author: HOLMES, Judge. HOLMES, Judge.

text:
    Hazel Peeks TAYLOR v. Robert Amon TAYLOR
    Civ. 2765.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.
    As Corrected on Denial of Rehearing Nov. 25, 1981.

      M. Wayne Wheeler of Wheeler, Christian & Roberts, Birmingham, for appellant.
    James M. Fullan, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Jefferson County divorced the parties and awarded custody of the children to the wife. The trial court made a division of the property, and ordered the husband to pay child support and the wife’s attorney’s fee.

The wife appeals contending that the trial court abused its discretion in the amount awarded as child support and an attorney’s fee. She also claims the trial court erred to reversal in its division of property between the parties and its failure to require the husband to maintain certain insurance.

We find no abuse of discretion and affirm.

Viewing the record with the attendant presumptions, we find the following:

The parties were married for approximately fourteen years. Three children, ages eleven, nine and eight, were born of the union.

The husband has been employed by the American Cast Iron Pipe Company (ACIP-CO) for fifteen years as a maintenance machinist. His net monthly pay is approximately $1,250.

The wife supplemented the family income during the marriage by driving a school bus. After filing for a divorce, she began working at the Morris Family Health Care System as a laboratory and X-ray technician. Her net income is approximately $662 per month.

The record indicates there were a few episodes of physical violence between the parties, but no serious injury occurred. The wife’s major complaint about the husband was his failure to give her enough money to maintain the household.

The parties owned a forty acre farm on which they built a three bedroom house. The property is worth approximately $90,-000 and was operated at a loss as a cattle and beef farm. Most of the cattle was sold by the husband prior to the divorce, and the proceeds were put into the ACIPCO credit union in the children’s names. Additionally, there were a number of bank accounts in the husband’s name with a total value of more than $10,000. The parties owned several automobiles, trucks, farm equipment, eight cemetery plots, a pony and other livestock. The wife owned two insurance policies on the husband’s life.

The court ordered the husband to pay to the wife for the support and maintenance of the minor children $125 per month per child. The husband was ordered to pay the wife’s attorney $1,000 for services rendered during the divorce proceedings. It was also ordered in substance that the residence, farm, farm equipment, cattle and cemetery lots be sold with the net proceeds divided equally between the parties. The husband was required to deliver to the wife $5,000 representing her portion of the savings accounts. All other personal property was specifically divided between the parties, and the husband was ordered to pay all outstanding indebtedness.

In divorce actions, the determination of alimony, division of property, and the amount of child support are within the sound discretion of the trial court and will not be reversed except for palpable abuse. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980).

In the instant action, the wife would receive as child support $125 per month per child. The amount of child support awarded is within the trial court’s discretion. See Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978). There does not appear from the facts of the instant action a plain and palpable abuse of that discretion in the amount of child support awarded the wife. The husband will pay $375 per month in child support out of his approximate monthly income of $1,250, leaving him about $875 for his own use. The wife’s net monthly income from her job is $662 which is on par with that of the husband. When both husband and wife have incomes, the wife’s income may be taken into account in determining the adequacy of a child support award. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980).

The wife contends that the farm and residence should not be sold and that she should be allowed to remain in the homeplace at least until the youngest minor child is nineteen. We find the trial court did not err to reversal in ordering the farm and residence to be sold with the proceeds divided equally between the parties. The court may, in its discretion, order the home-place sold to effectuate an equitable division of the property. Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980).

The wife next contends that the trial court erred in the distribution of the remainder of the parties’ personal property and assets. The wife received a substantial portion of the marital estate although she claims she received less than the husband. A division of property between husband and wife need not be equal as long as it is equitable under the circumstances of the case. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). The wife in the instant action, as indicated, received $5,000 and much of the personal property, in addition to being entitled to one-half of the proceeds from the sale of the land. We find there was no abuse of discretion in the trial court’s division of the property.

Additionally, the wife apparently argues she is entitled to an award of periodic alimony. The trial court has wide discretion in determining whether or not periodic alimony should be awarded. Dunnam v. Dunnam, 381 So.2d 654 (Aia.Civ.App.1980). We hold the trial court did not abuse its wide discretion in this case. The wife is gainfully employed and presents no argument that her age or health would prevent her from working in the future. The husband’s income, once child support is deducted, is not substantially different from that of the wife. Finally, the wife, as noted above, is receiving a large amount of the marital estate in the division of property and/or as alimony in gross.

Finally, in view of the award to the wife, and the award of child support, the trial court did not err to reversal in failing to require the husband to maintain certain insurance. Mitchell v. Mitchell, 348 So.2d 1071 (Ala.Civ.App.1977).

The husband has filed a motion with this court concerning the wife’s alleged attempt to place before this court certain matters dehors the record. Suffice it to say, this court only considers matters contained in the record. Therefore, the motion is denied.

We note that able counsel for the wife, during oral argument, earnestly contends error as indicated. While this court may not have taken, in the first instance, the action of the learned trial judge, we cannot reverse the trial court. In this instance, to reverse the trial court’s action would be to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The wife’s request for an attorney’s fee on this appeal is denied.

In view of the above, this cause is due to be affirmed.

AFFIRMED.

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

ON APPLICATION FOR REHEARING

HOLMES, Judge.

The wife, through counsel on application for rehearing, vehemently contends that this court misstated certain facts; to wit, the net pay of the husband. Counsel for the wife is incorrect. Specifically, on page 162 of the record, the husband made the following responses to questions asked by the wife’s counsel:

Q Do you draw basically about $1,400 a month, take-home, is that your approximate take home?
A No, sir.
Q How much do you take home, please, sir?
A I take home about $1,250 a month.
Q Twelve fifty; all right.

There is other evidence — notably a statement of the husband’s earnings from ACIP-CO — which indicates the husband’s net pay was approximately $1,400 per month. It is the duty of the trial court to resolve conflicts in the evidence. It is not the function of this court to resolve such conflicts on appeal. See Greater Friendship A.M.E. Church v. Spann, 336 So.2d 1087 (Ala.1976). Furthermore, even had the trial court found the husband’s net pay to be $1,400 per month the outcome of this appeal would not have been different.

Other contentions and/or allegations contained in counsel’s application for rehearing do not warrant comment.

OPINION CORRECTED AND EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

      . We do not, in this instance, find that the trial court’s action in requiring the wife to make the mortgage payments for 120 days pending the sale of the property to be error. We particularly note that the wife has the benefit of residing in the residence for the pre-sale period.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Hazel Peeks TAYLOR. (Re: Hazel Peeks TAYLOR v. Robert Amon TAYLOR).
    81-255.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    Habib KAYFAN and Mahfarid Kayfan v. Nasser M. ZOLALI.
    Civ. 2888.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.
    Rehearing Denied Dec. 9, 1981.
    Richard D. Shinbaum, Montgomery, for appellants.
    Marlin M. Mooneyham, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

Zolali sued the Kayfans in circuit court for money allegedly owed on personal loans. The loans, according to Zolali, were made on three separate occasions prior to July 16, 1980, and amounted to $7,000. Zolali testified that Mr. Kayfan presented a written agreement to him on July 16, 1980, which set out the amount owed and a due date of October 30,1980. The Zolalis’ and Kayfans’ signatures appeared on the document which was duly admitted into evidence. The authenticity of that document, as well as other evidence, was heavily contested. The Kayfans denied borrowing the $7,000 from Zolali. Following trial to the court, judgment was rendered for Zolali in the amount of $7,000, plus six percent interest from October 30, 1980. From that judgment the Kayfans appeal.

Appellants contend that there was no consideration for the agreement entered into on July 16,1980, to repay money loaned at an earlier date. They also contend that there was a failure of consideration. Under these theories, appellants conclude that the agreement was not binding and the judgment should be reversed. We disagree. Appellee properly points out that § 7-3-408, Code (1975) governs. That section states that “[N]o consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.”

We note that this case was tried to the court. Therefore, the ore tenus rule and its attendant presumptions apply. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980). The trial court determined that the document in question was a valid note. We cannot, as a matter of law, find that it erred in its decision.

Appellant also assigns as error an evidentiary ruling by the court. The question asked was intended to elicit a prior inconsistent statement made by Zolali to his attorney. Objection based on the attorney-client privilege was sustained. Despite the court’s ruling, the witness responded to the question. We find no error in the court’s ruling.

Appellant never addressed the issue of sufficiency of the evidence. Appellee, however, asserts that this court cannot look to the sufficiency of the evidence on this appeal since the appellant made no motion for judgment non obstante veredicto or for new trial. That is the rule in jury cases, but where the trial is to the court, no such motion is needed to raise the issue on appeal. The trial court’s ruling on the sufficiency of the evidence is implicit in a decree where the court was the trier of fact. Francis v. Tucker, 341 So.2d 710 (Ala.1977).

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Roy BLOODGOOD v. Gayle WHIGHAM.
    Civ. 2799.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.
    Rehearing Denied Dec. 9, 1981.

      Daniel F. Carmichael, Jr., Enterprise, for appellant.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellee.
   BRADLEY, Judge.

This is a child custody case.

