author: BLOODWORTH, Justice.

text:
    Ex parte CITY CAR SALES, INC. In re CITY CAR SALES, INC. v. Patricia A. McALPIN v. AMERICAN INSURANCE COMPANY.
    79-272.
    Supreme Court of Alabama.
    Feb. 29, 1980.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Zwetko W. ZEKOFF v. Judy J. FRANKLIN, Individually, and d/b/a Ponderosa Command Dogs.
    Civ. 1982.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1979.
    Rehearing Denied Jan. 2, 1980.

      Fred Blanton, Birmingham, for appellant.
    Gerald D. Colvin, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This is a fraud case.

The jury returned a verdict in favor of the plaintiff in the amount of $9,500. Judgment was entered for that amount. The fraud arose in connection with a lease entered into by the plaintiff and the defendant. The trial court denied the defendant’s motion for a new trial and the defendant appeals.

The dispositive issue on appeal is whether there is evidence to support a finding of fraud and the amount of damages. Additionally, the defendant, through able counsel on appeal, argues that the trial court erred regarding certain evidentiary rulings. We find no error requiring reversal.

Viewing the record with the attendant presumption, this court finds the following:

The plaintiff began a dog obedience business at her residence in St. Clair County in January of 1976. The zoning authorities in the City of Moody in St. Clair County informed the plaintiff that she could not continue to conduct her business because of zoning restrictions. After an unsuccessful attempt to have the property rezoned, the plaintiff began efforts to locate a suitable location for her business elsewhere.

Plaintiff contacted the defendant regarding a building owned by the defendant in Jefferson County. There was evidence that the plaintiff informed the defendant on several occasions of the type of business to be conducted in the building. Likewise, there was evidence that the defendant told the plaintiff that the property was so zoned that there was no problem with using the building as a dog obedience school. Additionally, there was evidence that defendant told the plaintiff that the building was in compliance with the county electrical code.

In June of 1976, a formal lease was entered into by the parties under which the plaintiff agreed to pay rent of $175 per month. The plaintiff occupied the premises on July 23,1976, and began the operation of her business. The plaintiff made a number of repairs to the premises necessary for the conduct of the business.

In August of 1976, the Jefferson County Zoning Commission notified the plaintiff that the operation of her business was in violation of zoning regulations. The plaintiff’s business was closed because of the nonconformity of the zoning classification until the property was rezoned on January 4, 1977.

Prior to this rezoning, on December 2, 1976, the electrical power was cut off because the wiring was found to be in violation of the Jefferson County Electrical Code.

Thereafter, as indicated above, the plaintiff brought an action for fraudulent misrepresentation and claimed compensatory and punitive damages. As noted, the dis-positive issue is whether there is evidence to support a verdict of fraudulent misrepresentation and whether the evidence supports the amount of the award.

Our review of the record reveals there was sufficient evidence from which the jury could have concluded that the defendant in fact willfully or recklessly made a false representation concerning a material existing fact upon which the plaintiff relied and was proximately damaged.

There was evidence that the defendant had actual knowledge that his property was not zoned for the type of business in which the plaintiff was engaged and actual knowledge that the electrical wiring was not in conformity with the Jefferson County Electrical Code.

Specifically, the plaintiff, her husband, and plaintiff’s employee testified that the defendant told them that the building was zoned commercial and that there was no zoning problem with the type of business the plaintiff conducted. A zoning inspector testified that he told the defendant prior to the transaction with plaintiff that the property was zoned only for use as an establishment for on-premise consumption of alcoholic beverages. A former lessee of the property also testified that the defendant knew the property was zoned for the use of on-premise consumption of alcohol.

The plaintiff and her husband testified that the defendant told them the electrical wiring was in good condition and in compliance with the electrical code. A county inspector testified that he advised the defendant, prior to the instant transaction, that certain electrical wiring work would have to be done to bring the wiring into conformity with the Jefferson County Building Code.

Additionally, there was evidence that the plaintiff, relying on the false representations, as indicated above, was induced into entering into a lease of this property and expended sums of money in beginning the business. Thus, the jury could well have concluded that the plaintiff was damaged as a proximate cause of the defendant’s false representations. In view of the above, there was sufficient evidence to support the verdict based on fraud. International Resorts, Inc. v. Lambert, Ala., 350 So.2d 391 (1977).

The defendant also contends that damages found by the jury were excessive. The jury was charged on both compensatory and punitive damages and rendered a verdict for the plaintiff in the amount of $9,500.

The plaintiff showed expenditures for rent paid, repair work done on the property and loss from certain dogs which died after the electricity was turned off. These items of damages totalled approximately $3,000 for which compensatory damages were recoverable. Jackson Co. v. Faulkner, 55 Ala.App. 353, 315 So.2d 591 (1975).

Turning to the question of punitive damages, we note that in misrepresentation cases, punitive damages may be awarded where the fraud is gross, oppressive, or aggravated. Proctor Agency, Inc. v. Anderson, Ala., 358 So.2d 164 (1978).

Gross fraud is committed where the evidence tends to establish an intent to deceive and defraud. Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

In the instant case, the jury could have concluded from the evidence that the defendant willfully or recklessly intended to deceive and defraud the plaintiff. The evidence showed that the defendant, prior to leasing the building to the plaintiff, knew that the property was zoned only for an on-premise liquor establishment. With this knowledge, the defendant told the plaintiff that there would be no zoning problem with the plaintiff’s business. There was likewise evidence that a county inspector told the defendant that the wiring was not in compliance with the building code. Knowing this, the defendant told the plaintiff that the wiring was in good condition.

In view of the above, the award of punitive damages was not reversible error where compensatory damages were approximately $3,000 and the total verdict was $9,500. Randall v. Banzhoff, Ala., 375 So.2d 445 (1979).

We now direct our attention to the evi-dentiary aspects of the appeal.

There was some evidence introduced over objection regarding lost profits experienced by the plaintiff as a result of the defendant’s actions.

The defendant argues that any damages awarded for lost profits would be highly speculative and conjectural because the plaintiff’s business was not operational long enough to establish a basis upon which to show lost profits. There was testimony that the plaintiff’s gross proceeds for the short period of time she operated her business in the defendant’s building was approximately $5,600. The plaintiff also testified that she was operating at full capacity before being shut down and that in her best judgment she would have made a net profit of approximately $4,000 per month.

Since we find that the evidence supports some compensatory damages, as shown above, and punitive damages to the extent of the verdict, we need not reach this issue. Conceding, without so finding, that the trial court may have erred in allowing the evidence of lost profits, it was harmless error since there was ample unrelated evidence to support the jury verdict. Knighten v. Davis, Ala., 358 So.2d 1022 (1978); Industrial Maintenance Cleaning Contractors, Inc. v. Sales Consultants of New Orleans, Inc., Ala.Civ.App., 342 So.2d 377 (1977).

Next, the defendant urges error in that the trial court allowed a prior lessee of the defendant to testify. Specifically, the defendant argues that the testimony of a prior lessee regarding a prior leasing arrangement is not material or relevant to any issue in the instant case. However, clearly the learned and distinguished trial judge allowed this testimony to show that the defendant had knowledge of the zoning of the property and so instructed the jury as to this limited purpose.

The determination of the relevance or materiality of evidence is largely within the discretion of the trial court. Gulf Fishing & Boating Club, Inc. v. Bender, Ala.Civ.App., 370 So.2d 1026 (1979). In view of the trial court’s limiting instruction and the large measure of discretion afforded the trial court, we do not find error in the admission of the evidence complained of.

Next, the defendant contends error in the plaintiff testifying that she intended to keep a copy of a list where the defendant could not “swipe it” from her. We note that a trial court will not be put in error for admitting testimony unless objection was made to the question when asked or unless the answer was not responsive and a motion was made to exclude it. Seaboard Air Line Ry. Co. v. Mobley, 194 Ala. 211, 69 So. 614 (1915); State Farm Mut. Auto Ins. Co. v. Barrow, 46 Ala.App. 392, 243 So.2d 376 (1971). Here, there was no objection to the question when asked, nor a motion to strike or exclude the answer; hence, no error.

The case is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex parte Zwetko W. ZEKOFF. In re Zwetko W. ZEKOFF v. Judy J. FRANKLIN, Individually, and d/b/a Ponderosa Command Dogs.
    79-305.
    Supreme Court of Alabama.
    Feb. 29, 1980.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Bill HAAS v. MADISON COUNTY BOARD OF EDUCATION and Alabama State Tenure Commission.
    Civ. 2113 and Civ. 2113-X.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.
    Rehearing Denied Jan. 30, 1980.

      Truman Hobbs, Montgomery, and Joseph Laurie Battle, Huntsville, for appellant-cross appellee Bill Haas.
    Ralph H. Ford, and Elbert H. Parsons, Jr., for Ford, Caldwell, Ford & Payne, Huntsville, for appellee Alabama State Tenure Com’n and cross-appellant Madison County Bd. of Ed.
   HOLMES, Judge.

This is a teacher tenure case.

The dispositive issue on appeal is whether the teacher has continuing service status as a principal. Put another way, does the teacher have tenure as a principal. We find that the teacher is a tenured principal.

Two cases in this court involving the teacher have been consolidated for purposes of appeal. In one case, the teacher contends the school board and the Tenure Commission erred in failing to give the teacher a hearing prior to changing his status from principal to teacher. This appeal is Haas v. Madison County Board of Education and The Alabama State Tenure Commission. In the other case, the board of education sought a declaratory judgment to determine whether or not the teacher had tenure as a principal. This case is styled for purposes of appeal as Madison County Board of Education v. Haas.

