text:
    Franklin H. JAMES, as Director of the State of Alabama Department of Industrial Relations v. Willie Elton BALLARD.
    Civ. 3111.
    Court of Civil Appeals of Alabama.
    July 7, 1982.
    Rehearing Denied Aug. 11, 1982.

      George Cocoris, Gen. Counsel, and Harry A. Lyles, Asst. Gen. Counsel, State of Alabama Dept, of Industrial Relations, Montgomery, for appellant.
    James N. Nolan of Cooper, Mitch & Crawford, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Willie Elton Ballard was separated from his employment with U. S. Steel Corporation in Birmingham, Alabama, in June 1976. He filed a claim for Trade Readjustment Allowance (TRA) benefits under Petition No. TAW 1429, pursuant to Trade Act of 1974, § 221, 19 U.S.C. § 2271 (1976). The Department of Industrial Relations (DIR), which administers the program in the State of Alabama, denied Ballard’s claim. Ballard appealed to the Jefferson County Circuit Court. Trial de novo resulted in judgment for Ballard. DIR successfully moved for a new trial which again resulted in a judgment awarding Ballard TRA benefits. From a denial of a motion to vacate the judgment, DIR appeals to this court.

The record reveals the following: Ballard was employed by U. S. Steel as a ladle craneman in the open hearth furnace at the Ensley Plant for thirty years. He was laid off in June 1976 due to the closing of the plant. Ballard received unemployment and subpay, eventually going on retirement in July 1977 about one month after U. S. Steel made the determination to close the plant permanently. In December 1976 the United Steelworkers of America petitioned for certification of eligibility for TRA benefits pursuant to 19 U.S.C. § 2271, supra. After investigation and evaluation of U. S. Steel facilities in Birmingham, the Department of Labor issued a limited certification of Petition No. TAW 1429 which provided in pertinent part:

All workers at the Bessemer, Alabama; Birmingham, Alabama; and Fairfield, Alabama plants of the U. S. Steel Corporation engaged in employment related to the production of one of the following products: carbon steel structural, plate, or wire products, who became totally or partially separated from employment on or after November 15,1975 are eligible to apply for adjustment assistance under Title II, Chapter 2 of the Trade Act of 1974.

Subsequent to the issuance of the certification of the Department of Labor issued two clarification statements, the first of which provided in part:

The certification covers only those workers at the Fairfield works engaged in employment related to the production of the following products: carbon steel structural shapes, carbon steel plates, or carbon steel wire products. The certification was not intended to cover the Fair-field works in its entirety. In making determination as to the coverage beyond works directly producing the designated products ... your office has normal procedures and guidelines concerning employment in such support areas as accounting, maintenance, and material handling. (Emphasis supplied.)

The second clarification statement provided:

I also understand that portions of our earlier memorandum have been interpreted in such a way that the local office has been denying applicants from accounting, maintenance and metallurgy and inspection at the Ensley plant. This was not our intention.
The heading “Fairfield works” was designed to encompass the entire works, including the Fairfield steel plant and the Ensley plant for listed overhead and support units.

Upon receipt of the certification and clarification statements, the State Trade Act Coordinator for DIR prepared a chart of all units within U. S. Steel and determined which units were entitled to coverage under Petition No. TAW 1429. According to the chart, the open hearth unit of the Ensley plant was not covered.

The first issue on appeal is whether the Jefferson County Circuit Court properly exercised jurisdiction. DIR contends that Ballard should have challenged the denial of benefits in federal circuit court. The federal act, at 19 U.S.C. § 2322, provides:

(a) A worker, group of workers, certified or recognized union, or an authorized representative of such worker or group, aggrieved by a final determination by the Secretary under the provisions of section 2273 of this title may, within 60 days after notice of such determination, file a petition for review of such determination with the United States court of appeals for the circuit in which such worker or group is located.... (Emphasis supplied.)

Ballard, however, argues that § 25-4-95, Code of Alabama (1975) governs the appropriate method of judicial review. That section provides:

Within 10 days after the decision of the board of appeals has become final, any party to the proceeding . . . who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court of the county of the residence of the claimant; . . . Trial in the circuit court shall be de novo. (Emphasis supplied.)

Proper jurisdiction is therefore dependent on determining by whom Ballard was aggrieved.

The limited certification issued by the Secretary of Labor was unclear and hence incapable of administration without interpretation. The lack of clarity in the certification is evidenced not only by the need for clarification statements but also by the language contained therein. The State Trade Act Coordinator’s interpretation of the certification excluded Ballard from TRA benefits. We hold that Ballard’s grievance resulted from the decision of the state agency. We further note that 19 U.S.C. § 2311 of the federal act provides:

(d) A determination by a cooperating State agency with respect to entitlement to program benefits under an agreement is subject to review in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent.

The Jefferson County Circuit Court properly exercised jurisdiction over Ballard’s claim.

The second issue on appeal is whether there is sufficient evidence to support the trial court’s judgment that Ballard is entitled to TRA benefits under Petition No. TAW 1429. When an unemployment case is heard orally the trial court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Carter v. Carter, 395 So.2d 1020 (Ala.Civ.App.1981).

The record shows that Ballard’s position as a ladle craneman for the Ensley open hearth required him to transfer molten steel from the furnace to the steel pour-er who poured the steel into molds. It is uncontested that the end products of such steel included steel plate, structural steel and wire. The certification explicitly covered workers engaged in employment related to the production of these products at the Bessemer, Birmingham, and Fairfield plants. Witnesses testified that the Ensley plant has been considered part of the Fair-field works for several years. Admittedly, the clarification statements specifically named certain units as being covered, without referring so specifically to the Ensley open hearth unit. The DIR witness, however, clearly agreed that the clarification statements merely expanded the original certification and were not meant in any way to limit it. The trial court’s determination that Ballard was totally separated from employment in an adversely affected unit is amply supported by the evidence in the record. There was therefore no error in the trial court’s finding that Ballard is entitled to TRA benefits under Petition No. TAW 1429.

This case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The Trade Act of 1974 provides for federal assistance to ameliorate the adverse impact which foreign imports have on American employment.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Robert Donald NABORS v. Betty Jo Ann NABORS.
    Civ. 3141.
    Court of Civil Appeals of Alabama.
    July 28, 1982.
    Gary A. Moore of Shores & Moore, Fair-hope, for appellant.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

Robert Donald Nabors filed a petition for divorce on March 24, 1981 on the ground of adultery. During the pendency of the divorce proceeding, the parties entered into an agreement which was incorporated into the final divorce decree rendered on April 28, 1981. This agreement gave custody of the parties’ two minor daughters, Venessa Ann and Melisa Renea, to the father. The agreement gave the mother substantial visitation rights. Further, the husband was awarded title to the marital home.

On July 24, 1981 the mother filed a petition for rule nisi alleging that the father had failed to abide by the visitation provisions in the final decree. On August 24, 1981 she filed a subsequent petition asking the court to award custody of the children to her.

The trial court held a hearing on October 1,1981. On October 15,1981 the trial court found that it was not in the best interests of the children to modify custody, but set the case for a further hearing. In December the trial court reviewed reports made by the Department of Pensions and Security. These reports were the results of investigations of both the mother’s and father’s homes. After reviewing these reports the trial court entered an order on December 21, 1981 awarding custody to the mother to begin June 15, 1982. From this judgment the father appeals to this court.

The only issue in this appeal is whether the trial court erred in transferring custody of the children to the mother.

The evidence adduced at trial showed that the father provided a good home for his children. He had a good job and sufficient income. During working hours he had his children cared for at a church day care center. His mother lives nearby and is able to help care for the children. The social worker also reported that the father was a capable and loving parent.

The mother stated that she allowed the father to gain custody of the children because she had no home for them. She lived with a girl friend for several months after the divorce. Further, at the time of the decree, her income was fairly low. She has since remarried and stated that she could now provide her children a good home.

Other evidence concerned allegations by the father that the mother is sexually promiscuous. He also stated that the mother frequented bars. The mother admitted to going out with several men but denied that she had been sexually promiscuous. She did admit to having a sexual relationship with Michael Stuckey. She and Stuck-ey were married on October 14, 1981.

The mother presented several letters written to her by the father. These letters showed the father’s bitterness about the mother’s actions. The mother argues that the letters also show the father’s lack of maturity.

All of this testimony was presented prior to the October 15, 1981 decree. The only evidence presented at the December hearing was the social worker’s reports. Both these reports stated that both parents had good homes and could provide for the children.

