text:
    Muriel Prim Hornsby PARKER v. Walter Eugene PARKER.
    Civ. 2327.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.

      Maury Smith and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery and George M. Taylor, Jr. of Taylor & Newby, Prattville, for appellant.
    Theron 0. McDowell, Jr., Prattville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals, contending that the trial judge abused his discretion in the division of property, in failing to award periodic alimony, and in failing to award the wife’s attorneys a fee.

We reverse in part and affirm in part.

Viewing the record with the attendant presumptions, the following facts are pertinently revealed:

The parties were married for eighteen years. They were divorced on ground of incompatibility. Custody of the two minor children was first awarded to the wife, but the record before this court reflects a modification of the custody decree since the divorce. The husband now has custody of both children.

The husband is a physician engaged in the general practice of medicine. He had a gross income of approximately $300,000 in 1979. However, for the past few years he has suffered from heart abnormalities and severe depression. Prior to the divorce, the husband cut his patient load in half. This action was upon advice of his doctors, who warned that failure to do so would kill him. The husband is now expected to earn a disposable income of about $40,000 a year.

The wife is approximately forty years old. She has a college degree, apparently in Home Economics with emphasis on interior design, and had begun a training program for interior designers shortly before the parties married. She never completed the training program. During the marriage, the wife was a homemaker, never working at any job outside the home.

The parties accumulated a substantial amount of jointly owned property, including a residence valued at $295,000, with an outstanding mortgage of $33,000, two parcels of undeveloped land in Gulf Shores, valued at $156,000, various pieces of silver, cut glass, works of art, etc., valued at $100,-000, and several life insurance policies.

The parties were ordered to sell the above described realty and to divide the proceeds equally. Assuming that the real estate is sold at the values stated above, the wife will receive approximately $200,000 from the sale of the property. The parties agreed that the wife would get $75,000 worth of silver, etc. The court awarded the wife life insurance with a cash value of $4,300 and lump sum alimony in the amount of $9,600 to be paid in equal installments for one year. In addition, she will keep her jewelry valued at $26,380 and her car, valued at $6,500.

In addition to his one-half share of the jointly owned real estate, the court order allowed the husband to retain a forty acre farm valued at $140,000, with a mortgage of $69,000, a parcel of land in Gulf Shores which he owned individually, valued at $45,-000, a gold bar valued at $55,800, $25,000 worth of silver, etc., various bank accounts and life insurance policies, a car and a truck. The husband also retained his interest in a high risk investment, Warrior Drilling, and remains responsible for certain debts of the parties. His assets, excluding his life insurance policies, retirement fund and automobiles, are valued at approximately $425,000. He has liabilities of over $100,000.

The first issue is whether or not the trial judge abused his discretion in the division of property.

The division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Ray v. Ray, Ala.Civ.App., 379 So.2d 627 (1980); 8 Ala. Digest, Divorce Key 286(5). An equal division of property is not required. Pettis v. Pettis, Ala.Civ.App., 334 So.2d 913 (1976). The division should be graduated accordingly to the nature of the case. Lindsey v. Lindsey, Ala.Civ.App., 361 So.2d 601 (1978).

In the instant case the parties own a substantial amount of valuable assets. However, the husband’s poor health has forced him to drastically reduce his workload, which has caused a correlative reduction in his income.

The wife contends that the husband has purposefully handled his financial matters in such a way as to diminish his net worth prior to the divorce. For example, the wife notes that after an unpleasant vacation, the husband sold bonds with a face value of approximately $255,000.

The husband testified that he “lost” $26,-540 on the bonds. The proceeds from the sale were then apparently invested in the commodity market. The husband closed his commodity market account early in 1980. Although the exact amount of proceeds he finally received cannot be clearly ascertained from the record, the husband testified that he spent the proceeds as follows: $124,682 was applied to his debt at Warrior Drilling; $61,710 was used to purchase a gold bar; $7,000 was paid to his attorney; $15,000 was paid to his broker; and $12,225 was deposited in his savings account. In addition, he received $24,000 in cash. Several thousand dollars are unaccounted for.

As indicated above, the court order awarded the wife assets valued in the neighborhood of $300,000. Under one view of the evidence, as indicated, the husband received, after deduction of liabilities, assets of approximately the same value.

In view of the above, we do not find an abuse of discretion in the division of property. This is particularly so in light of the fact that the husband has custody of the children. The division of property is affirmed.

The next issue is whether or not the trial court erred in failing to award the wife periodic alimony.

An award of periodic alimony is a matter within the judicial discretion of the trial court. Reynolds v. Reynolds, Ala.Civ.App., 376 So.2d 732 (1979). 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, Ala., 374 So.2d 337 (1979).

In this case the parties were married for eighteen years. The wife took college courses in interior design, but has no work experience. She does have excellent social connections as a result of her marriage which should be beneficial to an interior decorator. Whether the wife will be self-supporting in the immediate future, however, remains to be seen.

The wife has been awarded a seemingly generous property settlement. Nevertheless, a portion of that settlement is composed of jewelry, silver and the like, which have sentimental value.

The major portion of the award, as stated earlier, to the wife is comprised of one-half the value of several parcels of real estate. The parties’ marital home is on one of those parcels. The home, located in Prattville, Alabama, as indicated above, has been valued at $295,000.

If the various parcels of real estate sell at a price equal to or higher than the values assigned them, the wife will have a sizeable fund to invest which will produce a substantial annual income for her.

Specifically, the wife will have approximately $200,000 to invest if the real estate sells at prices equal to the values given above. In addition, the wife will have alimony in gross payable at the rate of $800 per month for one year and $4,300 which is the cash value of the insurance policies awarded to her. She will also have jewelry valued at over $25,000 and silver and cut glass, etc., valued at $75,000.

On the other hand, if the proceeds from the sale of the real estate do not to some extent substantially meet or exceed the values assigned the property, she will not have the stated funds to invest. The wife, in this case, does not have the training and experience which would enable her to obtain the type employment necessary to produce an income commensurate with the standard of living to which she is accustomed. See, Smith v. Smith, Ala.Civ.App., 369 So.2d 1235 (1979).

In view of the fact that the extent of the wife’s disposable assets will not be known until the real estate has been sold, we find the trial court erred in not at least reserving the right to award periodic alimony. As circumstances dictate, this provision of the decree can be appropriately administered by the learned and distinguished trial judge. We therefore reverse on this ground.

The last issue is whether or not the trial court erred in failing to award the wife’s attorneys a fee for their representation of the wife at trial.

The allowance of attorneys’ fees in divorce matters is within the sound discretion of the trial court. Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461 (1972). The court’s exercise of the discretion will not be reversed on appeal in the absence of abuse. Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978).

In the instant case, there was no evidence presented as to the value of the services of the wife’s attorneys. The trial court will not be reversed for failing to grant relief for which there has been no evidence presented. Cinader v. Cinader, Ala.Civ.App., 367 So.2d 487 (1979); Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970). We affirm the trial court on this ground.

This court is aware that the wife made a post trial motion to reopen the case apparently for the purpose of taking testimony concerning attorneys’ fees. However, no action was taken on this motion. A trial judge may not be put in error if he has made no ruling; hence, no error. Dennis v. Scarborough, Ala.Civ.App., 372 So.2d 357 (1979); 2 Ala.Digest, Appeal & Error Key 242(1).

The wife has requested a fee for representation on appeal. A fee of $750 is awarded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Michael THOMAS v. Judy Pybus THOMAS.
    Civ. 2370.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    J. E. Sawyer, Jr. of Rowe, Rowe & Sawyer, Enterprise, for appellant.
    Durell Whiddon of Halstead, Whiddon & Woodham, Abbeville, for appellee.
   BRADLEY, Judge.

The trial court refused to modify a divorce decree and this appeal is from that order.

Michael Thomas and Judy Pybus Thomas were divorced on January 7, 1977. The divorce decree incorporated a prior settlement agreement which included the following terms: (1) the wife was permitted to live in the jointly owned family house until she remarried or moved out of it; (2) the husband was required to pay the mortgage payments plus the taxes and insurance on the house until the wife remarried or moved out of it; (3) should the wife remarry or move out of the house, the house and lot is to be sold and the proceeds, after payment of costs of sale and any outstanding mortgage indebtedness, are to be divided equally between husband and wife; and (4) the wife was to have the use and benefit of the household furniture until such time as she remarried or moved out of the house, at which time the furniture would be divided between the husband and wife as set out in the divorce decree.

On February 6, 1980 Michael Thomas filed a petition asking for a rule nisi to enforce the divorce decree or, in the alternative, to modify the said decree. In his petition Michael said that Judy, under the terms of the divorce decree, had been allowed to live in the jointly owned family home until she remarried or moved out of the house and that a material change of circumstances had occurred since the divorce decree in that Judy was living openly in the house with a man to whom she was not married in violation of § 30-2-55, Code of Alabama 1975. Section 30-2-55 provides in part as follows:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.

Michael asked the court to require that the house be sold and the proceeds divided equally after payment of all costs and liens thereon as provided by the decree. He also asked that Judy be required to turn over to him the household and kitchen furniture as a result of the cohabitation with a member of the opposite sex.

Judy moved to dismiss the petition on the ground that the divorce decree provisions requiring the house to be sold and certain household furniture transferred to Michael in the event she remarried or moved out of the house were either a property settlement or an alimony in gross award and were therefore nonmodifiable. The court granted the motion to dismiss and Michael appeals.

The dispositive issue here is whether the divorce decree provisions above mentioned are to be considered as alimony in gross and a property settlement and therefore nonmodifiable, or whether those provisions are to be treated as awarding periodic alimony and therefore modifiable. We consider the provisions to be in the nature of periodic alimony and thus modifiable.

