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    ALABAMA POWER COMPANY, a Corporation v. ALABAMA PUBLIC SERVICE COMMISSION. R.S. CROWDER v. ALABAMA PUBLIC SERVICE COMMISSION.
    81-48, 81-117.
    Supreme Court of Alabama.
    Nov. 5, 1982.
    Thomas W. Thagard, Jr. of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, John Bingham, Rodney 0. Mundy, Steven G. McKinney, and Dan H. McCrary of Baleh, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Robert E. Steiner, III of Steiner, Crum & Baker, Montgomery, for appellant Alabama Power Co.
    R.S. Crowder, pro se.
    Euel A. Screws, Jr. and James M. Edwards of Copeland, Franco, Screws & Gill, Montgomery, Charles A. Graddick, Atty. Gen., for appellee Alabama Public Service Commission.
   PER CURIAM.

Alabama Power Company (the company) appeals from an October 16, 1981, order of the Alabama Public Service Commission (the commission) denying the company’s petition for a rate increase. Code 1975 (1982 Supplement), § 37-1-140, grants the right to appeal directly to this Court from orders of the commission in rate cases such as this case.

CASE HISTORY

The company filed a new rate schedule with the commission on March 19, 1981, to become effective on April 18, 1981. See Code 1975, § 37-l-81(a). The commission ordered the schedule suspended through October 18, 1981 — the maximum suspension allowed, § 37-l-81(b). Numerous parties intervened, including the Attorney General as consumer advocate. See Code 1975 (1982 Supplement), § 37-1-16. The commission held hearings on the matter from June 29 through September 25, 1981, producing 7,971 pages of transcript and 126 exhibits. On October 13, 1981, the commission voted to deny any rate increase and issued a final order to that effect on October 16. The company filed notice of appeal on the same day.

The company’s proposed rate schedule sought to produce additional annual revenues of $324.9 million, approximately an 18% net increase in rates to customers. Upon filing this appeal, the company also applied for supersedeas in the full amount of its request as provided in Code 1975 (1982 Supplement), § 37-1-141. The company filed a brief in support of its application for supersedeas; the commission, the Attorney General, and the Alabama League of Aging Citizens, Inc., an intervenor in the commission hearings, filed briefs in opposition to the application.

On November 5, 1981, R.S. Crowder, in-tervenor below, filed a separate appeal from the commission’s order. This appeal was consolidated with the company’s appeal.

On November 20 this Court ordered the commission to respond to allegations of confiscation made by the company in its application for supersedeas, and to answer specific questions set out in the order. The commission filed its response and answers on December 11; on December 16, the company filed its own responses to both the questions and the commission’s answers.

On February 12, 1982, this Court issued an order superseding the commission’s order of October 16 to allow the company to collect, under supersedeas bond, an amount which would increase the company’s revenues in the ensuing six months by $75 million. The order also required the company to file a report with this Court reflecting the company’s experience under the commission’s zero order and additional reports monthly during the pendency of the appeal. The reports were to include computations of the annualized rate of return to equity that the company earned or would have earned' under supersedeas as granted, under the zero order without any supersedeas, and under full supersedeas as requested by the company.

The company filed its supersedeas bond in the required amount of $150 million on February 12, 1982. On February 16 it filed a new schedule of rates to collect the amount allowed under supersedeas. On February 19 the company filed the first report required by the supersedeas order, and has continued to file its reports every month.

The parties presented oral argument before this Court and the case was submitted on the merits.

PRINCIPLES OF REVIEW

This case has presented particular difficulty for our review because the commission’s order is almost void of references to the record. See Appendix A. Instead, the commissioners relied on their “common sense” knowledge of the difficult economic times, the fact that they had already given the company rate relief in recent years, and their refusal to consider the effects of the second unit of the Farley nuclear plant (Farley II). Finding that the company was earning 12.43% on equity at the end of the test period and that the returns for the following four months (i.e., until Farley II went on line) had increased slightly, the commission concluded that the company’s earnings were “adequate for the present” and denied any increase in rates.

Appellate review of commission rate orders is predicated on Code 1975 (1982 Supplement), § 37-1-140, et seq. The 1978 statute now codified in these sections supersedes the older code sections, Code 1975, § 37-1-120, et seq., which provided the Circuit Court of Montgomery County as an intermediate court of appeals. Nevertheless, the principles governing review remain largely the same.

We begin with the statutory guidelines for utility rates:

“§ 37-1-80. Rates to be just and reasonable; right of utility to earn fair net return.
“The rates and charges for the services rendered and required shall be reasonable and just to both the utility and the public. Every utility shall be entitled to such just and reasonable rates as will enable it at all times to fully perform its duties to the public and will, under honest, efficient and economical management, earn a fair net return on the reasonable value of its property devoted to the public service. For the purpose of fixing rates, such reasonable value of a public utility’s property shall be deemed to be the original cost thereof, less the accrued depreciation, as of the most recent date available. In any determination of the commission as to what constitutes such a fair return, the commission shall give due consideration among other things to the requirements of the business with respect to the utility under consideration, and the necessity, under honest, efficient and economical management of such utility, of enlarging plants, facilities and equipment of the utility under consideration, in order to provide that portion of the public served thereby with adequate service.”

Code 1975 (1982 Supplement).

The determination of rates and of what constitutes a fair return on the utility’s property is a legislative question which the legislature has delegated to the commission. “This Court’s inquiry ordinarily goes no further than to ascertain whether there is evidence to support the findings of the Commission.” Alabama Gas Corp. v. Wallace, 293 Ala. 594, 602, 308 So.2d 674 (1975). See, also General Telephone Co. of the Southeast v. Alabama Public Service Commission, 335 So.2d 151 (Ala.1976); Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 47 So.2d 455 (1949); St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033 (1936).

A consideration which overrides these issues of legislative function, delegation, and limited judicial review, however, is the constitutional question of whether the commission’s order operates to deprive the company of its property without just compensation or due process of law. The company raises this question by properly alleging confiscation of its property.

“... In this consideration we should remember the principle that the property of a public utility, although devoted to the public service and impressed with a public interest, is still private property. Neither the property nor its use can be taken for a compulsory price which falls below the measure of fair and just compensation. In the case of Board of Public Utility Commissioners v. New York Tele phone Company, 271 U.S. 23, 32, 46 S.Ct. 363, 366, 70 L.Ed. 808, 812, the Supreme Court of the United States said:
‘The just compensation safeguarded to the utility by the Fourteenth Amendment is a reasonable return on the value of the property used at the time that it is being used for the public service, and rates not sufficient to yield that return are confiscatory. * * ”

Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 253 Ala. 1, 12, 42 So.2d 655 (1949) (hereinafter APSC v. Southern Bell).

The commission asserts that the utility must prove confiscation, not merely allege it, before review of a rate order takes on constitutional dimensions; otherwise, a utility could always bypass the normal limited review of commission orders. The commission is correct to the extent that, once a utility has raised the issue of confiscation on appeal, the record must show by substantial evidence that confiscation has taken place. If it fails to do so, the court will not only decline to broadly review a technical, voluminous record; it may very well affirm the commission’s order. See, Alabama Gas Corp. v. Alabama Public Service Commission, 425 So.2d 430 (Ala.1982).

Not only has the company in this case properly alleged and argued confiscation, but also the record clearly shows that the order is confiscatory. The commission determined 12.43% return on equity to be “adequate for the present,” when the lowest figure supported by the record is 15%. Even granting some judgment by the commission to allow a return below that testified to by experts, we find the 12.43% figure confiscatory, if only because it does not reflect the actual returns the company would earn during the period the rates were to be in effect. Beyond the narrow question of return on equity, we find that on the whole, the zero order does not allow the company a fair return on the reasonable value of its property devoted to public service.

THE MERITS OF THE CASE

The statutorily and constitutionally mandated fair rate of return applies to the company’s property devoted to the public, the value of which is the company’s “rate base.” This return involves cost of debt capital, cost of preferred stock, and cost of equity capital (i.e., common stock). Alabama Gas Corporation v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975). As the first two are relatively fixed, rate cases often focus on the third under the rubric “return on equity.” -Broadly speaking, this is the amount needed to pay dividends which would make the company’s stock attractive to investors.

The company contends, on the basis of testimony by expert witnesses during the hearings before the commission, that because the interest rate on bonds sold by the company during 1981 was 17% to 1814%, their less-secure common stock must have at least an 18% return. It asserts that the commission’s order is therefore obviously confiscatory when it states that the 12.43% return earned for the 12 months ending March 31, 1981, is adequate.

As noted above, the commission’s order makes no findings as to rate base or fair return on rate base. Its finding that 12.43% is a fair return on equity makes no reference to the record or figures concerning the company’s operations.

We note that the Attorney General’s proposal, later withdrawn, suggested a 16% return. Dr. Legler, a witness sponsored by the Attorney General, concluded that a return in the range of 15-16% would be fair. He gave a figure of 14.5% from one calculation (a risk premium analysis), but he admitted that he would not rely on this method alone. His discounted cash flow and comparative study analyses gave higher figures.

The commission argues that if the statutory mandate that rates are to be fair to both the utility and the public is to have any meaning, it should be able to consider factors such as the ability of people to pay the company’s rates. It also points out that this Court has included other businesses of like risk in consideration of a fair rate of return (see, APSC v. Southern Bell, supra). The order sets out that competitive businesses in the state are earning poor returns at present, and cites evidence of record that the textile industry is earning a 2.54% return.

On the other hand, the commission has admitted in its response to questions from this Court that under its zero order the company’s return on equity would fall below 4% by October 1982. This results largely from the refusal by the commission to consider the effects of Farley II, which came on line in July 1981 and caused the company’s rate of return to begin falling steadily.

