author: BRADLEY, Judge.

text:
    CITY OF MONTGOMERY v. Bobby S. JOHNSON.
    Civ. 2727.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Rehearing Denied Aug. 19, 1981.

      J. Bernard Brannan, Jr., City Atty., Montgomery, for appellant.
    Jere L. Beasley of Beasley & Wilson, Montgomery, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Bobby S. Johnson filed an action against the City of Montgomery claiming that he was permanently partially disabled as a result of a job related injury incurred within the line and scope of his employment with the City as a fire fighter. After a hearing the trial court found that claimant had injured his knee on August 6, 1979 while on the job as a fire fighter for the City of Montgomery and determined that he was ninety percent permanently partially disabled from performing the duties of a fire fighter or any other employment for which he was adequately educated and trained. The court awarded claimant benefits for three hundred weeks based on a rate of $144.99 per week.

After its motion for new trial was overruled, the City sought review in this court.

The pertinent facts show that Bobby S. Johnson was a fireman for the City of Montgomery from December 1967 until August 1979. Claimant injured his right knee in 1971 by striking it against a jack on a fire truck during a regular training session for firemen. A report of this accident was filed with his superiors.

Although the knee troubled him on several occasions during the intervening eight years, claimant had no real difficulty with it until August 6-9, 1979. Claimant testified that at this time he was participating in a required calisthenics program for firemen when he injured his right knee. He informed his supervisor and several fellow firemen that same day that he had injured his knee and that it was swollen and was hurting him. The swelling and pain continued and after about two weeks claimant saw Dr. J. H. Armstrong. Later, surgery was performed on the right knee by Dr. M. Bonner Engelhardt, an associate of Dr. Armstrong.

Dr. Engelhardt stated that claimant’s right knee had marked inflammation of the lining and torn lateral cartilage. The cartilage was surgically removed. It was the doctor’s opinion that the torn cartilage was caused by a twisting injury to the knee, not a direct blow to the knee. The doctor said that the claimant has had a good recovery and suffers a two percent physical impairment to the body. He said, however, that claimant was disabled from being a fire fighter and could not perform other tasks requiring climbing, squatting, or jumping. Dr. Engelhardt did testify that claimant’s condition was a long-standing one and had gotten progressively worse.

Appellant’s first and second contentions are that claimant’s only job related injury occurred in 1971, which was prior to Act No. 565, Acts 1975, and that the problems appellant encountered in 1979 were the results of the 1971 accident. Hence, the City is not liable for the 1979 knee problems.

Act No. 565, codified as § 25-5-13, Code 1975, and enacted into law in 1975, provides that employees of all counties and all municipalities with populations in excess of two thousand shall be governed by and have available to them the provisions of the Alabama Workmen’s Compensation Law.

Appellant argues that the only evidence of a job related injury suffered by claimant occurred in 1971, which would have been before it was subject to the workmen’s compensation law and it is, therefore, not liable to claimant for any benefits. Furthermore, according to the City, there is no evidence that a second knee injury was suffered by claimant in 1979. At most, the evidence shows a deterioration of the cartilage in the knee to the point that it became necessary to have surgery.

The trial court found that claimant suffered a second injury to his right knee in August 1979 while he was acting within the line and scope of his employment. Such a finding, if supported by the evidence, would make the appellant liable to claimant for workmen’s compensation benefits by virtue of Act No. 565, supra.

In reviewing the findings of fact made by a trial court in a workmen’s compensation case, this court is concerned only with whether there is any legal evidence to support those findings. Blackmon v. R. L. Zeigler Co., Ala.Civ.App., 390 So.2d 628, cert. denied, Ala., 390 So.2d 635 (1980).

The claimant testified that during the first part of August 1979, i. e. sometime during the period August 6 through August 9, 1979, while engaged in calisthenics at the firehouse as ordered by the City of Montgomery, he twisted his right knee. He suffered pain and swelling in the knee that day. He told his wife of the injury upon returning home from work. He also showed the swollen knee to a supervisor and fellow firemen at the firehouse. Two weeks later he had surgery on the knee.

The physician who operated on claimant’s knee testified that the torn cartilage in claimant’s knee was the result of a twisting injury, not an injury resulting from a direct blow to the knee. The 1971 injury resulted when claimant attempted to climb on a fire truck and struck his right knee against a jack on the truck. We consider the evidence sufficient to support the finding that claimant had suffered a second injury to his right knee in August 1979.

Appellant next says that claimant failed to give the proper notice to his employer of the injury to his knee in August 1979.

The established rule in Alabama is that actual notice is the equivalent of the notice required by § 25-5-78, Code 1975. B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45 and 287 Ala. 726, 253 So.2d 46 (1971). In Price Ceiling, Inc. v. Ray, Ala.Civ.App., 394 So.2d 58 (1981), we held that notice of an injury to an employee received by the employer through a supervisor from a fellow employee satisfied the actual notice rule.

In the ease at bar the claimant testified that he told a supervisor of the injury and showed him the swollen knee on the day of the injury. We believe such notice satisfies the actual notice rule set out above.

Another argument made by the City is that the trial court erred in finding that claimant was ninety percent permanently partially disabled because there is no evidence to support such a finding.

Appellant contends that claimant is presently employed earning about $120.00 a week as a security guard; therefore, he could not be ninety percent permanently partially disabled since he is now earning approximately fifty-eight percent of what he was earning at the time of his injury.

In Goodyear Tire & Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So.2d 278 (1957), the supreme court rejected the suggestion that the test of an employee’s ability to earn is a comparison between the earnings before and after the injury. It said:

[T]he test is the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee “is able to earn in his partially disabled condition”. It seems to us that this clearly excludes any notion of limiting the determination of a loss in ability to earn to the one question of wages actually earned after the injury as compared with those earned before. There are other factors which may be considered.

Then the court quoted with approval the following from Larson’s Workmen’s Compensation Law, Vol. 2, § 57.21, pp. 4-6:

“[A]ctual post-injury earnings will create a presumption of earning capacity commensurate with them, but the presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. Unreliability of post-injury earnings may be due to a number of things: increase in general wage levels since the time of accident; claimant’s own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of post-injury earnings.”

In the absence of evidence proving that post-injury earnings are an unreliable basis for estimating earning capacity, the presumption that actual post-injury earnings are commensurate with earning capacity stands unrebutted.

In the case at bar there is no proof of the existence of any one or more of the variables mentioned in Downey. Thus, capacity created by the proof of actual post-injury earnings is unrebutted. The trial court’s finding that claimant had a ninety percent reduction of his earning capacity due to his job-connected injury is without support in the evidence, and its judgment must be reversed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Michael Tyrone MILLER v. STATE of Alabama.
    Civ. 2558.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.

      David E. Worley, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp, Clyde P. McLendon, and Roger J. Burnett, Asst. Attys. Gen., for appellee.

      . The legislature has recently amended § 26-12-7 to extend the limitation period from two to five years. Act No. 81-698, Reg. Session, 1981. This amendment became effective May 21, 1981.

   HOLMES, Judge.

This is a paternity suit.

The State of Alabama, upon the petition of Patricia Crutcher, brought a paternity suit against Michael Miller. The trial court, after an ore tenus hearing, found Miller to be the child’s father and ordered him to pay child support.

Miller, the reputed father, appeals, contending through able counsel (1) that the suit was time barred under § 26-12-7, Code of Ala. 1975, and that the trial court erred by denying Miller’s motion to dismiss, and (2) that the trial court erred by requiring Miller to testify.

We find no error and affirm.

The record reveals the following facts:

The child involved in this suit was born on May 13,1973. The instant paternity suit was filed in July of 1980.

At trial Crutcher, the child’s mother, testified to the effect that Miller was the child’s father; that Miller orally acknowledged paternity shortly after the child’s birth; and that Miller gave her and the child money and other things for the benefit of the child. Specifically, Crutcher testified that Miller gave the child small amounts of money during the first two years of the child’s life and that Miller continued to give the child small amounts of money from that time until 1980. In addition, Crutcher testified that Miller gave the child a Christmas present when the child was approximately two and a half years old; that Miller gave her $10 to buy the child an Easter suit in 1979; and that Miller gave her $10 to pay the child’s doctor bill in 1980.

