A. The day before yesterday or yesterday. Yesterday.
Q. Did you read it over?
A. Yes, sir.
Q. Where did you read it over?
A. In Scott’s attorney’s office.
Q. All right, sir. And did he give you a copy of it?
A. No, sir.
Q. And are you basing your testimony now this afternoon on your recollection or on that statement?
A. On my recollection.
Q. The statement did not assist you in any way?
A. No, sir.
MR. .LOWERY: All right, sir. We would move to produce the statement, your Honor.
MR. OWEN: I would like to address that out of the presence of the Jury, your Honor.
(At this time, the Jurors were excused from the courtroom, and the following was had and done of Record.)
MR. OWEN: Your Honor, this is a 1980 case relating to discovery of statements obtained in anticipation of litigation.
THE COURT: I think you would have to do this by a Motion to Produce under Rule 26(b). If you have made such a motion, I would consider it.
MR. LOWERY: I make a Motion to Produce it under Rule 26(b).
THE COURT: You have not said what Rule 26(b) says. You have to say. And it is awfully late in the game. I am going to overrule that. But if you comply it with the Rule, I do not know if I will grant it or not. But I will consider it in accord with that case.
MR. PERDUE: The request for production was made Monday, I believe which was after the time for discovery.
THE COURT: That is awfully late. I deny your motion, unless the prerequisites of Rule 26(b) are met. And let’s bring the Jury back.
(At this time, the Jury returned to the courtroom.)”

ARCP 26(b)(3), provides that a party may obtain materials prepared in anticipation of litigation upon a “showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Cf. Ex parte: State Farm Mutual Automobile Insurance Co., 386 So.2d 1133 (Ala.1980). Although counsel for the appellant knew the identity of the witness before trial and had the opportunity to take his statement, the appellant’s counsel did . not do so. Furthermore, counsel for the appellant made no attempt to show “substantial need” or “undue hardship,” as required by Rule 26(b)(3). While impeachment of the witness by a prior, inconsistent statement may have justified discovery of the witness’s statement, counsel did not mention this as a ground for production of the statement. Under the circumstances, the trial judge did not abuse his discretion by refusing to require production of Knapp’s statement.

The judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Houston H. FEASTER and Marie B. Feaster v. AMERICAN LIBERTY INSURANCE COMPANY.
    80-759.
    Supreme Court of Alabama.
    March 2, 1982.

      Robert E. McDonald, Jr., Mobile, for appellants.
    Edward L. Lasseter, Jr., of Brown, Hud-gens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   FAULKNER, Justice.

This is an action by a holder of a homeowner’s insurance policy to recover for damages to a dwelling and contents at Lot 4, Tierra Court, on Dauphin Island. The house and its contents were destroyed in Hurricane Frederic, which struck the coast of Alabama on September 12, 1979. Houston and Marie Feaster, the homeowners, claim that the house and its contents, located on Dauphin Island, are covered by an insurance policy issued by American Liberty Insurance Company. American Liberty denies coverage for damages to the structure and its contents. The company claims that coverage is limited to personal liability.

The declaration page reads as follows:

Feaster Houston H. & Marie B.
63 Silverwood
Mobile AL 36607
The residence premises covered by this policy is located at the above address, unless otherwise stated . ..
Section II — Other insured locations
Lot 4 Tierra Court Dauphin Island Mobile AL

The policy included a twelve page description of the insurance agreement. The agreement defines “insurance location” as “the residence premises,” as well as various other places an insured might reside! Section I of the agreement sets the various types of coverages contemplated by the agreement, such as damages to the dwelling, other structures and personal property, wherever it is located. Section I also set out exclusions and conditions to coverage. Section II sets out liability coverages, exclusions and additional coverages.

At the trial before the trial court sitting without a jury, the insurance company contended that the Feasters’ house on Dauphin Island is not their “residence premises” because the policy anticipates that a family can have only one “residence premises.” The company claimed that only a “residence premises” receives coverage for damages to the structure and the personal property within. “Insured locations,” American Liberty asserted, receives liability coverage. The company asserted that the agreement unambiguously failed to provide coverage for the Feasters’ house on Dauphin Island. The company introduced evidence that the Feasters had an insurance policy with another company covering their residence at Dauphin Island.

The Feasters noted that the declaration page of the policy clearly listed their house at Dauphin Island under “other insured locations.” The insurance agreement does not specify any distinction between “insured location” and “residence premises.” The Feasters claimed that the policy clearly anticipated coverage of their beach house. The Feasters also argued that at worst, the policy is ambiguous and should be construed in a manner most favorable to the insured.

At the close of the evidence the trial judge granted American Liberty’s motion for a directed verdict. ARCP 50. The trial court denied the Feasters’ motion for a new trial. ARCP 59. The Feasters appeal from the verdict rendered in favor of the insurance company.

Two issues are raised by this appeal: (1) What standard of review is applicable to the trial court’s order? (2) Whether the trial court erred in granting a directed verdict in favor of the insurance company.

As a procedural matter, the granting of a directed verdict under Rule 50(a) is improper when the case is tried before a judge without a jury. The method of raising the sufficiency of the evidence in a nonjury trial is a Rule 41(b) motion for involuntary dismissal. See Ala.R.Civ.P. 41(b), Committee Comments. Rule 41(b) provides:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

Although directed verdicts and involuntary dismissals have comparable characteristics, to say that they are equivalent in all respects is to ignore the different functions of the judge in a jury trial, in which he or she is not the trier of fact, and the function of a judge in a nonjury trial, in which he or she is the trier of fact. United States v. United States Gypsum Co., 67 F.Supp. 397 (D.D.C. 1946). Nevertheless, after an examination of the standards for a directed verdict and an involuntary dismissal, it will be clear that by satisfying the standard for a directed verdict, the standard for granting an involuntary dismissal is implicitly satisfied. Thus, the court did not commit prejudicial error by granting a directed verdict rather than an involuntary dismissal. See Lentino v. Fringe Employment Plans, Inc., 611 F.2d 474 (3d Cir. 1979).

In Casey v. Jones, 410 So.2d 5 (Ala.1981), this court elucidated the standard for granting a directed verdict. On a motion for a directed verdict in a jury trial, the judge, without weighing the credibility of the evidence, may grant the motion only if there is one reasonable conclusion from the evidence and the law — and that conclusion is that the nonmoving party does not present a prima facie case. Id., Ala.R.Civ.P. 41(b), Committee Comments. The.directed verdict may not be granted if there is a scintilla of evidence which would support a verdict in favor of the nonmoving party. Id. This rule prevents the impairment of the right to trial by jury.

In contrast, in a nonjury trial, the court, in considering a Rule 41(b) motion for an involuntary dismissal, “as ultimate trier of fact, is free to weigh the evidence and the credibility of the witnesses.” Ala.R.Civ.P. 41(b), Committee Comments (citing O’Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir. 1961). Under prior practice, an involuntary dismissal was the equivalent of a nonsuit. The standard for a nonsuit was the same as the current standard for a directed verdict and was applicable to jury and nonjury cases. See 5 Moore’s Federal Practice ¶41.13[3] (2d ed. 1976). The Federal Rules amended this procedure, making Rule 41(b) applicable only to nonjury trials. It is the amended version of Federal Rule 41(b), that was adopted in Alabama.

We hold that since the Judge is the trier of fact in a nonjury action, he or she may weigh and consider the evidence on a motion for an involuntary dismissal. The normal presumptions of correctness attach to a trial court's ruling on an involuntary dismissal. The trial court’s ruling need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust. Id.

The trial court below granted the directed verdict on the grounds that under the terms of the insurance policy, the only coverage extended to the Feasters’ beach house was personal liability coverage, not property coverage. The judgment of the trial court is supported by credible evidence. The policy is clearly divided into Sections I and II. Section I provides property coverage and Section II provides personal liability coverage. The declaration page listed the Dauphin Island property under Section II. At the bottom of the declaration page were several blocks for rating the residence premises, but only one block for each type of rating — indicating that only one dwelling was rated. Furthermore, the language of the policy reads “the residence premises is the only premises where the Named Insured or spouse maintains a residence.” The policy, taken as a whole, supports the finding of the trial court.

