author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Ex parte Christopher P. DEVINE. (Re: Christopher P. DEVINE v. Alice Beth Clark DEVINE).
    79-546.
    Supreme Court of Alabama.
    March 27, 1981.
    William Henry Agee of Agee & Ghee, Anniston, for petitioner.
    J. Todd Caldwell, Anniston, for respondent.
   MADDOX, Justice.

We granted certiorari to review the question of whether the “tender years presumption,” as applied in child custody proceedings, violates the Fourteenth Amendment to the United States Constitution. In the present case, the Court of Civil Appeals affirmed the trial court’s usage of that presumption in awarding custody of the parties’ two minor children to the respondent, Alice Beth Clark Devine. For the reasons hereinafter set forth, we reverse and remand.

I

Pursuant to Rule 10(e) of the Alabama Rules of Appellate Procedure, the petitioner/father (appellant below) and respondent/mother (appellee below) filed the following stipulations of fact to serve in lieu of the record on appeal:

and the Appellee, Alice Beth Clark De-vine, (being the only parties in this cause) were legally and lawfully married on December 17, 1966, in Jefferson County, Georgia, and separated in Calhoun County, Alabama, on March 29, 1979.
(2) The two children born of the parties during their marriage, viz: Matthew Patrick Devine, a son, born June 29,1972, and Timothy Clark Devine, a son, born June 25, 1975, (the custody as to both of whom the Court has awarded to Alice Beth Clark Devine) are children of “tender years” as contemplated by the “tender years” doctrine or presumption.
(3) The Appellee/natural mother Alice Beth Clark Devine (hereinafter sometimes referred to as “Mrs. Devine”) graduated from the Woman’s College of Georgia in Milledgeville, Georgia, in 1962, receiving a B. S. degree with a major in Business Administration and a minor in Business Education. Since her graduation in 1962, Mrs. Devine has taught high school for 2 years at Margaret McAvoy High in Macon, Georgia; worked at the Georgia Rehabilitation Center for at least 2 years; was an instructor at the Augusta Area Technical School in Georgia for 2 years; was an instructor — trainer with the Army at Fort Gordon, Georgia for approximately 2 years; taught in high school at Notasulga, Alabama for one year; directed a media library and taught classes for the Department of Rehabilitation at Auburn University for approximately 2 years; in 1975 commenced employment with the U. S. Army at Fort McClellan, Alabama, where she was employed continuously through the time of the trial of this cause as an Educational Specialist with a GS-11 rating earning in excess of $20,000 annually as salary (plus additional fringe benefits), and at the time of the trial Mrs. Devine indicated that she intended to remain employed at Fort McClellan or at some similar employment after the trial.
(4) Mrs. Devine was born July 20, 1940 and was 38 years of age at the time of the trial of this cause. The Appellant/natural father, Christopher P. De-vine was born on January 15,1937, and at the time of the trial of this cause he was a member of the faculty and head of the Guidance and Counseling Department at Jacksonville State University, Jacksonville, Alabama. At the time of the trial, the older son had just completed the first grade at the said University’s Elementary Laboratory School and the younger son was enrolled in the said University’s Nursery Laboratory School.
(5) The parties further adopt all findings of facts as set forth by the trial court in its judgment of divorce dated July 6,1979, in its order dated September 6,1979, and in its order dated October 17, 1979, and incorporate same herein by reference.

The September 6th order referred to in stipulation number 5 was rendered by the trial court in response to the father’s initial post trial motion requesting the trial court to modify its custody award. In that order the trial court offered the following justification for its decision:

The facts of this case clearly show that either plaintiff or defendant would be a fit and proper person to be vested with the care, custody and control of the parties’ minor children. While there was evidence presented at trial which raised questions in the mind of the court as to each parent’s suitability, none presented was of such magnitude that it showed either to be unfit. Likewise, evidence was presented to the court showing that each parent possessed certain positive qualities that should be considered in determining which of them would be the proper one to be awarded custody.
At the conclusion of the case, there did not exist a clear preponderance of the evidence for either party regarding child custody. However, there exists in Alabama law a presumption that when dealing with children of tender yéars, the natural mother is presumed, in absence of evidence to the contrary, to be the proper person to be vested with custody of such children. This presumption, while perhaps weaker now than in the past, remains quite viable today. See e. g. Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975), cert. den. 295 Ala. 425, 326 So.2d 129 (1976); Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. den. 372 So.2d 341 (Ala.1979).
Based upon the evidence presented at .trial, the presumption of fitness discussed above and the court’s opinion that it was in the children’s best interest that they be in the custody of their mother, custody was placed subject to plaintiff’s liberal visitation rights.

On October 17, 1979, in response to the father’s second post trial motion, the trial court reaffirmed its position concerning the relative parental suitability of the parties:

The facts of this case make it obvious that either of the parties would be fit and proper to be awarded the general care, custody, and control of the minor children born of their marriage. They both have individual shortcomings; however, neither possesses adverse qualities of a nature or character sufficient to make either an unfit parent.

The sole issue presented for review is whether the trial court’s reliance on the tender years presumption deprived the father of his constitutional entitlement to the equal protection of the law. In resolving this issue, we feel it is necessary to consider the historical development of the tender years presumption and re-examine its modern efficacy in light of recent pronouncements by the United States Supreme Court.

II

At common law, it was the father rather than the mother who held a virtual absolute right to the custody of their minor children. This rule of law was fostered, in part, by feudalistic notions concerning the “natural.” responsibilities of the husband at common law. The husband was considered the head or master of his family, and, as such, responsible for the care, maintenance, education and religious training of his children. By virtue of these responsibilities, the husband was given a corresponding entitlement to the benefits of his children, i. e., their services and association. It is interesting to note that in many instances these rights and privileges were considered dependent upon the recognized laws of nature and in accordance with the presumption that the father could best provide for the necessities of his children:

Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. This right is not given him solely for his own gratification, but because nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely. And, as a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its father, as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the father is an unsuitable person to have the custody of his child.

Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). As Chief Justice Sharkey more eloquently stated in his dissenting opinion in Foster v. Alston, 7 Miss. (6 How.) 406, 463 (1842):

We are informed by the first elementary books we read, that the authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law and the law of nature, and it prevails even with the wandering savage, who has received none of the lights of civilization.

By contrast, the wife was without any rights to the care and custody of her minor children. By marriage, husband and wife became one person with the legal identity of the woman being totally merged with that of her husband. As a result, her rights were often subordinated to those of her husband and she was laden with numerous marital disabilities. As far as any custodial rights were concerned, Blackstone stated the law to be that the mother was “entitled to no power [over her children], but only to reverence and respect.” 1 W. Blackstone, Commentaries on the Law of England 453 (Tucker ed. 1803).

• By the middle of the 19th century, the courts of England began to question and qualify the paternal preference rule. This was due, in part, to the “hardships, not to say cruelty, inflicted upon unoffending mothers by a state of law which took little account of their claims or feelings.” W. Forsyth, A Treatise on the Law Relating to the Custody of Infants in Cases of Difference Between Parents or Guardians 66 (1850). Courts reacted by taking a more moderate stance concerning child custody, a stance which conditioned a father’s absolute custodial rights upon his fitness as a parent. Ultimately, by a series of statutes culminating with Justice Talfourd’s Act, 2 and 3 Viet. c. 54 (1839), Parliament affirmatively extended the rights of mothers, especially as concerned the custody of young children. Justice Talfourd’s Act expressly provided that the chancery courts, in cases of divorce and separation, could award the custody of minor children to the mother if the children were less than seven years old. This statute marks the origin of the tender years presumption in England.

In the United States the origin of the tender years presumption is attributed to the 1830 Maryland decision of Helms v. Franciscus, 2 Bland Ch. (Md.) 544 (1830). In Helms, the court, while recognizing the general rights of the father, stated that it would violate the laws of nature to “snatch” an infant from the care of its mother:

The father is the rightful and legal guardian of all his infant children; and in general, no court can take from him the custody and control of them, thrown upon him by the law, not for his gratification, but on account of his duties, and place them against his will in the hands even of his wife.... Yet even a court of common law will not go so far as to hold nature in contempt, and snatch helpless, puling infancy from the bosom of án affectionate mother, and place it in the coarse hands of the father. The mother is the softest and safest nurse of infancy, and with her it will be left in opposition to this general right of the father.

Thus began a “process of evolution, perhaps reflecting a change in social attitudes, [whereby] the mother came to be the preferred custodian of young children and daughters. ...” Foster, Life with Father: 1978, 11 Fam.L.Q. 327 (1978).

In Alabama, the first noticeable discussion of the tender years presumption appears in the case of Cornelius v. Cornelius, 31 Ala. 479 (1858). In that case the court awarded custody of a young male child to the mother because the father was found to be guilty of certain “fixed intemperate habits”; however, the court qualified its decision by stating that the father could later recover the custody of his child by presenting credible evidence that he had reformed. The court at 31 Ala. 482 reasoned as follows:

There would be much difficulty in laying down an absolute rule, fixing a period when the custody of a male child should be taken from the mother and given to the father. If all parents were alike suitable, possibly we might do so. As we before remarked, a father or mother who is every way qualified for the trust at one time, may be wholly unfit at another. Where there is no unfitness in «the mother, evidently the child should remain with her, until he has reached an age when he can dispense with those tender offices which only a mother can bestow. At whát particular age that period will arrive, we will not undertake at this time to determine. On the other hand, if one parent be a suitable custodian of the child, and the other not, and this suitableness of the one and unfitness of the other continue, the child should be put under the care of the one who is suitable, and no change should be afterwards made. [Emphasis supplied.]

