text:
    FIRST SHELBY NATIONAL BANK, and Alabama Banking Corporation v. Gene MITCHELL.
    Civ. 2825.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      John E. Medaris, Alabaster, for appellant.
    Richard L. Taylor and J. Sherrill Hancock, Birmingham, for appellee.
   HOLMES, Judge.

The plaintiff, Gene Mitchell, sued the defendant, First Shelby National Bank, for malicious prosecution and abuse of process.

The action was tried before a jury which rendered a verdict in favor of the plaintiff in the amount of $1,000. This amount was later reduced to $900 by the trial court.

The jury verdict did not specify upon which theory judgment was rendered. The defendant appeals and we affirm.

The defendant, through able counsel, contends the evidence does not support a judgment for either malicious prosecution or abuse of process. Additionally, the defend ■ ant contends the trial court erred in giving jury instructions on punitive damages.

Viewing the record with the attendant presumptions, the following is revealed: Mr. Fredrick McMaster was the owner of a mobile home. On August 13, 1974, McMas-ter entered into a lease-purchase agreement with the plaintiff. The agreement required the plaintiff to pay $112.50 per month for sixty months. At the conclusion of these payments, McMaster was to convey title to the mobile home to the plaintiff. There is no evidence that this lease-purchase agreement was ever recorded. The plaintiff did, however, apparently enter into possession of the mobile home at the inception of the agreement.

In 1978, McMaster consulted the defendant-bank in an attempt to procure a loan. As collateral for the loan, McMaster offered the mobile home. On May 30,1978, McMas-ter and defendant reached agreement whereby the defendant extended McMaster a loan and took a security interest in the mobile home. To protect its security interest, the defendant duly filed a financing statement as required by the Uniform Commercial Code.

McMaster subsequently defaulted on the loan. After failing to obtain payment from McMaster, the defendant-bank contacted the plaintiff in an attempt to obtain possession of the mobile home. Though disputed, there is evidence that a representative from the bank told the plaintiff that he had five days to move out of the mobile home. The plaintiff, however, refused to relinquish possession of the mobile home. Consequently, the defendant instituted an action in the Shelby County District Court seeking to have the plaintiff vacate the mobile home and to allow defendant to take possession.

The defendant, pursuant to rule 64(b)(2)(B), A.R.C.P., made a motion for a writ of prejudgment seizure. This motion was granted on January 4, 1979. On January 9, 1979, the plaintiff made a motion for a prejudgment hearing. A hearing was held on February 9, 1979, and an order was rendered the same day. The trial court did not require the plaintiff to vacate the mobile home. Instead, pursuant to an agreement between the plaintiff and defendant, the trial court ordered that the plaintiff pay the remainder of the installment payments due under the lease-purchase agreement directly to the defendant. The trial court found that eight payments remained which amounted to a total of $900. McMaster was held liable for the remainder of his indebtedness after deducting the $900.

No appeal was taken from this decision. The plaintiff then instituted the instant action.

The essential elements necessary to recover in a malicious prosecution suit are (1) judicial proceeding, (2) initiated by the defendant, (3) without probable cause, (4) with malice on the part of the defendant, (5) termination of the judicial proceedings in plaintiff’s favor, and (6) damages as a result of the action. Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.Civ.App.), cert. denied, 386 So.2d 459 (Ala.1980). The defendant contends the plaintiff presented insufficient proof to establish lack of probable cause, malice, and termination in plaintiff’s favor.

This court will address each of these contentions.

Probable cause in malicious prosecution cases can be defined as that state of facts which would lead a person of reasonable prudence to honestly believe the claims put forth in the prior suit would prevail. Gamble v. Webb Quarterback Club, supra. See also Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969). In the context of the instant ease, the defendant would have had probable cause to bring the action to repossess the mobile home only if its representatives maintained an honest belief that its rights in the mobile home were superior to the plaintiff’s rights in the mobile home.

The law in Alabama, as correctly indicated by the trial court, is that a conveyance by the lessor of property, during the unexpired leasehold term under which the tenant is holding, does not abrogate the tenant’s rights under the lease, unless the lease so provides. Plastone Plastic Co. v. Whitman-Webb Realty Co., 278 Ala. 95, 176 So.2d 27 (1965); Wood v. West Pratt Coal Co., 146 Ala. 479, 40 So. 959 (1906); Mack v. Beeland Brothers Mercantile Co., 21 Ala.App. 97, 105 So. 722, cert. denied, 213 Ala. 554, 105 So. 725 (1925). Thus, if there was sufficient evidence to indicate that the defendant acquired its security interest in the mobile home subsequent to the execution of the lease-purchase agreement and the defendant was aware or should have been aware of the plaintiff’s rights under the agreement, the defendant would not have had probable cause to bring the action to repossess the mobile home.

The evidence is undisputed that the lease-purchase agreement was executed in 1974, approximately four years before the defendant acquired any interest in the mobile home. There is also undisputed evidence that the plaintiff had been in possession of the mobile home for some time prior to the time the defendant acquired its interest in the mobile home. Though not without dispute by the defendant, there is evidence that the defendant was aware of the plaintiff’s interest in the mobile home at the time the defendant took its security interest in the mobile home. In any event, it is apparent that, prior to bringing the repossession action, the defendant had some knowledge of the plaintiff’s rights because a representative from the bank visited the defendant prior to the action and, according to the plaintiff, asked the plaintiff to vacate the mobile home. Based upon the foregoing, this court concludes that there was sufficient evidence from which the jury could conclude that the defendant was aware or should have been aware of the plaintiff’s rights.

Stated differently, there was sufficient evidence from which the jury could have concluded that the defendant lacked probable cause to bring the repossession action against the plaintiff.

We also find that the defendant’s contention that the plaintiff failed to establish malice is without merit. Previous decisions have held that in malicious prosecution actions a presumption of malice arises upon a finding of lack of probable cause. S. S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977); Gamble v. Webb Quarterback Club, supra; Dillon v. Nix, 55 Ala.App. 611, 318 So.2d 308 (1975). This presumption of malice coupled with the defendant’s blatant disregard of the plaintiff’s rights under the lease-purchase agreement is sufficient to sustain a finding of malice on the part of the defendant in instituting the repossession action.

The defendant-bank next contends that the repossession action was not terminated in all respects in plaintiff’s favor. To review briefly, the defendant brought the repossession action seeking specifically to have the mobile home removed from the plaintiff’s possession. Though the defendant’s motion for a writ of prejudgment seizure was granted, the ultimate decision was clearly adverse to the defendant and favorable to the plaintiff because the plaintiff was allowed to maintain possession of the mobile home.

The defendant contends, however, that since the plaintiff was ordered to make the remaining payments due under the lease-purchase agreement directly to the defendant, the repossession action was not terminated in all respects in the plaintiff’s favor. The defendant cites to Wilson v. Brooks, 369 So.2d 1221 (Ala.1979), as support for this contention. This court, however, is of the opinion that Wilson is distinguishable from the instant case.

A brief review of the facts and holding of Wilson is in order. Wilson is a malicious prosecution case. Mr. Wilson, an attorney, brought an action to obtain payment of attorney’s fees. The defendant in Wilson’s claim for attorney s fees counterclaimed against Wilson for malpractice. Prior to a decision on the merits of either claim the parties reached a settlement agreement whereby the malpractice counterclaim was dismissed with prejudice in return for a reduction in the amount of attorney’s fees claimed by Wilson. Attorney Wilson brought an action for malicious prosecution based upon the malpractice counterclaim. In denying Wilson’s claim for malicious prosecution, our supreme court held that the previous litigation (referring to the malpractice counterclaim) had not terminated completely in Wilson’s favor because the dismissal was due to a settlement agreement.