To qualify as a property settlement, the award must meet at least two requirements: (1) the amount and time of payment must be certain and (2) the right to it must be vested and not subject to modification. Cochran v. Cochran, 289 Ala. 615, 269 So.2d 897 (1972).

The provisions of the divorce decree clearly provide that so long as Judy remains unmarried or does not move out of and away from the house, Michael must make the mortgage payments on the house and also pay the insurance and taxes thereon. Judy is also authorized to have the use and benefit of the household furniture if she does not remarry or move away from the house. However, if she remarries or moves out of the house, the property is to be sold and the proceeds divided equally after payment of any costs and outstanding indebtedness. Also, should Judy marry or move out of the house, certain household furniture is to be retained by Judy and the remainder of the furniture is to be Michael’s.

We held in McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978), a case very similar to the one at bar, that requiring the husband to make the mortgage payments on a house in which the wife was permitted to live until she remarried was to be considered as a part of a periodic alimony award and thus modifiable. Likewise, in the case at bar, the wife was permitted to live in the house until such time as she remarried or moved out. During the time the wife lived in the house, the husband was required to pay the monthly mortgage payments and the taxes and insurance. Upon her remarriage or removal from the house, the house would be sold and the proceeds, after payment of costs and outstanding mortgage indebtedness, would be divided equally between the two parties. As we said in McGugin, the uncertainty attendant upon the time and amount of payment of the mortgage prevents the award from being a property settlement and makes it an award in the nature of periodic alimony.

A decree awarding periodic alimony may be modified on a showing of changed circumstances. McGugin v. McGugin, supra. The appellant alleges that the circumstances have changed because the former wife is now living with a man in the marital house in violation of § 30-2-55, Code of Alabama 1975.

Whether the former wife is violating said section is a question of fact to be decided by the trial court after a proper hearing.

The judgment of the trial court dismissing the complaint is reversed and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    Beth Hall ROGERS, an Individual; Jefferson County Board of Education, a State Agency v. The ALABAMA BOARD OF EDUCATION, a State Agency; Dr. Wayne Teague, as Superintendent of the Alabama Board of Education; The Alabama Department of Examiners of Public Accounts, a State Agency; William W. Dillard, Jr., as Chief Examiner of the Alabama Department of Examiners of Public Accounts.
    Civ. 2378.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    Gerald D. Colvin, Jr. of Bishop, Sweeney, Colvin & Johnson, Birmingham, for appellant.

      Charles S. Coody, Montgomery, for appel-lees State Bd. of Ed. and Dr. Wayne Teag-ue.
    Charles A. Graddick, Atty. Gen. and Ronald C. Forehand, Asst. Atty. Gen., for appel-lees Dept, of Examiners of Public Accounts, and William W. Dillard.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Mrs. Rogers and the Jefferson County Board of Education (county board) by the complaint sought a declaratory judgment against the State Board of Education (state board), Dr. Wayne Teague, as superintendent of the state board (Dr. Teague), the Department of Examiners of Public Accounts (examiners) and Mr. William W. Dillard, as chief examiner (Mr. Dillard).

Mrs. Rogers was a secretary at Shades Valley High School. The facts appeared in the complaint as follows:

FACTUAL SETTING
3. Plaintiff Rogers was hired pursuant to contract by the Jefferson County Board of Education for the academic year commencing July 1, 1978. She reached mandatory retirement age on April 9, 1979. As part of her compensation for employment, she was entitled to a specified number of vacation days. Pursuant to personnel policy of the Jefferson County Board of Education, vacation time is not accumulative and should not be taken while school is in session.
Beth Hall Rogers did not take vacation days which she had earned under her contract for employment which she earned and was entitled to during the period extending from July 1, 1978 to April 9, 1979.
ISSUE IN CONTROVERSY
4. Plaintiff Rogers worked for the Jefferson County Board of Education under contract from July 1,1978 to April 9, 1979. During this period, she earned approximately 11.5 vacation days. Since school was in session during most of this time, plaintiff Rogers did not take her vacation days. Ordinarily, she would be entitled to take these earned vacation days during the summer months extending from June 1 to August 30 while school was not in session. Since she reached mandatory retirement age on April 9,1979, she could not carry forward these earned vacation days to the summer months.
Plaintiff Jefferson County Board of Education requested permission from the Alabama Department of Examiners of Public Accounts to pay plaintiff Rogers for her earned vacation days. The Alabama Department of Examiners of Public Accounts has issued an opinion that the Department would disallow any payment to an employee for unused vacation under the circumstances of this case. (See APPENDIX B).
DEMAND FOR RELIEF
5.Plaintiffs seek a declaratory judgment that Beth Hall Rogers is entitled to compensation for earned vacation days notwithstanding the existing policy of the Jefferson County Board of Education and Title 16-8-25, Code of Alabama (1975) which prohibits employees from taking vacation while school is in session.

Appendix B to the complaint was a letter from the examiner’s legal counsel which included the following:

It is my understanding that the personnel policy of the Jefferson County Board of Education states:
‘5. Vacation time is not accumulative. Employees are urged to take their vacation time each year as they will not be permitted to carry forward from year to year vacation time not used (the superintendent may make exceptions to this when the board requests an individual to work during vacation time in some particular year). Any exception must be approved by the board.’
‘7. Vacation schedules should be filed in the superintendent’s office.
Vacations are granted for the purpose of giving full-time employees a period of rest and recreation. Vacations were never designed for the purpose of supplementing salaries.’
In view of this policy, and since the employee was apparently not required to work during her vacation, it is my opinion that this Department would disallow any payment to the employee for unused vacation time.

The defendants filed motions to dismiss because the complaint failed to state a claim against the defendants upon which relief could be granted. The examiners’ and Mr. Dillard’s joint motion specifically contended that relief could not be granted because of the stated vacation policy of the county board. When the trial court granted those motions, the plaintiffs appealed.

Dr. Teague is not mentioned in the body of the complaint. The only reference to the state board is a general averment that they are empowered by the Code to control and supervise the public schools throughout the state, including county boards of education and their employees.

In addition to the allegations in said paragraph numbered 4 of the complaint, the averments against the examiners and Mr. Dillapd are that they are authorized by § 41-5-6 of the Code of Alabama (1975) to supervise certain matters pertaining to county boards of education.

We have held in Shadix v. City of Birmingham, 251 Ala. 610, 38 So.2d 851(5), that the declaratory statutes do not empower courts to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.
There must be a justiciable controversy between the parties where legal rights are thwarted or affected to warrant proceedings under the Declaratory Judgment statutes. Title 7, §§ 157, 159, 166, Code of Alabama 1940. Alabama Independent Service Station Ass’n v. McDowell, 242 Ala. 424, 6 So.2d 502(3).

Town of Warrior v. Blaylock, 275 Ala. 113, 152 So.2d 661 (1963).

There is no justiciable controversy between Mrs. Rogers and these four defendants. The controversy is occasioned by the vacation policy of the county board, one of the plaintiffs. The justiciable controversy, if any, is between the two plaintiffs. None of the defendants could be ordered to pay such vacation compensation to Mrs. Rogers and neither could the defendants change the policy of the county board. Only the county board would be subject to such an order of payment or possess the authority to alter its vacation policy. “The court may refuse to enter a declaratory judgment where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” § 6-6-229, Code of Alabama (1975).

Actions for declaratory judgments brought by individuals to test or challenge the propriety of public action often fail ... because the public officer or other person selected as a defendant has no special interest to oppose the complaint or no special duties in relation to the matters which would be affected by any eventual judgment. The absence of adversary or the correct adversary parties is in principle fatal. A mere difference of opinion or disagreement or argument on a legal question affords inadequate ground for invoking the judicial power.

Borchard, Declaratory Judgments, 2d Ed., at 76 (1941).

While motions to dismiss must be sparingly utilized in disposing of actions for declaratory judgments, the trial court correctly granted the respective motions of the defendants to dismiss the complaint. We affirm.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Mary Ann Riddle GORMAN v. Leon Roscoe GORMAN, Jr.
    Civ. 2385.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    R. B. Jones and Grover S. McLeod, Birmingham, for appellant.
    James M. Fullan, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals from an order of the trial court granting the husband’s petition for modification of a decree of divorce. We affirm.

The dispositive issues are:

(1) Did the trial court err in modifying the divorce decree when the husband was in arrears in the payment of periodic alimony and child support?

(2) Is there evidence to support the trial court’s modification of the divorce decree?

(3) Is there evidence to support the trial court’s action in finding that the husband was not in contempt for his failure to make alimony and child support payments?

The parties were divorced in 1971. The wife commenced the instant action by filing a petition for rule nisi against the husband alleging nonpayment of alimony and child support. The husband cross petitioned for modification of the divorce decree seeking a reduction in alimony and child support payments.

Following a hearing ore tenus, the trial court found the husband to be in arrears in the payment of alimony and child support. The trial court further found the husband unable to pay the arrearage and for that reason the husband was not found in contempt. The trial court then ordered a reduction in future child support payments from $250 per month per child to $150 per month per child.

The record, viewed with the attendant presumptions, additionally reveals the following:

The parties have three children. Two of the children live with the wife and one with the husband. In addition to paying child support in the amount of $500 for the two children who live with the wife, the husband pays $325 as periodic alimony.

The record discloses that since 1978 the husband has experienced a decrease in annual income. In 1978, his income was $77,-385; in 1979, his income was $19,000; and in 1980, prior to trial, the husband’s income was approximately $13,000. The husband attributes this decrease in income to the failure of his real estate development business.