While recognizing a need for young children to remain in the custody of their mother, the court was not prepared to totally deny the father’s “natural rights.” The court was apparently as concerned, if not more concerned, with the unfitness of the father as with the tender age of the child.

The attitude expressed in Cornelius was not readily accepted. Alabama courts continued to award custody to the father, even in cases involving very young children. In Bryan v. Bryan, 34 Ala. 516 (1859), for example, the court awarded the custody of a two-year-old boy and a four-year-old girl to the father; however, in doing so, the court admitted its reluctance to take young children from their mother. At 34 Ala. 521-522 the court stated:

[W]e would have been extremely reluctant at the commencement of this suit to 'have withheld our sanction to the protection of the mother in the custody of the children, because at that time one of them was an infant of ten months at the breast, and the other a girl only three years of age. But now the period of lactation with the younger child has passed, and two years have been added to the ages of the children; and it is not now impossible for the father to discharge the duties of nurture and care, in which he will be aided by his mother. Taking into consideration the fact that the defendant is not shown to be of such character, or to have such habits as would necessarily contaminate the children, or render them unsafe in his custody, and the string favor with which the law regards the father’s prior right to the custody of his children, and the unauthorized state of separation from her husband in which the petitioner has placed herself, and her want of any peculiar fitness for the custody and care of the children, and also that the children have passed the age when the mother’s care, though valuable and desirable, is indispensable, we deem it our duty to withhold any active interference in behalf of the wife’s exclusive custody and control of the children.

In Bryan, the age of the children was clearly a significant factor in the court’s decision, although the court did mention the mother’s “want of any peculiar fitness for the custody and care of the children.”

The next major event which promoted the establishment of the tender years presumption in Alabama occurred when the legislature passed an act which affected custodial rights of parents. In both Cornelius and Bryan the court had acted pursuant to a statute which authorized the cháncery courts, in cases of divorce, to award the custody of minor children to either the father or the mother. Code of 1852, § 1977. Although the statute then in force appeared to place the mother and father on equal footing, the courts generally respected the common law rule concerning the father’s priority rights. On April 23, 1873, the Alabama Legislature passed an act to further define the custodial rights of fathers. 1872-73 Ala.Acts, Act No. 79. That act provided:

That from and after the passage of this act, any father legally married to the mother of his child or children, shall be entitled to the custody of such child or children, in case such father is abandoned by the mother of such child or children, as soon as such child or children shall have attained the age of seven years; Provided, Such father is a suitable person to have the charge of such child or children. This statute shall be liberally construed.

Admittedly, the statute applied to a very narrow category of cases, viz., those cases in which a wife had voluntarily abandoned her husband. Nevertheless, the new act established a rule that, even in those fact situations clearly justifying an award of custody to the father, the father would not be entitled to the custody of his minor children until they were seven years old. In construing this language in Thomas v. Thomas, 212 Ala. 85, 101 So. 738 (1924), this Court stated:

This provision is a recognition of the fact that during the very tender years of the child the husband has not an unqualified right to its custody, even when the wife is at fault in the separation. Mothering of a young child is one of its rights. None but the real mother can meet this high duty in full measure.

As late as 1946, this Court continued to recognize the paternal preference rule. Brown v. Jenks, 247 Ala. 596, 25 So.2d 439 (1946); however, by that time the rule was no longer a formidable factor in resolving child custody disputes. The influence of the paternal preference rule had been gradually replaced by a growing adherence to the tender years presumption.

At the present time, the tender years presumption is recognized in Alabama as a rebuttable factual presumption based upon the inherent suitability of the mother to care for and nurture young children. All things being equal, the mother is presumed to be best fitted to guide and care for children of tender years. Statham v. Statham, 276 Ala. 675, 166 So.2d 403 (1964); Clift v. Clift, 346 So.2d 429 (Ala.Civ.App. 1977). To rebut this presumption the father must present clear and convincing evidence of the mother’s positive unfitness. McGregor v. McGregor, 257 Ala. 232, 58 So.2d 457 (1952); Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975). Thus, the tender years presumption affects the resolution of child custody disputes on both a substantive and procedural level. Substantively, it requires the court to award custody of young children to the mother when the parties, as in the present case, are equally fit parents. Procedurally, it imposes an evidentiary burden on the father to prove the positive unfitness of the mother.

In recent years, the tender years doctrine has been severely criticized by legal commentators as an outmoded means of resolving child custody disputes. Several state courts have chosen to abandon or abolish the doctrine, noting that the presumption “facilitates error in an arena in which there is little room for error.” Bazemore v. Davis, 394 A.2d 1377 (D.C.1978); accord, Burks v. Burks, 564 P.2d 71 (Alaska 1977); In re Marriage of Bowen, 219 N.W.2d 683 (Iowa 1974); McAndrew v. McAndrew, 39 Md. App. 1, 382 A.2d 1081 (1978); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). Only one court has expressly declared the presumption unconstitutional. State ex rel. Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973). Nevertheless, some form of the presumption remains in effect in at least twenty-two states. In twenty states the doctrine has been expressly abolished by statute or court decision, and in four other states its existence is extremely questionable. In four states the presumption remains in effect despite a state’s equal rights amendment or statutory language to the contrary. As far as Alabama is concerned, the trial court correctly noted that the presumption, “while perhaps weaker now than in the past, remains quite viable today.”

It is safe to say that the courts of this state, like the courts of sister states, have come full circle in resolving the difficult questions surrounding child custody. At common law, courts spoke of the nhtural rights of the father. Now they speak of the instinctive role of the mother.

The question we are confronted with is not dissimilar to the question confronting the English courts over 150 years ago: Is it proper to deny a parent the custody of his or her children on the basis of a presumption concerning the relative parental suitability of the parties? More specifically, can the tender years presumption withstand judicial scrutiny under the Fourteenth Amendment to the United States Constitution as construed in recent decisions by the Supreme Court of the United States?

Ill

The appellate courts of this state have held that the tender years presumption is “not a classification based upon gender, but merely a factual presumption based upon the historic role of the mother,” Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392 (1944). These statements indicate that the courts in the forties had not developed the sensitivity to gender-based classifications which the courts by the seventies had developed. In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the United States Supreme Court held that any statutory scheme which imposes obligations on husbands, but not on wives, establishes a classification based upon sex which is subject to scrutiny under the Fourteenth Amendment. The same must also be true for a legal presumption which imposes evi-dentiary, burdens on fathers, but not on mothers. The fact that the presumption discriminates against men rather than women does not protect it from judicial scrutiny. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).

Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), represents the first in a series of cases wherein the United States Supreme Court has considered the constitutionality of statutory classifications which discriminated between men and women on the basis of sex. In Reed the Court examined a mandatory provision of the Idaho probate code giving a preference to men over women when persons of equal entitlement applied for appointment as administrator of a decedent’s estate. Under the facts of that case the law gave preference to the father, rather than the mother, for appointment as administrator of a child’s estate. At the very outset of the opinion the Court expressed its concern over the fact that no attempt was made to determine the relative capabilities of the parties to perform the functions incident to the administration of an estate. 404 U.S. at 73, 92 S.Ct. at 252. The statute was intended to relieve the probate court of a difficult decision when two or more persons, equally entitled, sought letters of administration. The Court reasoned that:

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

404 U.S. at 76-77, 92 S.Ct. at 254.

Two years later in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the Court relied on Reed in striking down a federal statutory scheme which extended a “presumption of dependency” in case of spouses of male members of the uniformed services, but not to spouses of female members. This presumption permitted a male member to claim his wife as a “dependent” without regard to whether she was, in fact, dependent upon him for any part of her support. A female member, on the other hand, could not claim her husband as a “dependent” unless he was, in fact, dependent upon her for over one-half of his support. Thus, as a procedural matter, a female member was required to demonstrate her spouse’s dependency, while no such burden was imposed upon male members. As in Reed, the Court questioned the underlying purpose of the statute and, in doing so, alluded to the lower court’s speculative analysis:

Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female. members, a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the “breadwinner” in the family— and the wife typically the “dependent” partner — “it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.” [Frontiero v. Laird] 341 F.Supp. [201], at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a “considerable saving of administrative expense and manpower.”

Moreover, the government maintained that, as an empirical matter, wives in our society frequently are dependent upon their husbands while husbands rarely are dependent upon their wives. Thus, the government argued that Congress might reasonably have concluded that it would be both cheaper and easier to conclusively presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.