The major distinction between Wilson and the instant case is that in the instant case no settlement agreement was involved. The previous action was initiated by the defendant solely to obtain possession of the mobile home. A hearing on the merits was held and the defendant lost. The plaintiff gave up no claims in order to maintain possession of the mobile home, nor was the plaintiff required to pay any more money than was already due under the lease-purchase agreement. The plaintiff agreed to pay only the amount already due under the lease-purchase agreement. Accordingly, the defendant received no more than it had become entitled to at the moment it took a security interest in the mobile home. Mack v. Beeland Brothers Mercantile Co., supra. See 51C C.J.S., Landlord & Tenant § 21 (West 1968).

Based upon the foregoing, we conclude that in this instance the previous action terminated in the plaintiff’s favor.

We note that in the issues portion of its brief, the defendant contends the plaintiff failed to prove damages resulting from the repossession action. However, the defendant failed to include any citations to authorities or to the record in support of this contention as is required by rule 28(a)(5), A.R.A.P. Consequently, this court will not consider this issue.

In summary, we conclude that there was sufficient evidence to support a verdict of malicious prosecution. Since this was a general verdict, other issues raised by the defendant concerning failure of proof regarding the abuse of process count need not be discussed. Gamble v. Webb Quartback Club, supra.

Finally, the defendant contends the trial court erred in giving jury instructions as to punitive damages. Initially, we note that the trial judge has a duty to offer proper instructions regarding each issue presented. Liberty National Life Insurance Co. v. Smith, 356 So.2d 646 (Ala.1978). The issue remains, however, as to whether the issue of punitive damages was presented in the instant action.

Generally, in a malicious prosecution action, a punitive damage instruction is warranted only if there is some evidence indicating that the defendant’s motivation in instituting the previous action was more than mere malice.

What constitutes “more than mere malice” has been expressed in various manners. Our supreme court, in Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122 (1919), held that punitive damages were recoverable where there was malice springing from a motive to injure the plaintiff or to gain some personal advantage for the defendant. In Wells Co. v. Lane, 22 Ala.App. 269, 115 So. 74, rev’d on other grounds, 217 Ala. 10, 115 So. 77 (1927), cert. denied after action on remand, 217 Ala. 12, 115 So. 79 (1928), the court of appeals indicated that punitive damages would be proper only if the previous action was influenced by a “reckless or vexatious spirit.” “Vexation” was more specifically interpreted in City National Bank v. Jeffries, 73 Ala. 183, 191 (1882), where our supreme court said:

If there be no reasonable foundation for believing that a statutory ground for attachment exists, or if the process be sued out wantonly or recklessly without probable cause, . . . then it is vexatious as well as wrongful, and exemplary or vindictive damages may be recovered. . . .

Punitive damages have been held to be recoverable where the proceeding complained of was instituted under circumstances of “oppression, wantonness, or reckless disregard of plaintiff’s rights.” Askin & Marine Co. v. Logan, 24 Ala.App. 13, 15, 130 So. 768, 770, cert. denied, 222 Ala. 52, 130 So. 770 (1930). In Sloss-Sheffieid Steel & Iron Co. v. O’Neal, 169 Ala. 83, 84, 52 So. 953, 954 (1910), our supreme court held correct a jury charge that “the malice required for the recovery of punitive damages . . . need not amount to ill will, hatred or vindictiveness of purpose. It is sufficient if the defendant is guilty of a wanton disregard of the rights of the plaintiff.”

We conclude, based upon the foregoing authorities, that there was sufficient evidence to support an inference that the defendant was motivated by more than mere malice when it instituted the repossession action. The defendant knew of or should have known of the plaintiff’s rights in the mobile home prior to obtaining its security interest therein. Due to the plaintiff’s prior interest, the defendant had no hope, under Alabama law, of obtaining possession of the mobile home. Yet, on two occasions, one outside the court and one before the court, the defendant attempted to compel the plaintiff to vacate the mobile home. Both of these actions were taken in total disregard of the plaintiff’s rights. Consequently, the jury instructions as to punitive damages were properly given.

The case is due to be affirmed.

AFFIRMED.

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

      . In this action the trial court’s jury charge as to punitive damages was based upon Logan and O’Neal.


source: Caselaw Access Project

license: Public Domain

text:
    W. M. CAMERON v. Jack GUNTER.
    Civ. 2839.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      Sam E. Loftin, Phenix City, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves an appeal by Mr. Cameron from the denial by the circuit court of his motion to quash garnishment proceedings which had been instituted against him by Mr. Gunter.

The facts were stipulated in the circuit court, and pertinent parts thereof, as established for the record on appeal, are as follows:

Mr. Cameron and Mr. Gunter were jointly sued for an account stated by the Mullin Company, Inc. (Mullin) in 1972. Neither defendant answered Mullin’s complaint, and, in 1974, a judgment by default was rendered against Cameron and Gunter for $326.89. Mulling promptly recorded a certificate of judgment.

In 1976, Gunter paid to Mullin the full amount of that judgment plus interest and court costs, and Mullin assigned the judgment to Gunter, who, shortly thereafter, recorded the assignment in the probate office.

In 1980, Gunter, as “assignee of the Mul-lin Company,” caused a writ of garnishment to issue against Cameron to his employer, which garnishment was founded upon the 1972 judgment. Cameron filed a motion in the district court to quash the garnishment proceedings, and, upon that court’s refusal to quash the writ, an appeal was duly taken to the circuit court. When the circuit court rendered a similar judgment, the present appeal ensued. We reverse and remand.

Neither a legal nor factual foundation, basis or reason for the liability of either of the parties for the debt owed to Mullin for an account stated appears in the stipulated facts. The legal relationship of the defendants to each other is not apparent. Hence, those code sections have no application which grant to a surety who pays a judgment a subrogation right to control and enforce that judgment against a cojudgment debtor. Some such inapplicable provisions are found in §§ 6-9-2, 8-3 — 1 ei seq., and 8-3^40 and 41 of the Code of Alabama 1975. It cannot be ascertained from the stipulated facts that Gunter was Cameron’s surety as that term is defined and used in those statutes. City of Birmingham v. Trammell, 267 Ala. 245, 101 So.2d 259 (1958).

Since no applicable Alabama statute grants such subrogation rights, we have extensively searched the case law upon the subject. An irreconcilable split of authority exists among the various jurisdictions upon the question as to whether a co judgment debtor who pays the judgment is subrogat-ed thereto as against the other cojudgment debtors so as to utilize the judgment to enforce contribution. 73 Am.Jur.2d, Subro-gation § 63, p. 637; Anno., “Right of one cojudgment debtor who pays judgment to be subrogated thereto as against other co-judgment debtors,” 157 A.L.R. 495. In that annotation, only one Alabama case is cited, Hogan v. Reynolds, 21 Ala. 56, 59 (1852).

In the Hogan case, supra, it was stated that, “if a judgment [against two co judgment debtors] is paid by one who is a principal in that debt, and, as such, is bound to pay, he cannot, by obtaining an assignment of the judgment, keep it alive in order to coerce payment from his co-principal , . . . ” See also 49 C.J.S. Judgments § 555.-b, p. 1026. In a case with similar facts, it was decided that such payment discharges the judgment and leaves nothing due which the judgment plaintiff could assign to a cojudgment debtor defendant. Bartlett & Waring v. McRae, 4 Ala. 688 (1843). Where a judgment is rendered against two co-obli-gors, an obligor who pays the judgment in full may not enforce contribution from a cojudgment debtor by means of an execution issued upon that judgment, for the payment satisfied the judgment. Abercrombie v. Conner, 10 Ala. 293 (1846).

While the above cited cases are ancient, we have not pinpointed any Alabama cases to the contrary except those later cases applying the suretyship statutes, supra. Since there could not have been a valid assignment of the Mullin judgment to Gun-ter, § 6-9-196 of the Code of Alabama of 1975 has no present field of operation here, for that code section would only concern assignments which are valid and enforceable. We find no applicable statute which alters those ancient decisions when the stipulated facts of this case are laid alongside the legislative enactment. Insofar as we can determine, the Hogan, Bartlett and Abercrombie cases, supra, are the latest supreme court decisions in point. Those cases are still valid under the circumstances of this case, and we are required to be governed by them. § 12-3-16, Code of Ala. 1975.