Roy Bloodgood and Gayle Whigham were divorced on December 21, 1976 in the state of New York. They had one child, Cherish Bloodgood, who was three at the time of the decree. As part of the divorce decree, the New York court awarded joint custody of Cherish to the mother and father. New York retained jurisdiction over the parties and forbade the parties from removing Cherish from the jurisdiction.

The mother was to have Cherish on weekdays and the father was to have her on weekends. On the day after the decree, the mother obtained custody of Cherish. The evidence shows that almost immediately she fled from New York with Cherish. The facts further indicate a five year search by the father for his daughter. The father found his daughter in Coffee County, Alabama.

After fleeing from New York, the evidence indicates that the mother took the child to Utah, Colorado, Wyoming, Nevada, Hawaii, Georgia, and Alabama. She admitted that all of these moves were meant to thwart the father’s efforts to ever see his child again. The father stated that he spent approximately $80,000 in search of his daughter. He, in fact, spent over eleven months conducting his own search. He also paid several private investigators to conduct a search. The evidence shows that the effort to find Cherish went on nonstop for five years.

After moving to Atlanta, the mother met and eventually married Jim Whigham. They subsequently moved to Dothan and presently reside in Enterprise. The mother enrolled her child in school under the name Cherish Whigham, which indicates another effort to prevent the father from finding her.'

Finally, after five years, the father located Cherish in Enterprise. The mother immediately filed a petition in the Circuit Court of Coffee County to obtain permanent custody of her daughter. At the hearing the father contested the jurisdiction of the Alabama court to modify the New York decree. The judge overruled this objection and heard the evidence.

At this hearing, the fitness of both parents was questioned. The mother claimed that the father beat her and was abusive to her. The father denied these allegations and presented evidence which showed that the mother had beaten the child and had even broken the child’s leg. The mother admitted to breaking the child’s leg.

The mother also presented several members of her church to show that she was a good mother and of good character. The father, however, showed that the mother did not take Cherish to the doctor or dentist. He also testified that upon seeing his daughter she did not appear to him to be in the best physical condition.

After hearing this evidence, the judge awarded permanent custody of Cherish to the mother but gave the father several weeks a year of visitation rights. From this judgment the father has perfected this appeal.

In this appeal, the father raises one major issue. He contends that under the Uniform Child Custody Jurisdiction Act (UCCJA) recently adopted in Alabama, the trial judge erred in exercising jurisdiction in this case. Code 1975, § 30-3-20 to -44. We agree with this contention and hold that the trial court should have declined jurisdiction over this matter.

At the outset we note that one of the major purposes of the UCCJA is to prevent abductions or removal of children from a court’s jurisdiction. Code 1975, § 30-3-21(a)(5). In this case it is undisputed that the mother abducted or removed this child in order to thwart the New York decree. Therefore an exercise of jurisdiction by an Alabama court under these circumstances would be contrary to the spirit and purpose of the UCCJA unless it can be shown that Alabama did in fact have jurisdiction or could properly exercise jurisdiction.

The act itself sets forth the criteria for determining when jurisdiction of a court can be invoked. Normally the child’s home state is the proper forum to determine custody. New York clearly had jurisdiction at the time of the initial custody decree and was the child’s home state within the meaning of the act.

Section 30-3-34 provides:

(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless:
(1) It appears to the court of this state that the court which rendered the decree does not now have jurisdiction ....

The act encourages continuing jurisdiction by the court which initially determined custody so long as that court has not lost jurisdiction under § 30-3-23 or has declined jurisdiction. Pitts v. Sutter, 408 So.2d 105 (Ala.Civ.App.1981). In the commissioner’s comments about § 30-3-34 it is suggested that as long as one or more of the parties continues to reside in the state which rendered the initial custody decree that state has continuing preferred jurisdiction to modify the initial custody decree so long as jurisdiction remains in that state according to the standards of this act.

The facts of the present case bring it squarely within the purview of this part of the UCCJA. Clearly, New York has jurisdiction because the father continues to reside there. Moreover, New York has not lost jurisdiction because the child is absent from New York due to the mother’s deliberate and illegal removal of it from the jurisdiction of that court and her stated purpose of preventing the father from exercising his joint custody rights. Furthermore, New York has not declined to act in this matter.

Under the circumstances of the present case, New York has continuing and exclusive jurisdiction to modify the custody of the child in question and the Alabama trial court was without jurisdiction to modify the New York custody decree. Its refusal to dismiss the modification petition filed by the mother is erroneous. To hold otherwise would be contrary to the stated purposes of the UCCJA, i.e. to “deter abductions and other unilateral removals of children” from the jurisdiction of a court of another state and to “avoid jurisdiction competition and conflict with courts of other states in matters of child custody.”

Although not relied on in the trial court and thus not here considered as authority, we note that under the recently enacted “Parental Kidnapping Prevention Act of 1980,” Pub.L.No.96-111, 94 Stat. 3566 (1980), the Alabama court would have been prohibited from modifying the New York decree so long as New York has jurisdiction and has not declined to exercise it. Jurisdiction would remain in New York so long as one of the contestants resides there.

The judgment of the trial court is reversed and the cause remanded for entry of an order dismissing the case for lack of jurisdiction.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    Bobbie Jean S. SHARRETTS v. Walter John SHARRETTS, Jr.
    Civ. 2673.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.

      Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appellant.
    Taylor D. Wilkins, Jr. of Wilkins, Bankes-ter & Biles, Bay Minette, for appellee.
   BRADLEY, Judge.

This is a divorce case.

On May 30, 1978 Bobbie Jean Sharretts filed an action in the Circuit Court of Baldwin County seeking a divorce from her husband, Walter Sharretts, Jr., on the ground of irretrievable breakdown of the marriage due to the husband’s intemperance and “indifferent attitude” toward her. She requested custody of the three minor children, alimony, child support, and a reasonable attorney’s fee. The trial court awarded her temporary custody of the children and $600 a month alimony and child support penden-te lite.

On May 19, 1980 the trial court held a hearing and on June 26, 1980 rendered a decree. Pursuant to a motion from plaintiff this decree was modified on November 26, 1980.

The decree of the trial court divorced the parties for incompatibility of temperament after finding that the marriage had been irretrievably broken and that the parties were incompatible, awarded custody of two minor children to the mother, awarded the parents joint custody of the third and youngest child, who is an invalid and a patient in a nursing home, required the father to pay to the mother $600 per month for the two children placed in her custody plus their medical and dental expenses, required the father to pay all of the expenses attendant upon the care of the invalid child, awarded the wife $60,000 alimony in gross, payable in $15,000 per year installments, awarded the wife $200 per month in “supportive alimony” for twenty-four months “or so long as [the wife] remains feme sole,” required the husband to maintain all life insurance then in force for the benefit of the wife and two older children, required the husband to convey to the wife his interest in a building lot in Loxley,- Alabama, awarded to the wife all of the furniture and fixtures in the marital home “save and except items of peculiar interest or meaning to [the husband],” directed the husband to purchase or construct a $65,000 house for the wife “in the geographic limits of Baldwin County,” and ordered the wife to surrender to the husband her interest in a house at Orange Beach, Alabama. After her motion for new trial was denied, Mrs. Sharretts appealed to this court.

The record discloses the following facts. Mr. and Mrs. Sharretts were married in Fairhope, Alabama on September 24, 1965. At the time of trial in this cause they resided on a farm near Summerdale, Alabama. Appellant is forty years old and appellee is forty-four. Both parties are in good health. Mr. Sharretts is in partnership with his father farming the two hundred forty acres that he owns. Although Mr. Sharretts’ farming operations produced a comfortable income for him and his family in 1976 and 1977, they yielded only $8,000 in total income in 1978 and a $20,000 loss in 1979. Appellee testified that most of his wheat and potato crops for the year 1980 had been destroyed by inclement weather and that his farm was in the worst shape in which it had ever been.

Appellant testified that she worked on the farm alongside her husband since the day of their marriage. She said she drove trucks and tractors, worked on the potato shed, and did whatever else needed doing besides raising a family.

There were three children born of this marriage, all of whom are still minors. One of the children, the youngest, is an invalid and is in a nursing home.

Appellee said that the marital home is located on the two hundred forty acres of land he owns and he valued it between $65,000 and $90,000. The land is valued between $340,000 and $580,000. The parties also own a beach front parcel of property at Orange Beach, Alabama with a house on it valued between $90,000 and $121,475. The husband also owned a building lot in Lox-ley, Alabama valued between $4,000 and $5,000. The farm machinery was valued at $75,000, the irrigation equipment was valued at $40,000, and the furniture and fixtures in the marital home were valued at $15,000.

Appellee said that he had $5,000 in a checking account, that he owns a boat worth $9,000 and that he owes about $250,-000. There is no mortgage on the Orange Beach property and appellee has just received $11,000 from insurance policies to cover hurricane damage. Four thousand dollars had been spent repairing the house, and the remainder had been used to meet living expenses.

The evidence shows that the appellee has always enjoyed going out on the town once or twice a week and meeting with friends on the weekends. Appellant stated that she went with her husband on these occasions and drank with him but not to the extent he would drink. She said he had established a routine in the latter part of their marriage of going to one or more of his favorite drinking places every three days and getting drunk. It would take the next day and night to get over the drinking binge and the third day he would repeat the process.