The directed verdict should be properly labelled an involuntary dismissal. The involuntary dismissal of the trial court is affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.


author: SHORES, Justice.

text:
    Ex Parte Christopher BAILEY. (In re: AL FLA PLASTICS, INC. v. Christopher BAILEY, individually and d/b/a Plastic, Inc.)
    81-167.
    Supreme Court of Alabama.
    March 5, 1982.

      James C. Johnston, Mobile, for petitioner.
    E. E. Ball of Owen & Ball, Bay Minette, for respondent.
   SHORES, Justice.

On September 24,1981, AL FLA Plastics, Inc., filed suit in the circuit court of Baldwin County against Christopher Bailey, its employee, alleging breach of an agreement not to compete, and sought an injunction enforcing the noncompetition provision of its contract.

The complaint alleged that the plaintiff is a corporation organized under the laws of the State of Alabama with its principal place of business in Mobile, Alabama. It alleged that defendant Bailey is a resident citizen of Mobile County.

Within thirty days of the filing of this complaint, Bailey filed a motion to dismiss under Rule 12(b)(3), Alabama Rules of Civil Procedure, alleging that it affirmatively appeared from the face of the complaint that venue was not in Baldwin County. The motion was supported by an affidavit establishing that Bailey is and has been a resident of Mobile County .all of his life.

The trial court heard the motion, denied it, and ordered the injunction as prayed in the complaint.

Bailey then filed his petition for mandamus in this Court, seeking to vacate the order of the trial court denying his motion to dismiss because of improper venue. This is the appropriate remedy. Ex parte City of Huntsville Hospital Board, 366 So.2d 684 (Ala.1979).

Section 6-3-2(a)(2), Ala.Code 1975, provides:

“(a) In proceedings of a legal nature against individuals:
“(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.”

The petitioner/defendant’s permanent residence is Mobile County.

Apparently, plaintiff AL FLA Plastics is relying on a provision in its contract stating that it “shall be entitled, if it so elects, to institute and prosecute proceedings in any Court of competent jurisdiction, either in law or in equity, to obtain damages for any breach of this Agreement, or to enforce specific performance.... ”

Regardless of what the parties intended by this clause in the contract, it cannot be read to alter venue as provided by law. To so construe it would render it void under § 6-3-1, Ala.Code 1975, which states: “Any agreement or stipulation, verbal or written, whereby the venue prescribed in this article is proposed to be altered or changed so that actions may be commenced contrary to the provisions of this article, is void.”

The petition for writ of mandamus is granted.

WRIT GRANTED.

All the Justices concur.


text:
    Randolph E. NEAL, Jr. v. WILSON LUMBER COMPANY, INC.
    Civ. 2492.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 13, 1981.

      Randolph E. Neal, Jr., pro se.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
   ON REHEARING

EDWARD N. SCRUGGS, Retired Circuit Judge.

The original opinion in this cause, dated February 25, 1981, is withdrawn and the following is substituted therefor.

This case involves an ARCP rule 60(b)(4) motion.

A default judgment had been entered in the small claims court against the defendant on April 22, 1980. On May 5, 1980 the defendant filed his rule 60(b) motion requesting that the judgment be set aside, alleging:

1. The business, Progressive Products, was sold by me on October 2, 1979 and with the provision that all debts be paid by the new owners if any.
2. I was not ever served notice that this case was in court by the [sheriff] or any of his deputies. I request that this judgment be set aside and that I be relieved from any involvement in this matter.

The motion was denied by the small claims court on June 19, 1980, and the defendant perfected his appeal to the circuit court eight days later. The plaintiff filed its motion to “strike” the appeal, which motion we determine to be filed under Rule 12(b), ARCP, as a motion to dismiss. The grounds stated in the plaintiff’s motion to dismiss were as follows:

1. The judgment appealed from is the judgment of the District Court on a post-trial motion to set aside a judgment in the District Court. Said judgment of June 19, 1980, is not appealable to the Circuit Court.
2. The judgment of the District Court dated June 19, 1980, which is appealed from, is the ruling of the District Court on a post-judgment motion, the granting of which was within the discretion of the District Court, therefore the ruling of the District Court is not subject to appeal and trial de novo in the Circuit Court.
3. The defendant has failed to post a sufficient bond for the appeal.
4. The appeal comes too late.
5. The judgment appealed from is correct on the face of the record.
6. The motion to set aside the judgment in the District Court failed to allege a meritorious defense.
7. At the hearing of the motion to set aside the judgment in the District Court, on June 19, 1980, the plaintiff was present through its attorney, but the defendant did not present any witnesses and did not present sufficient proof of failure of service of the summons and complaint.
8. The motion by the defendant to set aside the judgment in the District Court fails to allege due diligence in filing the motion, or that he had no notice of the judgment which he was seeking to set aside.

The circuit court granted the above motion. If any of its grounds were valid and authorized the dismissal of the defendant’s appeal, we are due to affirm. Before deciding that, however, it is important that we specify exactly what was before the circuit court and what is presently before this court.

The appeal was taken too late to directly appeal to the circuit court from the April 22 judgment. The rule 60(b) motion was not a substitute for such an appeal, and, although the motion was filed within fourteen days of the entry of the small claims court’s final judgment, the motion would not extend the time for perfecting an appeal from the judgment of April 22. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975). The appeal to the circuit court could only have been from the district court’s order denying the rule 60(b) motion. Neither the circuit court nor this court may consider the April 22, 1980' default judgment. The valid issues to be decided by the circuit court consisted entirely of those matters raised by defendant’s 60(b) motion. Consequently, this court is concerned only with the legal correctness of the circuit court’s judgment.

1.

Rule M of the Alabama Small Claims Rules provides:

A judgment may be appealed to the circuit court by the filing of a notice of appeal in the office of the clerk of the small claims court within fourteen days from the date of the judgment and by furnishing a bond or cash as security for costs incurred in the small claims court, or affidavit of substantial hardship, approved by the court, in place of said bond. Notice of the right to appeal shall be given to the losing party.

The denial of a motion under rule 60(b) is an appealable order. Halstead v. Halstead, 53 Ala.App. 255, 299 So.2d 300 (1974). Under rule M, the appeal is to the circuit court.

2.

If the defendant was not served with proper process, the judgment was void. Raine v. First Western Bank, Ala., 362 So.2d 846 (1978).

The appellants made only a Rule 60(b)(4) motion, which authorizes relief from void judgments. There is no discretion on the part of the trial court on a Rule 60(b)(4) motion. If the judgment is void, it is to be set aside; if it is valid, it stands.

Wonder v. Southbound Records, Inc., Ala., 364 So.2d 1173 (1978).

3.

The defendant filed in the small claims court an affidavit of substantial hardship and received the approval of the court in lieu of a bond. This satisfied one of the provisions of said rule M, and, therefore, it was not essential that an appeal bond be filed.

4.

The ARCP(dc) also apply to small claims court cases when necessary and when not inconsistent with the small claims rules. ASCR, rule N. The plaintiff contends that the defendant’s motion was automatically overruled after the expiration of fourteen days because of the provisions of ARCP rule 59.1, hence a late appeal to the circuit court. However, ARCP rule 59.1 does not apply to motions filed pursuant to ARCP rule 60. Hollingsworth v. Wright, Ala.Civ.App., 369 So.2d 18, cert. denied, Ala., 369 So.2d 21 (1979).

5.

While the judgment is correct on the face of the record, it would be a void judgment if the defendant was not actually served with the requisite process and suit papers. Raine v. First Western Bank, supra.

6.

The defendant’s contention that he had sold his business to a purchaser who assumed all of the debts is no defense to the complaint of the original creditor. A novation is not averred. The defendant’s mere agreement with the business’ new owners for them to pay all of the debts of the business would not relieve him from personal liability for a pre-existing debt. If the purchasers of his business fail to pay any debt which they agreed to assume and pay, the defendant could litigate the matter with them, but that contract and breach thereof would not excuse the defendánt’s indebtedness to the plaintiff. Therefore, the defendant’s 60(b) motion did not contain an averment of a meritorious defense.

However, a meritorious defense need not be pleaded nor proved where the judgment is void. Raine v. First Western Bank, supra; Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

7.