The reports filed pursuant to the superse-deas order show the following returns on average equity:

The company filed projections with the commission of its rate of return both with no rate increase and with the full requested increase. These figures have been accurate to within about half a percentage point until the July, August, and September figures for the full increase. The projected figures were 13.89, 14.66, and 15.59 respectively, and the figures based on actual results were 12.84, 13.66, and 14.98 as shown above. The projected return for the year ended October 1982 was 16.72%; these most recent figures suggest the company would not have received this return with the full requested increase. The projected October 1982 annualized return with no increase was 3.19%.

This highlights the fact that the commission ignores the requirement that the rates it sets must be prospective. McCardle v. Indianapolis Water Co., 272 U.S. 400, 47 S.Ct. 144, 71 L.Ed. 316 (1926). The order glibly supports its “finding” that a 12.43% return on equity from the end of the March 1981 test year is “adequate for the present” by citing these figures:

April 1981 12.61%
May 12.72
June 12.61
July 13.07

This conveniently ignores the following figures available to the commission when it made its order:

August 1981 12.36%
September 11.34

Even disregarding the company’s projections, the commission knew the company’s rate of return was declining when it issued its order.

Farley II was the primary cause of this decline, and the commission refused to consider the effects .of Farley II because it came on line four months after the end of the test year and its effects would not be known and measurable. The company offered an updated test year ending July 31, 1981, but the commission declined to consider these data on the basis that there was no time to cross-examine the company’s witnesses who submitted their written testimony or otherwise to verify the company’s figures. The commission’s response to the company’s attempt to include Farley II was a suggestion that the company file another new rate schedule.

The company countered the charge that Farley II’s effects were not known and measurable with the uncontroverted evidence that required accounting procedures relating to the nuclear plant would result in a $4 million dollar per month loss. During construction of a new plant, a utility credits its income, according to the investment in construction work in progress (CWIP), under an account called “allowance for funds used during construction” (AFUDC). This treatment gives the company an on-paper return on the CWIP portion of the rate base without requiring present customers to pay for future generating facilities. See, e.g., Ex Parte Gulf States Utilities Co., 40 P.U.R. 4th 593 (La.P.S.C.1980). The commission admitted in its answers to specific questions propounded by this Court that the $4 million a month AFUDC income the company showed prior to Farley II going on line was part of the income resulting in the test-year-end 12.43% return on equity.

The cost of Farley II does not stop at $4 million a month, i.e., $48 million per year, however. Because utilities are entitled to a fair net return (§ 37-1-80), this return must be after taxes. Formulas exist for converting income (i.e., after tax income) deficiencies to revenue deficiencies. In this case the parties agree that a tax multiplier of 1.9874 ... would convert this $48 million income deficiency to a $96 million revenue deficiency. Add to this amount new expenses shown by the company relating to depreciation of the nuclear plant, maintenance, completion costs, and ad valo-rem taxes, and it becomes clear that the largest portion of the company’s rate increase request pertains to Farley II.

The commission seeks to disallow these expenses as a factor in the company’s current rates on the grounds that they began after the test year, are not known and measurable, and might be offset by benefits to ratepayers. The benefits mentioned by the commission are fuel savings, reduced cost of purchased power, and sale of surplus power. The company responds that these three items will benefit the ratepayers directly through the rate ERC (Energy Cost Recovery). ERC adjusts customers’ bills for cost of fuel, and the company asserts that the cheaper nuclear fuel and savings from increased generation will enter this adjustment directly, so the commission erred in suggesting these benefits should offset the capital costs of Farley II. '

The other aspect of the commission’s decision not to consider Farley II relates directly to the use of a test year period. The commission contends that the test year figures will be invalidated if adjustments are made to reflect some post-period changes but not others. Thus they attempt to disallow all changes. This practice subverts the principle that rates are set for the future.

A difficulty arises here in connection with the statutory mandate to the commission about setting rates. Until 1978, § 37-1-80 included in the value of a utility’s property “the amount of the new investment to be added in the year immediately following the test period used in arriving at the value of such utility’s property.” This language was deleted by Act No. 850 of the 1978 legislature. The deletion of this language does not allow the commission to ignore all changes subsequent to the test year. In the first place, such treatment would very likely result in confiscation. If rates are prospective, they must correspond to the actual needs of the company during the time they are in effect.

In Alabama Gas Gorp. v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975), this Court held that under the prior version of § 37-1-80 the commission must consider all new investment for the year following the test period. The amendment can change this requirement, but it cannot preclude the commission from considering proper items of expense and revenue which will have a substantial bearing on the company’s rate of return.

Finally, we do not consider the effects of Farley II to stem from new investment during the year following the test period. The investment in Farley II was made over the years of its construction; the expenses now associated with its operation are for the sake of recovering investment already made in the plant.

The company also argues for an attrition allowance to correct the historical failure of actual returns under commission orders to provide the rate of return deemed reasonable in the orders. The company supplied exhibits showing the last five rate orders, the allowed rate of return, and the actual returns which, in every case, fell below the allowed rate. The company’s brief cites transcript pages for witnesses’ proposed methods for overcoming this attrition.

The commission in brief responds, inter alia, that such an attrition allowance is an attempt to guarantee the company a certain rate of return, which is an unfair and inappropriate advantage for a regulated industry already protected from competition. This Court can not address this issue in the case as it stands, however, because the commission’s order neither addresses the proposed attrition allowance nor even establishes a fair rate of return. .

The request by Crowder to have Commissioner Greer and Commission President Camp disqualified for public remarks made during the hearings, or to have this Court set rates without remanding to the commission, is denied. Crowder’s contention is that commissioners should not make statements indicating they have decided the case before all the evidence is submitted. While this argument has some merit, the relief sought is outside the scope of this Court’s function in rate cases.

In conclusion, we note that there is no evidence or contention by the commission or any intervenors that the basic data submitted by the company were inaccurate or that the company was guilty of inefficient or dishonest management (see Code 1975, § 37-1-80). Because the 12.43% return on equity found by the commission is not supported by the evidence and is confiscatory, because the zero order does not allow even this rate of return, and because the commission did not consider the effects of the Farley II nuclear plant, we reverse the zero order and remand this cause to the commission. Under the undisputed evidence in this case and our review of the record a 15% return on equity is the minimum which would not result in confiscation.

The briefs point out that the company has another rate increase pending before the commission. The commission on remand should consider the updated evidence and establish rates which are not confiscatory. The evidence and the monthly reports submitted to this Court clearly show that the company has been suffering confiscation of its property for some time. Therefore, the commission is hereby ordered to issue a new order as soon as possible, and in no event later than December 1, 1982. This Court hereby retains jurisdiction of this cause.

REVERSED AND REMANDED WITH DIRECTIONS.

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

MADDOX, J., not sitting.

APPENDIX A

ORDER OF THE COMMISSION

BY THE COMMISSION:

On March 19, 1981, Alabama Power Company (the Con?)any) filed a new Schedule of Rates designed to increase retail revenues by $324.9 million annually. These rates, with an effective date of April 18, .1981, were based on the twelvemonth period ending November 30, 1980, and represented an increase of approximately 24.4%.

On April 20, 1981, the Company subsequently updated its test period to the twelve months ending March 31, 1981.

Also included in its filing letter was a request that the suspension period not exceed four months. On April 6, 1981, the Commission, after careful deliberation, suspended the operation of the proposed rates through October 18, 1981, as we were of the opinion that the rate filing warranted an investigation and attendant public and evidentiary hearings, none of which could be accomplished thoroughly within a four-month period.

The Commission merged and consolidated Docket No. 18117 with Docket No. 18004 on June 18, 1981. Docket No. 3.8004 had been scheduled to be held June 24, 1981, in compliance with Section 114, of the Public Utility Regulatory Policies Act which required all commissions not having a Lifeline Rate to hold hearings to determine whether .a Lifeline Rate should be established. As a result of scheduling problems and other just reasons, we postponed the hearing on Docket No. 18004 and merged it with Docket No. 18117, which was scheduled to commence on June 29, 1981.

The Lifeline issue is an important issue which requires additional evaluation by the Commission. (See ordering paragraph, infra.)

Petitions to intervene were filed by the Attorney General of Alabama; John Paui Ripp; United States Steel Corporation; Ellie B. Shaw, et.al., collectively known as the Community Action Group; Robert S. Crowder; Nancy Rawls, et al., collectively known as the Alabama Consumers Alliance; Aireo, Inc., et al., collectively known as the Industrial Group; Rubin Morris Hanan, et al., collectively known as the Alabama League of Aging Citizens; Mrs. Dorothy Greenlee Jackson; Larry Petersen, a representative of the Alabama Council on Human Relations; United States Army Legal Service Agency; Municipal Electric Utility Association of Alabama; Nettie Pendleton, et al., represented by Legal Services Corporation of Alabama.

The Commission granted all requests for intervention and allowed the hearings to commence June 29, 1981.

There is no law which requires any member of this Commission when sitting as a Commissioner to leave his common sense at home or to refuse to take knowledge of common sense economic facts known to every citizen of.Alabama.

