author: HOLMES, Judge.

text:
    William PRATT v. ALABAMA STATE TENURE COMMISSION.
    Civ. 2323.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.
    Rehearing Denied Dec. 3, 1980.

      William M. Dawson, Birmingham, for appellant.
    Raymond E. Ward, Ray, Oliver & Ward, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

The contract of the teacher-principal, who had continuing service status (tenure), .was terminated by the county board of education. The teacher appealed to the Alabama State Tenure Commission. The tenure commission upheld the board of education’s action. The teacher sought relief from the tenure commission’s action in the circuit court. The circuit court upheld the tenure commission’s decision. The circuit court specifically found the action taken by the tenure commission to be in accordance with the requirements of the Alabama Teacher Tenure law and that the action was not unjust.

The teacher now appeals to this court and we affirm.

The teacher contends (1) the evidence does not support termination of the teacher’s contract, (2) the termination was for personal and political reasons in contravention of § 16-24-8, Code of Ala.1975, and (3) the teacher was denied constitutional due process of law in that the board of education in its final determination failed to state with sufficient specificity the reasons for termination.

At the outset, we note that “the State Tenure Commission’s conclusions and judgment will not be reversed on appellate review as being unjust unless it is against the preponderance of the evidence and the overwhelming weight of the evidence.” Sumter County Board of Education v. Alabama State Tenure Comm’n, Ala., 352 So.2d 1137, 1139 (1977).

I

The termination as revealed by the minutes of the board of education and letter of notification to the teacher was on grounds of incompetency, neglect of duty, and other good and just cause. We do not deem it necessary or prudent to set out in detail those acts that support the action of the board of education and the tenure commission. Suffice it to say there is evidence that the teacher-principal failed to administer the Individual Education Program as required by law; that he failed to establish and maintain a consistent lunch period schedule; that he failed to provide his faculty administrative leadership; and that he failed to cooperate with his faculty and the board of education in the solution of individual and administrative problems.

Section 16-24-8, Code of Ala.1975, provides:

Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, ... neglect of duty, ... or other good and just cause ....

Incompetency is a term which may be used to mean disqualification, inability, or incapacity. County Board of Education v. Oliver, 270 Ala. 107, 116 So.2d 556 (1959). Here, incompetency is evidenced by the teacher’s failure to provide administrative leadership and his failure to establish a stable lunch period schedule. Failure to cooperate, i. e., the teacher’s failure to cooperate in the solution of school problems, is a legal cause within the provision, “other good and just cause.” State Tenure Comm’n v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). Neglect of duty by its own terms describes a failure to do what one is required by law or contract to do. Here, the teacher’s failure to administer the Individual Education Program is such neglect of duty. We find the termination of the teacher’s contract on the above mentioned statutory grounds to be fully supported by the evidence.

II

The Teacher Tenure Act does not allow termination for political or personal reasons. Section 16-24-8, Code of Ala.1975, provides:

Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teacher positions or other good and just cause, but cancellation may not be made for political or personal reasons. (Emphasis supplied.)

The teacher cites rivalry between himself and the county superintendent of schools for the latter’s office as the reason for his termination. The only testimony asserting that this rivalry was the reason for termination was the teacher’s. Further, there is no evidence suggesting board of education involvement in this rivalry or that this rivalry motivated the board in terminating the teacher’s contract.

We note under the Teacher Tenure Act only the board of education has authority to terminate a teacher’s contract. The superintendent may recommend termination, but he cannot terminate a tenured teacher. Brown v. State Tenure Comm’n, Ala.Civ.App., 349 So.2d 56 (1977); § 16-24-9, Code of Ala.1975. The board of education must be politically or personally biased against the teacher. Marshall County Board of Education v. State Tenure Comm’n, 291 Ala. 281, 280 So.2d 130 (1973).

Summarizing, in light of the above and in light of what we said regarding the board of education’s findings of incompetence, neglect of duty, and other good and just cause for termination, the tenure commission and the circuit court did not err in finding an absence of political or personal motive in the board’s action.

Ill

The teacher contends he was denied due process of law by the board of education’s failure to state with sufficient specificity the reasons for his termination. In other words, the teacher contends due process requires the board to make specific findings of fact.

At the outset, we note § 16-24-9, Code of Ala.1975, outlines the procedure the board of education must follow in terminating teacher contracts. Neither this code section nor any other in the Teacher Tenure Act requires the board to make specific findings of fact.

This court is cognizant of § 16-24-10(b), Code of Ala.1975, which requires the board of education to assemble, for the purposes of the teacher’s appeal to the State Tenure Commission, the record of its proceedings including the board’s finding and decision.

We also note § 16-24-9, Code of Ala.1975, requires the board of education to notify the teacher that it is considering the termination of his contract. In this instance, the teacher was so notified by letter. The letter, which is part of the record, set forth the statutory grounds for termination and listed at length the reasons for the board’s proposed action. In fact, twenty-six specific incidents were listed in the board’s letter to the teacher.

The record also contains the minutes of the meeting of the board of education where the board voted to terminate the teacher. These minutes reveal that the teacher was terminated for the reasons set forth in the aforementioned letter.

Additionally, the board wrote the teacher and informed him that the charges against him had been substantiated and that his contract was terminated.

We further note that there is nothing in the record to indicate the teacher was not fully apprised of the reasons for his termination. The argument in brief regarding the board of education’s lack of specific findings was apparently made for the first time in the teacher’s motion for a “new trial” in the circuit court.

In view of all of the above, we find that the findings of the board of education are contained in the record. The above mentioned provision of § 16-24-10(b) has been satisfied. However, we note that it would be better practice for the board of education to make specific findings setting forth the grounds it relied upon in terminating the teacher’s contract.

The teacher through counsel cites Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), for the proposition that due process of law requires the board of education to make specific findings of fact. In Goldberg, the United States Supreme Court said essentially that due process requires the decision maker’s conclusion to rest “solely on the legal rules and evidence adduced at the hearing.” The court then went on to say:

To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on, ... though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law....

397 U.S. at 271, 90 S.Ct. at 1022. We find nothing in Goldberg that requires the board of education to make specific findings of fact. In fact, Goldberg indicates that “formal findings of fact” are not required. In view of the facts of the instant appeal, the findings by the board are sufficient.

The case is due to be affirmed and is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex Parte William PRATT. (Re William PRATT v. ALABAMA STATE TENURE COMMISSION).
    80-191.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    Monique NORTON v. William A. NORTON.
    Civ. 2410.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.
    Rehearing Denied Dec. 10, 1980.

      Murray W. Beasley, Tuscumbia, for appellant.
    Bingham D. Edwards, Decatur, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The trial court, having heard the evidence ore tenus, granted a divorce on the ground of incompatibility and divided the real and personal property of the parties. The wife appeals. We affirm.

The first issue raised by appellant is whether the trial court erred in granting a divorce on the ground of incompatibility. The evidence, as it pertains to the relationship of the parties, reveals the following:

The husband and wife in this case had been married for some twenty years when they separated on January 10, 1978. The husband testified that for three or four months prior to the separation there had been constant quarreling, that it had gotten to the point where the parties couldn’t live together because of “fussing and fighting and carrying on,” that his wife “accused me of about everything,” and that both he and his wife were unhappy. The wife testified that about three months before the separation her husband started staying out at night and never ate any meals at home. She did not refute the husband’s testimony as to fusses and quarreling in leading to the separation.

The evidence further shows that the parties had not lived together for a period in excess of two years. There had been almost no communication between them. The wife invited the husband to eat with the family on holidays but he refused in order “to avoid arguments and things.” She tried to talk with him four times at his place of employment and each time “he just would turn me flat down.” All efforts at reconciliation had failed.

Incompatibility refers to conflicts in personalities and dispositions so deep as to be irreconcilable and to render its impossible for the parties to continue a normal marital relationship with each other. It is a fact of the existence of the state or condition of incompatibility that is to be determined. For the purpose of finding that fact, fault is not material. Dyal v. Dyal, 54 Ala.App. 206, 307 So.2d 17 (1975); Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. denied, 290 Ala. 370, 274 So.2d 80 (1973). The court found the parties incompatible and unsuited for each other. We find no basis in the evidence for reversal of that determination. Self v. Self, 49 Ala. App. 665, 275 So.2d 345 (1973).

The remaining issue is whether the trial court fairly and equitably divided the real and personal property of the parties.

The wife worked from the beginning of the marriage, earning money that went into the mortgage payments, into the education and rearing of the children and into the general expenses of the parties. The record shows that the wife and the husband each own and operate their own business, the wife being part owner of a hairstyling salon and the husband owner of an auto repair garage. The wife’s earnings appear to be at least as much as those of the husband.

The judgment directs the sale of the residence at a future date with the husband to make the mortgage payments until the sale. It also provides for the sale of recreational property owned jointly by the parties. The proceeds from the sale of these parcels are to be divided equally between husband and wife. Each party is allowed to keep the few persona] possessions which he or she owns. The real estate that the husband inherited prior to marriage which was not “used regularly for the common benefit of the parties during their marriage” properly remains the property of the husband. § 30-2-51, Code of Alabama (1975). The net effect of the judgment is to divide the property of the marriage equally between the parties.

