text:
    HISTORIC WAREHOUSE, INC., etc. v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, etc., et al.
    81-910.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    John W. Kelly, III and Stanley B. Sikes, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Hendon B. DeBray, Asst. Atty. Gen., for appellees.
   JONES, Justice.

This appeal challenges the constitutionality of Ala.Code 1975, § 28-3A-12, and its prohibition against Sunday sales of alcoholic beverages for “off-premises” consumption by licensees of the Alcoholic Beverage Control Board. Appellant/Plaintiff Historic Warehouse, Inc., initiated this cause, seeking declaratory and injunctive relief to the effect that § 28-3A-12 violated the First and Fourteenth Amendments of the United States Constitution, as well as portions of the 1901 Constitution of Alabama. Additionally, Appellant alleges that the act was unduly vague, and capable of varying and contradictory interpretations.

The cause was submitted to the trial court upon stipulations of fact and briefs of counsel. On June 14, 1982, the trial court entered its final order in favor of the Defendants. Appellant next perfected this appeal.

We affirm.

THE FACTS

The pertinent facts to this appeal are succinctly set forth in certain of the parties’ stipulations of fact as quoted below:

“4. The plaintiff, Historie Warehouse, Inc., is the holder of a valid club license issued by the defendant, Alabama Alcoholic Beverage Control Board.
“5. The plaintiff, Historic Warehouse, Inc., sells alcoholic beverages in their original containers for off-premises consumption to members of the club (Historic Warehouse, Inc.) and to their guests every day of the week including Sunday.
“6. The defendant, Alabama Alcoholic Beverage Control Board, interprets applicable Alabama statutes as prohibiting off-premises sales on Sunday of alcoholic beverages in their original containers to the members of an ABC Board club licensee and to their guests....
“7. The defendant, Alabama Alcoholic Beverage Control Board, and other law enforcement agents of the State of Alabama are under a duty to enforce Alabama statutes pertaining to the sale and distribution of alcoholic beverages.
“8. The penalty provided by law for the unlawful sale of alcoholic beverages on Sunday includes the suspension and/or revocation by the ABC Board of the license of the club to sell alcoholic beverages and/or the imposition of a fine on the holder of the ABC club license in an amount up to $1,000.00.”

CONSTITUTIONAL CHALLENGES TO CODE 1975, § 28-3A-12

Section 28-3A-12 reads:

“Upon applicant’s compliance with the provisions of this chapter and the regulations made thereunder, the board may, where the application is accompanied by a certificate from the clerk or proper officers setting out that the applicant has presented his application to the governing authority of the municipality, if the licensed premises is to be located therein, and has obtained its consent and approval, issue a club liquor license for a club which will authorize the licensee to purchase liquor and wine from the board or as authorized by the board and to purchase table wine and beer, including draft or keg beer in any county or municipality in which the sale thereof is permitted, from any wholesale licensee of the board and to sell liquor and wine, dispensed from containers of any size, and beer, including draft or keg beer, in any county or municipality in which the sale thereof is permitted, to the members of the club or their guests for on-premises consumption and to sell all of the above for off-premises consumption except on Sunday." (Emphasis added.)

Rejecting the constitutional attack on § 28-3A-12, the trial court’s final order succinctly reviewed its legislative history and discerned therein its rationale and beneficent purpose. We quote the following from the trial court’s order:

“The plaintiff brought this action for a declaratory judgment and contends that the portion of § 28-3A-12, Code of Alabama 1975 which provides that a club liquor retail licensee may sell alcoholic beverages for off-premises consumption is unconstitutionally vague and ambiguous and also violates the Due Process and Equal Protection Clause of the Fourteenth Amendment. The plaintiff also contends that a club liquor retail licensee is authorized to sell alcoholic beverages for off-premises consumption each and every day of the week. The defendant, the Alabama Alcoholic Beverage Control Board, interprets § 28-3A-12, Code of Alabama 1975, as allowing a club liquor retail licensee to sell alcoholic beverages for off-premises consumption every day of the week except Sunday.
“The Supreme Court in Broadwater v. Blue & Gray Patio Club, 403 So.2d 209 (Ala.1981), in recapping the legislative history of § 28-3A-12, supra, pointed out that the portion of § 28-3A-12, supra, authorizing a club liquor retail licensee to sell alcoholic beverages ‘for off-premises consumption, except on Sunday,’ was by way of a floor amendment referred to as the Cosby Amendment. The Court stated that ‘it was only by way of the Cosby Amendment that the club retail licensee was allowed’ to sell alcoholic beverages for off-premise consumption.
“It is well settled that in determining and giving effect to the legislative intent of a statute that the history of the statute should be reviewed. State v. T. R. Miller Co., 272 Ala. 135, 130 So.2d 185. It is also well settled that in construing a statute the entire statute must be considered and not just an isolated part. Standard Oil Co. v. State, 55 Ala.App. 103, 313 So.2d 532, writ denied 294 Ala. 770, 313 So.2d 540 (1975). Although the interpretation of the ABC Board is not binding upon this Court, such interpretation is entitled to great weight and favorable consideration. Moody v. Ingram, 361 So.2d 513; Employees’ Retirement System of Alabama v. Oden. 369 So.2d 4.
“In considering the entire statute in pari materia, the legislative history of § 28-3A-12, supra, and the ABC Board interpretation, it is clear that § 28-3A-12, supra, does not allow a club retail liquor licensee to sell alcoholic beverages on Sunday for off-premise consumption. Rather than being a prohibitive statute, § -12, supra, is a beneficial statute since it allows a club liquor retail licensee to sell alcoholic beverages on Sunday when no other alcoholic beverage licensee may legally sell alcoholic beverages. Thus, this restriction of not allowing alcoholic beverage sales for off-premises consumption on Sunday is a reasonable classification and not a violation of the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. McDonald v. Brewer, 295 F.Supp. 1135 (N.D.Ala.1968); State v. Trahan, 214 La. 100, 36 So.2d 652 (La. Supreme Court).”

Appellant acknowledges that as a general rule no constitutional objection may be successfully urged against laws forbidding the sale of liquor on Sundays. See, generally, 48 C.J.S. Intoxicating Liquors § 44, p. 367 (1981) (and citations thereunder). Under the Twenty-First Amendment to the United States Constitution, there exist broad legislative powers to regulate the possession, sale, and distribution of alcoholic beverages. Joseph E. Seagram and Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966).

While conceding the propriety of legislative conditions attached to the sale and distribution of alcoholic beverages, Appellant strenuously argues that such conditions must still be (1) reasonable, and (2) rationally related to a valid legislative purpose. McDonald v. Brewer, 295 F.Supp. 1135 (N.D.Ala.1968).

Additionally, Appellants cite Black v. Pike County Commission, 360 So.2d 303 (Ala.1978), wherein this Court held that while the state has broad regulatory powers concerning the possession, sale, and distribution of alcoholic beverages, “the exercise of police powers in this area does not exempt the states or local government units from constitutional limitations; whether it be the Commerce Clause, the Due Process Clause, or the Equal Protection Clause.”

Stated simply, Appellant submits that there can be no valid rational state interest or legislative purpose which permits Sunday sales of alcoholic beverages for on-premises consumption, while at the same time allowing such sales off the premises on every day except Sunday. It necessarily follows, according to Appellant, that a classification system, which bears no rational relationship to the legislative purpose stated in the legislation, is due to be stricken. Piggly-Wiggly of Jacksonville, Inc. v. City of Jacksonville, 336 So.2d 1078 (Ala.1976).

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the United States Supreme Court repeated the oft-quoted axiom that, under “traditional” equal protection analysis, a legislative classification is due to be sustained against charges of unconstitutionality unless it is “patently arbitrary” and bears no rational relationship to a legitimate governmental interest.

In our search of a rational basis for the legislation here assailed, we are aided by the rule of deference afforded legislative pronouncements by courts in areas of “economic” due process and equal protection. This principle is stated in Joseph E. Seagram and Sons, supra:

“The first contention amounts to a claim of a deprivation of due process of law, based on the argument that § 9 is not designed to promote temperance and that it is an unwise, impractical, and oppressive law. But it is not ‘the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy... . The doctrine ... that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely . . . has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws....’” Joseph E. Seagram and Sons, 384 U.S. at 46-47, 86 S.Ct. at 1261-1262, quoting Ferguson v. Skrupa, 372 U.S. 726 at 728-730, 83 S.Ct. 1028 at 1029-1030, 10 L.Ed.2d 93 (1963).

See, generally, Jefferson County v. Braswell, 407 So.2d 115 (Ala.1981); and McDonald v. Brewer, supra.

We admit to some difficulty in summarily dismissing Appellant’s charges as totally unfounded in principle or theory. While, as stated in Joseph E. Seagram and Sons, it is not the province of the judiciary to assume a policy making role in areas of economic and social philosophy, our absolute deference to the legislative process is constrained by constitutional mandates. Stated otherwise, although there is no constitutional right of persons to sell or consume alcoholic beverages, regulation of their sale and consumption is not exempt from all constitutional challenge.

Nevertheless, we discern a legitimate state purpose in the challenged enactment, and find that it bears a rational relationship to its explicit purposes. Jefferson County v. Braswell, supra. Both arms of this reasonable classification test of equal protection are satisfied in the legislative motivation behind the passage of § 28-3A-12 and in its ultimate effect.