The record also reveals the following: The husband is deeply in debt; he has assigned all income from his present employer to a creditor as security for a debt; he had to borrow money in February, 1980, to pay an arrearage in alimony and child support payments existing at that time; and he had to borrow money to pay loan installments that were due at the time of trial.

As indicated above, the stated evidence is that testimony which supports the trial court’s action. This court is aware that there is evidence and reasonable inferences to support other conclusions. However, the appellate court must indulge all reasonable presumptions in favor of the trial court’s findings, and this court cannot substitute its judgment for that of the trial judge on the effect of conflicting evidence. Great American Ins. Co. v. Railroad Furniture Salvage of Mobile, 276 Ala. 394, 162 So.2d 488 (1964); 2A Ala. Digest, Appeal & Error Key 931(1).

I

The wife through able counsel contends the trial court erred in modifying the divorce decree after having found the husband to be in arrears in the payment of alimony and child support.

After noting the modification before us only applies to future child support payments, we find no error. The trial court, upon finding a material change in circumstances, may modify a divorce decree to reduce the amount of future child support payments. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964). This may be done even though the party seeking modification is in arrears for past payments. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616 (1973); Brumlow v. Brumlow, 282 Ala. 170, 209 So.2d 849 (1968).

II

The well established rule on appeal from a decree of a trial court rendered upon a hearing of the evidence ore tenus 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); Edwards v. Edwards, Ala.Civ.App., 333 So.2d 597 (1976); 8 Ala. Digest, Divorce Key 184(4).

In the instant case, the husband testified as to his income for the years 1978, 1979, and 1980. In addition to this, the husband’s tax returns for the years 1978 and 1979 were admitted into evidence along with a statement from the husband’s employer showing the husband’s current earnings. We find there is ample evidence to support the trial court’s finding of a material change in circumstances warranting a modification of the divorce decree. See, Sellers v. Sellers, supra.

Ill

The final issue presented for review is whether there is evidence to support the trial court’s action in finding that the husband was not in contempt for failure to pay alimony and child support.

Inability to pay is a complete defense to contempt proceedings to compel payment of decreed alimony and child support. Parmer v. Parmer, Ala.Civ.App., 373 So.2d 846 (1979); Gwin v. Gwin, 55 Ala.App. 601, 318 So.2d 299 (1975). As indicated above, the trial court found the husband unable to pay the arrearage. It is sufficient to say the facts set forth above, particularly the assignment of his income, and his need to borrow money to pay his debts, support the trial court’s finding of inability to pay. We cannot say the trial court erred in this respect. Goodman v. Goodman, supra.

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

The wife’s request for an award of attorney’s fees for this appeal is denied.

AFFIRMED.

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


author: PER CURIAM.

text:
    MARSHALL DURBIN COMPANY, INC. v. Jessie C. HARTLEY, Jr.
    Civ. 2389.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.

      Edward P. Turner, Jr. and Marc E. Bradley, Chatom, for appellant.
    S. J. Laurie, Chatom, for appellee.
   PER CURIAM.

The plaintiff, Hartley, sued the defendant, alleging that the defendant through its agents negligently killed plaintiff’s dog.

The District Court of Washington County entered judgment in favor of plaintiff. The defendant appealed by trial de novo to the Circuit Court of Washington County. At the close of plaintiff’s evidence and at the close of all the evidence, defendant moved for a directed verdict. These motions were denied. A jury returned a verdict in favor of plaintiff and assessed the damages at $500. The defendant made alternative motions for a new trial, judgment notwithstanding the verdict, and remittitur. These motions were also denied.

The defendant appeals from the denial of its motions. The dispositive issue on appeal is whether there is evidence that defendant negligently killed plaintiff’s dog. We find there is no such evidence and reverse.

The record reveals the following: Plaintiff’s dog was found dead in the road shortly after defendant’s truck was observed traveling on the road. There was also testimony to the effect that no other vehicle traveled the road between the time of the truck's passing and the discovery of the dog; that truck tire tracks led up to the dog; and that the dog appeared to have been struck by a vehicle. No one witnessed the death of the dog.

When a plaintiff brings a suit and bases his right of recovery upon the negligence of another, he must show a state of facts from which the negligence charged may be reasonably inferred. In other words, the plaintiff cannot recover unless he proves the defendant to have been negligent. Carlisle v. Central of Ga. Ry. Co., 183 Ala. 195, 62 So. 759 (1913); Shumock v. Booker, 41 Ala.App. 451, 134 So.2d 780 (1961); 15 Ala.Digest, Negligence, Keys 121(1) and 134(1). Furthermore, negligence will not be inferred from a mere showing of an accident and injury. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970); Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); 15 Ala.Digest, Negligence Key 121(2).

Our review of the record reveals the most that plaintiff established through direct and circumstantial evidence is that defendant’s truck struck and killed plaintiff’s dog. But as indicated above, this alone is not sufficient to prove negligence. There must be additional evidence from which negligence can be inferred.

We note that although Hartley and another witness testified that the truck was traveling at a speed of 40 to 45 miles per hour, there was no evidence indicating that the truck’s speed was in excess of applicable speed limits. There was no evidence that the truck’s speed was excessive in light of existing road and weather conditions. There was in fact no evidence that the speed of the vehicle was in any way responsible for the death of the dog. There was no evidence that the truck was being driven in an improper manner. In short, there was no evidence from which the jury could infer negligence.

The mere possibility that negligence caused an injury, without evidence, is not sufficient to support a verdict. Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33 (1916). For this reason, we find the learned trial judge erred in denying defendant’s motion for judgment notwithstanding the verdict.

The case is due to be reversed and remanded for entry of a judgment not inconsistent with the above.

REVERSED AND REMANDED.

All the Judges concur.


text:
    William Daniel CRANE v. Deborah Merry CRANE (Gilbreath).
    Civ. 2407.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    James L. O’Kelley, Birmingham, for appellant.
    Michael W. McCormick, Birmingham, for appellee.
   HOLMES, Judge.

The husband petitioned the Circuit Court of Jefferson County to modify certain visitation privileges. The circuit court effectuated a modification. However, the husband appeals, contending the trial court abused its discretion. We find no such abuse of discretion as to require reversal.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is pertinently revealed: The parties were divorced in 1978. The wife was awarded custody of the parties’ minor child. The husband was required to pay $200 per month as child support. In addition, the husband was awarded the following visitation privileges with the child: “reasonable rights of visitation,” including alternate weekends and appropriate holidays; appropriate period of time at the time of the child’s birthday; approximately one week during the Christmas holidays.

At the time of the divorce, all parties resided in Jefferson County. It appears that while all parties lived in Jefferson County, the visitation arrangement, as stated above, was satisfactory. Thereafter, the wife remarried and moved to Colorado. After the wife moved to Colorado, the husband, from June of 1979 to April of 1980, visited with the child on three separate occasions. One of these visits was for two weeks.

As indicated, the husband petitioned to modify the decree as it related to visitation. After an ore tenus hearing, the trial court did grant a modification. Specifically, the trial judge granted the following visitation rights:

A. Six (6) weeks during each summer at a time to be selected by the Defendant [husband], provided, however, that he shall have mailed by registered mail a written notice to the Plaintiff of the dates of his intended visitation at least thirty days prior to such visitation.
B. One week each Christmas beginning on December 26th.
C. Four days of each Spring School Holiday.
D. Any other times the Defendant is in the town in which the minor child resides.
E. During any periods of visitation the said child may travel by commercial airliner provided:
1. The Defendant shall pay all air fares for the transportation of said child.
2. The flights shall be either nonstop or direct and no change of planes will be involved until the child reaches the age of fourteen (14) years.
3. All travel arrangements shall be made by the Defendant [husband].
4. The Defendant shall notify the Plaintiff, not less than ten (10) days of the date of the visitation of the date, time, airline and flight number of the proposed carrier.
5. The Defendant will send to the Plaintiff the round trip airline tickets or shall ensure that they will be at the air terminal ready for said child at time of departure.
6. The plaintiff shall be required to deliver the said child to the nearest commercial airport offering direct flight service to the airport at which the Defendant will receive the child, not to be in excess of 150 miles from her residence. The Plaintiff shall also pick up the said child at the termination of the periods of visitation.
7. The Defendant shall ensure that either he or the child notifies the Plaintiff of the arrival of the child as soon as possible after the child is met by him.
8. At the end of the period of visitation the Defendant shall notify the Plaintiff of the date, time, carrier and flight number of the child’s return. The Defendant shall notify the Plaintiff twenty-four hours prior to the time of departure.
9. On the return of the child, the Plaintiff shall ensure that either she or the child notifies the Defendant of the child’s return.

The husband contends in brief that the modification in effect reduced the amount of days he could visit with the child previously and, further, that the wife should be required to assist in paying the transportation costs.

We do not deem it necessary or prudent to set out in any detail the evidence presented to the trial court at the ore tenus hearing. Suffice it to say there is evidence the husband earns over $20,000 per year, has recently purchased a town house and owns a residential lot. He has other assets.

Quite frankly, we can perceive no possible error in the amount of visitation granted the husband on his petition to modify. The trial court has, under the circumstances, allowed liberal and/or maximum visitation privileges. Even if it were conceded that the number of days was less than under the original decree, there would still be no error as the circumstances of the parties have clearly changed.

In any event, as in all cases heard ore tenus, our review of the trial court’s order is controlled by the principle that this court will not substitute our judgment for that of the trial court and will reverse only where the evidence shows the trial court to have been plainly and palpably wrong and unjust. Smith v. Smith, Ala.Civ.App., 334 So.2d 915 (1976).