The party seeking to modify child custody must prove that a material change of cir-' cumstances has occurred since the rendition of the last child custody judgment. Barber v. Lay, 384 So.2d 1095 (Ala.Civ.App.), cert. denied, 384 So.2d 1096 (Ala.1980). In the present case we cannot find that the wife has shown such a change of circumstances to warrant modification.

We find the case of Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981) to be dispositive of the present case. The facts of that case are almost the same as the facts in the present case. In Abel we stated that remarriage and improved financial conditions are circumstances which may be considered in change of custody actions, but those factors are not controlling. The fact that a mother has reformed and has married a fine man does not warrant the modification of custody.

In the present case the mother has not shown such a change of circumstances as to warrant modification. There is no evidence that the father is not a capable and loving parent. The mother has shown only that her home life has stabilized since she voluntarily gave custody to the father. Under Abel, supra, this is not sufficient to warrant modification.

As a result, we find that the trial court erred in changing custody from the father to the mother. Accordingly, the trial court’s judgment is reversed and the cause is remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: WRIGHT, Presiding Judge.

text:
    William B. WYATT, et al. v. The STATE BUILDING COMMISSION, et al. and Rayford J. MARTIN v. The STATE BUILDING COMMISSION, et al.
    Civ. 3163, 3178.
    Court of Civil Appeals of Alabama.
    July 28, 1982.
    Jere L. Beasley and Frank M.' Wilson, Montgomery, for appellant.
    M. R. Nachman, Jr., Sp. Asst. Atty. Gen. and Jerry L. Weidler, Asst. Atty. Gen., Montgomery, for appellee State Bldg. Com’n.
    W. B. Hairston, Jr. and Griffin Sikes, Jr., of Engel, Hairston, Moses & Johanson, Birmingham, for appellee State Personnel Bd. of State of Ala.
   WRIGHT, Presiding Judge.

This appeal concerns the State Merit System status of certain employees of the State Building Commission (Commission). The cause arises out of the following pertinent facts:

FACTS

William B. Wyatt, David H. Fulton, Nace Allen, Mary B. Johnson and Rayford J. Martin (Employees) were dismissed from their employment with the Commission. The action was taken via the Personnel and Financial Administration Committee (Personnel Committee), a three-member group composed of members of the Commission, appointed by the Governor and authorized to:

“act for and on behalf of the Commission with respect to matters of personnel and financial administration of the affairs of the technical staff of the Commission to include the granting of merit salary increases to members of the technical staff not covered by the pay plan of the Merit System; the employment and discharge of non-merit system employees of the technical staff and the assignment and reassignment of members of the technical staff to the various programs administered by the Commission; ... provided, however, that all actions of such committee shall be reported to the Commission at each regular or special meeting and such actions shall be subject to the approval, disapproval, or modification of the Commission.”

Resolution of the Commission, October 26, 1966.

Wyatt was deputy director of the technical staff; Fulton, Martin and Allen were construction inspectors and Mrs. Johnson was a clerical employee. Employees were terminated by the Personnel Committee and notified of their dismissals by the secretary of the Commission, except for Allen who was notified by Hugh Adams, then director of the technical staff. Wyatt, Fulton and Martin were dismissed on May 29, 1979, after the Personnel Committee met “to review the qualifications and performance” of Commission employees; Allen was dismissed effective May 15, 1979, and Mrs. Johnson on June 12, 1979, both due to financial conditions. No post-discharge hearings were held, although a hearing was offered by the State Personnel Board after several of the employees demanded one. Despite the offered hearing, Employees refused to go forward, contending that such hearing would be biased and would not comport with due process.

Employees sued in federal district court under Title 42, U.S.C. § 1983, alleging that they were classified employees and dismissed without due process under the fourteenth amendment of the United States Constitution. The federal court found that Employees were classified under the Merit System Act, § 36-26-1, Code 1975, and ordered that they be granted a due process hearing by the State Personnel Board to determine whether they were fired “for cause.” See, Wyatt v. Bronner, 500 F.Supp. 817 (M.D.Ala.1980). The ordered hearing was held as to all of the Employees, except Martin, on November 26, 1980. Evidence was presented to the Personnel Board under the following stipulations:

1. No evidence will be received on matters not relating to the dismissal of employees or the reasons therefor and matters in defense. Affidavits (including character type) are okay.
2. Judge Hobbs’ order in the federal court case is to be a part of the record.
3. Building Commission agrees not to require proof of the employees’ merit system status.

The Personnel Board found that “the charges presented ... were sufficient to warrant . . . termination of each employee.... ” The issue of whether Employees were classified was not addressed in the Personnel Board’s decision.

Employees petitioned the circuit court of Montgomery County for writ of certiorari to review the order of the Personnel Board. In an order of February 10,1980, the circuit court ruled that Employees were unclassified and that employees of the technical staff had been regarded as such since 1945. The court noted that Employees were not hired within the procedure required by the Merit System Act, and held that:

1. The plaintiffs were estopped to assert that they were classified;
2. The plaintiffs were not classified; and
3. The plaintiffs were members of the unclassified service and that Employees’ termination comported with provisions of the Act for termination of such employees.

Employees contend that the court erred in ruling (1) that Employees were unclassified and not protected as classified employees under § 41-9-141(c); and (2) that the Employees were estopped to claim protection of the Merit System Act in their dismissals since they were employed in noncompliance with the Act. Employees also assert here that (1) the Commission was required to specify the exact charges in writing against each employee ten days pri- or to the Personnel Board hearing; (2) the notices of dismissal of Employees were made by an employee of the Commission in violation of § 36-26-27, Code 1975; (3) there was no legal evidence to sustain the dismissals; and (4) the failure of the full Commission to ratify or approve Employees’ dismissals renders the dismissals null and void regardless of their status.

OPINION

The hearing before the Personnel Board was held by order of the federal district court under the fourteenth amendment to the United States Constitution, not under the provisions of the Alabama Merit System Act. Judge Hobbs’ federal district court order clearly sets out that those employees who properly demanded a hearing of their dismissal pursuant to § 36-26-27(a), Code 1975, failed to go forward with such hearing when it was offered by the Personnel Board. The remaining Employees simply did not timely request a hearing. The federal court thus determined, in effect, that Employees did not follow their remedies under state law. Apparently keying on the due process requirement of a pre-termination hearing where an employee has a property interest in his or her job, Judge Hobbs ordered a due process hearing limited to whether Employees were properly dismissed for cause. Cause for dismissal was the only issue directed to the Personnel Board by the court s order. There was no challenge by appeal of the district court order. Peripheral issues which might have been properly presented had the hearing proceeded under the State Merit System law were not relevant since the federal court order enforced fourteenth amendment rights exclusively. With this preface, we turn to our review of the circuit court’s order.

The proper scope of review for the circuit court on the Employees’ writ of certiorari was whether there was any legal evidence to sustain the finding of the Personnel Board that Employees were properly dismissed for cause. The status of Employees was not before the circuit court because it was not before the Personnel Board. The finding that Employees were unclassified and terminable at will was outside the scope of review. We therefore must reverse and remand so that the circuit court may review the issue of cause.

The other issues raised under § 36-26-27(a) are not properly before us. As we have noted, Employees waived or abandoned their state remedies which could have been used to enforce the provisions of the Merit System Act and chose to pursue relief in federal district court. Only fourteenth amendment due process was available to Employees through the federal court order.

This cause is due to be reversed and remanded for the circuit court to review cause.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

      . Martin’s hearing was held December 31, 1980, due to his objection to the Personnel Board’s legal counsel acting as hearing officer. Both the Board’s and Commission’s counsel are assistant attorneys general, and Martin said that presented a conflict of interest. Outside counsel was appointed as hearing officer for Martin only.

      . The sense of Judge Hobbs’ order is that providing for only post-dismissal hearings in § 36-26-27(a) does not comport with the due process required by the fourteenth amendment of the United States Constitution. See Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980) which is cited by Judge Hobbs. This is a matter that might well address itself to future legislative attention.

      . Included within these issues is the propriety of Employees’ dismissals under § 36-26-27(a) as applied in Chavers v. State Personnel Board, 357 So.2d 662 (Ala.Civ.App.), cert. denied, 357 So.2d 664 (Ala. 1978).


author: HOLMES, Judge.

text:
    Lillian J. TAYLOR v. William H. TAYLOR.
    Civ. 3164.
    Court of Civil Appeals of Alabama.
    July 28, 1982.
    Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    James M. Fullan, Jr., of Beddow, Fullan & Vo we 11, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case. The wife appeals from the trial court’s refusal to modify a previous award of alimony.