Therefore, the writ of garnishment arising out of the Mullin judgment could not be utilized in an attempt by Gunter to obtain contribution from Cameron, a co-judgment debtor, and the motion to quash the garnishment proceedings should have been granted. According to the facts before us, Gunter’s possible remedy is limited under our present law to a separate civil action against Cameron for contribution. Abercrombie v. Conner, supra.

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.

REVERSED AND REMANDED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Martha M. PUGH v. Walter H. PUGH.
    Civ. 2859.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.
    Robert E. Sasser and John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    John Patterson of Patterson & Rinehart, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Montgomery County divorced the parties and ordered the husband to pay periodic alimony and made a division of the property owned by the parties.

The wife, through able counsel, appeals contending the trial court abused its discretion in the award of alimony and division of property.

We find no abuse of discretion and affirm.

Viewing the record with the attendant presumptions, the following is revealed: The parties were married for twenty-four years. Two children, now adults, were born during the marriage.

The husband is forty-nine years old. He is a physician with a gross income of approximately $100,000 per year and a net income of approximately $60,000.

The wife is fifty years old. Prior to the marriage the wife had worked as a nurse. She has not worked during the marriage except for a few months after the parties were first married and a few months in 1978.

The wife has had psychiatric problems for the entire period of the marriage. The record indicates the wife has a long history of alcohol and drug abuse.

The parties had marital problems for several years prior to the divorce. They attempted to work out their problems through marriage counseling and psychiatric help but were unsuccessful. They separated and reconciled once in 1979. In 1980, the parties separated again and the husband filed for divorce.

Before entering the divorce decree, the trial court took evidence ore tenus. After hearing all the testimony, the trial court awarded the wife periodic alimony in the following amounts: $2,300 per month for two' and one-half years; $1,600 per month for the next five years; and then $1,000 per month until the wife reaches age sixty-two. All alimony payments are to end upon the wife’s remarriage.

The wife was given the use of the marital home valued at approximately $150,000. The parties are to sell the home within the next two and one-half years. The wife will receive two-thirds of the proceeds from such sale and the husband would receive the remaining one-third of the proceeds.

The wife received all household furnishings valued at approximately $40,000. She was awarded a 1977 Cadillac and two of the four cemetery plots owned by the parties. The wife is to be named beneficiary on a $60,000 insurance policy on the husband’s life, and he is responsible for the premiums. The policy is to remain in effect until the wife reaches age sixty-two.

The interest that the husband has in his office building, fixtures and equipment is to be his exclusive property. The trial court also awarded the husband the entire interest he has in property derived from inheritance. The husband was given title to four cars, all stocks and investments, and the possession to the Keogh Plan currently valued at $44,600.

The trial court found the husband was paying the college tuition of the parties’ son, age nineteen.

Finally, the husband was awarded $10,000 in the checking and savings accounts, but shall be responsible for all marital debts. The husband was ordered to pay the wife’s attorney a fee of $3,000.

With the above facts before it, the learned trial judge divorced the parties in May, 1981.

As indicated, the wife contends on appeal that the trial court abused its discretion in the amount of periodic alimony awarded.

An award of periodic alimony is a matter within the sound discretion of the trial court and will not be disturbed on appeal except for a showing of plain and palpable abuse. Nolen v. Nolen, 398 So.2d 712 (Ala.Civ.App.1981).

We find no abuse of discretion in this instance. The wife claims she needs $4,200 per month for living expenses and to maintain the standard of living she enjoyed during marriage. As noted above, the wife is currently receiving $2,300 per month, and that amount will be adjusted downward over the next twelve years. While the record indicates the wife might never again become gainfully employed as a nurse she does not appear to be precluded by her health from pursuing some other employment. She may not enjoy, after the divorce, as much disposable income as she did during the marriage. However, in light of the substantial property settlement, the fact that no children now reside at home, and the lack of any major expenses to the wife, we find the amount of periodic alimony awarded adequate.

The wife also contends the trial court abused its discretion in the division of property.

We note that division of property is also a matter within the discretion of the trial court, which will not be disturbed on appeal except for plain and palpable abuse. Roberts v. Roberts, 399 So.2d 316 (Ala.Civ.App.1981).

The trial court did not abuse its discretion in the division of property. The wife has the use of the homeplace for the next two and one-half years. After it is sold, she will receive two-thirds of its value, estimated at $100,000. The wife was awarded more than $40,000 worth of personalty, including all household furnishings and a car.

Although the property awarded the wife does not equal the value of the property awarded the husband, we do not find the award to be inequitable. Schwaiger v. Schwaiger, 392 So.2d 1213 (Ala.Civ.App.1981). The building in which the husband practices medicine and the equipment necessary to him in his practice were all awarded to the husband. This, of course, sways the balance in the division of the property in favor of the husband. However, this professional property is necessary for the husband to work in order to support himself and his college-age son, as well as make alimony payments to the wife. Since the wife did receive a substantial property award, we cannot find, in view of the above facts, there was any abuse of discretion on the part of the trial court, even though the husband did indeed receive a greater amount of the property.

In view of the above, the wife’s request for attorney’s fees for representation on appeal is denied.

Finding no abuse of discretion on the part of the trial court, the judgment is due to be affirmed.

AFFIRMED.

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

      . Both parties apparently concede that at age sixty-two the wife will become eligible for certain federal social security benefits.


author: WRIGHT, Presiding Judge.

text:
    Linda S. HARRIS v. NATIONAL BANK AND TRUST COMPANY.
    Civ. 2894.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      Jane DeLissovoy, Montgomery, for Legal Services Corp. of Alabama.
    No brief for appellee.
   WRIGHT, Presiding Judge.

National Bank and Trust Company obtained a writ of garnishment against the salary of Ms. Linda Harris in an effort to collect a default judgment entered against her and her now-estranged husband in 1975. The default was for money owed the bank on a Mastercharge account, and was in the amount of $2,300.97. The garnishment was issued September 15, 1980, to Ms. Harris’ employer, Tuskegee Institute. The employer answered October 2, 1980, admitting Ms. Harris’ employment and agreeing to withhold funds from her salary. No specific amount per week or month was set out in either the writ or the answer thereto.

Ms. Harris received notice of the writ itself, but there is no indication in the record that she was ever notified of her employer’s answer. Tuskegee Institute held money out of her wages in September although the answer was not filed until October. One hundred twenty-three dollars and fifty-six cents ($123.56) was withheld each month from September to December, 1980.

On December 9, 1980, Ms. Harris filed a motion to amend the writ of garnishment in the District Court of Macon County. She asked that the writ be made to conform to § 5-19 — 15, Code (1975), a section of the “Mini Code” that deals with garnishment for collection of money with respect to certain consumer transactions. She also asked the court to order that all funds already withheld by Tuskegee Institute be released to her. The bank moved,to dismiss the garnishment on December 11, 1980. Ms. Harris filed an additional motion for refund of monies on January 20, 1981. The district court granted the bank’s motion to dismiss on January 23, 1981, and in the same order denied Ms. Harris’ motion for refund of monies. Upon dismissal of the writ of garnishment, Tuskegee Institute refunded $247.12 to Ms. Harris, purportedly the money withheld in November and December. It is unclear from the record who has possession of the money withheld in September and October 1980, because there has been no disposition of it by court order.

Ms. Harris appealed the district court decision to the Circuit Court of Macon County. The circuit court denied her motion for refund of monies May 13, 1981. From that order, Ms. Harris appeals.