Specifically, the trial court is accorded broad discretion in its judgment con-ceming visitation for the nonresident parent. Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976); 8 Ala. Digest Divorce Key 299. In this instance, we find no abuse of discretion.

The husband in brief urges error for the trial court’s failure to require the wife to at least assist in the transportation costs connected with transporting the child from Colorado to Alabama.

In Jenkins v. Jenkins, Ala.Civ.App., 376 So.2d 1099, writ denied, Ala., 376 So.2d 1101 (1979), this court found the trial court did not err in requiring the custodial parent to assist in “transportation costs.” We did not state in Jenkins the trial court was required to so find.

In any event, in this instance, considering the husband’s financial status as indicated above and the paucity of evidence as to the wife’s ability to assist, we find no reversible error in the trial court’s failure to require the wife to assist in transportation costs.

The wife has requested an attorney’s fee for representation on appeal. A fee of $300 is hereby awarded.

This case is due to be affirmed.

AFFIRMED.

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


text:
    George P. COOPER, Jr., James L. Cooper and Belton Y. Cooper v. BOARD OF EQUALIZATION OF MADISON COUNTY, Alabama.
    Civ. 2500.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.

      William H. Johnston of Johnston, Johnston & Moore, Huntsville, for appellants.
    George W. Royer, Jr. of Butler & Potter, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Landowners appealed to the circuit court from a ruling of the Board of Equalization of Madison County (board).

Both parties filed motions for a summary judgment, and the supporting affidavit for each dealt solely with the issue of whether the landowners were entitled to current use valuation for their 800 acre farm for property assessment purposes pursuant to § 40-7-25.1 et seq., of the pocket parts to the Code of Alabama of 1975. The landowners attached an affidavit to their motion to the effect that application for current use valuation for their 1979 assessment was made in April, 1979. The affidavit of the county tax assessor was that the landowners made no request that their farm’s 1979 tax year assessment be based upon current use until in October, 1979. The circuit court granted the board’s motion for a summary judgment, hence this appeal.

Amendment number 373 to Alabama’s Constitution was proclaimed ratified in November, 1978. For the purpose of ad valo-rem taxation, all unexempt taxable property was divided into classes, with agricultural lands being included in Class III property. Subsection (j) of the amendment provided, in part, as follows:

Notwithstanding any other provision of this section, on and after October 1,1978, taxable property defined in subsection (a) hereof as Class III property shall, upon application by the owner of such property, be assessed at the ratio of assessed value to the current use value of such taxable property and not the fair and reasonable market value of such property. The legislature may enact laws uniformly applicable to the state and all counties, municipalities and other taxing authorities establishing criteria and procedures for the determination of the current use value of any eligible taxable property and procedures for qualifying such property for assessment at its current use value.. . . (Emphasis supplied.)

Legislation establishing such procedures is codified as § 40-7-25.1 et seq., supra. Generally, it is required that an owner must “not later than January 1 in any taxable year” request that his property be valued according to its current use as of October 1 in any taxable year. § 40-7-25.1 and § 40-7-25.2(a), supra. The latter code section, in particular, provides:

Any owner of eligible taxable property described in section 40-7-25.1 may apply to have such property assessed for purposes of ad valorem taxation at the appropriate ratio of assessed value to the current use value of such property by filing a written application, in form as prescribed by the department of revenue, with the tax assessor of the county in which such property is located, on and after October 1 but not later than January 1 in any taxable year.

There is a recognizable kinship of law between the benefits afforded to farm owners as to a current use valuation and the advantages granted to taxpayers by tax exemption statutes. In either event, the owner-taxpayer must apply for such benefit or advantage. The appraisal of property for assessment purposes at its fair and reasonable market value is the rule, § 40-7-15, pocket part, Code of Alabama of 1975; and the current use valuation is the exception. § 40-7-25.1 and .2, supra. The current use valuation statutes are, therefore, construed against the taxpayer and in favor of the taxing authority. 18 Ala. Digest Taxation Key 204(1).

The statute is clear as to the time within which requests for current use evaluation may be validly presented to the tax assessor. It means what it says. There is no ambiguity that, in order to obtain the benefits of an evaluation based upon current use of property, the owner must file the written application or request therefor not later than January 1 in any taxable year. No request was so made by these landowners prior to or on January 1, 1979. According to their supporting affidavit to their motion, they did not present such application until April, 1979, and the tax assessor’s affidavit places such request even later, in October, 1979.

In any event, the landowners failed to file their request within the time specified by law, and contend that since they had not been specifically notified of and had no knowledge of either the existence or effect of Amendment 373 or of such legislation, they should be excused from making a timely request. Neither the constitution nor the statute requires that notice be given to farm owners that they may seek to have their farm land assessed according to its current use rather than upon its fair and reasonable market value.

Administrative officers owe no duty to discover and exempt the homestead of the taxpayers from year to year.
We conclude the benefit of this homestead tax exemption statute, under the present state of the law, is lost, unless claimed each year by the taxpayer on or before the third Monday in January of the current tax year.

Jones v. Johnson, 240 Ala. 357, 360-61, 199 So. 539, 542-43 (1941).

With regard to the separate motions for a summary judgment based upon the same issue with no other issue being raised in the circuit court, the following is disposi-tive:

As a general rule the filing by both parties of opposing motions for summary judgment will not warrant a court’s granting either party’s motion if, indeed, there exists a genuine factual dispute concerning a material issue. Bricklayers Local 15 v. Stuart Plastering Co., 5 Cir. 1975, 512 F.2d 1017; Hindes v. United States, 5 Cir. 1964, 326 F.2d 150, 152. As explained in Stuart Plastering, supra, the rationale of this rule lies in the fact that each party may be basing its motion on a different legal theory dependent on a different set of material facts.
When the parties proceed on the same legal theory and on the same material facts, however, the basis for the rule disappears. Thus, in qualifying the general rule, this Court has said:
Nonetheless, cross motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive. Bricklayers Local 15 v. Stuart Plastering Co., 5 Cir. 1975, 512 F.2d 1017, 1023.

Schlytter v. Baker, 580 F.2d 848 (5th Cir. 1978).

Under either affidavit attached to the respective motions for a summary judgment, there was noncompliance with the time limitation specified by statute for the filing of the current use request by the landowners. The circuit court did not err in granting the board’s motion for a summary judgment.

We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    C. P. ANDREWS v. BOARD OF EQUALIZATION OF MADISON COUNTY.
    Civ. 2501.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    William H. Johnston of Johnston, Johnston & Moore, Huntsville, for appellant.
    George W. Royer, Jr. of Butler & Potter, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

We have this date decided the case of Cooper v. Board of Equalization of Madison County, Ala.Civ.App., 392 So.2d 244. Since identical legal issues are involved in this case and in Cooper, we must affirm.

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

AFFIRMED.

All the Judges concur.


text:
    John CREAMER v. Kathy CREAMER.
    Civ. 2502.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.

      John L. Creamer, pro se.
    Jerry Lee Hicks, Anniston, for appellee.
   BRADLEY, Judge.

This is a pro se appeal from a default judgment in a divorce case.

The wife filed an action for a divorce on the ground of incompatibility and sought custody of the parties’ two minor children. The husband, an inmate of a Georgia state prison, was served by certified mail. He did not answer the complaint or appear further in the case. The court received the deposition of the plaintiff-wife and also heard her testimony in chambers. This testimony was not recorded. Based on the complaint, and on the deposition and oral testimony of the wife, the court granted her a divorce for incompatibility, awarded her custody of the two minor children, and retained jurisdiction of the child support and visitation questions. From this judgment, the husband appeals.

In his brief here, which was late and failed to show that a copy had been served on the wife, the husband, in effect, contends that the wife is not a fit person to have custody of the minor children and that the court erred in awarding their custody to her. This contention is supported by statements intended to show that the mother is not a fit person to be the children’s custodian.

It is readily apparent that the husband’s arguments and statements should have been presented to the trial court rather than to this court, for we are bound to decide the issues raised on appeal based on the pleadings and evidence set out in the record filed with this court. Poston v. Gaddis, Ala., 372 So.2d 1099 (1979).

The trial court had before it the complaint and deposition of the wife and also her testimony, which was not recorded, when it made its decision. We cannot say that this evidence requires a reversal of this judgment, especially in view of the principle that where the trial court hears evidence that is not before this court for review, its judgment must be affirmed. Poston v. Gaddis, supra.

No other issue having been presented for review, the trial court’s judgment is affirmed.

The wife’s motion to dismiss the appeal is denied.

AFFIRMED.

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


text:
    John E. BIGLER, Jr., et al., Appellants, v. DEPARTMENT OF BANKING AND FINANCE et al., Appellees.
    No. 54767.
    Supreme Court of Florida.
    March 8, 1979.
    Rehearing Denied Jan. 29, 1981.
    Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellants.
    S. Craig Kiser, Asst. Gen. Counsel and Craig K. Satchell, Office of the Comptroller, Tallahassee, and J. Riley Davis of Taylor, Brion, Buker & Greene, Tallahassee, for appellees.
   PER CURIAM.

We accepted jurisdiction in this case under the provisions of article V, section 3(b)(1), Florida Constitution. After briefing and oral argument we are convinced that the trial court ruled that it did not have jurisdiction of the subject matter of this suit. Therefore, the trial court’s ruling on the constitutionality of the statutes under consideration is null and void.

Such a void ruling is incapable of vesting this court with jurisdiction as contemplated by the constitution.