We know, individually, and as. citizens, ratepayers, and consumers, as well as Commissioners, that:

— Over the past few years, ánd at the present, this State and the Nation have experienced the highest rate of inflation in the history of modern aemory.
— Over the past few years, and at the present, -this State and the Nation have experienced the highest rate of interest for the consumer in the history of modern memory.
— Over the past few years, and at the present, this State and the Nation have experienced the highest rate of unemployment in the history of modern memory, particularly among the poor, uneducated, and disadvantaged.
— Over the past few years, and at the present, the State of Alabama is among the Nation’s low in per capita income.
— Over the past few years, and at the present, the average wage-earner/consumer in this State has expended a greater and greater percentage of his take-home wages for utility bills, which in many cases have relegated food, clothing and shelter to the back seat.
— Over the past few years, and at the present, fixed income persons such as the disabled and retired have been especially burdened by mounting utility rates, and these citizens and others are literally crying out for help and relief.
— Over the past few years, and at the present, this State is in the grimmest financial times since the Great Depression of the early 1930's.

Faced with these common-sense economic facts, we are presented with a rate increase request of $325 million, viz, a 25% increase by this Company which has received combined increases of 30.9% from this Commission over the. past two years.

We do not think the public can stand, or will stand for, this amount of increase or anything that approaches it. This Commission is deluged with complaints and pleas, most often attended with anguish and despair, from customers who just can't pay their utility bills, but who cannot live humanely without the service.

This Commission, therefore, is faced in this rate case with the perplexing statutory mandate of establishing rates for the Alabama Power Company which "shall be reasonable and just to both the utility and the public." §37-1-80, Code of Alabama (1975), emphasis added. It is our considered opinion that given the present economic crisis, an increase in rates- at this time would violate this Commission's statutory mandate to the public. While the Company might experience some financial difficulties by. this order, we perceive our duty to be clearly summarized as. follows:-

The interest both to the public and of the utility should be considered, but it is not always possible to do full justice to both, and where this is the case, the rights of the public must prevail. 64 Am. Jur. 2d, Public) Utilities, §191.

Thus, we feel duty-bound to deny this rate increase. Additionally, we are mindful of the level of the Company's recently earned returns and profits. Said returns are set out below.

There are three pertinent factors which add to our decision to turn down the Company's request at this time. Summarily, these are:

1. The timeliness of the Company's request in view of the $80 million increase of last year; and the combined $288 million increases over- the past two years. There has been simply insufficient time to evaluate all the financial ramifications of these increases, especially the last increase which was in effect for only part of the test year.
2. The unknown benefits and burdens of considering a major plant (Farley II at a cost of '$748 million plus) which was not in service until four months after the test year ended and the associated speculative and conjectural adjustments.
3. The dogged insistance of the economic experts that rate of return and corresponding return on equity to the utility monopoly must be artificially high (16 to 18.5 percent) since interest rates are artificially high — this concept puts the utility and its stockholders, enjoying no competition, in the enviable position of earning, at the expense of the public ratepayer, a profit greatly in excess of the earnings and profits of. other industries which are.fighting both the competitive-market and the ravages of inflation and high interest. (See the earnings and profits of any manufacturer, wholesaler or retailer in automotive, housing, construction, timber, or textile industries over the past year or so which are reported in all’ financial publications.)

Specifically, the Commission is of the opinion that the focal issue in this case cannot rest with the record which was established primarily by highly paid experts representing the Company. Rather, the Commission is convinced that the exercise of our legislative/judicial duty, as mandated in Title 37, Code of Alabama (1975), makes it encumbent upon us to assess this asking from a broader perspective. Given the unique circumstances of this asking, we are persuaded that this is the only perspective which will yield "rates and charges...reasonable and just to both the utility and the public."

On July 19, 1979, the Commission granted this Company $208 million or 24.173% increase. Effective July 30, 1980, the Company received another $80 million or 6.7% increase. Th.us, in a twelve-month period the Commission increased rates some $288 million annually or approximately 30.9%! This has placed a tremendous burden on the electric ratepayers of Alabama. However, such action was necessary as the Company, in opting not to file for rate relief on a timely basis (when Farley I became operational'in December 1977), but rather, to pursue relief via a complaint ■ case filed by then Governor Wallace (Honorable George C. Wallace, as Governor of the State of Alabama and the State of Alabama vs. Alabama Power Company), APSC Docket No. 17439, had allowed its return to plummet from a high of 14.54% (obtained pursuant to relief granted in Docket 17261) in November 1977, to a low of- 3.74% in July, 1979.

Though the Commission granted rate relief of some 25% in the "complaint case" as filed by the Governor (supra) in Docket 17439, the Court overturned the order holding that the Commission "did not afford due notice to all interested parties and an opportunity for such parties to present evidence..." and, therefore, was void on its face.

We recite the above to show that the Commission has indeed been responsive to this Company's financial condition in the recent past as evidenced by the fact that rate relief has been granted 4 times since late 1978 - 4 times in 3 years. This recognition and rectification of the Company's past distressed position has, however, caused distress and duress to the ratepayers. Continuing this situation, in our view, does not comport with’ the equity that we envision to be embraced within our legislative mandate to insure "...reasonable and just [ratesj to both the utility and the public."

The magnitude of the recent increased rates can be gauged if one considers that in only 20 months the earnings of the Company expanded from 3.74% return on some $992 million of equity to a 12.4% return on over $1 billion of equity at March 31, 1981.

The Company was earning 12.43% on equity for the twelve months ending March 31, 1981, the test period before us for review. Further, we note the Company has continually experienced returns in that range - twelve months ending:

April 30, 1981 - 12.61%

May 31,. 1981 - 12.72%

June 30, 1981 - 12.61%

July 31, 1981 - 13.07%

We are now asked to increase base rates another 25% largely predicated on the testimony of Company experts whose independence, at best, can be considered suspect given their employment arrangements with the Company. To our knowledge utility regulation is an art and not a science, It is, therefore, largely judgmental: If it were not,.some detailed mathematical, scientific formula would have, no doubt, been proposed by now to- handle regulation and our ■offices/positions abolished. Obviously, our legislature and, indeed, the legislatures of the majority of the states of this Nation do not feel, that utility regulation has evolved to the point where judgment is no longer needed, for they have not abolished our offices/positions. The People of the State of Alabama have elected us to use our best' judgment and, indeed, have entrusted us with the authority and obligation to exercise that judgment in the public interest.

Our exercise of that judgment compells us to conclude that the present record is skewed, one-sided and devoid of the comprehensive perspective we feel is essential in balancing the equities. We do not hold doctorates of philosophy, certifications in public accounting, or registrations as professional engineers. Published treatises on investor perceptions we cannot boast of. However, we do have the public trust to uphold and we did take our oaths armed with the integrity necessary to "call the shots" as our conscience and judgment dictates. We do not intend undue criticism or wholesale indictments. We are not conveniently supplanting our judgment for that of the persons paraded before us in this proceeding. We are, however, invoking that judgment we were elected to exercise - and indeed are obligated to exercise - in order to insure the public interest is protected.

Exercise of that judgment convinces us that the evidence presented did not encompass or evaluate all aspects of the issues. For example:

(a) We are not satisfied that the financial position of the Company as given at March 31, 1981, and adjusted for Farley II, truly reflects all of the 'effects of a Farley II had it been operational during the test period. If we are to require ratepayers to pay a return on approximately $748 million of investment, which has been superimposed on a period on a theoretically simulated basis, it is our sworn duty to ensure that the ratepayers are receiving all the benefits appertaining thereto. We are not convinced, based on the data supplied, that this is the case in the instant docket;
(b) We are concerned that the datá in this proceeding requires the ratepayers to pay all the capital ■ costs for Farley I, its operational costs, as well as, the costs of energy purchased because Farley X was "off line" six (6) months of the test period. Further, no adjustment has been made to the revenue and expense relationships established in this test period which would afford the consumer the benefit of this situation being corrected. We would certainly hope a 50% “off line" status would not be a norm anticipated by the Company. If it is, capital costs adjustments may be warranted; if it is not, some adjustment would be needed to properly state the revenue-expense relationships of the test period; and
(c) We are concerned about the propriety of costs incurred by the Company. A case in point is the $7 million of expense .which the Company seeks .to recoup in connection with the abandoned Barton nuclear facility. We understand in excess of $14 million associated with this abandonment have already been borne by ratepayers in their rates. We can find .no definitive ruling on the treatment of these costs for ratemaking purposes by this Commission or past Commissions. Therefore, we are understandably interested in such costs and their propriety.

To reiterate, these are unprecedented economic times in modern memory. Accordingly, we must weigh the plight of other Alabama industries and businesses - for example, the textile industry which is earning a 2.5% return on investment, per a witness in this proceeding, and the plight of Alabama ratepayers whose per capita income is, unfortunately well below the national average, against the current earnings of Alabama Power Company. In that context, we find Alabama Power Comapny's earnings adequate and, at least for the present, affording the Company a fair net return on the reasonable value of its property devoted to the public service. As the President of our Nation and the Governor of our State has called upon all of us to conserve and cut costs, so too do we call upon Alabama Power Company to employ conservative, cost-cutting measures.

We were informed by the Company after our vote in this proceeding that the Economic Recovery Tax Act of 1961 which became law on August 13, 1981, imposed on the Company certain requirements relating to deferred tax normalization accounting for public utility property placed in service after December 31, 1980. We are informed that in order for the Company to utilize new depreciation guideline rates contained in the Act, normalization between book depreciation and the accelerated cost recovery system (ACRS) depreciation allowance is mandatory for both depreciation and investment tax credits. Essentially, the Company no longer has the option to flow through the difference between the asset, depreciation range (ADR) midpoint tax straight-line rate .and the book straight-line rate on property placed into service after December 31, 1980.

The Act requires that the Company comply with the new normalization requirements and that this Commission recognize the changes required by such compliance in this order if the Company (and ultimately the ratepayers) is to enjoy the benefits associated with accelerated depreciation for property additions in 1981. We recognize that the Company is fully normalizing for 1981 property additions and therefore, satisfies the requirements of the Economic Recovery Tax Act of 1981.