The appellee introduced evidence that since appellant filed the divorce petition and the trial court entered its pendente lite order, the appellant had been seen in the company of a male friend at a motel in Atlanta, Georgia and in several night clubs in the Baldwin-Mobile County area.

By her first issue, appellant questions the propriety of the child support award of $600 per month, i.e. she says the amount of the award is insufficient.

The amount of child support granted in a divorce case depends upon the needs of the child and the ability of the parent to pay. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980).

Not only was the appellee required to pay $600 a month child support for the two children living with appellant, but he was also required to pay all of their dental and medical expenses. Moreover, appellee was required to pay all of the expenses of the invalid child who was a patient in a nursing home. There was no evidence of the specific amount needed for the support of the two children, nor of the invalid child, but appellant did testify that the $600 a month she received as pendent lite support was adequate for her and the two children so long as appellee paid the utilities and automobile expenses. We find no error in this aspect of the trial court’s decree.

Appellant says next that the trial court’s periodic alimony award is inadequate.

The matter of alimony is discretionary with the trial court, and where the evidence was taken orally, the determination of alimony will not be set aside except for plain and palpable abuse. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977). We find none here.

The evidence showed that appellee’s farming operation lost $20,000 in 1979 and the prospects for 1980 were not good. The wife was in good health and operating her own business, although she stated she was not presently making any money from it.

In view of the other awards made to appellant, we cannot say that the periodic alimony award is so inadequate ás to amount to an abuse of discretion.

Appellant also says that the language of the decree awarding periodic alimony is so unclear as to be unenforceable. The decree provides that “Defendant . . . pay supportive alimony of $200 per month for a period of twenty-four (24) months or so long as Plaintiff remains feme sole.” We consider it not unreasonable to construe this provision to mean that appellee pays appellant $200 per month for twenty-four months or so long as she remains unmarried, whichever event occurs first.

Appellant says next that the alimony-in-gross award and the division of property are both inadequate.

The rule is well settled that a trial court has wide discretion in making a property division and in awarding alimony in gross. Weeks v. Weeks, 373 So.2d 848 (Ala.Civ.App.1979). The division of property does not call for an equal division but only an equitable division. Weeks v. Weeks, supra.

In the present case the appellant was awarded $60,000 to be paid in four yearly installments of $15,000 each, as alimony in gross; she was awarded a building lot in Loxley, Alabama valued at between $4,000 and $5,000; she was awarded the bulk of the family’s furniture and fixtures, and the appellee was directed to purchase or construct a house for appellant to cost about $65,000. The appellant was also awarded one-half of the life insurance that appellee had in force at the time of the hearing.

The trial court permitted the appellee to keep the two hundred forty acres of farm land plus the marital home which was located on the farm. The farm was the sole source of appellee’s income. The appellee was also awarded appellant’s interest in the beach property, and he was allowed to keep his boat and all of the farm machinery including the irrigation equipment. Appel-lee was also left with $273,000 in debts that must be satisfied. Based on this evidence we are unable to say that the trial court abused its discretion in the award of alimony in gross or in its division of the parties’ property.

Appellant again says that the decree provision relating to the purchase of a home for appellant and the provision relating to the maintenance of life insurance are so unclear as to be unenforceable. Again, we disagree.

The decree directed appellee to purchase or construct, in consultation with appellant, a- house costing about $65,000 for appellant within Baldwin County, Alabama. Although the trial court might well have reserved to itself unnecessary problems by the wording of this provision of the decree, nevertheless, the provision is clear as to what is required of the appellee so far as the alimony in gross award and property division is concerned.

The decree also required appellee to maintain in force all life insurance policies for the benefit of appellant and the two children placed in her custody. Such provision could mean only that appellee was to maintain in force all life insurance policies that were in force on the day of the hearing. We perceive no insurmountable problem in enforcing this provision of the decree.

For the above stated reasons, the judgment of the trial court is affirmed.

Appellant’s motion for attorney’s fees is denied.

AFFIRMED.

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


author:
BRADLEY, Judge.
      HOLMES, Judge WRIGHT, Presiding Judge

text:
    J. B. HOLLEY v. Kelly WRIGHT, Executor of the Estate of Milton Wright, Deceased.
    Civ. 2702.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    W. J. Williamson, Greenville, for appellant.
    William W. Gobrecht of Skinner & Go-brecht, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal involves title to real property located in Montgomery County.

The present case arises out of a dispute over ownership of two hundred thirty acres of land located in Montgomery County. The land was originally owned by W. F. Niblett who died testate in 1939 devising a life estate in the land to his four illegitimate children, Henry Moore, Gus Moore, Dock Moore, and Emma Moore Wright. Upon the death of any of them the land was to go in fee simple to their children or descendants, or if they left no descendants, it was to revert to the survivors or descendants of the survivors. ■

It is undisputed that Henry Moore died or disappeared before Niblett’s death, leaving no children or descendants. As a result the other three children each took an undivided one-third interest. Gus Moore died leaving one illegitimate child, Squire Gamble. Emma Moore Wright and Dock Moore assigned any interest which they had in Gus Moore’s portion to Squire Gamble. In 1951 suit was brought in the Circuit Court "of Montgomery County by Emma Moore Wright, Dock Moore and Squire Gamble to oust Emma Moore, Gus Moore’s wife, from the property and to construe the will of W. F. Niblett. The circuit court construed the will and found that Squire Gamble was entitled to take his father’s one-third undivided interest in the subject property.

Dock Moore died later in 1951 leaving six illegitimate children, viz: Thelma Carter, Theodore Moore, Robert Moore, Clara McCall, George Bray, and Julius McDay. The dispute in this case arises out of the question of what interest if any these six illegitimate children took upon their father’s death.

Emma Moore Wright died intestate in 1970 leaving as her only survivor her legitimate son, Milton Wright. In October 1972 Milton Wright agreed to sell whatever interest he had in the property to defendant, J. B. Holley. The parties valued the property at $25,000, and defendant agreed to pay Milton the proportionate value of Milton’s interest in the subject property. Defendant’s attorney, after reading the 1951 order of the circuit court, determined that Milton had a one-third interest, and thus defendant paid Milton $8,000 for this one-third interest. Milton Wright accepted this amount, and the warranty deed was delivered and recorded.

In 1973 defendant began to negotiate with Dock Moore’s illegitimate children to obtain their interest. He believed that they also owned a one-third interest. George Bray and Julius McDay conveyed any interest they had to their sister, Thelma Carter. Another sister, Clara McCall, died without issue. In July 1973 Thelma Carter, Theodore Moore, and Robert Moore conveyed by warranty deed their interest to defendant. They signed affidavits to the effect that they were Dock Moore’s children and had title to their father’s one-third interest. Defendant paid these three children $10,-000.

Defendant also acquired Squire Gamble’s interest. Defendant, however, reconveyed forty acres of the property back to Gamble. This was the portion of the property on which Gamble and his family resided and was the original W. F. Niblett homestead.

Milton Wright died testate in September 1974 leaving as his sole beneficiary his half brother, Kelly Wright, who was also named executor under Milton’s will.

On December 6, 1979 a complaint for declaratory judgment was filed in the Circuit Court of Montgomery County by Kelly Wright. The complaint sought to have the court determine what interest Milton Wright had in the subject property. On February 21, 1980 a default judgment was entered against the defendant. It was found that Milton Wright owned a one-half interest in the property and thus was entitled to be paid an additional $4,500.00 for his interest as per the original contract.

In March 1980 defendant filed a motion to set aside the default judgment. The case was tried before the court sitting without a jury on July 22,1980. The court found that Milton Wright owned a two-thirds interest in the property rather than one-half. Defendant filed a motion for new trial which was denied. As a result defendant appeals to this court.

In this appeal, defendant raises several issues concerning the effect of the 1951 proceeding on the present controversy. He contends that the 1951 decision conclusively decided that illegitimate children could take under Niblett’s will and should be given res judicata effect by this court. We, however, do not agree with this contention.

The elements of res judicata are a prior judgment rendered by a court of competent jurisdiction, substantial identity of the parties in the two suits, identity of issues in the two suits, and a prior judgment rendered on the merits. Ozley v. Guthrie, 372 So.2d 860 (Ala.1979).

In the 1951 proceeding the parties were Squire Gamble, Dock Moore, and Emma Moore Wright. The children of Dock Moore and Emma Moore Wright were not parties to that suit. In order for them to be bound by the 1951 proceeding, they must be in privity with the parties to that suit. Privity is defined as a mutual or successive relationship to the same rights of property, or an identity of interest in the subject matter of the litigation. Sosebee v. Alabama Farm Bureau Mutual Casualty Insurance Co., 56 Ala.App. 334, 321 So.2d 676 (1975).

It is undisputed that Dock Moore and Emma Moore Wright were life tenants. Their children or descendants held a remainder interest. This being the case, the children cannot be considered in privity with their parents because they were not entitled to the same rights in the property. 50 C.J.S. Judgments § 810(b) (1947).