This ground has averments as to what happened in the small claims court, which would be immaterial upon the appeal to the circuit court since § 12-12-71 of the Code of Alabama of 1975 provides for a hearing de novo in the circuit court.

8.

The monetary judgment was rendered by the small claims court against the defendant on April 22, 1980. He filed his .rule 60(b)(4) motion in that court on May 5, 1980, which was within a reasonable time, the only time restriction on such a motion. McNutt v. Beaty, Ala., 370 So.2d 998 (1979).

For the foregoing reasons, none of the grounds stated in the plaintiff’s motion to dismiss were legally sufficient, which places the circuit court in error for granting it. We must reverse and remand for an eviden-tiary hearing upon defendant’s rule 60(b)(4) motion.

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 Code of Alabama of 1975, and this opinion is hereby adopted as that of the court.

APPLICATION FOR REHEARING GRANTED.

REVERSED AND REMANDED.

All the Judges concur.


author: ADAMS, Justice.

text:
    Ex parte WILSON LUMBER COMPANY, INC., a Corporation. (Re: Randolph E. NEAL, Jr. v. WILSON LUMBER COMPANY, INC.)
    80-584.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for petitioner.
    Randolph E. Neal, Jr., pro se.
    George W. Royer, Jr. of Butler & Potter, Huntsville, for amici curiae Ben Hayes and Kathlene Hayes.

      Thomas G. Keith, Huntsville, for amicus curiae John D. Tarver.
   ADAMS, Justice.

We granted a writ of certiorari to the Court of Civil Appeals to review its decision holding that it is unnecessary to allege and prove a meritorious defense when one seeks relief from a default judgment which is the result of alleged ineffective service. Randolph E. Neal, Jr., (Neal), was sued by Wilson Lumber Company, Inc. (Wilson), in a small claims action filed in the District Court of Madison County. In district court, Neal failed to appear, and after a default judgment was entered against him, he filed a motion seeking relief on the ground of ineffective service, but did not allege a meritorious defense. Neal's motion was denied. Neal appealed to circuit court, which also ruled against him. The Court of Civil Appeals considered Neal's pro se motion to have been filed pursuant to Rule 60(b)(4), Alabama Rules of Civil Procedure, which authorizes relief from void judgments. Holding that Neal did not have to allege and prove a meritorious defense, the Court of Civil Appeals reversed the adverse judgment rendered against Neal by the Circuit Court for Madison County, and remanded the case for an evidentiary hearing on Neal’s motion.

Wilson petitioned for certiorari, contending that because Neal failed to allege a meritorious defense in his motion to vacate the default judgment, his motion was denied properly and that the decision of the Court of Civil Appeals, therefore, is erroneous. The facts pertinent to this appeal are set forth in the decision of the Court of Civil Appeals at 410 So.2d 404.

The following issue is dispositive of this appeal: Is a defendant who files a motion pursuant to Rule 60(b), A.R.C.P., seeking to set aside a default judgment due to lack of proper service of process, required to allege and prove a prima facie meritorious defense in addition to proving lack of service of process? We hold that the Court of Civil Appeals reached the correct result in its decision, but for reasons discussed hereinafter, we clarify the rule of law on this issue.

Citing Raine v. First Western Bank, 362 So.2d 846 (Ala.1978), and Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975), the Court of Civil Appeals held that one seeking relief from a void judgment need not plead or prove a meritorious defense. Under the authority of Raine v. First Western Bank, the Court of Civil Appeals decided that a judgment obtained without proper, process is void. Wilson contends, and cites numerous cases (infra), holding that a meritorious defense must be alleged and proved by one seeking relief from a default judgment allegedly void for want of proper service. Wilson maintains that because Neal’s motion to vacate the judgment failed to allege a meritorious defense, it was denied properly and the judgment received by Wilson against Neal should stand. Both Wilson and the amici curiae have presented thorough and well reasoned briefs which reach opposite conclusions. The disparity undoubtedly is caused by the fact that previous law addressing the instant problem is marked by confusion and some inconsistency.

The starting point for our inquiry is Rule 60, A.R.C.P., which is “an amalgamation of all prior Alabama procedural devices available to attack final judgments.” Modernage Homes v. Wooldridge, 55 Ala.App. at 71, 313 So.2d at 192-3. “Rule 60(b) retains the substance of [prior methods of attack], but destroys the artificial boundaries between them.” Committee Comments to Rule 60, A.R.C.P. Rule 60(b)(4) notes specifically that relief may be sought where “the judgment is void.” The Committee Comments note further:

If it has been possible to attack a judgment by any of the devices listed above, it will be possible to attack the judgment by a motion or an independent proceeding under this rule, since the rule enumerates all the grounds now available in Alabama for relief from a judgment, and, in addition, specifically preserves relief by “independent action” as it now exists.

Committee Comments to Rule 60, A.R.C.P.

Regarding the present case, we agree with the reasoning of the amici curiae that it was unnecessary for Neal to have alleged a meritorious defense in his motion to vacate the default judgment for want of proper service. A judgment obtained with ineffective service is void for the purpose of Rule 60(b)(4). AAA Sewing Machine Company v. Shelby Finance Company, 384 So.2d 126 (Ala.Civ.App.1980). “To authorize a court to proceed, it must acquire jurisdiction over defendant in some mode authorized by law, by service or other means, and ... a judgment rendered without acquiring such jurisdiction is a nullity.” 21 C.J.S. Courts § 83 at 123-4 (1940) (footnote omitted), quoted in Cooper v. Watts, 280 Ala. 236 at 240, 191 So.2d 519 at 522 (1966). Neal’s attack upon the default judgment entered against him, therefore, appropriately was brought under Rule 60(b)(4).

Wilson argues that it was incumbent upon Neal to allege a meritorious defense in his motion to vacate the default judgment. Wilson cites a number of cases holding that both at law and in equity, one who attacks a final judgment must allege and prove a .meritorious defense: Vestavia Country Club v. Armstrong, 271 Ala. 294, 123 So.2d 130 (1960); Ex parte Guin, 264 Ala. 268, 87 So.2d 30 (1956); Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973). The point of law that a meritorious defense is necessary both at law and in equity to set aside a judgment is based upon the operation of the “four months statute.”

While a court of equity, or a law court acting under the four months statute— Section 9521 — will set aside a judgment rendered without proper service against a party to the suit, yet to secure such relief the aggrieved party must both allege and prove that he has a meritorious defense, and that he was prevented by surprise, accident, mistake or fraud, without fault on his part, from interposing such meritorious defense to the action. He is required to allege and prove a meritorious defense for the reason that it would be idle and useless to set aside a judgment, when, so far as it is made to appear, the judgment rendered was correct, and on another trial a like judgment would be rendered.

Vestavia Country Club v. Armstrong, 271 Ala. at 297, 123 So.2d at 133 (citations omitted); Cockrell v. World’s Finest Chocolate Company, 349 So.2d 1117 (Ala.1977) (citing Vestavia Country Club v. Armstrong); Ex parte New Home Sewing Machine Co., 238 Ala. 159, 189 So. 874 (1939).

This court has observed that a proceeding under the “four months statute” is a separate proceeding from the one in which judgment was rendered.

A petition or application for rehearing under the four months statute is not a proceeding in the case wherein the judgment was rendered, but is a new suit, authorized by the statutes to be instituted in the law court, partaking of the nature of a bill in equity seeking relief from a judgment as a result of surprise, accident, mistake or fraud, without fault on the part of the party invoking the court’s jurisdiction, and presents a juristic controversy to be determined according to right and justice leaving no room for the exercise of discretion.

Marshall County v. Critches, 245 Ala. 357 at 358-9, 17 So.2d 540 at 541-2 (1944); Ex parte Covington Land Company, 42 Ala.App. 635, 175 So.2d. 106 (1965). The “four months statute” cited above was later codified at Code 1940, Tit. 7 § 279: “When a party has been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part, he may, in like manner, apply for a rehearing at any time within four months from the rendition of the judgment.” This court more recently noted that Rule 60(b), A.R.C.P., incorporated “most of § 279 [the “four months statute”], but some part of the wording is different.” Phillips v. D. & J. Enterprises, 292 Ala. 31 at 33, 288 So.2d 137 at 138 (1973).