The trial court determined that the teacher did not have continuing service status as a principal. The trial court further found, however, that the teacher had not been properly and timely notified that he was not to be assigned as a principal for the 1978-79 school year. In view of the trial court’s finding that there was not timely notification, the trial court decreed that the teacher must be assigned as principal for the remainder of the school year and be paid, etc., for the entire year.

The teacher appeals from the decree finding the teacher did not have tenure and the school board appeals from the decision that the school board failed to properly notify the teacher.

The record reveals the following:

The teacher, who was already tenured as a teacher, served three continuous years as a principal with the Madison County School system. At the end of the third year an agreement was entered into between the Madison County Board of Education and the teacher. Under this agreement, the teacher was to begin a new three year probationary term as principal. The agreement further stipulated that the teacher would obtain continuing service status (tenure) as a principal only if he was re-employed as a principal at the end of this new probationary period.

At the end of the second year of the “probationary period,” after the teacher had served five consecutive years as a principal, the board made a decision to terminate the teacher’s employment as a principal and to assign him to a teaching position.

On May 31, 1978, the last day of the school term, the school board attempted to notify the teacher that he would not be re-employed as principal. However, such written notice was not received by the teacher until June, 1, 1978.

The teacher testified that he was under medication for a medical problem and was asleep at his apartment during the time the board was attempting to serve him on May 31. The teacher contends that he did not conceal himself to avoid service and did not in any way act improperly. The board disputed this, claiming the teacher deliberately avoided the notice.

The crucial and determinative issue before us is whether the teacher had acquired tenure as a principal. Clearly, if not for the agreement, he would have attained such status upon his re-employment for a fourth consecutive year. § 16-24-2, Code of Ala. 1975. Therefore, we must determine the authority of the board to enter into such a contract and the power of the teacher to waive his right to tenure in such a manner.

At the outset, we note both that the principal purpose of the Teacher Tenure Act, §§ 16-24-1, et seq., is to- secure permanency in the teaching force and that it is designed so that teachers are its primary intended beneficiaries. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). Being remedial in nature, the Act is to be liberally construed to serve this intent. State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700 (1975). Furthermore, the terms and provisions of the Act are to be read into all contracts entered into by school boards and teachers. Clark v. Beverly, 257 Ala. 484, 59 So.2d 810 (1952).

The teacher argues that these considerations can only lead to the conclusion that his agreement with the board was ineffectual as a waiver of his right to tenure upon employment as a principal for a fourth consecutive year.

We agree and would further hold that the board exceeded its authority in joining in the agreement. We so conclude because although there are no Alabama cases on point, we find that the better reasoned decisions of other jurisdictions hold such attempted waivers of the protection afforded by teacher tenure laws as ineffectual on public policy grounds. Similarly, these decisions hold that school boards are powerless to modify the terms of the applicable tenure laws.

Thus, in Carlson v. School District No. 6 of Maricopa County, 12 Ariz.App. 179, 468 P.2d 944 (1970), it was held that the applicable tenure act set forth a statutory scheme designed to limit the power of a school board to contract with its teachers for the following year. The court there concluded that the terms of any contract under the act are not to be confined to the provisions within the written document itself, but must include any pertinent statutory provisions in effect at the time the agreement was entered into.

The pertinent statutory provisions in the case at bar clearly contemplate but one way for a teacher (or principal) to gain tenure. Section 16-24-2(a) mandates that upon reemployment for a fourth year, after three years consecutive service, the teacher “shall obtain continuing service status.” (Emphasis supplied.)

Likewise, in Marzec v. Fremont County, School District No. 2, 142 Colo. 83, 349 P.2d 699 (1960), the court said that where the length of the probationary period is fixed by the legislature, a school board is without authority to change it by contract or any other means.

There, as in Alabama, the statute called for a three year probationary period and granted tenure upon re-employment for a fourth year. The court concluded that the legislature had deemed three years to be a reasonable evaluation period for purposes of appraising the teacher’s performance. The legislature having spoken, the court held that this period could not be shortened or waived by the board.

Logic compels the like conclusion that this period cannot be lengthened or waived by the teacher and/or the board. Once three consecutive years of service have been rendered, the teacher is to be either terminated or re-employed, thus gaining tenure. These are the only alternatives contemplated by our tenure law. They are therefore the only alternatives open to the involved parties.

Furthermore, in Boyd v. Collins, 11 N.Y.2d 228, 228 N.Y.S.2d 228, 182 N.E.2d 610 (1962), the court refused to validate the purported waiver by a tenured teacher of her right to a hearing before dismissal. In holding that statutory tenure terms can be changed only by the legislature and never by a board of education, the court said that to sanction a waiver of these terms would violate the spirit and public purpose of the act which was to protect the school system by giving permanency to the jobs of experienced teachers. As indicated, our tenure law shares this purpose and philosophy. State Tenure Commission v. Madison County Board of Education, supra.

We are not unaware that the New York court has recently modified the rule in Boyd so that it no longer calls for an absolute rejection of any attempted waiver. Abramovich v. Board of Education, 46 N.Y.2d 450, 414 N.Y.S.2d 109, 386 N.E.2d 1077 (1979). However, we conclude that, under the facts at bar, wherein the parties attempted to double the statutory probationary period, any attempted waiver must be rejected on public policy grounds.

In essence, the board here did not feel it wise to re-employ the principal for a fourth year and thus allow him to gain tenure as a principal. Desiring to “give him another chance,” the agreement was worked out and entered into. By this action, no matter how well intentioned, the board and the teacher attempted to create their own public policy completely apart from the Teacher Tenure Act. They thus attempted to circumvent the purpose of the law. This cannot be allowed. Sherman v. Board of Trustees of Siskiyou Union High School, 9 Cal. App.2d 262, 49 P.2d 350 (Calif.1935).

In view of the above, since the teacher has served the requisite four consecutive years, it necessarily follows that he is a tenured principal.

We now turn to the board’s contention that it made every possible effort to serve notice on the teacher of its intention to terminate him as a principal as required by the Teacher Tenure Act. There was evidence that the board attempted to reach the teacher personally at his school and at his apartment on numerous occasions on the day in question. There was also evidence that the board attempted to discover the teacher’s whereabouts by calling his doctor and others.

The board further contends that the conduct of the teacher was tantamount to concealment and that the board was prevented from serving the teacher because of the teacher’s actions. The board would have this court hold as a matter of law that the actions of the teacher excused the statutory notice condition such that the teacher was not deemed re-employed for the succeeding school year as principal.

Section 16-24-12, Code of Ala.1975, in pertinent part states as follows:

Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given to said teacher on or before the last day of the term of the school in which the teacher is employed

In order to comply with § 16-24-12, the board must show that notice was given to the teacher before the end of the school term. Strickland v. Berger, Ala., 336 So.2d 176 (1976).

In the instant case, where there were irreconcilable conflicts in the evidence, the function of believing one party and disbelieving the other was that of the trier of fact. Greater Friendship A.M.E. Church v. Spann, Ala., 336 So.2d 1087 (1976).

This court will not weigh evidence as to any fact found by the trial court, but looks only to see if there is any evidence to sustain the findings of the trial court. LaPoint v. Barton, 57 Ala.App. 352, 328 So.2d 605 (1976).

In this instance, the trial court could have concluded from the evidence that the teacher was not notified as required by § 16-24-12, based upon the testimony of the teacher that he was ill and asleep during the period in which the board attempted to serve notice and the fact that written notice was not received by the teacher until June 1, 1978.

The trial court’s determination that the teacher was not properly notified by the board of its decision not to re-employ the teacher as principal is affirmed.

Summarily, in Madison County Board of Education v. Haas, the trial court’s holding that the teacher was not given timely notice is affirmed while we reverse its decision that the teacher was not a tenured principal.

In view of our decision that the teacher is a tenured principal, it necessarily follows that the case of Haas v. Alabama State Tenure Commission is due to be reversed. Having held that the teacher is tenured as a principal, clearly the board could not change his status without benefit of a hearing and compliance with other appropriate statutory provisions.

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

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


author: FAULKNER, Justice.

text:
    Ex parte MADISON COUNTY BOARD OF EDUCATION et al. In re Bill HAAS v. MADISON COUNTY BOARD OF EDUCATION and Alabama State Tenure Commission.
    No. 79-358.
    Supreme Court of Alabama.
    March 14, 1980.
    Ralph H. Ford and John 0. Cates, Huntsville, for petitioners.
    Joseph L. Battle, Huntsville, for respondent.
   FAULKNER, Justice.

Writ denied.

TORBERT, C. J.,. and ALMON, SHORES and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Caroline C. BLAIR v. YORK ENGINEERING CO., INC.
    Civ. 1976.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    Rehearing Denied Feb. 6, 1980.
    Sterling G. Culpepper, Jr., of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.

      G. Houston Howard, II, of Howard & Dunn, Wetumpka, for appellee.
   BRADLEY, Judge.

This is an appeal by the defendant, Caroline C. Blair, from a jury verdict in favor of the plaintiff, York Engineering Company, for money due on account and for work and labor performed in the preparation of a land survey. We affirm.

The plaintiff filed the complaint on March 22,1977. The trial court set the case for trial, but it was continued at the request of the defendant. The case was again set for trial on September 19, 1978. The trial was commenced on this date; however, a mistrial was declared because a juror became ill. On January 20, 1979 the court again set the case for trial on March 12, 1979.