During the trial the State called Miller as a witness. Miller’s counsel objected, stating as his ground the quasi-criminal nature of paternity proceedings. The trial court overruled the objection and permitted the State to examine Miller.

Miller, through counsel, contends that the suit was time barred by § 26-12-7, Code of Ala. 1975, and that the trial court erred by failing to dismiss the case.

Section 26-12-7, requires suit to be brought within two years of the birth of the child. The record clearly indicates that this requirement was not satisfied.

The State, however, contends that the two-year limitation period was tolled when Miller orally acknowledged paternity and supported the child.

A legal acknowledgment of paternity will toll the two-year limitation period of § 26-12-7 and prevent that Code section from barring a suit. However, the legal acknowledgment must have been made within the two-year period following the child’s birth and the suit must be brought within two years of the acknowledgment. State v. Hall, 388 So.2d 1004 (Ala.Civ.App.1980); State v. Maddox, 358 So.2d 461 (Ala.Civ.App.1978).

In the instant case there is evidence that Miller orally acknowledged paternity within two years of the child’s birth, but it is clear from the record that the suit was brought more than two years from the date of that acknowledgment. Therefore, Miller’s acknowledgment of paternity does not prevent § 26-12-7 from barring the suit. State v. Hall, supra.

Evidence showing that the reputed father supported the child within the two years following its birth will also toll the limitation period and prevent § 26-12-7 from barring a suit. However, suit must be brought within two years of the date the reputed father last provided support. State v. Hall, supra; State v. Maddox, supra; Ward v. State, 42 Ala.App. 529, 170 So.2d 500 (1964); cert. denied, 277 Ala. 703, 170 So.2d 504 (1965).

In the instant case there is evidence that Miller gave the mother and child money during the first two years of the child’s life and that he continued to do so until the time suit was filed. While the total amount of those payments was quite small (approximately $30), the amount of money paid by the father is not controlling. Section 26-12-7 does not specify the amount of support necessary to toll the statute and it is not essential that the reputed father meet all of the child’s material needs. The determinative question is whether, under the facts of the case, the payments constitute an acknowledgment of paternity. If the payments do constitute such an acknowledgment, the reputed father has supported the child within the meaning of § 26-12-7. See, Reynolds v. Richardson, 62 Tenn.App. 269, 462 S.W.2d 233 (1970).

There is evidence in the instant case that Miller was, at all pertinent times, married to someone other than the child’s mother. There is also evidence that the child’s mother first met Miller at work, that she dated him for several months, became pregnant, and stopped dating him when she discovered that he was married. Finally, there is evidence that Miller consistently visited the child from the time of its birth. From these facts, we find that the trial court could, and apparently did, conclude that Miller gave the child money because he was its father and not for some other reason. Stated differently, there is evidence from which the trial court could conclude that Miller’s payments constituted an acknowledgment of paternity.

For this reason, we find that the suit was not time barred and that the trial court did not err in denying Miller’s motion to dismiss.

In addition to the above, Miller, through counsel, contends that paternity actions are quasi-criminal in nature; that the privilege against self-incrimination guaranteed by the Constitutions of the United States and Alabama apply to such proceedings; and that the trial court erred by requiring Miller to testify.

While § 26-12-3, Code of Ala. 1975, requires the State to prosecute paternity actions, the proceeding itself is civil in nature and is governed by the Alabama Rules of Civil Procedure. Everage v. Gibson, 372 So.2d 829, (Ala.1979); Keener v. State, 347 So.2d 398 (Ala.1979); § 26-12-2, Code of Ala. 1975; Rule 81(a)(9), A.R.C.P. See, State v. Horton, 373 So.2d 1093 (Ala.Civ.App.), affirmed on other grounds, 373 So.2d 1096 (Ala.1979). Under Rule 43(b), A.R.C.P., the plaintiff may call the defendant as a witness.

For this reason we find that the trial court did not err in requiring Miller to testify.

The case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Ingeborg Amanda CHEATHAM v. Tommy Wayne CHEATHAM.
    Civ. 2626.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    L. H. Little, Jr., of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Robert C. Gammons, of Timberlake & Gammons, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parties were divorced in 1973, the decree by agreement awarding custody of the then infant child, Candace, to the mother. In 1976 the mother, Candace and the mother’s other child, Chris, moved to Rangely, Colorado. Subsequently, the husband petitioned for modification, the trial court denied change of custody and we affirmed such denial in Cheatham v. Cheatham, 344 So.2d 525 (Ala.Civ.App.1977). The husband again sought custody of Candace by petition to modify, alleging that the child was being kept in an unsuitable and undesirable atmosphere, was being left alone and without proper supervision, clothing and food. After oral hearing, the trial court granted modification and awarded Candace’s custody to her father. The mother appeals and we reverse.

Several well established principles guide our review of this case. Initially, we recognize the presumption of correctness to be accorded the trial court’s judgment and that such judgment should only be reversed upon a showing of plain and palpable abuse of discretion. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980). The primary consideration here, as in every child custody case, is the welfare of the child. Perez v. Hester, 272 Ala. 564, 133 So.2d 199 (1961). The party seeking to modify custody provisions of the original decree has the burden of proving a material change in circumstances affecting the welfare of the child since that decree. Nelson v. Nelson, 354 So.2d 1142 (Ala.Civ.App.), cert. denied, 354 So.2d 1144 (Ala.1978); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214 (1975). The petitioner’s burden of proof in custody modification is a heavy one in that (1) the original decree is presumed correct, (2) there must be a substantial reason for the change, and (3) the surrounding circumstances must affect the welfare of the child. Roberson v. Roberson, 370 So.2d 1008 (Ala.Civ.App.), cert. denied, 370 So.2d 1012 (Ala.1979).

The only issue is whether the husband met his burden of proving a material change in circumstances affecting the welfare of the child so as to justify a change in custody. Without detailing the evidence presented, and noting that we have studiously reviewed the record, we find that the husband failed to carry his burden in this regard.

There was much evidence in the form of testimony and depositions of thirteen witnesses. Virtually all the evidence was presented in a manner as to set forth the virtues of the respective parties with regard to their parental capabilities. This evidence would only indicate, and the trial court stated in its decree, that “both parents are fit and proper persons to have the custody of the parties’ minor child. . . . ” The remaining evidence as to alleged deficiencies of the mother in raising the child is more reflective of the differing lifestyles of Rangely, Colorado, population 2,000, and Huntsville, Alabama, a metropolis of over 140,000 persons, than of any shortcomings on her part. That the child has always been clean, well fed, successful in school and generally happy while living with her mother is undisputed. That the mother loves, cares for, looks after and provides for the child to the best of her means is obvious. The eight-year-old child’s expressing a desire to live with her father, particularly after he has had temporary custody for several months at the time of trial, is not determinative. Patterson v. Patterson, 345 So.2d 1364 (Ala.Civ.App.1977). The child expressed love for and approval of the treatment received from her mother as well.

Having carefully reviewed the record before us, we see no reason for changing custody from one “fit and proper” parent to the other. There is simply no evidence of a material change in circumstances affecting the welfare of the child other than the better financial circumstances of the father. If that were the standard for determining custody, few divorced mothers would gain custody. The judgment of the trial court is due to be reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    George Wesley LACY v. Betty Dean LACY.
    Civ. 2658.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.

      Robert A. Wills of Wills & Vargo, Bay Minette, for appellant.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial judge divorced the parties and awarded the wife alimony in gross and an attorney’s fee. The husband appeals and we affirm in part and reverse in part.

With the attendant presumptions afforded the trial court, the following pertinent facts are revealed:

The parties have been married and divorced on several occasions. They had been married almost three years when the trial court granted the divorce which is the subject of this appeal. The parties had no children of their own, but the wife has four children by a previous marriage, all of whom lived with the parties at one time.

At the time of trial the wife had been employed at Standard Furniture Manufacturing Company for about three years. Her average income from Standard Furniture was between $100 and $125 per week. She also received child support payments from her former husband. This amount varied from $290 to $360 per month. The wife’s paychecks and child support checks were deposited into the parties’ joint checking account.

