text:
    Walter COLEMAN v. Barbara Weinacker RICHARDSON.
    81-666.
    Supreme Court of Alabama.
    Oct. 22, 1982.

      Thomas E. Bryant, Jr., Mobile, for appellant.
    Ben H. Kilborn of Kilborn & Redditt, Mobile, for appellee.
   JONES, Justice.

This appeal raises the issue whether, pursuant to Ala. Acts 1961, No. 974, the Probate Court of Mobile County has jurisdiction to try a will contest case after the probate of the will in probate court. Finding that it does, we reverse and remand.

Appellant Walter Coleman is the husband of Irma Barbara Garriga Coleman, deceased. Appellee Barbara Weinacker Richardson is the daughter of the deceased. A will of Irma Coleman, dated August 6,1969, was admitted to probate in the Probate Court of Mobile County, Alabama, on December 9, 1980. By its terms, Irma Coleman left her property to her three children, Barbara Weinacker Richardson, Henry Ku-per Weinacker, Jr., and Richard Ignatius Weinacker.

Prior to probate of the 1969 will, Walter Coleman, on May 21, 1980, filed a petition with the Probate Court of Mobile, alleging, inter alia that Irma Coleman had executed a will subsequent to the 1969 will and that Barbara Weinacker Richardson had it in her possession. Coleman’s petition asked that Barbara Weinacker Richardson be directed to produce the alleged subsequent will. In response to an order of the court, Barbara Weinacker Richardson produced the 1969 will, which was subsequently admitted to probate without a contest on December 9, 1980.

On May 18, 1981, approximately five months after the 1969 will was probated, Walter Coleman petitioned the Mobile Probate Court to probate the alleged second will of Irma Coleman, as a lost will, supposedly executed on October 23, 1973, and by the terms of which she left all her property to Walter Coleman. The petition was not accompanied by a written copy of the lost will.

Barbara Weinacker Richardson, a beneficiary under the 1969 will, probated on December 9, 1980, filed an objection attacking the jurisdiction of the probate court to probate the alleged second will. The crux of Richardson’s argument was that, by attempting to probate the second will, Coleman was “contesting” the first will; and, therefore, a complaint should have been filed in the Circuit Court of Mobile County within six months after the date the 1969 will was probated, pursuant to Code 1975, § 43-1-79.

On September 23, 1981, the Probate Court of Mobile County denied Coleman’s petition to probate the second will for the following reasons:

1. That the petition to probate the lost will executed on October 23, 1973, was a will contest.

2. That, pursuant to Code 1975, § 43-1-79, a will that is contested subsequent to probate of an earlier will may be filed within six months in the circuit court of the county in which such earlier will was probated.

3. That the Mobile Circuit Court and not the probate court was the court of proper jurisdiction; and, therefore, Coleman’s petition was due to be dismissed.

On November 3, 1981, Coleman appealed the probate court’s ruling to the Mobile Circuit Court. On March 19, 1982, the circuit court dismissed the appeal. Coleman appeals.

CONCURRENT JURISDICTION OF THE PROBATE AND CIRCUIT COURTS

Act No. 974, Ala. Acts 1961, reads as follows:

“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. That the Probate Courts in all counties of this State which now have or may hereafter have a population of over 300,000 and less than 500,000, according to the last or any subsequent Federal census, shall have general equity jurisdiction concurrent with that of the Circuit Courts, in equity, of this State, in the administration of the estates of deceased persons, minors and insane persons, including testamentary trust estates.
“Section 2. That the Judges of such Probate Courts shall have the same powers and authority which Judges and Registers of the Circuit Courts of this State now have in connection with the administration of such estates in the Circuit Courts, in equity.
“Section 3. That all laws of pleading and practice, and evidence, and rules of court, and all laws relating to testamentary trusts and testamentary rules of court, and all laws relating to testamentary trusts and testamentary trustees, and all laws relating to the mode of obtaining evidence by oral examination or by depositions, and of compelling the attendance of witnesses, and of enforcing orders, decrees and judgments now applicable in the Circuit Courts, in equity, shall apply to the administration of such estates in said Probate Courts, in so far as the same can be made appropriate.
“Section 4. That in the administration of said estates, such Probate Courts may proceed according to the rules and practice of the Circuit Courts, in equity, of this state, without regard to the statutory requirements provided for the administration of such estates in the Probate Courts of this State, but nothing herein is intended to prohibit such Probate Courts from proceeding in accordance with the statutes relating to the administration of such estates in the Probate Courts of this State generally.
“Section 5. Appeals may be taken from the orders, judgments and decrees of such Probate Courts, relating to the administration of such estates, including decrees on partial settlements and rulings on demurrer, to the Supreme Court within thirty days from the rendition thereof, or within thirty days from the decision of such Courts on a motion for new trial, in the manner and form as is now provided for appeals from the Probate Courts to the Supreme Court.
“Section 6. The Probate Judges of such Courts shall perform all the duties now required by law of the Judges and Registers of the Circuit Courts of this State, in reference to the administration of such estates and shall be entitled to assess and collect the same costs of court, charges, fees and commissions as are now authorized by law to be assessed and collected by Registers of the Circuit Courts for the performance of similar duties.
“Section 7. The jurisdiction conferred by this Act on the Probate Courts and Probate Judges of such counties is intended to be cumulative only, and it is not intended hereby to in any manner limit or restrict the present jurisdiction of the Circuit Courts or the Probate Courts of such counties. Nothing herein shall be construed as prohibiting the removal of any such estates from the Probate Court in such counties to the Circuit Court in equity, as is now provided by law.
“Section 8. It is the primary intention of this Act to expedite and facilitate the administration of such estates in counties of over 300,000 and less than 500,000 population and should any part of this Act be declared unconstitutional it is not intended that it shall affect the remainder of the Act.
“Section 9. The Probate Judges of such courts shall collect from the person or persons liable by law for the payment thereof, all costs of court, charges, fees and commissions chargeable for the services so performed under this Act and pay the same into the treasury of his county.
“Section 10. That all laws, general, local or special in conflict with the provisions of this Act are hereby repealed.
“Section 11. This Act shall take effect August 1, 1961.”

The Probate Court of Mobile County qualifies under Act No. 974 in that the county of Mobile meets the population requirements set forth in Section 1 of the Act.

Ala.Code 1975, § 43-1-79, states the following:

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated. (Code 1852, § 1654; Code 1867, § 1972; Code 1876, § 2336; Code 1886, § 2000; Code 1896, § 4298; Code 1907, § 6207; Code 1923, § 10637; Acts 1931, No. 733, p. 844; Code 1940, T. 61, § 64).”

Appellant contends that because Act No. 974 confers general equity jurisdiction on certain probate courts concurrent with that of the circuit courts, in equity, dealing with the administration of estates, and further confers the same powers and authority on probate judges of certain counties as exercised and held by circuit judges of those same counties, sitting in equity and dealing with the administration of estates, his petition to so probate the alleged October 23, 1973, will of Irma Barbara Garriga Coleman does not, as suggested by Appellee, contravene the mandate of Code 1975, § 43-1-79. We agree.

While the plain and clear language of Code 1975, § 43-1-79, speaks only to the “circuit” court’s jurisdiction in will contests, to say that such nomenclature deprives those probate courts in the appropriately populated counties via Act No. 974 from any post-probate jurisdiction would, in our view, read Act No. 974 right out of existence. We are sensitive to Appellee’s admonition against “judicial legislation,” but we are constrained to give Act No. 974, enacted subsequent to § 43-1-79, its clear meaning and to effect its obvious purpose.

It is important to note that such concurrent jurisdiction, as heretofore delineated, exists only in those counties with the population set forth in Section 1 of the Act. As Mobile County is encompassed within such population guidelines, Coleman’s filing of his “will contest” petition in the probate court, as opposed to the circuit court, was entirely proper.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Jimmie FERRELL v. Mac LANGLEY, et al.
    Civ. 3014.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    Rehearing Denied April 28, 1982.
    Certiorari Quashed, Nov. 5, 1982
    Alabama Supreme Court 81-663.

      Terry G. Davis of Gray, Seay & Lang-ford, Montgomery, for appellant.
    E. Drexel Meadors, West Point, Ga., for appellee.
   WRIGHT, Presiding Judge.

This is a personnel case.

Jimmie Ferrell, Edward Holloway and Frank Wright, police officers in the City of Lanett were fired by the mayor and city council (acting as the personnel board) on September 25, 1980. Soon thereafter that mayor and council finished their terms of office, and the new mayor and council took office October 14, 1980. A public hearing was held October 14, 1980, at which time the new mayor and council upheld the action of the prior body as to Ferrell and Holloway. Wright, however, was reinstated.

The fired officers appealed the mayor-council’s action to the Circuit Court of Chambers County. The circuit court affirmed the discharge of the officers on August 11, 1981, noting that the scope of review allowed in a judicial review of an administrative act is limited in nature. A motion for new trial in the matter was denied September 21, 1981. Ferrell alone challenges the trial court’s decision.