On March 2, 1979 ten days prior to the trial, the defendant learned that she did not have an attorney for the trial of the present case. The defendant had a second lawsuit pending before the trial court and was under the erroneous impression that the same attorney represented her in both actions. The defendant’s attorney in the other lawsuit was unaware of the present case and had previously planned to be out of town on the trial date. As pointed out by counsel for defendant in oral argument, the situation was not one where the defendant’s attorney was out of town; the defendant did not have an attorney for the trial of her case.

The defendant was apparently unable to obtain counsel prior to trial despite ten days’ notice. As a result the defendant appeared in court on the day of the trial and asked the trial court for a continuance, citing the absence of an attorney. The trial court refused the defendant’s request for a continuance, noting that the case had previously been continued once at the defendant’s request. The case was tried with the defendant acting as her own attorney. The jury returned a verdict for the plaintiff and this appeal followed.

• The defendant’s first contention is that the trial court erred in failing to instruct the jury on the defenses raised by the pleadings and evidence. The plaintiff correctly points out in his brief that to preserve errors in the trial court’s jury instruction, one must comply with Rule 51, ARCP, which provides that:

No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.

The defendant failed to file any written instructions and made no objection to the charges given by the court, oral or written. Therefore any error connected with the trial court’s charges must be deemed waived. Windsor v. General Motors Acceptance Corporation, 295 Ala. 80, 323 So.2d 350 (1975).

The defendant also argues that she was not apprised of her right to challenge the charges given and was not given the opportunity to object to the charges or submit charges of her own.

First, we would note that the Alabama Rules of Civil Procedure are to be applied impartially and are binding both on members of the bar and parties proceeding pro se. Hubbard v. Montgomery, Ala., 372 So.2d 315 (1979).

Secondly, since no objection was made to the alleged denial of the opportunity to object to the charges or submit charges, no error was preserved in connection with the trial court’s actions concerning the jury instructions. Elliot v. Elliot, Ala., 372 So.2d 846 (1979).

The second contention urged upon this court by the defendant is that the trial court abused its discretion in denying the defendant’s request for a continuance. The grant or refusal of a continuance is within the discretion of the trial court and such ruling will be revised on appeal only where it is shown that such discretion has been obviously and palpably abused. Warwick v. Warwick, Ala.Civ.App., 372 So.2d 1108 (1979).

Under the facts related above, we find no obvious and palpable abuse of discretion in the trial court’s refusal to grant the defendant a second continuance.

The defendant’s final contention is that the trial court erred in refusing to permit her to present evidence regarding the accuracy of the survey prepared by the plaintiff. The defendant has cited this court no authority for such a contention and has failed to allege any specific error in the trial court’s rulings on the evidence. An appellant’s contentions must be supported by authority and the reasons for the contentions. Mayhall v. Swafford, 55 Ala.App. 709, 318 So.2d 736 (1975); Thoman Engineers, Inc. v. McDonald, 57 Ala.App. 287, 328 So.2d 293 (1976). Rule 28(a)(5), ARAP. However, we have considered the defendant’s final contention despite its lack of specificity and conclude that the record indicates that the trial court committed no reversible error in its rulings on the evidence. Therefore this cause is due to be affirmed.

AFFIRMED.

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


text:
    Joyce Ann LINDSEY v. Charles Kenneth LINDSEY.
    Civ. 1980.
    Court of Civil Appeals of Alabama.
    Jan. 23, 1980.
    Bingham D. Edwards, Decatur, for appellant.
    Dan F. Nelson of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellee.
   EDWARD H. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

When the parties married in 1966 the appellant wife earned $130 per week and the husband $200. Through a reduction in force they lost their jobs in 1969, whereupon the husband operated a service station for two years and then operated a used car lot until 1973 when he sold the lot and commenced farming and selling used cars. His latest endeavors are speculation in real estate and the construction and sale of houses. Additionally, there was evidence that the husband earned a considerable amount of money during the years through gambling, as to which he had recently entered a plea of guilt, receiving a probationary sentence therefor.

The wife, after being laid off, obtained other employment at the rate of $160 per week, was then unemployed for a year, and subsequently accepted a position as manager of a water system with an annual salary of $8,000. She quit her job in 1977 and has not worked since.

The wife’s four children by a prior marriage lived with the parties until they became economically emancipated. The husband, in addition to an unlimited grocery account, gave to the wife from $8,000 to $14,000 each year to meet the needs of the family. The natural father of her four children did not contribute any child support during the marriage of these parties. The wife used her earnings without any instructions or limitations from the husband.

In March 1979, the appellant left the home of the parties, filing her divorce complaint on March 26 seeking, among other relief, a divorce, alimony and an equal division of property.

The case was set on May 18, 1979, to determine support for the wife during the pendency of the case. When the matter came on to be heard, the husband objected to any award of alimony, permanent or temporary, to the wife on the basis of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). The trial court sustained the appellee’s objection to alimony, whereupon the parties agreed to proceed with the trial upon its merits.

The trial occurred on May 18 and May 25, 1979. The transcript is 479 pages in length. Upon completion of the testimony, the trial judge took the case under advisement and rendered judgment on June 5, 1979 granting a divorce because of incompatibility of temperament and divided the property as follows:

The parties jointly own a great deal of property both real and personal. The Court is of the opinion Mrs. Lindsey is entitled to the following pieces of property as property settlement: (a) the residence at Mud Tavern (b) the house and lot at 903 3rd Avenue S.E., Decatur. Mr. Lindsey is entitled to the balance of the real estate. Each party is ordered to execute deeds to the other to effectuate the above.
Mrs. Lindsey is entitled to the furniture, furnishings and all appliances located at the parties’ residence. Mr. Lindsey is entitled to all the other personal property.
Mr. Lindsey shall be responsible for all the debts created by the parties prior to their separation with the exception of the mortgage on the family resident. Mrs. Lindsey shall be responsible for that debt.

No post judgment motions were filed. The wife appealed and complains that the division of property was clearly and palpably erroneous and that she should have been awarded alimony in gross and periodic alimony.

At the time of the divorce judgment ten tracts of real estate were involved. The evidence varied greatly as to the total value of the real estate awarded to the husband and as to the amount of indebtedness which the husband was required to assume under the judgment.

The wife’s two parcels were valued at $49,000 with her mortgage indebtedness against the home being $13,000.

The home of the parties was purchased in 1971. A lot in Decatur was purchased in 1977 and the other eight parcels were bought in 1978 or 1979 when the wife was being totally supported by the husband. The appellant testified that the business ventures were entirely the husband’s, that he managed them, made whatever profits were realized and paid the bills and debts of his business. She testified that she advised him about some of the purchases of real estate and occasionally assisted him by running errands and making telephone calls on his behalf as to the land or houses under construction.

The purchase price for the eight parcels awarded to the husband was $195,000. The appellant contends that the equity of the parties in all real estate totaled between $318,000 and $429,600. The appellee contends that his net equity in his eight tracts is $111,000, not including interest on loans at rates up to 13% per annum. There is evidence to substantiate each such contention of each party with regard to the real estate and this same observation is equally valid with regard to the division of personal property.

Thus, questions of fact were involved in this case. The trial judge heard the evidence. There was evidence which, if believed, would not render the judge’s decision as being clearly and palpably wrong. Hence, we cannot disturb that portion of the trial court’s judgment previously copied herein. The division of property is a matter within the sound discretion of the trial judge, and he did not abuse his discretion. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979); Marks v. Marks, Ala.Civ.App., 365 So.2d 1231 (1979). We, therefore, affirm the judgment of the circuit court regarding a division of property.

On March 5, 1979, the Supreme Court of the United States in Orr, supra, declared certain Alabama Code sections as to alimony to be unconstitutional as being violative of the equal protection clause. The appellee’s objection to any award of alimony was sustained by the learned trial judge on May 18, 1979. The two day trial was concluded before this court, on May 30, 1979, neutrally extended alimony rights to husbands as well as wives, thus giving validity to such alimony statutes. Orr v. Orr, Ala.Civ.App., 374 So.2d 895 (1979). Six days later, on June 5,1979, the judgment in this case was rendered by the trial judge and alimony was not mentioned therein. The Supreme Court of Alabama denied cer-tiorari in the Orr case on August 17, 1979. Ex parte Orr, Ala., 374 So.2d 898 (1979).

In presently considering the alimony questions in this case with the benefit of hindsight, we hold that the circuit judge erred, in that he should have allowed evidence to be introduced, should have considered such evidence and then rendered a judgment as to whether or not the appellant wife was entitled to alimony in gross and/or periodic alimony. See, Hocutt v. Hocutt, Ala.Civ.App., 379 So.2d 619 [1980].

This case is reversed as to such alimony aspects and is remanded to the circuit court where it shall be decided whether or not the appellee shall be required to pay alimony in gross and/or periodic alimony to the appellant, and, if so, the amount or amounts thereof. Either or both of the parties shall have the right to submit additional relevant evidence upon such alimony issues since such matters were supposedly not litigated when the last trial occurred. Any pertinent evidence previously heard may be considered in reaching a decision upon such matters.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Harry J. COUGHLIN, Jr. v. Charles L. CAIN et al.
    Civ. 2082.
    Court of Civil Appeals of Alabama.
    Jan. 23, 1980.
    Rehearing Denied Feb. 27, 1980.
    Harry J. Coughlin, Jr., pro se.
    Anthony D. Snable, Pleasant Grove, for appellee Charles L. Cain.
    Robert C. Boyce, III, Bessemer, for appel-lees Henry Snider and Cecile M. Snider.
   WRIGHT, Presiding Judge.

Plaintiff appeals from the judgment.of the trial court in an action of ejectment.

Plaintiff brought an action of ejectment against defendant Cain.