The husband was employed as a pulpwood-er. His annual income for the years 1979 and 1980 was about $40,000. Half of the husband’s income was placed in a business account which went for the payment of payroll, taxes, and other expenses. The other half was put into the parties’ personal joint checking account. Shortly before the parties separated, the husband received about $5,000 from a land sale transaction; this money also went into the parties’ joint checking account.

The parties purchased a home in 1976 for $36,000. When the wife left in July of 1980, the house was mortgaged for approximately $38,000. The house completely burned down in September of 1980.

The wife testified that the husband’s gambling habits caused the breakdown of the marriage. She further stated that the husband gambled every day. The money the husband made from gambling was kept at home or placed in a safety deposit box. When she left, the wife took $2,000 from the safety deposit box and opened a savings account in her name.

The husband raises three issues on appeal: (1) whether the trial court erred in awarding alimony in gross to the wife; (2) whether the trial court erred in failing to make a specific division of property; and (3)whether the trial court erred in awarding an attorney’s fee to the wife.

We shall first address the issue regarding alimony in gross. The husband argues on appeal that the trial court erred in awarding alimony in gross to the wife on the ground that the wife did not request such relief and the parties did not consent to the trying of the issue.

It is clear that alimony in gross may be awarded despite the wife’s failure to specifically request it if the issue was tried by the express or implied consent of the parties. Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App.1980). Where the record reveals evidence which supports an award of alimony in gross, the trial judge is not precluded from making such an award even though it was not specifically requested. Tidwell, supra.

In the case before us there was a great deal of evidence introduced regarding the financial condition of the parties. For example, the record reveals that the parties lived in a well-furnished home. The husband testified that he was able to provide for the wife and that it was not necessary for her to work during the marriage.

Nevertheless, the wife did work and contributed paychecks totalling about five thousand dollars a year to the parties’ joint checking account. At the time of trial, the wife was still working at Standard Furniture Company. She was living in an urban renewal apartment and was collecting food stamps.

The husband, on the other hand, was still employed as a pulpwooder at the time of trial. That occupation had brought him $40,000 of income in 1979 and in 1980. After the parties separated the husband was financially able to purchase 200-300 shares of stock which he retained at the time of trial.

The evidence noted above is clearly related to alimony and support and suggests not only that the wife is in need of support but also that the husband is able to pay it. Such evidence clearly supports an award of alimony in gross.

In addition, we note that the wife, in her petition for divorce, requested an equitable division of property, as well as such other relief to which she may be entitled. Such a request indicated that the parties were aware that the finances of the parties and/or the support of the wife were issues to be determined by the trial court.

The husband apparently also contends that even if the court did not err in granting alimony in gross, it did err in awarding $7,000. Stated differently, the husband contends the amount of the award is excessive. We disagree.

The question of alimony is a matter within the trial court’s sound discretion and will not be reversed on appeal in the absence of abuse. Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977). Some of the factors to be considered in determining alimony in gross are: the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their marriage; the source of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of divorce. King v. King, 367 So.2d 492 (Ala.Civ.App.1979).

With those factors in mind, we do not consider an award of $7,000 as alimony in gross to be an abuse of discretion in this case. The parties before us had a nice, well-furnished, although heavily mortgaged home. The husband had an annual income of about $40,000 in the two years prior to the divorce. The husband’s gambling apparently caused the breakdown of the marriage.

The wife contributed all of her paychecks and child support payments to the parties’ joint checking account. Her take-home pay amounted to about $5,000 per year. At the time of trial, the wife was living in an urban renewal apartment and was receiving food stamps.

With the above facts in mind and with particular emphasis on the great difference in earning power between the parties, we find no abuse of discretion in the $7,000 award.

The next issue raised by the husband is whether the trial court erred in failing to make a specific division of property.

In the case on appeal, the parties’ only major asset was their home, which completely burned down after the parties separated. If the husband contends, and we are not positive that he does so contend, that the trial court erred in failing to make a specific disposition of the house, we disagree. A trial court is not required to make a ruling on each and every aspect of the parties’ financial condition. Miller v. Miller, 391 So.2d 119 (Ala.Civ.App.1980). The failure of the court to rule in the case on appeal simply leaves the parties in the same position relative to the house as they were in prior to the divorce. See, Miller, supra. In this instance, we note that there is evidence that during prior marital problems the wife deeded to the husband her interest in the house. By the above, we should not be understood as determining who in fact owns the house or their respective interests therein. If there are future “problems” regarding this aspect, a trial court must first determine these matters upon proper action brought before such court.

The only other assets of the parties consisted of two vehicles, furniture, the husband’s stock, and certain bank accounts. We note that the trial court ordered the wife to make the payments on the car which she drives and that the husband kept the other vehicle. Again, the failure of the court to rule regarding the parties’ other assets simply leaves them in the same position with regard to those assets as they were prior to the divorce. See, Miller, supra.

The last issue raised on appeal is whether the trial court erred in awarding an attorney’s fee to the wife on the ground that the wife failed to request such an award and that the issue was not tried by the express or implied consent of the parties. We agree that since there was no request for an attorney’s fee and the issue was not tried by the express or implied consent of the parties, the trial court therefore erred in awarding the wife an attorney’s fee.

We note that we have upheld an award of an attorney’s fee where no request for such an award was made. Tidwell v. Tidwell, supra. However, in Tidwell we found that the issue had been tried: “The record in this case shows evidence as to the need of the wife and performance of service by her attorney without objection by the husband.” Tidwell, supra, at 615.

Although there is evidence in the record on appeal which would support a finding of need on the part of the wife, regrettably there is no evidence regarding the performance of service by the wife’s attorney. More specifically, there is no evidence in the record below regarding the time spent on the case, the difficulty of the case, or any other pertinent facts regarding the performance of service by the wife’s attorney. Put another way, the opposing party is in no way put on notice that an attorney’s fee is requested or desired. Since there is no such evidence, we cannot say that the issue was tried by consent of the parties. Therefore, since there was no request for an attorney’s fee and there is no evidence regarding the performance of service by the wife’s attorney, the trial court erred in making an award of an attorney’s fee and must be reversed and remanded on that ground.

This cause is due to be affirmed in part, reversed in part, and remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . We note that at trial the wife was ably represented by counsel.


text:
    Pearl G. DANIELS v. BONA FADA FEDERATED CLUB 1979-80 MEMBERS.
    Civ. 2816.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    No brief filed for appellant or appellee.
   HOLMES, Judge.

The plaintiff sued the defendants in the Small Claims Court of Montgomery County. After trial, a judgment was entered in favor of defendants.

The plaintiff appealed to the Circuit Court of Montgomery County. The Circuit Court of Montgomery County entered the following judgment:

This matter is presented to the court on the pleadings, testimony of the parties and their witnesses taken ore tenus, and documents admitted as evidence.
Upon consideration thereof, the court is of the opinion and finds that judgment is due to be entered in favor of defendants. It is therefore ORDERED that judgment be entered in favor of defendants and against plaintiff with costs taxed against plaintiff for which let execution issue.

From the above it is clear that testimony was taken in the circuit court. This testimony is not contained in the record.

Where no transcript of any evidence taken orally before the trial court is before the reviewing court, review of propriety of the trial court’s conclusion thereon is precluded and it is presumed that the omitted evidence justified the trial court’s action. Park v. Elliot, 282 Ala. 110, 209 So.2d 393 (1968); 2 Ala. Digest Appeal & Error Key 695(1).

Additionally, errors, if any, committed below must be affirmatively demonstrated by the record before this court. Summerlin v. Bowden, 353 So.2d 1175 (Ala.Civ.App.1978). If the record does not disclose the facts upon which the alleged error is based, such error may not be considered on appeal. Clevenger v. State, 369 So.2d 563 (Ala.Civ.App.1979). The instant record does not so disclose.

We would further note that both parties have totally failed to comply with rule 28, A.R.A.P. Hence, review is precluded.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Barbara Griffin WALTERS v. Fred R. GRIFFIN.
    Civ. 2609.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      Robert M. Echols, Jr., Birmingham, for appellant.
    William K. Davenport of Baxley, Stuart, Ward & Dillard, Birmingham, for appellee.
   BRADLEY, Judge.