In establishing Rate ECR, the Commission separated fuel costs from base rates. To comply with this, the Alabama Power Company filed new base rates effective July 1, T981 which excluded all fuel costs. Per the wording on the Company filed tariffs, these base rates were "[ejffective through October 19, 1981, when new rates will be established by final order in Docket 18117."

Having addressed the denial of the Company's filing and the basis for our ruling,the Commission orders as follows:

IT IS ORDERED BY THE COMMISSION, that the rate schedules as filed by the Company on March 19, 1981, are hereby denied. Said rate schedules include rate FD, HLF, LAF, LFS, LPEM, LPEL, LPS, LPM, LPL, OFP, PG, RN, RS, RT, SLM, XTP, XWP; the annual interruptible credits increase; the Special Rules Governing the Application of Commercial and Industrial Rates; and any other filings of said date.

IT IS FURTHER ORDERED that all rates, charges, schedules, and tariffs in effect on July 1, 1981 are to remain in effect. These include all rates filed in connection with Rate ECR and all other rate schedules in effect on July 1, 1981 and not affected by Rate ECR.

IT IS FURTHER ORDERED that the Company shall comply fully with the tax normalization accounting requirements of the Economic Recovery Tax Act of 1981 and related rules and regulations for so long as said Act, rules and regulations remain the law of the United States.

IT IS FURTHER ORDERED that .the Commission, having hereby issued its order with respect to the proposed increased rates filed by the Company in Docket 18117, the Commission orders that Docket 18004 be bifurcated and that Docket 18 0.04 be kept open for subsequent rulings on the Lifeline issue. Section 114 of Public Utility Regulatory Policies Act of 1978 (PURPA). Changes or alterations in any of the revised schedules which may result from further orders in this PURPA aspect of the proceeding shall not increase or decrease the total revenue level to which the Company is entitled under this order.

IT IS FURTHER ORDERED that this Order shall be effective as of the date hereof.

Jurisdiction in this cause is retained for any further proceedings which the Commission may deem necessary. •

DONE this the 16th day of October, 1981, at Montgomery, Alabama.

      . Appendix A consists of the commission’s order, which is photocopied from the record filed in this Court.

      . Prior to 1978, the sentence ending “as of the most recent date available,” continued with “and the amount of the new investment to be added in the year immediately following the test period used in arriving at the value of such utility’s property.” This was called the “adder clause,” and we shall discuss it in connection with the commission’s treatment of events occurring after the test year.

      . As further evidence of the confiscatory effect of the commission’s zero order, the company points out that as of October 1981, its indenture coverage has fallen below 2.00x, the minimum under which the company can sell additional preferred stock or first mortgage bonds. This inability to capitalize forces the company to borrow at extremely high short-term interest rates.
      This Court recently held in General Telephone Company of the Southeast v. Alabama Public Service Commission, [Ms. August 6, 1982],-So.2d-(Ala.1982), that common stock does not have to yield higher returns than bond rates. Still, the return allowed by the commission must be supported by the evidence and must be nonconfiscatory.

      . The commission may not thus force the company to undergo confiscation until a new rate request can be filed, suspended, and acted upon. “Present confiscation is not atoned for by merely holding out the hope of a better life to come.” West Ohio Gas Co. v. Public Utilities Comm. (No. 2), 294 U.S. 79, 83, 55 S.Ct. 324, 325, 79 L.Ed. 773 (1935).

      "The ultimate question of a fair rate of return should not be a composite of the results mechanically reached by these formulae, with little regard given to the question sought to be determined, that is, the fair rate of .return." Continental Telephone Co. vs. Alabama Public Service Commission, 376 So.2d 1358 (Ala. 1979).


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Paul CHERRY v. Annie Ruth CHERRY.
    Civ. 3045.
    Court of Civil Appeals of Alabama.
    April 7, 1982.
    Rehearing Denied May 12, 1982.
    Certiorari Quashed Dec. 30, 1982 Alabama Supreme Court 81-700.

      Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    Joel M. Nomberg of Nomberg, McCabe & Fulford, Daleville, for appellee.
   HOLMES, Judge.

This is an appeal by the husband from the Circuit Court of Dale County’s denial of his petition to modify a 1978 divorce decree.

The divorce decree, in pertinent part, required the husband (appellant) to convey his one-half interest in the family home to his wife (appellee). The wife’s interest in the home was to continue for her natural life or until her remarriage. In the event of the wife’s death or remarriage the property was to pass to the couples’ two adult children. The decree further provided that the husband was to pay the monthly mortgage payment on the property until the mortgage was paid in full “regardless of the remarriage of the present wife or other change of circumstances.”

In a counterclaim to the wife’s complaint for a rule nisi the husband sought to have the divorce decree modified to delete the requirement that he make the mortgage payments. The trial court considered the husband’s petition at an ore ten us hearing which was held on October 6, 1981. After hearing the evidence the trial court denied the relief requested by the husband finding that the mortgage payment provision was nonmodifiable. This court finds no error in that finding and affirms.

The pertinent facts are as follows: At the time this action came to trial the wife had. remarried and, as required by the decree, had conveyed her interest in the home to the adult children. The husband had also conveyed his interest to the daughters so that the home was wholly owned by the couples’ two children. The wife still occupied the home, however, with the consent of her daughters.

Though the record is not clear as to when, at some point in time the husband ceased to make the mortgage payments as required by the divorce decree. The wife then filed a complaint for a rule nisi in an attempt to compel the husband to satisfy the arrearage in the mortgage payments.

As a result of the wife’s complaint the husband was ordered to appear and show cause why he should not be held in contempt for failure to abide by the decree. Evidently a hearing was held on November 10,1980 at which time the husband, appearing with counsel, agreed to pay $2,426 in satisfaction of the house payment arrear-age. There was evidence that this sum included an attorney’s fee for the wife’s attorney though we have no record of the proceedings or order. The husband was given six months to pay the sum.

Before the husband had paid the $2,426 the wife discovered that he had lost his job and was contemplating leaving the state. On February 11, 1981 the wife requested a temporary restraining order preventing the husband from leaving the state. On March 16, 1981 the trial court entered an order reflecting the husband’s agreement to remain in the state and retain his property here. The order also stated that the husband was to make the mortgage payments.

On March 31,1981, the husband still having failed to pay any of the arrearage, the wife amended her original complaint to request relief for the husband’s breach of the agreement to pay the mortgage. The husband then asserted a counterclaim requesting that the divorce decree be modified. As stated earlier, the trial court denied this request. Specifically, the trial court found that the provision requiring the husband to pay the mortgage was a property settlement or alimony in gross and, therefore, not modifiable. The court further found that the term “mortgage payment” included prorated taxes and insurance. The court also reaffirmed the husband’s liability for the $2,426 he had previously agreed to pay.

On appeal the husband contends that the requirement that he make mortgage payments should more properly be considered periodic alimony rather than alimony in gross or a property settlement in that the amount of the payments is not certain and the title to the property is in the children. Since periodic alimony is subject to modification upon changed circumstances, the husband contends that his obligation to pay the mortgage should be terminated due to the wife’s remarriage. § 30-2-55, Code of Ala.1975 (Cum.Supp.1981). The husband also contends that the trial court had no authority to enter a judgment for attorney’s fees because the husband was not held in contempt.

This court finds no merit in the husband’s contention that the mortgage payments are periodic alimony and modifiable. The divorce decree unconditionally required the husband to pay the mortgage in full. Consequently, the time of payment was certain and the exact amount of the payment was fixed. Both certainty in amount and time of payment are characteristic of alimony in gross and/or property settlement. Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978); McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). Cf. McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978). Admittedly, the exact amount of the monthly payments is subject to some fluctuation due to the inclusion of insurance premiums and taxes within the monthly payment. We do not find, however, that this fluctuation is sufficient to deprive the husband’s obligation of certainty; particularly when the husband agreed to make the mortgage payments apparently with the knowledge that the payments were subject to some fluctuation. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980).

We also note that the trial court did not err to reversal in holding that the insurance and taxes were included within the mortgage payments. The evidence indicates that the insurance and taxes had always been included within the mortgage payments. The husband was aware of this or should have been aware of this when he agreed to make the payments. Thus, though the decree does not specifically include the insurance and taxes within the mortgage payments, the surrounding circumstances indicate that it was the intention of the parties that the insurance and taxes should be included. DuValle v. DuValle, 348 So.2d 1067 (Ala.Civ.App.1977).

In light of the above, this court must hold that the trial court did not err in holding that the provision in the decree regarding mortgage payments was nonmodifiable alimony in gross and/or property settlement.

Our conclusion in this instance is not altered by the fact that the couples’ adult children ultimately became the owners of the property. The mortgage payments are not for child support. The payments were characterized as alimony in gross or property settlement at the time the divorce decree was initially rendered. This characterization will not be changed when, due to the provisions of the divorce decree which the husband agreed to, the ownership of the property later changes.

Additionally, even if these payments were considered as child support for adult children, they would not be improper as such due to the husband’s agreement to make the payments. Holmes v. Holmes, 410 So.2d 115 (Ala.Civ.App.1982); Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980).

Finally, with regard to the husband’s contention regarding attorney’s fees, we note that, in the court’s order of October 22,1981, which it entered after the October 6, 1981 hearing, no attorney’s fees were awarded to either party. The only evidence of any attorney’s fee award was concerning the November 1980 hearing. A record of that proceeding is not before us and furthermore, there was no appeal from the action taken in that proceeding. Consequently, this court cannot consider any alleged error in those proceedings.