Accordingly, this appeal is dismissed.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.


author: SUNDBERG, Chief Justice.

text:
    Frank MARSHALL and wife, Dorothy N. Marshall, and Campers and Hunters, Inc., Petitioners, v. Billy JOHNSON and wife, Martha E. Johnson; Gerhard P. Hoer and wife, Martina F. Hoer, Respondents.
    No. 56559.
    Supreme Court of Florida.
    Oct. 16, 1980.
    Rehearing Denied Jan. 28, 1981.

      W. Christopher Hart of Clark, Parting-ton, Hart & Hart, Pensacola, for petitioners.
    Louis F. Ray, Jr., Pensacola, for respondents.
   SUNDBERG, Chief Justice.

This case involves a boundary dispute between adjoining property owners arising from ambiguous deeds from their common grantor. The trial court decided in favor of petitioners but the judgment was reversed on appeal to the District Court of Appeal, First District. Johnson v. Marshall, 382 So.2d 706 (Fla. 1st DCA 1979). We hold that the district court improperly substituted its judgment for that of the factfinder by reevaluating the evidence, thus conflicting with our decisions in Delgado v. Strong, 360 So.2d 73 (Fla.1978); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

We will briefly recount the facts which are set out in more detail in the district court opinion below. The common grantors, the Hoers, sold the eastern half of their property to the Marshalls and then sold the western half of their property to the John-sons. The land is located between State Road S-399 and East Bay, with the boundary line between the two parcels running north from the road to the bay. Because of the irregular shape of the bay, a boundary line bisecting the parcels would give the Marshalls about 227 feet of shoreline and the Johnsons only about 148 feet. The Johnsons contend therefore that at a point near the bay, specifically at the southeast corner of a pond, the boundary line is to run in a northeasterly direction to a point on the shore which would give both landowners approximately 187 feet of shoreline as called for in the deeds conveying the property to the Johnsons and the Marshalls, and consistent with the testimony of Hoer that he intended to divide the beachfront evenly. The boundary dispute is illustrated by the plat prepared by Stanley Poole which is attached to this opinion as Appendix A. The dark center line depicts the boundary as alleged by the Johnsons. The Marshalls, on the other hand, contend that their amendment to the contract language shows that the Hoers agreed to a boundary line which continues to run in a due north direction as indicated by the series of dashes which commence at the point near the bay where the dark line turns in a northeasterly direction.

The Johnsons filed an action of ejectment against the Marshalls who in turn counterclaimed for damages and prayed for an order establishing the boundary. The Mar-shalls also filed a third-party complaint against the Hoers seeking reformation of the warranty deeds to the Johnsons and themselves. Because of the ambiguity in the language of the deeds describing the property conveyed, considerable extrinsic evidence in the form of documents and testimony was presented at trial in an effort to shed light on the intent of the parties involved. After hearing the evidence the trial judge denied the Johnsons’ claim for relief and established a boundary line in accordance with the position of the Mar-shalls. The district court reversed, however, finding that the parol evidence dictated a result in favor of the Johnsons.

In reversing the trial court the district court undertook an analysis of the parol evidence presented at trial. In doing so the district court reweighed the evidence in contravention of the rule announced in Westerman v. Shell’s City, Inc., supra. In Shaw v. Shaw, 334 So.2d at 16, we stated:

It is clear that the function of the trial court is to evaluate and weight the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-évaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman, supra, is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject “inherently incredible and improbable testimony or evidence,” it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court. [Footnote omitted.]

The district court itself recognized the conflicting evidence presented at trial as shown by the following passage:

The documentary evidence is consistent with Marshall’s position that the amended description was the one agreed upon by the parties, but it is also consistent with Hoer’s position that he never receded from his intention that the beach front should be divided evenly.
There is no persuasive evidence as to how the ambiguities in the amended description should be resolved.
The testimony of Hoer and Marshall concerning their negotiations prior to the amendment are diametrically opposed and this is the only testimony concerning the communicated intentions of the parties which would have probative force.

382 So.2d at 707. We have carefully reviewed the record and likewise find that conflicting evidence was presented which would support the position of either of the sides. Consequently, we must defer to the findings of the trial judge who was in a better position to determine the parties’ probable intentions based on his observance of their demeanor on the stand. We hold that there is substantial competent evidence to sustain the trial court’s judgment.

Accordingly, the petition for certiorari is granted and the decision of the District Court of Appeal, First District, is quashed. We remand this case to the district court with directions to affirm the judgment of the trial court.

It is so ordered.

ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

APPENDIX A

      . Conflict also appears with the following decisions specifically involving boundary disputes. Trustees of the Internal Improvement Fund v. Wetstone, 209 So.2d 698 (Fla. 2d DCA 1968), aff'd, 222 So.2d 10 (Fla.1969); Osborn v. King, 194 So.2d 912 (Fla. 2d DCA 1967); Guise v. Shuman, 188 So.2d 35 (Fla. 3d DCA 1966); Bittner v. Walsh, 132 So.2d 799 (Fla. 1st DCA 1961).

      . The deeds from Hoer to the Marshalls and the Johnsons both refer to the plat prepared by Stanley Poole on January 15, 1973, in their description of the property conveyed. Unfortunately, the original plat contained only the external boundaries of the entire Hoer tract. The center line was later added by Hoer and as a result the Poole plat does not provide any guidance in resolving the ambiguous deed language. See Neves v. Flannery, 111 Fla. 608, 149 So. 618 (1933); Lawyers Title Guaranty Fund v. Milgo Electronics, 318 So.2d 416 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 602 (Fla.1976); Connelly v. Smith, 97 So.2d 865 (Fla. 3d DCA), cert. denied, 101 So.2d 811 (Fla.1957).

      . The deed language is quoted in the district court opinion below. The parties do not dispute the ambiguity of the language nor the propriety of introducing parol or extrinsic evidence in ascertaining the intended boundary between their parcels of land. See Routh v. Williams, 141 Fla. 334, 193 So. 71 (1940); Drake v. City of Fort Lauderdale, 227 So.2d 709 (Fla. 4th DCA 1969); Burgess v. Pine Island Corp., 215 So.2d 755 (Fla. 2d DCA 1968).


author: OVERTON, Justice. ADKINS, Justice,

text:
    McCOY RESTAURANTS, INC., and Stephen Williams, Appellants, v. CITY OF ORLANDO, Florida, acting by and through the Greater Orlando Aviation Authority, Appellee.
    No. 59502.
    Supreme Court of Florida.
    Dec. 24, 1980.
    Charles Evans Davis of Fishback, Davis, Dominick & Bennett, Orlando, Stephen P. Kanar, Winter Park, Roberts, Miller, La-Face, Richard & Wiser, Tallahassee, and Robert W. Olsen, Orlando, for appellants.
    Egerton K. van den Berg and J. Gordon Arkin of van den Berg, Gay & Burke, Orlando, for appellee.
   OVERTON, Justice.

This is a direct appeal from the trial court’s final judgment validating certain public revenue bonds. We have jurisdiction and affirm.

The revenue bonds under review concern the construction and expansion of new facilities at the Orlando International Airport. The Florida Legislature established the Greater Orlando Aviation Authority as an agency of the City of Orlando in 1957 and granted to the authority the power to issue revenue bonds in the city’s name. In 1978, the authority issued $125,000,000 in revenue bonds for the expansion and improvement of facilities at Orlando International Airport, including a new terminal building. Bond repayment was to be solely through funds derived from the rental and lease of the airport’s physical plant to various airlines, concessionaires, and others. The circuit court validated these bonds on July 14, 1978; no appeal was taken and the authority sold the bonds on September 20, 1978.

At the time the bonds issued, only four major airlines serviced the Orlando area. The proposed airport improvements reflected this factor in the number of airliners and estimated passengers the new facilities could accommodate. With federal aviation deregulation, six additional airlines sought to service Orlando and the use of the new facilities. The result was to render the yet incomplete improvements inadequate, and the aviation authority, in an attempt to compensate, enlarged the project. Mispro-jections in initial construction costs coupled with the project’s enlargement resulted in considerable cost overruns. Obligated to complete the project and to offset the additional expense, the authority sought to issue additional revenue bonds in the maximum amount of $169,275,000. This second bond issue, which is the subject of this review, would be in parity with the first and be satisfied with revenues from the same sources. The circuit court entered its final judgment validating the additional bonds on June 18,1980. The state attorney participated in the trial court proceedings but has taken no part in the instant appeal.

McCoy Restaurants, Inc. and Stephen Williams, taxpayers and intervenors in the trial court and on this appeal, contend that (1) the airline-aviation authority agreements for the lease of the airport facilities unconstitutionally delegate the authority’s powers to the private and beneficial use of the airlines; (2) the airline-aviation authority negotiations to modify the initial lease agreements so to accommodate the additional bonds violated Florida’s government-in-the-sunshine law; and (3) the trial court’s actions inconsistently favoring the authority’s position for validation denied the state a fair trial.

We find that appellants’ first point concerning the validity of the lease agreement is clearly a collateral issue and not properly the subject of a bond validation proceeding. The sole purpose of a validation proceeding is to determine whether the issuing body had the authority to act under the constitution and laws of the state and to ensure that it exercised that authority in accordance with the spirit and intent of the law. State v. City of Miami, 379 So.2d 651 (Fla.1980); State v. Sarasota County, 372 So.2d 1115 (Fla.1979); State v. City of Sunrise, 354 So.2d 1206 (Fla.1978). As the Court stated in State v. City of Miami, 103 So.2d 185 (Fla.1958):

It was never intended that proceedings instituted under the authority of this chapter to validate governmental securities would be used for the purpose of deciding collateral issues or those other issues not going directly to the power to issue the securities and the validity of the proceedings with relation thereto.