Alabama courts have applied res judicata to remaindermen when they have been represented by other members of their class under the doctrine of “virtual representation.” In order to bind members of the class, those persons made parties to the suit must have sufficient interest in the controversy to induce them to bring forth the entire merits of the question. Ussery v. Darrow, 238 Ala. 67, 188 So. 885 (1939). When members of the class sought to be represented are in esse at the time of the original proceeding, however, representation may be had only by a member of the class in question. See generally Annot., 120 A.L.R. 876 (1939). In the present case all of Dock Moore’s and Emma Moore Wright’s children were in esse at the institution of the 1951 proceeding, and yet none of them were joined as parties to the controversy. Given the nature of the 1951 proceeding, it cannot be said that Squire Gamble acted in a representative capacity for the members of the class in question. The 1951 proceeding only asked the court to determine the interest of the parties to that suit in the property. Squire Gamble in no way attempted to represent Dock Moore’s or Emma Moore Wright’s children, and the court did not make any determination of their interest. We therefore conclude that the doctrine of res judicata does not operate as a bar to the parties in the present proceeding.

We also cannot find that the 1951 decision conclusively decided that illegitimate children of the four life tenants could take under Niblett’s will. That decision stated only that Squire Gamble could take as a descendant. We cannot find from this that the trial judge construed the will to include illegitimates. The trial judge did not indicate why or how he found that Squire Gamble was a descendant. We believe that an issue must clearly be decided before it can be given res judicata effect. We cannot find that the 1951 decision clearly found that illegitimates could take under Niblett’s will so as to make that decision res judicata. See generally 50 C.J.S. Judgments § 717 (1947).

Having found that res judicata does not apply in this case, we find that the plaintiff erred in failing to join necessary parties under A.R.C.P. 19.

A.R.C.P. 19(a) provides:

(a) Persons to be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the per sons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. [Emphasis added.]

The failure to join an indispensable party may be raised for the first time on appeal. Mead Corporation v. City of Birmingham, 350 So.2d 419 (Ala.1977). Since defendant has raised this issue on appeal, we may address it, and we find it disposi-tive of the present case.

It has been established that where a decree affects an interest in real property, every person who claims title, ownership or interest in the realty must be joined. Johnston v. White-Spunner, 342 So.2d 754 (Ala.1977). It is undisputed that in this case the suit by Kelly Wright as executor of Milton Wright’s estate was to determine the interest of the respective parties in the subject property. Surely all of the persons claiming an interest in this property are necessary to insure a complete adjudication of everyone’s interest.

A close look at Rule 19 reveals that two alternative tests have been set out for determining whether joinder is necessary. It is clear to this court that the test set out in 19(a)(2) is applicable in this case. The persons not joined in the present suit have certainly claimed an interest relating to the subject of the present action as provided under the Rule.

Further, under 19(a)(2) a person is to be joined if his ability to protect his interest will be impaired or if one already a party may suffer double liability or inconsistent obligations. The facts certainly indicate that either of these circumstances is possible.

The heirs of Dock Moore sold their interest to defendant for $10,000. The trial court, however, determined that they had no interest in the property. From this, then, these persons’ ability to protect their interest has been impaired. By finding that they have no interest, the trial court has in effect ruled that they have no right to the $10,000. Furthermore defendant may be subject to double liability because he will have to file suit in order to regain his $10,000. A subsequent proceeding to collect this money could result in inconsistent judgments. Therefore we find that the heirs of Dock Moore are necessary parties who should have been joined. See Johnston, supra; Kirkley v. Bailey, 282 Ala. 115, 209 So.2d 398 (1968).

Likewise the heirs of Squire Gamble have claimed an interest in the property because of a 1951 proceeding which held that Gamble was entitled to take in fee simple his father’s interest. It is undisputed that this property was held by the parties undivided as tenants in common. Gamble’s heirs sold their interest to defendant; however, defendant reconveyed to them a forty acre tract. At that time defendant thought that he had purchased the entire tract. By the present decision, Gamble’s heirs’ rights to this specific forty acres could be affected since they held an undivided interest. It is also clear that under the 1951 decree Gamble took his father’s interest as an heir. If the illegitimate children of Dock Moore are found to have no interest, it is clear that Gamble’s heirs certainly have a possible claim for a one-half interest. These facts indicate that Squire Gamble’s heirs are necessary parties under 19(a)(2) because their ability to protect their claimed interest may be impaired, and defendant could incur inconsistent obligations.

Further, we find that to fully and finally determine all issues presented in this case it is necessary that all of the persons be joined as parties. Certainly the children of Dock Moore are indispensable parties to this suit as well as the children or descendants of Squire Gamble.

The judgment of the circuit court is therefore reversed and remanded so that all persons claiming an interest in the property can be joined, and a full trial on the merits can be held.

REVERSED AND REMANDED.

HOLMES, J., concurs specially.

WRIGHT, P. J., dissents.

HOLMES, Judge

(concurring specially).

I agree with the conclusion of the learned and distinguished trial judge that the 1951 proceeding is not res judicata to the present proceeding.

I further find that the result reached by the trial court is supported by the evidence heard by the trial court. However, the trial court’s finding does conclude that Dock Moore’s illegitimate children had no interest in the land. Therefore, I find these persons must be appropriately before the trial court before such a result can be reached. Put another way, Dock’s illegitimate children are, in this instance, indispensable parties under A.R.C.P. rule 19. In an equitable proceeding, to construe a will, all persons having material interests, legal or equitable, in the subject matter of the suit must be made parties. Kirkley v. Bailey, 282 Ala. 115, 209 So.2d 398 (1968). I should, however, not be understood as finding that these persons do in fact have any interest, only that they must be given an opportunity to be before the court to properly present any contentions they may have.

WRIGHT, Presiding Judge

(dissenting).

I agree with the first conclusion of the majority decision which determines that the decree of 1951 does not affect the rights of the parties to this action. That decree determined only that Squire Gamble was a descendant under the terms of the Niblett will and therefore took a one-third remainder interest in the property, subject to the joint life estates of the living children of Niblett. That decision is conclusive as to the parties to that suit and is not challenged in this action. It doesn’t matter whether we agree or disagree with that decree. Its validity is not before us. (However, it might be noted that the discussion of the majority as to its non-binding effect on those in “esse” but not represented in the action would apply to Emma Moore Wright’s child, the only legitimate descendant of Niblett. He was then living and possessed an undivided remainder interest under the will. He had no opportunity to contest the right of Squire Gamble to inherit under the will.)

Therefore the issue is only what interest Emma Wright’s descendant had in the remaining two-thirds interest. It is in response to that issue that I must dissent from the decision of the majority. I do not agree that the admitted illegitimate children of Dock Moore or the heirs of Squire Gamble are necessary parties to this action. In the first instance, illegitimate children are not heirs of their father unless legitimated under the laws of descent and distribution in Alabama. § 43-3-7, Code (1975), Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929). They have no right to be parties to the administration of their father’s estate. With the admission that the children of Dock Moore were illegitimate, they are excluded as a matter of law from the terms of the Niblett will — they are not children or descendants of Dock Moore within the laws of inheritance.

In the second instance, they have divested themselves by deed to Holley of any interest they might have had in the property. Their interest, if any they had, now resides in Holley who is the defendant in this case.

Accepting the conclusive effect of the 1951 decree vesting a one-third interest in fee in Squire Gamble, his interest was settled thereby. He has now also conveyed that interest to Holley, and Holley stands in his shoes insofar as his title clashes with the interest of Wright. The fact that Holley reconveyed part of the land to Gamble does not affect this suit. If the title of Holley conveyed by deed to Gamble fails, the recourse of Gamble or his heirs is against Holley.

Holley and Wright are the disputants here. I agree with the trial court that Wright took under the terms of the will of Niblett at ¡east an undivided two-thirds interest in fee simple after the death of the last child of Niblett. I would affirm the judgment of the trial court.


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    Priscilla Ann Chappell WILLIAMSON v. David Carter CHAPPELL.
    Civ. 2817.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    James R. Knight of Knight & Griffith, Cullman, for appellant.
    S. Wayne Fuller and Mark O. South, Cull-man, for appellee.
   WRIGHT, Presiding Judge.

This is a child support modification case. The wife appeals alleging that the trial court abused its discretion in failing to award a more substantial increase in the husband’s support obligations.

The record reveals the following: The parties were divorced in August 1976 by the Circuit Court of Cullman County. By agreement, the wife was awarded custody of the parties’ two minor sons, then ages seven and four years. The husband was granted visitation rights on every other weekend, Sundays on the alternate weekends, and two weeks during the summer. In addition to $120 per month child support, the husband agreed to pay one-half of the children’s school expenses and reimburse the wife for the cost of medical coverage on the children. Each party was entitled to claim one of the children as a dependent on his/her respective tax return.

In April 1977 the husband filed a petition for a rule nisi against the wife regarding visitation rights. In October 1977 the wife petitioned for a modification of the original decree. On October 24,1977, the court considered both petitions and entered a judgment pursuant to an agreement between the parties. The visitation rights were modified to allow the husband an extra week of visitation during the summer and place the expense of transporting the children on the husband. The husband was relieved of the obligation to pay one-half of the children’s school expenses. In lieu thereof, his support payments were increased to $180 per month. The responsibility for obtaining medical and hospital insurance on the children was placed upon the husband.