Section 5-19-15 of the “Mini Code” reads as follows:

Prior to entry of judgment, the creditor may not attach unpaid earnings of the debtor by garnishment. The garnishment procedure after judgment shall be as provided in sections 6-6-370, 6-6-371, 6-6-390 through 6-6-394, 6-6-410 through 6-6-414, 6-6-430, 6-6-431, 6-6-461 and 6-10-7; except, that with respect to consumer loans, consumer credit sales and consumer leases, the amount subject to garnishment shall not exceed the lesser of:
(1) Twenty percent of his disposable earnings for that week; or
(2) The amount by which his disposable earnings for that week exceed 50 times the federal minimum hourly wage in effect when payable.
“Disposable earnings” means that part of the earnings of an individual remaining after deduction of amounts required by law to be withheld, and disposable earnings shall not include periodic payments pursuant to a pension, retirement or disability program.

Ms. Harris’ purchases on her Masterc-harge account bring her within the ambit of § 5-19-15. After certain calculations, it is apparent that her salary was exempt from garnishment. Ms. Harris’ gross salary per month was $568.67. The federal minimum wage at the time of the garnishment was $8.10 per hour. Under § 5-19-15(2), Ms. Harris would have to make at least $620.00 per month disposable income to be eligible for garnishment. (The $620.00 is derived from the following: $3.10 X 50 = $155.00 2a 4 weeks per month = $620.00.) Section 5-19-15(1) does not apply since Ms. Harris’ salary does not exceed fifty times the minimum wage as set out in (2), and thus twenty percent of her disposable income as computed under (1) would be greater than zero amount reached under (2). There is no indication in the record from whence the $123.56 withheld each month was derived. We conclude that the writ of garnishment was contrary to law since Ms. Harris’ salary was totally exempt from garnishment.

The dispositive issue on appeal, however, is not the wrongful issuing of the writ, but the disposition of the money collected pursuant thereto. Ms. Harris’ employer has refunded $247.12 which was withheld in November and December 1980. Another $247.12 withheld in September and October 1980 has yet to be returned to her. The record does not indicate who currently has possession of that money, but there is no condemnation ordering that the money be paid out of court. The record does support the conclusion that the money was improperly withheld under authority of the district court, and that appellant has been denied its return.

We find no cases directly on point, but we also find no reasoning in support of the court’s denial of Ms. Harris’ request that her money be refunded. We note that in the case of a wrongful garnishment, one has a separate action for the actual damages sustained. Pounds v. Hamner, 57 Ala. 342 (1876). However, in light of modern procedural advancements and a need to control multiple suits on a single issue, we see no reason to force the appellant to pursue a separate remedy. All the interested parties were properly before the court, and it is reasonable to require the court to order some affirmative disposition of the funds in question.

The writ of garnishment was dismissed on the bank’s own motion. No brief has been filed on appeal in the bank’s behalf. We have determined that the writ of garnishment was void. Ms. Harris has shown that she has a right to those funds.

For the foregoing reasons, we reverse the decision of the circuit court and remand the case to the circuit court for the purpose of providing hearing to determine the holder of the funds withheld under the court’s writ of garnishment and rendering judgment for its return to Linda Harris.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Polly SCOTT, a/k/a Mrs. Charles D. Scott and Charles D. Scott v. PIZITZ, INC.
    Civ. 2895.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      Charles D. Scott, pro se.
    Donald Joe Sides of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal from the granting of a summary judgment. We affirm.

On December 8, 1980 Pizitz, Inc. (Pizitz) filed suit against Polly and Charles Scott in the District Court of Jefferson County to recover $511.92, plus reasonable attorney’s fees, allegedly due on the Scotts’ credit account. The cause was set for trial on February 2, 1981 and all parties were notified. The Scotts failed to defend against the claim and a default judgment was entered in favor of Pizitz and against Charles D. Scott in the amount of $511.92 (the principal debt only), plus court costs, and against Polly Scott in the amount of $614.30 (the principal debt plus reasonable attorney’s fees), plus court costs.

The Scotts appealed the default judgments to the Jefferson County Circuit Court on February 10, 1981. Pizitz thereafter filed a motion for summary judgment with a supporting affidavit and exhibits. The motion was set for hearing on May 15, 1981. At the hearing Charles D. Scott filed a “Motion to Strike Demand for Summary Judgment” in opposition to Pizitz’s motion. After a full hearing of the evidence, which included testimony of the parties and supporting documents, the motion for summary judgment was continued until May 22, 1981 to allow the Scotts additional time to present evidence in opposition to the motion.

The court reconvened on May 22, 1981 to hear the continued motion. All previous evidence was reviewed. The court also considered a motion to dismiss and the affidavit of Charles Scott, both filed by Mr. Scott on May 21, 1981. On May 26, 1981 the circuit court granted Pizitz’s motion for summary judgment based on the finding that there was no genuine issue of material fact. The Scotts appealed to this court on July 6, 1981.

We are called upon to decide whether the circuit court’s granting of the summary judgment motion was proper. A motion for summary judgment is due to be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Slovensky v. Birmingham News Co., 358 So.2d 474 (Ala.Civ.App.1978); Rule 56(c), A.R.C.P. The trial court, in ruling on a summary judgment motion, may consider any evidence before it which would be admissible at trial, as well as any material submitted in support of or in opposition to the motion. Morris v. Morris, 366 So.2d 676 (Ala.1978). The burden of proving that no genuine issue of material fact exists rests on the proponent of the summary judgment motion. Amason v. First State Bank, 369 So.2d 547 (Ala.1979). However, when the moving party has met that burden, the party opposing the summary judgment motion must produce at least a scintilla of evidence which would create a triable issue of fact. Id.

In the present case the trial court had before it the following evidence in support of the summary judgment motion: the affidavit of Donald Simms, General Credit Manager for Pizitz, alleging that both accounts of the Scotts were in default; a copy of the credit agreement bearing Mrs. Scott’s signature; the testimony of Mrs. Scott admitting that she signed the credit agreement; and the testimony of Mr. Scott admitting that he had signed each credit sales slip for merchandise received and that he had received credit on his account for all payments made by the Scotts. In opposition to the motion the court had before it the following: Mr. Scott’s motion to strike demand for summary judgment; a motion to dismiss, for lack of a date on the contract; and Mr. Scott’s affidavit denying the allegations of Pizitz’s complaint.

We find, after viewing all the evidence before the trial court, that no genuine issue as to any material fact exists in this case. Pizitz, the proponent of the motion, has met its burden of proof. The evidence before the trial court showed that there was no dispute as to whether the Scotts were in default on their accounts. The Scotts testified that the credit card contract was signed by Mrs. Scott; that the credit sales slips were signed by Mr. Scott and that he had received the merchandise evidenced by the sales slips; and that the accounts in question had been properly credited with each payment made on the account. Charles Scott’s affidavit provided that he had tendered a small amount on the account but that it had been rejected. He also said in his affidavit that he did not accept Pizitz’s version of the account and demanded strict proof of everything on the account.

Generally when the facts or issues are in dispute, summary judgment is improper. In this case, although Charles Scott says in his affidavit that he does not accept Pizitz’s version of the account and seeks proof of each item on the account, he testified in open court that he signed each sales slip on the account and received the merchandise evidenced by those sales slips and that every payment made on the account had been properly credited to that account. What further proof of the correctness of the account could be made? We can perceive of none.

Under these circumstances, we consider that no genuine issue of a material fact exists and that the trial court’s award of a summary judgment is proper.

AFFIRMED.

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


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    Clarence COOK v. NORTHLAND INSURANCE COMPANY, INC.
    Civ. 2910.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      B. Greg Wood of Love, Love, Lawrence & Wood, Talladega, for appellant.
    Guy Sparks, Anniston, for appellee.
   HOLMES, Judge.

This is a garnishment case. The trial court entered summary judgment against the garnishee. The garnishee appeals and we affirm.