In considering these rational explanations of the statutory scheme, the Court cited Reed for the proposition that classifications based upon sex, like classifications based upon race, are inherently suspect and must therefore be subjected to close judicial scrutiny. 411 U.S. at 682, 93 S.Ct. at 1768. Additionally, the Court expanded the reasoning used in Reed by considering, in a general fashion, the constitutionality of statutes which distinguish between males and females on the basis of “old notions,” notions based upon stereotyped distinctions between the sexes. At 411 U.S. at 686, 93 S.Ct. at 1770, the Court reasoned that:

[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate “the basic concept of our system that legal burdens should bear some relationship to individual responsibility Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 [92 S.Ct. 1400, 1406, 31 L.Ed.2d 768] (1972). And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

In closing, the Court concluded that:

[0]ur prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, “the Constitution recognizes higher values than speed and efficiency.” Stanley v. Illinois, 405 U.S. 645, 656 [92 S.Ct. 1208, 1215, 31 L.Ed.2d 551] (1972). And when we enter the realm of “strict judicial scrutiny,” there can be no doubt that “administrative convenience” is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U.S. 618 [89 S.Ct. 1322, 22 L.Ed.2d 600] (1969); Carrington v. Rash, 380 U.S. 89 [85 S.Ct. 775, 13 L.Ed.2d 675] (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, solely, for the purpose of achieving administrative convenience, necessarily commands “dissimilar treatment for men and women who are .. . similarly situated,” and therefore involves the “very kind of arbitrary legislative choice forbidden by the [Constitution] .... ” Reed v. Reed, 404 U.S., at 77, 76 [92 S.Ct., at 254].

411 U.S. at 690, 93 S.Ct. at 1772.

In subsequent decisions relying on Reed and Frontiero, the court reaffirmed and expanded its equal protection analysis. Orr v. Orr, supra; Craig v. Boren, supra; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). In Craig, for example, the Court considered the constitutionality of certain Oklahoma statutes which prohibited the sale of “nonintoxicating” 3.2% beer to males under the age of twenty-one and females under the age of eighteen. The Court concluded that the gender-based differential violated the Fourteenth Amendment and reasoned as follows:

Reed v. Reed has .. . provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, “archaic and overbroad” generalizations, Schlesinger v. Ballard, supra [419 U.S. 498] at 508, [95 S.Ct. 572, 577], concerning the financial position of servicewomen, Frontiero v. Richardson, supra [411 U.S.], at 689 n.23 [93 S.Ct., at 1772 n.23], and working women, Weinberger v. Wiesenfeld, 420 U.S. 636, 643 [95 S.Ct. 1225, 1230, 43 L.Ed.2d 514] (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the “marketplace and world of ideas” were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra; Taylor v. Louisiana, 419 U.S. 522, 535 n.17 [95 S.Ct. 692, 700 n.17, 42 L.Ed.2d 690] (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact. See e. g., Stanley v. Illinois, supra [405 U.S.], at 648 [92 S.Ct., at 1211], cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 650 [94 S.Ct. 791, 801, 39 L.Ed.2d 52] (1974).

Likewise, in Orr the Court declared unconstitutional an Alabama statutory scheme imposing alimony obligations on husbands but not wives. In very terse language, the Court commented on statutes which reinforce the concept of the sexual stereotype:

Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the “proper place” of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 173-174 [97 S.Ct. 996, 1013, 51 L.Ed.2d 229] (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State’s compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex.

440 U.S. at 283, 99 S.Ct. at 1113.

Reed, Frontiero and Orr are particularly significant cases insofar as they scrutinize gender-based classifications involving husbands and wives. In Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), the Court considered a similar issue regarding gender-based distinctions involving fathers and mothers. In Caban, the appellant, Abdiel Caban, challenged the constitutionality of § 111 of the New York Domestic Relations Law which permitted an unwed mother, but not an unwed father, to block the adoption of their minor child simply by withholding consent. /Caban lived with appellee, Maria Mohammed, for approximately five years, during which time Mohammed gave birth to two children. Caban was identified as the father on each child’s birth certificate and, together with Mohammed, he contributed to the support of the children. Mohammed eventually took the two children and left Caban to take up residence with Kazin Mohammed whom she subsequently married. Even after the separation, Caban continued to visit and communicate with his children.

In a subsequent dispute over the custody of the children, a New York Family Court placed the children in the temporary custody of the Mohammeds and gave Caban and his new wife liberal visitation rights. Approximately one year later the Mohammeds filed a petition seeking to adopt the two children. The Cabans immediately cross-petitioned for adoption. Relying on § 111, the New York court granted the Mo-hammeds’ petition, allowing the Cabans to present evidence only insofar as it reflected upon the Mohammeds’ qualifications as prospective parents.

On appeal to the United States Supreme Court Caban asserted that the distinction drawn under New York law between the adoption rights of unwed fathers and unwed mothers violated the Equal Protection Clause of the Fourteenth Amendment. The Court agreed, rejecting the mother’s argument that the distinction was justified by a fundamental difference between maternal and paternal relations. At 441 U.S. 389, 99 S.Ct. 1766 the Court reasoned as follows:

Contrary to appellees’ argument and to the apparent presumption underlying § 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this' generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother.... There is no reason to believe that the Caban children — aged 4 and 6 at the time of the adoption proceedings — had a relationship with their mother unrivaled by the affection and concern of their father. We reject, therefore, the claim that the broad, gender-based distinction of § 111 is required by any universal difference between maternal and paternal relations at every phase of a child’s development.

In closing, the Court rephrased this reasoning:

The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State’s asserted interests.

441 U.S. at 394, 99 S.Ct. at 1769. Caban is closely analogous to the present controversy, and is authority for the judgment we render.

IV

Having reviewed the historical development of the presumption as well as its modern status, and having examined the presumption in view of the holdings in Reed, Frontiero, Orr and Caban, we conclude that the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex. Like the statutory presumption in Reed, the tender years doctrine creates a presumption of fitness and suitability of one parent without any consideration of the actual capabilities of the parties. The tender years presumption, like the statutory schemes in Frontiero and Orr, imposes legal burdens upon individuals according to the “immutable characteristic” of sex. By requiring fathers to carry the difficult burden of affirmatively proving the unfitness of the mother, the presumption may have the effect of depriving some'loving fathers of the custody of their children, while enabling some alienated mothers to arbitrarily obtain temporary custody. Cf., Caban, supra, 441 U.S. at 394, 99 S.Ct. at 1769. Even so, a gender-based classification, although suspect, may be justified if it is substantially related to a significant state interest. See, Reed, Frontiero and Caban, supra.

Admittedly, the State has a significant interest in overseeing the care and custody of infants. In fulfilling this responsibility in child custody proceedings, the courts of this state, in custody determinations, have applied the “best interests of the child” rule. Brill v. Johnson, 293 Ala. 435, 304 So.2d 595 (1974); Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966). We are convinced that the tender years presumption rejects the fundamental proposition asserted in Caban that “maternal and paternal roles are not invariably different in importance.” Caban, supra at 441 U.S. 389, 99 S.Ct. 1766. Even if mothers as a class were closer than fathers to young children, this presumption concerning parent-child relations becomes less acceptable as a basis for judicial distinctions as the age of the child increases. Id. Courts have come to rely upon the presumption as a substitute for a searching factual analysis of the relative parental capabilities of the parties, and the psychological and physical necessities of the children. The presumption has thus become what one writer refers to as an “anodyne” for the difficult decisions confronting the court. Roth, The Tender Years Presumption in Child Custody Disputes, 15 J.Fam.L. 423, 438 (1976). However, as Justice White correctly observed in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), “[procedure by presumption is always cheaper and easier than individualized determination.” In view of the fact that the welfare of children and competing claims of parents are at stake, such a means of determination cannot be justified.

The trial court’s custody decree conclusively shows that the tender years presumption was a significant factor underlying the court’s decision. Confronted with two individuals who were equally fit (i. e., all things being equal), the trial court awarded custody to the mother.

Accordingly, the judgment of the Court of Civil Appeals affirming the lower court decree and affirming the constitutionality of the tender years presumption is hereby reversed. The cause is due to be remanded to the trial court with directions that the court consider the individual facts of the case. The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material- and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose. In re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974); see also, Johnson v. Johnson, 564 P.2d 71 (Alaska 1977); In re Marriage of Bowen, 219 N.W.2d 683 (Iowa 1974); Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974). Only in this way will the court truly consider the best interests of the Devine children.

REVERSED AND REMANDED WITH DIRECTIONS.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., dissents.

ALMON, J., not sitting.

TORBERT, Chief Justice

(dissenting).

The majority of the Justices on this Court have voted to abolish the tender years doctrine for all purposes in this state. I believe that decision goes too far, and I would retain the doctrine as a factor to be considered in deciding to which parent custody should be awarded.

The well-being of the child is the paramount consideration in determining its custody. Strickland v. Strickland, 285 Ala. 693, 235 So.2d 833 (1970); Ayers v. Kelly, 284 Ala. 321, 224 So.2d 673 (1969); Curry v. Curry, 283 Ala. 272, 215 So.2d 715 (1968). The focus in a child custody hearing is on the child’s welfare and best interest, not on the parents or their personal rights. Custody of one’s child is not a prize to be fought for; rather it is a responsibility imposed by the court under appropriate conditions or restrictions the court sees fit to impose. Therefore, Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), and Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), as well as other cases cited by the majority, have no relevance in the field of child custody. Gender may be an inappropriate factor to consider in bestowing a benefit, but it should be a factor in determining which parent will have primary custody of a very small child.