In August 1980 the wife filed a petition for modification of the child support payments. She alleged a material change in circumstances in that the expenses of raising the two children have increased due to their increased ages and the impact of inflation. The trial court, after an ore tenus hearing, rendered its judgment on April 20, 1981, increasing the husband’s support payments from $130 per month to $150 per month. The wife appeals from this judgment asserting that the trial court abused its discretion in failing to award a more substantial increase.

The wife testified that she is now remarried to a self-employed auto mechanic. She is employed as a secretary in Birmingham and commutes from Cullman. Her salary is $885 per month. It is her testimony that expenses for the two boys are $834 per month. This figure was arrived at by attributing one-fourth of her four-member household’s expenses to each child. It also includes expenses which are attributable to the wife’s commuting to work. The trial court apparently took judicial notice of the impact of inflation on the cost of raising two boys.

The husband testified that his after-tax income for 1978 was approximately $15,000. In 1979 it was approximately $16,000. In 1980 he worked for Kenloek Coal Company until August and drew unemployment until mid-October when he moved to Texas to obtain work there. His net pay for 1980 was approximately $19,000. The husband’s job as a carpenter in Texas will terminate when the current project is finished, between four and six months from the date of the hearing. He testified that he did not then have further employment secured. In 1981 the husband has received approximately $350 per week, but such pay is contingent upon weather conditions. The husband’s employment provides no sick pay. Income of $18,352 for the year 1981 would be realized only if the husband worked every week for fifty-two weeks. He testified that monthly expenses for himself and his new wife are $1,339 per month.

Modification of a decree for child support, based on changed circumstances, is a matter within the discretion of the trial court. Green v. Green, 380 So.2d 884 (Ala.Civ.App.1980). In determining whether there has been a material change in circumstances justifying a modification of support, a court may properly take judicial notice of an increase in the cost of living due to inflation. Inman v. Inman, 370 So.2d 1037 (Ala.Civ.App.1979). An increase in the age of minor children and a correlative increase in their support needs, along with the effects of inflation, are sufficient to support a modification of a prior decree for child support. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979).

The wife contends that the increase was not sufficient to meet the children’s needs. The standard for setting child support is the needs of the children compared with the ability of the parent to respond to that need. Ex parte Boley, 392 So.2d 840 (Ala.1981). The prospective or possible decrease in future earnings may be considered but should not overcome the present need of the children and the present ability of the parent to pay. Decreased earnings in the future provide the basis for a request for modification at the time. Based on need and present ability to pay, we find the award of $150 per month for the children to be grossly insufficient. The father is able to claim more as a deduction on his income tax return than he contributes for one child. We therefore reverse and remand for reconsideration in light of this decision, and the taking of additional testimony if deemed necessary.

The sum of $300 is hereby granted to appellant as a reasonable attorney fee on appeal.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


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    Edward O. PLAISANCE v. Ivory YELDER and Montgomery Ready Mix, Inc.
    Civ. 2862.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.

      Ted Taylor and Tom Wright, Prattville, for appellant.
    James W. Garrett, Jr., Montgomery, for appellees.
   WRIGHT, Presiding Judge.

Plaintiff Edward 0. Plaisance brought suit against defendant Ivory Yelder for an alleged assault and battery inflicted upon him by Yelder in a fight which ensued following a collision between Plaisance’s automobile and a Montgomery Ready Mix truck driven by Yelder. A jury verdict awarding Plaisance compensatory and punitive damages against Yelder is not at issue on appeal. Plaisance’s claim against defendant Montgomery Ready Mix, Inc. was based on the doctrine of respondeat superi- or. At the close of Plaisance’s case in chief, the trial court granted a directed verdict in favor of Montgomery Ready Mix. The propriety of this directed verdict is the issue Plaisance raises on appeal.

According to the record, Plaisance and Yelder were leaving a jobsite in Prattville, Alabama. Plaisance was driving his car in the right lane of the road. Yelder, in the Montgomery Ready Mix truck, was driving along the right shoulder attempting to merge into the lane of traffic. Although Yelder denied it, Plaisance testified that prior to the collision Plaisance stepped out of his car and warned Yelder not to hit his car with the truck. Eventually Yelder’s path was blocked by a stop sign. On reaching this point, Yelder apparently pulled into the lane of traffic and collided with Plai-sance’s automobile. Plaisance testified that he got out of his ear and walked around the back of it to see what damage it had sustained. At this time Yelder was apparently still sitting in the cab of the cement truck. When Plaisance approached him, Yelder stabbed him at least twice in the face with a screwdriver. Plaisance, according to his own testimony, then pulled Yelder out of the cab of the truck and the fight continued out into the street. It is undisputed that at the time of the incident Yelder was employed by Montgomery Ready Mix. He was en route to the washout area to clean out his cement truck after having made a delivery to the jobsite.

Plaisance asserts on appeal that the directed verdict in favor of Montgomery Ready Mix was improperly granted because there existed a genuine issue as to whether Yelder was acting within the line and scope of his employment with Montgomery Ready Mix at the time of the assault and battery on Plaisance.

In order to recover against a defendant under the doctrine of respondeat superior, the plaintiff must establish the status of master and servant and that the act done was within the line and scope of the servant’s employment. Naber v. McCrory & Sumwalt Construction Company, 393 So.2d 973 (Ala.1981). This rule applies even where the wrong complained of was intentionally, willfully, or maliciously done in such a manner as to authorize a recovery for punitive damages. Anderson v. Tadlock, 27 Ala.App. 513, 175 So. 412 (1937). In extending the liability to a willful wrong, the motive behind the act does not defeat liability, Seaboard Air Line Railway Company v. Glenn, 213 Ala. 284, 104 So. 548 (1925) unless it can be shown that the servant acted from wholly personal motives having no relation to the business of the master. United States Steel Company v. Butler, 260 Ala. 190, 69 So.2d 685 (1953). Whether the servant was actuated solely by personal motives or by the interests of his employer is a question for the jury. B. F. Goodrich Tire Company v. Lyster, 328 F.2d 411 (5th Cir. 1964); Craft v. Koonce, 237 Ala. 552, 187 So. 730 (1939). This is so if there is any evidence having a tendency either directly or by reasonable inference to show that the wrong was committed while the servant was executing the duties assigned to him. United States Steel Company v. Butler, supra; Lerner Shops of Alabama v. Riddle, 231 Ala. 270, 164 So. 385 (1935).

In the instant case, Yelder was admittedly driving from the jobsite to the washout area when the collision occurred. As the supreme court found in Gassenheimer v. Western Railway of Alabama, 175 Ala. 319, 57 So. 718 (1912), there is nothing in the facts before us to indicate, however remotely, that the assault grew out of anything other than the operation of the respective vehicles by Plaisance and Yelder. As in Gassenheimer, we find the collision and subsequent fight could be considered part and parcel of one transaction.

Montgomery Ready Mix relies heavily on the decision in Birmingham Electric Company v. Hawkins, 37 Ala.App. 282, 67 So.2d 56 (1953). In Hawkins, a bus driver allegedly left his bus and assaulted the occupants of a car which had been blocking his attempts to pass it. A judgment for the plaintiff was reversed on appeal. The appellate court found that ¿the bus driver was not acting within the scope of his employment in assaulting the plaintiff.

The case is distinguishable, however, from the instant one. In this case there is evidence that the difficulty began while Yelder was still in the cab of his employer’s truck. In Avco Corporation v. Richardson, 285 Ala. 538, 234 So.2d 556 (1970), the trial court’s refusal to direct a verdict for the employer-defendant was affirmed on appeal. In Avco, the supreme court noted that in cases where a servant’s deviation from the master’s business is slight and not unusual, the court may determine, as a matter of law, that the servant was still executing the master’s business. On the other hand, with a very marked and unusual deviation, the court may determine that the servant is not on his master’s business at all. Cases falling between these two extremes must be regarded as involving merely a question of fact to be left to the jury. Whether the assault and battery on Plai-sance was committed in the line and scope of Yelder’s employment with Montgomery Ready Mix is a case falling between the two extremes.

In considering the propriety of a directed verdict, our function is to view the evidence most favorable to the non-moving party. If, by any interpretation, it can support a conclusion in favor of the non-moving party, we must reverse. Herston v. Whitesell, 374 So.2d 267 (Ala.1979). A directed verdict is proper in only two circumstances: First, where there is a complete absence of proof on an issue material to the cause of action, and second, where there are no controverted issues of material fact upon which reasonable persons could differ. Caterpillar Tractor Company v. Ford, 406 So.2d 854 (Ala.1981). Rule 50, A.R.C.P. specifically incorporates the scintilla rule. Accordingly, “a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. . .. ” Turner v. Peoples Bank of Pell City, 378 So.2d 706, 709 (Ala.1979) cited in Alabama Power Company v. Robinson, 404 So.2d 22 (Ala.1981).

The directed verdict in favor of Montgomery Ready Mix was improperly granted. This cause is due to be reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


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    Betty Beech AUSTIN v. Dale Reid AUSTIN.
    Civ. 2883.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.