A proceeding under the “four months statute” or its successor as found in Rule 60(b), is thus a collateral, and not a direct, attack. Judge Samford, speaking for the Court of Appeals, noted the difference between a direct and a collateral attack upon a judgment:

There have been so many cases involving the validity of judgments on collateral attack that the decisions have become somewhat confused as to how far courts would or could exercise their inherent power in going behind judgments rendered by courts of general jurisdiction, where the proceedings all appear to be regular. But if we confine ourselves to proceedings where the judgment is subject of direct attack, the question is not so difficult. It is elementary law that in order for a court to have jurisdiction of the person there must be service of process or voluntary appearance, and in 15 R.C.L. p. 850, § 324, the rule as to default judgment is declared as follows:
“Jurisdiction to enter a judgment against a defaulting defendant rests upon the fact of service itself and the return of service is simply the evidence of the jurisdictional fact.”
Where, as a matter of fact, a judgment has been rendered without the court having jurisdiction of the person, courts of superior and general jurisdiction have the inherent power, independent of statutes fixing designated periods of time within which applications should be made to have judgments vacated, to annul and set aside its final judgment after the close of the term at which it was rendered, either for want of jurisdiction of the subject matter or of the parties.

Ex parte Gunter, 17 Ala.App. 313 at 315, 86 So. 146 at 147 (1919).

The United States Court of Appeals for the District of Columbia similarly has observed the same distinction between a direct and a collateral attack upon a judgment.

It is urged that the judgment of the lower court cannot be reversed because appellant did not allege in her motion to vacate that she had a valid and meritorious defense to the claim on which she was sued. Ray v. Carr, [D.C.Cir., 107 F.2d 238] is cited in support of this contention. Assuming, but not deciding, that the point is properly before us, that case, nevertheless, does not govern the present situation. There, following a judgment obtained in the Small Claims Branch of the Municipal Court, application was made to the District Court for an injunction to restrain execution upon the judgment, on the ground that it had been obtained without proper service of process. In affirming the decree dismissing the bill, we held that enforcement of a void judgment will not be restrained by a court of equity, on a collateral attack, unless a meritorious defense to the action is alleged; on the theory that one who seeks equity must do equity. And we called particular attention to the fact that appellant had failed to exhaust his remedies in the Municipal Court by moving to vacate the judgment. In the present case, the attack upon the judgment was made not collaterally but directly by a motion to vacate. No showing of merits is necessary in support of a motion to vacate a void judgment.

Wise v. Herzog, 114 F.2d 486 at 491-2 (D.C. Cir.1940) (footnote omitted).

In the present case, Neal’s motion filed in district court to vacate the default judgment was clearly a direct attack upon that judgment. It, therefore, did not require the averment of an affirmative defense to Wilson’s cause of action. As noted already, Wilson’s reliance upon the language cited in Vestavia Country Club v. Armstrong, supra, is misplaced because that case discussed an attack on a judgment under the “four months statute,” which is a collateral attack. Other cases cited by Wilson as authority for its contention that a meritorious defense must be alleged to set aside a judgment involve collateral attacks, or do not involve judgments that are void for ineffective service: Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969); Ex parte Guin, 264 Ala. 268, 87 So.2d 30 (1956); Speegle v. Citizens Bank, 346 So.2d 455 (Ala.Civ.App. 1977); Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973).

Next, Wilson argues that because the judgment is not void on its face, as determined from the record, it is only voidable and a meritorious defense must be alleged to attack it. Wilson cites Griffin v. Proctor, 244 Ala. 537 at 541, 14 So.2d 116 at 119 (1943).

It is well settled that where a decree has been rendered which is void on the face of the record, the court rendering it possesses the inherent power, and should, on motion, vacate said decree. Johnson v. Johnson’s Adm’r, supra [40 Ala. 247]; Buchanan v. Thomason, supra [70 Ala. 401]; Chamblee et al. v. Cole, supra [128 Ala. 649, 30 So. 630]; Sweeney et al. v. Tritsch, supra [151 Ala. 242, 44 So. 184]; State ex rel. St. Peter’s M. Baptist Church v. Smith, Judge, supra [215 Ala. 449, 111 So. 28], While as a general rule the court’s authority is limited to matters which appear on the face of the record, such limitation is not applicable in the event of the death of either party when the judgment or decree was rendered. Johnson v. Johnson’s Adm’r., supra; Buchanan v. Thomason, supra. In the Johnson case it was said: “The true rule seems to be, that any court should, on a proper application, vacate any final order, decree, or judgment, at any time subsequent to its rendition, if the same is void on the face of the proceedings and record; but not where it appears to be void from facts dehors the record, except in the case of the death of either party to the suit or proceeding, at the time the judgment or decree is rendered, and in such other cases as may be authorized by long practice, or by statute.” Campbell v. Beyers, supra [189 Ala. 307, 66 So. 651]; Ex parte City Bank & Trust Co., supra [200 Ala. 440, 76 So. 372]. [Emphasis added.]

In the instant case, Wilson points to the fact that the record shows a sheriff’s return which appears valid on its face. Wilson, therefore, argues that the judgment against Neal is only voidable and not void, and, thus, Neal had to allege a meritorious defense in his motion to vacate the judgment. Although we do not express an opinion as to whether Wilson’s conclusion is well premised under the authority it cites, it is sufficient to say that the nature of Neal’s attack upon the judgment is an exception to the void/voidable distinction stated in Griffin v. Proctor. In Ex parte Gunter, supra, the Court of Appeals remarked that the concept that “matters which go behind the judgment may not be inquired into” does not pertain to judgments attacked for “want of jurisdiction.” Judge Samford went on to say:

It would be a monstrous proposition to say, on direct attack of a judgment, it could not be shown that the defendant was never legally before the court. The proceeding in this case is a direct attack on the judgment, alleging that the parties were never served with process or otherwise had notice before judgment was rendered against them. If that is so, the judgment is void, and,- although written in the minutes of the court, it is no record, and, although the minutes may recite notice by service, it may be shown to be false. 1 Black on Judgments, § 288; Herring v. Ricketts, 101 Ala. 340, 13 South. 502.

Ex parte Gunter, 17 Ala.App. at 314, 86 So. at 147.

We are of the opinion that an attack on a judgment based on ineffective service is an exception to the “general rule” quoted above in Griffin v. Proctor, and undoubtedly also comes within the “other cases” exception. Neither Griffin v. Proctor, nor the two cases cited by it (infra) as authority for the principle of law that only a judgment void on its face may be attacked, dealt with judgments that were void for want of effective service. Campbell v. Beyers, 189 Ala. 307, 66 So. 651 (1914), involved a dispute as to whether the record correctly reflected a jury’s verdict. Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372 (1917), dealt with the validity of a judgment by a court which had passed out of existence. Both cases were cited in Griffin v. Proctor.

In Campbell v. Beyers, 189 So. at 309-10, 66 So. at 651-2, this court stated that “courts have inherent power to preserve the integrity of their records and may make orders necessary to that end.” Justice Tyson, speaking for this court in Chamblee v. Cole, 128 Ala. 649 at 650-1, 30 So. 630 (1901), remarked:

It is well settled that where a decree, void for want of jurisdiction, has been rendered, the court rendering it possesses the inherent power, and should on motion, vacate said decree. It is a nullity and the court may at any subsequent term vacate it.

In view of the above-quoted authorities, it is clear that an attack upon a judgment for want of proper service does not require a showing of ineffective service on the face of the record as a prerequisite to an attack.

Some decisions of this court have not been consistent with the principles that we have reiterated in this opinion. In Robinson v. Beck, 261 Ala. 531, 74 So.2d 915 (1954), by reasoning that is not entirely clear, this court concluded (apparently after reviewing testimony on the issue of service of process) that the record did not show the judgment was void on its face. After reviewing the sheriff’s return, which recited service on the defendant, the court in Robinson v. Beck stated:

Thus the record affirmatively shows prima facie that service was had and it is sufficient to authorize judgment by default, Title 7, § 188, Code of 1940; and the testimony before the trial court supports the default judgment. Therefore, on the face of the record the judgment was not void.

Robinson v. Beck, 261 Ala. at 534, 74 So.2d at 918. Inasmuch as we have decided that the void/voidable principle does not apply when one attacks a judgment for want of effective service, we prefer to interpret the Robinson Court’s statement as a conclusion that the judgment was not void, reached after the court had reviewed the testimony on that issue.