After an ore tenus hearing the trial court rendered judgment in favor of the plaintiff for the subject property without damages and assessed costs against the plaintiff. Plaintiff appeals. The issue presented is whether it is error to assess cost against the successful party.

The judgment of the trial court recites that the defendants “denied that they were in possession of any or all of the said real estate and further they disclaimed any pos-sessory interest in the same.” That indicates there was a defense of disclaimer authorized by § 6-6 — 284, Code of Alabama (1975).

Plaintiff contends that defendants’ answer to his complaint amounted to pleading of the general issue; that by pleading the general issue defendants admitted possession of the property; that their disclaimer was not effective; and that proof of title entitled him to judgment including damages and costs. In support of this position he cites Jones v. Butler, 286 Ala. 69, 237 So.2d 460 (1970).

Assuming that defendants’ answer amounted to a pleading of the general issue, we do not find Jones v. Butler, supra, controlling. Under the well-established law of ejectment and the modern rules of procedure, the trial court is authorized to accept an amendment by defendants withdrawing the plea of the general issue and substituting a disclaimer. Oliver v. Oliver, 187 Ala. 340, 65 So. 373 (1914); Rule 15, ARCP. Under Rule 15 the amendment may be made at any time, and if evidence is presented or an issue raised without objection, the pleadings are deemed amended to conform to the evidence. The trial court did not err in accepting defendants’ disclaimer at trial.

Where the defendant in an ejectment action elects to disclaim possession pursuant to § 6-6-284, Code of Alabama (1975), the plaintiff may either take a judgment against him or take issue with his disclaimer. If the plaintiff takes issue with the disclaimer and succeeds in proving defendant’s possession, he recovers not only the land but damages and costs. Dennis v. Price, 148 Ala. 243, 41 So. 840 (1906). The judgment states plaintiff “took issue.” By taking issue with defendants’ disclaimer, plaintiff assumes the burden of showing that defendants were in possession of the subject land at the time the action was commenced. Smith v. Eudy, 216 Ala. 113, 112 So. 640 (1927). Failure to successfully contest a disclaimer renders plaintiff liable for costs. Webb v. Reynolds, 139 Ala. 398, 36 So. 15 (1904).

The court found that plaintiff failed to meet the burden of showing defendants’ possession of the property. We note that the record before this court does not include a transcript of the evidence heard by the trial court nor exhibits it may have had before it. “This court cannot determine that the judgment of a trial court is erroneous when the judgment states it was made after hearing and the matters heard are not part of the record before us.” Harvey v. State Department of Public Safety, 56 Ala.App. 660, 325 So.2d 170 (1975).

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Willa F. GREEN v. James N. GREEN.
    Civ. 2118.
    Court of Civil Appeals of Alabama.
    Jan. 30, 1980.

      James K. Davis, of Fite, Davis & Fite, Hamilton, for appellant.
    Jack B. McNamee, of James, Lowe & McNamee, Haleyville, for appellee.
   HOLMES, Judge.

This is a child support modification case. The mother appeals from the trial court’s action on her petition to modify child support payments. We affirm.

The dispositive issue and the only issue properly presented by the mother is whether the learned trial judge abused his discretion in failing to grant a more substantial increase in the father’s support obligations.

The record reveals the following relevant facts: The parties were divorced in 1971. The mother was given custody of their three minor children. The father was ordered to pay $25 per week child support. This was his only obligation regarding the children.

The mother, through able counsel, petitioned to modify on July 26, 1978. As grounds she alleged a material change in circumstances, citing inflation, the educational needs of the three teen-age children, and increased medical expenses. She further alleged that the father’s financial standing had greatly improved since the rendition of the divorce decree.

After several proceedings not germane to this appeal, an ore tenus hearing was held on October 12,1979. The mother’s evidence tended to show that the children’s needs had increased since the divorce. In providing for them, she had incurred substantial medical and dental bills. One son had undergone two operations. The daughter was eighteen, unmarried, and had a child of her own. Although the daughter had moved into a home owned by the father and was apparently living rent free, the mother testified she was supporting her and putting her through school.

The mother was employed, earning $900 per month.

The father stated he had become physically disabled in 1976. According to his testimony, his monthly income at the time of the hearing came from the Veterans Administration, Social Security, workmen’s compensation benefits, and some rental property income. The father’s total income was approximately $1,500 per month. At the time of the divorce, before his disabling injury, he earned approximately $1,500 a month. The father also owned a farm, but his evidence showed he suffered a loss in this venture each of the succeeding two years before the hearing.

There was further evidence which tended to show that, beginning in February of 1980, the mother would receive $134 a month in Social Security benefits due to the father’s disability. This sum was for the benefit of the minor children.

Based upon the evidence, the learned trial judge modified the decree by requiring the father to pay one-half of all presently existing medical, dental, hospital, and drug bills of the children not covered by insurance. Likewise, this obligation was to extend to any similar future expenses. The father was also to continue paying $25 per week child support in addition to the Social Security benefits.

It is well established that the modification of a decree for support, based upon changed circumstances, is a matter within the judicial discretion of the trial court. On appeal, this court will disturb the exercise of such discretion only if from a review of the evidence we find the trier of fact to be plainly and palpably wrong. Murphree v. Murphree, Ala.Civ.App., 366 So.2d 1132 (1979).

Here, although the children’s needs had increased since the prior decree was rendered, the father’s income had remained substantially the same. The mother is now earning $900 per month. Additionally, since the prior decree, the children are to receive an additional $134 a month due to the father’s disability. Furthermore, as indicated above, the father is now to pay one-half of all medical expenses incurred by the children. .

Each case such as this must depend upon its own facts. Phillips v. Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974). Although the primary duty of support remained upon the father, all sources of assistance available for the total support of the children were certainly relevant facts before the trial court in fashioning the modifying decree. Young v. Young, Ala.Civ.App., 351 So.2d 611 (1977).

Upon consideration of these facts and all the remaining evidence, we are unable to find the trial court palpably abused its discretion.

The mother additionally contends error in that she was denied an attorney’s fee. The award of such a fee in a modification proceeding is also a matter within the discretion of the trial court. Murphree v. Murphree, supra. We find no abuse of discretion in this instance.

In view of the above, the mother’s request for an attorney’s fee upon appeal is denied.

AFFIRMED.

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


text:
    Amanda B. McBRIDE v. Joseph R. McBRIDE.
    Civ. 1951.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.

      Gould H. K. Blair, Birmingham, for appellant.
   WRIGHT, Presiding Judge.

This was an action to determine the ar-rearage of alimony and child support due under a Kentucky divorce decree and to obtain judgment thereon.

The parties were divorced in May 1976 by decree of the Circuit Court of Fayette County, Kentucky. The decree ordered the husband to pay monthly installments of alimony and child support.

In March 1978 the wife filed a complaint in Jefferson County Circuit Court alleging that the husband was in arrears and seeking judgment against him for the amount of the arrearage. The wife moved for and was granted the appointment of a special agent for service of process under Rule 4.1(b)(2) ARCP. Personal service was had upon the husband, a resident of Kentucky, in Jefferson County, Alabama on March 11, 1978.

The husband failed to answer or otherwise appear in defense of the action and the wife requested and received entry of default pursuant to Rule 55(a) ARCP on November 29, 1978. The wife subsequently applied to the court for default judgment pursuant to Rule 55(b)(2) ARCP. The trial court denied the application for default judgment on April 11, 1979. On May 30, 1979, the wife filed a second application for default judgment. The trial court denied this application on June 4, 1979. The wife appeals or in the alternative seeks a writ of mandamus. The wife rankly states in brief that she does not believe the trial court’s denial of her application for default judgment to be a final judgment which will support an appeal. We agree.

The wife has properly invoked the jurisdiction of this court by her petition for writ of mandamus. Generally, mandamus will not be granted if the matter complained of can be presented ultimately on an appeal. The test to be applied in deciding whether mandamus should be granted to review an interlocutory order is whether remedy by appeal is adequate to prevent undue injury rather than mere availability of the remedy. Evans v. Insurance Company of North America, 349 So.2d 1099 (Ala.1977). Here the defendant-husband is in default for failure to appear. Though a denial of entry of judgment after default may not be technically a final judgment, there appears little else the wife can do if the husband refuses to appear. Her rights should not remain undetermined because her adversary is unresponsive. We conclude mandamus to be a proper vehicle for review in this case.

The wife contends that she is entitled to judgment based upon the Kentucky divorce decree and her testimony that her husband is in arrears. It is the rule in Alabama that divorce decrees of sister states will be given full faith and credit under the Federal Constitution to the extent that the decree is no longer modifiable under the law of that state. Green v. Green, 239 Ala. 407, 195 So. 549 (1940); Smith v. Smith, 361 So.2d 369 (Ala.Civ.App.1978).

Under Kentucky law installments of alimony and child support become vested as they fall due and the courts have no power to modify past-due installments. Bailey v. Bailey, 294 S.W.2d 942 (Ky.App.1956). The Kentucky divorce decree was entitled to full faith and credit to the extent of any arrearage and the Alabama court had the authority to determine that arrearage. Smith v. Smith, supra. However, this does not mean that the wife was automatically entitled to a default judgment.

It is well-established that an application for default judgment pursuant to Rule 55(b)(2) is addressed to the sound discretion of the trial court. Mason v. Lister, 562 F.2d 343 (5th Cir. 1977). In cases involving the exercise of discretion by an inferior court mandamus may issue to compel an exercise of discretion, but not to control or review its exercise, except in a case of abuse of discretion. East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969). Thus, a trial court may be ordered to enter default judgment only upon a showing that denial of that judgment was an abuse of discretion.