The trial court’s reference to Broadwa-teFs review of the Act’s legislative history serves as a backdrop for our analysis. An overview of the Alcoholic Beverage Licensing Code reveals the sole purpose of a club license: to legalize the sale of alcoholic beverages on Sunday. Section 28-3A-25(a)(20) & (21) prohibit the sale of alcoholic beverages in a “cafe, lunchroom, restaurant, hotel, dining room, or other public place on Sunday. ... ” By statutory definition, “a club” is not a public place. § 28-3A-2(7)(a), (b). But for the prohibition of Sunday sales in public establishments (the validity of which is not here contested), no purpose whatsoever would be served by a club license.

The Cosby Amendment, adding the words “and to sell all of the above for off-premises consumption except on Sunday,” was an extension, rather than a restriction, of a club license. It permitted sale for off-premises consumption in addition to its original purpose of permitting sale of alcoholic beverages for on-premises consumption, including sales on Sunday. Included within that extension of the club license privilege is the “except on Sunday” condition.

In other words, a private club, properly licensed, can do what a public establishment cannot do — sell alcoholic beverages on Sunday for on-premises consumption. Additionally, it can sell for off-premises consumption “except on Sunday. ’ As concluded by the trial judge, this restrictive condition in the extended privilege granted a private club does not convert the licensing statute, beneficent in nature, to a prohibitive statute. The privilege granted the private club to do what public establishments cannot do is not rendered invalid by conditioning the extension of the privilege.

Given a rational basis for the whole of the statutory scheme regulating the sale and use of alcoholic liquors (an issue not here presented), we find no constitutional infirmity in the challenged portions of § 28-3A-12.

AFFIRMED.

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

MADDOX and ADAMS, JJ., not sitting.

      . Plaintiffs were challenging the New York Liquor Authority’s right to enact legislation on price affirmation.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Bobby Lee McCLOUD. (Re: Bobby Lee McCloud v. State).
    81-951.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Jim Zeigler, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   BEATTY, Justice.

This petition [for certiorari to the Court of Criminal Appeals, Ala.Cr.App., 420 So.2d 860 den. reh. Ala.App. 418 So.2d 981] compels us to again remind the Bar that compliance with Rule 39, Alabama Rules of Appellate Procedure, is necessary to permit us to consider petitions for certiorari.

WRIT DENIED.

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


author: JONES, Justice.

text:
    Ex parte Chester B. GIFFIN and Jean Giffin. (In re D.J. YEAGER v. Chester B. GIFFIN, Jean Giffin, Thomas J. Yeager and Giffin-Yeager Company, Inc., a corporation).
    81-1056.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    David B. Blankenship of Hornsby, Blankenship & Robinson, Huntsville, for petitioners.

      W.H. Rogers, Moulton, for respondents.
   JONES, Justice.

Petition for writ of mandamus granted on the authority of ARCP 82(d) and Ex parte Parker, 413 So.2d 1105 (Ala.1982).

WRIT GRANTED.

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


author: ALMON, Justice.

text:
    MAC PON COMPANY, INC., Dependable Insurance Company and Heritage Insurance Company of America v. VINSANT PAINTING AND DECORATING COMPANY, et al. JIM FLETCHER MANUFACTURER’S AGENT, INC. v. BEST CONCRETE PRODUCTS COMPANY, INC.
    80-629, 80-632.
    Supreme Court of Alabama.
    Nov. 24, 1982.

      J. Mason Davis, Birmingham, for appellants Mac Pon Company, etc. and Heritage Ins. Co. of America.
    Edward S. Zanaty, Birmingham, for appellant Jim Fletcher Manufacturer’s Agent, Inc.
    Jack E. Held, of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee Vinsant Painting & Decorating Co.
    John F. Whitaker, of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for ap-pellee Best Concrete Products Co., Inc.
   ALMON, Justice.

Mac Pon Company, Inc. (Mac Pon), entered into a contract with New Pilgrim Baptist Church (Pilgrim Church), to construct a new church building. It was agreed that the work would be done in conformity with plans drawn by George Hunter, a registered architect. These plans initially required that regular uncolored concrete blocks would be used in the construction and that the blocks would later be painted. However, Pilgrim Church and Mac Pon orally agreed that tinted blocks should be used rather than the standard uncolored type of blocks. Tinted blocks were decided upon in order to achieve the desired wall color and to eliminate the need to paint.

Accordingly, Mac Pon placed an order with Jim Fletcher Manufacturer’s Agent, Inc. (Fletcher, Inc.), for a shipment of “buff colored fluted block ET4.” This same type of block was used in the construction of a local K-Mart building and that building was used as an example prior to the selection of the block by Pilgrim Church.

Since Fletcher, Inc. did not manufacture this type of block, it placed an order with Best Concrete Products Company, Inc. (Best, Inc.). Best, Inc., agreed to manufacture the blocks and to deliver the order directly to the job site. Although Best, Inc., eventually delivered all of the blocks as agreed, Pilgrim Church decided against the color of the first shipment. Upon the church’s request, Best, Inc., replaced that shipment with a “more yellowish” color of block.

After all of these blocks had been incorporated into the building, Mac Pon and Pilgrim Church became convinced that some of the blocks were of a color different from the balance of the church structure. Following several attempts to add additional pigment and shading, the decision was made to paint the entire surface of the building. Mac Pon contracted with Vinsant Painting and Decorating Company (Vinsant Painting), to do this painting. Although Vinsant Painting completed the work, Mac Pon refused to pay the $7,700 contract price, claiming that the painting had not achieved a uniform color.

Upon Mac Pon’s refusal to pay, Vinsant Painting brought an action against Mac Pon and Pilgrim Church for breach of contract. Vinsant Painting later amended its complaint by joining Dependable Insurance Company (Dependable), and Heritage Insurance Company of America (Heritage), as the bonding companies acting as sureties for Mac Pon.

Mac Pon, Pilgrim Church, Dependable, and Heritage denied the allegations of Vin-sant Painting in their answers, with Mac Pon and Pilgrim Church counterclaiming that Vinsant’s negligence prevented the painting from being completed in a workmanlike manner. Mac Pon was also allowed to file a third-party complaint against Fletcher, Inc., for breach of contract and warranty. In turn, Fletcher, Inc., was allowed to file a third-party complaint against Best, Inc., also for breach of contract and warranty.

The above issues having been joined, the case proceeded to oral hearing before the trial judge. The trial judge found that Vinsant Painting was entitled to recover the contract price from Mac Pon, Dependable, and Heritage; that the claim of Vin-sant Painting against Pilgrim Church should be denied; that the counterclaims of Mac Pon and Pilgrim Church against Vin-sant Painting should be denied; that the third-party claim of Mac Pon against Fletcher, Inc., should be denied; and that the third-party claim of Fletcher, Inc., against Best, Inc., should be denied.

Appeals are brought by Mac Pon, Dependable, and Heritage (all three hereinafter referred to as Mac Pon) and Fletcher, Inc. These appeals are based upon a trial record which was assembled from the memories and notes of counsel in accordance with Rule 10(d) of the Alabama Rules of Appellate Procedure.

Appellant Mac Pon spends considerable time in brief contending that the ore tenus rule of review should not be used in this case to uphold the trial court.

The correct rule was stated in First Alabama Bank v. Coker, 408 So.2d 510 (Ala.1982), to the effect that:

“It is the policy of this Court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust.”

We thus construe Mac Pons’ argument to be that the conclusions reached by the trial court are either unsupported by the evidence, plainly erroneous, or manifestly unjust. Accordingly, we look to the evidence to determine if this contention is correct.

In the breach of contract action brought by Appellee Vinsant Painting against Appellant Mac Pon, evidence was presented, from both sides, that there was an agreement between these parties which specified that Vinsant Painting would apply one coat of clear silicone sealer and one coat of latex paint in order to produce a uniform color on the block walls of the church. However, the evidence was in conflict as to whether this agreement had been “substantially performed.”

Substantial performance of a contract does not contemplate exact performance of every detail but performance of all important parts. Whether there has been substantial performance is to be determined in each case with reference to the facts and circumstances of the case. See, Wilson v. Williams, 257 Ala. 445, 59 So.2d 616 (1952).

The facts which were offered by Vinsant Painting in support of its contention that it had “substantially performed” consisted, in part, of the following testimony. Ky Vin-sant, sales manager for Vinsant Painting, stated that he had advised Mac Pon against using one coat of silicone with only one coat of paint, but that Mac Pon insisted on that particular combination. Mr. Vinsant also defined “uniform color” as “all the same color” and he further stated that a “uniform color” was achieved, even though there were different shades of the same color due to the differences in porosity of the individual blocks. Ken Goolsby, the painter who did the work for Vinsant Painting, testified that “everyone at the church loved the paint job.” Mr. Goolsby stated that a uniform color was achieved and that he had performed the work exactly as specified by Vinsant Painting. Mr. Weidner, an employee of Glidden Paint Co. for nineteen years, stated that the application of one coat of silicone under one coat of paint would cause the paint to be absorbed into the block and would result in a “uniform color” consisting of different shades.

Although Mac Pon did present testimony contrary to the above, i.e., testimony that the painting was inadequately performed and not of a uniform color, we cannot say that the evidence offered by Vinsant Painting failed to support the judgment against Mac Pon for breach of contract. Neither can we hold that the trial judge’s findings are plainly erroneous or manifestly unjust.

By affirming the breach of contract judgment against Mac Pon, we also dispense with Mac Pon’s appeal concerning the denial of its counterclaim against Vinsant Painting. A finding that Vinsant Painting adequately complied with the requirements of the painting contract is a finding that Mac Pon’s counterclaim is without merit.