We are not faced here with the type of problem dealt with in Orr, Frontiero, and Reed, i. e., a rule by which one gender was given absolute preference over the other. The tender years doctrine, as the majority correctly stated, has evolved over the years into a factor to be considered in child custody determinations, rather than a compelling presumption. See, Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.1979). I believe it is valid as such, and should be retained in its present form. I therefore respectfully dissent.

      . There are a number of excellent law review articles recounting the historical development of the tender years presumption. For purposes of this opinion, we have relied heavily on Foster, Life With Father: 1978, 11 Fam.L.Q. 321 (1978), reprinted in S. Katz & M. Inker, Fathers, Husbands & Lovers: Legal Rights & Responsibilities 139 (1979); Roth, The Tender Years Presumption in Child Custody Disputes, 15 J.Fam.L. 423 (1976); Podell, Custody — To Which Parent? 56 Marq.L.Rev. 51 (1972); and Comment, Measuring the Child’s Best Interest — A Study of Incomplete Considerations, 44 Den.L.J. 132 (1967). See also, 69 Am.Jur.2d Parent and Child §§ 28-31 (1971).

      . In Wells v. Wells, 117 S.W.2d 700 (Mo.App. 1938), the court briefly alluded to the fact that at common law, the paternal preference rule was based, in part, upon the assumption that “all things being equal” the father was presumed to be the best custodian. Thus, the paternal preference, like the tender years presumption, was intended to resolve difficult custody questions when divorcing parents were equally fit. The contrasting rules, therefore, share a common assumption, i. e., “all things being equal” one parent is presumed to be a better custodian; however, from this common assumption they “presume” different conclusions.

      . Alabama, Arkansas, Florida, Idaho, Kentucky, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, Wisconsin and Wyoming. For an excellent listing of the status of the tender years presumption in the various states see Foster, Life with Father: 1978, 11 Fam.L.Q. 321 (1978) and Annot., 70 A.L.R.3d 262 (1976).

      . Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Nebraska, New York, North Carolina, Ohio, Texas and Washington.

      . Kansas, Oregon, Pennsylvania and Vermont.

      . Louisiana, Maryland, Minnesota and Utah.

      . We recognize that this Court has denied cer-tiorari in several cases wherein the Court of Civil Appeals had examined the constitutionality of the tender years presumption. Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. den. 372 So.2d 341 (Ala. 1979); Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1974), cert. den. 295 Ala. 425, 326 So.2d 129 (1976). However, these decisions were rendered prior to Caban. We granted certiorari in the instant case to re-examine the constitutionality of the presumption in light of the Caban decision.

      . Ironically, the first application of the best interests rule in an Alabama divorce proceeding was made in Cornelius v. Cornelius, supra, the first case discussing the tender years presumption. Prior to that time the rule had only been recognized in those cases wherein children were outside the custody of their father and he asserted his natural rights to their custody by way of habeas corpus. Ex parte Boaz, 31 Ala. 425 (1858); Neville v. Reed, 134 Ala. 317, 32 So. 659 (1901). Thus, from a common origin the tender years presumption and the best interests of the child rule have grown side by side. In virtually every case wherein this Court applied the tender years rule, it would also express its abiding concern for the best interests of the child. See, e. g., Hammac v. Hammac, supra; Goldman v. Hicks, 241 Ala. 80, 1 So.2d 18 (1941); Stoddard v. Bruner, 217 Ala. 207, 115 So. 252 (1928); Thomas v. Thomas, 212 Ala. 85, 101 So. 738 (1924). As far as the courts were concerned, the best interests of young children were always served by placing them in the custody of their mother.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Christopher P. DEVINE v. Alice Beth Clark DEVINE.
    Civ. 2092.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
   WRIGHT, Presiding Judge.

In accord with the mandate of the Alabama Supreme Court, 398 So.2d 686 entered on March 27,1981, the decision of this court, 398 So.2d 684 entered on March 5, 1980, is set aside and the judgment of the Circuit Court of Calhoun County is reversed and the cause is remanded for further consideration of the award of custody of the children upon the facts of the case without presumption in favor of one parent over the other because of sex.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Lucy Drake GRAHAM v. CITY OF HUNTSVILLE.
    Civ. 2534.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.
    Rehearing Denied March 18, 1981.
    Robert M. Shipman, Huntsville, for appellant.
    Walter A. Record, III, Huntsville, for ap-pellee.
   BRADLEY, Judge.

This is an appeal from a summary judgment rendered against an applicant for a use variance to a zoning ordinance.

Lucy Drake Graham is the owner of several acres of land abutting Drake Avenue in Huntsville, Alabama. This property lies in a district which has been zoned as “Residence A-l.” Only single family dwellings, churches, public facilities, • and farms are allowed in such a district.

Mrs. Graham applied to the City of Huntsville for a permit to allow her to locate a house trailer on this property. The purpose was to house a watchman who would protect her and her property. She stated that threats had been made on her life. The request for the permit was denied and Mrs. Graham appealed to the Board of Zoning Adjustment of the City of Huntsville.

Mrs. Graham’s request for a variance to permit her to locate a house trailer on her property, which was located in a district zoned “A-l Residential,” was not approved by the Board. She appealed to the Circuit Court of Madison County for a trial de novo as authorized by § 11-52-81, Code of Alabama 1975.

Prior to a trial on the merits, the City filed a motion for summary judgment. Accompanying the motion was a certified copy of the proceedings before the Board, appellant’s deposition, and the affidavit of an official of the City Planning Commission. Mrs. Graham filed an answer to the motion and an affidavit in support thereof. After due consideration the trial court granted a summary judgment to the City. Mrs. Graham requested a rehearing but it was denied. She appeals to this court.

Mrs. Graham says here that the summary judgment was erroneous because there was at least a scintilla of evidence supporting her claim for a use variance to the City’s zoning ordinance.

Rule 56, ARCP, provides that a summary judgment may be awarded

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The supreme court said in McGuire v. Wilson, Ala., 372 So.2d 1297 (1979) that:

The summary judgment standard embodied in Rule 56, ARCP, is conjunctive. There must not only be an absence of genuine issue as to material fact, but there must also be circumstances entitling the moving party to judgment as a matter of law.

If, under any conceivable set of circumstances, there is a scintilla of evidence by which the non-moving party may recover against the moving party according to a cognizable theory of law, a motion for summary judgment should not be granted in favor of the moving party. Harbour v. Colonial Fast Freight Lines, Inc., Ala., 336 So.2d 1100 (1976); see Whitehead v. Davison Oil Co., Ala., 352 So.2d 1339 (1977); Educators’ Investment Corp. of Alabama v. White, Ala.Civ.App., 374 So.2d 905 (1979); ARCP 56, Committee Comments. Even if the facts alleged by the movant in support of his motion for summary judgment are uncontroverted, the motion must be denied unless the movant is entitled to such a judgment as a matter of law. Hudson Thompson, Inc. v. Leslie C. King Co., Ala., 361 So.2d 541 (1978).

After a careful examination of the record evidence and considering the inferences to be gleaned therefrom in a light most favorable to the City, we do not believe that the City was entitled to a judgment as a matter of law.

Section ll-52-80(d), Code of Alabama 1975 empowers a board of adjustment to grant a variance from the literal application of a zoning ordinance provided that such a variance will not be inimical to the public interest, “where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.” In Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951) the supreme court said that:

[Hjaving in mind the public interest, and the interest of the people in a given use district, the legislature intended that so long as no oppression or unnecessarily great burden exists and, therefore, no great individual injustice done, the ordinance should be applied strictly; but, on the other hand, if the situation is such as to indicate oppression and unnecessary individual burden, then the spirit of the zoning ordinance would not be in accordance with the spirit of the law, that it should not be applied strictly and literally.
Variances from the terms of the zoning ordinance should be permitted only under peculiar and exceptional circumstances. Hardship alone is not sufficient. The statute says “unnecessary hardship,” and mere financial loss of a kind which might be common to all of the property owners in a use district is not an “unnecessary hardship.”

In Nelson the type of hardship being considered was a financial one, whereas in the case at bar the “unnecessary hardship” relied on by Mrs. Graham for a variance was not primarily financial. Although Mrs. Graham said in her answer to the motion and in her affidavit that the failure to grant the variance would result in an unnecessary hardship to her because it would inflict on her financial and other loss uncommon to the other property owners in the zoned district and that a grant of a variance to her would not be contrary to the interests of the other property owners, the main thrust of her request for a variance not only in her application to the City but also in her deposition, was that her personal safety was at stake. She stated that her life had been threatened and she wanted a watchman to be on the premises twenty-four hours a day. She lived alone and she wanted the watchman to live in the mobile home which was located close to her residence so that she could be protected. Thus the question is presented as to whether the ordinance should be literally applied in Mrs. Graham’s case or whether to do so would be an unnecessary hardship to her.