In Ex parte Smith, 258 Ala. 319, 62 So.2d 792 (1953), it was held that a meritorious defense must be alleged and proved in a direct attack upon a judgment:

A well settled principle is that the court in which a judgment by default was rendered has the duty (not a discretion) to set aside that judgment on motion made within the thirty-day period when it is proven to the satisfaction of the court that service was not had on the defendant, even though the record shows that service was had, and it must be shown on the further hearing of that motion that he had a good and meritorious defense.

Ex parte Smith, 258 Ala. at 322, 62 So.2d at 794. As we have already discussed, a direct attack upon a judgment allegedly void for want of effective service requires no allegation of a meritorious defense. Ex parte Smith is expressly overruled to the extent it conflicts with this principle of law.

Wilson correctly calls to our attention the fact that in Cockrell v. World’s Finest Chocolate Company, supra, this court declined to decide “whether a default judgment entered without the required notice is void or merely voidable.” Cockrell, at 1120. Cock-rell did not involve a situation of ineffective service of process. The dispute in Cockrell centered on whether the defendant was entitled to the “three days” notice provided by Rule 55(b)(2), A.R.C.P. On that basis the Cockrell case is distinguishable from the instant one, and we, therefore, decline to further consider Wilson’s contentions regarding it.

In Wonder v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978), Wilson attempts to find support for its position that the void/voidable principle applies to one attacking a default judgment for want of effective service. Like Cockrell, supra, Wonder v. Southbound Records, Inc., involved a default situation under the “three days” provision of Rule 55(b), A.R.C.P., and is likewise distinguishable.

Wilson also cites McNutt v. Beaty, 370 So.2d 998 (Ala.1979), and AAA Sewing Machine Company v. Shelby Finance Company, supra, as supportive of its position. In pertinent part, McNutt v. Beaty holds that “a judgment is void if the court rendering it lacks jurisdiction over the subject matter or of the parties.” McNutt v. Beaty, at 999. That is consistent with this court’s pronouncement in Cooper v. Watts, supra, and the Court of Civil Appeals’ similar holding in AAA Sewing Machine Company v. Shelby Finance Company. McNutt v. Beaty does not support Wilson’s position. Wilson suggests that in AAA Sewing Machine Company, the Court of Civil Appeals considered a situation where a defendant attacked a default judgment for want of effective service, alleging a meritorious defense, and it was held that the judgment was not void. That case is distinguishable on two points. First, the defendants launched a collateral attack upon the judgment. Second, the Court of Civil Appeals’ conclusion that the judgment was not void was clearly a conclusion founded upon a review of the testimony in circuit court on the issue of the validity of service of process in that case.

We, therefore, uphold the decision of the Court of Civil Appeals holding that it was unnecessary for Neal to have alleged a meritorious defense in his motion to vacate the default judgment entered against him. In reaching our decision in this case, we have limited our review solely to the narrow issue upon which we granted certiorari.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Doyle BERRYHILL v. Katherine Louise BERRYHILL (deceased) and Joseph E. Strachan.
    Civ. 2402.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 13, 1981.

      J. Paul Whitehurst of Henley & Clarke Professional Corp., Northport, for appellant.
    Claude D. Boone of McDermott, Deas & Boone, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The appeal involves the custody of a ten-year-old little boy, Ronnie Berryhill, son of Doyle and Katherine Berryhill. The Berry-hills were married in 1968 and divorced in 1972, the divorce decree awarding custody of then 21-month-old Ronnie to his mother. The mother later married Joseph Strachan and remained married to him for about two years. Katherine and Joseph were then divorced, lived apart for a time, resumed living together in 1976 and continued living as husband and wife until her death from cancer in February 1980.

Within weeks after the mother’s death, a dispute arose between Doyle, Ronnie’s father, and Joseph, Ronnie’s stepfather, as to the custody of the child. Doyle sought custody through a petition to modify the 1972 decree awarding custody to Katherine. Joseph intervened, requesting that the court grant custody of the child to him.

After an ore tenus hearing, the trial court awarded Ronnie’s custody to his stepfather and granted his father visitation privileges. The father appeals and we affirm.

The primary issue is whether the trial court abused its discretion in awarding custody as it did in this case. Strickland v. Osborn, 333 So.2d 582 (Ala.Civ.App.1976); 11 B Ala.Digest, Infants, Key No. 19.3(7). Appellant argues that the court erred in awarding Ronnie’s custody to Joseph because he, Doyle, the child’s natural parent, was not shown to be unfit to have custody. It is a correct statement of law that the natural parent has a prima facie right to custody of his or her child in a contest for custody with a third party. Jackson v. Farmer, 247 Ala. 298, 24 So.2d 130 (1945). However, it is equally correct that such prima facie right of the parent may be rebutted or overcome by evidence of the best interest of the child. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973). The trial court’s findings as to the best interests of the child, where the evidence is taken ore tenus, will not be disturbed unless plainly and palpably wrong. Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980); Leigh v. Aiken, 54 Ala.App. 620, 311 So.2d 444 (1975). A summary of the evidence indicative of the best interests of the child reveals the following:

At the time of the hearing Ronnie was almost ten years old. He had known only his stepfather and mother as his parents, having lived with his stepfather at least six of the last eight years and continually the last four years. Very strong ties had developed between the boy and his stepfather during that. time. They had developed a loving father-son relationship during the child’s formative years as evidenced by the testimony of Ronnie’s school teachers, the family doctor, neighbors and relatives pertaining to displays of affection common between the two, and the stepfather’s concern over Ronnie’s physical, emotional and educational well-being. The child has progressed well in school, has a great many friends and playmates and has always lived in Mobile. He is well-adjusted, very polite and happy. His stepfather is a sheet metal worker and earns in excess of eleven dollars per hour. He is a good employee, can provide the child with a place to live and relatives to look after him while the stepfather is at work. The future for Ronnie in these surroundings appears stable and bright.

The natural father has not lived with the child since before he was two years old. He had moved to Guin, Alabama, and the child had not seen him in four years. He has not attempted to visit Ronnie during that time. Ronnie did not recognize his father upon seeing him a few weeks prior to the hearing. To put it succinctly, the father showed little interest in providing for or being with his son for the four years prior to the death of the mother. He is, for all practical purposes, a stranger to his son.

We find the language we previously used in Borsdorf v. Mills, supra, particularly applicable in this case:

To tear him from his home and those he knows as his parents and the source of love, safety and security merely to give sanction to a principle of priority of right is unconscionable. The principle of priority of right of a parent to custody is founded upon the premise that because of a blood relation and instinct, such parent will better love and care for a child than one not so related. Such premise may be theoretically correct but practical experience has often proved it incorrect. The bonds of love between parent and child are not dependent upon blood relation and instinct but may be forged as strongly in the crucible of day to day living. Out of the actual relationship of parent and child love grows. It is not merely the product of the biological function of conception and giving birth. To give paramount consideration to the principle of parental priority of ownership in custody decisions would often be an anathema to the best interest of the child. 49 Ala.App. at 661, 275 So.2d at 341.

Although there is no direct testimony that the father is generally unfit morally as a parent, he is fifty-three years old, dependent upon a small disability check from Social Security and the largess of his elderly parents. He has made no contribution either to the physical, financial or emotional well-being of his child. Such evidence indicates lack of parental interest closely akin to abandonment. Evidence of parental unconcern for and disinterest in the physical and financial well-being of a child over a period of years surely may be considered as indicative of unfitness. In view of the evidence, we can find no abuse of the judicial discretion vested in the trial court. Neither is there foundation for appellant’s contention of denial of either procedural or substantive due process afforded by the Constitution of the United States or of the State of Alabama.

Appellant also contends that the trial court erred in sustaining the appellee’s objections to two questions which appellant sought to ask certain of its witnesses. Briefly, the first question, asking the witness about statements allegedly made by Katherine Berryhill regarding her fear of the appellee, calls for testimony that is clearly hearsay. We find no exception that would make such testimony admissible. The second question, whereby the appellant asked the appellee if he had ever killed anyone, was simply improper. The appellant made no attempt to prove a prior conviction in order to impeach the witness. See, Gamble, McElroy’s Alabama Evidence, § 145.01. The relevancy of the question was not otherwise shown. The trial court did not err in sustaining the appellee’s objections to the questions.