Judgment rendered after hearing ore tenus has the standing of a jury verdict and upon appeal is presumed to be correct. 2A Ala.Dig., Appeal and Error, Key No. 931(1). The division of property, after consideration of equities and contribution by the parties is a matter for the discretion of the court. The exercise of such discretion will not be disturbed on appeal except upon showing of palpable abuse. Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975). It appears that each party is self-sustaining. It likewise appears that the trial court fairly and equitably divided the property of the parties. We find no abuse of discretion in the division of property. Neither is there error in the finding of incompatibility. The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    Ex Parte Monique NORTON. (Re: Monique NORTON v. William A. NORTON).
    80-203.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Franklin HAMMOND v. Sam BAILEY et al. and ALABAMA STATE TENURE COMMISSION v. The COUNTY BOARD OF EDUCATION OF DeKALB COUNTY, Alabama.
    Civ. 2424-A.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.
    Rehearing Denied Dec. 10, 1980.
    John Baker, Fort Payne, for appellant Franklin Hammond.

      Charles A. Graddick, Atty. Gen., for Alabama State Tenure Commission.
    W. M. Beck, Sr., Beck & Beck, Fort Payne, for appellees.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

Franklin Hammond was a teacher with continuing service status (tenure) in the DeKalb County school system. In January 1979 the County Board of Education of DeKalb County initiated cancellation proceedings against the teacher, charging him with insubordination and neglect of duty. The Board notified the teacher and a hearing was begun pursuant to § 16-24-9, Code of Alabama (1975). Nineteen witnesses testified at this hearing and evidence resulting in a record of over 330 pages was produced.

After the hearing the Board, voting upon each charge, found Hammond guilty. A motion was made thereafter to cancel the teacher’s contract. The motion failed for lack of a second. Another motion was made to suspend the teacher for the remainder of the 1978-1979 school year without pay but to reinstate him the next year as a non-tenured or “probationary teacher.” This motion passed by a vote of three to two and was entered as the decision of the Board.

The teacher appealed to the Alabama State Tenure Commission. After hearing, the Tenure Commission reversed the Board and reinstated the teacher, holding the Board’s action “in violation of the teacher tenure law governing the cancellation procedure for a tenured teacher.” The Board failed to comply with the Tenure Commission’s order. The teacher petitioned the Circuit Court of DeKalb County for writ of mandamus, to recover unpaid salary and to be reinstated as a tenured teacher. Three weeks later the Board filed a separate suit for writ of mandamus against the Tenure Commission. The two cases were consolidated for trial.

The circuit court denied the teacher’s petition, ruling in favor of the Board and reversing the Tenure Commission. The teacher and Tenure Commission appealed to this court.

The briefs of the parties present several issues for our determination on appeal. Viewing the record before us we find it inadvisable and unnecessary to decide the first issue presented, that is, whether the Board’s petition for writ of mandamus, coming eighty-nine days after the date of the Tenure Commission’s order, is untimely. The appellants cite the recent case of Alabama State Tenure Commission v. Board of School Commissioners of Mobile County, 378 So.2d 1142 (Ala.Civ.App.1979), where this court held that an unexplained delay of ninety-two days is unreasonable and barred the Board’s mandamus proceeding for lach-es. We are asked to hold that the delay of the Board in seeking review of the order of the Tenure Commission for eighty-nine days is also untimely and barred by laches. We consider it unnecessary to decide that issue in this case. We must reverse the judgment of the circuit court and re-instate the order of the Tenure Commission on other grounds.

We consider the second issue to be more determinative of the rights of the parties to this appeal. That is, did the Board act in violation of the teacher tenure law by voting to suspend the teacher without pay for the remainder of the school year and to reinstate him as a “probationary teacher” at the beginning of the next year?

There is no dispute that the teacher suspended was a tenured teacher. As such, any act affecting the continuing service status of the teacher would have to comply with § 16-24-1, et seq., Code of Alabama (1975), our teacher tenure law. Section 16-24-3 provides in applicable part:

The contract of employment of any teacher who shall attain continuing service status shall remain in full force and effect unless superseded by a new contract, signed by both parties, or cancelled as provided in section 16-24r-9 or 16-24-10; .... (Emphasis ours)

This section means exactly what it says. The only two actions that may properly be taken with regard to the contract of a tenured teacher are to supersede or cancel such contract. The only suspension provided under the teacher tenure law is a suspension by the superintendent pending a hearing on a proposed cancellation. § 16-24-9. Certain it is that there can be no removal of continuing service status (tenure) other than by cancellation under the statute.

To state the proposition succinctly, tenure once obtained will remain, unless charges by the board are properly brought and sustained. There is no basis in the tenure law for discussion to the contrary. The legislative intent of the tenure law is to establish two classes of teachers, those that have earned continuing service status and are thereafter protected by procedural and due process safeguards and those that are probationary and not so protected. Foster v. Blount County Board of Education, 340 So.2d 751 (Ala.1976). Those procedural safeguards of the statute were not complied with in this case.

The Board argues that as the teacher was only suspended, no right of appeal to the Tenure Commission accrued. If such were the case, the Board could suspend all tenured teachers after cancellation hearing without cancelling their contracts and avoid the appeals process provided by § 16-24-10. Such, of course, may not be permitted, provisions for suspension in statutes other than the tenure act notwithstanding. The hearing which resulted in the teacher’s suspension was begun and conducted as a cancellation proceeding under the tenure law. Appeal to the Tenure Commission was proper from the judgment of that proceeding.

Finally, the circuit court found that the Tenure Commission did not specifically set forth the procedural violation committed by the Board. The court seems to attach much significance to the fact that the Tenure Commission did not find the Board’s action “arbitrarily unjust.” However, “arbitrarily unjust” action by the Board is only one ground for reversal by the Tenure Commission. The other ground for reversing the board is where its action is not “in compliance with this chapter.” § 16-24-10. The Tenure Commission found, and properly so, that the action of the Board was not in compliance with the teacher tenure law because of a violation of the cancellation procedure set out in § 16-24-9. The case of Marshall County Board of Education v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130 (1973), has no application to this case.

For the reasons set forth above, the order of the circuit court must be reversed and the order of the Tenure Commission reinstated.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: MADDOX, Justice.

text:
    Ex Parte: The DeKALB COUNTY BOARD OF EDUCATION OF DeKALB COUNTY, Alabama. (Re Franklin HAMMOND v. Sam BAILEY et al. and ALABAMA STATE TENURE COMMISSION v. The COUNTY BOARD OF EDUCATION OF DeKALB COUNTY, Alabama).
    80-201.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    STATE of Alabama v. INTERNATIONAL PAPER COMPANY, a Corporation.
    Civ. 2325.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.
    Rehearing Denied Dec. 17, 1980.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., and Ronald J. Bowden, Asst. Attys. Gen., Montgomery, Kenneth Cooper, Bay Minette, for appellant Ina Becker, Tax Assessor.
    Allan R. Chason, Chason & Chason, Bay Minette, for appellee.
   BRADLEY, Judge.

This is an ad valorem tax case.

On June 29, 1979 the Baldwin County Board of Equalization met and considered the protest of International Paper Company to the valuation, inclusion, and exclusion of property in its ad valorem tax assessment. The Board fixed the values of all the property of International Paper Company on that date and incorporated those values in its June 29, 1979 report. The tax assessor of Baldwin County, Ina Becker, sent a tax bill to International Paper which did not incorporate the values placed on the property by the Board. However, a revised tax bill was sent to International Paper which did incorporate the property and its value set out in the Board’s June 29, 1979 report. International objected to this revised bill claiming some of the parcels were incorrect, some personal property was tax exempt, and certain improvements should be Class III property rather than Class II property. The personal property includes tractors, tree planters, discs, drum choppers, bush combines, skidders, road graders, boats, and power crawlers. The improvements consist of storage buildings for equipment used in the forest operations, offices in woodyards where the foreman scales wood, and offices where personnel meet to receive job assignments.

International Paper was not satisfied with the Board’s June 29,1979 report and it requested the Board to meet again and make changes in its June 29 report, so as to correct what International Paper deemed to be errors in the report. On November 14, 1979 the Board met again and issued an amended 1979 report. The changes included changing valuation of property, inclusion of property, and changes in what was included. Mr. Taylor, a Board member, testified that no new evidence was taken at the meeting and only mistakes were corrected. Neither the tax assessor, the department of revenue, the county commission, nor the reappraisal contractor in Baldwin County, H. L. Yoh Company, were notified of the November 14 meeting, nor did any of them attend it. The 1979 tax year was the first year in which Baldwin County reappraised property values mandated by the federal courts in Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala.1971) and § 40-7-60 et seq., Code of Alabama 1975.

The tax assessor refused to accept the Board’s amended report dated November 14, 1979 because she said the Board had no authority to meet on November 14, 1979 and change its June 29, 1979 report previously sent to her. International Paper then filed a petition for writ of mandamus in the Circuit Court of Baldwin County on December 2,1979 seeking to compel the tax assessor and tax collector to make certain changes in their 1979 tax bill. An alternative writ of mandamus was issued to these two officers on December 3, 1979 directing them to make the requested changes. The tax assessor filed an answer to the petition on December 31, 1979 and a hearing was had on January 23, 1980 but the case was continued to give the parties an opportunity to work out their differences. An amended answer was then filed by the assessor on March 27, 1980. A preemptory writ of mandamus was issued by the trial court on April 4, 1980, ordering the tax assessor to make the requested changes in the tax assessments of International Paper. The appeal comes from this order.