We are satisfied, however, that the evidence offered in support of the summary judgment shows that Mrs. Graham does not dispute the City’s claim that her property can be reasonably put to a conforming use, but such evidence does not refute Mrs. Graham’s claim that she might suffer financial or other loss uncommon to other property owners in her district if the variance was denied. Consequently we believe that there is a conceivable set of circumstances by which Mrs. Graham might be entitled to a variance. This being so, it follows that the City was not entitled to a summary judgment as a matter of law.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    Ex Parte: CITY OF HUNTSVILLE (Re: Lucy Drake GRAHAM v. CITY OF HUNTSVILLE).
    80-444.
    Supreme Court of Alabama.
    May 22, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    SOUTHEASTERN MACHINERY & EQUIPMENT COMPANY, INC. v. C. A. TARPLEY.
    Civ. 2396.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.
    Rehearing Denied March 11, 1981.

      Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Ludger D. Martin of Martin & Martin, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a conversion case.

C. A. Tarpley filed suit against Southeastern Machinery and Equipment Co., Inc., on October 3, 1978, claiming damages of $7,500 for the conversion of a John Deere “350” tractor. Trial was had before a jury on February 20, 1980, and a verdict was returned for Tarpley in the amount of $6,000.

Southeastern moved for judgment notwithstanding the verdict or, in the alternative, for new trial. After argument on the motion the trial court ordered a remittitur of $1,000. Tarpley filed a remittitur reducing his recovery to $5,000, and Southeastern’s motion was overruled. Southeastern appeals.

There is evidence in the record as follows:

In April 1978 Tarpley purchased a John Deere “440” tractor from Southeastern. After using the tractor for a few days and finding it too small for his purposes, Tarp-ley returned to Southeastern and purchased a larger “350” model. After using it for half of one day, the tractor broke down. Attempts by Southeastern to repair on site failed. Tarpley transported the tractor to Southeastern for repairs. He stated he informed the manager to repair it or return his money. After a time Tarpley returned to Southeastern and became involved in an argument. The manager called the police and had him removed from the premises with direction not to return. Southeastern kept and has not returned the “350.”

The first issue is whether the evidence supports the jury’s finding that Southeastern is liable in conversion.

It is well settled that we presume a jury verdict to be correct and will not disturb that verdict unless it is clearly wrong or unjust. Freeman v. Turner, 374 So.2d 354 (Ala.Civ.App. 1979). We have reviewed the record carefully. There is much evidence which supports the finding of the jury and we will not disturb its verdict as to Southeastern’s liability.

In order for there to be a conversion it must appear that a wrongful taking, detention or an illegal assumption of ownership or use of another’s property has taken place. Ott v. Fox, 362 So.2d 836 (Ala.1978). Where the original taker acquires possession of the property rightfully and has neither asserted legal title to it nor exercised dominion over it inconsistent with the rights of the owner, ordinarily a demand and refusal to deliver the property are necessary. Shriner v. Meyer, 171 Ala. 112, 55 So. 156 (1911); Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968).

Southeastern claimed legal title and no wrongful taking and that no demand was made for the return of the tractor.

There was abundant evidence presented by each side in support of legal title. The jury could properly find legal title in Tarp-ley from that evidence. Bazzell v. Reeves, 374 So.2d 902 (Ala.Civ.App. 1979).

A demand and refusal is but one means of proving a conversion. A demand is not necessary when there has been a wrongful taking or an exercise of dominion and control over the property inconsistent with the rights of the owner. Moore v. Stephens, 31 Ala.App. 446, 18 So.2d 577 (1944); 89 C.J.S. Trover and Conversion § 55 (1955). Assuming there was no wrongful taking (the tractor being in Southeastern’s possession for repair or return), the conversion could have arisen by the exercise of dominion over the tractor by Southeastern in exclusion or defiance of Tarpley’s right to possession. Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855; cert. denied, 286 Ala. 741, 237 So.2d 861 (1970). In that event no demand would be necessary.

The evidence regarding the confrontation between Tarpley and Southeastern at the time the “350” was returned is revealing. That evidence, particularly Tarpley’s testimony that Southeastern “took my cat (tractor),” did not return it or his money and “run me off” at a time when the jury found he had a right to possession, was sufficient for the jury to infer exercise of dominion by Southeastern over the “350” in exclusion or defiance of Tarpley’s rights. If, after allowing all reasonable presumptions and inferences as to its correctness, it is not clear that the verdict is erroneous or unjust, we cannot reverse a case on the grounds of insufficiency of the evidence to support the verdict. Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975). There was sufficient evidence as to Tarpley’s ownership and right to possession and to Southeastern’s exercise of dominion over his property in exclusion or defiance of his rights to provide a scintilla of conversion. No demand and refusal were necessary. Moore v. Stephens, supra.

Was the damage award excessive?

Tarpley testified that the reasonable market value of the converted “350” was $6,000. The jury could properly consider this competent, unobjected-to evidence in fixing damages. Freeman v. Turner, supra. When a motion for a new trial is made on the grounds that the verdict is excessive and overruled, we will not substitute our judgment for that of the jury or trial judge unless the amount is so excessive as to indicate passion, prejudice, corruption or mistake. Avco Corp. v. Richardson, 285 Ala. 538, 234 So.2d 556 (1970). Because the amount awarded was supported by competent evidence, we cannot say that such passion, etc., existed here. 7 A Ala. Digest, Damages, Key No. 140. No error exists as to the amount of the judgment.

The plaintiff has requested in brief that we reinstate the full amount of the jury’s judgment of $6,000, in spite of his acceptance of an order of remittitur. Such a request may be presented after an appeal by defendant without necessity of a cross appeal. ARCP 59(f). Alabama Farm Bureau Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976). The trial court ordered remittitur because it considered the jury verdict excessive by $1,000. We have found the verdict of the jury supported by legal evidence. In the absence of any indication of bias or prejudice of the jury, the trial court is not authorized to substitute its judgment for that of the jury by ordering a remittitur. Central of Georgia Ry. Co. V. Steed, 287 Ala. 64, 248 So.2d 110 (1971). The original verdict and judgment is ordered reinstated.

AFFIRMED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . In spite of the statement in the syllabus of the case to that effect, there was no cross-appeal by plaintiff Guthrie.


author: MADDOX, Justice.

text:
    Ex Parte SOUTHEASTERN MACHINERY & EQUIPMENT COMPANY, INC. (Re: SOUTHEASTERN MACHINERY & EQUIPMENT COMPANY, INC. v. C. A. TARPLEY).
    80-424.
    Supreme Court of Alabama.
    May 27, 1981.
   MADDOX, Justice.

Writ Denied — No Opinion.

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


author: ' HOLMES, Judge.

text:
    Malcolm J. HUMPHREYS v. Thomas R. LAILE.
    Civ. 2472-X.
    Court of Civil Appeals of Alabama.
    March 11, 1981.
    Rehearing Denied April 8, 1981.

      Clifford W. Cleveland, Prattville, for appellant.
    W. Stephen Graves, Montgomery, for ap-pellee.
   ' HOLMES, Judge.

Laile sued Humphreys. The case was tried on the theory that Humphreys breached a contract with Laile. The trial court after an ore tenus hearing found for Laile and awarded damages in the amount of $2,384.45. Humphreys appeals and Laile cross-appeals. We affirm.

The dispositive issue on appeal is whether there is evidence to support the trial court’s finding of a contract between Laile and Humphreys.

The dispositive issue on cross-appeal is whether there is evidence to support the trial court’s finding that Laile and Hum-phreys terminated the contract by mutual assent.

The record reveals the following facts:

Laile was employed by a company engaged in the business of selling steel products. Laile was sales manager and had experience selling steel sheeting.

Humphreys, a businessman, purchased 226,323 pounds of steel sheeting on March 28, 1979. Humphreys on that date paid $5,000 towards the purchase price of the steel.

On March 30, 1979, Humphreys and Laile executed the following:

This is a joint venture agreement made between Malcolm Humphries and Thomas R. Laile to sell 226,323 # of gold & green sheets. Material purchased by Malcolm Humphries from O.S.I. on 28 Mar. 79. Profit after cost from O.S.I., Inc and any sales cost (i. e. telephone, travel, entertainment, motel; etc.) as verified & agreed upon by both parties. This is a one time agreement the split of profit will be Malcolm Humphries 55% Thomas R. Laile 45%. All freight will be extra on sale and at Malcolm Humphries’ quoted rate.

Laile quit his job on March 30 and began efforts to sell the steel on April 2, 1979.

It is undisputed that Humphreys and Laile agreed that Laile would receive 45% of all the profits from the sale of the steel regardless of who made the sale. Hum-phreys, however, testified that this agreement was conditioned upon Laile paying him $2,500, one-half of the $5,000 down payment. Laile never paid $2,500 and testified to the effect that such a payment was not a part of the contract.

In addition, there was testimony to the effect that Humphreys was to provide the financial backing for the undertaking and that Laile’s contribution was to be his services as an experienced steel products salesman. There is also evidence that Hum-phreys signed the writing set forth above without requiring that Laile make any payment.

The record further discloses that Hum-phreys, without the aid of Laile, made two sales, one on April 9,1979, and the other on April 13, 1979. A net profit of $5,368.80 was realized from these sales.

Laile, upon hearing of these sales, contacted Humphreys and requested payment of 45% of the profits from the sales. Hum-phreys refused to make payment.