Finally, the appellant claims the trial court erred in conducting an in camera discussion with the child over appellant’s objection. This issue originally arose when appellee offered the child as a witness. Appellant objected on the ground that the preference of custodian of the child was irrelevant. The judge then announced that he was going to talk to the child in camera. He was not going to ask him his preference, and his discourse with the child would be a part of the record. He asked appellant’s counsel if he objected to that. Counsel responded that he objected. He gave no ground. Wé have studied the record of the questions of the court and the answers of the child and find nothing material therein, not appearing otherwise in the record. There appears no injury to appellant. His original ground of objection to the child appearing as a witness was not well taken. His objection to the in camera examination was made without stating a ground as required by Rule 46, ARCP. There was no error. Spengler v. Ellenburg, 45 Ala.App. 328, 229 So.2d 925 (1970).

For lack of error, the judgment of the trial court is due to be affirmed.

There is no authority for the granting of the request of appellee for an attorney fee on appeal. It is therefore denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte Doyle BERRYHILL. Re Doyle BERRYHILL v. Katherine Louise BERRYHILL (Deceased) and Joseph E. Strachan.
    80-581.
    Supreme Court of Alabama.
    Jan. 22, 1982.

      Walter Henley of Henley & Clarke, Northport, for petitioner.
    Claude D. Boone of McDermott, Deas & Boone, Mobile, for respondents.
   BEATTY, Justice.

Certiorari was granted to determine whether or not the Court of Civil Appeals had applied the correct standards of law in this child custody case. The facts and issues are sufficiently described in that Court’s opinion, 410 So.2d 413. We reverse and remand for further proceedings.

The Court of Civil Appeals has utilized the wrong test of parental qualification for custody of a minor child by its natural parent. Proceeding from a factual finding that “the father showed little interest in providing for or being with his son for the four years prior to the death of the mother,” the Court concluded that “[h]e is, for all practical purposes, a stranger to his son.” It then examines the father’s age and the lack of his contributions to the child, concluding that “such evidence indicates lack of parental interest closely akin to abandonment.” It concluded that such “indications” from a natural parent who has not had actual custody of his child, in a contest with a stepfather (the natural mother being deceased) sufficiently overcome the strong presumption that the natural parent is the fittest of the two for custody of the child.

The disagreeable and heart-rending nature of cases such as this cannot fail to be appreciated. However, this Court has recently adhered to that strong presumption in Sullivan v. Mooney, Ala., 407 So.2d 559 (1981), wherein we quoted with approval from Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955):

The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for. . . .
... So strong is the presumption, that “the care which is prompted by the parental instinct, and responded to by filial affection, is most valuable of all”; and so great is the reluctance of the court to separate a child of tender years from those who according to the ordinary laws of human nature, must feel the greatest affection for it, and take the deepest interest in its welfare, — that the parental authority will not be interfered with, except in case of gross misconduct or where, from some other cause, the parent wants either the capacity or the means for the proper nurture and training of the child. Where a contest for the custody of a child arises between its father or mother and a third person, the superior claim of the parent ought not, in our opinion, to be disturbed, unless it plainly appears that the interests of the child require it to be set aside. [Striplin v. Ware, 36 Ala. 87, 89-90 (1860).]

The references of the Court of Civil Appeals to the father’s age and present financial condition do not establish the clear and convincing evidence that the natural father is either unfit or unsuited for the role of the father, and the case, therefore, must be remanded in order to allow the well-intentioned trial court to consider the case on the principles established in those decisions,

The issues concerning the in camera questioning of the child and the admissibility of certain evidence must also be addressed because the Court of Civil Appeals was in error on each of these issues.

We are aware that the practice exists among certain trial courts to conduct private conversations with minors in chambers with the consent of opposing counsel. In the absence of waiver or consent, however, the private interview by the trial court cannot be condoned. To sanction such a procedure would fly squarely in the face of the constitutional right of litigants to a public trial. Nothing in American law allows “private” trials. That custom went out with the abolishment of the Star Chamber, and the right to a public trial was one of the rights wrested from the British Crown and included in our Bill of Rights which remains the fundamental law of our land. The fundamental principle is that the decision of a court must be based on evidence produced in open court lest the guaranty of due process be infringed.

Rule 43, ARCP, provides that “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules.” There is no exception in the rules for in camera examination of witnesses without the presence or consent of attorneys and the right of cross-examination.

In Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 789 (1957), a proceeding was instituted by a natural father for the purpose of having the court award him custody of his thirteen-year-old daughter. During the course of the trial, the judge conferred alone in his chambers with the minor in question. Custody was awarded to the respondents, and the father claimed the court committed error in conferring with the child privately. On review, the appellate court held that it was error to receive testimony from witnesses without affording the petitioner an opportunity to be present and know what evidence was offered. While the court recognized that in many instances it may be helpful to talk to the child whose welfare is so vitally affected by the decision, it stated that traditionally court hearings are open. This was cited as one of the sources of our courts’ greatest strength. Carefully noting that there was no suggestion that the able trial judge was improperly influenced by the private interview and no such suggestion is made here, it was ruled nevertheless that the petitioner’s right to hear all the evidence offered in his case must not be denied him. It was said that without doubt the court may interview a child in open court in a custody proceeding but it can do so privately only by consent of the parties. E.g., Cook v. Cook, 5 N.C.App. 652, 169 S.E.2d 29 (1969).

In a recent case, Romi v. Hamdan, 70 App.Div.2d 934, 417 N.Y.S.2d 523 (1979), the Supreme Court of New York reversed the custody determination of a trial court for conducting an in camera off the record interview with a ten-year-old child. As that court noted, in a custody proceeding “an enlightened, objective and independent evaluation of the circumstances” must be made; thus, it is error not to conduct a full and comprehensive hearing to resolve the many factual issues raised.

In the present case, appellant objected to the in camera examination without stating a ground as required by Rule 46, ARCP. The failure to state a “ground,” however, is not fatal if the ground is so manifest that the trial court and counsel cannot fail to understand it. Clearly, the objection here was based upon the due process right of cross-examination.

The evidence question came about in this manner. During the course of the custody proceeding, the petitioner asked the respondent if he had ever killed anyone. Although that question may be considered overbroad, we disagree with the conclusion by the Court of Civil Appeals that the relevancy of the question was not shown.

If character or reputation becomes a matter in issue in a civil suit, evidence with reference to such a party’s reputation or character is admissible. Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975). McElroy’s Alabama Evidence, § 34.01 at 60 (3rd ed.) recites that:

Where, by the nature of the case, the character of a party is placed in issue then proof of the 'general reputation for that character may be elicited.

In a child custody proceeding, character is obviously in issue and “evidence touching the character, conduct, and reputation of the parties, or any other evidence tending to throw light on their fitness to be the custodian of the child, is admissible.” Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 1047 (1915). As recently as last year, in Bracy v. Sippial Electric Co., Ala., 379 So.2d 582 (1980), this Court recognized that specific acts as well as general reputation were admissible when a trait of character became an issue in a particular case, either as impeachment evidence or as substantive evidence. See also Code of 1975, § 30-3-1. Thus, the question directed toward the respondent asking whether he had ever killed anyone would be relevant as an attempt to show a specific act of bad character bearing on the “fitness” of the respondent. Thus, not only was the question relevant, but peculiarly so when the qualifications for custody of a minor child were being examined. The Court of Civil Appeals may have concluded that a homicide committed by a witness would be admissible to impeach him only if that homicide resulted in a conviction of a crime. Such a conclusion, if made, was erroneous.

For these reasons the judgment of the Court of Civil Appeals is reversed, and the case is remanded to that court for an order remanding the case to the trial court for further proceedings.

REVERSED AND REMANDED WITH DIRECTIONS.

ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

JONES, J., is recused.