In Appellant Mac Pon’s third-party claim against Appellee Fletcher, Inc., Mac Pon asserted that the church building had to be painted because Fletcher, Inc., breached both contract and warranty by failing to supply tinted blocks which were all of the same type and color. However, evidence presented at the trial indicated exact compliance with the contract terms. That is, Fletcher, Inc., had ordered and Best, Inc., had supplied the specific type and color of block which Pilgrim Church and its architect ultimately selected. The evidence further showed, through the testimony of Braxton Collins, the former president of Best, Inc., that different “shades” will exist within any order of block, even though that order consists of only one type and color of tinted block. Mr. Collins stated that there was no warranty on the “shade” of the blocks because the variations in shade were an inherent result of the manufacturing process.

There was also testimony that the completed walls did not contain any unacceptable color variation and that any differences in color which did exist were merely the “shade” variations inherent in the tinted type of block. Robert Collins, the chairman of Pilgrim Church’s building committee, stated that he did not notice any shading or color problem with the blocks and that he did not know why the building was painted. Ky Vinsant, Vinsant Painting’s sales estimator, stated that he saw no problem with the blocks and that he thought the building was “beautiful.” Ken Goolsby, the painter hired by Vinsant Painting, testified that although he noticed some shade variations, the blocks did not need painting and that their color was uniform throughout. John Golightly, president of a company that had manufactured tinted blocks for five years, testified that he had looked over the “biggest side” of the church building and that there were no variations in “shade” among the blocks.

The reason liability is assessed for breach of warranty, whether the warranty be express or implied, is that goods have failed to conform to requirements imposed by the warranty. However, we view the testimony set forth above as “credible evidence” that the tinted blocks supplied by Appellee Fletcher, Inc., did indeed comply with all warranty requirements. The blocks conformed to the descriptions and affirmations made by Fletcher, Inc., and were fit for the use and purpose for which they were sold. See, Code 1975, §§ 7-2-313, -314, -315, and -714.

In addition, the evidence indicates there were reasons other than the color of the tinted blocks which could have led to the decision to paint the church. The record reveals that a portion of the building was constructed out of the standard gray concrete blocks which the architect’s plans had called for. There was also testimony from Mr. Goolsby and Mr. Golightly that black spots of roofing tar could be seen on the tinted blocks.

Considering all the aforementioned facts, we find that the denial of Mac Pon’s third-party claim was based on competent evidence and was neither plainly erroneous nor manifestly unjust.

We also uphold the trial judge’s denial of Appellant Fletcher, Inc.’s third-party claim against Appellee Best. Under Rule 14(a) of the Alabama Rules of Civil Procedure, Fletcher, Inc.’s third-party claim against Best, Inc., was based on Mac Pon’s third-party claim against Fletcher, Inc. After denying Mac Pon’s claim, the trial judge was correct in denying the claim made by Fletcher, Inc.

The judgment is therefore affirmed.

AFFIRMED.

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

ADAMS, J., recuses himself.


text:
    James Lavone SNOW, as father of Timothy Lavone Snow, a child v. STATE.
    81-303.
    Supreme Court of Alabama.
    Nov. 24, 1982.
    Frances Heidt and Donald W. Stewart of Stewart, Falkenberry & Whatley, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BEATTY, Justice.

This appeal arises under Rule 28(a)(1), Alabama Rules of Juvenile Procedure. The appeal, perfected December 23, 1981, is a result of an order transferring the appellant, seventeen-year-old Timothy Snow, from the juvenile division to the criminal division of the Circuit Court of Calhoun County for prosecution as an adult. We affirm.

The appellant was arrested on October 2, 1981, on the charge of sodomy in the first degree of a Jacksonville Elementary School teacher. On the afternoon of September 15, 1981, around 5:25 p.m., a young black male forced his way into a nearly-empty classroom, grabbed the victim around the throat and pushed her to the floor. Using considerable force the assailant committed sodomy in violation of Code of Ala.1975, § 13A-6-63.

The victim told her husband of the assault and reported it to the principal of the school; however, the incident was not reported to the police until September 25, 1981. An additional report of the incident was related to an investigator of the Calhoun County District Attorney’s Office on October 1, 1981. On October 2 the appellant was arrested, and on that same day the victim identified appellant’s photograph from a group of ten young black males. A detention hearing was held on October 5 at which time the victim positively identified Timothy Snow as the person who attacked her. On October 7 a motion for transfer was made pursuant to Code of Ala.1975, § 12-15-34, and a hearing on that motion was held on December 22. The victim again made a positive identification, and this hearing resulted in an order transferring appellant to the criminal division for prosecution as an adult.

Appellant claims the following grounds require reversal of the transfer order: (1) The petition filed pursuant to Code of Ala. 1975, § 12-15-60(a), was not timely filed; (2) The detention hearing exceeded the proper scope and went to the merits of the § 12-15-60(a) petition and as a result the motion for transfer, filed two days after this hearing, did not comply with Code of Ala.1975, § 12-15-34(a); and (3) The procedures followed leading up to the transfer order violated the appellant’s constitutional and statutory rights.

In the case at bar appellant contends that the jurisdiction of the court was erroneously invoked in that he was arrested on October 2, a detention hearing was held on October 5, but the petition required by Code of Ala.1975, § 12-15-60(a), was not filed with the clerk of the court until October 7, 1981.

Code of Ala.1975, § 12-15-60(a), provides:

“When a child is not released from detention or shelter care as provided in section 12-15-58, a petition shall be filed and a hearing held within 72 hours, Saturdays, Sundays and holidays included, to determine whether continued detention or shelter care is required.”

Code of Ala.1975, § 12-15-50, states:

“Cases before the court shall be initiated by the filing of a petition by the intake officer who shall receive verified complaints. ... ”

The record shows that the intake officer did in fact receive the complaint and the petition on October 5, within 72 hours of appellant’s arrest. Further, the hearing on the issue of detention was held on October 5 satisfying the requirements of § 12-15-60(a). The court had the complaint and petition before it at the time of the detention hearing, so in fact they were properly filed, notwithstanding the date of October 7 stamped on the petition by the circuit court clerk. Under the present facts the procedures promulgated in Rule 12, Alabama Rules of Juvenile Procedure, requiring an intake officer to “file a petition where judicial action appears necessary” were followed. The fact that the circuit court clerk did not stamp the petition “filed” until October 7 does not constitute reversible error.

Appellant next contends that the detention hearing held October 5 exceeded the scope permitted and went beyond a determination of the factors set out in Code of Ala.1975, § 12-15-59(a)(l)-(4). It is argued this was a hearing on the merits of the petition rather than one to determine the necessity of continued detention, and thus the requirements set forth in § 12-15-34(a), as to the proper time for filing a motion to transfer appellant for prosecution as an adult, were not met. It is true that a motion for transfer must be made prior to a hearing on the merits; however, the evidence presented at the detention hearing clearly falls within evidence which would be necessary for a determination of the factors set out in § 12-15-59(a)(l)-(4). These factors include whether “the release of the child would present a clear and substantial threat of a serious nature to the person or property of others.” The evidence to which appellant objects goes directly to the seriousness of the offense charged. While it is true this evidence would also be relevant to the transfer petition, it was certainly material as to the question of the threat to the safety of the community and thus relevant to the question of detention.

The appellant further contends that the order transferring appellant for criminal prosecution as an adult is erroneous in that it is the result of a culmination of repeated violations of the appellant’s constitutional and statutory rights.

A transfer hearing is held not for the determination of guilt or innocence but is in the nature of a preliminary hearing to determine whether there is probable cause for believing that the allegations are true. Winstead v. State, 371 So.2d 418 (Ala.1979); Duncan v. State, 394 So.2d 930 (Ala.1981). Factors which are to be considered in making that determination are outlined in Code of Ala.1975, § 12-15-34(d):

“(1) The nature of the present alleged offense;
“(2) The extent and nature of the child’s prior delinquency record;
“(3) The nature of the past treatment efforts and the nature of the child’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the child’s physical and mental maturity; and
“(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.”

After reviewing the record it is clear that the transfer order in this case was issued by the court after giving consideration to these legislatively mandated factors.

While the constitutional questions concerning the admissibility of evidence raised by appellant may be relevant at a later proceeding, they are not appropriate in a transfer hearing. Transfer hearings are not held to determine guilt or innocence, but are probable cause hearings. The strict rules of evidence do not apply at transfer hearings. Vincent v. State, 349 So.2d 1145 (Ala.1977); Gulledge v. State, 419 So.2d 219 (Ala.1982). In transfer hearings greater latitude is permitted in admitting evidence than would be allowed in a criminal prosecution. Winstead, supra.

For the reasons stated the order transferring Snow for criminal prosecution was proper.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Julious SEALS, et al. v. Curtis SEALS.
    81-127.
    Supreme Court of Alabama.
    Nov. 24, 1982.

      Billy C. Bedsole of Stockman & Bedsole, Mobile, for appellants.
    Wyman 0. Gilmore, Grove Hill, for appel-lee.
   FAULKNER, Justice.

This is an appeal from a judgment upholding the validity of a deed. We affirm.

On July 13,1974, Richard Seals and Martha Ann Seals conveyed forty acres of land to their son, Curtis Seals, for a consideration of ten dollars. The deed was notarized and recorded ten days later.

On February 23,1978, Richard Seals, then ninety years of age, filed a complaint against Curtis, alleging that the deed was not delivered; that it was not given for the purpose of conveying title; that no consideration was given; and that Curtis unduly influenced his parents so as to have them execute the deed to him. On March 9, Curtis filed an answer alleging that the deed was valid. Richard Seals died on January 17, 1980, and on February 4, a motion to substitute the parties was granted in favor of all the heirs at law and next of kin. The trial was held without a jury and the Court upheld the deed. A motion to reconsider, or in the alternative seeking a new trial, was denied.