The wife requests an attorney’s fee for representation on appeal. An attorney’s fee of $300 is awarded to her for that purpose.

This case is due to be affirmed.

AFFIRMED.

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

      . Though the divorce decree required the husband to convey his interest to the wife, due to some oversight or mistake, he had not conveyed his interest to the wife at the time of her remarriage. Consequently, when the oversight was discovered, the husband simply conveyed his interest directly to his daughters because of the wife’s remarriage.


author: PER CURIAM.

text:
    Alvin ADAMS, et al. v. Donald W. WARDEN, as Director of the Department of Public Works of the City of Anniston, Alabama.
    Civ. 3007.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied Dec. 10, 1982 Alabama Supreme Court 81-901.
    J. William Thomason of Thomason & Russell, Bessemer, for appellants.
    Ralph D. Porch and Richard B. Emerson, Anniston, for appellee.
    Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.
    John C. Falkenberry and Joe R. Whatley, Jr. of Stewart, Falkenberry & Whatley, Birmingham, for amici curiae Alabama Labor Council, AFL-CIO, and Laborers Public Service Council of Alabama.
   PER CURIAM.

This proceeding involves the consolidated appeal of sixty-four employees of the City of Anniston from an order of the Calhoun County Circuit Court terminating their employment for their participation in a strike against the City.

The facts indicate that on the morning of June 11,1979 a number of employees of the City of Anniston, as members of the American Federation of State, County and Municipal Employees, AFL-CIO, Local 1099, participated in a work stoppage against the City. Shortly after the strike began, the City sought an injunction against the striking employees in the Circuit Court of Calhoun County. The circuit judge issued a temporary restraining order enjoining the employees from (1) striking or otherwise engaging in a work stoppage against the City; (2) doing any act in furtherance of a strike or work stoppage; and (3) picketing or otherwise obstructing access to the City Hall and various other public buildings owned and operated by the City. The temporary restraining order was widely publicized, but the strike activities continued.

On the next day, June 12, the Anniston City Council met in open session to hear the grievances of the striking employees. The council, after hearing the employees’ complaints, requested that the employees return to work and cease their strike activities, but the request was apparently ignored.

The strike continued until the afternoon of June 15. At that time the City commenced termination proceedings against the participants in the strike. The employees were served with written notice that the City would endeavor to terminate their employment, charging that:

1. On June 11, 1979, you ceased performing your duties as an employee of the City of Anniston and have not performed any of your duties as an employee of the City of Anniston for the period June 11, 1979, through and until the present time without legal cause or legal excuse.
2. That on June 11, 1979, Honorable Robert M. Parker, Presiding Judge of the Circuit Court of Calhoun County, Alabama, issued a temporary restraining order prohibiting you as an employee of the City of Anniston, Alabama, from taking part in a strike or otherwise engaging in a work stoppage against said City, a copy of which said order was duly served upon you or prior to the date of this notice— June 15, 1979 — you had knowledge of such order, and that you have willfully failed to comply with said order.

The employees filed written denials of the charges, and, on June 20 through 22, a pretermination hearing for each employee was held by the City Manager. Following the hearings, an order was entered in each case finding that each employee was guilty of the charges levelled against him.

The employees appealed their respective decisions to the Civil Service Board for the City of Anniston, and on September 6, 1979 the Board entered a written order affirming the City Manager’s findings that the employees had engaged in illegal strike activities against the City. The Board found, however, that dismissal of the participating employees from employment with the City was too severe a punishment and ordered that each employee was to be suspended for a period of thirty working days, and was not to be paid for the period of time during which he was on strike. The Board further ordered that the employees should be reinstated to their jobs as of July 31, 1979, and should be paid for all working days subsequent to that date.

On October 4, 1979 the City appealed the ruling of the Board to the Calhoun County Circuit Court pursuant to § 14(b), Act No. 592, Acts of Alabama 1953. The circuit court rendered a decree on July 10, 1981 finding that (1) the court was bound by statute to uphold the findings of the Anni-ston Civil Service Board, and (2) a public employee has no right to strike against his public employer, and the mere fact of his participation in a strike against the City “in and of itself terminated his employment.” The court ruled that the Civil Service Board had no alternative but to uphold the decision of the City Manager dismissing the employees from their jobs. An application for rehearing filed by the employees was denied, and on October 15,1981 the employees filed notice of appeal to this court.

The real question to be decided by this court is whether the City of Anniston Civil Service Board was required to dismiss the employees for engaging in illegal strike activities. The circuit court found, and the appellee contends in brief, that participation in a strike by public employees automatically terminates their employment. On oral argument appellee relied on the recent supreme court case of Ex parte City of Florence, 417 So.2d 191 (Ala.1982), for its contention that the appellants should have been dismissed by the Civil Service Board rather than suspended for thirty days. We consider Ex parte City of Florence to be dispositive of this appeal.

In the Florence case, twenty-eight City of Florence police officers were dismissed by the Florence Civil Service Board for engaging in illegal strike activities against the City. The policemen in that case were subject to a set of rules and regulations promulgated by the police department which provided, inter alia, that members of the department were subject to disciplinary action for absence from duty without leave or authorized permission and for failure to comply with written or oral orders. At the hearing before the Civil Service Board, the Board found that the policemen had violated the above rules and regulations, and upheld the dismissal of all striking employees. An appeal was taken to the circuit court and, on motion by the City, the circuit court granted a summary judgment based on the evidence before it. On appeal to the court of civil appeals, the grant of summary judgment was reversed on the ground that an appeal to the circuit court was by trial de novo, and the punishment to be imposed was a matter which should be determined by a jury.

The issue before the supreme court was whether a summary judgment was proper. Act No. 437, Acts of Alabama 1947, the Enabling Act of the City of Florence Civil Service Board, provides in pertinent part:

14. Violations: Any person in the service of the City by appointment under civil service rules who shall wilfully, or through culpable negligence, violate any of the provisions of this article, and who shall be found guilty after a trial before the civil service board shall be dismissed from the service of the City, and shall not be subject to reappointment for two years.

The supreme court found that the mandatory language of section 14 requires that “when an individual governed by the act is found to have violated these rules and regulations ‘willfully or through culpable negligence,’ the mandatory punishment is dismissal from service with the city.” Since the Civil Service Board had made a finding that the policemen had violated certain rules and regulations of the police department, the supreme court reasoned that dismissal was required if the violations were committed willfully or through culpable negligence. The court went on to make a finding of willfulness, and thus found dismissal to be mandatory under the act. The grant of a summary judgment was determined to be proper under the circumstances of that case.

Appellants contend that Act No. 592, Acts of Alabama 1958, governing the Civil Service Board of the City of Anniston, is similar in its provisions to the Florence Civil Service Board Enabling Act, and that by analogy to the Florence case the dismissal of the striking employees in the present case is also mandatory.

Act No. 592, Acts of Alabama 1953, provides in pertinent part:

Section 4. All employees of the city shall be governed by civil service rules and regulations prescribed in or promulgated pursuant to this Act, administered by a civil service board, the creation of which is provided for in Section 5 hereof. Present employees shall remain in their respective employments during good behavior; but nothing herein shall be construed to prevent or preclude the removal of an employee for cause in the manner hereinafter provided; and such employees, except for appointment, shall be subject fully to the provisions of this Act.
Section 17. Any person in the service of the city by appointment under civil service rules or regulations who wilfully violates any of the provisions of this Act, or any rule or regulation issued in pursuance thereof, shall be dismissed from service under the system and shall not be reappointed for two years. [Emphasis ours.]

Based on the language of the act and the similarity between the two cases, we find the supreme court’s opinion in the Florence case to be dispositive of the issue in the present case. In Florence, the Civil Service Board had made a finding that the striking policemen had violated certain departmental rules by being absent without leave and by failing to comply with oral and written orders. With the supreme court’s finding of “willfulness,” the facts of Florence fell squarely within the ambit of the mandatory dismissal language of § 14 of the Florence act.

We find that in the present case the striking employees likewise willfully violated a provision of the Anniston act, thus bringing into play the mandatory language of § 17. Section 4 of the act provides that employees of the City of Anniston shall remain in their jobs “during good behavior.” The record shows that the City of Anniston disapproved of the employees’ actions, specifically requested that they return to work, and charged that the employees had willfully refused to comply with a court order to return to work. The record further reflects that the Civil Service Board found that the employees had “ceased performing [their] duties ... without legal cause or legal excuse,” and that they “willfully failed to comply” with a court order to cease their work stoppage. In short, there is ample evidence in the record to show that the employees’ conduct did not meet the “good behavior” standard prescribed by Act No. 592.

We also are of the opinion that the employees’ violation of the provisions of the Anniston act was “willful,” according to the language of the Florence case. As in Florence, the striking employees in the present case were aware that the City of Anniston had requested that they return to work, and knowingly refused to comply with that request. The issuance of the temporary restraining order by the circuit court was widely publicized, yet the employees failed to obey it. In the language of the supreme court in Florence, “[i]t is clear from the undisputed evidence that the [employees’] absence from work was, at some point, due to their willful refusal to return to work after being ordered to do so.” By willfully refusing to cease the illegal strike activities, each employee subjected himself to the mandatory dismissal language of § 17 of the Anniston act.

We therefore affirm the judgment of the circuit court, and find that, under the statutory language of § 17, Act No. 592, Acts of Alabama 1953', and the Florence case, the employees involved herein were subject to mandatory dismissal. The institution of a lesser punishment by the Civil Service Board was error.