The dispositive issue is whether the trial court so abused its discretion in refusing to modify a previous award of alimony and child support as to require reversal. We find no such abuse of discretion and affirm.

We do not deem it necessary nor prudent to set out in detail the instant facts. These parties have been before this court on a previous occurrence. Interested parties may refer to Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1243 (Ala.1979). In the previous appeal the trial court modified the award downward; the wife appealed and this court reversed.

As indicated above, the wife in the instant appeal now seeks a modification for an increase in support. The trial court, after an ore tenus hearing, refused the increase and the wife appeals.

In the case of Taylor v. Taylor, supra, this court reaffirmed the long standing rule that a trial court may modify an award of alimony or child support in a divorce decree upon a showing of changed circumstances of one or both of the parties. Such a modification or nonmodification will not be reversed unless it is clearly an abuse of discretion. Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965); Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App. 1979); Little v. Little, 349 So.2d 48 (Ala.Civ. App.1977); Copeland v. Copeland, 343 So.2d 533 (Ala.Civ.App.1977); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975).

To support a modification of the decree, the changed circumstances must be material changes in the financial status of the parties. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967); Meyer v. Meyer, 346 So.2d 972 (Ala.Civ.App.1977); O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (1976). Additionally, where the decree fixing alimony and support was based upon an agreement between the parties, such as we have in this instance, the decree should not be modified “except for clear and sufficient reasons after the question has been subjected to thorough consideration and investigation.” Hutton v. Hutton, 284 Ala. 91, 95, 222 So.2d 348, 351 (1969).

The burden of establishing the conditions necessitating a modification of the decree rests upon the moving party. Brumlow v. Brumlow, 282 Ala. 170, 209 So.2d 849 (1968); Taylor v. Taylor, supra.

In the instant case we find that the learned trial judge did not err to reversal in apparently concluding that the wife did not meet this burden.

The change in financial circumstances was not so material as to require a reversal of the trial judge. The trial court could well have concluded that the husband’s increases in salary during the six year period since the divorce have not been substantial. In 1976, the husband’s income was in excess of $80,000 and his salary in 1980 was in excess of $110,000.

However, in light of the inflationary trend of this period, as indicated in the wife’s brief through able counsel, this increase does not in and of itself require reversal of the trial court’s action in refusing to find a material change of circumstances. This is particularly true considering that the wife still receives approximately $27,000 per year in alimony and child support. The effect of the parties’ “agreement” as it now exists provides the wife with $2,250 per month. This amount will reduce $1,750 per month when the youngest child reaches the age of twenty-two. Furthermore, the trial court undoubtedly considered the division of property previously awarded to the wife. See Taylor v. Taylor, supra.

In view of the above, the trial court’s action is due to be affirmed. To do otherwise would | be to substitute our judgment for that of'the trial court. See Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

In light of the above, the wife’s request for an attorney’s fee for representation on appeal is hereby denied.

AFFIRMED.

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


text:
    ALABAMA POOL & CONSTRUCTION COMPANY, INC. v. Steve RICKARD.
    Civ. 3184.
    Court of Civil Appeals of Alabama.
    July 28, 1982.

      L. H. Little, Jr., of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Donald R. Simms, Jr., of Watson & Moore, Huntsville, for appellee.
   HOLMES, Judge.

This is a breach of contract case.

Plaintiff-appellant, Alabama Pool & Construction Company, appeals from a judgment against it on its claim and in favor of defendant-appellee, Steve Rickard, on his counterclaim.

Appellant filed a complaint against appel-lee in the Circuit Court of Madison County alleging that appellee had breached a contract for the construction of a swimming pool by failing to pay the full price as agreed upon in the contract. An outstanding balance of $2,950 remained on the contract price and the appellant sought to recover this amount as damages.

The appellee filed an answer and a counterclaim wherein he denied that he had breached the contract and asserted that the appellant had breached the contract by failing to perform the specified work in a good and workmanlike manner and by failing to conform to all applicable laws, ordinances, building codes and health regulations in the construction of the pool. The appellee further asserted that the appellant had breached the express and implied warranties that the pool was fit for the particular purpose for which it was installed.

On November 4, 1981, the foregoing claims and counterclaims were presented to a jury. After due consideration the jury returned a verdict against the appellant on its claim and in favor of the appellee on his counterclaim. The jury awarded the appel-lee $3,000 as damages.

Subsequent to the verdict the appellant filed a motion for a new trial. Appellant’s motion was denied and this appeal followed.

Briefly, the pertinent facts of this case are as follows: Appellee entered into a contract with appellant for the construction of a swimming pool at appellee’s residence. By the end of May, 1981, the pool had been completed to the extent that water was put in the pool and the appeilee and his family began to swim in the pool. Subsequent to this time, however, certain problems became apparent. Among the problems were wrinkles in the pool liner, discolored concrete walkways, chipped and rough concrete decking, a dented ladder and misaligned coping. Additionally, there was evidence that appellant had not complied with city ordinances regarding the installation of the pool’s electrical system.

The total price for construction of the pool as provided in the contract was $8,950. At the time of trial appellee had paid $6,000 toward the contract price. After the foregoing problems developed, the appellee refused to make any additional payments. Appellant then instituted this action seeking to recover the balance of the contract price.

The sole issue presented for review is whether there was sufficient evidence to support the jury’s verdict awarding the appellee $3,000 on his counterclaim. Though, as indicated above, there is ample evidence that appellant breached the pool construction contract, a careful review of the record has failed to reveal any evidence that would warrant a finding that the ap-pellee had suffered any compensable damage due to the breach. Because there is no evidence that the appellee was damaged, as damages are determined under Alabama law, this court must reverse the verdict awarding damages. Specifically, the trial court erred in not granting appellant’s motion for a new trial due to a lack of evidence to support the jury’s verdict.

As this court is aware, and as counsel for appellee ably pointed out, many jurisdictions would apply a “cost of repairs” measure of damages in cases involving defective installation or construction of swimming pools. See generally 13 Am.Jur.2d, Building and Construction Contracts §§ 76-86 (1964). This court, in accordance with previous supreme court cases, has recently held, however, that the “diminished value” measure of damages is applicable to cases involving breach of a pool construction contract. The “diminished value” measure of damages as stated by Presiding Judge Wright in McLendon Pools, Inc. v. Bush, 414 So.2d 92 (Ala.Civ.App.1982), is “the difference between the market value of the pool as completed and the market value of the pool as warranted. Converse Bridge Co. v. Geneva County, 168 Ala. 432, 53 So. 196 (1909); Fleming v. Lunsford, 163 Ala. 540, 50 So. 921 (1909).” In a case such as this, cost of repairs can properly be admitted into evidence and considered by the jury, but only as an aid in determining the diminished value.

Upon reflection, it becomes apparent from the foregoing statement of the diminished value rule that in order to receive compensation under that rule, the appellee, in this case, would have had to prove that he paid more for the pool than the pool was worth as it was completed. This the appel-lee has failed to do.

A review of the record reveals that only one witness was able to testify as to the pool’s value as completed. This witness, who was an expert testifying for the appel-lee, testified that the pool had a value of from $6,000 to $6,500 as completed. The appellee testified, in response to a question from appellant’s counsel, that he had no estimate of the value of the pool as completed.

Viewing the evidence most favorably to the prevailing party, as this court is required to do (Cooper v. Peturis, 384 So.2d 1087 (Ala.1980)), we must conclude that the pool had a value of $6,000 in its completed state. Since the appellee had paid but $6,000 for the pool, he had paid no more than the pool was worth as completed. Stated differently, the appellee paid for a $6,000 pool and he received a $6,000 pool. Consequently, in this instance under these facts, the appellee has failed to prove that he was damaged by appellant’s breach.

This court is aware of the heavy presumption of correctness that is afforded a jury verdict. Goodson v. Elba Baking Co., 408 So.2d 498 (Ala.1981); Maffett v. Roberts, 388 So.2d 972 (Ala.1980). Where, as here, there is a complete lack of evidence to support the verdict, the verdict must be set aside. See Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979).

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

WRIGHT, P. J., recuses himself.

      . The appellant in its complaint actually requested an award of $2,970. According to appellant, the additional $20 was for services provided by him that were not covered by the contract. The appellant, however, did not pursue this claim at trial.


text:
    VULCAN MATERIALS COMPANY v. Deborah HOLST.
    Civ. 3226.
    Court of Civil Appeals of Alabama.
    July 28, 1982.