      J. Michael Manasco, Montgomery, for appellant.
    Lanier Branch of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The parties married in 1974 and formally separated in October 1980. One child was born of the marriage, Jason, who became five years of age in October 1980. The wife had been previously married and her seventeen year old son lives with her.

The wife had held a teaching certificate but it expired in 1979 and she does not plan to attempt to renew it since she is of the opinion that it would be most difficult for her to obtain a'teaching position. Apparently she worked until before Jason’s birth. The wife is qualified for employment as a clerk typist or receptionist, and she is seeking such work. She receives $160 monthly as child support from her first husband.

There was evidence that the husband’s average monthly gross income is slightly over $2,000, with his payroll deductions amounting to about $900.

Their personal property is not here an issue. The primary asset of the parties was the marital residence which they purchased in November 1974 for $44,000, of which they paid initially $14,000 and assumed a $30,000 first mortgage. As to the down payment, the wife provided about $8,800 and the parties borrowed $5,000, which was secured by their giving a second mortgage upon the property. The husband paid all monthly installments on both mortgages as they fell due. The parties’ present equity in the jointly owned home is estimated at $47,600.

This couple has not had sexual relations since Jason was four months of age because, according to the husband but denied by the wife, the wife criticized his sexual ability and compared him sexually with her first husband and because she kept the baby on their bed between them. He further testified that the wife cursed him, that she would make pronouncements about the family and home and that he could not disagree with her.

The ground for a divorce which was alleged in the complaint was an irretrievable breakdown of their marriage. Only portions of the final judgment which are pertinent to the present issues will be mentioned. The court divorced them and granted the custody of Jason to the wife, ordered the husband to pay child support of $100 per month for six months, and thereafter to pay monthly $250 for Jason’s maintenance. Additionally, he was required to maintain medical insurance on Jason, the monthly premiums being $51.77, and to keep certain life insurance, with Jason being named as beneficiary for certain contingent periods of times.

As alimony, the husband was ordered to pay all first and second mortgage house payments for a period of twelve months, thereafter the responsibility for meeting such installments was placed upon the wife. As alimony he was directed to pay $150 per month to her for six months, to be then reduced to $100 each month for the next six months, after which all alimony payments would terminate.

Concerning the home, the following provision was made in the judgment:

8. The jointly owned property of the parties located at 2240 Wentworth Drive, Montgomery, Alabama shall be appraised by an appraiser to be agreed upon by both parties, the costs of which shall be divided equally between the parties, and the Husband shall be awarded a lien on said property in the amount of one-half (Vá) the equity in the property as revealed by said appraisal, or $25,000.00, whichever is the lesser. Said lien shall be satisfied at such time as the house is sold or upon the remarriage of the Wife, or at such time as the minor child attains the age of nineteen (19) years, whichever occurs first. Until such time as the lien is satisfied the Husband shall pay to the Wife on January 1 of each year, a sum equal to one-half (V2) of the combined sum of property taxes for the [preceding] year and the premium of any home insurance coverage that may have been in effect for the [preceding] year.

The wife appeals, contending that the amount of child support and alimony is inadequate, that she should have been awarded the home in its entirety, or at least been entitled to a refund of that portion of the down payment which she made, and that paragraph 8 of the judgment, above copied, lacks certainty.

Since the trial judge personally heard the evidence presented by each side, we are allowed to disturb that decision only if the awards for child support, alimony or the property division, which are all interrelated, were so unsupported by the evidence as to be unjust and palpably wrong. Marshall v. Marshall, 392 So.2d 226 (Ala.Civ. App.1980); Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980). “ ‘Palpable’ means ‘[e]asily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.’ ” Snow v. Snow, 393 So.2d 1020 (Ala.Civ.App.1981).

Based upon the evidence in this case, the trial court was not clearly, plainly, obviously, etc. wrong in any of these aspects of the judgment.

It is readily apparent from the record before us that the trial court could have concluded that the wife contributed substantially to the breakdown of the marriage, and, if it did so conclude, the court could properly consider such conduct on the part of the wife as limiting her claim to alimony. [Citation omitted.]

Marshall v. Marshall, supra. The amount of monthly child support and the payment of medical and life insurance premiums for Jason’s benefit are certainly adequate and reasonable at this time. We cannot say that the overall scheme as to the home was inequitable.

Concerning the ambiguity in ownership of the home as contained in paragraph numbered 8 of the judgment, the husband states the following in his brief:

All parties understood at the time the decree was issued that the wife would have title to the house subject to the husband’s vested interest. There was no dispute concerning this issue and if that intention cannot be upheld by resort to the pleadings and other matters of record, the husband will make it certain either by his admission or by tendering to the wife a deed to his undivided one-half interest.

Accordingly, paragraph numbered 8 of the final judgment rendered in this cause on March 10, 1981 is hereby ordered amended so as to direct the husband to convey his undivided one-half interest in said property to the wife, subject to the lien created in said paragraph 8 and subject to the provisions of said final judgment.

We affirm the judgment as so corrected.

The wife’s request for an attorney’s fee on appeal is denied.

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

AFFIRMED AS CORRECTED.

All the Judges concur.


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    Karen Allen MARTIN v. Joseph Patrick MARTIN.
    Civ. 2916.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Richard W. Bell of Bell, Yeager & Allen, Pelham, for appellant.
    Hewitt L. Conwill of Harrison, Conwill, Harrison & Justice, Columbiana, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

Karen Allen Martin and Joseph Patrick Martin were married on May 10, 1980. Subsequent to the marriage the parties moved into a house owned and previously occupied by the wife, where they lived until their separation in August or September of 1980. The husband was by profession an interior designer. During the few months of marriage he began to redesign and redecorate the wife’s house, selling all of her old furniture and replacing it with new items. The husband’s redecoration of the house included draping the living room ceiling with over one hundred yards of fabric, installing parquet and other designer flooring in parts of the house, making a custom designed carpet for the dining room, and covering the walls of the foyer and other rooms with expensive materials. The husband also began to remodel a portion of the basement of the house, knocking down walls and constructing new ones to render the area suitable for an office.

On August 11, 1980 the wife filed for divorce in the Shelby County Circuit Court, alleging as grounds certain incidents of physical cruelty. The trial court heard testimony ore tenus, and on April 2, 1981 a decree was entered divorcing the parties from the bonds of matrimony and effecting a disposition of property. Pursuant to the decree, the wife was awarded the house in which the parties lived, free and clear of any interest of the husband, along with “all improvements on said house” accomplished by the husband. She was also awarded various articles of furniture and certain other items of personal property. The husband was instructed to complete the remodeling begun in the basement within ninety days from the date of the decree. The husband was awarded the 1979 Buick automobile purchased by him prior to the marriage; he was further awarded “any and all samples, tools and other equipment used in his profession,” and “all other personal property owned by the Defendant prior to the marriage, or purchased by his company during the marriage.” The husband was instructed to pay the wife’s attorney’s fee.

The wife thereafter filed a motion to reconsider the final decree, a motion to stay the operation of the decree, and a motion to require the husband to post a bond to insure completion of the basement remodeling. All motions were denied. An amended judgment was entered on July 21, 1981 regarding the enforcement of the original decree. Prom that judgment Karen Allen Martin brings this appeal.

The issue to be decided by this court is whether the provisions of the final divorce decree are too ambiguous to be enforceable. The wife contends that the language of the decree awarding the husband “any and all samples, tools and other equipment used in his profession,” and “all other personal property owned by the Defendant prior to the marriage,” is vague in that it fails to properly designate the specific items to which the husband is entitled. She further complains that the language as it presently stands would entitle the husband to repossess various articles incorporated into the design of the house, specifically, the flooring, ceiling fabric, wall coverings and custom-made rug. We find her contentions to be without merit.

We find no ambiguity in the terms of the divorce decree. Paragraph 5 awards to the wife the entire interest in the house, along with “all improvements” to the house performed by the husband. This would of necessity include the wall coverings, ceiling fabric, flooring, and custom-made rug, all of which have become “attached to” and have become an inseparable part of the house itself. The husband is not entitled to remove these “improvements,” nor does he have any intention of trying to do so, as he states in his brief. The award to the husband of samples, tools and other equipment, and other personal property clearly includes only those items used in his business or which he owned prior to the marriage, and which are not incorporated into the design and structure of the house.

We would further note that even if the decree were found to be ambiguous in certain of its provisions, an otherwise ambiguous divorce decree may be enforced if its intention is made clear by resort to the pleadings or other matters of record. Webb v. Webb, 366 So.2d 1134 (Ala.Civ.App.1979). From our perusal of the record and the accompanying documents, we find that the husband possessed various other items which he used in his business as an interior designer, not specifically attached to the wife’s house. The trial court in its decree clearly intended the award to the husband to include these items, as distinguished from “improvements” awarded to the wife in the same decree.

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ocie COOK, Jr. v. Charles G. BROWN, Jr.
    Civ. 2918-X.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Carl E. Johnson, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellant.
    John P. DeBuys, Jr. of Corley, Moncus, DeBuys, Goings, Thuston & Beavers, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal is concerned with the proper construction of a liquidated damages provision in a land sale contract. A short rendition of the facts and history of the case will be helpful to an understanding of the present proceeding.