The first issue is whether the allegations of undue influence are sufficient to warrant the setting aside of the deed. The plaintiffs contend that the burden is on Curtis to prove that the conveyance was without undue influence, because of the parties’ relationship, the advanced age' of the parents, and the poor physical health of Martha Ann. Plaintiffs allege that Richard Seals was illiterate and senile and that both parents had been dependent on their son to transact their business after 1973. Plaintiffs also insist that the conveyance was for the son to use as security to purchase other property and therefore a constructive trust was created. The determination of undue influence relative to the execution of a deed depends on the facts and circumstances of each case. Milliner v. Grant, 253 Ala. 475, 45 So.2d 314 (1950).

The relationship of parent and child is confidential as it relates to the question whether the deed from parent to child can be set aside as having been procured by undue influence. The burden was on Curtis to rebut the presumption of undue influence if the evidence tended to show that he was the dominant party. Killough v. DeVaney, 374 So.2d 287 (Ala.1979). Undue influence in procuring a deed is constructive fraud, difficult to prove, with much latitude allowed in the testimony. Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960); Brothers v. Moore, 349 So.2d 1107 (Ala.1977). This Court stated in Terry v. Terry, 336 So.2d 159 (Ala.1976):

“It is not influence which is charged, but undue influence. Mere suggestion does not constitute undue influence, nor does solicitation suffice unless the grant- or be worn out with importunities so that his will gives way.”

In order for undue influence to arise, the influence must destroy the free agency and substitute the will of another for that of the person nominally acting. Halman v. Bullard, 261 Ala. 115, 73 So.2d 351 (1954). In Halman, the Court, citing Harris v. Bowles, 208 Ala. 545, 94 So. 757 (1922), stated:

“[Solicitation does not amount to undue influence unless the grantor be worn out with importunities so that his will gives way. ...
“... [UJndue influence is charged, and must necessarily be proven to overthrow the transaction. Influence which is the result of sympathy and affection only is not the undue influence that is condemned by the law.” (Emphasis in original.)

If under any reasonable aspect, the trial court’s decree is fairly supported by credible evidence, this Court must affirm that decree, irrespective of what view we may have of the evidence. Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809 (1950); Tyra v. Burns, 279 Ala. 84, 181 So.2d 899 (1966). A review of the evidence leads us to conclude that there was sufficient evidence for the trial court to hold there was no undue influence on the part of Curtis when the deed was executed to him. Indeed, there is a clause in the deed admonishing him to keep the property — never dispose of it.

The second issue concerns the consideration given. It is a well-established principle that inadequacy of consideration is insufficient to vitiate a conveyance. Where consideration expressed in the deed is stated to be the sum of one dollar and other good and valuable consideration, it is sufficient to support the conveyance. Taylor v. Jones, 285 Ala. 353, 232 So.2d 601 (1970).

The issue as to whether a constructive trust is created is one of fact and as stated previously, where the evidence is presented orally and without a jury, the trial court’s findings of fact will not be disturbed unless clearly erroneous and manifestly unjust. Brothers v. Moore, supra.

A constructive trust is a creature of equity which prevents unjust enrichment. It will be applied when property has been acquired by fraud or where it would not be equitable to allow it to be retained by him who holds it. Brothers v. Moore, supra; Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963). In Putnam, supra, the Court handed down a decision using the device of a constructive trust, finding that Mrs. Putnam held property unfairly and “in hostility to the beneficiary’s right of ownership.” Mrs. Putnam had been given money by her husband to purchase a house with the deed to be taken in their names jointly. Without the husband’s knowledge, the deed was taken in the wife’s name only, and upon the ensuing divorce, she claimed sole ownership. In the case at bar however, we find no convincing evidence that the deed was given to Curtis for the purpose of collateral only or that Curtis held the property contrary to Richard Seals’s intention,

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    STATE of Alabama v. James Vernon HIGGINS, Jr.
    Civ. 2892.
    Court of Civil Appeals of Alabama.
    Sept. 16, 1981.
    Rehearing Denied Oct. 14, 1981.
    G. Houston Howard, II of Howard, Dunn & Howard, Wetumpka, and Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellant.
    William P. Boggs and Bob E. Allen, Clan-ton, for appellee.
   BRADLEY, Judge.

This is a paternity action.

James Vernon Higgins, Jr. was deemed to be the father of the illegitimate child of Iris Lesley by the District Court of Elmore County on November 6, 1980. On November 18,1980 Higgins appealed to the Circuit Court of Elmore County and asked for a jury trial. On December 12, 1980 the State of Alabama filed a written motion to dismiss the appeal. On that same day the circuit court overruled the motion.

The case was tried before the court and a jury and the jury returned a verdict finding Higgins not guilty. The State appeals.

The sole issue for review by this court is whether the circuit court erred by overruling the State’s motion to dismiss the appeal in that court.

The State’s motion to dismiss was based on several grounds, among which was the ground that the notice of appeal to the circuit court was not properly made, i.e. the notice of appeal was not filed with the clerk of the circuit court nor was it filed with the clerk of the court rendering the judgment.

Section 26-12-8, Code 1975, provides, in pertinent part, as follows:

The state of Alabama or the reputed father may appeal from any final judgment rendered under section 26-12-4 by the court in which the proceeding originated ... by filing written notice of such appeal ... with the clerk of the circuit court to which said appeal is taken and in the court rendering the judgment.

In Battles v. State, 386 So.2d 466 (Ala.Civ.App.1980), this court said:

Under the essentials of § 26-12-8 two notices of appeal must be filed within ten days of the rendition of the paternity adjudication. One notice must be filed with the clerk of the juvenile court and one notice of appeal must additionally be filed with the clerk of the circuit court. The defendant did not file a notice of appeal with the clerk of either court. Noncompliance with such provisions necessitates the dismissal of a paternity appeal from the juvenile court to the circuit court on account of a lack of jurisdiction. LeFlore v. State, 288 Ala. 310, 260 So.2d 581, cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972); Scribner v. State, Ala.Civ.App., 372 So.2d 1311, cert. denied, 372 So.2d 1312 (1979); Moutry v. State, Ala.Civ.App., 359 So.2d 388 (1978).

The record on appeal shows that one notice of appeal was filed with “B.J. Moody, Clerk.” This appeal notice is styled “Notice of Appeal From District Court to Circuit Court.” In the body of the appeal notice, the following is found: “In the Juvenile Court of Elmore County .... Notice is hereby given that James Vernon Higgins, Jr. appeals to Circuit [Court] from the judgment order of the Juvenile Court of Elmore County dated November 6, 1980 entered in this case ...” There is no stamp on the record showing whether B.J. Moody is the clerk of the district court or the circuit court.

Appellee says in brief that B.J. Moody is clerk of the Elmore County District Court and that he is also the clerk of the Elmore County Circuit Court and that the circuit court took judicial notice of this fact when it overruled the State’s motion to dismiss the appeal.

Although there is no stamp on the notice of appeal contained in the record showing that B.J. Moody acknowledged receipt of notice of appeal in his capacity as clerk of the district court or circuit court, the notice of appeal set out in the record would suggest that he was accepting the notice of appeal in his capacity as clerk of the district court. Even assuming arguendo that the notice of appeal was filed with the clerk of the district court, § 26-12-8 still has not been complied with because notice of the appeal was not filed with the clerk of the circuit court.

Appellee says, however, that inasmuch as the clerk of the district court is also the clerk of the circuit court, filing the notice of appeal with the clerk of the district court is thereby the same as filing the notice with the clerk of the circuit court. We disagree.

Section 26-12-8 requires, as we said in Battles v. State, supra, that two written notices of appeal be filed in paternity cases and this means, as we said in Moutry v. State, supra, that the written notices of appeal be filed with both the juvenile court, i.e. the court rendering the judgment, and the circuit court. The purpose of § 26-12-8 is to assure that notices of appeal of a paternity judgment in the juvenile court be filed in each court, i.e. that a notice of appeal will be filed in and becomes a part of the records of the juvenile court and the circuit court. Hence notice of the filing of the appeal to the clerk of the juvenile court, who also is the clerk of the circuit court, does not satisfy the requirements of the statute, i.e. § 26-12-8.

The record in the case at bar reflects that only one written notice of appeal was filed and this notice was probably filed with the district court. In the absence of record evidence showing that a written notice of appeal was also filed in the circuit court, the requirements of § 26-12-8 have not been met. If § 26-12-8 has not been complied with, the circuit court is without jurisdiction to hear the appeal. Moutry v. State, supra. In the case at bar § 26-12-8 was not satisfied; consequently, the circuit court was without jurisdiction to hear and determine the appeal filed by Higgins. Battles v. State, supra.

The trial court’s judgment finding Higgins not guilty of the charge filed against him is reversed and the cause is remanded for the entry of a judgment dismissing Higgins’s appeal to the circuit court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    Ex parte James Vernon HIGGINS, Jr. (In re State of Alabama v. James Vernon Higgins, Jr.)
    81-133.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Rehearing Denied Nov. 5, 1982.
    William P. Boggs and Bob E. Allen, Clan-ton, for petitioner.
    G. Houston Howard, II of Howard, Dunn & Howard, Wetumpka, and Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

This case concerns the procedure for appealing a paternity decision from a district court serving as juvenile court to circuit court. The circuit court denied the State of Alabama’s motion to dismiss the appeal, but the Court of Civil Appeals reversed and remanded for entry of judgment dismissing the appeal. We granted this petition for writ of certiorari and we now reverse the judgment of the Court of Civil Appeals, 423 So.2d 225.