The dispositive issue presented by this appeal is whether the tax assessor can be required to accept an amended report from the Board of Equalization adopted on November 14,1979 when the Board had adopted and forwarded to the tax assessor a report on June 29, 1979 and then officially adjourned on August 31, 1979.

Section 40-3-19, Code of Alabama 1975 sets out the time period within which the county boards of equalization will hear objections by taxpayers to valuations or assessments of property made by the tax assessor. In no event shall this period extend beyond the second Monday in July, unless extended by order of the department of revenue. The valuations and assessments placed on the various parcels of property by the board of equalization shall stand, “unless an appeal is taken therefrom as provided by this chapter.” § 40-3-19.

The Board met during the time prescribed by § 40-3-19 and made a report of its actions on June 29, 1979. This report was sent to the tax assessor, and from it she prepared the tax bills which were then sent to the taxpayer. Taxpayer refused to pay the tax bills.

Instead of taking its objections to the tax bills to the circuit court as authorized by §§ 40-3-24, -25, Code of Alabama 1975, the taxpayer went back the Board of Equalization on November 14,1979 where it presented objections to thirteen parcels of property. The Board made the requested changes in the valuations of the thirteen parcels and sent its amended report to the assessor on that same day. The tax assessor refused to accept and implement the amended report.

The State contends that the Board was without authority to meet and make the requested changes in International Paper’s tax bills on November 14, 1979. It further says that if the Board was without authority to make the changes on November 14, 1979, a fortiori, the tax assessor had no authority to accept the amended report and make the requested changes in the June 29, 1979 report. We agree.

A taxpayer aggrieved by the action of the board of equalization has the right to appeal to the circuit court for a trial de novo before the court and a jury. §§ 40-3-24, -25, Code of Alabama 1975. The appeal to the circuit court must be filed within thirty days after the final decision fixing the assessed valuation. § 40-3-25, Code of Alabama 1975.

In the instant case the Board made its report to the tax assessor relating to taxpayer’s assessments on June 29, 1979 but did not officially adjourn until August 31, 1979.

It would appear from the statute, /. e. § 40-3-25, that taxpayer’s time for taking an appeal started to run from June 29,1979, the date of the final decision on its assessments. However, should it be contended that the Board could have changed its mind and fixed new assessments, we note that the Board notified the department of revenue in writing that it had completed its work within the time prescribed and had adjourned. This letter was written on August 31, 1979. Furthermore, there is no evidence in the record that the department of revenue authorized the Board to extend its time for hearing protests to tax assessments. Consequently, we hold that the actions and decisions of the Board became final no later than August 31, 1979, when the Board formally adjourned. Denson v. First National Bank of Birmingham, 276 Ala. 146, 159 So.2d 849 (1964). The August 31, 1979 adjournment would have started the taxpayer’s thirty day appeal time running but no appeal was taken to the circuit court. Instead of taking an appeal from the Board’s action, taxpayer sought and obtained from the Board on November 14, 1979 an amended assessment on thirteen parcels of property. Appeal to the circuit court was the proper review procedure for the taxpayer, for the Board had lost its authority to take any further action in regard to taxpayer’s assessments. The statute clearly provides that the Board cannot act beyond the statutory period unless authorized by the department of revenue. The department gave no such authorization. Consequently, the action of the Board on November 14,1979 was beyond its authority and its amended report was invalid and of no effect. Since the Board’s November 14, 1979 report was invalid, the tax assessor could not be legally required to implement it. § 40-3-21, Code of Alabama 1975.

A writ of mandamus will not be awarded where the petitioner therefor has an adequate remedy by appeal. Denson v. First National Bank of Birmingham, supra. In the case at bar taxpayer could have appealed to the circuit court within thirty days of the Board’s final action but it did not do so. The failure of the taxpayer here to pursue its statutory remedy does not authorize the issuance to it of a writ of mandamus. Denson v. First National Bank of Birmingham. To hold otherwise would allow the taxpayer to obtain the same relief that it could possibly have had by the statutory appeal procedure. This is not permitted. Mandamus is not available as a substitute for an appeal. Denson v. First National Bank of Birmingham.

It follows that the trial court committed error when it issued the peremptory writ of mandamus to the tax assessor requiring her to accept and implement the results of the Board’s November 14, 1979 meeting. The judgment of the trial court is reversed and the cause remanded for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    Ex Parte INTERNATIONAL PAPER COMPANY. (Re STATE of Alabama v. INTERNATIONAL PAPER COMPANY, a corporation).
    80-205.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    NATIONAL SECURITY FIRE AND CASUALTY COMPANY v. Ruby MILLER.
    Civ. 2266.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.
    Rehearing Denied Dec. 24, 1980.

      Bert S. Nettles and J. Harley McDonald, Jr., Mobile, for appellant.
    William H. Sisson and Thomas M. Galloway, Jr., Mobile, for amici curiae Jerry P. Wood and Sandra L. Wood.
   HOLMES, Judge.

The Circuit Court of Mobile County found the appellant-insurance company liable for the full amount of an insurance policy. The insurance company appeals and we affirm.

At the outset, we note that the record before this court is not a paragon of clarity. No testimony was taken. There are documents in the record and certain stipulations.

From the record before this court, we discern the following: A policy of insurance covering loss by fire was issued by the insurance company in favor of the insured. This policy written prior to April of 1976 covered a particular dwelling. The dwelling was destroyed by fire. The policy was in force and effect at the time of the loss. This loss occurred in February of 1978.

In April of 1976, an “agreement” was entered into between the insured and Jerry and Sandra Wood. Under this agreement the insured was to convey title to the dwelling to the Woods upon payment of $7,500. The Woods were to pay this purchase price in installments of a minimum of $150 a month for twenty-four months. On the date of the fire the unpaid balance, pursuant to the aforementioned agreement, was $4,200.

The agreement was drafted by the insured and it is not a “work of art.” The learned trial judge found it to be an option contract under which the insured retained full equitable and legal interest in the dwelling. In other words, the insured was “the owner of the full insurable interest in and to said property.”

Based on this finding, the trial court entered judgment in favor of the insured for $10,000, the value of the insurance policy.

The insurance company appeals, contending the insured is not entitled to recover a sum greater than the value of her insurable interest in the dwelling and that the value of that interest is $4,200. The insurance company specifically argues that the agreement between the Woods and the insured is a contract for the sale and purchase of land rather than an option. Such a contract, it is argued, would vest equitable title in the Woods and would thus decrease the value of the insured’s interest in the dwelling to the value of the unpaid balance of the purchase price under the contract, $4,200.

We find the insurance company’s arguments to be without merit.

Although we agree with the insurance company1 and find the agreement to be a contract for the sale and purchase of land that vests equitable title in the Woods, see, Ashurst v. Rosser, 275 Ala. 163, 153 So.2d 240 (1963); McGuire v. Andre, 259 Ala. 109, 65 So.2d 185 (1953), the insurance company in this instance cannot set up that equitable title as a defense to liability on its contract of insurance. Milwaukee Mechanics Ins. Co. v. Maples, 37 Ala.App. 74, 66 So.2d 159 (1953); Couch on Insurance 2d, vol. 5, § 29:100. The insurance company’s “duty is to respond to the party with whom they made the contract of insurance.” The insurance company’s liability in this appeal must be measured by the terms of its contract and not by the terms of an agreement between the insured and a third party. Milwaukee Mechanics Ins. Co. v. Maples, supra. We therefore find the trial judge did not err to reversal in finding the insurance company liable for the full amount of the policy, to wit, $10,000.

We note, however, that the law in this state is that the insured as vendor of the dwelling will hold any insurance proceeds exceeding their interest (in this instance such interest would appear to be $4,200) in trust for the benefit of the Woods. Alabama Farm Bureau Mutual Ins. Serv. v. Nixon, 268 Ala. 271, 105 So.2d 643 (1958); Couch on Insurance 2d § 29:99.

An insured who enters into an agreement of sale of property covered by a fire policy and between the time of the agreement and the time fixed for settlement, a loss by fire occurs, can recover from the insurer the full amount of the loss, but upon such recovery becomes a trustee for the vendee of the proceeds of the policy on the theory that while, until settlement, the vendor remains the legal owner of the property, the entire beneficial interest passes to vendee upon execution of the agreement of sale, and in order to retain any portion of the proceeds as against the vendee, the vendor must establish that he has some valuable interest in the insured property beyond the mere ownership of legal title. Insurance Co. of N. Am. v. Alberstadt, 383 Pa. 556, 119 A.2d 83.

Couch, supra, n. 5, at 383.

We also note that when commenced, this action involved a complaint by the Woods against the insured and the insurance company, a counterclaim by the insured against the Woods, and a cross claim by the insured against the insurance company. The complaint and the counterclaim were settled. As a part of the settlement the Woods and the insured agreed that any funds recovered by the insured from the insurance company would be divided between them. Therefore, it would appear the parties in effect proceeded as the law dictates.

The trial court did not err in finding the insurance company to be fully liable on its insurance policy.