The charges lodged against Ferrell included deliberate falsification of records or misrepresentation, dishonesty, malfeasance and conduct detrimental to good order and discipline. It was alleged that Ferrell held money for citizens on fines owed to the City of Lanett; that he turned in overtime hours in connection with a civil case in which the City was not a party, and that the overtime hours were excessive. The trial court found the questions involved to be “close” ones but affirmed the discharge based on a presumption of correctness of the board’s decision and that there was substantial evidence to support the charge concerning excessive overtime hours.

The proper method of review in a ease of this sort is a petition for writ of certiorari. Ex parte Watkins, 268 Ala. 567, 109 So.2d 671 (1959). Our scope of review is extremely narrow. The proper standard is whether the law was properly applied and whether the ruling below was supported by the legal evidence. Ex parte Smith, 394 So.2d 45, 48 (Ala.Civ.App.1981); Guthrie v. Civil Service Board of the City of Jasper, 342 So.2d 372 (Ala.Civ.App.1977). The determination of the weight and credibility of the evidence was for the personnel board. Templin v. City Commission of the City of Birmingham, 279 Ala. 473, 187 So.2d 230 (1966). Our supreme court held in Ex parte Belcher, 280 Ala. 252, 253, 192 So.2d 454 (1966) that:

[O]ur review does not permit weighing the evidence. If there is any substantial legal evidence supporting one of the charges, which alone would warrant the dismissal, we have no alternative but to affirm.

We find that there was substantial legal evidence to support the ruling of the trial court. This cause must be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Gene O. MILLER v. Johnny Wayne CHILDERS.
    Civ. 3176.
    Court of Civil Appeals of Alabama.
    Oct. 13, 1982.
    Roger H. Bedford, Jr., of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    Donald D. Lusk, Birmingham, for appel-lee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Employee, Gene 0. Miller, injured his back on July 16,1980 while working for his employer, Johnny Wayne Childers. Miller was hired in 1976 to drive a truck for employer’s logging operation. At the time of the accident, employee was cutting logs with a power saw while waiting for his truck to be loaded. The saw got caught in the log and jerked him over the log. After reporting the accident to Childers, Miller went to a doctor that evening. He was given a physical examination for back pain. Employee returned to the doctor on the next day and was given medication to relax the muscles and relieve the pain. Over several weeks, he was sent to various specialists for examination. The pain persisted.

Miller filed a workmen’s compensation complaint against his employer. Depositions were taken of the plaintiff and of one of the treating physicians. The deposed doctor’s examination of Gene 0. Miller revealed that Miller was suffering from degenerative disc disease with superimposed lumbar sprain. He stated that the degenerative disc disease existed prior to employee’s accident of July 1980. The final hearing was held on June 4, 1981 and the court issued its final judgment and decree on January 15, 1982. Employee was awarded temporary total disability in the amount of nineteen and one-half weeks at $56 per week for a total of $1,092. Permanent partial disability of five percent for two hundred seventy-nine and one-half weeks was awarded for a total of $783.62, with an attorney fee of $117.50. Medical expenses were also awarded. Employee appeals this award and contends that it is inadequate.

The employee raises two issues on appeal: (1) whether the trial court erred in failing to award temporary total disability up to the time of the trial; and (2) whether the court erred in awarding only five percent permanent partial disability.

With regard to both issues, we note that this court is limited in the scope of review of workmen’s compensation cases to a determination of whether there is any legal evidence to support the judgment. Big B Discount Drugs, Inc. v. Parker, 401 So.2d 115 (Ala.Civ.App.1981). Our review of the record reveals evidence that does support the trial court’s judgment.

We note also that evidence was introduced at trial as to a work-related back injury the employee had received several years earlier while working in California. As a result of that accident, plaintiff underwent a prolonged course of treatment, including the application of a cast to his back. The plaintiff obtained a workmen’s compensation settlement in California for this prior back injury. Plaintiff testified in .the case at bar that he had fully recovered from the California work-related injury.

There is no indication in the trial judge’s decree, however, that the effect of appellant’s preexisting back problems, i.e., the degenerative disc disease and the prior back injury, were factors in his setting of the award. Moreover, the appellant has failed to raise on appeal whether the trial court improperly considered such factors. For a discussion of the effect preexisting medical conditions have on compensation awards, see section 25-5-58, Code 1975; Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); and Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948).

As to the first issue, plaintiff asserts that the temporary total disability period is to continue until maximum improvement has been reached and in this case that period was greater than the nineteen and one-half weeks awarded.

The doctor stated, in the deposition introduced at trial, that he expected Miller to recover from his sprain. The doctor also testified that he last saw Miller in January 1981 and his condition had improved. Further, the doctor related that Miller had told him that he was walking four miles a day. Evidence was presented by Childers that plaintiff was observed holding a child and that he was also seen carrying a three gallon bucket of canned goods.

As to the fixing of temporary total disability, “the court should make some estimate from the evidence as to its probable duration and fix the compensation to be payable until such estimated time, not exceeding the maximum.” Ford v. Crystal Laundry Co., 238 Ala. 187, 189 So. 730 (1939); Champion Intern. Corp. v. Simmons, 398 So.2d 305 (Ala. Civ.App.1981). Since evidence was presented indicating that the plaintiff’s condition had improved and that he was once again able to perform such normal functions as holding his children and carrying a bucket, the court’s nineteen and one-half week temporary total disability is supported by the evidence.

In support of the second issue raised, i.e., that he suffered more than a five percent permanent partial disability as a result of his latest accident, plaintiff cites City of Enterprise v. Herring, 372 So.2d 358 (Ala. Civ.App.1979), a case in which the trial court awarded a sixty-five percent permanent partial disability when the medical evidence showed that the physical disability did not exceed ten percent. In affirming the award, we stated that testimony of physical disability is not the only determinative factor in reaching an award. Other factors to be considered include age, education and experience, since these factors affect employability. Plaintiff says that the court should have given more weight to the other factors, such as age, experience and education, in deciding the percentage of disability.

As previously stated, the standard of review in a workmen’s compensation case is whether there is any evidence to support the trial court’s findings of fact. We do not weight the testimony of witnesses or assess the weight of other evidence to determine whether the various factors necessary to be proved have been proved. That is the job of the trial court. Following this review standard, we note from the evidence that appellant has a fourth grade education; that he has experience as a “set-up” man for an aluminum company, a bus driver, a truck driver, and as a worker in a machine .shop; and that his injury resulted in a sprain to the lumbar region of his spine from which injury he was expected to recover with no permanent injury. Based on this evidence and the other evidence in the record, we conclude that the trial court’s award based on a five percent permanent partial disability is supported in the evidence.

AFFIRMED.

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


text:
    Douglas NELSON v. Karon P. NELSON.
    Civ. 3236.
    Court of Civil Appeals of Alabama.
    Oct. 13, 1982.
    Ruben K. King, Montgomery, for appellant.
    William G. Hause of Hardwick, Hause & Segrest, Dothan, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Post divorce proceedings were filed by Mrs. Nelson against her former husband to enforce certain provisions of the divorce judgment as to doctor, dental and medical bills incurred on behalf of their minor children. Both parties testified before the trial court which ordered Mr. Nelson to reimburse Mrs. Nelson for $810 of such expenses which had been paid by her. He was also directed to pay to an orthodontist $1,987 for dental services rendered to one of the children. Mr. Nelson appeals and raises two issues. We affirm.

The divorce judgment approved an agreement of the parties. Paragraphs numbered 10 and 12 of that agreement enter into the present controversy. By the terms of paragraph 10, Mrs. Nelson agreed to pay all “jointly owed indebtedness incurred by the parties during the marriage.... ” Paragraph 12 provided that Mr. Nelson would be responsible for, and pay when due, all doctor, dental and medical bills incurred by the minor children.

I

Mr. Nelson contends that, under paragraph 10 of the agreement, he was entitled to two credits as against the $810 which he was ordered to pay to his ex-wife.

He borrowed $300 from Mrs. Nelson’s father to pay a dental bill for capping one of his teeth and he later paid this debt to his former father-in-law. The second alleged credit concerned a $170 balance due to a finance company. Mr. Nelson borrowed that money from them; the loan was only in his name and he repaid it to the creditor.

Under any reasonable construction, paragraph 10 means that Mrs. Nelson agreed to pay jointly owed debts incurred by them during their marriage. Since only Mr. Nelson was obligated to the two creditors to pay those two debts, they were not jointly owed, but were his personal debts. Mrs. Nelson was not a joint obligee as to either of the proposed credits. There was no joint liability therefor by both parties. Consequently, under paragraph 10 she was not due to pay either of those two debts of her former husband and the trial court properly failed to give Mr. Nelson credit for his payment of either of those accounts.