Actions for determination of paternity of illegitimate children are provided for in Code 1975, §§ 26-12-1 through -9. In this ease the district court sat as the juvenile court. Code 1975, § 12-15-2. Appeals to the circuit court are provided for by Code 1975, § 26-12-8, as follows:

The state of Alabama or the reputed father may appeal from any final judgment rendered under section 26-12-4 by the court in which the proceeding originated within 10 days after rendition thereof by filing written notice of such appeal within said prescribed period with the clerk of the circuit court to which said appeal is taken and in the court rendering the judgment. On such appeal, the trial shall be de novo. The state or the reputed father shall have the right to demand a trial by jury for said trial de novo by filing a notice of appeal within 14 days from the date of judgment or the date of the denial of a post-trial motion, whichever is later, but the only question of fact for the decision of the jury shall be the paternity of the child. All other questions of fact in the trial de novo shall be decided by the court without the intervention of a jury.

After the district court rendered a decision determining James Vernon Higgins, Jr. (Higgins) to be the father of the child whose mother instigated this case, Higgins filed a “Notice of Appeal from District Court to Circuit Court” in the Juvenile Court of Elmore County. B.J. Moody signed this document as clerk; the record indicates that Moody is clerk of both the district court and the circuit court. See Code 1975, § 12-17-160. The record is unclear as to whether Higgins filed one or more copies of this document.

The State filed a motion to dismiss the appeal on the grounds, inter alia, that notice of appeal was not properly filed with the clerk of the circuit court and that notice of appeal was not properly filed in the court rendering the judgment from which the appeal was taken. The circuit court overruled this motion; after a trial by jury the circuit court entered judgment on a verdict that Higgins was not the father. The State appealed from this judgment to the Court of Civil Appeals.

The Court of Civil Appeals reversed and remanded with instructions for the circuit court to enter judgment dismissing the appeal to circuit court. It based its opinion on the interpretation given § 26-12-8 in Battles v. State, 386 So.2d 466 (Ala.Civ.App.1980), and Moutry v. State, 359 So.2d 388 (Ala.Civ.App.1978). That interpretation holds that two notices of appeal must be filed pursuant to § 26-12-8; one with the clerk of the circuit court, and one in the court rendering the judgment. Further, that the circuit court has no jurisdiction to hear the appeal in the absence of both such filings.

We agree that the statute requires written notice to both the juvenile court and the clerk of the circuit court. See also, LeFlore v. State ex rel. Moore, 288 Ala. 310, 260 So.2d 581, cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972); and Scribner v. State, 372 So.2d 1311 (Ala.Civ.App.1979), cert. denied, 372 So. 1312 (Ala.1979). All of the above-cited cases, however, arose from counties which had established a separate office of clerk of district court under Code 1975, § 12-17-161. As noted above, the clerk in this case serves both courts.

The State contends that two copies of one document would not serve for the two filings under § 26-12-8, because Rule 10(a), ARCP, requires that “[ejvery pleading shall contain- a caption setting forth the name of the court.” We agree that this would be better practice, but here, the clerk apparently established a file for the circuit court appeal from the notice which was given him. Furthermore, the trial court overruled the State’s motion to dismiss for failure to properly file notice of appeal.

The purpose of § 26-12-8 — written notice of appeal to both the juvenile court and the circuit clerk — has been satisfied here. We see no reason to set aside the judgment of the circuit court on the jury verdict. Therefore, the judgment of the Court of Civil Appeals is reversed and the cause remanded for the Court of Civil Appeals to issue an order affirming the judgment of the circuit court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORBERT, C.J., and FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, J., not sitting.


text:
    STATE of Alabama v. James Vernon HIGGINS, Jr.
    Civ. 2892.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that the decision of the Circuit Court of Elmore County should be affirmed as ordered by the supreme court on September 24,1982,423 So.2d 227.

AFFIRMED ON REMAND.

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


author: HOLMES, Judge.

text:
    Mary Ann PARR v. Franklin D. PARR.
    Civ. 3322.
    Court of Civil Appeals of Alabama.
    June 30, 1982.
    L. Joel Collins of Smith, Smith & Collins, Phenix City, for appellant.
    Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellee.
   HOLMES, Judge.

This is a divorce case.

The parties were divorced by the Circuit Court of Russell County in 1972. In 1981, the trial court denied the wife’s request for a division of property and dismissed the wife’s amended complaint alleging fraud on the part of the husband when he obtained the divorce. The wife appeals and we affirm.

The record reveals the following pertinent facts:

The parties were divorced in 1972 after a marriage of sixteen years. The wife was not represented by an attorney at the time of the divorce.

The parties’ jointly owned home was not mentioned in the decree of divorce. The wife was not awarded alimony or child support, although the husband did begin paying child support in 1977. Subsequent to the divorce, the wife remained in the home and made all mortgage payments on the property.

In 1981, nine years after the divorce decree, the wife filed a complaint requesting that she be awarded the home in fee simple. The wife also asked the trial court to award her alimony.

The trial court held an ore tenus hearing to consider the wife’s complaint. The wife testified that the husband had frequently promised to convey to the wife his undivided one-half interest in the home. The husband directly refuted the wife’s testimony.

After the hearing, the trial court entered its initial order on October 20, 1981. The trial court ordered the husband’s interest in the home be conveyed to the wife. Apparently, the register of the court conveyed the husband’s interest to the wife in compliance with the trial court’s order.

On December 10, 1981, upon motion of the husband, the trial court rescinded its order of October 20, pending further orders of the court. The trial court determined that it lacked jurisdiction to modify the 1972 decree of divorce. However, the trial court allowed the wife two weeks to provide the court with authority supporting the wife’s claim for a property division.

The wife then filed an amended complaint alleging that the husband had fraudulently induced the wife into executing an answer and waiver in the 1972 divorce action. The wife claimed that the husband had promised to convey his interest in the home to the wife. In the amended complaint the wife alleged that she did not discover the husband’s purported fraud until shortly prior to the time she initiated the 1981 action. The wife requested that she be awarded the home and damages due to the fraudulent act of the husband.

On December 22, 1981, after reviewing the matters presented and the prior orders involved in the instant action, the trial court entered an order dismissing the wife’s amended complaint containing the allegations of fraud on the part of the husband. The wife’s request for damages was stricken. The trial court further ordered that its October 20, 1981 order be withdrawn and rescinded. The register of the court was ordered to reconvey to the husband his undivided one-half interest in the home.

On appeal, the wife contends that the husband’s fraud entitles her to his interests in the parties’ home. The wife further contends that the husband is not entitled to an equitable division of property because of his fraudulent acts.

We disagree with the wife’s contentions and affirm the order of the trial court.

The 1972 decree of divorce was rendered approximately nine years before the wife initiated the instant action requesting alimony and a property division. The trial court properly concluded that since more than thirty days had elapsed it no longer had jurisdiction to modify the divorce decree with regard to property matters. See Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980); Russell v. Russell, 386 So.2d 758 (Ala.Civ.App.1980). As this court stated in Holsombeck v. Pate, 47 Ala.App. 39, 42, 249 So.2d 861, 864 (1971):

Property settlements between the parties or alimony in gross ordered in a final divorce decree are one time things and are not subject to modification after the expiration of thirty days. Amason v. Amason, 46 Ala.App. 345, 242 So.2d 392. It follows that such matters not brought to the court’s attention and its jurisdiction invoked thereon during divorce proceedings, may not be a basis for a petition to modify after the loss of jurisdiction of the court over the marital res. Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356.

We find the trial court did not err in refusing to modify the 1972 divorce decree so as to award the wife the husband’s interest in the home.

The wife, on appeal, apparently contends that her amended complaint was a rule 60(b)(3), ARCP, motion and that the trial court should have set aside the decree of divorce due to the alleged fraud of the husband.

The trial court did not abuse its discretion in dismissing the wife’s amended complaint.

A motion to set aside a judgment on the ground of fraud must be brought within four months of the date the judgment was rendered. McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979). In this instance, the wife’s attempt to set aside the decree on the basis of fraud was initiated almost nine years after the rendition of the divorce decree.

We further note that even if the wife had timely filed a rule 60(b)(3) motion there was evidence in the record to support the trial court’s denial of relief to the wife. The husband testified that he never promised to convey his interest in the home to the wife. A trial court has wide discretion in ruling on 60(b)(3) attacks upon final judgments. See Denton v. Sanford, 383 So.2d 847 (Ala.Civ.App.1980). The trial court could have concluded on the evidence presented that the decree of divorce should not be set aside under rule 60(b)(3).

The husband has requested an attorney’s fee for representation on appeal. This request is denied.

Finding no error in the order of the trial court, this case is affirmed.

AFFIRMED.

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


text:
    Tony PAYNE and Glenis E. Sims v. DEPARTMENT OF INDUSTRIAL RELATIONS, State of Alabama; Mueller Company.
    Civ. 3254.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    Rehearing Denied Sept. 22, 1982.
    Certiorari Denied, Dec. 22, 1982 Alabama Supreme Court 82-5.

      George C. Longshore, Birmingham, for appellants.
    George Coeoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Montgomery, Dept, of Industrial Relations, for appellee Dept, of Industrial Relations.
    William Michael Warren, Jr. and James Walker May for Bradley, Arant, Rose & White, Birmingham, for appellee Mueller Co.
   BRADLEY, Judge.

This is an unemployment compensation benefits case.