This case is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Ex Parte NATIONAL SECURITY FIRE AND CASUALTY COMPANY. (Re NATIONAL SECURITY FIRE AND CASUALTY COMPANY v. Ruby MILLER).
    80-236.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Doris A. BOYD v. L. D. BOYD.
    Civ. 2400.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    Rehearing Denied Jan. 28, 1981.

      Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Jack W. Torbert of Torbert, Turnbach & Warren, Gadsden, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The sole issue in this case is whether the division of property is so inequitable and the award of alimony in gross so inadequate as to constitute an abuse of discretion by the trial court. We hold that there was no abuse of discretion and affirm.

Although at times conflicting, the evidence tends to reveal the following facts: L. D. Boyd and Doris A. Boyd were married in 1952. They have three children, ages twenty-four, twenty-two and nineteen. Mr. Boyd owns and operates Dixie Heating and Cooling Company. Mrs. Boyd has worked throughout the marriage and has been employed at South Central Bell Telephone since 1955. Mrs. Boyd contends that she used her personal earnings from Bell Telephone to purchase stock for Mr. Boyd in Dixie Heating in 1961. Mr. Boyd denies such contention. Mr. Boyd also denied that Mrs. Boyd had ever invested any money in Dixie Heating, denied that she had any interest in property owned by Dixie Heating, and denied that Mrs. Boyd had ever loaned Dixie Heating any money. There is also conflicting evidence relating to other investments made by the parties.

There were three separate appraisals made of the property belonging to the parties. According to one appraisal, Mr. Boyd and Mrs. Boyd each received approximately $94,000. Another appraisal gave Mrs. Boyd approximately $52,000 and Mr. Boyd $142,-000. A third appraisal gave Mrs. Boyd approximately $87,000 and Mr. Boyd $164,000.

In its decree the trial court ordered that the residence and the farm on which it is located, along with the farm equipment, are to be sold and the proceeds divided between the parties as follows: two-fifths to Mr. Boyd and three-fifths to Mrs. Boyd. Mrs. Boyd is to receive the household goods with the exception of certain personal items belonging to Mr. Boyd. The parties jointly owned forty-one shares of AT&T stock which were divided equally between them. Mr. Boyd received all shares of the capital stock of Dixie Heating and the building and property which the business owned and on which the business was located. He was also awarded a vacant commercial building lot, two hundred shares of capital stock in Etowah Builders Supply and debentures in same, two automobiles, a house trailer, and share collateral at First Federal Savings and Loan. Mrs. Boyd was given all stock in Doris’ Beauty Shop other than that owned by some of her children, the property whereon the beauty shop is located, two automobiles, all remaining shares of AT&T stock, and a certificate of deposit in the amount of $5,000.00. Furthermore, Mrs. Boyd was awarded $7,500.00 as an attorney’s fee for the services of her attorney.

In divorce cases the rule is that the trial court’s decree is presumed correct and will not be set aside unless shown to be plainly and palpably wrong. Weeks v. Weeks, Ala.Civ.App., 373 So.2d 848 (1979). Furthermore, the trial court has wide discretion in making a property division and in awarding alimony in gross. Hawkins v. Hawkins, Ala.Civ.App., 346 So.2d 967 (1977). The division of property is not required to be equal but is required to be equitable. Thompson v. Thompson, Ala.Civ. App., 377 So.2d 141 (1979).

The awards to Mrs. Boyd show that she received approximately one-third to one-half of the value of the property, depending on which appraisal is believed. Such evidence does not support a conclusion that the trial court is plainly and palpably wrong in its awards; consequently the judgment is affirmed.

Appellant’s request for an award of an attorney’s fee on appeal is denied.

AFFIRMED.

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


author: SCRUGGS, Retired Circuit Judge. SCRUGGS, Retired Circuit Judge.

text:
    Benny L. McGEE v. FIRESTONE TIRE & RUBBER COMPANY.
    Civ. 2383.
    Court of Civil Appeals of Alabama.
    Jan. 7, 1981.
    Rehearing Denied Feb. 11, 1981.
    James L. Marks of Hewlett & Black, Muscle Shoals, for appellant.
    Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellee.
   SCRUGGS, Retired Circuit Judge.

Firestone sued Mr. McGee upon an account. After a non-jury trial the circuit judge made a detailed finding of fact and rendered judgment for Firestone. Mr. McGee appeals and argues the insufficiency of the evidence. We have diligently studied all of the testimony. It was supportive of the express findings and judgment of the trial court. On appeal, we presume to be correct a judgment of the circuit court which is entered after an ore tenus trial, and we are not permitted to disturb its findings unless they are palpably wrong, without supportive evidence, or manifestly unjust. Gertz v. Allen, Ala., 376 So.2d 695 (1979). The judgment was not wrong nor unjust and is upheld by the evidence.

The appellant further raises an objection to a witness being allowed to testify as to business records. The exhibits were sufficiently authenticated to be admitted into evidence. Gamble, McElroy’s Alabama Evidence § 254.01(3) (3d ed. 1977); ARCP, Rule 44(h).

We have carefully considered all of the issues raised on appeal and find no error. 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 Code of Alabama 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.

On Rehearing

SCRUGGS, Retired Circuit Judge.

We have carefully reconsidered and reviewed the evidence, all briefs of counsel and the appropriate law. It is again our studied opinion that the evidence supported the findings which were detailed in the judgment of the circuit court, especially the answers elicited from the witness Nellum through questions propounded directly by the trial court.

Opinion extended.

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


text:
    D. W. LANGDON v. J. H. ROMANO, Individually, and as President of Business Systems and Consultants, Inc., and Business Systems and Consultants, Inc., a corporation.
    Civ. 2503.
    Court of Civil Appeals of Alabama.
    Jan. 28, 1981.

      Clifford W. Hardy, Jr., Bessemer, for appellant.
    C. John Holditch of Lange, Simpson, Robinson & Somerville, Birmingham, for appel-lees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Langdon sued Romano and Business Systems and Consultants, Inc. (B.S.C.) for unpaid sales commissions. The trial court rendered judgment favorable to Romano, and there is no present contention that Romano is liable to Langdon. This appeal is by Langdon from his $919.47 judgment against B.S.C. as being inadequate in amount.

Romano, Langdon and most of the other employees of B.S.C. had previously been in the employ of Sperry-Rand (Sperry) when it determined to dealerize its direct operations. In June, 1976, Romano incorporated B.S.C. and B.S.C. became the Sperry franchise owner in the Birmingham area. Langdon became a salesman for B.S.C. In addition to selling within his territory, a salesman apparently bore the responsibility, at least in part, of installing and servicing of B.S.C. sold equipment and systems.

Their written employment contract dated September 20, 1976, was executed by both parties. It provided for the payment of commissions to Langdon based upon his sales to B.S.C.’s customers and contained a provision whereby the plan of compensation was “subject to the policies, regulations and determinations of the Company from time to time.”

There is evidence that one of the policies of the business machine industry, of Sperry and of B.S.C., since its incorporation, was that, when a salesman was terminated, he would receive only limited commissions. That policy was reduced to writing by Romano, as president of B.S.C., by issuing on January 3,1977, a supplement to their sales contract, which memo was directed to their sales force consisting of Langdon and two other salesmen. The written supplement provided, in pertinent part:

In the event a Sales Representative leaves the Company’s employ for any reason whatsoever, after a valid sales order has been written but before any part of the order is billed and installed 25% only of any commissions due will be credited to the Sales Representative who obtained the order and wrote the specifications. Part of the remaining commission may be credited to the succeeding Sales Representative assigned to the account, as compensation for satisfactory installation and service follow through at the request of the President....

The reasons for this policy were explained by Whitt, a fellow B.S.C. salesman:

Well, in our business a salesman has a territory. And, for instance, when one salesman leaves, the business — well, then another salesman has to go in and do things in that salesman’s territory as far as installing equipment and systems and whatever the case might be that he would be responsible for....

Langdon left his employment at B.S.C. on May 23, 1977, and, as to the present issues, periodically was paid the reduced commissions pursuant to the supplement; however, he did not complain about the amount of his commissions, object to them or even discuss it with B.S.C. He testified that he had never been notified of any such change in his commissions in the event of the termination of his employment, that he was unaware of and had never been informed of such policy, and that he had never seen the supplement while working at B.S.C. Romano’s evidence was that he personally informed Langdon of the supplement and discussed it with him and that Langdon had probably received in some instances the 75% of the sales commission when he replaced a terminated salesman. Romano stated that he handed a copy of the supplement to Langdon on or about its date. Langdon at no time registered any protest as to the supplement.

The gist of the trial question was whether Langdon was entitled to a stipulated sum as his full commission or to the amount of $919.47 if the supplement was determined to be valid. The effect of the judgment was to uphold the supplement.

The quoted provision from the initial employment contract expressly made the compensation plan subject to company policy “from time to time.” That was adequate authorization to make the supplement binding.

Even without that 1976 contract proviso, the evidence was otherwise sufficient to indicate that the supplement was expressly or impliedly agreed to by the parties, and its prospective application as to Langdon and B.S.C., in the event of his future termination of employment, gave it validity without further consideration other than such mutuality. 5 Ala.Digest, Contracts key nos. 237 and 238. The written employment contract as to commissions was subject to being mutually altered, and it is not required that any such change be signed by Langdon and B.S.C., or either of them, since such an agreement does not fall within the statute of frauds. Tilley v. Bartow, 8 Ala.App. 639, 62 So. 330 (1913); § 8-9-2, Code of Ala. 1975.