The plaintiff, Northland Insurance Company, received a judgment against Benny Dillman for conversion of a truck. On March 5, 1980 a garnishment in the amount of $5,000 plus interest and costs was issued against garnishee, Clarence Cook, d/b/a Cook’s Auto Parts and/or Cook’s Auto Sales.

The garnishee, in an unsworn answer to the garnishment, stated that Dillman worked for him on a commission basis only. On April 24, 1980 the Calhoun County District Court, in a conditional judgment, ordered the garnishee to pay $5,000 plus costs to the plaintiff. The garnishee’s sworn petition to set aside the conditional judgment was denied and, on June 10, 1980, the district court entered final judgment in favor of the plaintiff.

Pursuant to § 12-12-70, Code of Ala. 1975, the garnishee appealed to the circuit court. On April 13, 1981 the plaintiff made a motion for summary judgment. In support of the motion, the plaintiff included an affidavit sworn to by the garnishee, his counsel and plaintiff’s counsel. The garnishee filed no affidavit in opposition to the motion. The only action taken by the garnishee after the motion for summary judgment was the filing of an amended answer pursuant to a pre-trial order. After considering the pleadings, the affidavit and the argument of counsel for both parties, the trial court entered a summary judgment in plaintiff’s favor. The garnishee’s request for post-judgment relief was denied, hence this appeal.

Rule 56(e), A.R.C.P. in pertinent part provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The underlying purpose of the summary judgment procedure is to avoid the waste of judicial resources on baseless claims. The last two sentences of rule 56(e) complement this purpose by preventing the party opposing summary judgment from withholding evidence until trial by resting on the denials or allegations of his pleading. Instead, where a party seeking summary judgment has supported his motion with proper affidavits and the movant’s affidavits do not show that a genuine issue of fact exists, rule 56(e) requires the party opposing summary judgment to present evidence, by affidavit or otherwise, showing that there is a genuine issue for trial. 10 C. Wright & A. Miller, Federal Practice and Procedure § 2739 (1973).

In the instant appeal the plaintiff presented to the trial court a motion for summary judgment and a supporting affidavit. The affidavit, though not a paragon of clarity, does sufficiently indicate that the garnishee was appropriately indebted to the defendant. The garnishee, through affidavit or otherwise, offered nothing to indicate that a debt did not exist, nor does he show the existence of any other genuine issue of fact. Put another way the garnishee, as indicated by the record, made no response to the plaintiff’s summary judgment motion.

As noted above, the garnishee’s only action, subsequent to the summary judgment motion, was the amendment of his answer. This amendment was not sufficient to “set forth specific facts showing that there is a genuine issue for trial” as required by the rule. A party may not rest upon the mere denials of his pleadings when a motion for summary judgment is made and properly supported. Mims v. Louisville Title Insurance Co., 358 So.2d 1028 (Ala.1978); State v. Givhan, 292 Ala. 533, 297 So.2d 357 (1974).

Additionally, we note that the trial court’s order denying post-trial relief stated that the garnishee’s attorney of record, which we note is not his attorney for this appeal, in effect informed the court that there was no way to prevent a summary judgment against his client based upon the stipulated facts. The attorney of record further informed the court that neither he nor his client could swear to the assertions contained in his answer.

In view of the foregoing, we conclude the trial court committed no error in granting summary judgment for the plaintiff.

This case is due to be affirmed.

AFFIRMED.

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


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    William L. BURKETT v. Ellender W. BURKETT.
    Civ. 2912.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      R. Edward Massey, Jr. of Clay, Massey, Street & Gale, Mobile, for appellant.
    J. Donald Banks of Loveless & Banks, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife petitioned the trial court alleging that the husband failed to comply with certain portions of a prior decree of divorce. The trial court, apparently after an ore tenus hearing, found that the wife was entitled to $2,500 from the sale of the beauty salon called the Style Shop.

The husband appeals contending the above stated action by the trial court was reversible error. We find no such error and affirm.

The parties were divorced in 1979. An agreement was entered into by the parties which was incorporated into the decree of divorce. The agreement so incorporated required the husband to pay child support, gave possession of the parties’ jointly owned homeplace to the wife during the minority of the child, and awarded the husband property located at Gulf Shores.

In addition to the above, the agreement provided “[t]hat the income from the Style Shop shall be divided equally between the parties as payments are made each month.”

Thereafter, the husband filed a motion for change of custody. The wife filed a counterclaim alleging an arrearage in both child support and income payments from the beauty shop. Put another way, the wife alleged the husband failed to make the required payments from the Style Shop.

The trial court denied the husband’s motion to modify custody and determined that the husband was in arrears in the amount of $2,200 for child support. Also, as stated above, the court found that the wife was entitled to $2,500 from the sale of the beauty shop.

At the outset, we note that neither the record nor the trial court decree is, to this court, a paragon of clarity. Apparently, the trial court found the husband had not paid to the wife one-half the income from the beauty shop as required by the prior agreement. It also appears the parties stipulated the fact that the husband, after the divorce, sold the beauty shop for a net profit of $5,000.

The above . findings apparently were made after testimony was heard by the trial court. The transcript of any testimony taken at the hearing is not before this court.

Both parties, through able counsel, have provided this court with excellent, clear, and concise briefs which we appreciate.

The husband contends that the award of profits from the beauty shop to the wife was a non-modifiable division of property. Therefore, the husband argues, since the award of property to the wife was settled in the 1979 divorce decree the trial court cannot by subsequent order divide the profits from the sale of said property.

On the other hand, the wife contends that the award of income from the Style Shop, which was ordered to be paid “as payments are made each month,” was, in effect, an award of periodic alimony.

As indicated earlier, the record before this court contains very little pertinent information upon which this court can predicate error. It is axiomatic that alleged error must be affirmatively demonstrated by the record before this court. Murphy v. Quinn, 402 So.2d 1033 (Ala.Civ.App.1981). If the record does not disclose the facts upon which the alleged error is based, such error may not be considered on appeal. Summerlin v. Bowden, 353 So.2d 1175 (Ala.Civ.App.1978).

In any event, judgments and decrees such as the one now before us are to be construed like other written instruments. If there is any uncertainty, the court must construe them so as to express the intent of the parties. Horsley v. Horsley, 390 So.2d 1058 (Ala.Civ.App.), cert. denied, 390 So.2d 1060 (Ala.1980).

With the above principle of law in mind, we cannot say the trial court erred in construing the pertinent provision as periodic alimony to the wife which could be modified.

Put another way, in this instance this court cannot find error in the trial court’s action in changing the questioned provision from one mandating one-half of the profits of the business to be paid to the wife as it accrues, to one requiring one-half of the profits from the sale of the business to be paid to the wife.

The above is particularly true because it appears that the husband’s action in selling the business had the effect of emasculating the original provision.

Summarizing, it became the duty of the trial court to interpret the original decree. The trial court apparently interpreted the original questioned portion of the decree as providing for periodic alimony and/or support to the wife. In other words, the trial court apparently found the payments to be an allowance for the future support of the wife, payable from current earnings the husband would receive from the beauty shop. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743, on remand, 53 Ala.App. 740, 299 So.2d 751 (1974). So interpreting the decree, the trial court modified the provision to meet the changed circumstances. Hence, there is no error.

The wife has requested an attorney’s fee for representation on appeal. A fee of $350 is hereby awarded.

This case is due to be affirmed.

AFFIRMED.

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


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    Anita JENKINS v. John Michael JENKINS.
    Civ. 2622.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.

      Ronald W. Wise of Law Office of Ira De Ment, Montgomery, for appellant.
    Maury D. Smith and Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a petition to modify a divorce decree.

The wife requested a final property settlement, a sale for division of jointly-owned real estate, an increase in child support and alimony payments, and a modification of the custody provisions of the original decree.

After an ore tenus hearing, the trial court: (1) held that the property settlement embodied in the original decree was final and as such not modifiable; (2) granted the request for a sale for division of the jointly-owned real estate; and (3) denied the request for an increase in child support and alimony payments. The wife appeals to this court.