Id. at 188. Accord, State v. Sunrise Lakes Phase II Recreation District, 383 So.2d 631 (Fla.1980); City of Gainesville v. State, 366 So.2d 1164 (Fla.1979).

In the instant case, appellants are contesting the validity of the airline-aviation authority lease agreements, which we find to be a collateral issue to the bond validation proceeding. The airlines and other interested parties are not parties to this action, and the trial court has no jurisdiction to determine the validity of the leases in this type of proceeding. See State v. Sunrise Lakes Phase II Recreation District.

By their second point, appellants contend that the airlines, because of the airline-aviation authority lease agreements, were public representatives and as such were precluded by the sunshine law from caucusing among themselves in closed sessions. We find this contention, under these circumstances, to be without merit. We note that there is no allegation that the authority as a body or its officially designated members met in violation of the sunshine law, and the record supports a finding that the authority followed the law in its final approval of the bond resolution.

We find no merit in appellants’ third point concerning a denial of fair trial. The judgment of the trial court is affirmed to the extent that it validates the revenue bonds under review.

It is so ordered.

SUNDBERG, C. J., and BOYD, ENGLAND, ALDERMAN and McDONALD, JJ, concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

The decision of the majority leaves open the question of the legality of the leases. The main purpose of a validation proceeding is to create in the mind of the bond buyer a sense of security, in that there could be no further attack upon the validity of the bond issue. Street v. Town of Ripley, 173 Miss. 225, 161 So. 855 (1935); State v. Citrus County, 116 Fla. 676, 157 So. 4 (1934). The leases are clearly illegal in delegating a public power of the Authority to private parties, the airlines. By failing to consider this question the Court has created a sense of uncertainty in the mind of the bond buyer.

In my opinion the validity of the Airline-Aviation Authority lease agreements is not a collateral issue to the bond validation proceeding. Each case must be considered on its facts to determine whether an issue is collateral. Here the question of the use of the proceeds of the bonds, never a collateral issue, is directly controlled by the leases. In order to give security to the bond buyer and terminate the litigation, this Court should reach the question.

The bond financing program under consideration consists of a commitment of the revenues from the airport operation with an agreement by the airlines that landing fees were to be adjusted annually in order to have revenue equal the various cash expenses and commitments with any shortfall made up by adjusting the landing fees in future budgeting periods. The agreements grant to the airlines control over many decisions of the Authority with respect to operations of the airport and collection and expenditure of funds. The agreements provide for exercise of the airlines’ power by a “majority in interest” (Mil) consisting of a vote by the various airlines serving the airport weighted on the basis of number of passengers.

The bonds involved have, as their security and source of revenue, the leases. The bonds are based upon and are a part and parcel of the leases; and the leases are based upon and are a part and parcel of the bonds.

This Court has held that, if the validity or status of municipal bonds depends on the validity of assessments, such assessments could be attacked in proceedings to validate bonds. City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97 (1928). See also Folks v. Marion County, 121 Fla. 17, 163 So. 298 (1935); 64 Am.Jur.2d; Public Securities and Obligations, § 472, p. 496. Under the circumstances in this case the validity of the lease agreements is not a collateral issue to the bond validation proceeding. The lack of diligence in disposing of this matter by ignoring the issue concerning the validity of the leases will result in much further delay.

In my opinion the attempted delegation of power by the Authority to the airlines is repugnant to the due process clause of the Fourteenth Amendment to the United States Constitution. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928). This Court has held that public legislative-type decisions must be made by public agencies, not private persons who act not in behalf of the public, but in their own interest. In State ex rel. Taylor v. City of Tallahassee, 130 Fla. 418, 177 So. 719 (1937), the Court considered whether it was lawful for the city of Tallahassee to require as a condition for the opening and operation of a pool hall, the obtaining of permission from its neighbors. The Court held that the city had the power to determine whether or not a pool hall could be opened, but by attempting to grant private persons (the neighbors) the power to decide whether that pool hall could be opened and operated was an unlawful grant of a veto power to private people. See also Amara v. Town of Daytona Beach Shores, 181 So.2d 722 (Fla. 1st DCA 1966).

The validity of the lease agreements has not been determined in this proceeding. Before the bonds are sold this question must be determined by the courts, as these matters may be raised even after the bonds have been validated. See State v. Town of Belleair, 125 Fla. 669, 170 So. 434 (1936).

In secret meetings the airlines exercised their right to approve or veto actions of the Authority regarding the operation, expansion, and financing of the airport facilities, amendments to the 1978 agreements, terms of the 1980 agreements, what new public facilities would be built, the cost of such construction, the issuance of the bonds herein at issue, and, in general, the operation of the airport serving the city of Orlando. Section 286.011, Florida Statutes, (Florida Government in the Sunshine) requires that the decision-making of a public agency be done in public. In this case, the leases delegate to the airlines the actual decision-making power. The decision with respect to whether and under what terms to issue the 1980 bonds was actually made by the airlines in private. The Government in the Sunshine law has been held applicable to advisory boards appointed to assist state governmental agencies. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974). The essential decision-making processes were in the hands of the airlines and the decisions themselves were made, not in public meetings, but either by private telephone conversations among airline officials or in meetings from which the public, the Authority, the press, and members of the staff were excluded, or which took place in secret prior to or during a recess in negotiating committee meetings. All steps in the decision-making process which involve public matters must be “in the Sunshine”.

In my opinion the bonds should not be validated for two reasons:

1) The lease agreements, which are an integral part of the funding process, are illegal in that they exceed the bounds of lawful delegation of control over public property to private interests;

2) The funding package was negotiated and decided upon in private meetings in violation of the Florida Government in the Sunshine law.

A happier and more expeditious method of determining this litigation would be a deletion of the illegalities from the financing package as a condition of the bond validation and affirm the balance. This would neither delay nor prevent useful completion of the project. As the litigation now stands, another suit will have to be filed to invalidate the illegal leases.

      . Art. V, § 3(b)(2), Fla.Const.

      . Chapter 57-1658, Laws of Florida, created the Greater Orlando Port Authority whose jurisdiction included aviation. The Florida Legislature subsequently amended chapter 57-1658 to change the authority’s name to the “Greater Orlando Aviation Authority.” Ch. 75-464, Laws of Fla.

      . Delta Airlines, one of the initial four, brought a diversity action in United States District Court to require the aviation authority to proceed with the completion of the new airport facilities. The court, in a memorandum opinion, ordered the authority to issue additional revenue bonds in an aggregate amount sufficient to complete the project. Delta Airlines, Inc. v. Greater Orlando Aviation Auth., No. 80-F-Orl-Civ-Y (M.D.Fla. Jan. 28, 1980).

      .§ 286.011, Fla.Stat. (1979).


author: PER CURIAM. SCHWARTZ, Judge.

text:
    Edward S. QUEST et al., Appellants, v. Leon JOSEPH, etc. et al., Appellees.
    No. 78-2090.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    On Rehearing Jan. 7, 1981.
    Magill, Sevier & Reid and Kevin P. O’Connor, Miami, for appellants.
    Horton, Perse & Ginsberg, Hawkesworth & Sehmick, Miami, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Defendant, Edward Quest, appeals an adverse final judgment and the withholding of execution of judgment on his third party claim for contribution in an action for damages arising out of a motor vehicle pedestrian accident.

On the day in question, plaintiff Daren Joseph, a minor, was riding a tricycle (known as a Big Wheel) down a slight incline of the driveway at his home and into the street, at which time he was struck by a vehicle owned by Edward Quest and driven by his wife, Marion. Leon Joseph, individually and on behalf of Daren, sued Quest, his wife, and their liability insurer for damages as a result of the accident. Eyewitness testimony was conflicting as to whether Daren darted out of the driveway into the path of the oncoming Quest vehicle or whether he had been in the street for a number of seconds before the accident. Nevertheless, it was uncontroverted that Daren’s mother knew he was riding his Big Wheel down the driveway and into the street. Quest alleged that Daren’s mother was negligent in her supervision and filed a third party complaint for contribution against her. The cause was tried by jury which apportioned the negligence amongst the parties as follows:

Leon Joseph 10%
Daren Joseph 10%
Marion Quest 55%
Ellen Joseph 25%

In addition, the jury assessed Daren Joseph’s total damages at $150,000 and those of his father, Leon, at $17,000. The trial court entered final judgment accordingly awarding Daren the net sum of $135,000, his father, Leon, $13,600 and Quest, on his third party complaint, $37,150. However, execution on the $37,150 judgment was stayed until Quest paid the $135,000 and $13,600 judgments. Quest appeals and alleges that the court (1) improperly apportioned the jury verdict, and (2) should have permitted a reduction or set-off of the award against him in the main claim by that amount he recovered on his third party claim against Ellen Joseph. Leon Joseph cross-appeals and urges as error the entry of judgment against his wife, Ellen, for contribution.

The dispositive issue in the case at bar is that presented on cross-appeal, whether or not a right of contribution existed from Ellen Joseph, the mother of the minor child Daren.