On appeal, we must review only those tendencies of the evidence which are most favorable to the findings and judgment of the trial court. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). In Langdon’s brief, the following appears:

The testimony between Langdon and Romano was substantially in conflict. Romano testified that the agreement was known by all the salesmen and a copy was given to each and every one. Lang-don testified that the first time he had seen the notice was at his attorney’s office after suit was filed for his commission and that he never knew anything about the modification.
Langdon’s testimony disagrees with the modification and expresses no knowledge of it. Romano’s testimony upholds the modification and Whitt’s testimony, who is an interested party and employee of B.S.C., of course, upholds the modification ....

Admittedly, there is conflict in the evidence. Credible evidence, and reasonable inferences therefrom, support the findings of the trial court. We, therefore, presume the circuit court’s judgment to be correct and must leave it undisturbed unless it is palpably wrong. 2A Ala.Digest, Appeal & Error key nos. 931(1), 1009(1) and (2).

We find no error.

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 it is hereby adopted as that of the court.

AFFIRMED.

All the judges concur.


text:
    MOBILE WHITE AUTOCAR CO., INC. v. Joseph H. PUCKETT.
    Civ. 2324.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.
    William M. Cunningham, Jr., of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Robert E. McDonald, Jr., Mobile, for ap-pellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

An evidentiary problem is presented for decision.

The complaint charged the defendant with false representations in the sale of a tractor-truck in 1975 to the plaintiff, the negligent repair of the truck and the breach of an implied warranty as to repairs made. The plaintiff’s evidence substantiated the averments of his complaint. Prior to offering the deposition of their former used truck manager, the defendant made an oral motion in limine as to some five pages of the cross-examination portion of the deposition pertaining to the salesman’s prior acts of misrepresentation in the sale of trucks. Their first objection was that such evidence did not prove a fraudulent intent, scheme or plan, and the plaintiff conceded that the evidence was not admissible for such purpose, but he contended that the questions were proper “to show contradiction for the purpose of impeachment, and no other purpose.” The trial court overruled the defendant’s motion in limine.

The defendant then read to the jury the direct and re-direct testimony contained in the deposition, which, in substance concerned the work history of the witness and denied any misrepresentations to the plaintiff by that salesman. The plaintiff presented the cross-examination now in controversy. For example and clarity, we quote the first portion thereof:

“Question: Mr. Reed, have you ever been in any misrepresentation lawsuits before”
“MR. CUNNINGHAM: Your Honor, for the record, I renew my objection.
“THE COURT: All right. [Note] your objection for the record. Overrule the objection. Let’s go ahead, Mr. McDonald.
“Answer: If you’re asking me if I ever misrepresented a truck before, no, I haven’t.
“Question: No, sir. That’s not what I asked you. I asked you have you ever been involved in any misrepresentation lawsuits before?
“Answer: Yes, I will answer your question. One time at Key GMC they traded for a bunch of trucks. And they assumed all of them was the same year, same titles. And Alabama is not a title law so they wrote a bill of sale out for a ’70 model and it was a ’69, which I didn’t know anything about it.
“Question: Was that the only one?
“Answer: That’s the only one that I can remember that I have ever been involved in.
“Question: Were you a party defendant in that lawsuit?
“Answer: Beg your pardon?
“Question: Were you a party defendant in that lawsuit?
“Answer: No. I was never called. I sat down there and waited but I was never called. They settled it out of court.”

The witness also testified and explained as to other alleged misrepresentations in the sales of trucks in 1971 and 1974 for other employers.

Judgment for a total of $8,242.56 was rendered against the defendant pursuant to the verdict of the jury. The defendant’s post-judgment motions were duly overruled and the defendant appeals contending error in allowing the introduction of such evidence. We agree.

Admittedly, the evidence could not be. introduced to show fraud, motive, scheme or intent, and it was not offered for that purpose.

Neither would this disputed portion of the deposition be admissible under the curative admissibility doctrine “which holds that if a party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence with other illegal evidence.” (Footnote omitted.) Gamble, McElroy’s Alabama Evidence § 14.01 (3d ed. 1977). Here, the unresponsive answer of the witness that if “you’re asking me if I ever misrepresented a truck before, no, I haven’t” does not open Pandora’s box so as to permit the introduction of the remainder of the disputed testimony, for such answer was not elicited by the defendant, and, additionally, was not responsive to the question. Id.

In a civil case, even a party’s good or bad character cannot be introduced for the purpose of showing that, at the time complained of, he acted in keeping with that character, whether such evidence be in the form of general reputation or general reputation for a special trait, or of prior acts indicating a particular character. Id. § 34.-01. Section 26.01 of McElroy’s treatise states the rule that a person’s character, good or bad, offered for the purpose of showing his conduct on a specific occasion, is not provable by evidence of his specific acts or course of conduct.

Therefore, the plaintiff is correct in his assertion in his brief that the real issue is whether the evidence constituted valid impeachment evidence. Since any such alleged prior misrepresentations to third persons, or participation in such prior cases, is not admissible as proof of the truth of the plaintiff’s contentions concerning the misrepresentation in this case, if such evidence is admissible at all, it is for impeachment purposes only.

To allow this evidence to be introduced for the purpose of impeachment would violate the rule that a witness may not be impeached by contradictions or self-contradictions upon an immaterial matter. 19A Ala.Digest, Witnesses Key No. 383. The question which elicited the irresponsive answer was itself objectionable, for it is immaterial in this case as to whether the witness had been previously involved in other misrepresentation cases. The fact that the witness on direct examination gave a brief history of his employment would not render the disputed evidence admissible to impeach such history.

Our discovery rules are broad [ARCP 26(b)(1)]; but, generally, the ordinary principles of evidence still apply as to the trial admissibility of a deposition or any part thereof. ARCP 32(b). We have searched the evidentiary rules and cannot justify under any theory the admission into evidence of the disputed testimony. We, therefore, hold that the trial court should have granted the defendant’s motion in li-mine thereby sustaining their objection to the presentation of such evidence to the jury. Since that evidence probably influenced the jury in reaching its verdict, the introduction of the objectionable portion of the deposition does not constitute error without injury under ARAP 45, and we are required to reverse.

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 1975, and it is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Clarence Robert LIGHTELL v. Willie Sue LIGHTELL.
    Civ. 2332-X.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.

      J. Cliff Heard, Montgomery, for appellant.
    J. Knox Argo and Laird R. Jones of Argo & Enslen, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The husband appeals from a judgment of divorce, which also determined him to be the father of a child born to the wife some two years after the parties had separated. The wife cross-appeals asserting error in the support and property division provisions of the judgment and in the failure of the trial court to award her an attorney’s fee.

The parties were married at Long Island, New York in 1962. The husband, in career service with the United States Army, was transferred numerous times and the transfers resulted in many changes of residence for the couple. They were able to buy a house in North Carolina in the late 1960’s which apparently served as their marital residence from that time until their separation in 1974, though the wife continued to live there until July 1976. In January 1976 the child whose paternity is disputed was born in North Carolina. The mother moved with the child to Alabama and has resided here since that time. The husband has traveled about pursuant to his career since the separation and currently resides in the Canal Zone.

In September 1978 the wife filed a petition for divorce in the Montgomery County Circuit Court seeking a divorce, alimony, custody of the child, child support, and transfer to her of the husband’s interest in the jointly-owned North Carolina home.

Since the wife filed her petition, the husband by pro se motion and by motions of his attorney, has continually objected to the jurisdiction of the court as to both subject matter and his person. The case proceeded as the husband’s objections were repeatedly overruled. The circuit court awarded a divorce to the wife, determined the husband to be the father of the child, and awarded child support. The husband appeals.

The issue on the husband’s appeal is whether personal jurisdiction over the defendant is required in order for the court to make a paternity determination pursuant to a divorce decree and, if such is required, whether that personal jurisdiction was present in this case.

We begin by noting that the evidence supports the determination of jurisdiction to render the divorce. The wife alleged and proved her residence pursuant to § 30-2-5, Code of Alabama (1975). This was sufficient to allow jurisdiction over the wife and the marital res. Sachs v. Sachs, 278 Ala. 464, 179 So.2d 46 (1965).

Although the granting of a divorce requires only that the court have jurisdiction over the marital res, a judgment establishing paternity generally requires personal jurisdiction over the defendant. Brondum v. Cox, 292 N.C. 192, 232 S.E.2d 687 (1977); Watkins v. Watkins, 194 Tenn. 621, 254 S.W.2d 735 (1953). A note entitled Developments in the Law-State Court Jurisdiction, in 73 Harv.L.Rev. 909 offers sound reasoning on the subject where it states:

Although the paternity plaintiff has occasionally argued that jurisdiction should be assumed ex parte, that contention has been universally rejected even by courts which have found no difficulty in sustaining ex parte jurisdiction over divorce, on the ground that there exists a fundamental difference between actions such as divorce which merely sever a personal status — although they may continue preexisting obligations — and actions like paternity which impose new affirmative duties and obligations.... Because of the extremely harsh and unfair consequences of an erroneous judgment, jurisdiction in paternity cases should be allowed only upon compliance with the general criteria of fairness and convenience applicable to other types of personal actions. . ..