The issues presented are whether the trial court erred in holding that its original decree of August 8, 1979, was a final and conclusive property settlement between the parties, not subject to modification; and whether the trial court abused its discretion in failing to increase the amount of child support and alimony. We find no error or abuse of discretion and affirm.

The record viewed with the attendant presumption reveals the following pertinent facts:

The parties were divorced by a decree of the Circuit Court of Montgomery County, Alabama, on August 8, 1979. The wife was awarded custody of the two minor children born of the marriage. The decree provided that the husband would pay periodic alimony in the amount of $1,200 on or before January 1, 1980, and $2,500 on or before January 1 of each year thereafter through the year 1984. The alimony will terminate on the wife’s death or remarriage. The title to the family residence and an unimproved lot at Perdido Bay was vested jointly in the husband and wife, with the husband responsible for the mortgage payments and all major repairs on the residence. Child support was ordered in the amount of $700 per month and the husband was further required to pay the children’s tuition at Montgomery Academy, provide hospital and medical insurance coverage for them, and maintain life insurance in an amount not less than $100,000 with the children as designated beneficiaries. Neither party appealed the final decree of divorce.

At the hearing on the petition to modify the decree, the wife requested that the court distribute certain stock owned by the husband in Jenkins Brick Company. The court, however, in an order concerning discovery prior to trial, stated that the August 8, 1979 order was intended to make a property settlement between the parties and to “finally and conclusively” settle the amount of property which the wife would receive from the husband, specifically with respect to distribution of the real property and the Jenkins Brick Company stock.

The wife testified that she and the children incur expenses of $1,997 per month, but the record reveals that amount includes some expenses, such as the mortgage, which are in fact paid by the husband, and others, such as maid expense, which are not actually incurred every month. The wife had been offered jobs with an average salary of $700 per month which she declined because the expense of additional day care for her son would cut so drastically into her profit. A part-time job had yielded about $500 for the year following her divorce.

The husband testified that from August 1979 to August 1980, he had expended over $27,000 for the benefit of his children and former wife. In 1979, the year of the divorce, his total income was about $80,000 including a $29,000 dividend from his Jenkins Brick Company stock. In 1980 his total income dropped some 43%, due mainly to the lack of stock dividends resulting from the Jenkins Brick Company losses sustained in that year. The husband’s income for 1980 was thus approximately $45,000.

It is settled in Alabama that the trial court has wide discretion in making a property division and in awarding alimony in gross. Makar v. Makar, 398 So.2d 717 (Ala.Civ.App.1981); Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979). Alimony in gross should effect a final termination of the property rights and relations of the parties, Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979), and is intended to compensate the wife for her loss of inchoate marital rights, giving her the present value of future support had she remained married. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). The terms of a property settlement or award of alimony in gross contained in a decree of divorce may not be changed or modified without jurisdiction being expressly retained, after thirty days have expired from the date of the decree. Duboise v. Duboise, 275 Ala. 220, 153 So.2d 778 (1963); McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977); Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974); Rule 59, A.R.C.P.

In the instant case the wife did not appeal the trial court’s determination of the property settlement. With no record of the original proceeding, we must assume that the trial court considered all relevant factors in coming to its decision. Furthermore, in the record of the present proceedings, we find explicit statements that the court had indeed intended in the original decree to effect a final settlement between the parties as regards both the real property and the husband’s stock in Jenkins Brick Company. We find that the trial court was correct in holding that the wife was not entitled to a modification of this final settlement.

Unlike alimony in gross, an award of periodic alimony based on the husband’s future earning capacity is modifiable without an express reservation of control in the decree. Hager, supra. The power to modify it is inherent in the equity court. Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317 (1963). Therefore, periodic alimony may be altered upon a showing of changed circumstances. Shirley v. Shirley, 397 So.2d 156 (Ala.Civ.App.1981); DuValle v. DuValle, 348 So.2d 1067 (Ala.Civ.App.1977). Likewise, the trial court’s modification of a prior decree for child support, because of changed circumstances of the parties, is a matter within that court’s discretion. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981); Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). The burden of proof, however, of a material change in circumstances sufficient to warrant a modification of a previous decree relating to child support and periodic alimony is on the petitioner. McEntire, supra; Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972).

We must review the trial court’s judgment in a divorce case with the presumption of correctness when that court heard the testimony and viewed the witness. Hurd v. Hurd, 397 So.2d 133 (Ala.Civ.App.1980), cert. denied, 397 So.2d 135 (Ala.1981). We will not, therefore, reverse that judgment unless the trial court’s determination is so unsupported by the evidence as to be a clear abuse of judicial discretion. Moore v. Moore, 396 So.2d 1074 (Ala.Civ.App.1981); Johnson v. Johnson, 360 So.2d 996 (Ala.Civ.App.), cert. denied, 360 So.2d 999 (Ala.1978). On the record before us we find no abuse of discretion in the trial court’s refusal to increase the alimony and child support payments to the wife.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . In a separate hearing, the custody modification aspect of the petition was denied and the order affirmed by this court in Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981).

      . It appears that the husband owned approximately 16‘/2% of the outstanding shares of stock in Jenkins Brick Company. The company had shown a profit of $172,000 in 1979, but had shown a loss of $951,737 for the year 1980.


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    In the Matter of Travis Gene STACKS. Thistle STACKS v. Rosa STACKS.
    Civ. 2840.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.

      William F. Andrews, Jr., Anniston, for appellant.
    Joe J. Estep, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

Travis Stacks is a male child born in 1976. He has been in the care of his paternal grandmother much of his life. Travis’ mother is a resident of Houston, Texas, and divorced from his father. The location of the father is unknown to either party. Travis was brought to the home of his grandmother by his mother in 1978. The mother was working late hours and Travis was unhappy being left with a sitter. He has remained with his grandmother since 1978. Neither parent has contributed to the child’s support during the time with the grandmother except by gifts from the mother at Christmas and on birthdays. Travis has an older sister who is in the custody of the mother and supported by her. The mother is of Japanese descent but she has acquired American citizenship. She is employed as a cocktail waitress and has a substantial income. The grandmother has only a small social security benefit.

This matter began with the filing by the grandmother of a petition of dependency in the Juvenile Court of Calhoun County. The reason for such filing is not quite clear as there had been no dispute between the parties concerning the child and no request for support made to the mother. There had been regular contact between mother and child by telephone and even visitation by the mother and sister. In any event, the matter proceeded to a contested hearing for custody in the circuit court.

After extended oral hearing on two occasions, the court entered its final judgment on April 24, 1981. The court found, (1) that the child had been with his grandmother for a substantial part of his life without benefit of support from the mother; (2) that the best interest of the child would be served by eventual custody of the mother, but temporary custody should remain with the grandmother until July 5,1982; (3) that extended visitation during the summer and Christmas holidays in 1981 be given to the mother upon providing bond for his return; (4) that the mother pay to the grandmother $50 per week as support for the child; (5) that upon custody being restored to the mother, the grandmother have visitation rights as given to the mother.

The mother appeals.

The first issue presented charges that § 12-15-l(10)a is unconstitutional for vagueness. The constitutionality of the statute was not presented to the trial court but appears first in appellant’s brief. It came too late. Hunley v. Houston County, Alabama Department of Pensions and Security, 365 So.2d 81, 84 (Ala.Civ.App.1978).

Other issues presented may be combined into one, i.e., whether the court abused its discretion in delaying transfer of permanent custody until July of 1982.