II

For her dental health, one of the children needed certain orthodontic treatment, including braces, and her dentist referred her to a specialist. A letter from the daughter’s orthodontist was introduced into evidence on Mr. Nelson’s behalf. It stated in part as follows:

“On July 18, 1980, Brandy [was] presented at my office for an evaluation. At that time we suggested that due to Brandy’s severe handicapping condition that orthodontic records were needed to determine Brandy’s condition. On August 5, 1980, we obtained diagnostic records .... “Due to Brandy’s condition her general dentist and I felt that it was necessary to start treatment as soon as possible to avoid the need for extraction of permanent teeth which could greatly affect Brandy’s profile.
“At this time Mr. Nelson was contacted and informed, by phone, of Brandy’s condition. He informed me at that time he did not have the financial reserves to pay for Brandy’s treatment and wanted no treatment on her. On January 18, 1981 Brandy’s general dentist got in touch with me concerned with no treatment being started on Brandy to this time. I then asked Ms. Nelson to give us permission to begin treatment as soon as possible, due to the immediate need I felt Brandy had. She agreed and on January 19, 1981, we initiated treatment on Brandy and informed Mr. Nelson that we had elected to proceed with treatment on Brandy with or without his making any financial retribution. He informed us at that time he did not plan to provide any payment since he had not authorized treatment. When we began treatment on Brandy we realized that this might be the condition and we made the election to treat Brandy at our own expense if need be. No charges have been made by our office or any payment received by our office on Brandy’s account.”

Mrs. Nelson testified that she had received a statement from the orthodontist in March, 1981. Further, her evidence was that Mr. Nelson owed the doctor $1,987 for dental services to the child and that Mr. Nelson had refused to pay it. Mr. Nelson presented no evidence of his inability to pay as of the date of the trial.

By the terms of paragraph 12 of the agreement, which was incorporated in the divorce judgment, Mr. Nelson agreed to pay all dental bills of the children. That agreement and judgment were not conditioned upon Mr. Nelson’s personal approval of the rendition of such services. He cannot escape his responsibility for the payment of dental services by his failure to authorize a dentist to treat his daughter. Mrs. Nelson has been billed for those services. The shift of responsibility for that debt by novation has not occurred. There is no evidence that she ever agreed that her former husband be relieved of liability for its payment and that she would be responsible therefor in his stead. No ambiguity exists, or is even raised, as to the agreement pertaining to Mr. Nelson’s responsibility to pay his children’s dental bills. The agreement of the parties was uncertain in Callen v. Callen, 257 Ala. 226, 58 So.2d 462 (1952), where payment for orthodontic services was nevertheless ordered. A parent may be required to pay for a child’s orthodontic treatment if it is in the best interest of the child’s welfare, and the modification of a prior divorce judgment may be made to that effect. Rickman v. Rickman, 266 Ala. 371, 96 So.2d 674 (1957). While Mr. Nelson argues that the trial court abused its discretion and was palpably wrong, we find no such abuse nor wrongness.

The judgment of the circuit court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    James Vernon LONNERGAN v. Sherry Kay LONNERGAN.
    Civ. 3346.
    Court of Civil Appeals of Alabama.
    Oct. 13, 1982.
    Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellant.

      Rowan S. Bone, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case is concerned with the modification of an original child support judgment.

The November, 1974, divorce judgment approved the agreement of the parties whereby the plaintiff (mother) was granted custody of the two children who were respectively two and one-half years and four months of age. It was further provided that the defendant (father) would pay child support amounting to $200 monthly. In April, 1975, the father sought a reduction in child support because of his income; however, it was later stipulated that the original support judgment would remain in effect. The father was adjudged to be in contempt of court in July, 1975, for his failure to pay the ordered child support.

The latest controversy arose when the mother sought an increase in child support and the husband asked for a reduction thereof. After both parties testified before the trial court at a January, 1982, trial, a judgment was rendered which increased the monthly support payments to be paid by the father to $250 per month. He appeals. We affirm.

In viewing the evidence with the attendant presumptions which we must give to the findings of the trial court, the following pertinent facts are revealed: The general cost of living and the specific cost of raising the children, including school expenses and clothing, have each increased since 1974. At the time of the divorce, neither of the children attended school, but now both are enrolled as students. Their school lunches cost ninety cents daily for each child.

The mother’s monthly take home salary is $798.

In 1974, the husband’s income was around $450 monthly. The husband testified that he had been employed as an agent for an insurance company for fifteen months. For the first year in that job, the whole of 1981, he was learning the business and was just getting started, with a resulting income for that year of $4,100. Prior to becoming an insurance agent, he had left his employment at an advertising agency by mutual agreement because of a disagreement with the manager. There, his salary was far more than his 1981 income. Now he does not pay any office rent nor does he contribute towards secretarial salaries. The father bought a home two years ago which resulted in a $40,000 mortgage with monthly payments thereon of $416. He purchased a 1981 automobile about a year ago for $8,400.

Both parties testified that $200 per month is inadequate to support the children. The mother requested an increase to $250 per month and the father testified that he was not able to pay more than $200 monthly. At the conclusion of the trial, the trial court observed that it was the responsibility of both of the parents to support the children and that, even on a 50-50 basis, the amount of $250 per month from the father would be a reasonable amount. The father appeals and contends that the monthly increase from $200 to $250 was not justified in view of his inability to pay. The father raises no question over the needs of the children but argues that there was inadequate proof of his ability to pay the additional $50 per month in child support.

An increase in the age of minor children and a correlative increase in their need for support, when coupled with increases in the cost of living due to inflation, constitute a material change in circumstances. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979).

“The conditions and circumstances, of the parties, though pertinent, are not the controlling criteria in determining the changed needs of the children. It is the material change in the needs, conditions and circumstances of the children that is the most pertinent factor in considering modification of a decree of support. That factor coupled with the father’s financial ability to meet such needs determines the basis for modification. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797.”

Womble v. Wombie, 56 Ala.App. 318, 321, 321 So.2d 660, 662, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975).

The circuit court heard the witnesses testify. Accordingly, the modification of the original judgment for child support because of changed circumstances was a matter within the trial court’s discretion and will not be reversed on appeal unless it was so unsupported by the evidence as to be palpably wrong. Bill v. Bill, 370 So.2d 1023 (Ala.Civ.App.1979). A reversal on the ground that a trial court’s judgment was plainly and palpably wrong must be founded upon the appellate court’s conclusion that the evidence virtually compels a different result from that reached by the trial court. Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976). Stated differently, there is no obvious abuse of the judicial discretion of a trial court “when the collective minds of an appellate court are uncertain and waver in balance” as to whether an increase in child support was justified or not under all of the evidence. Mack v. Mack, 402 So.2d 1038 (Ala.Civ.App.1981).

In this case, we have that uncertainty. After viewing the totality of the' circumstances, it is not distinct, plain, obvious or readily noticeable that the trial court incorrectly raised the support payments. As to the judgment appealed from, we find no palpable abuse of the trial court’s discretion and we must affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Harry Arthur JACOBSON v. Barbara Anne JACOBSON.
    Civ. 3145.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.

      Desmond B. Toler, Mobile, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is a child support modification ease.

The parties to this appeal were divorced in April 1977. There were two minor children resulting from the marriage. In 1978 the defendant-father was ordered to pay $150 per month as child support. In July 1981 the plaintiff-mother filed a petition in the Circuit Court of Mobile County seeking an increase in child support and other relief. After a hearing the court increased the child support for the two minor children to $98 a week and awarded the plaintiff an attorney’s fee of $150. From the order increasing the child support payments and the order awarding an attorney’s fee, defendant appeals to this court.

In brief defendant says that the increase in child support is excessive and amounts to an abuse of discretion. He also says that the award of an attorney’s fee to the wife was an abuse of discretion.

Modification of a prior child support award will be made only on proof of changed circumstances, and the burden of proof rests on the one seeking modification. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App. 1981). The judgment of the trier of fact in a child support modification case will not be disturbed unless the evidence shows it to be plainly wrong. Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). An increase in the age of minor children and a correlative increase in the need for support, when coupled with an increase in the cost of living due to inflation is sufficient to constitute a material change of circumstances so as to support a modification of a prior child support award. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979).

The evidence in the case at bar shows both the children to be in need of orthodontic treatment; they attend a parochial school where the tuition is $85 per month for both children; and their food, clothing and other expenses have increased.

The evidence also revealed that the father was employed earning about $1,550 per month. His monthly income in 1978 was about $1,200 per month. Defendant stated that he would be willing to have the child support increased to $200 per month.

Based on the evidence heard by the trier of fact, we cannot say that his decree increasing the child support for the two children to $98 a week is plainly wrong.

Defendant’s second issue is that the trial court abused its discretion in awarding the plaintiff $150 as an attorney’s fee.

The award of an attorney’s fee to the mother in a child support modification proceeding is a matter within the sound discretion of the trial court. Young v. Young, supra. An award of $150 to the mother as an attorney’s fee in this case is not an abuse of discretion.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Grace RHETT v. SOUTHLAND BROILERS, INC.
    Civ. 3272.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.
    George E. Trawick, Ariton, and S. Mark Jordan, Enterprise, for appellant.
    M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Appellant Grace Rhett was employed by appellee Southland Broilers, Inc. On or about August 13, 1979, she was injured while working at Southland when a fellow employee dropped a frozen chicken on her feet, causing her to fall into a drain and break her left foot in three places. As a result appellant claims to be crippled and permanently injured.