The record discloses that Humphreys consistently refused to pay Laile any portion of the profits from the April 9 and April 13 sales. The record also discloses that Hum-phreys told Laile that he would pay Laile a commission on any sale made by Laile. Laile, with the knowledge of this state of affairs, continued to seek buyers and submit orders to Humphreys. Laile made no sales.

The trial court found that Laile and Humphreys had entered into a joint venture contract; that the contract did not require Laile to pay Humphreys $2,500; that Hum-phreys breached the contract by refusing to pay Laile 45% of the profits from the April 9 and April 13 sales; and that Humphreys and Laile terminated the contract by mutual assent when Laile continued to seek buyers after Humphreys refused to pay a 45% share of the profits and offered instead to pay Laile a commission.

At the outset, the rule governing our review of the issues presented on both the appeal and cross-appeal is that whenever the trial court hears the evidence ore tenus, its judgment is presumed correct and will not be disturbed on appeal unless plainly and palpably wrong. Rush v. Atomic Electric Co., Ala., 384 So.2d 1067 (1980); 2A Ala. Digest, Appeal & Error Key 931(1).

As stated above, the dispositive issue on appeal is whether there is evidence to support the trial court’s finding of a joint venture contract and a breach of that contract.

It is undisputed that Laile and Hum-phreys agreed that Laile would receive 45% of all the profits. This agreement is reflected in the document set out above. It is also undisputed that Humphreys never paid Laile. The only disputed question of fact before the trial court regarding the agreement itself was whether Humphreys’ obligation to share the profits with Laile was conditioned upon Laile’s payment of $2,500.

There is evidence to support the trial court’s finding that a payment of $2,500 was not required. Specifically, the written agreement signed by the parties makes no mention of it. Humphreys signed the agreement without requiring any payment by Laile. There was testimony to the effect that Humphreys was to provide the financial backing and that Laile was to do the selling.

In view of this evidence, we cannot say that the trial court was plainly and palpably wrong in finding that a $2,500 payment by Laile was not required.

The above being dispositive, we find it unnecessary to address the other issues raised by Humphreys on appeal.

With respect to Laile’s cross-appeal, the dispositive issue is whether there is evidence to support the trial court’s finding that. Humphreys and Laile terminated the contract by mutual assent.

A contract will be treated as abandoned or rescinded where the acts and conduct of one party inconsistent with its existence are acquiesced in by the other party. San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374 (1974).

In the instant case there is evidence showing that Humphreys refused to pay Laile any portion of the profits from the April 9 and April 13 sales; that Humphreys told Laile that he would only be paid a commission on his sales; and that Laile with knowledge of Humphreys’ position continued to seek buyers and submit orders to Humphreys. From this the trial court could find, and apparently did find, that Humphreys’ conduct was inconsistent with the existence of the contract and that Laile acquiesced in that conduct.

We cannot say that the trial court was plainly and palpably wrong in finding that the contract had been terminated.

Laile, through counsel, contends that he is entitled to damages greater than those awarded by the trial court. In light of the trial court’s finding that the contract was terminated, we cannot agree. Laile’s right to share in the profits ended when the contract was terminated. He has no rights in any profits earned after the termination.

Finally, Laile raises an issue regarding payment of costs of reproduction of the transcript below. In this case the appellant ordered a transcript of less than the entire record. Under these circumstances, Rule 10(b)(2) of the Alabama Rules of Appellate Procedure requires the appellant to serve the appellee with a statement of the issues on appeal. Appellant failed to do so.

Appellee then cross-appealed and requested that certain additional portions of the proceedings below be included in the transcript. Appellee did not state the issues to be presented on cross-appeal. Appellant refused to order the additional portions. The additional portions were included, however, and appellee was billed for them.

Appellee applied to the trial court for an order directing payment for the transcript, pursuant to Rule 10(b)(2), ARAP. The trial court then ordered the parties to file a designation of the issues to be presented on appeal and cross-appeal, which they did. However, the record before this court does not reflect any ruling by the trial court on which party shall bear the costs of the transcript. As a consequence, the parties have failed to preserve this issue for review. Biddy v. Biddy, 284 Ala. 68, 222 So.2d 162 (1969).

In view of the appeal and cross-appeal, and pursuant to Rule 35(a), ARAP, the costs of this appeal shall be taxed equally to the appellant and the cross-appellant.

This cause is due to be and is hereby affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Ex Parte Thomas R. LAILE. (Re Malcolm J. HUMPHREYS v. Thomas R. LAILE.)
    80-483.
    Supreme Court of Alabama.
    May 29, 1981.
   ALMON, Justice.

Writ Denied — No Opinion.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: HOLMES, Judge.

text:
    CITY OF GADSDEN v. Martha HARBIN.
    Civ. 2517.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 6, 1981.
    Roger W. Kirby, City Atty., and Teresa D. Jones, Asst. City Atty., Gadsden, for appellant.
    Charles Y. Boyd of Rhea, Boyd & Rhea, Gadsden, for appellee.
   HOLMES, Judge.

Harbin sued the City of Gadsden, alleging wrongful termination of employment. Harbin sought reinstatement as a police officer and back pay. A trial de novo was held in the Circuit Court of Etowah County and a jury returned a verdict which reinstated Harbin and awarded her back pay and benefits from the date of her dismissal. The City of Gadsden appeals and we reverse.

The dispositive issue is whether Harbin’s claim is barred by § 6-2-39, Code of Ala.1975, the one year statute of limitations on tort actions.

The record reveals the following facts:

On March 28, 1977, Harbin was employed by the City of Gadsden as a police officer. Her employment was terminated by the chief of police on March 3, 1978. She was not given a pretermination hearing.

On March 9, 1979, one year and six days after the date of her dismissal, Harbin initiated proceedings with the Gadsden Civil Service Board alleging that she was entitled to a pretermination hearing; that she was not afforded such a hearing, and that her dismissal was, therefore, wrongful. She sought reinstatement and back pay to March 3, 1978. On May 1, 1979, the civil service board reinstated Harbin as of March 9,1979, but failed to award her backpay for the period from March 3, 1978, to March 9, 1979.

On May 9, 1979, Harbin, pursuant to Art. 22, § 1203(14), Code of Alabama 1940, Appendix (Cum.Supp.1965), appealed by trial de novo to the Circuit Court of Etowah County. Again, Harbin alleged wrongful termination of employment and sought reinstatement and back pay to March 3,1978. The trial court overruled the City of Gadsden’s motions for summary judgment and directed verdict and a jury returned a verdict which reinstated Harbin and awarded her back pay and full benefits from March 3, 1978.

As stated above, the dispositive issue is whether Harbin’s claim is barred by the one year statute of limitations set forth in § 6-2-39, Code of Ala.1975.

We find § 6-2-39 is applicable in the instant case. The dismissal of a public employee who is entitled to a pretermination hearing, without such a hearing, is a wrongful act constituting a tort under Alabama law and the dismissed employee’s claim for reinstatement and back pay are tort claims subject to the one year statute of limitations set forth in § 6-2-39. Limbaugh v. Johnston, 393 So.2d 963 (Ala., 1981); Jefferson County v. Reach, Ala., 368 So.2d 250 (1979). Put another way, a former public employee has one year from the date of his dismissal to commence proceedings to contest the legality of his dismissal and secure reinstatement and back pay. Limbaugh v. Johnston, supra; Jefferson County v. Reach, supra.

In the instant case, Harbin claimed that on March 3, 1978, her employment as a police officer was wrongfully terminated. She contested the legality of her dismissal and sought reinstatement and back pay by initiating proceedings before the Gadsden Civil Service Board on March 9, 1979, and by appealing by trial de novo to the Circuit Court of Etowah County on May 9, 1979. In both instances the proceedings were commenced more than one year from the date of Harbin’s dismissal.

However, Harbin through able counsel contends that, even if § 6-2-39 is applicable to her claim, the Code section does not bar her claim in this instance. She argues, first, that the City of Gadsden waived the statute of limitations defense by failing to assert it in the proceedings before the civil service board and, second, that the running of the statute of limitations was tolled by the City of Gadsden’s fraudulent concealment of her cause of action.

Our review of the record discloses that the City of Gadsden did not assert the statute of limitations as a defense before the civil service board. The City of Gadsden did, however, assert the statute of limitations in the circuit court.

As stated above, the trial of Harbin’s claim in the circuit court was de novo. A trial de novo is a new trial in which the whole case is gone into as if no prior proceedings had occurred. Hendon v. City of Florence, Civ. 2598 (Ala.Civ.App., Feb. 4, 1981); Smith v. Civil Service Board of the City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974); Alabama Equity Corp. v. Hall, 46 Ala.App. 143, 239 So. 2d 215, cert. denied, 286 Ala. 731, 239 So.2d 220 (1970). Stated differently, the parties proceed upon a “clean slate” in the circuit court and there is nothing to prevent a party from asserting a defense for the first time. For this reason, we find that the City of Gadsden did not waive its statute of limitations defense by failing to assert it before the civil service board.