On January 29, 1980 International Molders and Allied Workers — Local # 65 called a strike against Mueller Company, and a picket line was established. On August 10, 1980 the striking employees met and voted to accept an offer made by Mueller and picketing was ended at that time. However, the company rejected this acceptance and the dispute was not finally settled until September 7, 1980. A new contract was signed on September 16,1980. The striking employees made claim for unemployment compensation benefits on the ground that the labor dispute had ended when they offered to return to work and stopped picketing.

Several employees, among them Tony Payne and Glenis E. Sims, appellants in this case, were selected as test claimants to litigate the controversy over unemployment compensation benefits for the period between August 10, 1980 and September 7, 1980. They were successful before the appeals referee, who awarded them benefits. Mueller appealed the decision to the Board of Appeals. On February 13, 1981 the Board found that the claimants’ unemployment was directly due to a labor dispute and that they were not entitled to unemployment compensation benefits under § 25-4-78(1), Code 1975. Notice of this decision was sent to Payne and Sims on February 13, 1981. The test claimants appealed to the Circuit Court of Marshall County on May 19, 1981. The Department of Industrial Relations filed a motion in the circuit court asking that the appeal be dismissed for the reason that it was untimely. The motion was overruled, and the circuit court heard the case on its merits. The court held that claimants’ unemployment was directly due to a labor dispute and that they were therefore ineligible for compensation benefits. Payne and Sims appealed to this court.

The preliminary issue is whether the circuit court had jurisdiction to decide the question appealed to it by Payne and Sims, i.e. had the claimants’ appeal been perfected to the circuit court in accordance with statutory procedure. Section 25^ — 94(d), Code 1975, provides:

“Any decision of the board of appeals, in the absence of an appeal therefrom as provided in this article, shall become final 10 days after the date notification thereof shall have been mailed, postage prepaid, to the parties to the proceeding, at their last known addresses. The director shall be deemed to be a party to all such proceedings and to any judicial action involving any such decision.”

Section 25-4-95, Code 1975, sets out the procedure for appealing a decision of the Board of Appeals to the circuit court and is, in pertinent part, as follows:

“Within 10 days after the decision of the board of appeals has become final, any party to the proceeding including the director who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court of the county of the residence of the claimant.... In such action, the notice of appeal need not be verified, but shall state the grounds upon which a review is sought. A copy shall be served upon the director or upon such person as the director may designate (and for the purpose hereof, mailing a copy addressed to the director at Montgomery by registered or certified mail shall be deemed service on the director), and such service shall be deemed completed service on all parties, but there shall be left with the parties so served as many copies of the notice of appeal as there are defendants, and the director shall forthwith mail one copy to each defendant. The director shall cause to be certified and filed in the said court all documents and papers introduced in evidence before the board of appeals or appeals tribunal, together with the findings of fact and the decision of the board of appeals or the appeals tribunal, as the case may be. No circuit court shall permit an appeal from a decision allowing or disallowing a claim for benefits unless the decision sought to be reviewed is that of an appeals tribunal or of the board of appeals and unless the person filing such appeal has exhausted his administrative remedies as provided by this chapter. Trial in the circuit court shall be de novo.”

It is well recognized that a judgment rendered in the absence of subject matter jurisdiction is void. See Rogers v. Smith, 287 Ala. 118, 248 So.2d 713 (1971); Farrell v. Farrell, 243 Ala. 389, 10 So.2d 153 (1942); Louisville & N.R. Co. v. Tally, 203 Ala. 370, 83 So. 114 (1919). Furthermore, such a defect cannot be waived by the parties. Ex parte Phillips, 231 Ala. 364, 165 So. 80 (1935). Moreover, it becomes the duty of an appellate court to question the lack of subject matter jurisdiction ex mero motu. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606 (1958).

This court has determined that the requirements of § 25-4-95, Code 1975, are jurisdictional, Cruce v. Demarco Concrete & Block Co., 380 So.2d 900 (Ala.Civ.App.1980), and that the section provides “the exclusive method for appealing the decision of the Board of Appeals to the circuit court.” Davis v. Black, 406 So.2d 408 (Ala.Civ.App.1981). In Director of State Department of Industrial Relations v. Nolin, 374 So.2d 903 (Ala.Civ.App.1979), we explained our holding by saying:

“Unemployment compensation is a creature of statute and was unknown at common law. Therefore, the legislature may lay down any reasonable and nondiscriminatory conditions it may see fit concerning eligibility and procedure.”

In the case at bar it appears that the decision of the Board of Appeals was mailed to each test claimant at his last known address on February 13, 1981. That order became final within ten days, and the time for perfecting an appeal to the circuit court ran within another ten days. Thus, the last date on which test claimants could have appealed to the circuit court was March 5, 1981. The record clearly shows that no appeal was filed until May 19, 1981, a date which was well outside the statutory period.

Appellants initially argue that this court is without authority to consider the jurisdictional question in the absence of a cross-appeal—the appellee does not cross-appeal but does question the jurisdiction of the circuit court in its brief. It is axiomatic, however, that the lack of jurisdiction can be questioned by a party at any time and by this court ex mero motu. City of Huntsville v. Miller, supra.

Appellants’ next argument is that they were represented by counsel before the appeals referee and that their attorney was thus entitled to be notified of the company’s appeal to the Board of Appeals and to be notified of the decision of the Board of Appeals so that an appeal could be taken to the circuit court within the statutory periods. The record shows that claimants were notified of their employer’s appeal to the Board of Appeals but that their lawyer was not given notice of that appeal by the Board of Appeals. Appellants argue, however, that their attorney was a party to these proceedings and thus was required to be notified just as they were notified. Claimants’ theory that their attorney was a party to these proceedings and thereby entitled to notice is based on the holding in the case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565 (1934). In the Christison case the supreme court held that an attorney in a workmen’s compensation case could become a party within the meaning of a statute providing for the disqualification of a judge who was related to a party within the fourth degree if he was entitled to receive a statutory fee for his services.

It should be noted, however, that in the Christison case the supreme court was concerned with the disqualification of a judge to hear a case because of his relationship to a party whereas in the case at bar the concern of this court is whether the attorney had notice of the proceedings so that he might properly represent his clients. In the cited case the concern of the court was to protect the integrity of the judiciary whereas in the instant case the primary interest of the courts is to assure that the claimants had notice of the employer’s appeal to the Board of Appeals so that they could protect their interests.

It is undisputed that the claimants were notified of the appeal of the Mueller Company to the Board of Appeals, of the hearing before the Board and the Board’s decision and that they did not appeal to the circuit court within the statutory period. Furthermore, there is testimony in the record that claimants’ attorney received a letter from Mueller's attorneys and a copy of their brief on January 27, 1981 concerning the appeal to the Board of Appeals. Therefore we are constrained to hold that Christi-son is inapplicable to the case at bar because the real parties to this proceeding were properly notified of each step in the proceedings as required by law and their interests were properly protected. Had they wanted their attorney to be aware of the appeal they could have notified him. Also claimants’ attorney had information, i.e. the letter and brief from Mueller’s attorneys, that an appeal was pending before the Board of Appeals and an inquiry would have made him fully aware of the proceedings before the Board of Appeals.

We conclude, therefore, that the appeal to the circuit court from the Board of Appeals’ decision was not within the statutory time period and that the circuit court had no jurisdiction to hear the appeal on its merits. The circuit court erred in refusing to grant the Department’s motion to dismiss the appeal.

REVERSED AND REMANDED.

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


author: PER CURIAM. PER CURIAM.

text:
    In the Matter of Jennifer Lee KELLY.
    Civ. 3031.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    As Corrected on Denial of Rehearing Nov. 10, 1982.

      Steven D. Caley of Legal Services Corp. of Alabama, Dothan, for appellant.
    David and Floria Dunlap, pro se.
   PER CURIAM.

The mother of a minor child sought custody of the child. After an ore tenus hearing the trial court refused to award custody to the mother. The trial court taxed all costs of the proceeding against Legal Services Corporation of Alabama (Legal Services) whose representative was the attorney for the mother.

Legal Services appeals, contending the trial court erred in taxing the costs against Legal Services. Put another way, Legal Services contends the trial court had no authority to so tax the costs. We reverse and remand.

It is not necessary to set out in detail the facts leading up to the questioned action. However, the following is noted:

In 1977, the Department of Pensions and Security was awarded custody of the child. Thereafter in 1979 custody of the child was granted to the maternal grandparents. In 1980, the mother “retained” Legal Services to represent her in seeking custody. Legal Services filed suit on behalf of the mother seeking custody of the child. As indicated above, the trial court refused to change custody and taxed the costs against Legal Services.