Appellants’ last contention is that, because the City voluntarily reinstated the employees to their respective jobs following the Civil Service Board’s decision and pending appeal to the circuit court, the case is moot. The general rule in this state is that if, pending an appeal, an event occurs which makes determination of the case unnecessary, the appeal will be dismissed. Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (1973). However, in situations in which, if no decision of the question is made on appeal, the collateral rights of the parties dependent upon its decision will be left undetermined, an exception to the general rule will be made. Id.

We note that the language of § 17 of the act provides that any employee willfully violating a provision of the act “shall be dismissed from service under the system and shall not be reappointed for two years.” Our decision on the issues involved in this case necessarily affects the employees’ reappointment chances. Furthermore, as the City points out in its brief, the decision of the Civil Service Board substituting a thirty day suspension as punishment for the employees’ strike additionally provided that each employee was to be paid for all working days subsequent to the last day of the suspension period, in effect giving each employee unearned wages plus applicable fringe benefits for a five week period prior to the Board hearing. Even if we were to find that the reinstatement of the employees by the City pending appeal to the circuit court rendered the case moot, our determination of the issue before us would necessarily affect the parties’ collateral rights, thus bringing into play the above mentioned exception. We are therefore of the opinion that the matter should not be dismissed as being moot.

For the foregoing reasons, we affirm the judgment of the circuit court ordering the dismissal of the employees involved in this appeal.

AFFIRMED.

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


text:
    James Arthur MADDOX v. A.B. CLARK, Sheriff of Houston County; and Houston County, Alabama.
    Civ. 3353.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.
    Rehearing Denied Sept. 29, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-7.

      William D. McFatter of McFatter & Ward, and Winn S.L. Faulk of Faulk & Newcomb, Dothan, for appellant.
    Richard H. Ramsey, III, Dothan, for ap-pellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Mr. Maddox, a discharged deputy sheriff, appealed to this court from a circuit court judgment which upheld his dismissal from his job as such deputy by the sheriff, A.B. Clark.

After hearing the evidence, the trial court rendered and entered a comprehensive judgment, the pertinent portions thereof as to the present appeal being as follows:

“JUDGMENT ON APPEAL OF PERSONNEL BOARD DECISION
“The matter before the Court for consideration is the appeal of the Plaintiffs from a decision of the Personnel Board of Houston County, Alabama, made on February 11, 1982, involving their discharge as classified employees of Houston County, Alabama. A trial de novo having been held on such appeal and testimony and evidence having been presented, upon consideration of such, the Court makes the following findings and conclusions:
“Prior to January 19,1982, the Plaintiffs, Gerald Monday and James A. Maddox, were formally employed as deputies of the Sheriff of Houston County, Alabama. They were employees of Houston County with all of the rights and privileges accorded by Act 1049, Acts of Alabama, Regular Session, 1973, which Act established a civil service system for employees of Houston County.
“Under such civil service system, the Sheriff of Houston County is the appointing authority responsible for all personnel action decisions made with respect to employees of the Houston County Sheriff’s Department.
“According to the testimony of Deputy Maddox, on or about December 30,1981, he was asked by the Sheriff of Houston County, Alabama, A.B. Clark, to contact several persons on the jury venire list which listed prospective jurors for the trial of criminal charges then pending against the Sheriff. Maddox contends that he was told to contact certain jurors, engage them in conversation, and find out their opinion of the Sheriff; but that he was not to mention any specific case.
“According to the testimony of Sheriff Clark, Maddox, on his own initiative, requested to see the jury venire list and after he looked over it he wrote several names down, stating that he was going to check to see if some of the names were people he knew when he was in the insurance business. Sheriff Clark stated that he did not ask Maddox to talk to any of the prospective jurors and in fact instructed him not to do so.
“In any event, Maddox discussed the matter of talking to prospective jurors with two superior officers on separate occasions. Both advised him that such would be illegal and that he should not do it.
“Thereafter, he contacted Deputy Lieutenant Monday, who was also an officer superior to Maddox, regarding the matter. Monday advised him not to talk to the people, that it was against the law, but that Maddox could tell the Sheriff he,had. Maddox, however, stated that he was afraid the Sheriff would double check him. Monday then told him that he would put him in touch with a State investigator if that was what he wanted.
“Monday then telephoned Investigator Lloyd Arrington of the Alabama Bureau of Investigation and informed him of the alie-gations made by Maddox. Arrington asked Monday to put him in touch with Maddox and Monday arranged a meeting.
“Maddox then met with Investigator Ar-rington and with Ray Acton the Assistant Alabama Attorney General prosecuting the criminal charges against Sheriff Clark. Maddox stated that he told them ‘the whole story’, that he had not been asked to influence anyone, but just to find out the opinions of certain prospective jurors regarding Sheriff Clark. Although Maddox did not know if what he had reported to Arrington and Acton was a crime, he stated that Ar-rington and Acton convinced him that such was in fact a crime.
“The result of Maddox’s meeting with Arrington and Acton was that Arrington and Acton made a decision to commence an investigation regarding jury tampering. Maddox believed that such was a lawful investigation based upon what Arrington and Acton had told him.
“Arrington and Acton then asked Maddox would he be willing to wear a ‘body mike’ so that a future conversation between Maddox and Sheriff Clark could be transmitted and recorded. Maddox agreed to do such.
“Thereafter, on the night of January 10, 1982, Maddox was fitted with a transmitter by State investigators and a conversation between him and Sheriff Clark was transmitted and recorded by such State investigators. On the basis of such, a motion was filed by the State in the criminal cases pending against Sheriff Clark asking the Court to quash the jury venire due to allegations of jury tampering by the Sheriff.
“A hearing was held on the State’s motion to quash the jury venire on January 18, 1982 before Circuit Judge Paul J. Miller at which such hearing Deputy Maddox testified in regard to his contentions as to the Sheriff’s requests regarding his talking to prospective jurors and a tape recording of Deputy Maddox’s January 10, 1982 conversation with Sheriff Clark was played. The State’s motion to quash the jury venire was denied by Judge Miller.
“Deputy Maddox testified that he did not talk to any of the prospective jurors but that he had made statements to the Sheriff that he had because he was told to do so by the State investigators.
“On or about January 19, 1982, the Sheriff discharged James A. Maddox from his employment as a deputy sheriff giving the following reasons for disciplinary action:
“(1) ‘Insubordination’.
“(2) ‘Spreading malicious lies in an attempt to embarass or injure the Sheriff’.
“(3) That ‘Maddox told lies to members of this department with reference to contacting jury members. He then told lies to State investigators and hid a microphone on himself and attempted to obtain damaging, untrue information on me’.
“(4) That ‘all working relationship has been destroyed and it is not in the benefit of the County or law enforcement for him to continue due to the actions taken by him over the past three to four weeks’.
“(5) And, then subsequently, on February 5, 1982, giving the following additional reasons:
“A. ‘Insubordinate attitude’, and
“B. ‘Because the good of services will be best served by your termination’.
“Also, on or about January 19, 1982, the Sheriff discharged Deputy Gerald Monday from his employment as a deputy sheriff giving ... reasons for disciplinary action.
“Under Act No. 1049, Acts of Alabama, Regular Session, 1973, which Act established a civil service system for employees of Houston County, Alabama, a deputy sheriff may be dismissed by the Sheriff for the following reasons:
“(A) Any violation of provisions of the Houston County Civil Service System Act; or
“(B) Whenever the good of the service will be served thereby; or
“(C) Whenever the deputy sheriff’s work so warrants; or
“(D) Whenever the deputy sheriff’s performance so warrants; or
“(E) Whenever the employee’s conduct on or off the job so warrants; or
“(F) Whenever the employee’s insubordinate attitude so warrants.
“ ‘One of the purposes of Civil Service laws is to take from the appointing officer the right of arbitrary removal of an appointee; absent such Paws] a public employee has no protection against suspension and removal and he may be suspended or removed with or without cause.’ 15A Am. Jur.2d Civil Service § 52 (1976).
“Essentially, Deputy Maddox and Deputy Monday were discharged from their employment as deputy sheriffs on charges made by the Sheriff that they were guilty of ‘insubordination’ and that their discharge was for ‘the good of the service’.
“ ‘Insubordination’ has been defined by our Courts as the wilful refusal of an employee to obey an order of a superior officer so long as that order is reasonably related to the duties of the employee. Heath v. Alabama State Tenure Commission, 401 So.2d 68 (Ala.Civ.App.1981); Howell v. Alabama State Tenure Commission, 402 So.2d 1041 (Ala.Civ.App.1981). Under the testimony and evidence presented at the trial of this appeal, this Court does not find any evidence of a wilful refusal of Deputy Maddox or Deputy Monday to obey any order of a superior officer, and, therefore, their discharge from employment as deputy sheriffs of Houston County cannot be justified on the basis of ‘insubordination’.
“This Court must then look to see as to whether or not their discharge from employment as deputy sheriffs of Houston County, Alabama, can be upheld on the basis that ‘the good of the service will be served thereby’. The term ‘for the good of the service’ has been variously defined as follows:
“(1) The term ‘for the good of the service’ means incompetency or other reasons relating to the effective discharge of duties. State ex rel. Hartnett v. Zeller, 135 Conn. 438, 65 A.2d 475 (1949).
“(2) Discharge of a civil service employee for ‘good of the service’ or ‘for cause’ implies some personal misconduct, or fact, rendering the employee’s further employment harmful to the public interest. State ex rel. Eckles v. Kansas City, 257 S.W. 197, (Mo.App.1924).
“(3) Removal for ‘good of the service’ infers that in some respect the officer failed to perform his duties, was incompetent, inefficient or an unsuitable person for the position to which he was appointed. Ayres [Ayers] v. Hatch, 175 Mass. 489, 56 N.E. 612 (1900).
“(4) Limitation of removal to the ‘good of the service’ imparts cause which in law constitutes a valid ground for the exercise of removal power. Davis v. Cousineau, 97 R.I. 85, 196 A.2d 153 (1963).