With respect to Harbin’s second contention, the record discloses that the primary question before the circuit court was the propriety of Harbin’s dismissal, specifically whether Harbin was or was not a probationary employee at the time of dismissal. Stated differently, the issue before the circuit court was whether the probationary period was six months or one year. Harbin contends the probationary period was six months and that the City of Gadsden fraudulently concealed her cause of action by representing to her that the probationary period was one year.

It is well settled that a fraudulent concealment of a tort or injury by the defendant will toll the running of the statute of limitations until the tort or injury is discovered or could have been discovered by due diligence. Garrett v. Raytheon Co., Inc., Ala., 368 So.2d 516 (1979). However, our review of the record fails to reveal evidence sufficient to sustain Harbin’s allegation on appeal of fraudulent concealment. See, Lovell v. Smith, 232 Ala. 626, 169 So. 280 (1936). Specifically, the record, rather than disclosing evidence of fraudulent concealment, discloses evidence indicating that there was a difference of opinion within the police department as to the length of the probationary period. On the one hand the civil service board’s published rules provided that the probationary period for police officers was six months. In addition, several of Harbin’s superior officers testified that the probationary period was six months. On the other hand, the City of Gadsden presented evidence to the effect that the civil service board amended its rules to extend the probationary period from six months to one year and that the chief of police acted pursuant to thi? rule change. Further, there is evidence that Harbin was aware of the discrepancy between the published civil service rules and the chief of police’s position at the time she was dismissed. Hence, it is clear to this court that the evidence does not support a contention of fraudulent concealment.

We would further note that, as indicated above, our review of the record reveals the case as tried in the circuit court did not proceed on a fraudulent concealment theory. On appeal, a case will not be reviewed on a theory different from that on which it was tried. See, Jackson v. Brantley, Ala.Civ.App., 378 So.2d 1109, affirmed, 378 So.2d 1112 (1979).

Summarizing, we find that Harbin’s claim of wrongful termination of employment is a tort claim subject to the one year statute of limitations set forth in § 6-2-39, Code of Ala.1975; that the City of Gadsden did not waive the statute of limitations defense; and that the one year limitations period expired on March 3, 1979, without being tolled. In short, we find that Harbin’s claim is time barred by § 6-2-39, Code of Ala.1975.

The above being dispositive, discussion of the other issues presented by the City of Gadsden is pretermitted.

The case is due to be reversed and remanded.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE ABOVE.

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


text:
    Willie J. BOGGAN, Jr. v. Anna Elizabeth BOGGAN.
    Civ. 2522.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 6, 1981.
    Allen W. Howell, Montgomery, for appellant.
    David R. Boyd, of Smith, Bowman, Tha-gard, Crook & Culpepper, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband filed suit for divorce on grounds of incompatibility. The trial court, after an ore tenus hearing, divorced the parties and made a division of property. The husband appeals and we affirm.

Viewing the record with the attendant presumptions, the following is pertinently revealed: The parties were married for thirty years. The wife is sixty-six years old and the husband is sixty-four. There were no children born of the marriage. However, both parties had children of prior marriages. As many as three of the husband’s children and two of the wife’s children lived with the parties at one time.

When the parties married in 1950, they lived in a home owned by the wife. Later they built a new home on an adjacent lot which was also owned by the wife. In 1953, the parties “traded” their new home in Mobile for a farm in Butler County and moved to the farm. The farmhouse burned in 1967 and the parties set up a mobile home on the old home site.

The parties’ income apparently was limited. Over the years the husband held various jobs which paid him from $100 to $125 per week. However, he was fired from one job and spent about a year drawing unemployment. He also spent a period of several years without a salaried job. The husband farmed during this period, but he testified that he lost money on the farm.

The wife did not work outside the home and farm during the marriage. Beginning in about 1966, she did receive some supplemental income from a trust set up by her mother. The wife had received a total of about $32,000 from her mother’s estate at the time of the hearing. The wife’s share of the trust income in 1980 amounted to about $81 per month. The corpus of the trust will not be distributed until after the wife’s death.

In addition to the income noted above, the parties are receiving monthly payments from the sale of their farm and a parcel of land in Covington County.

When they sold the farm, the parties retained a life estate in it. The farm was sold to two of the wife’s sons, who were to pay a total purchase price of approximately $25,000. The sons executed a mortgage on the farm. Each son makes a monthly mortgage payment of $100. There was evidence at trial that one son made payments to the husband and one made payments to the wife.

As indicated, the parties also sold a parcel of land in Covington County. At the time of the trial, the balance due on this parcel was $3,777.97 and the monthly mortgage payment was $74.

The parties also receive social security benefits. The husband receives $250 per month and the wife receives $164 per month.

The parties accumulated some valuable farm equipment over the years, including a dump truck, a tractor and a hay bailer. Before the trial, the husband sold all this equipment to his nephew for $10.

While the parties were married they purchased a 1977 truck which the husband drove. The husband testified that about two months before the trial he sold that truck to a lady friend for $3,000. He also testified that after the sale he was allowed to drive the truck whenever he wanted.

During the marriage the parties maintained joint bank accounts. Toward the end of the marriage the wife opened a separate savings account. There was evidence at trial that most of the money deposited in the account came from the wife’s share of the trust distributions, the monthly mortgage payments the wife received from one of her sons, and her social security checks. The account was closed in October of 1979.

The only other significant assets owned by the parties are: a cemetery lot with four spaces; a 1978 station wagon purchased by the wife; and a promissory note executed by the wife’s daughter in return for a loan of about $4,800. The funds for the station wagon and the loan came from the wife’s separate savings account.

The husband testified that the parties began to have difficulties about the time he retired in September of 1978. In January of 1979 he left to go to Texas. The husband testified that he returned home about two months later to get his wife to go back to Texas with him. However, in March of 1979 he placed an advertisement in the Butler County newspaper stating that he would no longer be responsible for his wife’s debts. In April the husband returned to Texas alone.

The wife is not in good health. She is suffering from two separate, but interrelated problems. She has a heart problem which causes “light headedness,” pain and fainting. She also has a memory disturbance which becomes more acute in stressful situations. Her condition will not improve and is likely to worsen.

As indicated, the dispositive issue on appeal is whether the trial court abused its discretion in the division of property.

The well established rule on appeal from a decree of the trial court rendered upon an ore tenus hearing is that such a decree is presumed correct and will be set aside only if it is unsupported by any credible evidence and is plainly wrong. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979). Division of property is within the sound discretion of the trial court and each case must stand on its own facts. Segars v. Segars, Ala.Civ.App., 334 So.2d 684 (1976). It is not necessary that the property be equally divided. Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 (1973).

The trial court awarded the wife the $74 monthly mortgage payments and one of the $100 monthly mortgage payments. The wife was also awarded the proceeds from the promissory note executed by her daughter, the 1978 station wagon, her interest in her mother’s estate, the cemetery lot, and the parties’ life estate in the farm.

The trial court awarded the husband one of the mortgages which paid $100 a month, the mobile home, and the parties’ interests, if any, in the 1977 truck and the farm equipment which the husband sold. The husband was also awarded any bank accounts and certificates of deposit he may have.

No periodic alimony was awarded to the wife.

As stated above, the trial court is not required to divide the parties’ property equally. Helms v. Helms, supra. Instead, the division of property depends on the facts of the particular case. Segars v. Segars, supra.

As indicated, the parties’ assets were not large.

In effect, excluding the wife’s daughter’s promissory note and the wife’s interest in her mother’s estate, the trial court divided the assets equally.

In view of the above, with emphasis on the wife’s failing health, we find no abuse of discretion in the trial court’s action.

The wife has requested attorney’s fees on appeal. A fee of $350 is awarded for representation on appeal.

The husband’s request for attorney’s fees on appeal is denied.

This case is due to be affirmed.

AFFIRMED.

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

      . A portion of the retained life estate was later conveyed by the parties to one of the sons. That conveyance is the subject of a separate lawsuit.


text:
    Suzy Bernell NOLEN v. Jack Richard NOLEN.
    Civ. 2531.
    Court of Civil Appeals of Alabama.
    May 6, 1981.

      Michael L. Roberts and James E. Hedgs-peth, Jr., of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Robert H. King, Gadsden, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, awarded custody of the parties’ two minor children to the wife, ordered the husband to pay child support and periodic alimony, and ordered a division of property. The wife appeals and we affirm in part and reverse in part.

The dispositive issue is whether the trial court abused its discretion in limiting the award of periodic alimony to one year.

The record, reviewed with the attendant presumptions, reveals the following:

The parties were married for approximately twenty-four years. Four children were born of the union. Of these four children two sons, ages eighteen and eleven, were minors at the time of trial. As indicated above, the wife was awarded custody of the two minor children and the husband was ordered to pay child support in the amount of $250 a month per child.

The husband is fifty years old and is a practicing physician specializing in obstetrics and gynecology. In 1979 his net income from his medical practice was approximately $45,500. In addition, the husband has an apparent separate estate valued at approximately $160,000.

The wife is forty-four years old. She has been trained as a registered nurse and, while she worked in that capacity during the early years of the marriage, she has not worked for nineteen years. She is not currently licensed as a registered nurse and there is evidence indicating that she would have to receive additional education and training before she could return to work. In addition, the wife has an apparent separate estate valued at approximately $34,000.