Although default judgments are not favored, when the adversary process has been halted because of an essentially unresponsive party, the diligent party must be protected from undue delay. H. F. Livermore Corporation v. Aktiengesellschaft Gebruder Loepfe, 139 U.S.App.D.C. 256, 432 F.2d 689 (D.C. Cir. 1970). Here the husband was in default for failure to appear. He was personally served with the complaint and summons and has failed to respond in any manner. In denying the wife’s application for default judgment the trial court stated as grounds:

The said Decree of Dissolution, however, relied upon by the Plaintiff provides:
“It is further decreed that the above mentioned child support payments and the maintenance payments for the Respondent (the Plaintiff in our instant' action), Amanda B. McBride, as set out in the above mentioned Property Settlement . . . shall be made by the petitioner (the defendant in our instant case) through the Fayette County Domestic Relations Office, and the Petitioner shall be responsible for any fees charged by the said Fayette County Domestic Relations Office.”
No testimony or other evidence has been presented to this court to indicate that the defendant has not made all payments, as required in the said decree, through the Fayette County Domestic Relations Office. It is therefore, ORDERED and ADJUDGED that the relief prayed for be, and hereby is, denied.

The wife argues that upon entry of default by the clerk the husband’s liability was established and the only issue for the court’s resolution was the amount of the arrearage. We do not agree.

Entry of default pursuant to Rule 55(a) is not equivalent to the entry of default judgment under Rule 55(b). Where, as here, an application for default judgment is made to the trial, court, Rule 55(b)(2) makes specific provision for just such a hearing as was had by the trial court. The rule states, “If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper . .” The trial court held a hearing and apparently found proof lacking on what it considered an essential point. In the absence of a better record, we find no error in the trial court’s application of Rule 55 to the wife’s first application for default judgment.

However, it appears form the record that in her second application for default judgment the wife cured the assumed defect in proof. The second application was accompanied by an original computer printout of the records of the Fayette County, Kentucky, Domestic Relations Office concerning payments to that office by the husband. It appears from those records that there is an arrearage. It then became the duty of the court to determine the amount of the arrearage from the evidence before it and enter default judgment against the husband. We find the trial court’s failure to do so to be an abuse of discretion and grant the wife’s petition for writ of mandamus. The trial court is ordered to determine the amount of arrearage and enter judgment against the husband for that amount.

The wife’s request for attorney fees is denied.

APPEAL DISMISSED; WRIT OF MANDAMUS GRANTED.

BRADLEY and HOLMES, JJ., concur.


text:
    Angela M. KEITH v. Robert B. KEITH.
    Civ. 1967.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.

      Clifford W. Hardy, Jr., Bessemer, Douglas P. Corretti, of Corretti, Newsom & Rogers, Birmingham, for appellant.
    L. Drew Redden, of Redden, Mills & Clark, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parties were divorced in Jefferson County on November 4, 1977. The divorce decree incorporated an agreement by the parties concerning custody of their two minor children. The agreement provided that the husband have custody of the children for one year from' the date of the decree. After this period, the parties were to attempt to agree upon a custody arrangement and if they were unable to agree the matter was tó be determined by the court.

On January 27, 1978, the wife filed a petition to modify the custody provisions of the decree so as to give her permanent custody of the children. The trial court’s order dated August 11, 1978, continued custody in the husband and allowed the mother the following visitation:

A. The first weekend of each month from 6:00 P.M. on Friday until 6:00 P.M. the following Sunday.
B. Each Christmas Day from 3:00 P.M. until 3:00 P.M. on the following New Year’s Day.
C. One month during the summer at a time to° be selected by the plaintiff but upon written notice to the defendant at least thirty (30) days in advance of such visitation beginning in 1979.

On December 15, 1978, the wife filed a petition to modify and petition for rule nisi requesting that the court award custody to her and hold the father in contempt for failure to allow visitation for the first weekend of December 1978. The trial court, upon motion by the husband at the end of the wife’s evidence, dismissed both petitions, and finding that the petition for rule nisi was filed for the purpose of harassment ordered the wife to pay to the husband $500 for his attorney’s fee. The wife appeals from the dismissal of the petitions and the award of attorney’s fee.

The only issue presented is whether the trial court abused its discretion in dismissing the wife’s petitions and awarding an attorney’s fee to the husband.

Considering first the petition to modify, it is appropriate to state at the outset the well-established legal principles which govern our review of the trial court’s judgment.

A change of custody must be justified by a change of circumstances since the rendition of the original decree, or by proof of material facts which, though existing at the time of the original decree were undisclosed, and have since been revealed. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976). The burden is upon the party seeking the modification to show changed circumstances which adversely affect the welfare of the child. Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970). As always, the prevailing consideration is the best interest of the child. Higgins v. Higgins, 336 So.2d 194 (Ala.Civ.App.1976).

The wife injects argument as to the so-called tender years doctrine. We fail to see its application here. This is a petition seeking modification of a prior judgment granting custody to the father. That judgment was less than a year old at the time of hearing. The only issue was whether there had been a change of circumstances since the last judgment so affecting the best interest of the children as to require the exercise of the court’s discretion as to their custody. The court heard the testimony orally and determined it was insufficient to warrant its exercise of discretion. The petition was therefore dismissed. We find that determination not erroneous. Stewart v. Grace, 360 So.2d 1032 (Ala.Civ.App.1978).

We next consider the trial court’s dismissal of the mother’s petition for rule nisi. The petition charges that the husband violated the August 11, 1978, order of the trial court in denying her visitation for the first weekend of December 1978. It is undisputed that the visit scheduled for that weekend was not obtained by the mother. However, the evidence was undisputed that the mother did not personally seek to obtain custody, but rather sent her mother and stepfather to the father’s home to pick up the children. The father had not been informed of this arrangement. His testimony was that when he asked as to the whereabouts of the mother, the stepfather rejoined that it was none of his “damn” business. The father then refused to permit the children to go. The evidence shows that all prior and subsequent court-ordered visits have been allowed.

The enforcement of its orders is an area particularly within the discretion of the trial court. The father did not violate the letter of the judgment of the court. The court did not find the action of the father contumacious. The factual determination of contempt is a matter peculiarly for the trial court. Robertson v. State, 20 Ala.App. 514, 104 So. 516 (1924). The reviewing court determines if the law has been properly applied to the facts. We find no error. Schotz v. Oliver, 361 So.2d 605 (Ala.Civ. App.1978).

The court’s order that the wife pay the husband $500 for an attorney’s fee may not stand in this case. The evidence shows the wife to be a housewife. There was no evidence that she had an income or estate from which to pay the husband an attorney fee. Such a fee could only be granted under the alimony statute. Haynes v. Haynes, 360 So.2d 1016 (Ala.Civ.App.1978). There was no issue of alimony or child support in this case. There was no evidence of inability of the husband to pay his attorney. The evidence rather showed him to be a professional engineer employed in a responsible position. We are not cited to nor do we know of any authority in the court to assess an attorney fee against a petitioner as a part of costs or as a penalty. An attorney fee may be granted to the successful party in an action only upon authority of statute or contract. City of Montgomery v. Collins, 355 So.2d 1111 (Ala. 1978).

For the same reasons stated above, the husband’s request for attorney’s fee on appeal is denied. We do not decide whether an attorney could be properly awarded to either party by judgment upon petition for modification of child custody.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result only.


text:
    Nelda Jean STEELE v. Ruthie S. McDANIEL and John W. McDaniel.
    Civ. 1997.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
    Alfred W. Goldthwaite, Montgomery, for appellant.
    Richard C. Belser and John M. Bolton, III of Robison & Belser, P. A., Montgomery, for appellees.
   BRADLEY, Judge.

This is an appeal from the Circuit Court of Montgomery County whereby that court denied the appellant relief from a custody decree rendered on September 29, 1969 and an adoption order entered on December 19, 1972. The trial court granted a summary judgment against the appellant, Nelda Jean Steele, as to review of the custody decree and denied relief from the adoption order after hearing testimony ore tenus.

The appellant,' Nelda Jean Steele, and Thomas Sayers were married in 1965. One child, Ruthie Alice Sayers, was born of this marriage. In 1966 Thomas Sayers was involved in an automobile accident and suffered brain damage. The parties were divorced in 1970.

On June 25,1969 Evelyn Sayers, acting as mother and next friend of Thomas Sayers, filed a petition in the Circuit Court of Montgomery County seeking custody of the minor child, Ruthie Alice Sayers. The child at that time was in the custody of her mother, the appellant. The appellant was served by publication and failed to appear at the custody proceeding. The trial court heard testimony ore tenus and issued an order finding that the appellant was not a fit person to have custody and control of the minor child, Ruthie Alice Sayers. The trial court further ordered that custody of the child be awarded to the appellees, Ruthie S. McDaniel and John W. McDaniel. Ruthie S. McDaniel is the sister of Thomas Sayers, and John W. McDaniel is the husband of Mrs. McDaniel.

A writ of habeas corpus was issued and served upon the appellant in Denver, Colorado. She was directed to appear before the Circuit Court of Montgomery County on December 3, 1969. The appellant failed to appear and was found in contempt. On December 31,1969 the appellant was arrested in Opelika, Alabama and brought to Montgomery. The appellant filed an application for rehearing alleging in part that the custody decree was obtained by fraud and mistake. A hearing was held on January 7,1970 and the trial court dismissed the application for rehearing. Thereafter the child was placed in the custody of the McDaniels and has remained in their custody to date.