The trial court in pertinent part found the following:

“Petitioner, Kelly, has demonstrated that she is not only immoral in her beliefs and behavior but perhaps even amoral. She was advised and counseled to correct her life and she has refused. She knew her life-style was wrong and improper by current, acceptable social standards and would have made no move to regain custody of her child had it not been for the encouragement of her attorneys to do so.
“The Court finds that the real party at interest in Petitioner’s cause is Legal Services Corporation of Alabama. It is using this case as a means of challenging certain laws and legal principles without any real concern for either the Petitioner, Kelly, or her child. The Petitioner, Kelly, gave birth to a child on Wednesday and came to court on Thursday. She remained in great discomfort and probably pain during the course of the trial. Her new born infant, suffering a serious birth defect, was removed to Birmingham for surgery, but without being accompanied by her mother, because her mother had to be in Court. It is relevant to mention also that the father of the child, who was described in absentia as a loving and caring companion and father made no attempt to be with either the mother or child during these experiences. The Petitioner, however, remains confident that they will be married. A delay in the trial of this case would have helped more than hurt Petitioner’s claim, but none was asked for....
“There is no doubt that the minor child, Jennifer Lee Kelly, is better off with her grandparents, the Dunlaps, and the Court finds no good reason or legal grounds at this time to change her custody.
“The Court finds too, nothing wrong procedurally in this matter. Throughout the history of this case, the Petitioner, Kelly, and her child were afforded all the legal rights and safeguards that our laws and constitutions provide at both the state and federal levels. After over three years, she should not be allowed to say it was all a mistake. Her only relief is in showing that her circumstances have improved. She has failed to do this. If anything she has proven they are worse; it is therefore
“ORDERED AND ADJUDGED BY THE COURT that the Motion to Dismiss the Petition of Lee Dunlap Kelly, made by the Respondents, Dunlaps, at the close of Petitioner’s case be granted; and
“That Legal Services Corporation of Alabama, an attorney for the Petitioner, pay all the costs taxed herein, including the costs of depositions and a reasonable guardian ad litem fee for the Honorable William D. McFatter, who represented the child, Jennifer Lee Kelly.”
This order is dated October of 1980.

Thereafter, the grandparents specifically filed a motion requesting that costs and attorney’s fees be assessed against Legal Services pursuant to 42 U.S.C. § 2996e(f). The trial court then reaffirmed its order of October, thereby granting the grandparents’ motion for the taxing of costs.

The applicable statute, 42 U.S.C. § 2996e(f) , is as follows:

“If an action is commenced by the Corporation or by a recipient and a final order is entered in favor of the defendant and against the Corporation or a recipient’s plaintiff, the court shall, upon motion by the defendant and upon a finding by the court that the action was commenced or pursued for the sole purpose of harassment of the defendant or that the Corporation or a recipient’s plaintiff maliciously abused legal process, enter an order (which shall be appealable before being made final) awarding reasonable costs and legal fees incurred by the defendant in defense of the action, except when in contravention of a State law, a rule of court, or a statute of general applicability. Any such costs and fees shall be directly paid by the Corporation.”

In this instance, it is clear that Legal Services commenced an action. It is also clear that an order was entered against Legal Services’ position. Furthermore, a motion was filed by the prevailing party for costs to be taxed, and the trial judge, in effect, made a finding that the actions of Legal Services amounted to harassment or malicious abuse of the legal process under § 2996e(f). Aside from the above language in the decree, the trial judge, speaking during a hearing on taxing costs to Legal Services, said, “I think there is enough in the evidence to support what is set out there in your Federal Statute about Corporations having to pay the cost.” The trial judge said Legal Services brought the case as a “cause case,” which was “considered to be extremely important” for the purpose of developing “some law that Legal Services wanted developed, or changed, or challenged, or repealed, or something of that nature.”

The inquiry before this court is whether the trial court’s action taken pursuant to 42 U.S.C. § 2996e(f) is supported by the evidence. Put another way, does the evidence support the finding that Legal Services pursued this case for the sole purpose of harassment, or maliciously abused the legal process.

In order to examine the evidence in the proper light, it is first necessary to examine the meaning and purpose of 42 U.S.C. § 2996e(f).

After diligent search, this court has found only two cases in which § 2996e(f) is at issue. A federal district court, acknowledging no previous court has “construed the parameters of the liability of the Legal Services Corporation” under § 2996e(f), wrote: “A principal purpose of this statute, in our view, was to effectually waive sovereign immunity for liability resulting from vexatious litigation commenced or pursued against a defendant by the Corporation, ...” Flora v. Moore, 461 F.Supp. 1104, 1120 (N.D.Miss.1978).

Adopting language from a Civil Rights Title VII case on taxing costs, the court in Flora wrote:

“We are of the opinion that a meritless action which is prosecuted or pursued ‘in bad faith, vexatiously, wantonly, or for oppressive reasons,’ Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702, 707 (1973), is the legal equivalent of ‘an action pursued for the sole purpose of harassment of the defendant,’ within the meaning of 42 U.S.C. § 2996e(f).”

Flora v. Moore, supra, at 1121.

The term “meritless” has been defined by the United States Supreme Court as “meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, ...” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).

In Flora, there was ample evidence to support a finding of a “meritless” action pursued in a vexatious, wanton manner for oppressive reasons. The court listed at least eleven examples including incidences where counsel ignored the court’s ruling; requested extensive discovery depositions, requests for admissions of fact and motions for the production of documents with little or no relevance to the case; introduced voluminous evidence having no relationship whatever to the plaintiff’s claims; obstinately refused to recognize court orders, and instituted a second case against the same defendant on much the same grounds as they had just lost. Based upon such behavior, the court found that the litigation was pursued in a contumacious manner for the sole purpose of harassing the defendant. Flora v. Moore, supra.

After a careful review of the record, in the instant case, we find no evidence which appears comparable to the examples in Flora, nor which would fall within the intended parameters of liability under § 2996e(f). In the first place, we cannot say the case Legal Services presented was totally meritless. Two Department of Pensions and Security social workers who were acquainted with the situation testified that the mother was a fit person to have custody. The child’s guardian ad litem told the judge that enough evidence was presented to support a finding it was in the child’s best interest to be returned to the mother’s custody.

Furthermore, the record presents no clear evidence to support the learned trial judge’s finding that except for Legal Services, the mother would not have sought to regain custody. On the contrary, one social worker testified the mother’s “primary concern from the beginning of our relationship was: ‘How can I get my little girl back? What must I do? I want my child back.’ ” A second social worker testified the mother “seemed sincere” in wanting her child back. The mother testified she had made plans for the return of the child including investigating schools and gymnastic programs.

The trial judge is no doubt correct in finding a request for a delay in the trial would have helped the case, and been better for the mother who gave birth to a seriously ill child the day before the trial began. But the Legal Services’ attorney’s failure to seek a later trial date is not sufficient evidence of harassment or abuse of the legal process under § 2996e(f).

The trial judge’s finding that Legal Services brought the case as a “cause case” to change, challenge or repeal the laws is not clearly supported by the record on its face. The Legal Services’ attorney did challenge the constitutionality of the laws which permitted the Department of Pensions and Security to remove the child, but that argument was presented only once during the trial and was not emphasized at trial. Nor was that issue appealed. The record indicates the trial was instead dominated by testimony concerning the mother’s fitness and her life style—issues pertinent to the custody of the child.

Both the plain language of § 2996e(f) and the view of that provision taken by the court in Flora indicate liability under § 2996e(f) arises only in extreme eases, Flora v. Moore, supra; C.f., Christiansburg Garment Co. v. EEOC, supra, not merely when Legal Services’ client has a weak case and lost. Even if the Legal Services’ attorneys were motivated by a desire to strike down a law, that would not constitute an action pursued “for the sole purpose of harassment of the defendants.” (Emphasis added). Nor would such a challenge to the constitutionality of a law constitute “maliciously” abusing the legal process in this case since a successful challenge would have benefited the client’s position.

As the court in Flora noted, taxing legal fees and costs against Legal Services is “punitive in nature.” Flora v. Moore, supra, at 1122. Such a punitive effect is designed to protect the public from “frivolous” suits brought by Legal Services. Flora v. Moore, supra.

With that in mind, we cannot say that this suit, however imprudently pursued, was frivolous to the mother who wanted her daughter back. Nor can we say that Legal Services’ actions on behalf of their client, who admittedly had a weak case, was conducted “solely” for harassment or maliciously abused the legal process. This is not to be read as saying we in any way condone the actions of the Legal Services’ attorneys in their handling of this case, but only to say in this case their actions do not fall within the parameters of liability under 42 U.S.C. § 2996e(f).

We therefore reverse and remand.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

PER CURIAM.

Opinion corrected. Application for rehearing overruled.

All the Judges concur.

      . 42 U.S.C. § 2996 and its subchapters specifically deal with the Legal Services Corporation, its creation, purpose, powers, duties and limitations.

      . The only other case in which 42 U.S.C. § 2996e(f) was at issue was not on point and provided no guidance as to the boundaries of the statute. See Brewer v. Erwin, 287 Or. 435, 600 P.2d 398 (1979).


text:
    Wallace SIZEMORE v. Lela SIZEMORE.
    Civ. 3228.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    Rehearing Denied Nov. 10, 1982.

      Charles E. Mauney, Fort Payne, and Carol J. Millican, Birmingham, for appellant.
    Patrick H. Tate, Fort Payne, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Lela Sizemore and Wallace Sizemore were married June 6, 1974. This was their second marriage to each other. The parties were previously married July 1, 1961 and divorced July 30, 1970. Two children were born of the first marriage and one child was born of the second. All of the children are minors.

After a period of separation, Lela Size-more filed a complaint for divorce in March 1980. An ore tenus hearing was held on a petition pendente lite and, as a result, the husband was ordered to pay $200 per month as child support.

At the time of this hearing, Wallace Size-more lived at the marital home located on property his parents had given him. The wife and children lived in a trailer on a friend’s property. The husband was employed as a mechanic for U.S. Pipe in Chattanooga, Tennessee. Lela Sizemore worked at Simco Saddlery of Chattanooga. For extra income, she did belt work for Simco. She also did ceramic work at home. The husband’s income was significantly higher than the wife’s earnings.