      Stephen E. Brown of Bradley, Arant, Rose & White, Birmingham, for appellant.
    Ruth Stone of Legal Services of North-Central Alabama, Inc. Huntsville, for appel-lee.
   BRADLEY, Judge.

This is an unemployment compensation case.

Deborah Holst voluntarily quit her job with Vulcan Materials Company on July 5, 1981. Following an administrative denial of her claim for unemployment compensation benefits, Ms. Holst appealed her claim to the Madison County Circuit Court. The circuit court, following a hearing ore tenus, entered a final judgment on February 18, 1982 finding that Ms. Holst voluntarily left her employment at Vulcan Materials Company, but that she did so “for good cause connected with her employment.” The court held that Ms. Holst was entitled to receive total unemployment benefits for a period of twelve weeks, and temporary unemployment benefits for four weeks. Vulcan Materials appeals from that judgment.

The facts indicate that Ms. Holst had been employed by Vulcan Materials for approximately three and one-half years. She was initially hired as a scales clerk, weighing trucks at weigh scales and completing tickets and other weight documentation. At the time Ms. Holst began working for Vulcan Materials, there were three other employees working with her at the Huntsville facility. There were two scales in operation at that time, and Ms. Holst ran one of those scales.

In June or July of 1980 the other scales clerk was dismissed and not replaced. Another of Ms. Holst’s co-workers was frequently absent from the Huntsville facility for training purposes. During December of 1980 and the following months, Ms. Holst was assigned additional duties, i.e. clerical work and dispatcher duties involving answering the phone, taking sales orders, giving directions to customers and contract haulers, and answering questions concerning the different rock products sold by Vulcan Materials. Ms. Holst testified that she was under the impression that these additional duties were to be temporary in nature, although she was never relieved of those additional duties thereafter.

In the latter part of April 1981, Ms. Holst began having trouble performing her increased duties. She testified that she began having headaches in the afternoons. She stated that she had problems sleeping at night, and that she began “drinking heavily.” In addition, she became nervous and depressed. Ms. Holst’s mother confirmed Ms. Holst’s testimony. Ms. Holst thereafter went to her doctor, and began taking tranquilizers.

Ms. Holst also complained that she began having problems with her co-workers. She testified that she felt she was being treated differently from her two male co-workers. In addition, she received a note, addressed to her at her work station, which read: “Lonesome? Like to meet new people? Like a change? Like excitement? Like a new job? Just ‘screw up’ one more time— Management.”

Ms. Holst testified that in May of 1981 she complained to her supervisor of the increased job duties assigned to her but was told that these duties would not be changed. She admitted that she had never mentioned to the management of Vulcan Materials that she was having problems with job-related stress.

In late June 1981 Ms. Holst took a one-week vacation from her job. She returned to work for a short period of time, and then voluntarily quit her job on July 5, 1981. During the time Ms. Holst worked for Vulcan Materials, the company had an established leave of absence/sick leave policy in effect. Employees were informed of this policy when they were hired. During the time Ms. Holst was having problems with her job, she did not seek to avail herself of the company’s sick leave policy. Ms. Holst testified that she did not think that she could obtain sick leave for her problem. The amount of sick leave to which Ms. Holst would have been entitled at that time was never conclusively established.

Ms. Holst remained unemployed for approximately twelve weeks. She then took a part-time job at Service Merchandise, without suffering any noticeable physical or emotional problems. A few weeks later she began working full time at a plant nursery. She has apparently had no more physical or emotional problems.

The only issue here and the only issue presented to the circuit court is whether Ms. Holst was disqualified from receiving unemployment compensation benefits as provided by § 25-4-78(2), Code 1975.

Section 25-4-78, Code 1975, provides, in part, as follows:

“An individual shall be disqualified for total or partial unemployment:
“(2) Voluntary departure from work.— If he has left his most recent bona fide work voluntarily without good cause connected with such work.
“a. 1. However, he shall not be disqualified if he was forced to leave work because he was sick or disabled, notified his employer of the fact as soon as it was reasonably practicable so to do, and returned to that employer and offered himself for work as soon as he was again able to work; provided, however, this exception shall not apply if the employer had an established leave-of-absence policy covering sickness or disability and:
“(i) The individual fails to comply with same as soon as it is reasonably practicable so to do; or
“(ii) Upon the expiration of a leave of absence he shall fail to return to said employer and offer himself for work, if he shall then be able to work, or, if he is not then able to work, he fails to so notify his employer of that fact and request an extension of his said leave of absence as soon as it is reasonably practicable so to do.”

Vulcan Materials contends that the evidence is insufficient to support the trial court’s finding that Ms. Holst had voluntarily left her job “for good cause connected with her employment.” Vulcan Materials further argues that since Ms. Holst did not have “good cause” to leave her job, she is disqualified under § 25 — 4—78(2)(a)(l), Code 1975, because she failed to seek sick leave benefits made available to her by the company, and because she failed to notify her employer of her condition prior to leaving her job.

When an unemployment compensation claimant voluntarily quits his job and seeks to avoid disqualification under § 25— 4-78(2), the burden of showing “good cause” for leaving his job is upon the claimant. Department of Industrial Relations v. Estes, 45 Ala.App. 360, 231 So.2d 137 (1970). “Good cause” for voluntarily leaving one’s employment may be established by proof that the claimant is suffering from an illness that results from, is connected with, or is caused by his employment. Polk v. State, Department of Industrial Relations, 398 So.2d 722 (Ala.Civ.App.1981); Ventress v. Batey, 333 So.2d 584 (Ala.Civ.App.1976); West Point Manufacturing Co. v. Keith, 35 Ala.App. 414, 47 So.2d 594 (1950). In proving that the employment caused or was connected with the claimant’s illness, medical testimony is not necessary for the claimant to meet his burden of proof. State, Department of Industrial Relations v. Clark, 369 So.2d 561 (Ala.Civ.App.), cert. denied, 369 So.2d 562 (Ala.1979).

Ms. Holst testified that her illness resulted from the increased workload at her employment. She had not had the symptoms which she complained of before; it was only after the change in her job duties that she began having headaches and trouble sleeping. This testimony was corroborated by the statements of Ms. Holst’s mother, and was not contradicted by her employer. The lack of medical testimony as to the cause of Ms. Holst’s problems is not conclusive. In short, we find sufficient evidence that Ms. Holst’s emotional or physical problems were connected with or caused by the nature of her émployment.

When an unemployment compensation case is heard orally before the trial court sitting without a jury, the ore tenus rule applies. The court’s findings are presumed correct and will not be reversed on appeal unless clearly contrary to the great weight of the evidence. Payne v. Director of Department of Industrial Relations, 405 So.2d 1322 (Ala.Civ.App.), cert. denied, 405 So.2d 1324 (Ala.1981). A careful review of the record convinces us that the trial court’s findings are not contrary to the great weight of the evidence. Accordingly, the trial court’s judgment is affirmed.

In view of our holding above, we do not consider the other contention of Vulcan Materials concerning Ms. Holst’s failure to comply with the established company sick leave policy or to notify her employer of her illness. When the unemployment compensation claimant has proven “good cause” for voluntarily leaving his employment, thus exempting him from disqualification under § 25-4-78(2), the exception contained in subdivision (a)(1) of that section has no application.

AFFIRMED.

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


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    Kenneth Dean VAUGHN v. Bobbie Dale VAUGHN.
    Civ. 3207.
    Court of Civil Appeals of Alabama.
    Aug. 4, 1982.
    Robert E. Paden of Paden, Green & Pa-den, Bessemer, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

Bobbie Dale Vaughn and Kenneth D. Vaughn were divorced in 1974. The parties had one minor child, Kevin Andrew Vaughn, who was seven years old at the time of the divorce. Custody of Kevin was given to the mother with the father being allowed substantial visitation rights.

Both parties continued to reside in Jefferson County, and as a result the father was able to visit his child weekly. The mother has subsequently moved with the child to New Orleans, Louisiana. Because of this move, the parties agreed to a change in the father’s visitation. The father was allowed to visit his son for six weeks in the summer and at Christmas.

In July 1981 Kevin came to visit his father, who is now remarried and lives in Lineville, Alabama. While visiting, Kevin told his father that he wanted the father to have custody of him. The father told Kevin to give the matter further consideration before making a final decision. In August Kevin again asked his father to file a petition to have custody changed. As a result of his son’s wishes, the father filed a petition for modification. Kevin continued to reside with his father and started going to school in Lineville.

The court held a hearing on October 15, 1981. On November 30,1981 the trial court entered its decree denying the petition to modify and granting the mother’s request for increased child support. The father was ordered to deliver Kevin to the mother at the end of the school semester.