This is a child custody case.

The parties to this proceeding were married in 1974 when Walters was seventeen years old and Griffin was twenty-eight or twenty-nine years old. One child, Joshua, was born in 1977.

In 1978 Walters contacted an attorney about initiating divorce proceedings. The parties signed a divorce agreement subsequently adopted by the court, which gave custody of Joshua to Griffin. Walters moved to Birmingham where she met her present husband, Bruce Walters. They moved to Memphis, Tennessee where they lived together until their marriage in 1979. They now live in New Jersey.

Walters has had reasonable visitation rights with her son and has had physical custody of Joshua in her home in New Jersey.

On June 9, 1980 Walters filed a petition to modify the divorce decree to obtain custody of Joshua. Trial was had on October 30, 1980 and judgment was rendered on November 3,1980. That judgment provides in part as follows:

There has certainly been a change of circumstances since the final decree of divorce was entered. These changes of circumstances are to be considered in the context of what is in the best interest of this 3 year old child. The Court finds that the mother was sincere and properly motivated in bringing this action, that both she and the father care for the child, that the mother has substantially altered her living conditions since the time of the divorce, and that the child has been living with the father since the divorce. The Court further finds that the father’s conduct since the divorce has been at times questionable in regard to the child, and in particular his discipline of the child in the Court’s mind was excessive. Concerning such, the father should walk circumspectly. The child, however, seems to care for and be attached to the father. The father works all day and leaves the child with his 65 year old mother, whereas Barbara Walters is free to tend to the child all day. There are many factors to consider in the custody and visitation issue and the Court will not name them all particularly.
The mother shall have the child in her home, in New Jersey or otherwise, for two and one-half of every six months, beginning November 1, 1980. Each visit with the mother shall last for two calendar months plus 15 days, and the child shall then return or be returned to the father for the rest of the one-half month and three calendar months, at the end of which time the cycle shall be repeated. Custody, however, shall remain with the father. The mother and child hopefully will establish a new and deeper relationship as mother and son.
Each custody case is unique. This Order is made for these times, and obviously will require modification at least by the time the child becomes of school age.

The evidence shows that Griffin is engaged in the logging business. He and Joshua live in a two bedroom trailer on forty acres of land in Chelsea, Alabama. This property is very close to Griffin’s mother and other relatives.

Prior to their divorce, the parties had both smoked marijuana and consumed alcoholic beverages. Griffin admitted having engaged in these activities but stated that he had reformed and has not engaged in such activity in at least eight months prior to trial and has never done so in Joshua’s presence.

Much of the testimony at trial concerned the well-being of Joshua. Evidence was presented that tended to show that Joshua was not properly fed, clothed, and cleaned. This testimony was contradicted by several witnesses.

The record reveals that Griffin’s mother cares for Joshua in her home while Griffin is at work. There is evidence that Joshua is usually fed and dressed when he is left with his grandmother and if for some reason he is not his grandmother takes care of him.

Griffin testified that he loves his son and they spend a great deal of time together. Griffin also testified that he did not want to prevent Walters from seeing Joshua.

The dispositive issue before this court is whether the trial court’s failure to transfer full legal custody of Joshua to Walters constituted a plain and palpable abuse of discretion and was contrary to the weight of the evidence. We find no error and affirm.

We begin by noting that where a trial court has heard evidence ore tenus in a child custody modification proceeding, its decision will not be reversed on appeal except for plain and palpable abuse of discretion. Porter v. Templeton, Ala.Civ.App., 368 So.2d 35 (1979). The reviewing court will not substitute its judgment for that of the trial court if there is any reasonable inference from the evidence that the trial court was correct in its judgment. Porter v. Templeton, supra.

The party seeking to modify a child custody decree has the burden of proving a material change of circumstances since the last custody decree which has so affected the best interests of the child as to require a change of custody. Frazier v. Frazier, Ala.Civ.App., 342 So.2d 1320 (1977).

The wife contends that her changed financial situation and her remarriage along with Griffin’s conduct support a modification of the custody decree to give her full custody of Joshua. Neither remarriage nor improved financial circumstances is a controlling element in a child custody modification case. Porter v. Templeton, supra. Contrariwise, there is evidence in the record which shows that Griffin has provided care and love for his son.

Based on the record before us, we cannot say that the trial court plainly and palpably abused its discretion in not granting full custody of Joshua to his mother.

AFFIRMED.

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


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    FIRST NATIONAL BANK OF COLUMBIANA v. STATE of Alabama.
    Civ. 2627.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      William R. Justice of Harrison, Conwill, Harrison & Justice, Columbiana, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

Events from which this case arose were: A truck was seized by officers of Chilton County as contraband under § 20-2-93, Code (1975). The First National Bank of Columbiana, located in Shelby County, had a security interest in the truck perfected by listing on the certificate of title issued by and registered in the Department of Revenue of the State of Alabama, as required by § 32-8-37 of the Code. Petition for condemnation was filed in the Circuit Court of Chilton County against the truck.

On the day of filing, notice of the seizure of the truck was given by phone by an attorney in Chilton County to vice president Hill of the Bank. The informer was not then counsel for the Bank. However, Hill sent a copy of the security agreement and a copy of the original certificate of title on the truck, held by the Bank as lienor, to the informing attorney who sent them with a letter to the district attorney handling the case.

A day later the district attorney wrote the attorney that the petition had already been filed and that the Bank could file its claim of interest, but the action would continue because it was believed that the truck would bring more at public sale than the amount of the Bank’s claim. Publication in a local newspaper for three weeks was ordered and made, notifying those having an interest to file claims.

The attorney passed the information of the letter and its contents to Hill of the Bank with advice to file a claim. The final date for filing claims passed with no claim filed. Decree pro confesso was entered, with an order of condemnation and sale some three weeks thereafter. Notice of sale was published a week later. The Bank filed its claim and motion to set aside judgment on the day of sale through the same attorney.

An oral hearing was subsequently held. The court found that notice by publication was given to all claimants; that the Bank had actual notice of the seizure and filing of the forfeiture petition and failed to file its claim within the period allowed. The claim was denied.

The Bank first contends that as the holder of a properly registered security interest, it was entitled to be served with notice of the filing of the forfeiture proceeding and that constructive service by publication was constitutionally insufficient.

We begin our response to the Bank’s contention by pointing out that though § 20-2-93 provides for seizure and forfeiture of conveyances used to transport controlled substances for the purpose of sale, it fails to provide the procedure for forfeiture. There is no statute or rule of court which establishes the procedure for court proceedings for condemnation of property seized subject to forfeiture.

Similar proceedings for condemnation of seized conveyances have been brought for many years under § 28-4-285, 286. Those statutes relate to property seized while being used to transport alcoholic beverages in dry counties. There appears no substantive reason why the procedure in those cases would not be appropriate in other matters of forfeiture. Section 28-4-286 provides for procedure in such cases. It directs the action to be brought in the name of the State against either the property seized or against the person, if known, in possession when seized. The judge of the court where filed is authorized to make all orders of procedure necessary to regulate the proceedings so that all persons who claim an interest in the property may have the opportunity to appear and propound their claims to the property sought to be condemned. Cases construing these statutes have held them to be actions in rem against the property. Koger v. State, 215 Ala. 319, 110 So. 573 (1926); In re One Ford Auto, 205 Ala. 193, 87 So. 842 (1921). In most instances, notice of the filing of the action for condemnation was given by publication in a local newspaper for three successive weeks. Persons claiming an interest in the vehicle were informed therein of their right to appear and protect that interest. If the action was brought solely against the property, no notice other than by the publication was given any person whether owner or lienholder. Such procedure was apparently approved by the U.S. Supreme Court in the case of Pennoyer v. Neff, 95 U.S. 714, 727, 24 L.Ed. 565, 570 (1878):

Substituted services for publication, or any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale .... In other words, such service may answer in all actions which are substantially actions in rem.