The husband has contended that the paternity determination, and award of child support pursuant thereto, is a personal judgment against him and requires the court have personal jurisdiction over him. We agree with his contention. A judgment establishing paternity necessarily fixes upon the defendant father a personal obligation for support of the minor child and certain rights of inheritance. Brondum v. Cox, supra. A paternity determination incident to a divorce decree must be rendered by a court having jurisdiction over the person of the defendant.

It is undisputed that the husband was and is a non-resident of Alabama. ARCP, 4.2(a)(2) defines the bases of in personam jurisdiction over non-residents of Alabama in subdivisions (A)-(I) of that rule. The parties to this appeal recognize, and we agree, that subdivision (I) is the only possibility for the court to exercise jurisdiction over the person of the husband in the present case.

Subdivision (I) allows jurisdiction over a person who has some “minimum contacts” with Alabama sufficient to subject the nonresident individual to suit in this state and is generally considered a “catch-all” provision for that purpose. Corcoran v. Corcor-an, 353 So.2d 805 (Ala.Civ.App.1978). An essential criterion in cases where the state seeks to acquire personal jurisdiction over a defendant through “minimum contacts” is whether the quality and nature of the defendant’s activities in the state are such that it is reasonable and fair to require him to conduct his defense there. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

In the present case, to put it succinctly, the defendant has never conducted any activity in the State of Alabama. Nothing in the record would suggest that any basis for the exercise of in personam jurisdiction over him in Alabama would exist. The plaintiff seeks to assert that the husband’s failure to support his minor child in Alabama provides the “minimum contacts” necessary. This argument, however, only restates the issue, that is, whether or not the husband had an obligation to support this child, i. e., the paternity determination. Plaintiff also asserts that Alabama’s strong interest in protecting the welfare of the minor child provides the sufficient “minimum contact.” While this interest is unquestionably important, it simply does not make Alabama a fair forum in which to require the husband, who derives no personal or commercial benefit from the child’s presence in Alabama, and who lacks any other relevant contact with the state, to defend a paternity determination therein. Kulko v. Superior Court of California, supra, 436 U.S. at 100, 98 S.Ct. at 1701. The unilateral activity of the wife in moving to Alabama cannot satisfy the requirement of the husband’s “minimum contacts” with the forum state. It is essential in each case that there be some act by which the defendant purposely avails himself of the privilege of conducting activities in the forum state. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The defendant-husband conducted no activity in Alabama; no in personam jurisdiction over him existed and the paternity determination and accompanying order of child support were erroneously entered by the circuit court.

It necessarily must follow that the court was equally without jurisdiction to render personal judgment for alimony, attorney fees and division of property lying in North Carolina. The cross appeal of the wife must fail because the failure of the court to grant her relief in those areas was not erroneous.

The husband’s appeal requires reversal of the judgment’s provisions as to the paternity and support of the child. The court’s findings, made the subject of the wife’s cross-appeal, are due to be affirmed. The wife’s request for an attorney fee on appeal is hereby denied.

AFFIRMED IN PART: REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Patricia E. HALLMARK v. Billy F. HALLMARK.
    Civ. 2379.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.
    Gary L. Aldridge, Decatur, for appellant.
    Ralph E. Slate, Decatur, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were divorced on May 7, 1980 for incompatibility of temperament. The trial court awarded custody of the parties’ only child to the mother and $150 per month as child support; awarded to the wife the possession and use of the marital home until she married or gave up possession, or until the child was emancipated, and provided that upon the occurrence of one of these events the house was to be sold and the proceeds divided equally between the parties; directed the husband to make the monthly mortgage payments of $322 until the house was sold; awarded the wife title to the 1977 Cadillac and directed the husband to make the mortgage payments; awarded the wife $6,000 from an $11,000 savings account; awarded the wife all of the household furniture and furnishings; awarded the wife $500 for attorney fees; awarded the husband the $5,000 remaining in the savings account; and awarded the husband the title to the 1980 Chevrolet Chevette. Wife appeals and contends that the trial court erred in the disposition of the marital property and in failing to award her alimony in gross. She says that she should have been given a one-half interest in the marital homeplace and all of the $11,000 savings account. We disagree and affirm.

The parties to this appeal were married in October 1967. One child resulted from this marriage, a daughter who is now ten years of age. Mr. Hallmark is forty-two years old, in good health, and is employed by Chemstrand Family Credit Union in Decatur, Alabama. His gross earnings for 1979 were approximately $23,000. Mrs. Hallmark is forty-four years old, in excellent health, and is the manager of a men’s clothing store in Decatur, Alabama. Her gross earnings for 1979 were approximately $14,000. The family home built by the parties during the marriage and jointly owned was valued at about $95,000. There was an outstanding mortgage on the house of $30,-000. The parties owned a 1977 Cadillac and a 1980 Chevrolet Chevette on which there were outstanding mortgages. There was an $11,000 savings account at the Chemst-rand Credit Union. Mrs. Hallmark stated that a substantial portion of her paycheck was placed in this account. Mr. Hallmark never contributed any of his money to this account. The evidence is in dispute as to whether the account is in the joint names of the parties or in the name only of Mrs. Hallmark.

The evidence relating to the cause or causes of the marital discord contributing to the divorce is in dispute and no good purpose would be served by setting it out here. Suffice it to say, however, that neither party can claim to be without blame.

In divorce cases where the question of alimony or division of property is raised, there are certain principles that are observed by the court to help it reach a decision. One of these principles is that:

The award of alimony and the division of property are matters within the discretion of the trial court and unless the record indicates a plain and palpable abuse of that discretion, the trial court’s judgment is not subject to revision or reversal on appeal.

Dennis v. Dennis, Ala.Civ.App., 383 So.2d 187 (1980). We have also said that:

[1]n dividing a divorcing couple’s property or in awarding alimony to the wife or husband, the court should consider the earning ability of the parties, their future prospects, their age, health, station in life, duration of their marriage, and their conduct relative to the cause of the divorce.

Boyd v. Boyd, Ala.Civ.App., 390 So.2d 644 (1980).

Applying these well recognized principles of law to the facts of the case at bar, we cannot say that the trial court plainly and palpably abused its discretion in refusing to award Mrs. Hallmark alimony in gross, an undivided one-half interest in the homeplace, or the entire amount of the savings account.

Appellant argues that the trial court failed to give the alleged marital misconduct of the husband its proper weight, otherwise the awards to her would have been greater. It should be noted that the marital misconduct of a party is but one of many factors to be considered by a court in deciding whether to award alimony to a party and, if so, how much. In the instant case we cannot say that the trial court did not give the alleged misconduct factor its proper weight. A careful review of the evidence relating to the alleged misconduct leads us to the conclusion that very little weight was due to be given this factor.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ex parte Vivian SMITH. (In re Vivian SMITH v. PERSONNEL BOARD OF JEFFERSON COUNTY).
    Civ. 2420.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.

      Robert A. Jones, Jr., Birmingham, for appellant.
    Hubert A. Grissom, Jr., and David P. Whiteside, Jr., of Johnston, Barton, Proctor Swedlaw & Naff, Birmingham, for appellee Personnel Bd. of Jefferson County.
    Edwin A. Strickland and Gregory T. Bitt-ner, Birmingham, for appellee Cooper Green Hospital.
   HOLMES, Judge.

This is an employee dismissal case. Ms. Vivian Smith was dismissed by Cooper Green Hospital. Ms. Smith appeals.

The record reveals the following pertinent facts: Ms. Vivian Smith was employed by Cooper Green Hospital as a staff nurse in December of 1975 and remained an employee of the hospital until her dismissal on June 12,1979. For approximately one year prior to her dismissal Ms. Smith served as a “lead worker” in the hospital’s medical clinic. She apparently had some administrative and supervisory duties as “lead worker.”

Ms. Smith was dismissed on grounds of incompetency and inefficiency, pursuant to Rule 6.2(h), Rules and Regulations of the Jefferson County Personnel Board. Section 22 of the Personnel Board’s Enabling Act provides for an appeal to the Personnel Board. Ms. Smith did so appeal. The board appointed a hearing officer who presided over a three day hearing.

A number of Ms. Smith’s co-workers testified; they generally agreed that Ms. Smith was unreliable and uncooperative. Some even testified that the clinic actually operated more smoothly while Ms. Smith was away on a leave of absence.

Ms. Smith’s supervisor stated that one day she visited the clinic and found a drawer full of papers, including prescriptions for patients which had not been filled, physicians’ orders for laboratory work which had not been done and requests for nuclear medicine which had not been acted upon. It was Ms. Smith’s responsibility to make certain these papers were processed.

Certain evaluations made of Ms. Smith’s performance on the job were also offered as evidence of her incompetency and inefficiency. These evaluations were dated March 15, 1979, May 8, 1979, and June 4, 1979. The evaluations noted that although Ms. Smith was knowledgeable and had been well-trained, she failed to properly apply herself. Ms. Smith’s performance did not improve even after she was confronted with these evaluations.

The hearing officer sustained the hospital’s dismissal of Ms. Smith. The Personnel Board adopted the officer’s findings of fact and law and sustained the dismissal.