Whether disposition of custody of a child be presented to the court after a finding of dependency under the Juvenile Code or by petition for habeas corpus or otherwise, the primary and first concern of the court is the best interest of the child. Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.), cert. denied, 370 So.2d 1019 (Ala.1979). The determination of that best interest is an exercise of judicial discretion based upon the evidence. Taylor v. Taylor, 287 So.2d 849 (Ala.Civ.App.1980). Absent a clear abuse of that discretion the reviewing court will not disturb the judgment of the trial court. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). The court below stated custody in the mother was delayed for Travis to become re-acquainted with her through visitation and to prevent the trauma to him of an abrupt removal from his grandmother. We find such reason to be a valid one calculated to serve the best interest of Travis. According to the undisputed testimony, the mother could have obtained custody of Travis at any time since she left him with the grandmother in 1978 until he was brought before the court. She did not seek his custody nor contribute one cent to his support for nearly three years. We affirm the sound judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Ovie O. FARMER v. MACHINE CRAFT, INC.
    Civ. 2903.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.

      William C. Gullahorn, Jr. of Gullahorn & Hare, Albertville, for appellant.
    James R. Sturdivant, Huntsville, for ap-pellee.
   BRADLEY, Judge.

This appeal arises out of a negligence action filed by Ovie 0. Farmer against his employer, Machine Craft, Inc., concerning the theft of Farmer’s toolbox from Machine Craft’s place of business. Farmer appeals from the granting of a summary judgment in favor of Machine Craft. For the reasons stated below, we affirm.

The stipulated facts indicate that Machine Craft, Inc. operates a machine shop in Huntsville, Alabama. Machine Craft’s place of business had been burglarized on at least two or three occasions within the past year and a half, and as a result, Machine Craft had installed a burglar alarm system in the building. The system apparently had not been functioning since its installation, a fact which was known to the management, but not to some of its employees.

Ovie 0. Farmer had been employed by Machine Craft as a machinist approximately one year prior to the events in question. As a condition of his employment, Farmer was required to furnish his own set of tools, which he kept in his own toolbox. The toolbox when fully loaded with tools, weighed over a hundred pounds. For the convenience of its employees, Machine Craft allowed them to leave their toolboxes at the shop overnight if they so desired. Farmer opted to leave his tools in the shop, although he knew that some of the other employees took their toolboxes home with them for the night.

On the night of November 16, 1979 Machine Craft’s building was burglarized in such a way that the burglar alarm system, if operative, would have sounded. Approximately $10,000.00 worth of Machine Craft’s tools were stolen, along with Farmer’s tools and equipment, valued at approximately $4,000.00.

Farmer brought suit against Machine Craft on a bailment theory, alleging that Machine Craft had failed to exercise ordinary care in the protection of Farmer’s property in neglecting to maintain the burglar alarm system in proper working order. The stipulated facts were submitted to the court on Machine Craft’s motion for summary judgment. The motion was granted, and Farmer brings this appeal.

The controversy raises the issue of whether the trial court properly granted Machine Craft’s motion for summary judgment. Under Rule 56, A.R.C.P., summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing that no genuine issue of material fact exists. Gray v. WALA—TV, 384 So.2d 1062 (Ala.1980). Whether the trial court was correct in granting the summary judgment motion depends on whether the stipulated facts before the trial court show, as a matter of law, that a bailor-bailee relationship existed.

The law in Alabama concerning bailments is exceedingly sparse. We will therefore look to the common law of bail-ments for authority. A bailment is defined as:

[T]he delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it. [Footnotes omitted.]

8 Am.Jur.2d Bailments § 2 (1980). In order to constitute a bailment, there must be a change of possession, actual or constructive, and the bailee must have voluntarily assumed the custody and possession of the property for another. Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943). Change of possession necessarily requires a change of actual or constructive control over the item of property, and there must be an intention on the part of the bailee to exercise that control. 8 Am.Jur.2d Bailments § 66 (1980).

In reviewing the facts in the case at bar, we find that no bailment existed between the parties. Farmer was the sole person who could do what he wished with his toolbox; he was free to take the tools home with him for the night if he so desired. He never relinquished control of the toolbox to his employer. Further, Machine Craft never asserted any control over the toolbox to the exclusion of Farmer. Machine Craft provided no receptacles for the employees to store their tools, and did not require the employees to leave their toolboxes overnight. Allowing the employees to leave the toolboxes was merely a convenience to the employees; Machine Craft derived no direct benefit from the privilege.

We find additional support for our decision in the annotation contained in 46 A.L. R.3d 1306 (1972), and in the case of Collins v. Boeing Co., 4 Wash.App. 705, 483 P.2d 1282, 46 A.L.R.3d 1294 (1971).

Without the existence of a bailment, Machine Craft owes no duty to Farmer for the protection of his tools. In the absence of a legally imposed duty on the part of the defendant, a plaintiff cannot prevail, as a matter of law, on a negligence action. Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 180 So.2d 269 (1965). Accordingly, the trial court correctly granted the summary judgment in favor of Machine Craft, Inc., and its judgment is affirmed.

AFFIRMED.

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


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    The BANK OF HUNTSVILLE v. Boyd B. OELLERICH, Sandra D. Oellerich, and Huntsville Cabinet Works, Inc.
    Civ. 2909.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.

      Michael C. Moore of Watson & Moore, Huntsville, for appellant.
    James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for ap-pellees Boyd B. Oellerich and Sandra D. Oellerich.
    David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellee Huntsville Cabinet Works, Inc.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The trial court granted a summary judgment in a declaratory judgment action.

By their complaint, the Oellerichs sought an adjudication with respect to the rights and legal situation of the parties pertaining to a certificate of judgment filed by The Bank of Huntsville (the Bank) against Albert and Esther Wieland, who, within four months thereafter, bankrupted. They later conveyed their homestead, which was exempted from the administration of bankruptcy, to Huntsville Cabinet Works, who in turn conveyed the land to the Oellerichs. After the granting of the summary judgment favorable to the Oellerichs, the Bank appealed.

Since the parties do not contest the facts as stated in the briefs, we paraphrase those facts, for they are apparently accurate and adequate.

The Bank obtained a monetary judgment against the Wielands on August 25, 1971, and the next day it recorded a proper certificate of that judgment in the Probate Office of Madison County, where the land in question was situated. The Wielands filed a petition in bankruptcy on December 13, 1971, within four months after the rec-ordation of the certificate of judgment. The Bank filed its claim in the Wielands’ bankruptcy proceedings. In June 1972 a discharge in bankruptcy was issued. The land was set aside in bankruptcy to the Wielands as exempt homestead property. In June 1972 the Wielands deeded the property to Huntsville Cabinet Works and it conveyed it to the Oellerichs in 1973.

The Oellerichs paid to the Bank the judgment in full in 1980 to enable them to comply with a contract to convey the land to third parties. Thereafter, they filed the present action, contending that the Bank’s judgment lien was invalid as against this property since the certificate of judgment had been filed for record for less than four months before the Wielands were adjudicated to be bankrupts. The Bank contends that the filing for bankruptcy did not automatically void their judgment lien under § 67(a)(1) [11 U.S.C. § 107(a)(1)] of the prior bankruptcy act, which provided in pertinent part, as follows:

Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this title or against such person shall be deemed null and void ....

11 U.S.C. § 107(a)(1) (1970).

A judgment lien obtained within four months of the bankruptcy of the debt- or is not automatically null and void. Fischer v. Pauline Oil & Gas Co., 309 U.S. 294, 60 S.Ct. 535, 84 L.Ed. 764 (1940); 9 Am.Jur.2d, Bankruptcy § 1022 (1963). However, if property is set apart through the bankruptcy proceedings to a bankrupt as exempt, the bankrupt, in other proceedings, may assert the invalidity of a judgment lien where the adjudication of bankruptcy occurred within four months of the effective date of the lien. Fischer v. Pauline Oil & Gas Co., supra; Chicago, Burlington & Quincy Railroad v. Hall, 229 U.S. 511, 33 S.Ct. 885, 57 L.Ed. 1306 (1912).