In December 1981 the mother filed a petition for a writ of habeas corpus alleging that the child was being wrongfully withheld from her custody. The child, Kevin, filed a motion to intervene in the proceeding. His motion was denied. The court again ordered that Kevin be delivered into his mother’s custody. Both Kevin and his father filed motions for a new trial.

The court denied these new trial motions on February 10, 1982. The father has appealed to this court. Subsequent to this appeal, the trial court held an in camera interview with Kevin. As a result of this interview the court entered an order nunc pro tunc allowing the child to remain with his father until the end of the school term.

The only issue presented on appeal is whether the trial court erred in refusing to modify custody. We find no error and affirm the judgment.

The evidence adduced at trial shows that the father is employed as a vice-president and cashier of a bank in Lineville, Alabama. He is remarried and has a six month old daughter. The evidence shows that he is a loving father who provides a good home for his family. The family attends church regularly, and the father is very active in the community.

The father has always shown a great interest in his son. He has visited Kevin regularly and has kept himself informed of Kevin’s progress in school. It is also apparent that the father tries to spend as much time as possible with his son.

Testimony was also given by several members of the community. They all testified to the excellent relationship between Kevin and his father. They also testified as to the high quality of the home.

Kevin testified that his mother worked long hours in New Orleans. In New Orleans Kevin attends a private boys’ school. He stated that he was often home alone and at times was lonely. While with his father in Lineville, he played football and was very active at school and church. He felt that he would be much happier with his father. He also stated that he had thought about the matter carefully.

The mother admitted that she worked long hours. It is evident, however, that she too loves Kevin and tries to spend a great deal of time with him. She stated that she felt that Kevin would get a better education at the school in New Orleans. She provides Kevin with a very good home.

The modification of a child custody decree is vested in the sound discretion of the trial court. The party seeking modification has the burden of showing a material change in circumstances which will warrant modification. In these cases the judgment of the trial court is presumed correct and will not be reversed absent a showing of an abuse of discretion. Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981).

The father argues that there has been a change in circumstances based on the fact that the father has remarried, that the mother has moved to New Orleans, and of most importance, that Kevin wants to live with his father. Although these are all factors which can be considered in a child custody modification proceeding, none of these factors is dispositive.

The preference of a child in a custody dispute is entitled to considerable weight, but it is not controlling. The primary consideration of the trial court is the best interest and welfare of the child. Rogers v. Rogers, 345 So.2d 1368 (Ala.Civ.App.1977). In the present case it is clear that Kevin would prefer to live with his father, but the trial court concluded that Kevin’s best interests would be served by his custody remaining with the mother.

Both parties are able to provide Kevin a good home. It is also clear that the father feels that he is now able to provide Kevin a better home than the mother. All of these facts were matters to be considered by the trial court. It is apparent from the decree that the trial court did consider all of the facts. It heard the testimony, viewed the witnesses as they were testifying, and concluded that Kevin’s best interests would be served by remaining with his mother. Consequently, we cannot say that the trial court erred in refusing to modify custody. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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


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    Lillian C. JERRELL v. Bill Thomas JERRELL.
    Civ. 3166.
    Court of Civil Appeals of Alabama.
    Aug. 4, 1982.
    John E. Amari of Amari & Hamm, Birmingham, for appellant.

      David R. Donaldson of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for ap-pellee.
   BRADLEY, Judge.

This is a divorce case.

Lillian and Bill Jerrell were married on April 5, 1979. They lived in a home owned by the wife. No children were born of the marriage. The parties separated in April of 1981. As a result of this separation, the wife filed for a divorce on the ground of incompatibility of temperament.

At the time of the divorce hearing the husband was sixty-three years old and the wife was fifty-four years old. The husband had retired from work as an engineer prior to the separation. The husband’s income consisted of $542 a month social security and $236 a month which was interest generated by several certificates of deposit held by the husband. The husband’s only assets are a car, a $39,000 certificate of deposit, a $12,000 individual retirement account, and another $10,000 certificate of deposit.

At the time of the marriage the wife had an income of $300 a month which was from benefits payable on account of her deceased first husband. Her subsequent marriage resulted in the forfeiture of these benefits. The wife owned a home which was used by the parties as their marital home. The wife also owned a car and a piece of lake property. She testified that she had $500 in a savings account.

After the marriage she gave her daughter $28,000 which she had received as a black lung settlement for her first husband. The wife had been employed in several different capacities over the years. She had also been temporarily employed during the marriage and had received some unemployment benefits.

The husband made the house payment and paid most of the parties’ living expenses. The wife and her daughter both testified that the husband had promised that the wife would receive the income off his certificates of deposit as long as she lived. The husband admitted telling the wife this. He denied that he and his wife ever discussed the fact that she would lose her widow’s benefits by marrying him.

The trial court rendered its final decree of divorce on December 8, 1981. The court awarded each party his own property and personal items. The husband received the parties’ $10,000 joint certificate of deposit. He also retained all of his other savings. The wife received her home and furnishings and all other property she held. She was not awarded any periodic alimony or alimony in gross. From this judgment the wife has appealed to this court.

The only issue presented on this appeal is whether the trial court abused its discretion by failing to award the wife alimony or any of the husband’s property. We find no error and affirm the judgment.

In divorce cases the division of property and award of alimony are matters within the sound discretion of the trial court and will not be reversed except for a plain and palpable abuse of discretion. Williams v. Williams, 389 So.2d 141 (Ala.Civ. App.1980).

The wife’s main argument is that the husband promised her the income from his certificates of deposit for life. She states that this was to make up for the benefits lost from her deceased husband due to her remarriage. The wife relies on Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979). In that case the parties had entered into a written antenuptial agreement. This court found that since the trial court had awarded the wife alimony in gross and a property settlement, it obviously had found the ante-nuptial agreement not to be binding. This court agreed that a finding that the agreement was not binding was supported by the evidence.

In the present case there is no written antenuptial agreement. In Campbell v. Campbell, 371 So.2d 55 (Ala.Civ.App.1979), it was held that an oral antenuptial agreement can be binding on the parties if it is undisputed that such an agreement existed. In the present case the trial court obviously found that the parties had not entered into a binding oral antenuptial agreement. We cannot find that the trial court abused its discretion in this case. Although there is evidence that the husband had told his wife that he was going to give her his certificates of deposit, there is evidence to support a finding that this was not meant to be a binding agreement. Moreover, the husband denied telling the wife prior to the marriage that he would give her his certificates of deposit because he knew she would lose her other benefits. In fact, he stated that the loss of other benefits was never discussed with his wife.

The parties in this case have estates which are fairly equal in value. The husband is retired and is living on a fixed income. The wife has a good deal of property and is able to work. She gave her daughter $28,000. Considering these facts along with the short duration of the marriage, we cannot find that the trial court erred in failing to award the wife alimony. Accordingly, the judgment is affirmed.

AFFIRMED.

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


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    Dianne HARDEN v. Johnny Michael HARDEN.
    Civ. 3197.
    Court of Civil Appeals of Alabama.
    Aug. 4, 1982.
    William F. Andrews, Jr., Anniston, for appellant.
    James S. Hubbard, Anniston, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The wife-appellant petitioned the Circuit Court of Calhoun County seeking the dissolution of an alleged common-law marriage. After an ore tenus hearing, the trial court held that the parties were not married and denied the relief requested by the appellant.

The wife, through able counsel, appeals. Finding no reversible error, this court affirms.

The record reveals the following: The parties to this action were ceremoniously married in 1967. Two children were born of this marriage though one of them was subsequently adopted by the wife’s mother. The wife also had custody of a child she had had by a previous marriage. The marriage between these two parties ended with a divorce in February, 1978.

Shortly after the 1978 divorce the parties resumed living together. Though there were several separations, this arrangement lasted until the fall of 1980 when the final separation occurred. On July 4, 1981, the husband-appellee then remarried.

In September, 1981, the wife filed this divorce action. The complaint alleged that on or about March 12,1978, the parties had entered into a common-law marriage; that the parties had separated in October, 1980; and that there existed a complete incompatibility of temperament between the parties. The wife then requested that she be granted a divorce; that the property be divided; and that the husband be ordered to pay child support, alimony, attorney fees and other bills incurred during the marriage. The husband denied the allegations of the wife’s complaint and the matter was set for trial.