Joseph argues that his wife Ellen is immune from liability by virtue of the family immunity doctrine and therefore cannot be considered a joint tortfeasor from whom Quest is entitled to contribution. See 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979). Nevertheless, our Supreme Court in Shor v. Paoli, 353 So.2d 825 (Fla.1978), held that the common law doctrine of interspousal immunity does not prevent a tortfeasor from seeking contribution from another tortfeasor under the Uniform Contribution Among Joint Tortfeasors’ Act (Section 768.31, Florida Statutes [1975]) even though the other tortfeasor is the spouse of the successful plaintiff. The court in Shor, supra, reasoned as follows:

“The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury. “In the case at bar it was determined that both Paoli and Shor caused the injury. Shor’s husband collected 100% of his damages from Paoli. To say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.” ... 353 So.2d at 826

Likewise, the instant case does not present a situation where the minor Daren Joseph is suing his mother Ellen for negligence or Leon is suing Ellen as his wife. She as well as Quest was found by the jury to have been negligent, thus having caused Daren’s injuries. To hold that Ellen does not have to contribute and account for her wrongdoing would be unfair to Quest and a'windfall to Ellen. Under the facts of this case we find that Quest is entitled to contribution and judgment was properly entered in his favor on his third party complaint. To the extent that 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), supra, (which we believe is distinguishable on the facts) is inconsistent with the present holding, we hereby recede from the holding in 3-M Elec. Corp. We further note that the 3-M Elec. Corp. case relied upon Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976) which was overruled by Shor v. Paoli, 353 So.2d 825 (Fla.1978), supra, insofar as the holdings were inconsistent. Thus, we find no reversible error has been presented by Josephs on cross-appeal.

We next considered Quest’s arguments on appeal that the trial court improperly apportioned the jury verdict and erred in failing to permit a reduction in the judgment against him.

Quest having admitted that the above arguments have been decided adversely to his position, we find no merit therein. See Metropolitan Dade County v. Asusta, 359 So.2d 58 (Fla. 3d DCA 1978); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976).

For the reasons stated, the judgments on the complaint and cross-complaint are affirmed.

Affirmed.

Before HUBBART, C. J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT, BASKIN and PEARSON, JJ.

ON REHEARING EN BANC

SCHWARTZ, Judge.

Based on the fact that the panel opinion conflicts with and specifically recedes from our prior decision in 3-M Electric Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), upon our own motion we ordered and have heard reargument en banc. Fla.R.App.P. 9.331(c)(1). We now adhere to the conclusion that an action for contribution may be maintained against the parent of an injured minor child-plaintiff, notwithstanding the child’s inability to sue the parent directly and even when the parent’s liability involves the negligent supervision of the child. Thus, we confirm the consignment of 3-M to oblivion.

As the panel opinion indicates, our holding to this effect is founded upon the determination in Shor v. Paoli, 353 So.2d 825 (Fla.1977), that the doctrine of interspousal immunity does not include or preclude a contribution action by a defendant-tort-feasor against the spouse of the injured plaintiff. In Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 387 So.2d 932 (Fla.1980), the supreme court emphatically reiterated this principle in a decision which was significantly rendered after it had similarly readhered to the immunity rule itself. Raisen v. Raisen, 379 So.2d 352 (Fla.1979). Florida is thus a member of the small but growing minority of jurisdictions which have adopted the doctrine that family immunity is merely a bar to the right to sue another and does not affect the status of the negligent family member as a joint-tortfeasor, which, under Section 768.31, Florida Statutes (1979), is indispensable to liability for contribution. Perchell v. District of Columbia, 444 F.2d 997 (D.C.Cir.1971); Bedell v. Reagan, 159 Me. 292, 192 A.2d 24 (1963); Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199 (1967); Puller v. Puller, 380 Pa. 219, 110 A.2d 175 (1955); Zarrella v. Miller, 100 R.I. 545, 217 A.2d 673 (1966); see W. Prosser, Law of Torts § 50 (4th ed. 1971), text and authorities at n.75; Annot., Tortfeasor-Contribution-Family Member, 19 A.L.R.2d 1003 (1951). Moreover, since the Shor rule is based on the principle that all those jointly responsible for a particular injury should bear proportionate liability, there is, as was stated and held in Withrow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980), no meaningful distinction between the Raisen interspousal immunity involved in Shor and Florida Farm Bureau and the parent-child relationship, governed by Orefice v. Albert, 237 So.2d 142 (Fla.1970), as in 3-M and the case at bar. See, Restifo v. McDonald, supra; Puller v. Puller, supra; Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980) (Bakes, J., dissenting, citing and relying on Shor).

The decision in 3-M was not directly contrary to this line of reasoning. Although the opinion admittedly did not articulate this factor, it was based upon the fact that, unlike Shor, Mieure v. Moore, and Florida Farm Bureau, in all of which the spouse negligently operated a motor vehicle, the asserted liability of the parent, as here, arose from the failure properly to supervise the child. It was thought that, in contrast with the obvious obligation to drive an automobile in a reasonably careful manner to avoid injury to others, there was no existing duty owed by the parents to the child properly to supervise him — and thus no tort — which would (absent immunity) be actionable by the child directly against the parent. Hence, it was silently reasoned that the defendant and the negligently supervising parent were not commonly liable to the child and were therefore not “joint tortfeasors,” so as to permit an action for contribution. Prosser, supra, § 50; Annot., Uniform Contribution Among Tortfeasors Act, 34 A.L.R.2d 1107 (1954); see, Touche Ross & Co. v. Sun Bank of Riverside, 366 So.2d 465 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979). This view was adopted in the much-discussed case of Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974). In Holodook, the New York Court of Appeals, which had previously abolished parent-child immunity itself in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969), held that there was nonetheless no parental liability either directly or for contribution for negligent supervision simply because there was no cognizable tort or “duty” owed by the parent to the child to exercise care in this respect. While that approach appealed to the 3-M court, we are now of the view that it is not supportable by legal history or analysis.

In Florida, the responsibility to exercise care so as to avoid exposing one’s child to the risk of injury has been long recognized in a variety of contexts. While the parent’s negligence is of course not imputed to the child in the child’s independent case for his own damages, e.g., Burdine’s Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462 (1941); Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183 (1905), inadequate supervision by the plaintiff-parent constitutes a defense— of contributory or . comparative negligence — to the parent’s derivative action for loss of services or expenses caused by the child’s injury, Jacksonville Electric Co. v. Adams, supra; and in an action to recover for the child’s wrongful death. E.g., Winner v. Sharp, 43 So.2d 634 (Fla.1949); Martinez v. Rodriquez, 410 F.2d 729 (5th Cir. 1969); Humphrey v. City of Homestead, 224 So.2d 739 (Fla. 3d DCA 1969), cert. denied, 232 So.2d 178 (Fla.1969). Indeed, in Alves v. Adler Built Indus. Inc., 366 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979), we went so far as to hold that the parents’ negligent supervision was the sole proximate cause of their child’s death. As was said very specifically in Humphrey at 224 So.2d 740:

39 Am.Jur. Parent and Child, § 46 states:
< * * * a parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent’s duty to watch over such child and to guard it from danger. In such case, the parent may be regarded in a sense as a repository of a trust to nurture and protect his offspring. Parents are, of course, not required to do the impossible in caring for their children. As a rule, however, they are bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary. * * *’

In 25 Am.Jur. Highways 231, it is reported:

‘Effect of Negligence of Parent or Custodian. — It is the duty of parents and custodians of children who are non sui juris to use reasonable care to protect them against the known hazards incident to their presence on a street or other public way, and to permit or suffer such a child to go or be upon a highway unattended may constitute negligence on the part of the parent or custodian, although it does not do so under all circumstances.’
******
In applying these general rules ‘it is a question of fact for the jury to decide whether such lack of supervision was negligence under all the circumstances.’ [e.s]

Furthermore, our courts have established the right of the child himself directly to sue another entrusted with his care, such as a school or teacher, for negligent supervision. E.g., Barrera v. Dade County School Board, 366 So.2d 531 (Fla. 3d DCA 1979), and cases cited. Significantly, as the court noted in Benton v. School Board of Broward County, 386 So.2d 831, 834 (Fla. 4th DCA 1980), this duty has been compared and likened to that owed by “a reasonable and prudent parent.” In the light of these decisions, we must conclude that the only reason that there are no Florida child-v.-parent-negligent-supervision-cases is not that there is no parental “duty” to supervise but that all such actions, on whatever basis, have been barred by intrafamily immunity.

This conclusion is supported by the facts that Holodook has not only been subject to searching criticism within New York itself, see Fuchsberg, J., specially concurring in Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978), but that it seems to stand entirely alone among the decided cases on the decisive question. While there is an obvious conflict as to whether a child may maintain an action against his parent for negligently supervising him, the issue has invariably been framed as involving the extent to which the immunity doctrine should be abolished. Compare, e.g., Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971) (abolition of parental immunity, including supervision); with Schneider v. Coe, 405 A.2d 682 (Del.1979) (preserving immunity for supervision); see generally, Note, The “Reasonable Parent” Standard: An Alternative to Parent-Child Tort Immunity, 47 Univ.Colorado L.Rev. 795, 802-15 (1976); Annot., Negligent Parent-Child Injury-Liability, 41 A.L.R.3d 904, 976-80 (1972). Even those cases which have cited Holodook with approval, e.g., Schneider v. Coe, supra, Pedigo v. Rowley, supra, have relied upon its arguments only to justify the refusal to abolish immunity in this area. This approach itself presupposes the existence of an actionable' “tort” of negligent supervision from which the parent should or should not be immunized. Under the rationale of Shor, the recognition of that duty, rendering the parent a joint tortfeasor, leads inevitably to the allowance of a contribution action against him.

Mrs. Joseph also contends, however, that there are good reasons why a contribution action should not lie in any parent-child case. She suggests that, unlike the husband-wife case which involves adults, a child is not capable of himself maintaining an action for his own benefit, and must do so through his “next friend,” typically of course, his parent. See, Youngblood v. Taylor, 89 So.2d 503 (Fla.1956); Fla.R.Civ.P. 1.210(b). It is argued therefore that exposing the parent to the possibility of a judgment would have the effect of deterring actions by the child himself; and that any recovery actually obtained by the injured child would be effectively reduced by a subsequent judgment against a member, indeed the head, of the same family unit. While these arguments are not unsubstantial, we cannot accept them.