In March 1979 Brown agreed to purchase a small parcel of land from Cook for $123,-000. Brown’s wife, a licensed real estate agent, prepared the sales contract which the parties signed. As part of the contract, Brown gave Cook $10,000 as earnest money. The contract authorized Cook to retain this money as liquidated damages in the event Brown breached the contract. The contract also provided that it was subject to the property being rezoned to light industrial within ninety days.

Cook hired an attorney to obtain the necessary rezoning. Cook’s attorney immediately began to take action to get the property rezoned. However, in April 1979, Brown advised Cook that he wanted to rescind the contract because Cook had misrepresented to Brown that there were no flooding problems on the property. Cook still continued with his efforts to have the property rezoned.

In July 1979 Brown filed suit against Cook asking that the contract be rescinded. Brown also asked for return of the $10,000 earnest money. Brown alleged the misrepresentation of the water problems. Brown also averred that the property had not been rezoned within ninety days of the acceptance of the contract.

The trial court sitting without a jury found no misrepresentations about water problems but did conclude that the contract was not enforceable; yet the court found that the liquidated damages provision was void as a penalty and then held, in effect, that Brown had breached the agreement, and awarded Cook $5,000 of the $10,000 earnest money previously given to him. On appeal this court upheld that portion of the trial court’s judgment finding no misrepresentation about water problems on the property but reversed that portion of the judgment relating to the enforceability of the contract. See Cook v. Brown, 393 So.2d 1016 (Ala.Civ.App.1981) for a complete rendition of the facts and the solution to the issues there involved. On remand the trial court, without taking additional evidence, concluded that the contract was enforceable but that the liquidated damages provision of the contract was void as a penalty and thus unenforceable. The court then held that the contract had been breached by Brown and awarded Cook $5,000 as damages. It then ordered Cook to repay to Brown the balance of the $10,000 earnest money previously given to Cook. Cook appeals and Brown cross-appeals.

Cook’s sole issue on this appeal is whether the liquidated damages provision of the contract is enforceable. Cook contends that the provision should have been upheld.

Determining whether a liquidated damages provision is valid is a question of law to be determined by the trial court based on the facts of each particular case. McClure v. Daniel, 45 Ala.App. 558, 233 So.2d 500 (1970); Yarbrough Realty Co. v. Barar, 37 Ala.App. 342, 67 So.2d 853 (1953).. We will therefore look to the facts contained in the record to determine if the provision will be upheld as a liquidated damages clause or struck down as an invalid penalty.

A penalty is, in essence, a security for performance, designed to punish one party for breach of the agreement. A liquidated damages provision, on the other hand, is an amount to be paid in lieu of performance, a sum agreed upon by the parties to be an adequate assessment of damages which would result from a possible breach. 25 C.J.S. Damages § 101(c) (1966); C. McCormick, Handbook on the Law of Damages § 146 (1935). In construing provisions such as the one in question, the court will always seek to ascertain the intention of the contracting parties. McClure v. Daniel, supra. Mere denomination of the clause as one or the other is not conclusive of its real character. Courts, however, are disposed to lean against any interpretation of the contract which will make the provision one for liquidated damages and, in all cases of doubtful intention, will pronounce the stipulated sum a penalty. Id.

In the present case the evidence suggests that the parties intended the provision for the retention of the $10,000 earnest money by Cook to be a penalty rather than as a measure of the damages for a breach thereof. Prior to executing the contract, Brown proposed a tender of $65,000 as earnest money; Cook stated such a sum was unnecessary; Brown then suggested a $10,-000 deposit and Cook accepted it. Nowhere does it appear that the parties actually anticipated a breach of contract or that they negotiated for an acceptable measure of possible damages in the event of a breach. Consequently, we conclude that the $10,000 deposit as earnest money was not intended to be a liquidated damages provision of the contract. The provision being void as a penalty, Cook cannot, under this theory, validly retain the $10,000 earnest money paid to him by Brown.

This finding does not, however, preclude Cook from recovering damages for Brown’s breach of contract. The trial court did, in fact, assess damages in the amount of $5,000 in favor of Cook for Brown’s breach of the contract, but we are unable to find any evidence to support an award of $5,000 for the contract breach. Consequently, this aspect of the trial court’s judgment is reversed.

On his cross-appeal Brown argues that Cook failed to obtain the necessary rezoning within ninety days as provided in the contract. Cook proceeded as rapidly as possible to obtain the rezoning. On June 1, 1979 the rezoning was approved. Brown, however, claims that the rezoning was not complete because a covenant for site grading and drainage had to be approved. This argument is without merit. It is clear that Cook was not in a position to file these covenants. This was a matter for Brown’s architects. As for Cook, he had met his obligation as far as he could. The rezoning was approved, and it necessarily follows that Brown’s architects would have developed the necessary drainage plans had Brown wished to go through with the purchase of the property. Brown, however, had repudiated the contract on April 12, 1979. He said that he no longer wanted to buy the property and asked Cook for the return of the earnest money. Cook declined to return the earnest money and proceeded to complete the rezoning. Cook still proceeded to obtain the rezoning even after Brown had expressed his intention to rescind. Brown cannot now contend that Cook violated the rezoning provision when he had already told Cook that he did not intend to purchase the property and thus breached the agreement. This aspect of the trial court’s judgment is affirmed.

That aspect of the trial court’s judgment awarding Cook $5,000 as damages for the breach of the agreement is reversed, and the cause is remanded to allow the parties to present evidence as to the amount of damages, if any, due Cook for Brown’s breach of the sales agreement.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


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    Stanley JONES v. ALABAMA STATE TENURE COMMISSION, et al.
    Civ. 2930.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.

      Joseph E. Carr; IV, Mobile, for appellant.
    Frank G. Taylor, Sp. Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

This is a teacher tenure case.

On February 20,1980 the Board of School Commissioners of Mobile County notified Stanley Jones, a tenured teacher, that his teaching contract was to be terminated for insubordination. The Board held a hearing on April 24, 1980 and unanimously agreed to terminate Jones’s contract.

The facts of this case have been disputed but arise out of several events. Stanley Jones was employed as a guidance counselor at St. Elmo Middle School. He had been employed as a teacher in Mobile County for five years.

The major dispute in this case arises out of Jones’s failure to perform an assigned duty in October 1979. This duty involved supervising children on one section of the campus before school opened in the morning. William Bracy, the school principal, testified that these duty assignments were rotated among all of the teachers. Jones, however, felt that guidance counselors were excluded from these duties. On October 15, 1979 Bracy formally reprimanded Jones for Jones’s failure to perform his duty assignment. Jones filed a grievance with the Central Appeals Committee concerning this reprimand. Jones won this grievance because of a procedural error.

The evidence further indicates that a conflict existed between Jones and the assistant principal, Oscar Stevenson. Stevenson testified that Jones refused to obey directions. Stevenson related several incidents occurring between him and Jones. One of these incidents related to Jones raising his voice to a parent. Other incidents occurred when Stevenson ordered students to class, and Jones detained these students to talk. There were also incidents where Jones used profanity while talking to Stevenson, and also incidents where Jones had stuck his finger in Stevenson’s face.

Jones contested many of the incidents related by Stevenson. Jones claimed that it was Stevenson who had caused these altercations. Jones also presented testimony that he had never wilfully failed to obey a directive. He stated that he had talked to Bracy and felt that Bracy had relieved him of his duty assignment.

Another reason given for Jones’s dismissal was his failure to attend a meeting with Bracy, Stevenson, and the area supervisor. Jones testified that he did not go due to the fact that he was not allowed the right to have counsel present or to call witnesses. Jones later refused to attend another meeting with three area supervisors.

Jones appealed his contract cancellation to the Alabama State Tenure Commission. The Commission affirmed the action of the Board. Jones appealed to the Circuit Court of Mobile County. The circuit court affirmed the judgment of the Tenure Commission. As a result, Jones has appealed to this court.

Jones has raised three major issues for our consideration. First he contends that the evidence was not sufficient to warrant dismissal on the grounds of insubordination. Second he argues that his right to due process was violated because of a hearing held before what is known as the Central Appeals Committee. This committee held a hearing and recommended to the superintendent that Jones’s contract be cancelled. Jones argues that the Board wrongfully relied on this preliminary proceeding. Finally, Jones contends that the action by the Board has violated his constitutional rights to free speech and the right to petition the government for redress of grievances.

Our scope of review is extremely limited in teacher tenure cases. The Tenure Commission will not be reversed on appeal unless its judgment is against the preponderance- of the evidence and the overwhelming weight of. the evidence. Sumter County Board of Education v. Alabama State Tenure Commission, 352 So.2d 1137 (Ala.1977).

In reviewing the record we find sufficient evidence to support the Commission. Jones admitted that he had refused to perform his scheduled duty in October. There is also other evidence in the record to support a finding that Jones had at other times refused to perform duties assigned by the assistant principal.