This statement in Pennoyer v. Neff, must now be viewed in light of more recent application of the due process clause of the fourteenth amendment of the U.S. Constitution to state action. The supreme court discussed the history of forfeiture both at common law and statute in the cases of Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 134 (1971). It was pointed out in those eases that it had long been and continued to be the rule that property seized while being used in the commission of a crime may be subject to forfeiture regardless of the innocence of the owner. Such forfeiture to the State was not deemed unconstitutional. General Motors Acceptance Corp. v. United States, 286 U.S. 49, 52 S.Ct. 468, 76 L.Ed. 971 (1932); Van Oster v. State of Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354 (1926); Goldsmith-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921).

However, the statute at hand is not so penal as to provide for forfeiture of property used in the commission of a crime regardless of the innocence of the owner or lienholder. Section 20-2-93(a)(4)c provides, “A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission.” Thus, it is recognized that a lienholder has an interest in the property sought to be forfeited to the State. That interest is protected by the due process clause of the fourteenth amendment.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). “This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The means of informing or giving notice must be of such nature, giving due regard to the practicalities and peculiarities of the case, as is reasonably calculated to convey the required information.

When notice is due, process which is a mere gesture is not due process. Publication in a newspaper with only local circulation, of an action against a motor vehicle without reference to the name of the owner, can hardly be said to be a reliable means of informing lienholders foreign to the area of circulation that their security interest is before the court.

The lienholder may be said to stand in a different position than an owner. Publication as a means of notice to an owner of property that condemnation of his property is before the courts has been accepted as constitutionally sufficient. However, the theory in such cases has been that an owner keeps up with his property and knows when it has been seized by the State. Therefore publication of an action of forfeiture against it is merely supplemental to actual notice already conveyed by the seizure. Mullane v. Central Hanover Bank & Trust Co., supra; Pennoyer v. Neff, supra. Such presumptive theory of supplemental notice by publication should not prevail against a lienholder not in possession, as in this ease.

We are dealing in this case with a lien-holder whose lien is recorded on the certificate of title issued by the State Department of Revenue. It is on record in that department and the names of the lienholder and owner are easily obtainable. The State by statute has proclaimed that forfeiture of a conveyance encumbered by a bona fide security interest is subject to that interest if the secured party neither had knowledge of nor consented to its illegal use. Such interest can only be protected by due process notice of the seizure and action for condemnation. We hold that notice by publication of a pending action against the property does not reasonably satisfy the requirement of due process under the fourteenth amendment with respect to a lienholder whose name and address are known or reasonably ascertainable. Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972); Mullane v. Central Hanover Bank & Trust Co., supra.

The notice we refer to here is not that required in the service of a summons and complaint upon a defendant party in a suit at law under Rule 4, A.R.C.P. It is such notice as is provided for in Rule 5, A.R.C.P. In fact, Rule 5(a) refers to the giving of notice to the party having custody or possession in actions begun by seizure of property in which no person is named as defendant. A lienholder of record should be entitled to the same notice.

What we have said thus far is not dispositive of this case in light of its peculiar facts. The trial court refused to set aside its judgment because the Bank had actual notice of the filing of the action against the property. Such finding is supported by the undisputed evidence. Vaughan v. Fuller, 278 Ala. 25, 175 So.2d 103 (1965). The contention of the Bank that the attorney who informed it of the seizure and subsequent filing of the action was not its retained counsel begs the question. The Bank had notice and ample time and opportunity to appear and defend. Goodall v. Ponderosa Estates, Inc., 337 So.2d 726 (Ala.1976).

We affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Peggy Hudson TUCKER v. Donald Wayne TUCKER.
    Civ. 2663.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      Timothy B. Loggins of Loggins & Log-gins, Opp, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns post-divorce litigation for the support of the two children of the parties, John, who was born in 1964, and Gina, whose birth date was in 1972.

On December 29, 1978 the judgment of divorce ratified and approved a written agreement of the parties by the terms of which the husband agreed to convey the home to the wife, who was also to receive $700, the household furnishings, a 1976 Plymouth automobile, custody of the children and the right to claim both children as tax return dependents. The husband was additionally required to pay the debt upon the wife’s Plymouth and certain other debts. In the settlement, the husband received his pickup truck and about $300. He has fully complied with all of the provisions of the written agreement.

Nothing was contained, provided nor mentioned in either the agreement or in the judgment as to support for the children, or either of them.

On August 25, 1980 the wife filed her petition seeking a “modification” of the divorce judgment so as to provide reasonable periodic support for the children from the husband, and to require him to be responsible for all of the children’s reasonable and necessary medical, drug and dental expenses. After a trial before the court, the circuit court ordered the husband to pay all such medical and dental expenses, but denied the relief concerning periodic child support.

On appeal, we are required to apply certain oft-repeated rules of review where the trial court personally heard the evidence. In a child support case, it is presumed that the trial court’s judgment is correct, and an award of child support, based upon the needs of the child and the ability of the parent to pay, is a matter within the sound judicial discretion of the trial court. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980); Spears v. Spears, 382 So.2d 572 (Ala.Civ.App.1980).

During the twenty-one months intervening between the divorce and the last hearing, the husband on one occasion spent between $200 and $300 for clothing for the children. The wife contends that the clothing expenditure by him was to enable the children to be appropriately dressed while attending his remarriage ceremony. She testified that she could not afford to purchase clothes for Gina, but had them made, and that John’s clothing largely were used clothes from her friends and relatives.

The wife estimated that the husband had further provided, during that time period, a total of $150 for child support, with the husband stating that, while he did not know the amount of such payments, they exceeded $150. It is not clear whether that amount consisted entirely of dental expenses which he paid for John.

She contends that the average cost of supporting the children amounts to $781 per month. She borrowed money on one occasion to apply toward their day-to-day living expenses.

The wife is employed, with her gross income in 1979 being $8,846. The husband’s gross wages amounted to $15,666 in 1979, which sum did not include two months’ non-taxable disability payments, which were computed at the rate of seventy percent of his gross pay for that period. His federal income tax refund was $1,043 in 1979, and the state refund amounted to $272, with his charitable contributions totaling $1,933. He is paid at the rate of $8.50 per hour, and she receives an hourly rate of $4.28. He supports his present wife and a thirteen year old stepdaughter. The wife supports herself, Johnny and Gina. Recently, the wife sold the home for $12,500 and she indicated an intent to use those proceeds towards purchasing a new home.

The husband filed pleadings contending that, in consideration and return for the property conveyance, the payment to her of the $700, and his payment of debts and encumbrances, the parties had agreed that he would have no future periodic child support obligation and that he has fulfilled his end of the bargain. He averred that the home which she obtained via the divorce was a substantial portion of his child support obligation and that the proceeds from the house sale received by her represents that part of his obligation. It does not appear from the record as to the various interests of the parties in the property before his conveyance of the home to her.

The evidence on that issue sharply conflicted, which would normally make such matter a question of fact to be determined by the trial court; however, in Durham v. Durham, 336 So.2d 1360 (Ala.Civ.App.1976) it was decided that, in cases of this nature, testimony concerning such an unapproved oral pre-judgment agreement of settlement is not pertinent. Whether the written agreement approved by the court varied from an oral agreement of the parties made prior to being reduced to writing is of no consequence after the time for correction of the judgment has passed. The agreements of the parties became merged in the judgment.

Here, the husband does not seek relief from the judgment under A.R.C.P. rule 60(b)(6), nor reformation of the judgment or agreement, nor specific performance, and we are not concerned with whether any of such remedies would be applicable. As we construe his pleading, his defense and evidence was simply that the specified oral pre-divorce agreement, which was never made a part of the divorce judgment, was a bar to recovery from him of any child support. In Donald v. Donald, 50 Ala.App. 9, 276 So.2d 436 (1973), the husband attempted to defend by showing that the purpose of their original agreement was that the six hundred shares of stock which he gave to the wife would be used for the education of the children. It was there decided, “If not incorporated in the decree such agreements are of no probative value and could not vary the provisions of the decree. Neither may an agreement of the parties affect the rights of a child to support from the father.”