The trial court in dividing the property awarded each party his or her separate estate. The wife was additionally awarded the homeplace valued at $125,000, household furnishings, two automobiles, and other property valued at approximately $5,400.

The trial court also ordered the husband to pay the wife $1,000 a month for twelve months as alimony.

As stated above, the dispositive issue is whether the trial court abused its discretion in limiting the award of alimony to one year. The wife through counsel contends the award was inadequate. We agree. We specifically note the wife makes no complaint regarding the division of property.

At the outset, we find the award of alimony in this case to be periodic alimony. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974).

An award of periodic alimony is a matter within the judicial discretion of the trial court. An exercise of that discretion will not be reversed except for palpable abuse. White v. White, Ala.Civ.App., 374 So.2d 335, writ denied, 374 So.2d 337 (1979); 8 Ala. Digest, Divorce Keys 286(2), (3), and (5).

While there are no fixed standards for determining whether periodic alimony is to be granted, there are factors the trial court should consider. These include the future prospects of the parties, their ages, sex, health, station in life, the length of the marriage, and, where appropriate, the fault of the parties in causing the breakdown of the marriage. Kabaci v. Kabaci, Ala.Civ. App., 373 So.2d 1144 (1979); White v. White, supra; Gamble v. Gamble, 53 Ala. App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974). These same factors should also be considered in determining the amount and duration of the award. Wikle v. Wikle, Ala.Civ.App., 390 So.2d 297 (1980).

As indicated, the wife has a relatively small separate estate. She has not worked in nineteen years and additional education and training may be necessary before she can become licensed and obtain employment as a registered nurse. She has been married for approximately twenty-four years.

This court is fully cognizant of what the learned trial judge was attempting to accomplish. That is that the wife should secure employment as a registered nurse. However, considering the husband’s earning capacity, the length of the marriage, the wife’s custody of the children, and the possibility that the wife may have to receive additional education and training before she can be licensed and employed, we find the trial judge did abuse his discretion in limiting the award of periodic alimony to one year. Wikle v. Wikle, supra. We further find that, under the circumstances of this case, an award of $1,000 a month for forty-eight months is appropriate. This should provide the wife ample time to secure whatever training and education is necessary in order for her to reenter the work force.

Of particular interest in support of the above, see Roberts v. Roberts, Ala.Civ.App., 357 So.2d 150 (1977), writ quashed, 357 So.2d 154 (1978).

We are aware that there is testimony regarding the wife’s conduct with a third party. However, there is also ample evidence regarding the husband’s activities with a third person. The parties’ activities as relating to fault does not supplant or change what we said above regarding the award of periodic alimony. When the parties are equally at fault in contributing to the failure of the marriage the element of fault should be disregarded, even with respect to consideration of division of property and award of alimony. Dees v. Dees, Ala.Civ.App., 390 So.2d 1060 (1980).

We would also note that periodic alimony is, of course, subject to modification under appropriate circumstances.

In addition to the above, the wife contends the trial court erred in improperly restricting the cross-examination of the husband.

The scope and extent of cross-examination is a matter reserved for the sound discretion of the trial court and the exercise of that discretion is not reviewable absent gross abuse. Clevenger v. State, Ala.Civ. App., 369 So.2d 563 (1979); 2A Ala. Digest, Appeal & Error Key 971(3).

The record reveals that the questions prohibited by the trial court either sought to elicit testimony on facts already established by the admissions of the husband during prior cross-examination or sought to elicit irrelevant testimony on the husband’s spending habits. The trial court could properly have found the questions to be either repetitive or directed to irrelevant matters. We find no abuse of discretion.

Finally, the wife contends the trial court erred in its award of attorney’s fees. Specifically, the trial court awarded a $10,000 fee; however, the court stated that the husband was to pay $7,500 and that the wife was to pay $2,500. The wife argues the award was error.

The amount of attorney’s fee to be awarded always rests in the sound discretion of the trial court, and the trial court’s judgment as to the amount of the attorney’s fee will not be reversed in the absence of clear evidence of abuse. Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1974), writ denied, 293 Ala. 748, 309 So.2d 111 (1975); 2A Ala. Digest, Appeal & Error Key 984(5). We find no error in the award as stated. The trial court simply found the husband was obligated to pay a $7,500 attorney’s fee.

In the instant case we find no such abuse in the award.

As indicated above, we reverse the trial court’s decree only insofar as it relates to the one year limitation on the ijiward of periodic alimony.

The wife has requested an attorney’s fee for representation on appeal. A fee of $500 is awarded.

The case is due to be affirmed in part, reversed in part, and remanded for entry of a judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


text:
    Thomas F. HEATHCOCK v. Ruby Lee Findley HADLEY, as Administratrix of the Estate of Carlean Heathcock.
    Civ. 2591.
    Court of Civil Appeals of Alabama.
    May 6, 1981.

      Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellant.
    C. Lenoir Thompson, Bay Minette, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The administratrix of the estate of the mother of the parties (plaintiff) sued to recover certain pieces of furniture or household goods or equipment from her brother (defendant). The case was previously before this court and the underlying facts are stated in Heathcock v. Hadley, Ala.Civ. App., 380 So.2d 915 (1980). After another nonjury trial the circuit court rendered judgment against the defendant (1) for some twenty particular articles of personal property, (2) for their separate “value depreciated” totaling $2,965 as their total alternate values, and (3) for $1,154 for the “retention” of the property. The judgment is adequate to meet the requirements of a detinue judgment under § 6-6-256 of the Code of Alabama of 1975. The defendant has appealed.

Plaintiff’s Action against Defendant

The plaintiff testified that she had made a list of the personal property which she contends was removed from her mother’s house shortly after her death, and that the plaintiff conducted a study of their value by talking to furniture dealers from whom she received her figures. She investigated the purchase of a five piece bedroom suite in Jay, Florida by her father around 1972. Its new value was not claimed. The following then occurred:

Q. What did you claim?
A. Six hundred dollars.
THE COURT: Do you propose to offer the depreciated value?
MR. THOMPSON: That is what we are going on is six hundred rather than the new value.
THE COURT: All right. To expedite the case I am going to allow Mr. Partin an objection to each of these depreciated values since it seems that the witness is going to have to testify to an investigative result in each case and I will give him his exception and let’s see if we can’t get along and find what evidence there is.

In no instance was there any variance, between her testimony as to the “depreciated value” of an item and the amount of award to the plaintiff for its alternate value. The two, her testimony and the alternate value, were universally identical.

The plaintiff did not offer any evidence as to the reasonable fair market value, or as to any authorized comparable yardstick, of any of the personal property in controversy; but, as we understand her testimony, she limited the evidence to “depreciated value.” There can exist a great variance between the market value of an article and its depreciated value.

If we accept without deciding that evidence of the depreciated value of personal property standing alone is adequate proof of its alternate value, it would be essential that the evidence disclose how such depreciated value was determined before a witness could give an opinion as to such depreciated value. She testified to the cost of very few items. The cost of eighteen of the articles was not presented to the court. The estimated useful life of the various assets was never mentioned. The evidence failed to name or describe the depreciation method whereby the depreciated value was determined. Thus, there was a failure of proof as to the alternate value of any of the claimed personal property. Insufficient evidence as to alternate value is just as fatal and inadequate as no evidence thereon. The general rule is that it is reversible error if the plaintiff does not prove the alternate value of the various items sued for. Beavers v. Harris, 265 Ala. 548, 93 So.2d 161 (1957); Chrysler Credit Corporation v. Tremer, 48 Ala.App. 675, 267 So.2d 467 (1972). No exception to that rule is here applicable.

Additionally, there was no evidence whatsoever regarding damages for the detention of the property. Therefore, the trial court should not have awarded the sum of $1,154 to the plaintiff for the “retention” of the property. “[T]he burden of proving the value of the property sued for and the value of its detention, if any, is upon the plaintiff.” Davis v. Wolff, 293 Ala. 408, 304 So.2d 203 (1974). Here, the evidence was deficient as to both of such values.

Thirdly, in many instances the evidence was still insufficient to prove a taking of a particular article by the defendant or to show ownership thereof by the parties’ mother at the time of her death. In that regard, the status of the evidence as to most of the particular pieces of furniture or equipment remained in the same relative condition as existed, and as was ruled inadequate, in the first appeal. Heathcock v. Hadley, supra.

Accordingly, we reverse and hereby render judgment in favor of the defendant with regard to the plaintiff’s action against the defendant. § 12-22-70, Code of Alabama 1975.

Defendant’s Counterclaim against Plaintiff

The defendant, by counterclaim, sought damages from the plaintiff for the conversion of certain personal property. The evidence regarding the counterclaim was such that we cannot hold that the trial court was clearly and palpably wrong in deciding against the defendant on that counterclaim. In that respect, the usual presumption applies which favors the correctness of the findings of a trial court after personally hearing the evidence. Anderson v. Blue Star Ready Mix, Inc., Ala. Civ.App., 391 So.2d 127 (1980).

We affirm that portion of the judgment of the trial court which entered judgment in favor of the plaintiff upon the defendant’s counterclaim.

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

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

All the Judges concur.