Pursuant to Section 22 of the Enabling Act, Ms. Smith then filed notice of appeal to the Circuit Court of Jefferson County. A three judge panel, as provided by the Enabling Act, was appointed by the presiding judge of the circuit court to review questions of law and to determine whether or not the board’s decision was supported by the substantial and legal evidence. The panel affirmed the board’s action on May 29, 1980.

Ms. Smith then filed notice of appeal with this court on July 10, 1980, naming only Cooper Green Hospital as appellee. The Personnel Board received no notice, nor was it named as a party. On August 21, 1980, Ms. Smith filed in proper form a petition for certiorari. On that same date she filed her brief in the case, which was styled as an appeal or in the alternative as a petition for writ of certiorari. These documents named the Personnel Board as a party and they were served on the board as well as the hospital.

As a threshold question, the Personnel Board has indicated that the proper forum for this case is the Alabama Supreme Court. We disagree.

It is true that Section 22 of the Enabling Act states that the decision of the three judge panel “shall be determinative of the case and there shall be no appeal to any appellate court of Alabama” (Emphasis added.)

However, Section 12-3-10 of the Alabama Code of 1975 provides that the Court of Civil Appeals shall have exclusive appellate jurisdiction over “all appeals from administrative agencies other than the Alabama public service commission ... and all extraordinary writs arising from appeals in said cases.”

Clearly, the Jefferson County Personnel Board is an administrative agency. Therefore, this case is one over which the Court of Civil Appeals would generally have jurisdiction, both as to appeals and as to extraordinary writs.

Certainly, the legislature may prohibit an appeal in a particular type of case, as it has done in the case before this court. Nevertheless, that prohibition of appeal by the legislature does not affect the authority of the court to review the proceedings below by granting certiorari. See, Ex parte Bracken, 263 Ala. 402, 82 So.2d 629 (1955). Because the Enabling Act provides no right of appeal or statutory certiorari, the common law writ of certiorari is the only available means of review. Phelps v. Public Service Comm’n, 46 Ala.App. 13, 237 So.2d 499 (1970).

This court also has the authority to grant “such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it....” § 12-3-11, Code of Alabama 1975.

Clearly, the panel of circuit judges below constitutes a jurisdiction inferior to this court. It follows that this court has the authority to grant a writ of certiorari to review the proceedings below in order to superintend and control that panel. We conclude that this court is the proper forum and that our review is by writ of certiorari.

The Personnel Board also contends that Ms. Smith’s petition, for writ of certio-rari is untimely because she did not comply with the time limitations set out in Rule 39, Alabama Rules of Appellate Procedure. That rule is not applicable in the case before us; Rule 39 applies to cases in which a party requests the Alabama Supreme Court to review a court of appeals decision by writ of certiorari.

Apart from cases in which Rule 39 applies, mere delay in filing a petition for a common law writ of certiorari is not a sufficient defense, Byars v. Town of Boaz, 229 Ala. 22,155 So. 383 (1934). Such a petition should not be dismissed on grounds of delay unless the delay makes it unjust or unreasonable to grant the relief sought. Rudolph v. Rudolph, 251 Ala. 317, 36 So.2d 902 (1948).

In the case before this court less than ninety days elapsed between the ruling by the three judge panel and the filing of a petition for certiorari. The delay in this case does not make it unjust or unreasonable to grant the relief sought. We have therefore granted the petition for certiorari to review the decision of the three judge panel.

Our review upon granting certiorari is limited to a consideration of the proper application of the law involved and whether the ruling below was supported by the legal evidence. Ex parte Watkins, 268 Ala. 567, 109 So.2d 671 (1959); Ex parte Bracken, supra.

Ms. Smith contends that the ruling of the three judge panel was not supported by the legal evidence. As indicated, the panel sat to review the decision of the Personnel Board. The standard of review to be applied by the panel of judges to the board’s judgment is whether that judgment was supported by the substantial and legal evidence. Section 22 of the Enabling Act of the Jefferson County Personnel Board; Templin v. City Comm’n of the City of Birmingham, 279 Ala. 473, 187 So.2d 230 (1966).

The three judge panel found that the Personnel Board’s judgment was supported by legal and substantial evidence. In view of the facts discussed above, with particular emphasis on Ms. Smith’s failure to complete assignments given her by doctors, we cannot say that the panel’s affirmance of the board’s judgment was not supported by any legal evidence.

Ms. Smith also contends that she is entitled to recover back pay from the date of her dismissal until the date her dismissal was affirmed by the Personnel Board. This issue was not raised below. Because the scope of review under common law certiora-ri is confined to the record, the writ does not lie for the purpose of reviewing issues which were not presented to the lower court. Ex parte Noble, 267 Ala. 488, 102 So.2d 902 (1958), cert. denied, 359 U.S. 937, 79 S.Ct. 651, 3 L.Ed.2d 637 (1958).

It has generally been considered improvident to grant a writ of certiorari when it appears that substantial justice has been done. Ex parte Watkins, supra. A writ which has been improvidently granted may be quashed by the court which granted it. Ex parte Watkins, supra.

Having concluded from a perusal of the record that the decision of the three judge panel is supported by legal evidence, we must affirm that decision.

WRIT QUASHED.

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

      . Act No. 248, Acts of Alabama 1945, as amended by Act No. 562, Acts of Alabama 1947; Act No. 927, Acts of Alabama 1953; and Act No. 679, Acts of Alabama 1977.


text:
    WINN-DIXIE STORE NO. 1501 v. Daisy BROWN.
    Civ. 2457.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.

      Daniel A. Pike of Sintz, Pike, Campbell & Suke, Mobile, for appellant.
    C. Lenoir Thompson, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

This is a “slip and fall” case.

The dispositive issue is whether the evidence produced on behalf of the plaintiff, Daisy Brown, was sufficient to support the trial court’s finding of negligence on the part of the defendant, Winn-Dixie. We find such evidence was insufficient and that the plaintiff failed to prove a prima facie case of negligence. Therefore the judgment below must be reversed.

In slip and fall cases, as in all negligence cases, the plaintiff had the burden of establishing by the evidence the negligence of the defendant. 15 Ala.Dig., Negligence, Key No. 121.1(8). The evidence of the plaintiff as to the issue of negligence consisted of the following:

Brown was shopping for groceries at Winn-Dixie in Bay Minette, Alabama, on Saturday morning, November 18, 1979. While pushing a grocery cart down the aisle in the store’s produce section, she slipped and fell on what she assumed were vegetable trimmings. She didn’t see the trimmings before she fell. She did see green trimmings on the floor after she fell. She was wearing “anti-skid” soled shoes. An employee of Winn-Dixie was nearby at the time of the incident. Other customers were in the vicinity. She was injured.

It is well settled that the duty upon the storekeeper, in a case such as this, is to exercise reasonable care in providing and maintaining reasonably safe premises for the use of the customer. Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968). The storekeeper is not an insurer of the customer’s safety while on the premises, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586, cert. denied 287 Ala. 729, 255 So.2d 592 (1971).

As the burden of showing negligence rests with the plaintiff, it is necessary to prove: (a) that the foreign substance slipped upon was on the floor a sufficient length of time to impute constructive notice to the defendant, or (b) that the defendant had actual notice of the substance’s presence on the floor, or (c) that the defendant was delinquent in not discovering and removing the foreign substance. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957).

In the instant case, plaintiff offered no evidence that the defendant had actual notice of the vegetable trimmings being on the floor at the time of the incident. (The evidence offered was only to the effect that an employee was nearby at the time of the incident. See, May-Bilt, Inc. v. Deese, 281 Ala. 579, 582, 206 So.2d 590, 593.) She offered no evidence from which it might reasonably be inferred that the store was delinquent in not discovering and removing the offending substance. (No evidence was produced as to any failure to sweep, clean or observe the floors at regular intervals. See, Delchamps, Inc. v. Stewart, supra.) No evidence was offered to support a claim that the trimmings had been on the floor a sufficient length of time to impute constructive notice to defendant. (The only evidence in this regard was obtained by defendant’s examination of plaintiff wherein she stated that the trimmings appeared fresh and green. No other evidence as to the nature or condition of the foreign substance was forthcoming. See, Foodtown Stores, Inc. v. Patterson, supra.)

In short, the plaintiff offered no evidence from which it might reasonably be inferred that the defendant-store acted negligently. The presence of vegetable matter on the floor does not of itself show a lack of reasonable care. No presumption of negligence arises from the mere fact of injury to an invitee. F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667 (1940).

The mere possibility that negligence caused an injury, without evidence, is not sufficient to support a verdict. Marshall Durbin Company v. Hartley, 392 So.2d 240 (Ala.Civ.App.1980). For the failure of the evidence to support the judgment of the trial court, that judgment must be reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Mary Ann PHILLIPS v. ALABAMA DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 2348-A.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.

      Raymond Uhrig, Huntsville, 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 child custody case.

The Department of Pensions and Security (DPS) filed petitions in the Madison County Circuit Court seeking permanent custody of Mary Ann Phillips’ two minor daughters for adoptive planning. After ore tenus hearing the trial court granted the petition and the mother appeals. We affirm.

In his well-written brief the able counsel for appellant has set forth seven issues for our consideration. The seven are, in fact, only four.

Appellant first claims that the judgment of the trial court must be reversed for failure to comply with § 12-15-65(c), Code of Alabama (1975). This section provides that in juvenile proceedings where the allegations are denied and the court hears evidence on the petition, the court shall “record its findings on whether or not the child is a dependent child.... ” The appellant argues that the failure of the trial court to use the specific term “dependent” in its findings constitutes reversible error.