The obligation of a parent to support a minor child cannot be permanently removed by agreement, release or judgment, if circumstances require its re-invocation in the future. Moore v. Moore, 57 Ala.App. 735, 331 So.2d 742 (1976); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975); Donald v. Donald, supra. One parent cannot permanently waive or release the other parent from their obligation to meet the needs of children for support as that need is shown to exist at the time. If the non-custodial parent is financially able to respond to those needs, it is the responsibility of the court, upon petition and proof, to cause them to do so. Here, the fact that the mother has, by verbal agreement, necessity, or acquiescence, accepted and fulfilled the responsibility of furnishing almost all of the financial needs of the children does not release the father from presently assuming a portion of their support, if the present needs of the children require it. Womble v. Womble, supra.

In Armstrong v. Sparks, 360 So.2d 1012 (Ala.Civ.App.1978), the parties had apparently agreed between themselves that the husband was not obligated to provide child support, but the agreement in that respect had never been adopted by any judgment of the court. The wife sought to modify the judgment and gain child support, but the trial court denied her petition since she had failed to show a material change in the circumstances. Therein, it was decided as follows:

In the present case the original decree of divorce and the subsequent modifications thereof contained no references to the purported agreement between the parties dispensing with the husband’s duty to furnish money for the support of his minor child. Consequently, the wife’s petition to modify constituted a supplemental petition to the original divorce decree as modified to award her custody of the parties’ son. And under that petition the husband was obligated to provide support for his child just as if the wife had sought such support at the time the court transferred custody of the child to her. Moreover, the wife’s petition being merely supplementary to the decree by which she received custody of the child, it was not necessary for her to demonstrate a change in circumstances in order for her former husband to be required to furnish child support. It was sufficient for the court to order the husband to provide for the maintenance of his child if the evidence tended to show he was financially able to do so. In the present case the evidence demonstrated that in 1976 the husband’s net income was $9,800. We believe that a yearly income of this amount indicates that the husband is financially able to provide some support for his minor child. Therefore, we reverse and remand the judgment of the trial court in order that it may determine the specific amount to be awarded as child support.

In the instant case the husband’s 1979 gross income, including disability benefits, exceeded $17,000, and his 1980 income for the first nine months amounted to $11,549. The husband is financially able to assume and pay some of the living and educational expenses of his two minor children. Accordingly, we reverse and remand the judgment of the dedicated, experienced and learned trial judge to enable the circuit court to determine a reasonable amount for the husband to pay as child support after giving due consideration to the needs of the children and to his financial ability to partially respond to those needs.

The wife’s request for an attorney’s fee on appeal is hereby granted and an award of $350 is made.

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

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.


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    Thelmo HENLEY, et al. v. The HOUSING AUTHORITY FOR the CITY OF MONTGOMERY, Alabama.
    Civ. 2666.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      George Beck, Montgomery, for appellants.
    Oakley Melton, Jr. of Melton & Espy, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Thirty-six unemployment compensation cases were consolidated for trial in the circuit court, and the claimants now collectively appeal since compensation was denied to them by the trial court. We affirm.

There is no real controversy over the facts. Therefore, we adopt the following findings of the trial court in that regard:

“Findings of Fact
“These cases grow out of a strike by certain maintenance employees of the Housing Authority for the City of Montgomery, Alabama (hereinafter Montgomery Housing Authority or Authority). The striking maintenance employees will hereafter sometimes be referred to as claimants. The strike commenced on May 2, 1979, after the Board of Commissioners of the Montgomery Housing Authority took under advisement a request by representatives of the Laborers International Union of North America that such union be recognized by the Authority as the bargaining agent for the maintenance employees. The claimants failed to report for work on the next day, i. e., May 2, 1979, and did not return to work prior to the time they were finally discharged by the Authority on May 24, 1979.
“On May 9 and 10, 1979, the Executive Director of the Montgomery Housing Authority sent a Notice of Hearing to each striking employee notifying him that a hearing was scheduled to determine whether or not the employee should be dismissed for failing to report for work for more than three days in violation of Rule IX, Section 1, of the Rules and Regulations of the City and County of Montgomery Personnel Department. Very few of the striking employees appeared for such hearings and on May 14, 1979, the Executive Director forwarded another letter to all of the striking employees notifying them of the many benefits they enjoyed as employees of the Montgomery Housing Authority. This letter enclosed a Notice of Termination for failure of the employee to report to work for three days. On May 17, 1979, the Board of Commissioners of the Montgomery Housing Authority held a special meeting to consider the request of the labor union that the Authority recognize such union as the bargaining agent of the maintenance employees. At such meeting, Jesse Griffin, Chairman of the Board, issued a statement to the striking employees and to their attorney. . . .
“The Board of Commissioners declined to recognize the Union as the bargaining agent for the maintenance employees at the meeting on May 17, 1979. On May 18, 1979, Mr. Charles Price, as attorney for the striking employees, appealed their termination of employment to the Board of Commissioners of the Authority. On May 21, 1979, the Board of Commissioners held another special meeting and considered such appeal and adopted Resolution No. 3170 which reinstated the maintenance employees to their jobs provided they returned to work immediately and unconditionally. However, the striking employees failed to return to work immediately and unconditionally as provided in Resolution No. 3170 and remained on strike and continued to fail to report for work. On May 24, 1979, another Notice of Termination was sent by the Authority to all of the employees who had failed to report for work for 23 days (including claimants in these consolidated cases). The claimants and the other terminated employees then appealed to the City and County of Montgomery Personnel Board which held a hearing on such appeals on June 8, 1979. On June 15, 1979, the Personnel Board sustained the action of the Montgomery Housing Authority in terminating the employment of the claimants and the other striking employees.
“The Court finds that under the facts of these cases that the claimants were discharged for actual, deliberate misconduct committed in connection with their work after previous warning. Failing to report for work for 23 days is misconduct within the meaning of the statute, and the claimants received several warnings that they would be dismissed if they failed to report for work for three days or more without cause. They were in effect so notified and warned by the Notices sent on May 9 and 10, 1979; they were again so notified and warned by Mr. Jesse Griffin in his statement at the special meeting on May 17, 1979; they were again warned by the action of the Board of Commissioners at the special meeting on May 21, 1979, when the Board reinstated them provided they returned to work immediately and unconditionally. It is clear to the Court that the claimants would not have been permanently discharged if they had returned to work at any time during the period from May 2, to May 24, 1979. They were given several warnings of the consequences of failing to return to work during such period of time, but the claimants consistently failed to heed such warnings.
“Conclusions of Law
“The Court concludes and finds that the policy of the Unemployment Compensation Act is to alleviate the burdens of involuntary unemployment and awarding compensation in these eases would be directly contrary to that principle, for these claimants caused their own unemployment and did so only after warnings that if they persisted in their misconduct they would become unemployed. In view of the foregoing findings of fact, the Court concludes that all of the striking maintenance employees (including the claimants herein) were discharged for actual, deliberate misconduct after warnings as provided for in § 25-4-78(3)(b) of the 1975 Code of Alabama. The claimants are therefore disqualified for unemployment benefits under this section of the law. . . . ”

Pertinent portions of § 25-4 — 78 of the Code 1975 are as follows:

“An individual shall be disqualified for total or partial unemployment:
“(1) LABOR DISPUTE IN PLACE OF EMPLOYMENT. — For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed. For the purposes of this section only, the term ‘labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his employer.
“(2) VOLUNTARY DEPARTURE FROM WORK. — If he has left his most recent bona fide work voluntarily without good cause connected with such work....
“(3) DISCHARGE FOR DISHONEST OR CRIMINAL ACT. . ..
B. If he was discharged from his most recent bona fide work for actual or threatened deliberate misconduct committed in connection with his work (other than acts mentioned in paragraph a. of this subdivision (3)) after previous warnings to the individual. . . . ”

Herein, subdivision (1) of that Code section shall be referred to as the labor dispute section, Subdivision (2) as the voluntary departure from work section, and Subdivision (3)(b) as the misconduct section (although there are other misconduct sections).