We first note that the alleged chilling effect of a potential contribution claim upon the child’s case is speculative in the extreme. If the parent is insured, no actual familial “harm” would be done by such a claim, see, Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471 (Fla.1977); if he or she is not insured it is unlikely that a contribution claim would be pursued. Even if it were, the parent would always be motivated to recover from the third party the net amount represented by the degree of negligence for which he is responsible. See, Noelchek v. Gesuale, supra, 385 N.E.2d at 1274, 413 N.Y.S.2d at 346; Holodook v. Spencer, supra, 324 N.E.2d at 347-48, 364 N.Y.S.2d at 872-73 (Jasen, J., dissenting). In any event, we do not believe that the supreme court would permit the conjectural possibility of potential deterrence to negate the very basis of the Shor decision, the notion that parties should be liable to the extent of their wrongdoing, but no further, and thus that to deny contribution would both unfairly penalize the third-party and confer an unjustified windfall upon the also negligent family member. This principle, which also answers the “family unit” argument, was well-expressed in the dissenting opinion in Pedigo v. Rowley, supra, which, after quoting at length from Shor, states at 610 P.2d 567:

The inequity possible under the holding of the majority in this case is immediately evident. If the third party is minimally negligent — for example, 10% — and the immune parent is primarily at fault — for example, 90% — the third party will, according to the majority, be saddled with the entire judgment while the seemingly culpable parent bears no loss whatsoever. If the parent and the child are truly one economic unit, as the majority approvingly asserts by its quotation from the Holo-dook case, the parent profits by his own wrongdoing.

Accord, Rozell, Contribution Among Joint Tortfeasors When One Tortfeasor Enjoys A Special Defense Against Action by the Injured Party, 52 Cornell L.Q. 407, 411 (1967).

Moreover, even if we considered that the parade of horribles presented by the mother’s counsel is not a fanciful one, we would be powerless to indulge that belief. The decisions in Shor and Florida Farm Bureau squarely hold that contribution lies under the uniform act against a “tortfeasor” who is immunized from a direct action. Since, as our analysis has indicated, we are unable to detect a sound juridical reason that this ruling does not control this case, we are bound to follow it until the supreme court says otherwise.

For these reasons the judgment below, as to both the appeal and cross-appeal, is again

Affirmed.

      . This cause came on upon this Court’s Motion for Entry of Judgment upon the jury verdict. The jury awarded the plaintiff, Daren Joseph, a minor, the sum of $150,000 and found said minor to be guilty of 10% negligence. The jury further stated the mother of the minor plaintiff was guilty of 25% negligence. The Court finds that the minor plaintiff is entitled to recover $150,000 less 10% for his own negligence and that the father of the minor plaintiff is entitled to recover $17,000 less 10% for the minor plaintiffs negligence and 10% for his own negligence. The Court further finds that the defendants Edward S. Quest, Marion Hearl Quest and Liberty Mutual Insurance Company are entitled to Judgment against the minor plaintiffs mother for 25% of the total Judgment entered against the said defendants and that said sum is not a reduction or offset as to the minor plaintiffs claim or the minor plaintiffs father’s claim.

      . By the amount he was awarded on his third party complaint for contribution.

      . 330 So.2d 546 (Fla. 1st DCA 1976), overruled in Shor “insofar as ... inconsistent herewith.” 353 So.2d at 826.

      . Berman, Time to Abolish Parent-Child Tort Immunity, 4 Nova L.J. 25 (1980) perceptively suggested at 58, note 156, that this distinction was indeed the basis of 3-M.

      . It is fair to say that the Holodook conclusion was largely influenced by the court’s wish to avoid what it considered the undesirable effects of permitting a contribution action, which it thought would inevitably follow a recognition of the “duty” to supervise. It is an anomaly that, as a result no contribution action lies in New York, where there is no immunity, while it may be maintained (as we hold) in Florida, where family immunity thrives. Raisen v. Raisen, supra.
      Moreover, it is more than ironic that, twisting and turning within the conceptual restraints imposed by Holodook, the New York court in Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978), based on the same considerations of fairness to the original defendant which impelled Shor, approved a contribution action based on the parents’ negligent supervision of the child in the operation of a motor vehicle, while simultaneously maintaining the inability of the child to sue directly. But see the cogent contrary view expressed in the dissenting opinion of Judge Cooke, 413 N.Y.S.2d at 351-52, 385 N.E.2d at 1278-79.

      . Such cases as Gissen v. Goodwill, 80 So.2d 701 (Fla.1955) which deal with the parent’s duty to control his child so as to prevent the child from harming another, are not directly related to this issue. Nor are those which impose vicarious responsibility upon the parent for the torts of the child himself. See, e.g., § 790.22, Fla.Stat. (1979); § 322.09(2), Fla.Stat. (1979).

      . These include the undesirability of disrupting the family unit, particularly by permitting a child to “second-guess” his parent concerning the manner in which he is cared for. As the coexistence of Orefíce and Shor testifies, the supreme court considers that adherence to immunity in actions between family members infer se (while permitting contribution) is sufficient to vindicate this policy.

      . The dissenting justice in Pedigo, supra, at 610 P.2d 565, n. 1, points out the confusion engendered by the majority’s reliance upon the quite-different holding in Holodook.

      . Obviously, these contentions apply no matter what the basis of the parents’ liability. There is no acceptable ground upon which contribution could be denied only in a supervision case, while permitted when other parental negligence is involved.

      . Although Shor overruled Mieure, “insofar as ... inconsistent herewith”, note 1 supra, Mi-eure involved an attempted contribution action against a husband and father for injuries caused both to his wife and to his children. Since Shor involved only an interspousal claim, it did not directly affect the Mieure holding concerning the children.

      .The Raisen case represents the supreme court’s determination that this “central principle of ... tort law, ... that wrongdoers should bear the losses they cause,” Holodook v. Spencer, supra, 324 N.E.2d at 347, 364 N.Y.S.2d 872 (Jasen, J., dissenting) is outweighed by other public policy considerations so as to justify the continued immunization of family members from their wrongs in actions directly against them.

      . See, Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . It must be acknowledged that the result makes Florida the worst of all possible jurisdictions for an injured child. He may not sue his parent directly; and any action against a negligent third-party may be inhibited or compromised by the fact that the third-party defendant can. Compare the suggestion in Torts — Parent and Child, 42 Brooklyn L.Rev. 125, 142-45 (1975) that the rule should be just the opposite, that is, one which permits neither immunity nor contribution. Perhaps this state of affairs will lead the supreme court to a modification of Raisen-Orefice, of Shor-Florida Farm Bureau, or both.

      .We have determined to certify this cause to the supreme court as one involving questions of great public importance, as to whether and under what circumstances an action for contribution lies against the parent of an injured child.


author: CAMPBELL, Judge.

text:
    James H. SMITH, Jr., Petitioner, v. CITY OF LAKELAND, Respondent.
    No. 80-1046.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1980.
    Robert A. Young of Trakas & Young, Winter Haven, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart, Asst. Atty. Gen., Tampa, for respondent.
   CAMPBELL, Judge.

James H. Smith, Jr., petitions for writ of certiorari to review a circuit court order affirming the county court’s judgment, sentence and denial of his demand for jury trial. We hold that Smith was entitled to a jury trial and, therefore, grant certiorari.

Smith was charged in county court with violation of a municipal traffic ordinance by violating Section 322.34, Florida Statutes (1979). He entered a written not guilty plea, which included a request for a trial by jury. The county court denied Smith’s request for jury trial. On appeal, the circuit court affirmed the county court.

It is clear that there is no constitutional right to a jury trial for violation of a municipal traffic ordinance. State v. Webb, 335 So.2d 826 (Fla.1976). However, pursuant to Section 932.61, Florida Statutes (1979), a person charged with violation of a municipal ordinance for which no jury trial is provided may, when the violation of the ordinance is also a violation of state law, cause the transfer of the violation to the appropriate court in which trial by jury is provided. This court has construed Section 932.61 to confer a statutory right to jury trial when the violation of a municipal ordinance is also a violation of state law. City of Tampa v. Ippolito, 360 So.2d 1316 (Fla. 2d DCA 1978). Applying the Ippolito holding to the instant case, Smith was entitled to a jury trial, because the offense charged constituted a violation of both a municipal ordinance and a state law. See also Powers v. State, 370 So.2d 854 (Fla. 3d DCA 1979).

The city argues that Smith waived his statutory right to jury trial because he did not file a petition for transfer in accordance with Section 932.61(2), Florida Statutes (1979). Addressing this argument, we note that Section 932.61 was enacted in 1970, prior to the abolition of municipal courts. Art. V, § 20(d)(4), Fla.Const. Therefore, on the date of enactment of Section 932.61, violations of municipal ordinances were within the jurisdiction of municipal courts. Jurisdiction over municipal ordinance violations is now in the county court. Art. V, § 20(c)(4), Fla.Const. Because the county court, unlike the former municipal courts, provides trial by jury, we find it unnecessary for a person charged with a violation of a municipal ordinance which is also a violation of a state law to file a petition for transfer to another court in order to effectuate his statutory right to jury trial.

Accordingly, we grant the petition for certiorari and quash the circuit court’s order of affirmance with directions for further proceedings consistent with this opinion.

SCHEB, C. J., and HOBSON, J., concur.