On December 13, 1972 Mr. and Mrs. McDaniel filed a petition for the adoption of Ruthie Alice Sayers in the Probate Court of Montgomery County. In the petition the appellees stated that the appellant’s place of residence was unknown to them and that she could not be located. The petition further averred that the natural father’s consent had been given for the adoption of the child. After hearing the evidence ore ten-us, the court found that it was in the best interests of the child that adoption be made final immediately.

Appellant asserts the invalidity of the 1969 custody decree on two grounds. First, she contends that the action filed by Evelyn Sayers, acting as mother and next friend of Thomas Sayers, was improper in that Mr. Sayers was over the age of twenty-one and had not been legally declared non compos mentis. Secondly, the appellant contends that the appellees made false statements in the petition for custody.

The appellant’s first contention is without merit. A person non compos men-tis may sue by next friend, before and without an inquisition of lunacy. Whetstone v. Whetstone’s Executors, 75 Ala. 495 (1883). In Whetstone the court reached this conclusion, but noted the perils involved:

[Pjeril, that the alleged non compos, or lunatic, or person of weak and incapable mind, may not in fact be so, or may recover, and repudiate the interference; peril, that the chancery court may not consider him a suitable person, and may disallow his intermeddling.

None of the perils mentioned in Whetstone have occurred in the case at bar; therefore we think the suit was proper.

The appellant’s second contention is that certain statements in the appellees’ petition for custody were false, and therefore constituted a fraud upon the court. Specifically, the appellant refers to statements by the appellees that the location of the appellant was unknown and that the appellant was concealing herself to avoid service of process. We think such an allegation was not timely filed. Rule 60(b) of the Alabama Rules of Civil Procedure provides in part:

This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment (or such additional time as is given by §§ 6-2-3 and 6-2-8, Code of Ala.) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.

Section 6-2-3, Code of Alabama 1975, provides:

In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.

We think it clear from the foregoing that ordinarily an aggrieved litigant must commence his action to set aside a judgment within a reasonable time after entry of judgment, not to exceed three years. However, where relief is based upon fraud the litigant is granted an additional year from the date of discovery of the fact constituting the fraud to bring his action.

The appellant was aware of the contents of the custody petition on January 6, 1970. On this date the appellant filed an application for rehearing contending that the custody decree was obtained by fraud. The fraud, if there was any fraud, was known to the appellant on January 6, 1970 and she had one year from that date to file her fraud action. Therefore, we think the trial court acted properly in refusing to review the 1969 custody decree since she did not file her action until nine years later.

The appellant also attacks the validity of the 1972 adoption order. The petition to set aside and hold for naught the adoption order was filed originally in the Montgomery County Probate Court and subsequently transferred, on motion, to the Montgomery County Circuit Court, Domestic Relations Division, which is the Juvenile Court in Montgomery County. The appellant contends that the appellees perpetrated a fraud upon the court. As with the custody decree, the appellant argues that she had no notice of the adoption proceeding and that the appellees knew or should have known of her whereabouts; thus she was denied due process of law as guaranteed by the United States Constitution. She testified that the fact of adoption was not discovered until 1978 after she employed an attorney to check the probate records.

The adoption application filed by the ap-pellees stated that the residence of the appellant was unknown and that she could not be located. The appellees testified that they had made no effort whatsoever to locate the mother prior to the adoption proceeding. The evidence further indicated that the appellees made no inquiry of the appellant’s three sisters, who were all known to the appellees, concerning the whereabouts of the appellant. It should also be noted that subsequent to the 1969 custody proceeding the appellees were able to locate the appellant within two days by employing a private investigator.

It has been previously held that a parent must be given at least reasonable notice of an adoption proceeding. Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387 (1969); Claunch v. Entrekin, 272 Ala. 35, 128 So.2d 100 (1961); Thomas v. Culpepper, Ala.Civ.App., 356 So.2d 656 (1978).

Additionally, § 26-10-3, Code of Alabama 1975, requires the consent of both parents unless certain enumerated factors are present. One of those factors is that the parent cannot be found. Appellant contends that she could have been found. The evidence clearly shows that the adoptive parents made no effort to locate the natural mother. Furthermore, the adoption decree provides that the natural mother lost custody of the child in a divorce proceeding in the Montgomery County Circuit Court. First, the loss of custody of a child in a divorce proceeding is not one of the factors listed in § 26-10-3 that obviates the necessity of obtaining the consent of a natural parent to an adoption; second, should the statement in the adoption decree be construed to mean that appellant had lost guardianship of her child, the adoption decree still would not satisfy the requirements of § 26-10-3. We said in Thomas v. Culpepper, supra, that:

The granting of custody to the mother and the failure to direct visitation privileges to the father in the uncontested divorce cannot be classified as a loss of guardianship. We . consider that the intent of the statute is that the court must remove such right in positive terms.

In the case sub judice the mother was deprived of custody but was given visitation privileges. She testified that she made an effort to visit her child but was rebuffed by the custodians. The evidence is insufficient to support a conclusion that appellant had lost guardianship of her child. Accordingly, we hold that § 26-10-3 has not been observed, and the adoption order is due to be voided.

We affirm the trial court’s granting of a summary judgment in favor of the appel-lees concerning the validity of the 1969 custody proceeding and reverse that part of the judgment holding that no fraud was perpetrated on the court in the adoption order. This cause is remanded for entry of a judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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


text:
    Brooks COMPTON v. Alice L. COMPTON.
    Civ. 1999.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
    James D. Sullivan, Mobile, for appellant.
    Edward B. McDermott and Constance S. Aune of McDermott, Deas & Boone, Mobile, for appellee.
   BRADLEY, Judge.

This a divorce case.

On July 25, 1978 Alice Compton filed a divorce action against her husband, Brooks Compton, on the ground of incompatibility. In that complaint she requested the award of alimony, possession of the homeplace, and support and solicitor’s fee pendente lite.

After a hearing and on December 13, 1978 a judgment was rendered giving Mrs. Compton $250.00 per month as periodic alimony and $3,000.00 as alimony in gross; the parties would retain a joint interest in the homeplace, but Mrs. Compton would have exclusive possession until she remarried; the household furnishings were to be divided equitably; and Mr. Compton was to pay Mrs. Compton’s attorney a fee.

On December 22, 1978 Mr. Compton filed a motion for rehearing and reconsideration. This motion was continued on April 4, 1979 and was denied June 13, 1979. An appeal was then filed with this court.

The only issue before us is whether the trial court erred in awarding alimony and possession of the homeplace to appellee when the divorce was granted on the ground of incompatibility.

Mr. and Mrs. Compton had been married for thirty-six years before obtaining a divorce. During these years the two parties bought a home jointly, acquired two automobiles, all of which are paid for, and raised three children who are now grown and married.

Brooks Compton is an independent insurance agent earning approximately $17,000 a year. For the first twenty-six years Mrs. Compton maintained the home and raised the children. Mr. Compton admitted that Mrs. Compton had been a good wife and a good mother to their children.

After the children were grown, Mrs. Compton began working as a seamstress at Sears, taking home between $112 to $120 per week. This income was merged with her husband’s until about three years ago.

The testimony reveals that the marriage has had problems for quite some time. For the last three years, however, Mrs. Compton bought the groceries, paid the phone bills, and paid for their daughters’ weddings without any contribution from her husband. Although Mr. Compton did pay the utility bill, he admitted wiring the outside box and putting a lock on it at least on one occasion to keep his wife from turning on the heat. He also admitted cutting the cord of her electric blanket. Mrs. Compton testified this was done in order to keep the utility bill down. The evidence showed the average utility bill in January was $29.00. Mrs. Compton and her children further testified that Mr. Compton would not let her use the air conditioner in the summer.

In February 1978 Alice Compton incurred a hospital bill for which her husband would not allow her to file a claim against his insurance company. She had to pay the bill out of her earnings.

Mrs. Compton admitted withdrawing $5,000.00 out of their joint savings account and notifying her husband of this fact. Of this $5,000, she loaned $4,000.00 to her daughter and son-in-law to purchase a car. She has a balance of $1,700.00 in her savings account.

Evidence revealed that Mr. Compton had opened a secret savings account which now amounts to approximately $21,000.00. This had been converted into a certified check for that amount and placed in a safety deposit box.

Appellant concedes that fault is a factor that a court can consider in making an award of alimony in a divorce case based on incompatibility. Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704 (1976). However, he contends that there was absolutely no fault on his part. We disagree that proof of fault is absent from this case; however, since we conclude that the judgment should be affirmed on another ground, we pretermit further discussion of this contention.

The appellant claims that Mrs. Compton does have a separate estate and the ability to support herself. Therefore, he should not be required to contribute to her support. We disagree. The only separate estate Mrs. Compton has is the one-half interest in the home of which she was granted possession until she remarries. Furthermore, appellee is fifty-eight years old, making between $112.00 to $120.00 a week take-home pay. The testimony showed that Sears has closed down other sewing departments; thus she is not sure how long she will be employed. There was no evidence that Mrs. Compton is capable of another occupation. On the other hand, Mr. Compton has a secure job earning $17,000.00 a year, and a certified check for approximately $21,000.00. He also has a savings account of over $6,000.00, though it has a lien on it for security on one of his children’s loans.

In Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978), we said that the award of alimony was largely discretionary with the trial court, and such award will not be reversed except for a plain and palpable abuse of that discretion. There was no abuse of that discretion in the award of alimony or the possession of the homeplace.

The judgment of the trial court is affirmed.

Appellee’s request for attorney’s fee is granted in the amount of $500.00.

AFFIRMED.