Jones, however, argues that none of these acts were sufficient to warrant dismissal on the grounds of insubordination. Insubordination has been defined by our courts as the wilful refusal of a teacher to obey an order of a superior officer so long as that order is reasonably related to the duties of the teacher. Heath v. Alabama State Tenure Commission, 401 So.2d 68 (Ala.Civ.App.1981); Howell v. Alabama State Tenure Commission, 402 So.2d 1041 (Ala.Civ.App. 1981). In examining the evidence, we find testimony relating to several events wherein Jones refused to obey directives given him by the assistant principal. In Heath, supra, we upheld the cancellation of a teacher’s contract on the grounds of insubordination when the teacher had failed to obey an order given by the assistant principal. In the present case, considering our limited scope of review, we can find sufficient evidence to support a finding of insubordination on the part of Jones for his failure to obey several orders given by the assistant principal.

Jones has also raised several questions concerning the procedure followed by the Board in cancelling his contract. He claims that the notice of cancellation he received was defective because it stated that he would have to show why his contract should not be terminated. Jones claims that this notice wrongfully placed the burden of proof on him. We, however, cannot find that the notice was so defective as to warrant reversal.

Code 1975, § 16-24-9 provides that notice of a proposed cancellation be given the teacher. The notice must state in detail the reasons for the proposed cancellation and must give the teacher an opportunity to appear before the Board. All of these requirements were met in the present case. Jones had a full hearing before the Board. Although the notice of contract cancellation possibly misplaces the burden of proof, the statutory duty placed on the Board of Education to prove the charges it has made against a teacher cannot be changed absent pertinent legislation. No reversible error here.

Jones also argues that the Board wrongfully relied on proceedings by the Central Appeals Committee. This committee was set up by the Board to resolve conflicts between the teacher and principal prior to a recommendation by the superintendent that the contract be cancelled. Any recommendations proposed by this committee are submitted to the superintendent. The superintendent is not bound by the committee’s recommendations; he may agree or disagree with those recommendations. The authority to recommend dismissal to the Board of Education rests with the superintendent, not the Central Appeals Committee. See Code 1975, § 16-9-23.

In the present case the committee recommended to the superintendent that Jones’s contract be cancelled. The superintendent agreed with this recommendation and thus asked the Board to cancel Jones’s contract. The Board, in full compliance with Code 1975, § 16-24-9, notified Jones that his contract would be cancelled, and set out the reasons for such cancellation. The Board also fully complied with § 16-24-9 by giving Jones a hearing. At the hearing the Board’s attorney fully explained to the Board that no weight could be given to the proceedings by the committee, and that they were limited to the evidence presented at such hearing. The Board then held a full evidentiary hearing, and at the end of the hearing voted to cancel Jones’s contract. Clearly, the committee has no statutory authority and thus can only make recommendations to the superintendent. This they did. The superintendent is at liberty to accept or reject such recommendations. In the instant case he agreed with the recommendation. Based on these events, we cannot find that there has been a violation of Jones’s rights.

By the above we should not necessarily be understood as approving or disapproving the Central Appeals Committee’s creation or function; only that in this instance their action does not create any reversible error.

Finally Jones contends that his dismissal violated his constitutional rights. He claims that his contract was terminated simply because he had properly filed a grievance against his principal. However, the record indicates that Jones’s contract was cancelled for insubordination and not because he had filed a grievance. There is sufficient evidence in the record to support his dismissal. We can find no violation of his constitutional rights.

Having found no error, the judgment is affirmed.

AFFIRMED.

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


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    Henry TINSLEY v. Lucy TALBOTT.
    Civ. 2940-X.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.

      Michael J. Bellamy, Tuskegee, for appellant.
    T. Dudley Perry, Tuskegee, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal concerns a trial court’s right on its own initiative to order a remittitur, and the procedure to be followed therein.

The jury returned its verdict in favor of the plaintiff, Mr. Tinsley, for $9,000. Ex mero motu, the trial court immediately found that the verdict was excessive and was not supported by the weight of the evidence. The court then ordered that the amount of the verdict be remitted to $2,000. That judgment was amended on the following day so as to provide a judgment for the plaintiff in the amount of $2,565.95.

Rule 59(d), A.R.C.P., authorizes a trial court on its own initiative to order a new trial, within thirty days of the entry of the judgment, for any reason for which it might have granted a new trial on motion of a party, with the court being required to specify in its order its reasons for such action. In construing rule 59(d) and 59(f) together, a trial court, on that court’s own initiative, may order a remittitur as a condition to thé court’s not granting a new trial. However, in such event, the plaintiff must be given the choice either of accepting the remittitur or of suffering a new trial. In no event can the trial court enter a judgment for an amount less than that awarded by the jury unless the plaintiff consents to a remittitur under rule 59(f). McCormick v. Alabama Power Company, 293 Ala. 481, 306 So.2d 233 (1975).

Here, the order which reduced the amount awarded by the jury was entered without the plaintiff’s consent. “The law is clear in Alabama that the trial court cannot direct a remittitur of damages against the plaintiff’s will; such an order is void. . . . To arbitrarily reduce the amount of damages deprives the plaintiff of his constitutional right to a jury. . . . ” B & M Homes, Inc. v. Hogan, 347 So.2d 1331, 1332 (Ala.1977), appeal after remand, 376 So.2d 667 (Ala.1979).

Since we must reverse and remand this ease on that dispositive ground, we do not address any other issue which has been raised either by the appeal or through the defendant’s cross-appeal, for to rule upon such questions might prejudice the rights of either, or both, of the parties in further or additional proceedings or hearings in the trial court relative to whether a new trial, or other relief, should be granted or denied either with or without a remittitur, if appropriate. In many instances, such questions involve the exercise of judicial discretion, and we do not desire to influence any future discretionary decision which the trial court might be called upon to make.

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

REVERSED AND REMANDED.

All the Judges concur.


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    SUNSHINE HOMES and Vernon Holloway v. David HOGAN and Ann Hogan.
    Civ. 2950.
    Court of Civil Appeals of Alabama.
    December 9, 1981.

      Mary Anne Westbrook of Barnett & Young, Florence, for appellants.
    W. H. Rogers, Moulton, for appellees.
   WRIGHT, Presiding Judge.

This is an action for damages arising from a collision of automobiles. The case was tried to the court without a jury. From a judgment of $3,000 rendered in favor of plaintiffs, defendants appeal.

The issue is whether the trial court’s judgment was excessive as against the great weight of the evidence. We find no error and affirm.

The record reveals the following pertinent facts: On September 20, 1980, the Hogans’ 1976 Seville Cadillac was parked near the intersection of Highway 24 and Highway 33 in Moulton, Alabama. Mr. Holloway, an employee of Sunshine Homes, was driving a tractor-trailer truck pulling a mobile home. Upon turning at the intersection the back end of the mobile home hit the Hogans’ automobile, causing damage to the left rear area. Mr. Hogan testified that in his opinion the fair market value of the car prior to September 20,1980, was $9,000. His opinion as to its fair market value after the collision was $6,000. Mr. Hogan received estimates on the cost of repair of $383.76 and $416.81 from two automobile dealers. Neither dealer, however, could guarantee an exact color match or that there would not be telltale signs of a wrecked automobile. Mr. Hogan further testified that the drastic changes in the design of the Seville model in 1979 increased the value of the 1976 model.

Mr. Kenneth Wayne Neal, an appraiser with Crawford and Company Insurance Adjusters, testified for Sunshine Homes and Mr. Holloway. His estimate of the value of the automobile in its damaged condition was the same as Mr. Hogan’s estimate, $6,000. Mr. Neal’s estimate of the fair market value prior to the collision, however, was $6,550. He testified that this figure was arrived at by getting estimates over the telephone from three local dealers and by reference to the value assigned that make and model by the NADA Retail Book. Mr. Neal’s estimate as to the cost of repair was $358.30. He further testified that once an automobile is wrecked its value depreciates.

It is well settled in this state that the measure of damages for injury to personal property is generally the difference in the reasonable market value immediately before and after the injury. Crump v. Geer Brothers, Inc., 336 So.2d 1091 (Ala.1976); Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960). The owner of property is qualified to state his opinion as to value before and after injury. Chambers v. Burgess, 50 Ala.App. 591, 281 So.2d 643 (1972); Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688 (1971). Evidence of the cost of repairs is a factor which the trier of fact is authorized to consider in determining the true measure of damages. Arrick v. Fanning, 35 Ala. App. 409, 47 So.2d 708 (1950). Additionally, whether it is possible to restore the automobile, through repair, to as good condition as before the injury, is relevant to the question of damages. Donaldson v. Foreman, 213 Ala. 232, 104 So. 406 (1925). The cost of repairs alone, however, is not the measure of damages. Winn-Dixie Montgomery, Inc. v. Holt, 57 Ala.App. 499, 329 So.2d 556 (1976).

On a question of fact, the finding of the trial court is presumed to be correct. Adams Supply Company v. United States Fidelity & Guaranty Company, 269 Ala. 171, 111 So.2d 906 (1959). Having the standing of a jury verdict, such finding will not be set aside on appeal unless, after allowing all reasonable inferences in favor of its correctness, there exists in the record such a preponderance of evidence against it that this court must find it palpably wrong and unjust. Ingram v. Bank of Brewton, 340 So.2d 815 (Ala.Civ.App.1976). In the record before us, there was competent evidence to support a judgment of $3,000 in favor of the Hogans.

Finding no error, this cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.