The present misconduct section has evolved by means of many legislative amendments. Title 26, § 214 C(1), Code of Alabama (1940)(Recomp. 1958) provided that an employee was disqualified from receiving benefits if he was discharged from his work “for actual or threatened deliberate misconduct after written warning to the individual.” In 1973, the legislature amended the misconduct section to its present form. Act No. 1057, Acts of Alabama 1973, § 6 at 1728.

The claimants primarily rely upon the case of T. R. Miller Mill Co. v. Johns, 37 Ala.App. 477, 75 So.2d 670, cert. denied, 261 Ala. 615, 75 So.2d 675 (1954), wherein, in denying the writ, the supreme court, in part, held (subsection A as referred to in the decision being the then labor dispute section and subsection B being the voluntary departure from work section):

“Thus, in our view, a fair construction of subsections A and B, supra, would be that if employees are disqualified for benefits under subsee. A when their unemployment was directly due to a labor dispute, regardless of whether they were right or wrong in the controversy, subsee. B, in fairness, could not be construed to mean that they left their work voluntarily when forced out of work by a labor dispute. And according to the facts set out in the opinion of the Court of Appeals, there was a ‘labor dispute’ in the instant case.
“But as pointed out earlier, petitioner contends that even if there was a labor dispute within the meaning of subsee. A of § 214, the claimants still should be disqualified, for they struck in violation of their contract and this constituted a voluntary leaving of their employment “without good cause” as set out in subsee. B. So although the courts have persistently refused to consider the merits of a labor controversy under provisions such as our subsee. A, petitioner now seeks to have us do it under subsee. B. There would seem to be no basis for the “regardless of merit” interpretation of sub-see. A if by virtue of subsee. B a worker was to be disqualified anyway every time he was “wrong.” Under subsee. A the claimant is disqualified so long as the dispute continues even if the employer is “wrong.” Yet petitioner asks us to hold that under subsee. B the worker is disqualified after the dispute is settled if he was in error in the dispute. So construed, the disabilities imposed by subsee. B would then be a penalty against the worker for being wrong but no corresponding sanction would be imposed on the erring employer. We do not think the Alabama Unemployment Compensation law affords a basis for such result.”

At least by implication, if not in actuality, it has been held that the T. R. MILLER case does not preclude the application of the misconduct section in a proper case. Bagwell Electric Steel Castings v. State Department of Industrial Relations, 42 Ala.App. 189, 158 So.2d 122, cert. denied, 275 Ala. 677, 158 So.2d 121 (1963). However, it was therein held that the then misconduct section could not be utilized since no written warning had been given to the particular employees as was required by the Code section as it was then written. T. R. Miller did not mention the misconduct section.

“There is a unanimity of opinion on the part of courts and legislatures that government employees do not have the right to strike.” United Steelworkers v. University of Alabama, 599 F.2d 56 (5th Cir. 1979) affirming 430 F.Supp. 996 (N.D.Ala.1977); Nichols v. Bolding, 291 Ala. 50, 277 So.2d 868 (1973); Annot., 37 A.L.R.3d 1147, § 3[a] at 1156, § 15 at 1180 (1971). In the University of Alabama ease it was held that the University’s maintenance workers’ strike was in contravention of the public policy and law of the State of Alabama and that the termination of their employment as public employees was not constitutionally prohibited. Id. 430 F.Supp. 1001, 1002. What we have said is no determination by this court as to the merits of the strike, that is whether the claimants or the Authority were right or wrong with relation to their dispute over wages, working conditions, benefits or the recognition of the union. It is not contrary to the prohibition of the T. R. Miller case to state that the maintenance workers as public employees had no right to strike against the Authority.

Neither side has directed our attention to say case which directly holds, either pro or eon, that public employees who strike are, or are not, prohibited from recovering unemployment compensation because of deliberate misconduct. It has been decided by an apparent majority of recent cases that the misconduct clause may apply in the private employment sector where an employee knowingly engages in a wildcat strike of his own free will in intentional violation of a specific no-strike clause in the collective bargaining agreement between his union and his employer. For examples, See, ITT Continental Baking Co. v. Davila, 388 So.2d 1254 (Fla.App. 1980); Houck v. Commonwealth Unemployment Compensation Board of Review, 45 Pa.Cmwlth. 587, 405 A.2d 1062 (1979); and Davis v. Review Board of Indiana Employment Security Division, 157 Ind.App. 455, 300 N.E.2d 690 (1973). For examples of cases to the contrary, See, Lillard v. Michigan Employment Security Commission, 364 Mich. 401, 110 N.W.2d 910 (1961) and Linski v. Appeal Board of the Michigan Employment Security Commission, 358 Mich. 239, 99 N.W.2d 582 (1959), both of which are cited by the claimants. In Linski, the court expressly, and correctly, stated, “We do not hold that a finding that a labor dispute exists necessarily excludes application of the misconduct penalty. What would be misconduct is not cured by the fact that it occurred in the course of a labor dispute.” Id. 99 N.W.2d at 586.

We are in accord with the following language in Yellow Cab Co. v. Unemployment Compensation Board of Review, 170 Pa.Super. 625, 90 A.2d 599 at 602 (1952):

“The amending Act denying compensation for unemployment due to discharge for ‘willful misconduct’ is couched in general language, clearly and unmistakably intended to apply to the Unemployment Compensation Law in all of its provisions, without exception, including § 102(d) (the labor dispute section). “When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Com. ex rel. Cartwright v. Cartwright, 350 Pa. 638, 645, 40 A.2d 30, 33, 155 A.L.R. 1088. An employee therefore may forfeit his right to unemployment compensation because of willful misconduct even though the misconduct which induced his discharge by the employer is related to a stoppage of work involved in a labor dispute. Nothing in the Act indicates that § 402(d) was intended to immunize an employee during a work stoppage in a labor dispute from the consequences of his willful misconduct connected with his work involving flagrant breach of duty to his employer and to his union, as in the present instances.”

For unemployment compensation purposes, we hold that a labor dispute is not a license for employees to commit deliberate acts of misconduct in connection with their work. A labor dispute does not bar the application of the misconduct section of the Unemployment Compensation Act.

The question thus becomes whether the unexcused absences of these striking public employees under the circumstances of this case constituted actual deliberate misconduct committed in connection with their work. Misconduct has been defined by 76 Am.Jur.2d 945, Unemployment Compensation, § 52, as follows:

“Thus, misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. Moreover, a continuing recurrence of such violations over a period of time clearly establishes such a deliberate and wilful intent to disregard the rights of the employer as to constitute wilful misconduct within the meaning of such a statutory provision. . . . ”

The strike by these public employees and their failure to report to work for twenty-three days constitutes deliberate misconduct in violation of the statute. This is especially true since they knowingly broke the rule of the City and County of Montgomery Personnel Board, which authorizes the dismissal of any city or county employee who, without authority, fails to report to work for more than three days. Their strike and unauthorized absence from their public employment for that long period of time falls within the classic definition of misconduct. That misconduct was deliberate.

Since we must affirm the judgment of the trial court upon its merits, we pretermit a decision upon the other major ground, as urged by the authority, for an affirmance.

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

AFFIRMED.

All the Judges concur.

      . There is no argument nor contention on behalf of the claimants that they were not previously warned in accordance with the present misconduct Code section.


text:
    Mitchell B. VALENTINE and Delores Valentine v. STATE of Alabama.
    Civ. 2715.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      Mitchell B. Valentine, pro se.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., and Bill Thompson, Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

Taxpayers appeal from an order of the Mobile County Circuit Court dismissing their appeal to that court from final assessments for income taxes.

In November 1979, the Alabama Department of Revenue entered two final assessments for income taxes, for the years 1977 and 1978, against taxpayers Mitchell and Delores Valentine. Taxpayers filed appeal from the assessments with the circuit court, such appeal provided by § 40-2-22, Code 1975. That code section provides as follows:

If any taxpayer against whom an assessment is made by the department of revenue. . . is dissatisfied with the final assessment as fixed by the said department of revenue, he may appeal from said final assessment... to the circuit court of the county in which the taxpayer resides....