Rhett received workmen’s compensation payments from St. Paul Fire and Marine Insurance Company from the time of her injury until September 24, 1979. Rhett returned to work on that date and continued to work until January 9, 1980, when she again left work and again received benefits, this time until May 19, 1980. Rhett claims that she was induced to return to work on May 19 by the appellee’s promise that she would be given lighter and different work at the same wage rate. Rhett continued to work for appellee until her dismissal April 3, 1981.

On December 18, 1981, appellant filed suit against appellee seeking to recover sums due her under Alabama’s Workmen’s Compensation Law on account of her disability from the injury of August 18, 1979. Appellee answered by filing a Rule 12(b)(6), A.R.Civ.P., motion to dismiss, accompanied by an affidavit. On February 24, 1982, appellant filed an amended complaint accompanied by affidavits, which appellee answered by filing another Rule 12(b)(6) motion to dismiss, also accompanied by affidavit. That motion was granted on March 24, 1982.

On April 9, 1982, appellant’s motion to reconsider was denied. Appellant appeals the court’s final judgment granting appel-lee’s motion to dismiss.

Under Rule 12(b), A.R.Civ.P., because matters outside the pleadings were considered by the court in making its decision, the Rule 12(b)(6) motion to dismiss will be treated as a Rule 56 motion for summary judgment. As such, we must determine on review whether there exists any genuine issue of material fact and, if not, whether the substantive law was correctly applied. Rule 56, A.R.Civ.P.; Watts Construction Co. v. Cullman County, 382 So.2d 520 (Ala.Civ.App.1980). In making this determination we must look to the same factors which the court below considered in ruling on the motion. Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975).

The issue presented on this appeal is whether or not appellant presented, by her affidavits, the facts necessary to establish that the wages paid her between May 19, 1980, and April 3,1981, constituted compensation under our statute, so as to toll the running of the limitations period. The ap-pellee raised the defense of the statute of limitations and supported it by affidavit. It then became the responsibility of the appellant to show, by affidavits or otherwise, facts which would operate to toll the statute. 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1245 (rules edition, revised by C. Wright, 1958). The facts necessary to toll the statute were set out in Head v. Triangle Construction Co., 274 Ala. 519, 150 So.2d 389 (1963).

Appellee moved to dismiss the claim based on the fact that more than one year had passed since appellant had received her last check from St. Paul Fire and Marine Insurance Company. Section 25-5-80, Code 1975, states that the statute of limitations period for workmen’s compensation cases is one year after the accident. “Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment.” § 25-5-80, Code 1975.

Appellant amended her complaint and submitted affidavits alleging that she had returned to work on May 19, though not recovered from her injury and resultant surgery, because of appellee’s promise of lighter work at the same Wage. She averred that her employer knew of her condition and that she was unable to perform her regular job. Appellant contends that lighter work for the same wages constitutes compensation which tolls the running of the statute. Appellant relies on Head v. Triangle Construction Co., supra, in support of her contention.

In Head, the court stated the general rule: “The general rule seems to be that when an injured employee receives the same wage rate for lighter work after returning to his job, it is ‘compensation’ if the employer was aware, or should have been aware, that such wages constituted compensation.” 274 Ala. at 523, 150 So.2d 389. The court stated three issues relevant in a court’s determination of whether wages constitute compensation:

“(1) whether the employer was aware, or should have been aware, that such payments were compensation,
(2) whether the payments had the effect of recognition of the employee’s claim, and
(3) whether or not the evidence indicates that the employer paid for more than he received.” Id.

Although the appellant relies on Head as support for her contention that the wages paid her constituted compensation, it is important to note that the court in Head held that the wages paid in that case did not constitute compensation.

Employer’s affidavit in response to that of appellant traverses and disputes the allegations of appellant. Thus, there is presented a factual conflict as to whether there was a tolling of the statute of limitations. In the presence of such a conflict a dispute of material fact exists. Summary judgment or dismissal was therefore improper and requires reversal and remandment for the taking of evidence as to whether there was a payment of compensation tolling the statute of limitations. Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala.1979); Head, supra; Rule 56 A.R.Civ.P.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Lila Mae CASEY v. Roman CASEY.
    Civ. 3286.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.
    Eugenia L. Loggins of Loggins & Log-gins, Opp, for appellant.
    Linda S. James of James & James, Andalusia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

After hearing the oral evidence, the trial court divorced the parties on account of their incompatibility of temperament and directed the husband to pay to the wife as alimony $300 each month. The wife appeals and here contends that the trial court abused its discretion by awarding only $300 per month as periodic alimony and in not granting to her some of the husband’s property. We affirm.

In viewing the record with the attendant presumptions which must be accorded to the trial court’s action, the following pertinent facts, in capsule form, are revealed: the wife is a part-time beautician with an average weekly take-home wage of $100. Her testimony was that some of her monthly expenses amounted to approximately $300. The husband is provided with a vehicle and some insurance benefits by his business, which also makes the mortgage payments upon the house where he presently resides. He draws from $100 to $150 per week from the business. Fifty-eight dollars monthly is paid to him by the Veterans Administration for a disability. The debts of the husband on real estate mortgages, accounts receivable, bank notes and other indebtedness total slightly less than $600,-000. He swore that his assets, if merchandised over a period of time, would exceed his liabilities to only a small extent. According to the husband, his net worth is minimal.

The evidence was heard orally by the trial court. In the determination of alimony and a division of property, so much depends upon the acute senses of an observant trial judge sifting through and adjudging the testimony of the witnesses that, although we have reviewed the entire two volume record, we are not allowed to overrule the trial court unless it clearly appears that it was palpably wrong. The amount of alimony and the division of property both lie within the sound judicial discretion of the trial court, which is reversible only for a palpable abuse thereof. Wade v. Wade, 402 So.2d 1009 (Ala.Civ.App.1981).

Here, the amount awarded as alimony equaled the expenses as enumerated by the wife. The amount so adjudged is not unreasonable under the evidence. With regard to a division of property, the trial court could have readily ascertained from the testimony that the husband’s net worth was either nil or negligible with the result in this case being occasioned by there existing little or nothing to divide. If there is nothing to divide, the trial court cannot be reversed for not dividing it. After an attentive and painstaking reading, study and consideration of all of the evidence and the briefs of counsel, it is not clear that the trial court abused its discretion. The judgment is not inequitable. A reversal is not required, essential nor imperative. The final judgment is affirmed.

The wife’s application for the award of an appellate attorney’s fee is denied.

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

AFFIRMED.

All the Judges concur.


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    Shirley STONE v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 3330.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.

      George A. Brown of Brown & Bolton, Mobile, for appellant.
    Clyde P. McLendon, Asst. Atty. Gen., and Richard G. Alexander, Mobile, for appellee.
   BRADLEY, Judge.

This is a child custody case.

On October 23, 1981 the juvenile division of the Circuit Court of Mobile County awarded custody of a minor child, Ashley Hope Stone, to the Mobile County Department of Pensions and Security. Thereafter the mother, Shirley Stone, filed a motion for custody or in the alternative for specific visitation rights. Before trial, attorney for the mother made an oral motion for recusal claiming that the court had heard previous cases involving parental rights of the child’s maternal grandmother. The motion was subsequently denied, and the case was heard ore tenus. On April 30, 1982 the court entered an order awarding custody of the child to the Department of Pensions and Security and terminating all parental rights of the mother. Following a denial of her motion to reconsider, the mother has appealed to this court.

Two issues are raised for our consideration by the mother’s appeal. First, she argues that the Department of Pensions and Security failed to meet its burden of showing by clear and convincing evidence that termination of parental rights was proper. Second, the mother contends that her motion for recusal should have been granted since the court had prior knowledge of herself and her mother.

In dealing with a child custody case where the evidence is heard ore tenus, this court is constrained by the rule that every presumption of correctness must be accorded to the trial court’s decision. Williams v. Williams, 402 So.2d 1029 (Ala.Civ.App.1981). A reversal is mandated only in those instances in which it is shown that the trial court plainly and palpably abused its discretion. Garrison v. Kesek, 406 So.2d 953 (Ala.Civ.App.1981). In the instant case, however, after careful examination of the record, we find none of those factors which would lead us to believe that the trial court abused its discretion in awarding custody of the child to the Department of Pensions and Security and terminating the mother’s parental rights.

Appellant, in arguing that the Department of Pensions and Security has not met its burden of proof, relies on our decision of Glover v. Alabama Department of Pensions & Security, 401 So.2d 786 (Ala.Civ.App.1981), where we said that:

“We consider important that the State, in seeking permanent termination of parental rights, as compared to temporary custody of a dependent child, establish not only the permanent incompetency and unsuitability of the parent by clear and convincing evidence, but that it present a viable alternative to better serve the future welfare of the children.”