The trial court, after considering the evidence regarding the nature of the relationship entered into by these parties subsequent to the 1978 divorce, concluded that the appellant had failed to produce sufficient evidence to establish her claim that the relationship constituted a common-law marriage. Consequently, the trial court denied the relief requested by the appellant in her complaint.

The dispositive issue in the instant case is whether the trial court erred to reversal in finding that the evidence produced at trial was insufficient to prove the existence of a common-law marriage. This court concludes that the trial court did not err to reversal in so finding.

In Piel v. Brown, 361 So.2d 90 (Ala.1978), the Alabama Supreme Court set out the three basic requirements necessary to establish a valid common-law marriage. The requirements are “(1) capacity, (2) present agreement or consent to be husband and wife, and (3) consummation .... ” 361 So.2d at 93. There is no dispute that these parties had the capacity to enter into a marriage. There is, however, a dispute as to whether the requisite agreement was present and also as to whether the requisite consummation was present, i.e., whether the parties lived so as to “achieve public recognition of their status as husband and wife .... ” 361 So.2d at 95.

The Piel opinion indicates that the “present agreement” requirement as well as “consummation” can be established circumstantially.

The evidence relied upon by the appellant as tending to establish these elements includes the filing of joint income tax returns, the maintenance of a joint checking account and the application for food stamps as husband and wife. Additional testimony revealed that the appellant worked long hours in the family business without pay, that the parties slept together and that the appellee purchased clothing and other household necessities. The appellant also testified that she considered herself married to the appellee and that their friends knew they were husband and wife.

The appellee, on the other hand, introduced evidence tending to dispute the existence of an agreement and consummation. This evidence includes the appellant’s testimony on cross examination that on two separate job applications, one in 1979 and one in 1981, she stated that she was single and divorced. The appellant also testified that, when she was admitted to the hospital in 1980, she stated on the admission forms that she was single and divorced and, furthermore, that her ex-husband should be notified in case of emergency. Additionally, the appellant reported to the Department of Pensions and Security that she was single and divorced. Further testimony revealed that, after the 1978 divorce, the appellant told the school authorities that she was the sole guardian of the parties’ children. Finally, the appellee testified that he did not consider appellant to be his wife and that he had not treated her as his wife since the 1978 divorce.

In Alabama it is well settled that a judgment rendered upon an ore tenus hearing is presumed to be correct and will not be set aside unless it is plainly and palpably wrong. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981); Waters v. Waters, 387 So.2d 838 (Ala.Civ.App.1980). Additionally, where, as here, the evidence is in conflict, it is the function of the trier of fact, in this case the trial court, to resolve the conflict and reach a decision. General Mutual Insurance Co. v. Dennis, 280 Ala. 434, 194 So.2d 838 (1967); Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.), cert. denied, 380 So.2d 877 (Ala.1980). The trial court’s resolution of the conflict will not be reversed on appeal unless palpably erroneous. Blalock v. Blalock, 51 Ala.App. 686, 288 So.2d 747 (1974).

As indicated above, there is evidence that the element of “present agreement or consent to be husband and wife” and the element of “consummation” were not present in the relationship the appellant and the appellee entered into after the 1978 divorce. Consequently, this court cannot hold that the trial court’s judgment that no common-law marriage existed is palpably erroneous. To do so would be to substitute our judgment for that of the trial court. Sands v. Johnston, 406 So.2d 407 (Ala.Civ. App.1981). This we are not permitted to do.

Another issue raised by the appellant requires some brief comment. When questioning the appellee regarding the existence of certain life insurance policies, counsel for appellant asked the appellee if he listed himself as husband when applying for a policy on appellant’s life. Appellee’s counsel objected to the question on the ground that appellee had not acknowledged that he had taken out a policy on appellant’s life. The trial court sustained the objection and the appellant contends the trial court erred in so doing. A review of the record reveals, however, that the appel-lee had previously testified that he did not remember taking out an insurance policy on appellant’s life. Thus, the question propounded to appellee assumed a fact not in evidence; the question was objectionable for that reason; and the trial court properly sustained the objection. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968). Additionally, we note that even if the trial court had erred in sustaining the objection, such error would have been harmless when viewed in light of the evidence as a whole.

This ease is due to be affirmed.

AFFIRMED.

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


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    Ginny Ann BUTTS v. James Franklin BUTTS.
    Civ. 3255.
    Court of Civil Appeals of Alabama.
    Aug. 4, 1982.

      William J. Trussell of Church, Trussell & Robinson, Pell City, for appellant.
    Tom R. Ogletree of Ogletree & Livingston, Sylacauga, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties were married on June 16, 1977. One child, a daughter, was born of the marriage. The parties separated in October of 1981, and a petition for divorce was thereafter filed by the husband.

At the time the parties were married, the wife possessed an automobile which was later sold for $1,500, and had approximately $2,000 in savings, which she brought into the marriage. The husband owned a forty-six acre tract of land in Shelby County, valued at $32,000, but which was heavily encumbered. The husband apparently had no equity in this property. In addition, the husband was a partner in an asphalt paving business known as Butts & Billingsley, which was worth about $5,000 at that time.

During the course of the marriage the husband’s business began to prosper. The business was later incorporated, and the husband became a stockholder along with two other individuals. The wife worked for the corporation as a bookkeeper and received a salary of approximately $100 per week.

Testimony indicated that in the past few years the husband’s paving business increased in net worth to approximately $286,000. However, the husband testified that business had begun to decline, and that the corporation had had to borrow $85,000 to finish out the year. Evidence indicated that the corporate assets were primarily composed of paving equipment which had depreciated in value and was not readily resalable. Further, the husband testified that he had certain business-related and personal debts which must be repaid in the future.

The parties had also purchased a home, taken jointly in both names. The purchase price was approximately $42,500. The parties spent nearly $19,000 remodeling the house. The husband estimated that the current fair market value of the home was around $50,000; the wife estimated that the house was worth $60,000.

During the marriage the wife’s car was sold for $1,500, and the proceeds were used to buy a one-fifth interest in certain property located in Childersburg, which one-fifth interest is presently valued at $6,000. Title to the one-fifth interest was taken in the husband’s name only. Testimony at trial indicated that the property produced no income to speak of.

The husband currently draws approximately $500 per week from the corporation. No testimony was adduced as to his net pay. The wife is currently employed at Economy Gas Service, earning approximately $200 per week. Both parties are apparently healthy and have good earning capacities.

The petition for divorce was filed by the husband on the ground of incompatibility of temperament. The wife filed a counterclaim, also petitioning for divorce and requesting custody of the parties’ minor child and a favorable property settlement. The trial court rendered a final decree on January 8, 1982, divorcing the parties and awarding custody of the child to the wife. The husband was allowed certain visitation privileges, and was required to pay $175 per month as child support, with payments to increase in the- amount of $25 per month in January of 1983, pending an increase in the husband’s take-home pay. The husband was also required to provide hospitalization insurance for the child, and to maintain his life insurance policy with the child designated as beneficiary. With regard to the property settlement, the wife was awarded the sum of $1,000, or one-half of her savings account which she possessed prior to marriage, and which the court found had been used for the parties’ joint benefit; $1,500 as the purchase price of her car; one-half of the proceeds from the sale of the parties’ home, after expenses; a Cadillac automobile valued at $7,000; and various other personal property items. The court found that the wife had no further interest in the Childersburg property or in the husband’s asphalt paving business, since she had been adequately compensated by the award under the divorce decree and by previous salary for her contributions. The wife was allowed to remain in the house pending sale, with the husband paying the costs prior to the sale.

The husband was awarded his interests in the paving business and in the Childersburg property, and one-half of the proceeds from the sale of the parties’ home.

The wife appeals from the final decree, contending that (1) the amount of child support awarded was insufficient; (2) the property settlement was inequitable; and (3) the court erred in failing to award her alimony.

The division of property and award of alimony in cases heard ore tenus by the trial court are matters within the sound discretion of the trial court. This court will not reverse the trial court’s judgment on such issues unless it is so unsupported by the evidence as to be clearly unjust and palpably wrong. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980). In exercising that discretion the trial court may consider such factors as the earning ability of the parties, their future prospects, their age, health, the duration of the marriage, their standard of living, value and type of property, and the conduct of the parties. Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980). We find no abuse of discretion in the present case, and affirm the trial court’s judgment.

The parties in this case were married for only four years. Under the divorce decree the wife received substantially all that she brought into the marriage — one-half of the amount contained in her savings account, which was used for the joint benefit of the parties, and the sale price of her automobile, which was used for the purchase of a one-fifth interest in the Childers-burg property. Additionally, she received one-half of the proceeds from the sale of the parties’ jointly owned home, and various other items of personal property, including a Cadillac valued at $7,000. The wife appears to be in good health, with a fairly good earning capacity.