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


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    Harold Wayne SMITH v. Gaye Nell SMITH.
    Civ. 2042.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.

      Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    Harold Howell, of Howell, Sarto & Howell, Prattville, for appellee.
   HOLMES, Judge.

The Circuit Court of Montgomery County found the husband in contempt of court.

The husband, as a result of the contempt, was ordered to pay a compensatory fine to the wife. In the event the husband failed to comply with the court’s order, he was to be imprisoned. Put another way, the husband was to be incarcerated if he did not pay the compensatory fine.

The husband, by writ of certiorari and appeal, is before this court.

The dispositive issues on appeal are whether the evidence supports the trial court’s finding of contempt and whether the compensatory fine is subject to enforcement by contempt proceedings.

On January 4, 1978, the wife petitioned the trial court to cite the husband for contempt. One of the grounds stated in the petition was the husband’s failure to maintain a hospitalization insurance policy on the wife as required by the divorce decree. The wife’s petition itemized medical expenses she had incurred as a result of the lapse of the policy. On March 15, 1978, after a hearing, the trial court, among other things, ordered the husband via a compensatory fine to pay to the wife a portion of the outstanding indebtedness arising from the policy lapse. The husband thereafter filed a motion for new trial. The trial court denied the motion and the husband appealed to this court.

In Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978), this appeal’s predecessor, we reversed and remanded the trial court’s denial of a new trial because it was not clear from the decree that the court actually found the husband to be in contempt. That is, nowhere in the decree did the trial court state that the husband was in contempt. We held that a finding of contempt is a prerequisite to the assessment of a compensatory fine.

On remand from this court, the trial court determined that the husband was in contempt. In an ancillary proceeding the sum of $2,605.40 was assessed against the husband for the husband’s contempt. This proceeding was apparently conducted pursuant to Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975). Lightsey indicates that in appropriate circumstances, a jury is to be impaneled to hear the evidence and determine whether damages should be imposed as a result of one’s contempt. We note at this point that neither party takes issue with the manner or form of the ancillary proceeding. In view of this we make no determination of the propriety of the proceeding had in the instant case.

Through able counsel, the husband contends that the trial court erred in its determination that the husband was in contempt of court because there was no willful or contumacious refusal to comply with the provisions of the divorce decree.

At the outset, we note that the scope of review in'contempt cases on certiorari is limited to questions of law. Questions of fact or the weight or sufficiency of the evidence will not be reviewed and if there is any legal evidence to support the decision of the lower court, such is conclusive on the reviewing court. Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968); Schotz v. Oliver, Ala.Civ.App., 361 So.2d 605 (1978).

A review of the record reveals the following:

The parties were divorced in 1973. The divorce decree incorporated an agreement of the parties which contained a provision requiring the husband to provide for the wife “adequate hospitalization insurance” coverage. The husband was required to “pay the premiums thereon.”

The husband complied with the terms of the decree for approximately two years after which the policy lapsed.

The application for insurance provided that the husband was to be billed for the premiums but the insurer routinely mailed the premium notices to the wife. The wife testified that she forwarded all of the premium notices she received to the husband for payment. The husband testified that the last payment he made was in June, 1976. He further testified that he did not pay the premium in September, 1976, because the policy had already lapsed when he received the premium notice.

We do not deem it necessary or prudent to set out in detail testimony or arguments in brief as to who was at fault in allowing the policy to lapse. Suffice it to say there is evidence to support the finding of contempt by the trial court as the decree placed an affirmative duty on the husband to maintain the required policy and he failed to so maintain.

Next, the husband contends that the trial court erred in ordering imprisonment for a failure to pay the aforementioned compensatory fine. The trial court’s order stated:

Should the said monies not be paid to the Court within ten days from the date of this Decree, any law enforcement officer in the State of Alabama is hereby ORDERED to take custody of Harold Wayne Smith and transport him to the Montgomery County Jail .

The husband’s argument in this regard is based upon Alabama Constitution of 1901, art. 1, § 20. This section simply states that “no person shall be imprisoned for debt.”

Under this provision, a defendant may not be imprisoned for alleged contempt in failing to pay a judgment for money. Ex parte Parker, Ala.Civ.App., 334 So.2d 911 (1976). Additionally, alimony is not a debt within the meaning of this section. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968).

In this instance, as indicated above, after the husband was found in contempt a jury determined the amount of the compensatory fine. Justice Merrill points out in Light-sey, supra, that there is no statute or court decision in this jurisdiction which authorizes a circuit court to impose a fine as indemnity or as compensatory damages to the adverse party in a civil action. Further, the question of the amount of unliquidated damages must be determined in an ancillary proceeding apart from the contempt proceeding and parties are entitled to a jury and review by appeal rather than by writ of cer-tiorari.

Clearly, in this instance, the $2,605.40 award resulted from an action for damages. Lightsey, supra. Thus, the compensatory fine awarded must be treated as any other jury award. That is to say that the compensatory fine created a debt within the ambit of § 20, and is not subject to enforcement by contempt proceedings.

Therefore, the portion of the trial court’s decree regarding incarceration upon failure to pay the compensatory fine is of no effect.

In view of the above, other issües raised by the husband need not be discussed.

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

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

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


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    Elvert C. CRUCE v. DEMARCO CONCRETE AND BLOCK COMPANY and State of Alabama Department of Industrial Relations.
    Civ. 2047.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
    Henry E. Lagman, of Joel C. Watson, Birmingham, for appellant.
    George Cocoris, Gen. Counsel and Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

Claimant Cruce was denied unemployment compensation benefits by the Board of Appeals for the Department of Industrial Relations (DIR). He filed an appeal pursuant to § 25-4-95, Code of Alabama (1975) in Shelby County Circuit Court on January 25, 1977. Upon testimony by the claimant at trial that he was a resident of Jefferson County at the time the appeal was filed in Shelby County the trial court ordered the case transferred to Jefferson County Circuit Court.

On May 14, 1979, DIR filed a motion to dismiss the appeal on the grounds that the circuit court did not have jurisdiction of the appeal because claimant had not complied with the requirements of § 25 — 4—95. Specifically, the appeal was not filed “within 10 days after the decision of the board of appeals has become final, ... in the circuit court of the county of the residence of the claimant . . . .” The trial court granted the motion to dismiss on May 30, 1979. Claimant appeals from the order granting the motion to dismiss.

Claimant argues that the provision in § 25 — 4-95 requiring that an appeal from a decision of the board of appeals be filed in the circuit court of the county of the residence of the claimant is a venue requirement which was waived by DIR when it failed to plead improper venue before trial. This court has responded to that argument in Director of the State of Alabama Department of Industrial Relations v. Nolin, 374 So.2d 903 (Ala.Civ.App.1979). In Nolin we held that the requirements of § 25-4-95 are jurisdictional and require dismissal of an appeal when it is filed in the wrong county. Rule 82(d) ARCP, relating to venue is not applicable. We find Nolin to be dispositive of the issue here.

Claimant contends for the first time on appeal that § 25 — 4-95 is unconstitutional in that it denies equal protection to resident claimants. It has long been the practice of our courts to refuse to hear an attack on the constitutionality of a statute when it is not raised in a timely manner before the trial court. Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977). A careful review of the record before us discloses that this issue was not raised before the court below and we will not allow a party to raise such an issue for the first time on appeal. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975).

The order of the trial court dismissing claimant’s appeal is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Larry R. BURKS v. ALABAMA STATE TENURE COMMISSION.
    Civ. 2063.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
    James H. Davis and William M. Dawson, Jr., Birmingham, for appellant.
    Harold V. Hughston, Sp. Asst. Atty. Gen., Tuscumbia, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

The Tuscumbia City Board of Education terminated the employment contract of the teacher. The teacher petitioned the Alabama State Tenure Commission and the Tenure Commission upheld the action of the board of education. The teacher then sought a writ of mandamus in the circuit court. The circuit court dismissed the petition for writ of mandamus. The circuit court’s action was premised on the fact that the petition for writ of mandamus was barred by laches as being unreasonably late.

The dispositive issue is whether the teacher’s petition for writ of mandamus should have been barred by laches as being unreasonably late. We find the trial court’s action in finding the petition to be so barred correct and affirm.

We do not find it necessary nor prudent to set out in detail the facts of this appeal. Our review of the record reveals the following pertinent facts.

The teacher who, through able counsel, contends he is a teacher with continuing service status (a tenured teacher) was terminated by the employing board of education on June 30, 1977. Thereafter, the teacher sought relief before the tenure commission. The tenure commission denied the relief sought by the teacher and upheld the action of the board of education. The action by the tenure commission occurred on October 20, 1977. On May 15, 1978, the teacher filed his petition for writ of mandamus in the Circuit Court of Colbert County. Thereafter, as indicated above, the circuit court dismissed the petition for writ of mandamus.

In the recent case of Alabama State Tenure Commission v. Board of School Commissioners of Mobile County, Civ. 1985, 378 So.2d 1142 (Ala.Civ.App., December 5, 1979), this court concluded that an unexplained delay of over three months in seeking a writ of mandamus in a teacher tenure case, such as the instant appeal, was unreasonable; therefore, further concluding that the petition for the writ was barred by laches. In the Mobile County case, it was the school board who was seeking the writ of mandamus.

In Alabama State Tenure Commission v. Board of School Commissioners of Mobile County, supra, this court attempted to set out in some detail the rationale for our conclusion. This rationale is equally as applicable in the instant appeal. We refer interested persons to the Mobile School Board case.

In view of Mobile, supra, we now hold that an unexplained delay of almost seven months in seeking the writ of mandamus by the teacher is unreasonable. Therefore, in the instant appeal, as in Mobile, supra, the writ is barred by laches.