TORBERT, C. J., and MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

I am quite aware of the law which gives to a natural parent the superior claim to the custody of his or her child, but four judges (the trial judge and three appellate judges) have determined, under the facts of this case, that it plainly appears that the interests of the child require that custody be in one other than the natural parent. Since I find no misapplication of the law by either the trial judge or the appellate judges, I would affirm their judgment that the interests of the child, in this case, were plainly shown to be best served by awarding his custody to one other than his natural father. There is no indication that the trial judge was unfamiliar with the rule of law which gives the parent of a child a superior claim to his custody; therefore, I would affirm his determination that it was clearly in the best interests of the child to be placed in the custody of one other than his parent.

On the issue of the in camera hearing, the Court of Civil Appeals has determined that the objection made by the petitioner was insufficient. In any event, the Court of Civil Appeals determined that if the trial judge committed error in conducting an in camera hearing, it was harmless error.

TORBERT, C. J., and FAULKNER, J., concur.


text:
    Doyle BERRYHILL v. Katherine Louise BERRYHILL (deceased) and Joseph E. Strachan.
    Civ. 2402.
    Court of Civil Appeals of Alabama.
    Feb. 17, 1982.
    J. Paul Whitehurst of Henley & Clarke Professional Corp., Northport, for appellant.

      Claude D. Boone of McDermott, Deas & Boone, Mobile, for appellee.
   On Remand From the Supreme Court

WRIGHT, Presiding Judge.

In accordance with the decision, order and remandment of the Supreme Court of Alabama, 410 So.2d 416, entered January 22, 1982, the judgment of this court, 410 So.2d 413, entered April 8, 1981, is set aside, the judgment of the trial court is reversed and the cause is remanded to the Circuit Court of Mobile County, Alabama, for further proceeding and consideration according to principles referred to in said decision of the Supreme Court, all at the cost of Joseph Strachan as ordered.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


text:
    Jerry McGAHA v. James STEADMAN.
    Civ. 2786.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.
    Rehearing Denied Dec. 16, 1981.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-306.
    Thomas B. Hanes of Hanes & Hanes, Birmingham, for appellant.
    J. Fred Wood, Jr. and Susan Dominick Doughton of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

James Steadman was employed as general manager of Indian Valley Marine, Inc., in Alabaster, Alabama. The business was sold in early 1978 to Jerry McGaha Enterprises, Inc., and the name changed to Jerry McGa-ha’s Boat House. Steadman was retained as general manager at the same salary and with the same benefits he received under the prior ownership. This package included hospitalization insurance. That insurance lapsed in July 1978 because of failure to pay the premium. In November 1978, Stead-man was injured in an accident at his home and incurred hospital and other medical expenses as a result of the injury. His insurance would have covered approximately $8,112.53 of these bills had it been in effect.

Steadman sued Indian Valley Marine, Inc., and Jerry McGaha on two counts: (1) breach of the employment agreement to provide hospitalization insurance, and (2) negligent failure to have the policy of insurance reinstated after an undertaking to do so. The case was tried to the court, and the evidence was heavily disputed. The trial court resolved these disputes in favor of Steadman, awarding him $8,112.53 for breach of contract against the corporation and $8,112.53 for negligence against Jerry McGaha as an individual. The defendants moved for directed verdict, or, in the alternative, new trial, contending that the judgment against the corporation was contrary to the evidence and facts, and that the judgment against McGaha was contrary to the law. The motion was denied. Only McGaha appeals.

McGaha contends that the trial court erred as a matter of law in finding that a tort had been committed by the defendant. We disagree and affirm.

The trial court heard the evidence in this ease ore tenus. Thus, the trial court’s finding of fact is presumed correct and will only be overturned if it is plainly unsupported by the evidence. Every presumption must be indulged to uphold the judgment. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980); Hibbett Sporting Goods v. Biernbaum, 391 So.2d 1027 (Ala.1980). Appellant attempts to show that the trial court’s error lay in a failure to discern the distinction between an action ex contractu and one ex delicto. See, Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436 (1955). That distinction is, however, inapposite in this case.

We consider that the trial court had sufficient grounds on which to find tort liability on the part of McGaha irrespective of Steadman’s employment agreement. There are two theories that support the trial court’s decision.

The trial court could have determined from the evidence that McGaha volunteered to act, though under no duty to do so, and therefore was required to act with due care. Dailey v. City of Birmingham, 378 So.2d 728 (Ala.1979); Herston v. Whitesell, 374 So.2d 267 (Ala.1979). His negligent failure to pay the insurance premium was the proximate cause of Steadman’s damages. This theory is especially applicable here since Steadman apparently told McGaha that if the insurance was not going to be kept current, then he would get insurance elsewhere. Even then, McGaha assured Steadman that he would pay the premium, and Steadman detrimentally relied on those assurances. We consider the evidence was sufficient for the trial court to find that McGaha personally volunteered to act in regard to payment of the insurance premium.

The trial court also could have found that McGaha’s duty to pay the insurance premium arose out of his relationship with McGaha Enterprises, Inc., d/b/a McGaha’s Boat House. McGaha’s position carried with it the responsibility to pay the bills, i.e., to see that the hospitalization insurance was kept in force. This court in Williams v. The Jackson Co., 359 So.2d 798 (Ala.Civ.App.1978) recognized that privity of contract is not a required basis of duty in some cases. In that case this court said:

Thus one who undertakes to perform a contract may be determined to owe a duty to others not privy to the contract to perform his obligation under the contract without negligent injury to such others. Such duty may arise from the forseeability that such others may be injured by negligent performance, or duty may arise from the knowledge that others are relying upon a proper performance. (Cites omitted.)

359 So.2d at 801. See also Federal Mogul Corp. v. Universal Construction Co., 376 So.2d 716, 724 (Ala.Civ.App.), cert. denied, 376 So.2d 726 (Ala.1979).

Under this theory there was evidence that Steadman relied on McGaha to carry out his responsibilities as president of McGaha Enterprises. That Steadman could suffer damages from the lack of hospitalization insurance was reasonably forseeable by McGaha. The court could find McGaha individually liable for the negligent performance of his duties without finding against McGaha’s employer even though McGaha acted at all times within the scope of his employment. “When a person commits a tort, it is wholly immaterial upon the question of his liability, whether he was acting officially or personally.” Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930). We see no necessity of consideration of whether Steadman had an action for breach of contract against his employer because of McGaha’s conduct. That question is not before us. We know it is possible that the same facts may give rise to an action ex delicto and ex contractu. Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976). Neither is the issue of election of actions before us.

Appellant cites § 25-5-11, Code (1975) to show that co-employees may not sue each other. Even if that portion of § 25-5-11 which refers to suit between co-employees was viable [See, Grantham v. Denke, 359 So.2d 785 (Ala.1978)], it would not apply in this case. That statute applied only in workmen’s compensation situations.

We note that the corporation, Indian Valley Marine, against whom judgment was rendered on Count 1, did not appeal. Since that corporation was not Steadman’s or McGaha’s employer at the time the insurance was cancelled or the injury occurred, we are puzzled by Indian Valley Marine’s presence in the case at all. McGaha Enterprises d/b/a McGaha’s Boat House owned the business after February 1978, several months before any tort occurred.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Stephanie Lynne MASSEY v. Gene MASSEY, Gwen Massey, James Barnett Massey and Martha R. Massey.
    Civ. 2818.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.
    Rehearing Denied Dec. 16, 1981.

      James M. Sizemore, Jr., and Robert C. Rea, Jr., Sylacauga, for appellant.
    Donald W. Lang and Michael A. Givens, Sylacauga, for appellees.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parents, Stephanie Lynne Massey and Gene Massey, were divorced July 13, 1979. Custody of their only child, Kristi Lynn, was given to the mother, with reasonable visitation for the father. Subsequently, the mother became financially unable to care for the child and by agreement of the parties, the court ordered custody of the child be placed in the father on March 21,1980. The mother was allowed reasonable visitation. While the mother had custody, the father and his second wife, as well ás the paternal grandparents, (intervenors here) often eared for the child for extended periods when the mother was unable to secure a sitter.

The father was convicted of a federal offense in connection with his activities as a member of the Ku Klux Klan. He began serving a two-year prison term in a federal penitentiary in. Florida in November 1980. Since his incarceration, the child has lived with his present wife, Gwen, and both have stayed periodically with the paternal grandparents. The mother continued her visitation until some problem concerning visitation arose. She then filed a petition for custody modification March 9, 1981, asking that the child be placed in her custody. She based her petition on the absence of the father, who at that time had legal custody of the child. The court placed temporary custody of the child in the natural mother pending hearing.