We find, however, that Glover, supra and the instant case are distinguishable on their facts. In the Glover decision this court dealt with a situation in which the mother, while suffering from “mental, emotional, psychological and character weaknesses,” had made great progress in establishing a home environment in which her children could be reared. We also found that the condition of one of the Glover children had deteriorated while in a foster home and that neither of the two children involved was adoptable. The facts in the instant case, however, reveal a pattern of behavior on the part of the mother, starting from a timé shortly after the birth of Ashley when she left the child in the home of a maternal uncle and aunt while she was in prison for drug-related offenses, which leads to a finding of “permanent incompetency and unsuitability.” Glover, supra. There is also evidence, here, to show that the mother is suffering from a long-term drug problem. The evidence also shows that she was in the hospital for drug withdrawal symptoms within two weeks of the hearing on the custody and parental rights proceedings and that she was unemployed. The evidence further shows that she is twenty-seven years old and the longest period that she had been employed was three to four months. Moreover, the record indicates that Ms. Stone had no residence of her own and that she was completely dependent on her mother for support. According to testimony from a Department of Pensions and Security caseworker, specific goals had been worked out between Ms. Stone and the department which should have been met before Ashley could be returned to her mother. These goals were never achieved. The caseworker also indicated that Ashley’s condition had improved while she was in the foster home and that she was adoptable. At the time Ashley was placed in the temporary custody of the Department of Pensions and Security, she was about four years old, weighed about twenty-seven pounds, and was still receiving milk from a bottle. She had a number of cavities due to the long-continued dependence on the milk bottle. For the foregoing reasons and other evidence in the record that we concluded should not be recited here, we do not find that the trial court plainly and palpably erred in awarding custody of the child to the Department of Pensions and Security and terminating the mother’s parental rights.

We also find no merit in appellant’s contention that her motion for recusal should have been granted. It has been held that “[t]he bias or prejudice that will disqualify a judge must be ‘personal’ as distinguished from ‘judicial’ bent; the disqualifying bias or prejudice ‘characterizes an attitude of extrajudicial origin, derived coram non judice.’ ” (Citations omitted.) Koch v. State, 401 So.2d 796 (Ala.Cr.App.), cert. denied, 401 So.2d 801 (Ala.1981). Appellant’s charge of bias was based on allegations that the trial judge had come into contact with her and her mother in prior court hearings; and since there was no charge of “personal” bias, the motion for recusal was properly denied.

For the foregoing reasons we find no error in the trial court’s decision.

AFFIRMED.

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


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    Clyde E. WALLACE, Jr. v. AUTO-OWNERS INSURANCE COMPANY.
    Civ. 3335.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.

      Pete J. Valias, Mobile, for appellant. Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a homeowners insurance case.

Mr. Wallace, as the named insured, sued Auto-Owners Insurance Company (the Company) under a then current policy which contained the following:

“COVERAGE D — ADDITIONAL LIVING EXPENSE
If a property loss covered under this policy renders the premises untenantable, this policy covers the necessary increase in living expense incurred by the Named Insured to continue as nearly as practicable the normal standard of living of the Named Insured’s household for not exceeding the period of time required:
1. to repair or replace such damaged or destroyed property as soon as possible; or
2. for the Named Insured's household to become settled in permanent quarters; whichever is less.”

A judgment was rendered by the circuit court in favor of the Company at the conclusion of a non-jury trial before that court. An appeal was duly taken by Mr. Wallace. We affirm.

Before both the trial court and this court, the Company has restricted its primary argument to a contention that recovery cannot be had because of the quoted policy provision numbered 2. It stated that the payment of additional living expenses was limited to that period of time required for Mr. Wallace to become settled in permanent quarters. Accordingly, we shall confine our factual summary to pertinent evidence concerning that matter, and, in that regard, the following is revealed after viewing the record with the attendant presumption accorded to the trial court’s action: On September 12, 1979, Mr. Wallace's home on Dauphin Island was totally destroyed by a hurricane. It was insured by the homeowner’s policy. All payments due under the insurance contract for all damages occasioned by the hurricane to Mr. Wallace’s home and contents were made to him except for those presently in controversy under Coverage D.

On September 13 and December 4, 1979, the Company paid to the insured a total of $3,150 for additional living expenses, but it subsequently refused to make further payments therefor to him.

Before the hurricane he shared an apartment on Catherine Street in Mobile, which he utilized approximately three times a month when he came to Mobile. After September 12, he moved into a different apartment on Catherine Street where he lived for the following eighteen months. At three points in his evidence, he testified that he considered that apartment to have been his permanent residence. For the fourth time from the witness stand he admitted that the Catherine Street apartment constituted his permanent quarters according to the policy. After living there for the eighteen months, he moved to another apartment in Mobile where he was still residing at trial time in January 1982. As of that date, he had not commenced rebuilding his beach house on Dauphin Island.

The trial court found no ambiguity in the provisions of Coverage D. We have not been cited to any case which holds that the language of the additional living expense coverage terms of the policy is ambiguous. Courts in other jurisdictions have considered identical coverage provisions without any indication of uncertainty in the meaning of the words thereof. Phoenix Assurance Co. of New York v. Singer, 221 F.Supp. 890 (E.D.Mo.1963), aff’d, 331 F.2d 10 (8th Cir.1964); Carlyon v. Aetna Casualty & Surety Co., 413 So.2d 1355 (La.App.1982); Dodge v. United Services Automobile Association, 417 A.2d 969 (Me.1980). We find the additional living expense provisions of Coverage D to be unambiguous.

Mr. Wallace contends that he was entitled to the protection which he reasonably expected to receive. However, since the language of the policy provision is not ambiguous, the reasonable expectations theory is here inapplicable for we are not authorized to rewrite the policy.

“Policies of insurance being carefully prepared by the insurer, when containing provisions reasonably subject to different constructions, one favorable to the insurer and one favorable to the insured, the construction favorable to the insured shall prevail. As sometimes stated the insured is entitled to the protection which he may reasonably expect from the terms of the policy he purchases.
“In giving effect to this rule, it is equally important that the contract made by the parties shall prevail, and no new contract be interpolated by construction.
“Provisions clearly disclosing their real intent are not to be given a strained construction to raise doubts where none reasonably exist. No citation of authority need be made in súpport of these well settled principles.”

Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425 (1941).

Since the trial court heard the evidence, which was presented at the trial, the final judgment is presumed to be factually correct and the findings of the trial court will not be disturbed unless they are palpably wrong, without supporting evidence or manifestly unjust. Farm Country Homes, Inc. v. Rigsby, 404 So.2d 573 (Ala.1981). Mr. Wallace’s own testimony as to his permanent residence being located at his Catherine Street apartment is supportive of the holding of the circuit court. The decision of the trial court is not clearly wrong, nor is it unjust. The final judgment is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    HOUSING AUTHORITY OF the CITY OF DECATUR, a corporation v. The Honorable C. Bennett McRAE, Special Probate Judge, Bessie Stevens Collier, H.D. Wilhoite and Betty H. Wil-hoite, Noble Hodges and Annie Pearl Hodges, et al., Parcel Two.
    Civ. 3339.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.

      David B. Cauthen, Decatur, for appellant. J. Tilden Dillard, Decatur, for appellees.
   BRADLEY, Judge.

This is an appeal from the denial of the writ of mandamus or in the alternative a writ of prohibition in a condemnation case.

On July 30, 1976 the Housing Authority of the City of Decatur, Alabama filed a petition seeking to have two parcels of real estate condemned. For purposes of this appeal, we shall designate the real estate involved as Parcel One and Parcel Two and note that only questions connected with Parcel Two are before this court. After all interested parties were served with notice, the probate court held a hearing and, on September 29, 1976, entered an order condemning both parcels. Commissioners were appointed to assess damages. Thereafter, on October 5, 1976, the probate court entered a judgment of condemnation and an award of damages in connection with both parcels of real estate. The owners of Parcel One moved to transfer the case to the Circuit Court of Morgan County on June 24, 1977 for a determination of entitlement to proceeds. Through an administrative error, the record concerning Parcel Two was also transferred to the circuit court at the same time. No further action was taken concerning Parcel Two until February 27,1981 at which time H.D. Wilhoite and Betty H. Wilhoite, appellees in this case, sought a trial de novo in the circuit court. Subsequently, on May 21, 1981, appellees filed a motion seeking to have the record concerning Parcel Two remanded to probate court, alleging that they had been denied due process since they were given no notice of the report of the commissioners. Their motion was denied. On November 13,1981 the appellees filed another motion seeking to have the case dismissed for lack of jurisdiction or alternatively remanded to the probate court. The circuit court granted this motion and ordered that the record concerning Parcel Two be sent back to the probate court. The Housing Authority, on February 25,1982, petitioned the circuit court for a writ of mandamus and an alternative writ of prohibition seeking to stop any further proceedings in the probate court. This motion was denied, and the Housing Authority has appealed from the denial.

The Housing Authority, appellant in this case, has filed a motion under rules 27 and 28, Alabama Rules of Appellate Procedure, to strike certain matters from appellees’ brief. In support of its motion, appellant argues that such matters are extraneous and are not in the record before this court. While we deny the motion to strike, we have examined the record carefully and have given due consideration only to those matters contained therein.