In November 1981 a trial was held. The husband, at the time of trial, was eight months behind on his child support payments. A final decree was entered on December 10, 1981 and amended on December 22, 1981. Custody of the children was awarded to the wife with visitation rights given to the husband. Wallace Sizemore was ordered to pay the $1,600 child support in arrears and to pay $250 per month as child support. The court ordered that each party retain the real property in which he or she had been given title. The wife was awarded $1,800 as alimony in gross. In the amended decree the wife was given an income tax refund check, half of which was to constitute partial payment of the sum owed by the husband. The husband filed a motion for new trial and a motion in the alternative for the court to alter, amend or vacate the judgment. After a hearing on these motions, the motions were denied. The husband brings this appeal and raises three issues.

Husband’s first contention is that the trial court erred by increasing the $200 pen-dente lite child support award to $250 in the final decree without a proper showing of a change in circumstances.

The husband argues that the $200 per month child support awarded in the penden-te lite order could not be increased in the final decree without a showing of a significant change of circumstances. Since no significant showing of changed circumstances was made by the wife at trial, husband contends that the court could not increase the child support award in the final decree to $250 per month.

In support of his contention appellant-husband cites Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979) and 8 Ala. Digest, Divorce Key No. 309. The authority cited concerns the modification of a child support award made in a final divorce decree. The facts in the cited case differ from the facts established in the case at bar. In the instant case the $200 per month child support award was made pursuant to a pendente lite petition to provide support for the children during the pendency of the divorce proceeding.

The granting of pendente lite child support is in the court’s discretion. Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591 (1948), and review of the trial court’s exercise of such discretion is by way of mandamus, inasmuch as it is not a final decree. Rickerson v. Rickerson, 203 Ala. 203, 82 So. 453 (1919). Such an award is effective only until all matters can be determined by final decree. Ex parte Gurganus, supra.

In the present case no effort was made to alter the pendente lite child support award as authorized by the above cited cases. Moreover, whether the trial court awarded too much or too little child support in the final divorce decree is to be determined on the basis of the evidence submitted to the court in support of the final decree, not on the basis of changed circumstances between the pendente lite award and the final decree.

Husband’s second issue is whether the trial court erred in awarding alimony in gross to the wife. The husband argues that such an award should not have been made since the wife failed to make a request for alimony in her pleadings.

Rule 54(c) of the Alabama Rules of Civil Procedure states: “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

Alabama Rules of Civil Procedure, rule 15(b) states the same principle as follows:

“(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” (Emphasis added.)

The record reveals that a considerable amount of evidence concerning the parties’ financial conditions was presented. This evidence clearly related to alimony and child support. When the record reveals evidence that supports an award of alimony in gross, the trial court is not precluded from making an award even if such was not specifically requested. Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App.1980). See also Parrish v. Parrish, 365 So.2d 1237 (Ala.Civ.App.1979); Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975). No error here.

The husband also argues that if the wife was entitled to this money, the award should have been made through a division of property rather than alimony in gross. He contends that from the record it appears this award was based on the amount the wife spent on improvements for the marital home. This is the house now occupied by the husband.

An award of alimony in gross represents the present value of the wife’s inchoate marital rights. Such an award may also represent the fruits of the marriage where liquidation of the parties’ assets is not practicable. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). See also Williams v. Williams, 402 So.2d 1029 (Ala.Civ.App.1981). We find no error in the court’s denomination of its award as alimony in gross.

In his final issue, husband contends that the trial court failed to consider evidence that the wife had denied him visitation with his children in fixing the amount of the child support arrearage. In support of his contention, the husband presented evidence that his wife, in an effort to keep him from visiting the children, threatened to harm him. Because of the wife’s alleged actions, he did not have the opportunity to visit with the children. In brief the husband argues that the trial court should have considered these circumstances in arriving at the amount of child support arrearage. Because of its failure to consider his lost visitation rights, the arrearage award was excessive.

At the trial, the wife presented evidence contradicting the husband’s allegations of violence. She denied ever having interfered with the husband’s visitation rights during the time period at issue.

Where the evidence is in conflict, the trial court’s judgment resolving that conflict will not be set aside unless the judgment is plainly and palpably erroneous. Dye v. Dye, 406 So.2d 420 (Ala.Civ.App.1981).

The court, after hearing and weighing the conflicting evidence, apparently decided that the husband had not been denied visitation with his children, because it ordered the husband to pay all of the child support payments that he had missed. The evidence supports such a conclusion, and we conclude that the court’s finding is not plainly erroneous.

The appellee made a motion for damages for frivolous appeal. This motion is denied.

AFFIRMED.

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


text:
    Joy D. FAUGHT v. Kenneth L. FAUGHT.
    Civ. 3238-X.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    Rehearing Denied Nov. 10, 1982.

      Stephen R. Arnold of Durward & Arnold, Birmingham, for appellant.
    Charles R. Driggard of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

On January 11, 1982 Joy D. Faught and Kenneth L. Faught were awarded a divorce decree in the Circuit Court of Jefferson County on grounds of incompatibility of temperament. The divorce decree gave custody of the couple’s one remaining minor child to the wife. The husband was given reasonable visitation rights and was ordered to pay $300 per month in child support and $500 per month in periodic alimony. Mrs. Faught was also awarded most of the furniture and furnishings in the marital home and an automobile. Mr. Faught was ordered to pay all of the debts except for the mortgages on certain parcels of real estate awarded to Mrs. Faught. He was also ordered to pay a $15,000 attorney’s fee.

During the course of their marriage, Mr. Faught had engaged in the real estate business and had acquired a large amount of property. Due to the number and complexity of Mr. Faught’s real estate holdings, the determination of the value of these holdings was referred to a special master. Based on the master’s report, the court awarded Mrs. Faught the couple’s homeplace, sixty acres of real estate in Walker County, and seven other income-producing parcels of real estate. Mrs. Faught has appealed to this court, and Mr. Faught has cross-appealed.

In brief here, Mrs. Faught contends that the amount of property she received in the division is grossly inadequate and, as a result, the trial court’s judgment should be reversed. In support of this contention Mrs. Faught says that the court erred in basing its decision on the master’s report, which took into consideration accumulated depreciation in arriving at the value of her husband’s estate but failed to consider the depreciation on the property she was awarded. Appellee replies that the standing master’s report is unassailable at this stage of the proceedings because appellant failed to except to the report within the time allowed by Rule 53(e)(2), Alabama Rules of Civil Procedure.

Rule 53(e)(2), Alabama Rules of Civil Procedure, provides as follows:

“In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party shall serve any written objections thereto upon the other parties. Applications to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d).”

The comments to Rule 53(e)(2), A.R.Civ.P., make it clear that the requirements concerning objections to a master’s report are mandatory. Having failed to make a timely objection to the master’s report as prescribed by Rule 53(e)(2), appellant is precluded from raising any issue concerning its correctness in this court.

Accepting the validity of the master’s report, we must now examine appellant’s complaint that she failed to receive an equitable division of the parties’ property. She says she received only 23% of the marital property and because of her age and experience and the husband’s fault this is an inadequate division of the property.

In a divorce case where the evidence has been heard orally, a strong presumption of correctness surrounds the trial court’s ruling. Its decision will not be overturned on appeal unless it can be shown that there has been a gross abuse of that discretion. Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980). Moreover, the division of property between husband and wife need not be equal as long as it is equitable under the circumstances of the case. Taylor v. Taylor, 408 So.2d 117 (Ala.Civ.App.1981), cert. denied, 408 So.2d 120 (Ala.1982).

The evidence in the case at bar shows that appellant was awarded at least 23% of her husband’s net estate or, at most, 39% of his estate, depending on which version of the evidence one wishes to believe. Also, several of the properties awarded to the wife produce monthly rental income. One version of the evidence fixes the rental income at about $1,300 a month and another version has the rental income running from $500 to $700 per month. The wife also received the marital home with most of its furniture and furnishings. She also received sixty acres of land in Walker County that she requested be awarded to her. Furthermore, the evidence shows that Mrs. Faught worked in her husband’s real estate business for a number of years and that she is presently employed part time in the Jefferson County Tax Assessor’s office earning about $5,000 per year. Such experience qualifies the appellant to properly administer the income-producing properties awarded to her.

Appellant also argues that the trial court failed to take into consideration the relative fault of the parties leading to the dissolution of the marriage in its division of the property. The wife argues that there was sufficient evidence of the husband’s fault, i.e., drinking and an illicit affair, to warrant an award of more property than she received.

When a divorce is granted on the ground of incompatibility of temperament, the fault of the parties is a proper consideration for the trial court in awarding alimony and dividing property. Cooper v. Cooper, 382 So.2d 569 (Ala.Civ.App.1980). The evidence concerning the husband’s drinking habits and his affair with a female employee was vigorously contradicted by the husband. Where the evidence is conflicting, the power to resolve the conflicting evidence is vested in the trial court, and its judgment will not be set aside where there is no abuse of discretion. We find no abuse here.

For the foregoing reasons we find no error in the award of property to the wife.

The husband in his cross-appeal argues that the trial court’s award of a $15,000 fee to the wife’s attorney was excessive. An award of attorney’s fees is a matter which rests within the sound discretion of the trial court. Smith v. Smith, 369 So.2d 1235 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1239 (Ala.1979). Its decision will not be overturned except for a clear abuse of discretion. Nolen v. Nolen, 398 So.2d 712 (Ala.Civ.App.1981). The testimony contained in the record relating to the value of the services performed by the wife’s attorney ranged from a low of $9,000 to a high of $30,000. In view of the evidence in this case we do not consider the award of $15,-000 as an attorney’s fee as an abuse of the trial court’s discretion.

Appellant’s request for an attorney’s fee in this court is denied.

The judgment of the trial court is affirmed.

AFFIRMED.

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