The orders complained of found, among other things, that the mother was “unable to provide a suitable plan for the rearing of said child,” and that the children’s best interests would be served by granting their permanent care, custody and control to DPS for adoptive planning. Section 12-15-l(10)(b and k) sets out the following definition of a “dependent” child:

(10) DEPENDENT CHILD. A child:
b. Who is without a parent or guardian able to provide for his support, training or education; or
k. Whose parents, guardian or other custodian are unable to discharge their responsibilities to and for the child.

The trial court’s finding that the child’s one available parent, the mother, is “unable to provide a suitable plan for the rearing of said child” is essentially in compliance with the definitions set forth above. Section 12-15-65(c) does not require the express use of the word “dependent.” The court, in finding the allegations of a petition in a juvenile proceeding to be true, necessarily finds the child to be either “dependent,” “delinquent” or “in need of supervision.” See, §§ 12-15-52, 65, Code of Alabama (1975). The DPS petitions specifically alleged the children to be “dependent” and the trial court’s order was sufficient to apprise the mother that they had been so found. No error existed in this regard.

The second issue is whether the evidence supports the trial court’s awarding permanent custody to DPS. The court’s judgment in cases of this nature, after hearing the evidence ore ten us will be given every favorable presumption and will not be disturbed unless palpably wrong. Smith v. State Dept. of Pensions & Security, 340 So.2d 34 (Ala.Civ.App.1976).

The ultimate consideration in child custody cases is the welfare of the child and it is well settled that the prima facie right of a parent to custody will yield where such custody is not in the child’s best interest. Crews v. Houston County Dept. of Pensions & Security, 358 So.2d 451 (Ala.Civ.App.1978); State Dept. of Pensions & Security v. Hall, 50 Ala.App. 290, 328 So.2d 295 (1976). Thus, unless the trial court’s determination that the interests of these children would best be served by placing their permanent custody in DPS is palpably wrong, we must affirm. Crews, supra.

We see no reason to present a detailed sketch of the evidence presented in this case. The record before us, which we have carefully reviewed, is a lengthy one. The trial court heard at least eight witnesses testify in detail as to the occurrences leading and subsequent to the filing of the petitions by DPS. Neither the children about whom this case revolves nor the mother would benefit from a rehash of that testimony here. We do relate that the unmarried mother gave birth to both children under very unfavorable circumstances when she was fifteen and seventeen years of age. They were fathered by different men, with contradiction by the mother as to the identity of the father of the younger. She voluntarily placed the oldest child with DPS for foster care at the age of four months and has not lived with the child for almost three years. She informed DPS that upon the birth of her second child she would give both children up for adoption and then declined to do so. DPS has aided appellant and attempted to counsel and devise plans for her and the children since before the first birth. She has failed in her efforts over the last three years to provide a stable home and means of support for the children, and any finding that she would do so in the future would be without foundation on past performance and based on mere speculation. In addition, the trial court had more than adequate reason to suspect that the children would end up back in the grandmother’s home if custody was granted to the mother. The testimony as to the conditions existing in that residence reveal a decidedly unfavorable environment for rearing small children. In view of the record, we cannot say the trial court’s award of permanent custody to DPS for adoptive planning is palpably wrong. There was more than sufficient evidence to support the court’s order. See, Long v. O’Mary, 270 Ala. 99, 116 So.2d 563 (1959); Harrell v. Long, 49 Ala.App. 322, 272 So.2d 248 (1973).

The appellant next contends that the judgment of the trial court cannot be sustained because the “best interest of the child” standard, under which this and other child custody cases are decided, is violative of the mother’s constitutional rights to due process and equal protection of the law. For this contention the appellant relies primarily on Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976) and a line of cases consistent therewith.

It is well settled in Alabama that constitutional issues not raised in the court below will not be considered on appeal. Hunley v. Houston County, Alabama Dept. of Pensions & Security, 365 So.2d 81 (Ala.Civ.App.1978). The question presented is raised for the first time on appeal and is inappropriate for our determination. We call appellant’s attention to the case of Miller v. Alabama Dept. of Pensions & Security, 374 So.2d 1370 (Ala.Civ.App.), cert. de nied, 374 So.2d 1378 (Ala.1979), for a thorough discussion of the effect of Roe on child custody cases. Appellant’s constitutional issue offers no ground for reversal of the trial court.

Finally, the appellant seeks reversal by asking this court to recognize a social worker-client privilege, which would result in error in permitting the appellant to testify to certain communications she had with a DPS employee assigned to her case. We have addressed and denied a similar contention previously. Parten v. Parten, 351 So.2d 613 (Ala.Civ.App.1977). Appellant has cited no statute or rule which would persuade us to recognize such a privilege. In addition, Alabama allows no privilege of a general nature that a communication shall not be disclosed merely because it was made or received in confidence. Gamble, McElroy’s Alabama Evidence, § 386.01 (3d ed. 1977). There was no error in the taking of this testimony.

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Abner CHAVIS, Jr. v. Linda Diane CHAVIS.
    Civ. 2355.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.
    Benjamin E. Pool, Montgomery, for appellant.
    John P. McClusky and Ginger E. Garrett of Legal Services Corporation, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This appeal is from an order setting aside, for lack of jurisdiction, a default judgment of divorce. The case transpired as follows:

The husband, Abner Chavis, filed suit for divorce in the Montgomery County Circuit Court on June 28, 1979. Out-of-state service by process server was had upon the wife, Linda Diane Chavis, a resident of Louisiana. She failed to respond within the time allowed by law. Default judgment was entered on application to the deputy registrar of the court and a final judgment of divorce was rendered on August 17,1979. The judgment awarded custody of the parties’ minor children to the husband.

On January 7, 1980, the husband filed a contempt petition alleging that the wife had refused to surrender the children in violation of the judgment. The wife filed a motion to dismiss the contempt action and subsequently amended the motion, asserting that the judgment was void for lack of jurisdiction. A hearing was held on the husband’s petition, wife’s motion and amendment thereto on April 4, 1980. On April 15 the court dismissed the husband’s petition and found the divorce decree void. The husband filed a motion to alter, amend or vacate the judgment, the motion was denied and the husband appeals. We affirm.

The wife’s motion to dismiss, made the basis for the relief granted, was, as amended, án attack on the final judgment of divorce.

The amended motion set forth the following:

2. Plaintiff, at the time of filing his complaint for divorce, herein was not, to the best of defendant’s knowledge and belief, a bona fide resident or domiciliary of the State of Alabama, as required by Sec. 30-2-5, Code of Alabama (1975). Therefore the court lacked jurisdiction to enter the decree sought to be enforced herein and it was void.

Our courts consider motions according to their substance. Den-Tal-Eze Mfg. Co. v. Gosa, 388 So.2d 1006 (Ala.Civ.App.1980). The substance of the amended motion was to set aside the divorce decree as void. The court could and did consider the motion as a Rule 60(b) motion. ARCP 60(b)(4).

The central issue to this appeal is whether the court was correct in finding its earlier divorce decree void for lack of jurisdiction. Personnel Board for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App. 1977), cert. denied, 354 So.2d 12 (Ala.1978).

Section 30-2-5, Code of Alabama (1975) provides that if a defendant in a divorce case is a nonresident of Alabama, the plaintiff must have been a bona fide resident of this state for six months next before the filing of the complaint. Our courts have no jurisdiction over the marital res where the residence requirement is not met. A judgment rendered without proof of this requirement is void for want of subject matter jurisdiction. Winston v. Winston, 279 Ala. 534, 188 So.2d 264 (1966); Volin v. Volin, 272 Ala. 85, 128 So.2d 490 (1961); Levy v. Levy, 256 Ala. 629, 56 So.2d 344 (1951). Residence, for purposes of § 30-2-5, is the same thing as domicile. See, Richardson v. Richardson, 258 Ala. 423, 63 So.2d 364 (1953).

It is undisputed that the defendant was a nonresident when the action commenced. The question thus becomes one of the husband’s residence. Was Abner Chavis a bona fide resident of Alabama for the six months next preceding the filing of the complaint?

The April 4 hearing before the court was conducted for the purpose of determining the husband’s residence as it pertained to § 30-2-5. Oral testimony was heard by the court. The court determined the husband had not met the residence requirement and set aside its divorce judgment as void for lack of jurisdiction. In such a case the judgment of the court is presumed correct and will not be set aside on appeal unless so contrary to the great weight of the evidence as to be palpably wrong. Nero v. Material Sales Co., 340 So.2d 454 (Ala.Civ.App.1976).

We do not set out here the evidence adduced at trial touching the issue of fact as to whether the husband was a resident of or domiciled in Alabama at the time of filing the complaint for divorce. It is sufficient that there is evidence to support the finding of the trial court that he was not. We therefore affirm.

AFFIRMED.

BRADLEY, J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge

(concurring specially.)

I agree with the majority opinion; however, I feel constrained to comment that there also is ample evidence to support a conclusion that the husband was in fact a domiciliary of Alabama. Put another way, the evidence and its legal import had to be resolved by the trial court. As the majority states, the trial court’s resolution is supported by the evidence. For this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707.