The trial court found that the wife had no further interest in the husband’s business or in his property, and the evidence adduced at trial supports that conclusion. With regard to the paving business, the wife testified that she received a salary of $100 per week for her bookkeeping work. There is no evidence that she performed any work for which she was not adequately compensated. The trial court could properly have found that she had no further interest in the business.

With regard to the Childersburg property, it is undisputed that money from the sale of the wife’s car was used to purchase a one-fifth interest in said property, which interest is now estimated to be worth about $6,000. Notwithstanding the appreciation in value of this parcel of property, there is sufficient evidence in the record to support the trial court’s findings.

The husband, on the other hand, was left with his interest in the corporation, which is his sole means of support, and his one-fifth interest in the Childersburg property, along with some other property which'he owned prior to the marriage and to which the wife makes no claim. He also received one-half of the proceeds from the sale of the house. Furthermore, out of the salary he draws from the corporation he is required to pay $175 per month as child support, and to provide hospitalization insurance for the child and keep up his life insurance policy with the child designated as beneficiary. He is also apparently in good health, with good future earning potential.

In view of these facts, we cannot say that it was an abuse of discretion for the trial court to refuse an allowance of alimony or to divide the property as it did. Accordingly, the trial court’s judgment in those respects is affirmed.

The wife argues that the amount of child support awarded is insufficient. We cannot agree. An award of child support is also within the discretion of the trial court, and will not be reversed on appeal unless there is plain and palpable abuse of that discretion. Coffelt v. Coffelt, supra. The amount of child support granted depends upon both the needs of the child and the ability of the parent to pay. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980). We can find little evidence in the record of the alleged needs of the child. The evidence concerning the husband’s salary and other obligations has, however, convinced us that an award of $175 per month child support, to be increased to $200 per month in the future, is not an abuse of discretion. We therefore affirm the judgment of the trial court in this regard.

For the foregoing reasons, the judgment below is affirmed.

The wife’s request for attorney’s fee is denied.

AFFIRMED.

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


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    Archie LEE v. KIMBERLY-CLARK CORPORATION.
    Civ. 3259.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1982.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, and Otis R. Burton, Tal-ladega, for appellant.
    R. Blake Lazenby of Dixon, Wooten, Boy-ett, Thornton, Carpenter & O’Brien, Tal-ladega, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The circuit court found the employee’s claim to be barred by the statute of limitations. The employee, through able counsel, appeals contending that the statute of limitations was tolled by certain actions of the employer.

Our review of the record supports the action of the trial court and we affirm.

The record in pertinent part reveals the following: The employee while on the job in August of 1978 got paint in his eye. On the day of the occasion the employee notified his superior of the incident. Thereafter, for approximately six months after the incident, the employee did not lose time from work nor was anything regarding the incident said to the employer.

Apparently some six months after the aforementioned incident the employee experienced problems with his eye. Employee’s union representative arranged a meeting with the employer. At this meeting the employer’s personnel representative informed the employee that the employer would call the doctor who treated employee and would process the “benefits” based on what the doctor stated.

Approximately one week after this meeting another meeting between the parties was held. At the second meeting the employer specifically stated that no benefits were going to be paid to employee by the employer. Apparently the employer informed the employee that the paint could not have caused the injury. This meeting occurred as indicated approximately six months and one week after the injury.

Sometime thereafter, approximately six months, the treating physician told the employee the paint did not cause the employee’s injury. This apparently occurred in August of 1979.

In 1980, another physician informed employee that the paint incident could be the cause of employee’s eye problem.

Thereafter, in April of 1980, approximately twenty months after the injury, the instant lawsuit was filed.

The applicable statute of limitations is section 25-5-80 of the 1975 Code of Alabama. In general, the instant claim is barred after one year.

The one year statute of limitations may be tolled. As indicated, the employee contends that because of the action of the employer the statute of limitations was tolled. He relies, and ably cites to this court Ex parte Youngblood, 413 So.2d 1146 (Ala. 1981); and Dorsey v. U. S. Pipe & Foundry Co., 353 So.2d 800 (Ala.1977). We do not deem it necessary or prudent to analyze in detail the applicability of these cases. Suffice it to say that the applicable principle of law as enumerated in these cases might well be appropriate in the instant appeal, if there had been no second meeting.

Our perusal of the record reveals that at the second meeting, which occurred approximately six months prior to the “running” of the statute of limitations, the employee was informed that the company denied liability because the employer considered the instant injury to be nonwork related. Furthermore, there is nothing in the record, before this court, that indicates any further action or inaction was taken by the employer, nor was any action required. Under these facts this court does not find Young-blood or Dorsey, supra, to be applicable.

In view of the fact that the workmen’s compensation claim was filed approximately one year and eight months after the injury, and no facts were presented to justify a tolling of the appropriate statute of limitations, the trial court did not err in finding the claim to be time barred.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Peggy M. (Barnes) HAM v. Larry Gene BARNES.
    Civ. 3218.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1982.
    Sherman B. Powell, Jr. of Powell & Powell, and J. Tilden Dillard, Decatur, for appellant.
    P. Michael Cole and Winston V. Legge, Jr. of Patton, Latham, Legge & Cole, Athens, for appellee.
   HOLMES, Judge.

The trial court refused to modify a prior decree regarding certain conditions pertaining to child custody. The mother appeals and we affirm.

The parties were divorced in 1976. Custody of the parties’ minor child was awarded to the mother. In February of 1980 the trial court, after a hearing, found that the mother had wilfully deprived the father of his visitation rights. The mother was found in contempt for her actions. Custody, however, remained with the mother upon her making a $10,000 bond apparently payable upon noncompliance with the trial court’s order. Additionally, the mother was enjoined from removing the child from the State of Alabama.

Thereafter, the mother sought to modify the February, 1980, decree so as to allow her to remove the child from Alabama. The trial court held an ore tenus hearing and thereafter refused to modify. As indicated, the mother appeals.

The dispositive issue on appeal is whether the trial court’s action is such an abuse of discretion as to require reversal. We find no such abuse and affirm.

The record reveals the following: Subsequent to the parties’ divorce in 1976, the mother married Johnny Wayne Ham. Ham is employed as a construction worker. His employment involves traveling from job to job and, since the marriage, has carried him to Texas, Oklahoma, Georgia, and Tennessee. Ham presently works in Columbus, Mississippi. For two years prior to 1980— the time the Hams were in Texas and Oklahoma — the father was not able to see the child. The mother admitted to “hiding out” with the child during this period of time. As a result of the father being deprived of his visitation rights by the mother, the trial court, as indicated, in February, 1980, enjoined the mother from removing the child from the State of Alabama.

Since the 1980 order, the mother and child have resided in Athens, Alabama, while Ham has worked in Oglethorpe, Georgia, and Murfreesboro, Tennessee. Ham now works in Columbus, Mississippi — the closest proximity yet to the State of Alabama. At no point has the mother deviated from the trial court’s order. Ham works during the week and drives home to Athens on weekends whenever possible. The Hams testified that maintaining separate residences and living apart have caused economic as well as emotional strain on their marriage.

The father lives in Ardmore, Alabama, and works at Redstone Arsenal. Since the 1980 decree, he has been able to exercise his visitation rights with the prescribed regularity. The father testified that he is concerned about whether he will be able to see his child if the mother is allowed to remove the child from the jurisdiction of Alabama.

A modification of a child custody judgment must be justified by a change of circumstances. Keith v. Keith, 380 So.2d 889 (Ala.Civ.App.1980). The question of modification of a child custody decree is a matter vested within the sound discretion of the trial court whose judgment is presumed to be correct and will not be disturbed unless so unsupported by or contrary to the evidence as to amount to an abuse of discretion. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979).

The evidence in this case reveals very little change in the circumstances of the parties since the 1980 custody order was rendered. To briefly review, the evidence established that the mother was not working at the time the custody order was rendered and that she was not working at the time of the modification hearing. The mother’s new husband’s work has not changed during the two years since the custody order was rendered. The husband’s work continues to require that he move around though he apparently need not move as frequently as he once did. Additionally, the husband’s present location is nearer to the Alabama state line than it has been for the past few years. Perhaps the major change in the circumstances of the parties is that, due to the court’s order, the father has been able to regularly visit with his child for the past two years.