The above being dispositive of this appeal, other issues raised by the teacher need not be discussed.

The case is due to be affirmed.

AFFIRMED.

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


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    Joe F. THOMASON v. MIDLAND INSURANCE COMPANY, a corporation, et al.
    Civ. 2086.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
    Terry P. Wilson, of Turner, Wilson & Christian, Montgomery, for appellant.
    Richard A. Ball, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee Midland Insurance Company.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee appeals from the granting of the defendant insurer’s motion for summary judgment. We affirm.

This case does not come to this court in the context of a dispute ovér factual matters. The dispositive issue is whether, as a matter of law, a direct action for work related injuries can be brought against the employer’s insurer when the provisions of § 25-5-8(f)(4), Code of Ala. 1975, have not been met.

Section 25-5-8(f)(4) provides in pertinent part:

(4) DIRECT ACTIONS AGAINST INSURERS. — If the employer shall insure to his employees the payment of the compensation provided by this chapter . in a corporation or association authorized to do business in the state of Alabama and approved by the director of the department of insurance of the state of Alabama, and if the employer shall post a notice or notices in a conspicuous place or in conspicuous places about his place of employment, stating that he is insured and by whom insured, and if the employer shall further file a copy of such notice with the department of insurance, then, and in such case, any civil actions brought by an injured employee or his dependents shall be brought directly against the insurer, and the employer, or insured, shall be released from any further liability. . . .(Emphasis supplied.)

It is not disputed that the now bankrupt employer did not file the requisite notices with the Department of Insurance. However, through able counsel, the employee argues that under this factual situation he should be free to seek redress against the insurer, the employer, or both. Put another way, the employee argues for a construction of § 25-5-8(f)(4) which would require a direct action against the insurer when the employer meets the statutory mandates, but would allow an election between defendants when these conditions are not met.

These contentions must fail because, in Alabama, in the absence of a statute authorizing direct suit against the employer’s insurer, no such right exists. It has been said that the rationale behind this bar is the lack of privity between the employee and the insurer. Humphrey v. Poss, 245 Ala. 11, 15 So.2d 732 (1943); Pounds v. Travelers Ins. Co., 239 Ala. 573, 196 So. 108 (1940).

In Pounds, supra, the Supreme Court of Alabama construed § 7584 of the Code of Alabama 1928, which is the predecessor to the current § 25-5-8(f)(4), being its counterpart in all relevant aspects. The court there noted that this section does authorize direct suit against the insurer, but concluded this right exists only if the conditions therein set forth are met. Therefore, if the proper notices are not posted and filed as contemplated by the statute, the employee’s only recourse is direct suit against the employer.

This is the only conclusion open to us from a reading of the statute. Where a statute is unambiguous, the words chosen will be given their plain meaning. Quick v. Utotem of Alabama, Inc., Ala.Civ.App., 365 So.2d 1245 (1979).

Section 25-5-8(f)(4) clearly says if the statutory conditions precedent are met, then, and in such case, suit must be brought against the insurer. In setting forth such a carefully circumscribed instance in which suit against the insurer is allowed, we cannot conceive that the legislature intended to otherwise enlarge the applicable rules of law barring an employee suit against the employer’s insurer due to the lack of privity between the parties.

It follows there was no error in granting the insurer’s Rule 56, ARCP, motion for summary judgment. The judgment of the trial court is therefore due to be affirmed.

AFFIRMED.

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


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    FORD MOTOR COMPANY, a corporation v. Jerry TINDOL.
    Civ. 1987.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Jere C. Segrest and Robert F. Northcutt of Hardwick, Hause & Segrest, Dothan, for appellant.
    Daniel F. Carmichael, Jr., of Dowling & Carmichael, Enterprise, for appellee.
   HOLMES, Judge.

A jury awarded the purchaser of a 1976 Ford pickup truck $6,500 against Ford Motor Company for breach of warranty.

The defendant contends that the trial court committed reversible error in that the warranty given to the buyer was a joint warranty on the part of the manufacturer and the selling dealer. Therefore, the non-joinder of the selling dealer as a party defendant precluded the plaintiff from maintaining an action against the manufacturer alone. Additionally, the defendant contends that the damages awarded were excessive as a matter of law.

We find that the trial court did not commit reversible error and affirm.

A review of the record reveals the following:

Plaintiff purchased a new 1976 Ford pickup truck from an authorized Ford dealer. The purchase price was $6,569.30. The new truck carried a warranty which stated:

Ford and the Selling Dealer jointly warrant for 1976 model cars and light trucks sold by Ford that the Selling Dealer will repair or replace free any parts, except tires, found under normal use in the U.S. or Canada to be defective within the earliest of 12 months or 12,000 miles from either first use or retail delivery.

Plaintiff filed suit for breach of warranty and alleged numerous difficulties with the truck. He further alleged that the dealer failed to correct the problems.

After a trial, the jury awarded the plaintiff $6,500 as damages. The trial court denied the defendant’s motion for a new trial.

Through able counsel, as indicated, the defendant contends that the plaintiff was precluded from maintaining an action against the defendant because the plaintiff failed to join the automobile dealer as a party defendant. Put another way, the warranty given to the buyer was a joint obligation on the part of the manufacturer and the dealer, and the defendant contends that, as a matter of law, the plaintiff cannot recover against a single joint-obligor.

Both parties agree that under the common law all joint-obligors had to have been made parties defendant in order for the plaintiff to recover for a breach. As the defendant acknowledges, this commonlaw compulsory joinder may be abrogated by statute.

Such a statute exists in this jurisdiction as § 6-5-283, Code of Ala. 1975. This section states:

When two or more persons are jointly bound by judgment, bond, covenant or promise in writing of any description whatsoever, the obligation or promise is in law several as well as joint, .

As this court has stated, the effect of the above statute is to permit the plaintiff to sue one or all joint obligors. Burgreen Contracting Co., Inc. v. Goodman, 55 Ala.App. 209, 314 So.2d 284 (1975). In the instant case, the plaintiff chose to sue one joint-ob-ligor, the defendant. There was no error.

Next, the defendant contends that the amount of damages awarded by the jury was excessive and constitutes reversible error.

At the outset, we note that a jury’s verdict is presumed to be correct and will not be reversed on appeal unless the preponderance of the evidence is against the verdict, after allowing all reasonable presumptions in favor of its correctness. Midwestern Welding Co., Ltd. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975).

Additionally, the correctness of a jury verdict is strengthened by the refusal of the trial court to grant a new trial. Mobile Home Brokers, Inc. v. Clark, Ala.Civ.App., 346 So.2d 1156 (1977). The trial court in the instant appeal refused to grant such a motion.

With these propositions in mind, the record indicates that the plaintiff testified the vehicle with its defects was worth nothing at the time of the purchase. The plaintiff based this conclusion upon the existence of a number of defects and problems with the vehicle which the plaintiff alleged were never corrected by the defendant. These defects included a defective steering system and steering fluid leaks, an inoperative air-conditioning system, transmission problems, frame and wheel alignment defects which caused excessive tire wear on one wheel, a defective paint finish which flaked off after a first washing and excessive oil usage which required the periodic addition of oil over and above normal requirements.

The plaintiff further testified that during the first year of ownership he took the vehicle to the dealer on approximately twelve different occasions for warranty repairs. On one occasion the vehicle was kept by the dealer between two and three weeks.

Witnesses for the defendant testified that there was no steering problem, that the air conditioner had been repaired by adding coolant, that the steering gear had been replaced six or seven times, that a portion of the vehicle had been repainted and that the transmission shifted harshly because it was a heavy duty transmission and this type of equipment always shifts harshly in relation to regular duty equipment. In short, the defendant attempted to show that there had been no breach of warranty in that all necessary repairs had been made and no defects existed.

The plaintiff testified that despite the above repairs, the truck had major defects and the defendant had breached its warranty.

The defendant argues that even assuming some defects, the verdict was excessive as a matter of law in light of the fact that the plaintiff had driven the vehicle 9,901 miles during the first eight months from the purchase date and approximately 50,000 miles at the date of trial. Stated differently, the defendant argues that it was error for the jury to award the approximate amount of the purchase price of the vehicle where the plaintiff had driven the vehicle a great number of miles. Thus, the defendant would have this court hold that the verdict was tantamount to finding that the truck was worth only $69.30 when purchased and that this amount was so unreasonable as to constitute reversible error.

The measure of damages for a breach of warranty under the circumstances in the instant case is the difference at the time and place of acceptance between the value of the automobile accepted and the value it would have had had it been as warranted. Courtesy Ford Sales, Inc. v. Farrior, 53 Ala.App. 94, 298 So.2d 26, cert. denied, 292 Ala. 718, 298 So.2d 34 (1974); § 7-2-714(2), Code of Ala. 1975.

The plaintiff testified that in view of the defects the vehicle was in fact valueless. Supportive of this testimony is the evidence which shows the plaintiff was in frequent contact with the defendant in an attempt to have the vehicle placed in a defect-free condition. The evidence indicates the truck was never free of substantial defects.

In view of the facts of the instant appeal as indicated, this court cannot say that the act of driving the vehicle renders a verdict of virtually the entire purchase price excessive. See, Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971); Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969).

Summarizing, the evidence supported a finding of a breach of warranty. The vehicle was never defect-free. The amount of the award was slightly less than the purchase price. The fact that the vehicle had been driven a substantial number of miles does not render the verdict excessive. See, Tiger Motor, supra.

The case is due to be affirmed.

AFFIRMED.

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