“Therefore, to discharge an employee ‘for the good of the service’ is to discharge him for a ‘cause’ which interferes with the effective discharge of his duties and/or the effective discharge of the duties of the department for which he works, so as to make his continued employment harmful to the public interest.

“ ‘The phrase “for cause” ... means reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely cause which the appointing power in the exercise of discretion may deem sufficient’. State ex rel. Doherty v. Finnegan, 25 Conn.Supp. 390, 206 A.2d 477 (1964); See Peseau v. Civil Service Board of Tuscaloosa County, 385 So.2d 1310 (Ala.Civ.App.1980).

“ ‘Cause ... means legal cause, and not any cause which the officer authorized to make such removal may deem sufficient. .. The cause must be one which specifically relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. The cause must be one touching the qualifications of the officer or his performance of duties, showing that he is not a fit or proper person to hold the office.’ State ex rel. Whalen v. Welliver, 60 Nev. 154, 104 P.2d 188 (1940); See Peseau, supra.

“An appointing authority, in this case the Sheriff of Houston County, has the authority to discharge a public employee if such employee’s relationship with the superior officer has to be one of confidence and cooperation and if such relationship is necessary to properly discharge the department’s functions and a lack of cooperation would impair the efficient operation of the department. Floyd v. Alabama Historical Commission, 388 So.2d 182 (Ala.1980); Abbott v. Thetford, 529 F.2d 695 (5th Cir.1976).

“There is no doubt but that should Deputy Maddox and Deputy Monday continue to be employed by the Sheriff’s Department of Houston County that there will not be a relationship of complete trust and confidence between them and the department head, Sheriff Clark, due to their involvement in the accusations made against him regarding misconduct on his part. There is no doubt but that the working relationship between such deputies and Sheriff Clark, and possibly other co-workers, would not be completely harmonious, to say the least.

“However, in matters of compelling public concern (such as accusations or allegations of misbehavior by public officials), a public employee’s right to speak out on such an important matter must be protected from the threat of retaliatory discharge. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Atcherson v. Siebenmann, 605 F.2d 1058 (8th Cir.1979).

“ ‘[T]he creation of disharmony cannot be so feared as to silence the critic who would inform the public of (the alleged) misbehavior by public officials.’ Atcherson v. Siebenmann, supra.

“It may be noted here that none of the evidence presented at the trial of this appeal appears sufficient to support the criminal charge of ‘jury tampering’ by anyone. Alabama Criminal Code, Sec. 13A-10-128(a) states that ‘a person commits the crime of jury tampering if, with intent to influence a juror’s vote, opinion, decisions or other action in the case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.’ There was no evidence of any attempt to influence any prospective juror. In fact Deputy Maddox testified that he had not been asked to influence anyone but just to find out the opinions of certain prospective jurors regarding Sheriff Clark. Even so, conduct involving direct contact with prospective jurors is [undesirable] and would be highly suspicious. Nevertheless, such is not the question presently before this Court.

“In any event, ‘To say an employee reporting what he believes is going on is guilty of misconduct if he cannot prove it, is tantamount to saying he is not to transmit anything at all. Any regulation which would compel the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of dismissal from his job—leads to “self-censorship”, a result which cannot be tolerated.... ’ Swaaley v. United States, 376 F.2d 857 (Ct.Cl.1967).

“It is well recognized that a public employee cannot be discharged for exercising his or her constitutionally protected rights of free speech. Abston v. Woodard, 398 So.2d 237 (Ala.1981); Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

“As the United States Supreme Court stated in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), ‘policemen are not relegated to a watered-down version of constitutional rights’.

“The problem in any ease is to arrive at a balance between the interests of the employees, as a citizen, in commenting upon matters of public concern and the interest of the governmental entity, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering v. Board of Education, supra.

“In Hanneman v. Breier, 528 F.2d 750 (7th Cir.1976), the Court applied Pickering, supra, to a case involving the disciplining of policemen for disclosing the existence of a confidential internal investigation. The conduct clearly violated an existing and otherwise valid confidentiality regulation. Yet, the Court refused to sustain the discharge because the police department did not ‘show a State interest in confidentiality applicable on these facts which outweighs the public and individual interests in the particular statements made.

“This Court finds that it must make a distinction between the situation of Deputy Monday and the situation of Deputy Maddox herein. The actions of Deputy Monday relevant to this matter went no further than the exercise of his rights of free speech in communicating information which he possessed which he in good faith believed suggested impropriety on the part of Sheriff Clark, whether such was in fact the case or not. The actions of Deputy Maddox relevant to this matter not only included an exercise of speech, but also included actions taken by him in surreptitiously electronically transmitting a private conversation between himself and Sheriff Clark to State investigators who were at the time involved in the prosecution of Sheriff Clark under pending criminal charges.

“The actions taken by both deputies were naturally detrimental to their future working relationship with their superior officer, Sheriff Clark, and to the efficient operation of the Houston County Sheriff’s Department, in regard to a relationship of confidence and cooperation.

“However, Deputy Monday’s discharge from employment may not reasonably be justified in that it resulted from his exercise of constitutionally protected speech which outweighed the interests of the governmental entity. Deputy Maddox’s discharge from employment may be reasonably justified in that it resulted from unprotected conduct as well as, and as opposed to, protected speech.

“Further, this Court finds that the actions of Deputy Maddox would reasonably totally preclude any future working relationship between himself and Sheriff Clark.

“Although the use of secret agents with electronic devices is a valid and frequently used means of investigation by law enforcement, the ‘bugging’ of a sheriff by one of his deputies, whether such was justified or not, is hardly conducive to and would reasonably totally preclude any future working relationship between the deputy and the sheriff. The deputy in such a situation would reasonably be expected to have known that the inevitable results of his action would be abrupt termination of his employment.

“ ‘Public employees do not foreswear the protections of the Constitution simply by swearing to uphold the Constitution. Public employers are fully justified in protecting the integrity of their work force and in maintaining the efficiency of individual employees; but such legitimate missions cannot be used as an excuse to rid their work force of an employee simply because he had exercised the rights guaranteed by fundamental law. In each case, reviewing Courts must set what was done in the context of contemporaneous events and reasons, to make sure that a true balance is struck between the responsibility of public employers and the rights of their employees’. Tygrett v. Barry, 627 F.2d 1279 (D.C.Cir.1980). Applied to this case, that process precludes judicial sanction of the action taken against the Plaintiff, Gerald Monday and does not preclude judicial sanction of the action taken against the Plaintiff, James A. Maddox.

“WHEREFORE, by reason of said findings of fact and conclusions of law, it is hereby,

“ORDERED, ADJUDGED, AND DECREED BY THE COURT AS FOLLOWS:

“(A) That the decision of the Personnel Board of Houston County, Alabama, pertaining to the Plaintiff, James A. Maddox, discharging him [as] a classified employee of Houston County, Alabama, is affirmed.

“(B) That the decision of the Personnel Board of Houston County, Alabama, pertaining to the Plaintiff, Gerald Monday, discharging him as a classified employee of Houston County, Alabama, is reversed and he is reinstated as an employee of Houston County, Alabama, with pay.” (Citations corrected.)

In his present appeal from that judgment of the circuit court, Deputy Maddox does not dispute that court’s factual findings. The trial court properly applied the correct law to such facts and reached the right conclusion. Therefore, we adopt the judgment of the learned trial court as the opinion of this court and affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    FABARC STEEL SUPPLY, INC. v. Douglas DAVIS, Sr.
    Civ. 3101.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.
    Rehearing Denied Oct. 13, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-66.
    R. Blake Lazenby and B. Clark Carpenter, Jr., for Dixon, Wooten, Boyett, Thornton, Carpenter & O’Brien, Talladega, for appellant.
    Ralph E. Coleman, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal with an alternative petition for writ of mandamus to review the grant of a Rule 60(b), A.R.Civ.P. motion for relief from a consent settlement in a workmen’s compensation case.

The record reveals that while within the line and scope of his employment, plaintiff suffered injury to the third and fourth fingers of his left hand. The tips of those fingers were pinched off between two angles of steel. The injury occurred on July 14, 1980. Defendant employer referred plaintiff to Dr. Veach who treated plaintiff’s injury to his fingers for approximately seven weeks, after which time Dr. Veach released him as to that injury. Plaintiff received temporary total disability payments for those seven weeks. The last check arrived in September 1980.

Plaintiff returned to work but was unable to continue working due to severe pain and weakness in his left shoulder and arm. Plaintiff had had no trouble with his shoulder prior to the work-related injury to his fingers. The shoulder pain apparently began after plaintiff was given an injection in his shoulder in the course of treatment to his fingers. Although Dr. Veach and other physicians continued to treat plaintiff for the pain in his shoulder, Dr. Veach informed plaintiff, defendant and defendant’s insurer that the shoulder pain was the result of bursitis and not related to the injury to plaintiff’s fingers.

Defendant’s attorney contacted plaintiff, requesting a meeting to discuss a settlement of the workmen’s compensation claim. When plaintiff and his wife arrived at the attorney’s office, the attorney read to them a previously prepared complaint, answer, and settlement agreement. Plaintiff was told that the $1,543.76 figure would be all he would receive for his injury. On the same day, November 14, 1980, plaintiff and defendant’s attorney obtained a consent judgment in the Talladega County Circuit Court approving the settlement between the parties. Plaintiff was not represented by counsel at this proceeding. He did testify, however, that he had previously discussed the proposed settlement with an attorney who had advised plaintiff that $1,500 was a fair settlement on his claim for the injury to his fingers.