The mother, through able counsel, contends that preventing her from removing the child from the state placed an unreasonable restriction upon her. As the mother’s testimony indicated, the court’s order undoubtedly has imposed some hardship upon the mother’s new family. In deciding custody matters, however, the trial court is to be guided by the best interests of the child. Gandy v. Gandy, 370 So.2d 1016 (Ala. Civ.App.), cert. denied, 370 So.2d 1019 (Ala. 1979).

Generally it can be said that the best interests of a child require that he or she be allowed the opportunity to develop a meaningful relationship with both parents. In this case, however, due to the actions of the mother, for a period in excess of two years the father was deprived of any relationship at all with his child. When the child was located, the trial court remedied the foregoing situation by prohibiting the removal of the child from the State of Alabama. Since the 1980 order has been in effect, the father has been able to develop a continuing relationship with his daughter. The trial court’s denial of the mother’s petition for modification indicates that, for at least the time being, the best interests of the child would be best served by the court’s continued protection of the relationship between the father and his daughter. In light of the circumstances of this case, this court cannot conclude that the trial court so abused its discretion as to require reversal.

In closing, we make one final comment. Paraphrasing the language used by Presiding Judge Wright in Jenkins v. Jenkins, 395 So.2d 1045, 1047 (Ala.Civ.App.1981), it would seem to this court that with the passage of a reasonable amount of time and with the continued development of the relationship between father and daughter, the happiness of the mother’s new family and the welfare of the child would cease to be antipathetical. When this point is reached, a modification of the 1980 custody order might well be appropriate.

This case is due to be affirmed.

AFFIRMED.

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


author: BOOKOUT, Judge.

text:
    Delacy CALDWELL v. STATE.
    4 Div. 920.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Quashed, Aug. 27, 1982 Alabama Supreme Court 81-407.

      J. Mark Murphy of Murphy & Murphy, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Robbery in the third degree; sentence: five years’ imprisonment.

Appellant contends that the State failed to present sufficient evidence to sustain his conviction beyond the uncorroborated testimony of an accomplice contrary to § 12-21-222, Code of Ala.1975. We agree.

Charles Skanes entered a store, the Western Station, in Florala, Alabama, around 8:30 p. m. on July 18, 1980, and asked Mary Williams, the attendant, for two cartons of cigarettes. Skanes followed her into the storeroom where she was procuring the cigarettes and proceeded to severely beat her with a tire tool. Two Lockhart, Alabama, policemen unwittingly drove up to the Western Station to buy a pack of cigarettes and noticed Skanes exiting the station. Skanes was alone. Shortly thereafter, the two policemen saw a lone man driving a blue Ford pickup truck from the back of the station without any lights on. Within minutes, however, Skanes returned in the pickup truck to the scene of the crime “crying” and “hollering” and gave himself up to the police.

Skanes, who was incarcerated for first degree assault arising from this incident, was the State’s principal implicating witness at appellant’s trial. Skanes testified that early in the morning of July 18 he and Willie Toles discussed robbing the Western Station. Between 6:00 and 8:00 p. m. that night he met with Toles and the appellant outside a local cafe. Skanes explained that Toles instructed him to ask the station attendant for cartons of cigarettes so that she would have to leave the counter to go into the storeroom, thereby giving Toles and the appellant the opportunity to come in and rob the station.

Skanes, who stated that he was “tripped out” that night on cocaine and beer, arrived alone at the Western Station in his pickup truck. He testified that Toles and the appellant were together in Toles’s car parked at a curb market about an eighth of a mile away from the station. Skanes said that when Williams turned around to go into the storeroom Toles and the appellant walked up to the door of the Western Station and Toles handed Skanes the tire tool from Skanes’s truck.

The victim of the assault, Mary Williams, stated that the only person she saw or heard during the incident was Skanes. Janet Weeks, who worked at another store, the Zippy Mart in Florala, testified that between 8:10 and 8:15 p. m. on the same evening Skanes drove up in a blue pickup truck and came into her store to buy gasoline. About the same time Toles and the appellant drove up behind Skanes’s truck in a Chrysler Cordoba. Appellant and Toles ran up to the store, came inside, looked around a few minutes and made some small purchases. After putting gasoline in his truck, Skanes drove off. Appellant and Toles left immediately thereafter in their ear, behind Skanes.

Appellant did not testify, but presented several witnesses from the Laurel Hill, Florida, community located approximately twelve miles from the Western Station. These witnesses placed appellant jogging, visiting friends, and socializing in a local disco in their community at various times that night when the appellant allegedly planned and committed the crime. Appellant was indicted for robbery in the first degree. His attorney moved to exclude the State’s evidence and later filed a motion for a new trial based upon the lack of evidence incriminating the appellant beyond the uncorroborated testimony of Charles Skanes.

In Alabama an accused may not be convicted on the uncorroborated testimony of an accomplice. Section 12-21 — 222, Code of Ala.1975. Our courts have consistently adhered to the following rule set forth in Sorrell v. State, 249 Ala. 292, 293, 31 So.2d 82 (1947):

“The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt... . ”

See also Lindhorst v. State, 346 So.2d 11 (Ala.Cr.App.), cert. denied, 346 So.2d 18 (Ala.1977); Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977); Anderson v. State, 44 Ala.App. 388, 210 So.2d 436 (1968).

Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions for the jury. Thompson v. State, 374 So.2d 377 (Ala.Cr. App.1978), affirmed, 374 So.2d 388 (Ala. 1979); Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). The requisite corroboration must be determined by a process of elimination or subtraction. McCoy v. State, 397 So.2d 577 (Ala.Cr.App.), writ denied, 397 So.2d 589 (Ala.1981); Woods v. State, 387 So.2d 313 (Ala.Cr.App.1980); Peacock v. State, 369 So.2d 61 (Ala.Cr.App.1979). “That is, the trial court, on proper motion, as a matter of law is required to take away the evidence of the accomplice(s) and determine whether the rest of the testimony is sufficient to tend to connect the defendant with the commission of the offense.” Kimmons, supra at 546; Keller v. State, 380 So.2d 926 (Ala.Cr.App.), writ denied, 380 So.2d 938 (Ala.1980).

Since Skanes’s admitted participation in the crime renders him an accomplice as a matter of law, Craig v. State, 376 So.2d 803 (Ala.Cr.App.), writ denied, 376 So.2d 807 (Ala.1979), corroborative evidence is required here. When we disregard Skanes’s testimony, the only evidence which remains for the purpose of connecting the appellant with the offense is the testimony of Janet Weeks. Fifteen minutes before the crime occurred, she observed appellant and Toles drive up to the store in a car just after Skanes arrived in a pickup truck. She saw Skanes make some gesture which is only described in the record as being “something like this, (indicating with hand).” What the gesture was or who, if anyone, it was intended for is left to speculation. However, the three did not enter the store together, nor did Ms. Weeks proffer any testimony that they acted as a trio while inside the store talking or associating with each other. She added that “Mr. Toles and Mr. Caldwell got into the Chrysler directly behind the truck. They left in behind each other.” Assuming Janet Week’s testimony was sufficient for the jury to infer that appellant was with Skanes at the Zippy Mart rather than being in the store separately but at the same time, still more is required for corroboration.

Being in the company of an accomplice in proximity in time to the commission of the crime is not always sufficient corroboration to comply with statutory demands. Kimmons, supra. Rather, when an accomplice and an accused are seen together in somewhat unusual places and times in proximity to the locus of the crime, which occurs at an unreasonable hour, the requirements of corroboration are met. Senn v. State, 344 So.2d 187 (Ala.Cr.App.1976), reversed, 344 So.2d 192 (Ala.1977); Kimmons, supra. When the circumstances of time and place are not unusual other facts and circumstances, however slight, connecting the accused to the crime must be adduced to support the testimony of the accomplice in addition to or in conjunction with those of proximity, chronologically and geographically, to the alleged offense. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), writ denied, 376 So.2d 1117 (Ala.1979); Craig, supra; Lindhorst, supra.

Here, no additional corroborative facts were presented, such as: the flight of the accused, escape of the accused, suspicious conduct of the accused, or testimony of the accused tending to corroborate that of the accomplice. Here, we have only the testimony of Janet Weeks showing that appellant and Toles arrived at her store at about the same time as Skanes and departed immediately behind Skanes. The time was close to the subsequent crime in question, but neither the place nor time was unusual. Therefore, we find that appellant was convicted upon the uncorroborated testimony of an accomplice. Because appellant’s motion to exclude the State’s evidence should have been granted, a second trial is barred by the double jeopardy clause of the constitution. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

REVERSED AND RENDERED.

All the Judges concur.