Appellant, in brief, first argues that in an eminent domain case, the landowner is entitled to notice of the original condemnation hearing and that no further notice is required at any other stage of the proceedings. Appellees, while admitting that they received notice of the original proceeding, claim that they were also entitled to notice of the filing of the report of the commissioners. We disagree.

Under section 18-1-7, Code 1975, an eminent domain action is begun by the filing of an application. Thereafter, according to section 18-1-8, Code 1975:

“[T]he court must make and enter an order appointing a day for the hearing thereof and must issue to all the owners of such lands and to such other parties as claim or hold any right, title or interest therein, as reside in the state, notice of the application and of the day for the hearing thereof, which must be served by the sheriff or other legal officer at least 10 days before the day appointed for the hearing.”

If the application is granted, the probate court must appoint three commissioners to assess damages. Section 18-1-15, Code 1975. The commissioners are required to file a report concerning damages with the probate court within twenty days of their appointment; and, thereafter, the probate court must make an order of condemnation. Section 18-1-19, Code 1975. We note that the code is wholly silent as to any notice requirement in a condemnation case other than that which is required under section 18-1-8, Code 1975, to inform interested parties of the original hearing. In its recent decision of Puckett v. Alabama Power Co., 412 So.2d 1209 (Ala.1982), our supreme court stated that “[t]he scope of § 18-1-1 et seq., was intended to include the entire judicial process in condemnation cases.” The court held that express notice was not required even for the entry of judgment in a condemnation case, saying that:

“[T]he language of § 18-1-19 and § 18-1-20 is clear as to the time within which specific steps must be completed in the condemnation process (i.e., the Commissioners must make their report within 20 days of their appointment; the filing of an appeal from the order of condemnation must be made within 30 days of the entry of that order). The work of the Commissioners triggers the entry of an order confirming their ultimate report and condemning the subject property.”

Since appellees received notice of the original hearing and, by their own admission, were present when it was conducted, they have received such notice as is statutorily mandated and cannot later argue that they have been deprived of due process because they failed to receive notification of the filing of the report of the commissioners.

Appellant next argues that both the probate court and the circuit court lack any further jurisdiction over Parcel Two. We agree with this contention. Section 18-1-20, Code 1975, sets out the method of appeal in a condemnation case and states in pertinent part:

“Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days after the making of the order of condemnation by filing in the court rendering the judgment a written notice of appeal, a copy of which shall be served on the opposite party or his attorney, and on such appeal, the trial shall be de novo.... ”

The requirements of section 18-1-20, Code 1975, have been held to be mandatory and jurisdictional. Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854 (1954). In the instant case the judgment of condemnation was entered on October 5, 1976, and the appeal was filed on February 27, 1981. Since appellees failed to file their appeal within the statutory period, both the probate court and the circuit court lack any further jurisdiction over the matter.

Having decided that appellees were not entitled to notice of the commissioners’ report and that their appeal was not timely filed, the only matter left for our consideration is whether the writ of mandamus or in the alternative a writ of prohibition were proper remedies in this case. In Thornton v. First National Bank of Birmingham, 291 Ala. 233, 279 So.2d 496 (1973), the supreme court said that “[u]se of the writ of mandamus at common law has not only been to compel a court to exercise its authority when it has a duty to do so, but also to confine a court to the exercise of its prescribed jurisdiction.” (Citations omitted.) Here, the special probate judge had scheduled an informal conference with the attorneys to determine how to proceed with the case. In so doing the probate court was threatening to proceed with a matter over which it lacked jurisdiction, and in these circumstances a writ of mandamus was a proper remedy to prevent it from doing so, i.e., to require the probate court to dismiss the proceedings before it.

For the foregoing reasons the writ of mandamus should have been issued, and the decision of the circuit court is due to be reversed.

REVERSED AND REMANDED.

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


author: HOLMES, Judge. BRADLEY, Judge,

text:
    Glenda Burkett Scott WEST v. Wesley Davis SCOTT.
    Civ. 3356.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.
    R. Larry Bradford of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Robert V. Wooldridge of Wooldridge, Wooldridge & Malone, Tuscaloosa, for ap-pellee.
   HOLMES, Judge.

This case is the second appeal to this court involving a petition to modify the amount of child support payments.

The mother and father in this case were divorced in 1977. The custody of their one child was awarded to the mother, and the father was ordered to pay the mother $100 per month in child support.

In September, 1981, the mother brought a petition asking that the father be held in contempt because he was $900 in arrears in child support payments. The mother also sought an increase in the child support provisions due to changed circumstances.

In his first decree, the trial judge found the father owed $900 arrearage plus a $500 attorney’s fee, but did not hold him in contempt. The trial judge stayed the execution of this judgment, and placed the husband on a repayment schedule where he would pay $50 a month until the judgment was paid off. The trial judge also found that the child support should be increased to $150 a month, but this increase would not be effective until the arrearage was paid off. The mother appealed, claiming it was error to stay the execution of the judgment for arrearages, and error to order an increase in child support effective two and one-half years later.

In West v. Scott, 414 So.2d 981 (Ala.Civ.App.1982) (Judge Holmes concurring in part and dissenting in part), this court found error in both aspects raised by the mother. This court reversed and remanded with instructions for the trial court to determine “whether there have been sufficient changed circumstances to warrant a change in child support without consideration of the order for installment payment of child support arrearages.” West v. Scott, supra, at 982. For perhaps a better understanding of this appeal interested persons should refer to West v. Scott, supra.

On remand, without hearing any new evidence, the trial judge amended his first decree to read: “The Court finds insufficient changes of circumstances to justify modification of child support payments by Defendant [father] and the Petition For Modification of child support payments should be denied.”

From this amended decree the mother through able counsel appeals, claiming the trial court abused its discretion in denying the previously-ordered modification of child support. We find no error and affirm.

Despite the procedural history of this ease, the sole issue on appeal in view of the court’s prior opinion is whether the trial court abused its discretion in denying a modification of child support payments. As indicated, we find no such abuse of discretion and affirm.

At the onset we note “[o]ur well-established rule ... that the modification of a decree for child support is a matter for judicial discretion of the trial court. [Citation omitted.] On appeal, this court will not disturb the exercise of that discretion absent our finding, upon review of the evidence, that the trial court’s judgment is plainly wrong.” Phillips v. Phillips, 395 So.2d 1040, 1042 (Ala.Civ.App.1981). See also, e.g., Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979).

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

Since their divorce, both parties have remarried. The wife has a second son and quit her job to be at home full time with her two children. The father also now has a second child.

At the time of the modification hearing, the father earned $1,100 a month gross income with an apparent take home pay of $725 per month. Although his employer furnished him with a car, the employer deducted $15 a month for the car. In addition, the father still had to pay for gas, oil and insurance for his personal use of the car. An examination of the father’s monthly budget indicated no extravagances. The father testified that even with his wife’s income they had trouble making ends meet. Furthermore, at the time of the original decree more than four years ago the father’s take home pay was approximately the same as it was at the modification hearing, to wit, $690.

In upholding a trial court’s denial to increase child support payments, this court wrote: A modification in child support “must be founded upon changed circumstances as to the needs of the children and the means of the parent. It is a matter for exercise of judicial discretion. The judgment of the trier of fact will be disturbed on appeal only if the evidence shows the trial court to be plainly wrong.” Murphree v. Murphree, 366 So.2d 1132, 1134 (Ala.Civ.App.1979). After our review of the record, we cannot say the trial court was “plainly wrong” as there was evidence the father lacked the means to pay an increased amount.

The mother’s and father’s request for attorney’s fee, in light of the above, is denied.

There being no error, we affirm.

AFFIRMED.

WRIGHT, P.J., concurs.

BRADLEY, J., dissents.

BRADLEY, Judge,

dissenting:

I respectfully dissent.

In its first decree the trial court awarded the mother an increase in child support of $50 a month to be effective when the ar-rearage was paid in twenty-nine months. The father had been ordered to pay the arrearage at the rate of $50 a month. The evidence shows that the father admitted he could pay an additional $50 a month in child support.

We said in West v. Scott, 414 So.2d 981 (Ala.Civ.App.1982) that the payment of child support arrearages is not a pertinent consideration in the determination of present and future child support. Yet the trial court, on remand of this case and without taking additional testimony, amended its original decree, i.e., the one in which it had held on the same facts that the father could pay $50 more a month child support after he paid the child support ar-rearages, to hold that now no such increase in child support was warranted. What had changed between the first decree and the second decree to authorize such a change in its award?

So far as I am able to determine, nothing has changed except as suggested by counsel in brief that the arrearage has been paid. If in fact the arrearage has been paid, the impediment to immediate payment of the increase in child support has been removed and the father could start now paying the $50 increase in child support.

I would reverse the present decree and require the court to implement its previous findings.