Plaintiff continued to experience pain in his shoulder which necessitated medical treatment. He is functionally illiterate, and his work experience is limited to physical labor. Unable to return to work, plaintiff had to support himself, his wife, and seven minor children with welfare.

On February 19, 1981, plaintiff filed a motion to set aside the consent judgment alleging as grounds: (1) that he was ignorant of the true nature of his injury; (2) that defendant refused to continue payment of temporary disability, thereby unduly influencing and coercing plaintiff to settle his claim; and (3) that the settlement was the result of fraud. On November 16, 1981, after a hearing on the motion, the trial court entered an order setting aside the consent judgment on the basis of mutual mistake as to the extent of plaintiff’s work-related injuries. Defendant’s motion to amend the November 16, 1981 order, or alternatively to allow rehearing on the motion, was denied.

The first issue raised by defendant is whether § 25-5-56, Code 1975 preempts the operation of Rule 60(b), A.R.Civ.P. with respect to setting aside vel non workmen’s compensation settlements.

Section 25-5-56 provides in part:

“Any settlements hereunder may be vacated for fraud, undue influence or coercion, upon application made to the judge approving the settlement at any time not later than six months after the date of settlement.”

Defendant relies on Rule 81, A.R.Civ.P., which provides:

“(a) Proceedings controlled by statute. In the following proceedings, these rules shall be applicable to the extent that the practice in such matters is not provided by statute:
(31) Workmen’s Compensation.” (Emphasis Supplied.)

Defendant contends, therefore, that the statutory remedy for setting aside a workmen’s compensation settlement is exclusive and cannot be supplemented by other remedies available under the Alabama Rules of Civil Procedure. We do not agree. Except for fraud, the other reasons which may be asserted in seeking relief from a judgment under Rule 60, A.R.Civ.P., are “not provided by statute.” Thus under Rule 81, A.R. Civ.P., such reasons áre applicable in workmen’s compensation cases. See Brown v. Murray Security Guard Company, 404 So.2d 79 (Ala.Civ.App.1981).

The second issue is whether the trial court erred in finding grounds under Rule 60(b), A.R.Civ.P., for granting plaintiff relief from the settlement.

The trial court has wide discretion in its determination of whether to grant relief pursuant to Rule 60(b), A.R.Civ.P., and its ruling will not be reversed except for an abuse of that discretion. Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). In considering a motion for relief from judgment, the trial court must balance any need to remedy injustice against the need for finality of judgments. Smith v. Smith, 397 So.2d 128 (Ala.Civ.App.1980), cert. denied, 397 So.2d 130 (Ala.1981).

In the instant case, plaintiff had been told by Dr. Veach that his shoulder pain was the result of bursitis.' After contacting an attorney, he was advised that the injury to his fingers would be fairly compensated by the settlement agreement. Although plaintiff was totally disabled by the pain in his shoulder and arm, everyone else involved apparently relied on Dr. Veach’s opinion that such pain was not related to plaintiff’s injury to his fingers. In considering the 60(b) motion, the court could have determined that plaintiff, uneducated and not qualified to relate the shoulder pain to the on-the-job injury, accepted the settlement in reliance on representations that the settlement amount was all the money to which he was entitled. As in Brown v. Murray Security Guard Company, supra, plaintiff is allegedly totally disabled. If opportunity to establish that such condition is related to his injury is denied, he will be forced to live with a settlement entered into on the basis of a possibly erroneous assumption and diagnosis. The relative lack of prejudice to the defendant in having to try plaintiff’s claim on the merits compares unfavorably to the possible prejudice suffered by plaintiff. Whether enumerated or not in the motion, the trial court could have found cause under 60(b)(6) to set aside the judgment. We find no abuse of his broad discretion.

We emphasize that we are not expressing an opinion as to the validity of plaintiff’s claim. We hold, however, that the trial court did not abuse its discretion in setting aside the settlement and requiring that a trial on the merits of the claim be held.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge. HOLMES, Judge.

text:
    Judy R. SIMMONS v. Robert C. SIMMONS, III.
    Civ. 3277.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.
    Rehearing Denied Nov. 17, 1982.

      Arthur F. Fite, III of Merrill, Porch, Doster & Dillon, Anniston, for appellant.
    Gordon F. Bailey, Jr. and Randall M. Woodrow of Wilson, Bolt, Isom, Jackson & Bailey and John R. Phillips of Phillips & Rice, Anniston, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing the trial court in pertinent part made a division of property, established visitation privileges and failed to award periodic alimony. The wife then filed a motion to amend pursuant to rule 59, A.R.Civ.P. in order to amend that judgment as it pertained to the aforesaid actions. The motion was denied by the trial court and the wife appeals. We find no reversible error and affirm.

We do not deem it necessary nor prudent to set out in detail the facts of the instant appeal. Pertinent facts will be discussed as they relate to the issues presented.

I

The wife, through able and distinguished counsel, first contends that the trial court erred in requiring certain personal property to be sold at public auction with the proceeds to be divided equally.

In divorce actions, division of property is a matter for the discretion of the trial court and will not be disturbed on appeal except upon a showing of palpable abuse. Harris v. Harris, 390 So.2d 293 (Ala.Civ.App.1980); Marks v. Marks, 365 So.2d 1231 (Ala.Civ.App.1979). The trial court also has the power to use any reasonable means to effect just property settlement and just equities between the parties. Furlow v. Furlow, 386 So.2d 747 (Ala.Civ.App.), cert. denied, 386 So.2d 749 (Ala.1980).

A review of the record reveals sufficient evidence to support the trial court’s property division.

The trial court awarded the wife and husband their separate estates consisting of various personal effects. The remaining household goods and appliances were to be sold at public auction and the proceeds divided equally between husband and wife. There was little evidence presented at trial as to the value of those items nor as to how they were acquired. There was also evidence in the record from which it could be inferred that the wife would have no immediate use for many of the items. We also note that either party is free to bid on any of the items at the auction.

Under these circumstances, we find that the trial court did not abuse its discretion in the property division.

II

The wife next urges error in the trial court’s action regarding visitation. Under the terms of the decree, the wife was awarded primary custody of the parties’ children with the husband receiving visitation privileges for ten weeks during the summer, seven days during Christmas holidays, one week during the spring, twenty extra days, and alternate weekends the rest of the year. The paternal grandparents of the children were awarded visitation twenty days a year as intervenors in the divorce proceedings.

Specifically, the wife contends that the trial court abused its discretion in providing far too much time for the husband and grandparents and in not allowing visitation by the wife during the ten weeks in the summer when the husband has the children. We note that the wife does not complain about the grandparents having visitation, just the amount and manner of visitation.

The trial court has broad discretion in its judgment concerning visitation rights. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980); Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

We have carefully reviewed the record and we cannot say that the evidence shows the trial court’s judgment to be plainly and palpably wrong. We also note that when questioned, the wife testified that if she were awarded custody, her husband should see the children as often as possible. It is quite evident from the record that this matter was given considerable emphasis.

Regarding the wife’s right to visitation during the ten weeks of summer when the husband has custody, we find nothing in the decree that would specifically prevent her from “visiting” the children during that time. Both parties should be mindful of the “best interest of the children.” In any event, in view of all the circumstances we find no reversible error regarding this aspect.

The wife contends specifically that the trial court abused its discretion in granting the father alternate weekend visitation from 6:00 p.m. Friday to 6:00 p.m. Sunday. The husband and wife now, and at the time of divorce, live over 350 miles apart. This point was brought up repeatedly during the course of the trial. The wife contends that this works a hardship on her and the children in that they do not arrive back home until 3:30 a.m. Monday.

It is readily apparent that due to the distance involved some problems may arise concerning this aspect of visitation. However, this court cannot say at this time that there was such an abuse of discretion as to require reversal. To do so would be to substitute our judgment for that of the trial court’s. Sutton v. Sutton, 55 Ala.Civ.App. 254, 314 So.2d 707 (1975).

Hopefully, if problems arise the parties will reach an accommodation in the best interests of the children. It may well be that time will prove this aspect of the decree to be unreasonable.

We note that when the visitation aspects are viewed in toto the trial court, in effect, granted “joint custody.” Our Presiding Judge Wright noted in Hudson v. Hudson, 414 So.2d 96 (Ala.Civ.App.1982) and cases cited therein, such a concept is recognized in Alabama.

Ill

The wife’s final contention is that the trial court abused its discretion in failing to award periodic alimony.

The awarding of alimony, along with division of property, is a matter within the sound discretion of the trial court and will not be reversed on appeal except for palpable abuse. Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980); Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979).

We do not find that the trial court abused its discretion in failing to award periodic alimony. The record reveals that the wife is currently employed, earning approximately $12,000 annually; that she is living rent free at her mother’s house; that she had accumulated considerable savings in her separate estate; and that she will receive one-half of the proceeds of the sale of the household goods.

For the above stated reasons this case is due to be and is affirmed.

AFFIRMED.

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

ON REHEARING

HOLMES, Judge.

The wife, through able counsel, on rehearing contends that this court incorrectly stated the wife’s income to be approximately $12,000. The wife is correct in her contention.

The pertinent facts regarding the wife’s income and earning ability are as follows: The wife is a college graduate working as a junior high school counselor earning $27 per day. During the course of the trial she signed a tentative contract which, upon completion of her certification, would provide her a salary of $12,500 per year. We also note she is living rent free at her mother’s house; that she had accumulated considerable savings in her separate estate; and that she will receive one-half of the proceeds of the sale of the household goods.

For the above stated reasons this case is due to be and is affirmed.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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