A motion to intervene by the paternal grandparents was granted.

Following an ore tenus hearing, the trial court ordered that the care, custody and control of the child be placed in the paternal grandparents. Specific regular visitation was allotted to the mother, including weekends and extended summer and Christmas periods. The court made a finding of fact that the mother was unfit. That finding was stated to be based upon the mother’s long working hours at night in a restaurant, the opinion of others as to her bad reputation; her homelife does not appear to be in the best interest in raising her child; her failure to attend to the material and medical needs of the child; and her pending and subsequent marriage to a man with a criminal record, including possession of marijuana. From this order, the mother appeals.

The following issues are presented on appeal: (1) whether the intervention of the grandparents was improper, (2) whether the court erred in taking into consideration information not in evidence by judicially noticing the mother’s recent marriage and (3) whether the court erred in granting custody to non-parents where the evidence of the unfitness of the mother was not clear, compelling and satisfactory. We find no cause for reversal in the first two issues. We find cause for reversal upon issue (3).

Appellant’s contention that the paternal grandparents’ motion for intervention lacked a proper pleading is not well taken. The motion set out the reason for intervention, the grounds therefor and the relief sought. As such, the motion complied with Rule 24(c), A.R.C.P. We are also unpersuaded that the trial court committed reversible error in considering the marriage of the mother subsequent to the hearing. If it was error to judicially note the marriage, which the court itself performed, it was not sufficiently prejudicial to require reversal.

The principal issue presented is whether the trial court erred in granting custody to a non-parent under the evidence presented. In order to deprive a parent of custody, the evidence must be clear and convincing that the best interests of the child are against parental custody. Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977). Parental unfitness is not a prerequisite to a finding that the best interests of the child will be served by placing custody in a non-parent. Zimmerman v. Gibbs, 384 So.2d 1115 (Ala.Civ.App.1980); Ely v. Casteel, supra. In Zimmerman, this court held that “it is not the fitness or unfitness of a parent that is solely determinative of who should have custody. What is determinative is the best interest and welfare of the child.” 384 So.2d at 1116.

The most emphasized evidence presented as to the unfitness of the mother was that shortly after the divorce, and at a time when the father with the aid of his parents was in the process of appealing the granting of custody to the mother, the child was found to have a severe case of diaper rash. The family of the father carefully made pictures of the affected areas of the child’s body and preserved them for more than a year until the mother’s petition for custody arose.

It was shown that the original custody given to the mother at the time of divorce was, within a few months thereafter, voluntarily relinquished to the father and his new wife. However, it was also shown that during such interval the mother was receiving no assistance for herself or her child from either the father or his parents. The evidence was undisputed that she relinquished custody with the statement that it was best for the child as she could not properly provide for it.

The mother at the time of trial was only nineteen years old. She worked second shift in a local restaurant. There was testimony that while she had temporary custody of her child, she was seen at a bar and the Elks Club after her working hours having drinks. Members of the grandparents’ family and their fellow church members stated in their opinion the mother had a bad reputation in the community. There was no evidence of the basis for such reputation other than she was seen at bars and dances. It must follow that those who saw her were also present at the same time and place. There was no evidence but that the child was in the care of a responsible adult on these occasions. The mother was frank in stating that she enjoyed going out on weekends after working long hours. Such inclination does not seem uncommon for a nineteen-year-old girl, even though a mother.

Our careful review of the testimony convinces us that it is insufficiently clear and convincing to overcome the presumption that the best interest of the child lies in the custody of its natural mother. It is evident that the grandparents are better able to provide materially for the child. It is evident that they love the child and perhaps could provide more attention daily to its care and feeding. It is also evident that from the time of the original decree, they have carefully prepared a case of unfitness against the mother to the end of obtaining custody of her child. Citing the case of Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955), our supreme court recently said in Hanlon v. Mooney, 407 So.2d 559 (1981), “ ‘While it is true that the “pole star” in custody cases is the best interest of the child, the courts of this state do not have the power to sever the bonds of blood relationship merely in order to gain some real or fancied advantage for a minor child’ ”. We consider that statement particularly pertinent in this case.

We adhere to the principles stated by this court in the recent case of Pendergrass v. Watkins, 383 So.2d 851, 854 (Ala.Civ.App. 1980). The facts of that case are very similar to this case. We hold that the evidence is insufficient to support the divesting of the mother of custody and the judgment of the trial court must be reversed. The case is remanded with direction to grant custody of the child Kristi to the mother, Lynne Massey Taylor.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

The trial court, after an ore tenus hearing, awarded custody of the child to the child’s grandparents. As correctly indicated by the majority, in order for the trial court to award custody to a person other than a parent, it must conclude that the evidence is clear and convincing that the best interests of the child are against parental custody. Ely v. Casteel, supra. The trial court’s finding indicates that it did reach that conclusion. On appeal, the sole question before this court is whether the trial court’s decision was so unsupported by the evidence that it constituted an abuse of discretion. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979); Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977).

Admittedly, this is a difficult case. Previous cases are of little help in reaching a decision in this case because each child custody case must be decided upon its own facts. In the instant case, the trial court was faced with much conflicting testimony. The intervenors offered evidence that the mother allowed the child to develop a severe diaper rash, that the mother failed to regularly change the child’s diapers and that the child often appeared dirty and hungry after being in the mother’s custody. The mother testified that she had carried her child to the doctor only once while the child’s stepmother or the intervenors had carried the child to the doctor several times. The stepmother had had to carry the child to the doctor to get treatment for the diaper rash. The mother also testified that she worked long hours, specifically, 11:30 a. m. to 10:00 p. m. Friday through Tuesday, and made very little money. In addition, the mother testified that she usually went out every Friday and Saturday after work and also occasionally on week nights. Evidence was also introduced that the mother planned to marry and subsequently did marry a man who had been convicted of assault and battery, driving while intoxicated and possession of marijuana. Though presently working on a family farm, the new husband’s future employment is somewhat in doubt. There was also evidence, in opinion form, that the mother had a bad reputation in the community and that she was an unfit mother. In opposition to the above, the mother offered testimony that she loved and properly cared for the child and that she was not an unfit mother.

Undoubtedly, some of the evidence, offered by both parties, came from witnesses who were not completely impartial and unbiased. However, it is in situations like the present where the evidence is in such conflict that this court must be most mindful of the underlying basis of the ore tenus presumption which is the trial court’s ability to hear and observe the witnesses as they testify. Globe & Rutgers Fire Insurance Co. v. Home Investment & Loan Corp., 226 Ala. 275, 146 So. 610 (1933); Willis v. Excello Bottling & Ice Co., 202 Ala. 513, 81 So. 15 (1919). In determining the credibility to be given each witness’s testimony, the trial court was in a position to weigh the offered testimony against each witness’s demeanor on the witness stand. The trial court’s finding indicates that he placed more credibility in the testimony offered by the inter-venors. In the instant appeal, where the evidence is in such conflict, I do not believe that this court, after reviewing only the record, can properly conclude that the trial court abused its discretion. By so holding, this court is merely substituting its judgment for that of the trial court. This it cannot do. Ely, supra.

I note that in the instant appeal the mother was awarded liberal visitation. I am certain the trial court was mindful that the question of child custody is subject, under appropriate circumstances, to modification. At a subsequent time, after this young mother has more fully matured and established a more stable homelife, she may be justified in petitioning the trial court for full custody of her child. In the meantime, the mother will remain a significant part of her child’s life due to the mother’s visitation rights.

Needless to say, I would affirm the trial court's action.


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte Gene MASSEY, Gwen Massey, James Barnett Massey and Martha R. Massey. (Re Stephanie Lynne MASSEY v. Gene MASSEY, et al.)
    81-307.
    Supreme Court of Alabama.
    March 5, 1982.
    Donald W. Lang and Michael A. Givens, Sylacauga, for petitioners.
    No brief for respondents.
   PER CURIAM.

WRIT DENIED. NO OPINION.

JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

I would grant the writ in order to review the opinion of the Court of Civil Appeals in light of my dissent in Berryhill v. Berryhill, 410 So.2d 416 (Ala.1982).

TORBERT, C. J., and FAULKNER, J., concur.