      . The author of this opinion dissented in part in West v. Scott, supra, and does not retreat from that position. Nonetheless, I recognize that the majority opinion is the law of the case.


text:
    J. W. HENSON v. Cindy R. HENSON.
    Civ. 3367.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1982.

      H. Neil Taylor, Russellville, for appellant.
    Ann Richardson Downing, Haleyville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an A.R.Civ.P. Rule 60(b) proceeding.

Through a September 17, 1981, final divorce judgment, the wife was awarded a house and ten acres of land and was required to pay the outstanding indebtedness thereon. The register failed to notify the husband, or his attorney, of the rendition of the judgment. Upon a telephone inquiry by the husband’s attorney in the first half of November, the register informed the attorney that the file was in the judge’s office. The wife’s attorney, who had received a copy of the divorce judgment, informed her opponent on November 13, 1981, that the judgment had been entered on September 17, and she promptly mailed a copy thereof to him, which he received on November 14.

On November 18, 1981, the husband filed his Rule 60(b) motion to set aside the final judgment, alleging that, by reason of his failure to timely receive a copy of the divorce judgment, he was deprived of his right to file a motion for a rehearing and that he was deprived of his right to appeal since more than forty-two days had expired before he was aware of the rendition of the divorce judgment. He further alleged and proved at the hearing that, after the divorce trial, the trial court stated from the bench that it would probably have an appraisal made of the real estate owned by the parties, that, thereafter, the court requested the wife’s attorney to recommend an appraiser and arrange for an appraisal of the property, which was done. The court received the appraisal dated July 17, 1981, but neither of the parties nor attorneys received a copy thereof nor any notice concerning the appraisal. Without further proceedings, the trial court rendered the September 17 final judgment.

The trial court overruled the husband’s 60(b) motion, and the husband appeals. In actuality, the issue before this court is whether the denial of the motion to set aside the judgment was an abuse of discretion. In reviewing the overruling of the 60(b) motion, this court is not concerned with whether the trial court was correct or not in the award of the property to the wife through the divorce judgment. The appropriateness of the overruling of the husband’s 60(b) motion is the only matter under review. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala.1977); Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975).

To obtain relief under 60(b), except upon the ground of a void judgment, a meritorious defense to the action and one of Rule 60(b)’s grounds must both be alleged and proved. Fraizer v. Malone, 387 So.2d 145 (Ala.1980); American Home Assurance Co. v. Hardy, 378 So.2d 710 (Ala.1979).

All of the husband’s testimony as to the value of the property and which attacked the appraisal itself was as follows:

“Q. Would you like to have submitted additional testimony, expert testimony about the value of the property had you had notice of this appraisal?
A. Well, most of the time an appraisal is always lower.
Q. The question was, would you have liked to have submitted additional expert testimony about the value of the land?
A. Yes, I would, because I think the land is worth more than that. I think the property there is worth more than that....
Q. Have you ever had any training or any work in property appraisal?
A. No, Ma’m.”

At the hearing on his motion, the husband could have presented evidence as to the value of the property, even that of the real estate agent who appraised the property, but no such evidence was here offered or given. The husband did not present his opinion, or the opinion of anyone, as to the reasonable worth of the real estate.

In ruling upon a Rule 60(b) motion, the trial court exercises a judicial discretion (except where the ground is a void judgment), and its decision thereon will not be overturned on appeal unless that discretion was abused. Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981); Tucker v. Tucker, 403 So.2d 273 (Ala.Civ.App.1981); Ingram v. WAAY Television, 394 So.2d 65 (Ala.Civ.App.1981). The husband offered no real evidence that there was anything materially wrong as to the substance of the appraisal. The trial court could have readily ascertained that a different division of the property was not occasioned by the appraisal or that a different result would not have been reached as a result of the evidence offered pertaining to the husband’s motion. Indeed, that court must have been of the opinion that the granting of relief from the final judgment was not appropriate in order to further justice in this case; otherwise the relief would have been granted.

The trial court exercised its discretion and did not abuse it in overruling the husband’s Rule 60(b) motion. We affirm.

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Ronald CANADA v. STATE.
    7 Div. 896.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Quashed, Nov. 5, 1982
    Alabama Supreme Court 81-853.

      Gary L. Smith of Elledge & Smith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted of illegally selling a controlled substance, methaqualone, ,jn violation of § 20-2-70, Code of Alabama 1975. An Etowah County Circuit judge sentenced the appellant to 25 years imprisonment.

The State’s first witness was Sheila Mitchell, the buyer of the drugs. Ms. Mitchell testified that she wished to buy some “quaaludes” from appellant for a friend. On the morning of February 17, 1981, Ms. Mitchell drove to a rural grocery store and spotted appellant’s car. She left her car and got into appellant’s car on the passenger’s side. She counted out $360 and gave the money to appellant. Appellant pulled out a bag containing 200 “quaaludes” from under his car seat and handed the “quaaludes” to Ms. Mitchell. At that time, the two were surrounded by undercover agents and arrested.

The State then called Johnny Grant of the Etowah Sheriff’s Office to the stand. He and his partner went to the grocery store around 8:30 a.m. on February 17,1981. The men waited in the store, watching for appellant and Ms. Mitchell. Around 9:00 a.m., the men noticed a car pull into the store parking lot and park near a utility pole. Shortly thereafter, appellant pulled up. Deputy Grant walked from the back of the store and stood behind a parked trailer truck. He saw Ms. Mitchell get out of her car and get into appellant’s car. Deputy Grant observed appellant hand towards Ms. Mitchell a plastic bag containing what later was identified as methaqualone. He also saw appellant with money in his hands. As appellant was being arrested, Deputy Grant heard appellant say, “You’ve got me. That’s enough.”

The State called two other officers, Policemen J.J. Alexander and Roy Harbin, who observed the drug transaction from a parking lot across the road. The two officers essentially corroborated Deputy Grant’s testimony. Policeman Harbin, after giving appellant his Miranda warnings and obtaining a written waiver of counsel from appellant, took down appellant’s statement. Appellant told the officers that he was not the one they wanted, “that we [the police] wanted the big people and not the little dealers, we had overestimated at how big of a dealer he was.” Appellant also told the officers that their estimate that the pills would bring $5.00 apiece on the street was too high and that he would have never sold one for more than $1.75.

The State then established a chain of custody of the seized bag ending with David Thorn of the State Department of Forensic Sciences. Mr. Thorn, after being qualified as an expert, testified that the substance was methaqualone.

The State’s last witness was Dolores Parsons, the Circuit Court Clerk for Etowah County. Ms. Parsons identified two certified copies of minute entries which stated that appellant had pleaded guilty to the illegal sale of marijuana, and in both cases was represented by counsel.

Appellant testified in his own behalf. He testified that Ms. Mitchell had called in and offered to sell him the quaaludes because she needed to make money quickly.

On cross-examination, appellant was asked if he had previously been convicted of grand larceny, sale of marijuana, sale and possession of marijuana, buying and receiving stolen property and counterfeiting. Appellant admitted all but the marijuana charges, stating that he could not remember the drug convictions.

During a pre-trial hearing appellant moved for a continuance based on the absence of appellant’s retained counsel, Mr. Cecil Elledge. Mr. Elledge had been hospitalized a few days before the hearing. Appellant contends that the trial court improperly denied his motion.

The law is well settled in Alabama that the question of granting or refusing a continuance rests within the sound discretion of the trial court and will not be reviewed on appeal absent a clear showing of abuse of such discretion. Watson v. State, Ala.Cr.App., 389 So.2d 961 (1980); Childers v. State, Ala.Cr.App., 389 So.2d 193 (1980). A review of the record convinces us there was no such abuse.

The record shows that appellant was arraigned on April 30,1981. On May 4, 1981, based on appellant’s motion for continuance, the case was continued until June 22, 1981. On June 19, 1981, appellant retained the services of Mr. Elledge and the trial court again continued the case on June 22, 1981, in order to allow the newly retained counsel adequate time to prepare for the trial. Trial was set for Monday, August 31, 1981.

On Friday, August 28, Mr. Elledge informed the trial court that he was entering the hospital and would not be available for trial. On Monday, August 31, Mr. Elledge’s law partner appeared before the court and asked for a continuance. During that hearing, Mr. Elledge’s partner, Mr. Gary Smith, admitted that he had some degree of familiarity with the case but did not feel that he was prepared to try the case alone. The State argued that it was worried about the possibility of appellant’s being paroled before he could be tried at the next term of court. Apparently appellant was in jail for another offense and was due parole consideration one month from the hearing. The State without elaboration also argued that it was concerned about the availability and safety of its primary witness, Ms. Mitchell.

After considering arguments from both sides, the trial court denied a formal continuance but postponed the trial for two days until Wednesday, September 2. The jury was struck that Wednesday afternoon and testimony began on Thursday, September 3.

Appellant emphasizes the distinction between right to effective counsel and the right to counsel of a defendant’s own choice who has sufficient time to prepare a defense. Gandy v. State of Alabama, 5th Cir., 569 F.2d 1318 (1978). Appellant does not argue ineffective counsel, and a review of the record convinces us that appellant was well represented.