Continuing, the statute provides as a prerequisite to such appeal that,

The taxpayer shall pay the assessment so made before the same shall become delinquent; and, if such taxes are not paid before the same becomes delinquent, the court shall upon motion ex mero motu dismiss such appeal unless at the time of taking the appeal the taxpayer has executed a supersedeas bond... in double the amount of the taxes payable to the state of Alabama, conditioned to pay all taxes, interest and costs due the state.... (Emphasis added.)

Thus, under the statute, before the taxpayer may appeal from final assessment he must either, (1) pay the assessment before the same shall become delinquent, or (2) at the time of taking appeal, execute a super-sedeas bond in double the amount payable, conditioned to pay all taxes, interest and costs due the state.

No supersedeas bond was executed when taxpayers appealed in December 1979. The total assessments against taxpayers totalled $1,372.04, including $878.97 in taxes and $493.97 in penalties and interest thereon. In April 1980, taxpayers deposited $878.97 with the clerk of the circuit court, protesting any requirement that amounts in excess of the actual taxes, i. e., penalties and interest, be paid in order to perfect appeal as required under § 40-2-22. Specifically, taxpayers claimed that the requirements of the statute unconstitutionally deprived them of their property without due process of law.

The Department of Revenue filed a motion to dismiss taxpayers’ appeal to the circuit court on the grounds that they had failed to perfect appeal under § 40-2-22. The Department’s motion was granted and taxpayers appealed to this court.

Taxpayers claim that the payment of $878.97, the amount of taxes owed as part of the final assessment, complied with statutory prerequisites to appeal under § 40-2-22 and, alternatively, that if such payment failed to so comply, the requirements under the statute are unconstitutional.

Addressing appellants’ first argument, we find compliance with requirements for appeal lacking. First, no super-sedeas bond was filed. Second, the requirement that “the taxpayer shall pay the assessment so made before the same shall become delinquent” was not met. Final assessment was for $1,372.04, including taxes, penalties and interest thereon. Appellant paid $878.97 into court, the amount of actual tax made part of the assessment. Appellants claim the payment in that amount was sufficient to perfect appeal.

The statute requires that the assessment, made by the Department, shall be paid before it becomes delinquent. Appellants cite the clause following, “and, if such taxes are not paid. . .the court shall. . .dismiss such appeal. . . . ” (emphasis added), for the contention that payment of the taxes made part of the assessment is sufficient. We do not agree.

There is no question here as to whether the department may add penalty and interest in making final assessment. See, State v. Pollock, 251 Ala. 603, 38 So.2d 870 (1948). Section 40-2-22 affirmatively requires payment of assessment to perfect appeal. Use of the term “taxes” in the clause following may be and in this case is synonymous with “assessment.” The term’s use is only indicative that in many instances the “assessment” and “taxes” are the same amount, as in cases where no delinquency is involved. See, State Dept. of Revenue v. Birmingham Realty Co., 255 Ala. 269, 50 So.2d 760 (1951); See, State v. Pollock, supra, 38 So.2d at 876. Section 40-2-22 is an all inclusive appeal statute. It applies to any final assessment made by the Department of Revenue including ad valorem tax as well as income or any other tax administered by the department. In the instant ease, penalty and interest were imposed as part of the assessment for failure to pay taxes in previous years. In similar cases, penalties and interest are often held to be as much a part of the “tax” as the principal amount itself. See, Crouch v. C.I.R., 447 F.Supp. 385 (D.Cal.1978); In re Knox-Powell-Stockton Co., 100 F.2d 979 (9th Cir. 1939); Blackmon v. Scaven, 231 Ga. 307, 201 S.E.2d 474 (1973); Hamilton v. Lawrence, 109 Pa.Super. 344, 167 A. 509 (1933). We find no merit in appellants’ argument that payment of the actual tax due, part of the assessment, is sufficient to perfect appeal. However, assuming the same was sufficient, appellants still did not meet the requirements to perfect appeal in this case.

The statute requires that payment be made “before delinquent.” Appellants paid the money into court in April 1980, some four months after filing appeal in December 1979. We are aware, as appellants have pointed out, that § 40-2-22 does not speak directly to the question of when such delinquency occurs after final assessment. When presented a similar problem as to interpretation of the statute in State v. Golden, 283 Ala. 706, 220 So.2d 893 (1969), our supreme court, per curiam, held that a reasonable construction of the statute is to require that payment should be made at the time of taking the appeal. State v. Golden, supra at 895. This seems particularly reasonable considering taxpayers’ other option of filing supersedeas bond at the time of taking appeal. Thus, appellants’ payment into court some four months after filing appeal, whether or not sufficient in amount, was clearly delinquent and did not meet the requirements of § 40-2-22. The assessment clearly becomes delinquent thereunder if not paid within the thirty days following final assessment allowed for appeal therefrom.

Appellants’ other argument, that the requirements of § 40-2-22 unconstitutionally deprive them of their property without due process of law, is not well taken. We addressed similar arguments recently in McLendon v. State Dept. of Revenue, 395 So.2d 71 (Ala.Civ.App.1980), cert. denied, 395 So.2d 73 (Ala.1981). We upheld the validity of the statute then and are not persuaded to do otherwise now.

The right of appeal, as well as the procedure used to perfect such appeal in tax proceedings, is purely statutory, a matter of legislative discretion and involves no inherent right of the taxpayer. McLendon v. State Dept. of Revenue, supra. After giving due consideration to the able arguments of the pro se appellants on this issue, we find § 40-2-22 to be constitutionally sound.

The judgment of the circuit court, dismissing appeal, is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The predecessor to § 40-2-22 was Title 51, § 140, Code of Alabama (1940) (Recomp.1958) (Supp.1973).


text:
    Margaret Ann TUCKER v. James Lavon TUCKER.
    Civ. 2721.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      Jerry W. Jackson, Haleyville, for appellant.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves an A.R.C.P. rule 60(b)(6) motion to set aside a divorce judgment.

The husband’s complaint, wife’s answer and waiver, and all necessary instruments were filed on June 5, 1979, with the divorce judgment being rendered on the following day. On March 4, 1980 the wife filed her motion for relief from that judgment, alleging, among other things, that the husband misrepresented material facts in the securing of the divorce and perpetrated a fraud upon the court and upon the wife. The trial court overruled her motion after an ore tenus evidentiary hearing thereon. The wife appeals.

At the motion hearing she testified:

When we agreed on the divorce the understanding that I had from him was that we would sign the divorce, take a month and talk about it and if the problem could be worked out the divorce would be throwed [sic] aside. If it could not be worked out, he would call the lawyer and have it sent through.

The husband denied any such understanding. She stated that, while she realized in October 1979 that the divorce was final, she did not see a copy of the divorce judgment until February 1980. The husband swore that he personally handed her copy of the divorce to her approximately two weeks after it was entered. This was her second divorce.

His complaint alleged, and his divorce evidence was, that the parties separated on July 7, 1978. She contests that separation date, contending that it was false evidence and constituted a fraud upon the court. At her motion hearing, her testimony was that the parties did not separate until August 1979. He testified that, while they resided under the same roof, their troubles commenced in July 1978; that they had not occupied the same bedroom for four and one-half months before the divorce was rendered; and that they had not exercised their conjugal rights for several months before she moved from the house. Generally, such facts were disputed by her.

The record discloses no facts which adequately establish a fraud upon the court under rule 60(b). Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.), cert. denied, 392 So.2d 1196 (Ala.1981).

Only sufficient facts have been related herein to indicate that the evidence was in bitter dispute. Where a trial is personally before the trial court and the evidence conflicts, the customary presumption applies as to the correctness of the trial court’s findings of fact, and we are not authorized to substitute our judgment for that of the trial court unless it is palpably wrong, not supported by the evidence or manifestly unjust. Cotton States Mutual Insurance Co. v. Conner, 387 So.2d 125 (Ala.1980); 2A Ala. Digest, Appeal & Error Key 1010(2). The trial court has a judicial discretion to exercise in ruling upon rule 60(b) motions, and we can reverse only for an abuse thereof. Ingram v. WAAY Television, 394 So.2d 65 (Ala.Civ.App.1981). Here, we find no abuse of discretion. The judgment of the trial court is neither palpably wrong nor unjust. Competent evidence supports it. We affirm.

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

AFFIRMED.

All the Judges concur.