In arguing a violation of due process rights, appellant relies heavily on Gandy, supra. The Gandy court, in a habeas corpus action, held that the defendant was arbitrarily denied his right to adequately prepared counsel of choice, thus denying him a “fundamentally fair” state criminal proceeding.

In Gandy, the defendant’s retained counsel informed the court the day the case was set for trial that he had a civil suit pending the next day. The attorney announced his intention to attend the civil trial and moved for a continuance until the civil trial had been completed. The trial court denied this motion and directed that the attorney’s associate try the case. The trial began that day with the retained attorney present, but the attorney made good on his threat and did not attend the trial the next day. It was uncontroverted in the record that the retained attorney’s associate who took over the case was totally unfamiliar with the case and unprepared to try it. The Fifth Circuit Court of Appeals held that the trial court abused its discretion by simply denying the continuance without considering any possible alternative.

Although the Gandy court lists a number of factors to be weighed in balancing the defendant’s right of prepared counsel of choice with the interest of prompt and sufficient justice, the court expressly stated that the decision was limited by its unique facts. Gandy, supra. 569 F.2d at 1327. The facts in the instant case sufficiently differ from Gandy to render it inapplicable. The main distinction lies in the preparation of the substituted counsel, and in the actions of the trial court.

In Gandy, the associate counsel was totally unfamiliar with the case and thus was completely unprepared to try the case alone. In the instant case, there are numerous indications that Mr. Smith was somewhat familiar with the case and had been involved in its preparation. During the pre-trial motion on the issue, appellant’s counsel admitted that he wrote a letter informing the court his firm had just been retained by appellant and asked for a continuance. Mr. Smith later told the court that he had worked on some but not the major portions, of the preparation of the case, had previously interviewed the appellant about the case, and had “talked to some people” about the case. He further stated that he would probably assist Mr. Elledge in the case by sitting with him at the counsel’s table.

There are also indications from the trial court itself that Mr. Smith had been involved with the preparation of the case. Mr. Smith, while cross-examining Ms. Mitchell, asked her if she remembered talking with him on the phone about three weeks before the trial. Mr. Smith asked her a good many questions on cross-examination about the conversation he had with the witness.

Besides evidence of Mr. Smith’s involvement in trial preparation, the trial court’s actions in the instant case further distinguish it from Gandy. The Gandy court placed particular emphasis on the fact that the trial court did not consider any alternatives besides the simple denial of the motion for continuance and immediate trial of the case. In the instant case, the trial court recognized Mr. Smith’s difficulty because of the hospitalization of his partner. The trial court allowed Mr. Smith two extra days to prepare instead of enforcing an immediate trial. The trial court took note of the fact that Mr. Smith would be under a burden because of other commitments, but the court felt that the extra time was sufficient. Because of delays on the day the trial was re-scheduled, testimony was not taken until three days after the trial was originally called. The court in the instant case also emphasized for the record that Mr. Elledge knew the Friday before the original trial date that he was going to be incapacitated, and the trial court informed Mr. El-ledge of the State’s strong resistance to any further delay. Thus, Mr. Elledge, and presumably Mr. Smith, knew five days before the case Mr. Elledge would be incapacitated and that the State would strongly resist any further continuance.

In light of the particular facts of this case, and after balancing the various factors listed in Gandy, supra, we find no clear abuse of the trial court’s discretion. See Murphy v. State, Ala.Cr.App., 399 So.2d 340, cert. denied, Ala., 399 So.2d 347 (1981).

Appellant also contends that the indictment was fatally flawed because (1) the indictment does not allege when the prior offense occurred, (2) the indictment violates the rules of evidence, averring that appellant had been previously convicted of violating the narcotics statute, (3) the indictment does not name the buyer of the drugs, and (4) the indictment does not mention § 20-2-76, the enhanced punishment statute which renders his twenty-five year sentence improper.

There is no merit to appellant’s arguments.

Omitting the formal parts, the indictment reads as follows:

“... [Ron Canada], . .. having been previously convicted of violating the Uniform Alabama Controlled Substances Act did, on to-wit: the 17th day of February, 1981, while at or near Highway 77, Attal-la, Alabama, unlawfully and intentionally sell, deliver or otherwise dispose of a quantity of methaqualone, a controlled substance to another, in violation of the provisions of Title 20-2-70(a) of the 1975 Code of Alabama.”

This court has previously held that the time of a prior conviction need not be alleged in an indictment, and a demurrer is properly overruled on that ground. Kidd v. State, Ala.Cr.App., 398 So.2d 349, cert. denied, Ala., 398 So.2d 353 (1981). The court has also held that an indictment charging violation of the Uniform Controlled Substances Act which contains an allegation that a defendant was previously convicted of the act is not improper. Napier v. State, Ala.Cr.App., 344 So.2d 1235, cert, denied, Ala., 344 So.2d 1239 (1977). Our Supreme Court has also held that, in charging a violation of the Act, an indictment need not specify the buyer or vendee of the narcotics. Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973).

Further, the indictment is not fatally flawed because it fails to mention § 20-2-76, the enchanced punishment provision of the Act. An indictment need not set out the statute a defendant is charged under for reasons that the courts may take judicial notice of public statutes. Frye v. State, Ala.Cr.App., 369 So.2d 892 (1979).

Moreover, the appellant’s demurrer was untimely. Appellant was arraigned on April 30, 1981, and pleaded not guilty. Appellant did not file a demurrer to the indictment until September 2, 1981. One ordinarily waives any irregularities in the indictment by appearing and pleading in the trial court, and a plea to the merits is considered an admission of a valid indictment. Harrison v. State, Ala.Cr.App., 384 So.2d 641 (1980); Stringer v. State, Ala.Cr. App., 372 So.2d 378, cert, denied, Ala., 372 So.2d 384 (1979). The only exception to this is when an indictment fails to include an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him. The alleged defects in the present case do not fit this exception.

This court has today held that it is not mandatory to allege in the indictment prior conviction of the Uniform Controlled Substances Act to make operative Section 20-2-76, Code 1975. See Luker v. State, 424 So.2d 662 (Ala.Cr.App.).

We find no error in the record, and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALDERMAN, Chief Justice.

text:
    Dennis Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 61148.
    Supreme Court of Florida.
    July 29, 1982.
    Rehearing Denied Nov. 24, 1982.
    Robert E. Pyle, Lake Alfred, for appellant.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Chief Justice.

Dennis Wayne Smith appeals the trial court’s denial of his motion to vacate his judgment and sentence after remand by this Court to the trial court to consider alleged claims by Smith of violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After an evi-dentiary hearing, the trial court concluded that no Brady violation occurred in this case. We agree and affirm the order of the trial court.

After we affirmed Smith’s conviction of first-degree murder and his sentence of death, after the Supreme Court denied his petition for writ of certiorari, after the Florida Cabinet denied his request for clemency, and after he was scheduled to be executed on June 3, 1981, Smith filed a motion to vacate his judgment and sentence. He alleged several grounds as bases for relief which are enumerated in Smith v. State, 400 So.2d 956 (Fla.1981). The trial court denied his motion to vacate without an evidentiary hearing and denied his motion for a stay of execution.

Smith appealed to this Court and also filed a petition for habeas corpus and a petition for leave to apply for a writ of error coram nobis. We granted a stay of execution pending disposition of the appeal. With the exception of the alleged Brady violations, we affirmed the trial court’s denial of post-conviction relief, we denied ha-beas corpus, and we denied his request for leave to file a petition for writ of error coram nobis. With regard to the alleged Brady violations, we held that this was a contention that could appropriately be raised in a motion to vacate judgment and that, therefore, the trial court should have considered this claim. Smith v. State, 400 So.2d at 962-63. The trial court had not passed on the merits of the question of whether there was a Brady violation which would require a new trial because it believed that this point was inappropriate to a Rule 3.850 proceeding. We remanded this singular issue to the trial court to make its determination guided by the test of materiality announced by the Supreme Court of the United States in United States v. Agurs, 421 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Upon remand, after an evidentiary hearing, the trial court denied Smith’s motion for post-conviction relief and expressly found:

The conclusion is inescapable that the State provided all of the exhibits to the defendant or made the defense aware of the existence of these exhibits. There is absolutely no basis for finding otherwise. Since the undersigned judge is convinced that these exhibits were either made available to the defendant, or the defendant was made aware of their existence, it is not necessary to determine the value to his defense.
In any event, it is the belief of this court that none of the statements were favorable to the defendant. Even the first statement by Wesley Irving Johnson was a clear indication that some unnamed person participated in the subject crimes. It was “child’s play” police work to make the association which implicated the Defendant, Dennis Wayne Smith.

The trial court’s findings are supported by the record, and it correctly denied Smith’s request for post-conviction relief.

Accordingly, the order denying Smith’s motion for post-conviction relief is affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG, McDonald and EHRLICH, JJ., concur.

      . Smith v. State, 365 So.2d 704 (Fla. 1978).

      . Smith v. Florida, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).