We cannot comprehend any valid reason why, under the same circumstances, one claiming under such a bankrupt cannot have a judgment lien invalidated as to property exempted to the bankrupt if the lien was created within four months of the filing of the bankruptcy petition. Since the Fischer case, supra, states that those claiming under a trustee may avoid such a lien, one claiming under a bankrupt as to exempt property should have the same rights. While a claim of an exemption is a personal matter, the parties are in accord that the property was set aside as exempt to the Wielands by the referee in bankruptcy. Such exemption itself is not a present issue. The Oellerichs stepped into the bankrupts’ shoes and acquired the Wielands’ rights in the exempt property, including the same right which they had to assert, in subsequent proceedings, that the Bank’s judgment lien was violative of § 67(a)(1), supra, and, therefore, invalid. We deem such an assertion to be correct. The Bank’s judgment lien had no validity against this exempt property because the certificate of judgment was filed within less than four months of the bankruptcy.

While the provisions of the bankruptcy act were then somewhat different from § 67(a)(1), supra, much of the following language from Chicago, Burlington & Quincy Railroad v. Hall, supra, is still very relevant as to judicial liens and property exempt to a bankrupt:

On this question there is a difference of opinion, some state and Federal courts holding that the bankruptcy act was intended to protect the creditors’ trust fund, and not the bankrupt’s own property, and that therefore liens against the exempt property were not annulled even though obtained by legal proceedings within four months of filing the petition. Re Driggs, 171 Fed. 897; Re Durham, 104 Fed. 231. On the other hand, Re Tune, 115 Fed. 906; Re Forbes, 108 C. C. A. 191, 186 Fed. 79, holds that 67f annuls all such liens both as against the property which the trustee takes and that which may be set aside to the bankrupt as exempt.
This view, we think is supported both by the language of the section and the general policy of the act, which was intended not only to secure equality among creditors, but for the benefit of the debt- or in discharging him from his liabilities and enabling him to start afresh with the property set apart to him as exempt. Both of these objects would be defeated if judgments like this present were not annulled, for otherwise the two Iowa plaintiffs would not only obtain a preference over other creditors, but would take property which it was the purpose of the bankruptcy act to secure to the debtor.
Barring exceptional cases, which are specially provided for, the policy of the act is to fix a four months’ period in which a creditor cannot obtain an advantage over other creditors nor a lien against the debtor’s property.

“The law of each state determines when, how, and on what a judgment becomes a lien.” 4 Collier on Bankruptcy ¶ 67.08, at 119 (14th ed. 1978). In Alabama a judgment lien normally does not attach to homestead property. Barber v. Beckett, 251 Ala. 569, 39 So.2d 17 (1949). No facts appear which remove this judgment lien from that general rule. The Bank’s recorded certificate of judgment did not impose a lien upon the subject property since it was exempted by the bankruptcy court to the Wielands.

If the parties are in dispute over the facts presented by the various instruments relating to the summary judgment, they do not argue their disagreement. There is no issue as to any material fact. Their controversy is whether, as a matter of law, the summary judgment should have been granted or denied under the undisputed facts. For any of the forgoing principal legal reasons, the trial court correctly rendered the summary judgment against the Bank. We affirm.

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

AFFIRMED.

All the Judges concur.


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    Jerry SHOEMAKER, Director, Alabama Department of Public Safety v. Clifford Lafayette ATCHISON.
    Civ. 2935.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellant.
    L. Scott Atkins, Centreville, for appellee.
   WRIGHT, Presiding Judge.

The Director of the Alabama Department of Public Safety appeals from the issuance of a writ of mandamus which ordered him to vacate the revocation of Mr. Atchison’s driver’s license.

On March 25, 1981, Mr. Atchison was arrested within the police jurisdiction of Centreville, Alabama, and charged with Driving While Intoxicated, a violation of a municipal ordinance. On April 21, 1981, he entered a plea of guilty in the municipal court. Apparently after reviewing the Alabama Rules of the Road Act, the municipal court judge determined that the April 21, 1981 conviction was a “first conviction” under the law and declined to order revocation of Mr. Atchison’s driver’s license. It is undisputed that on August 17, 1977, Mr. At-chison was convicted for Driving While Intoxicated (DWI) within the State of Alabama. Mr. Atchison was notified on June 3, 1981, by the Director of the Department of Public Safety that his license was revoked for a six-month period to begin on June 18,1981. On June 17,1981, Mr. Atchi-son petitioned the Montgomery County Circuit Court for a writ of mandamus to order the Director to vacate the revocation order. The Director appeals from the issuance of the writ.

In determining the propriety of the issuance of the writ, the question presented on appeal is whether the motor vehicle laws of this state providing for the revocation of a driver’s license, preclude the Director from considering DWI convictions occurring prior to August 17, 1980.

The Alabama Rules of the Road Act (Act No. 80-434, Acts of Alabama 1980) became effective on August 17,1980. The provision dealing with the cancellation, suspension or revocation of driver’s licenses was amended, effective May 27,1981. Section 32-5A-195, Code (1975) provides in pertinent part:

(j) The director of public safety shall forthwith revoke the license of any driver upon receiving a record of such driver’s conviction of any of the following offenses:
(2) Upon a first conviction of driving or being in actual physical control of any vehicle while under the influence of alcohol or under the influence of a controlled substance to a degree which renders him incapable of safely driving or under the combined influence of alcohol and a controlled substance to a degree which renders him incapable of safely driving, such revocation shall take place only when ordered by the court rendering such conviction;
(3) Upon a second or subsequent conviction within a five-year period, of driving or being in actual physical control of any vehicle while under the influence of alcohol or under the influence of a controlled substance to a degree which renders him incapable of safely driving or under the combined influence of alcohol and a controlled substance to a degree which renders him incapable of safely driving.
Section 32-5A-12, Code (1975) provides: This chapter shall not have a retroactive effect and shall not apply to any traffic accident, to any cause of action arising out of a traffic accident or judgment arising therefrom, or to any violation of the motor vehicle laws of this state, occurring prior to August 17, 1980.

Mr. Atchison asserts that § 32-5A— 195(j)(3), providing for mandatory revocation for a second conviction within a five-year period, is limited by § 32-5A-12. It is his contention that considering the August 17, 1977 conviction would, in effect, be a retroactive application of § 32-5A-195(j)(3). We cannot agree.

Section 32-5A-191 deals with driving while under the influence of alcohol or controlled substances. The comments, thereto show the legislative intent underlying mandatory revocation for second and subsequent convictions. Prior law made no distinction between first and subsequent convictions. In many instances DWI charges were reduced to lesser offenses to avoid the harsh penalty of revocation for a one-time offender. Consequently, the true problem drinking driver might have an officially clear record insofar as DWI convictions. The comments continue: “[F]or it is thought that once the problem drinking driver is identified by one DWI conviction, then prosecutors and judges will be less willing to be lenient and, it is hoped, more solicitous of the welfare of the public.”

A construction of the new law which in effect “wipes the slate clean” would be in contradiction to the obvious legislative purpose. Such construction would make everyone not previously convicted under the new law a first offender. It is the duty of the court in cases of statutory construction to give effect to the intent of the legislature. Hilyer v. Dixon, 373 So.2d 1123 (Ala.Civ.App.), cert. denied, 373 So.2d 1125 (Ala.1979). We will look not only to the language of the statute, but to its purpose and object as well. McCullough v. State ex rel. Burrell, 352 So.2d 1121 (Ala.1977).

In the case before us, Atchison was prosecuted under the new law for a violation occurring subsequent to its enactment. That the penalty is increased because of a prior conviction occurring before enactment of the statute, is not a retroactive application of it. See Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). In Wilson v. State, 371 So.2d 932, 940 (Ala.Cr.App.1978), aff’d, 371 So.2d 943 (Ala.1979), the court stated: “[I]n order to authorize the infliction of a more severe penalty on conviction for a second or subsequent offense, it is not necessary that the first conviction, or other prior convictions relied on, should have occurred subsequent to the enactment of the statute. [Citation omitted].”

We hold that under § 32-5A-195(j)(3) the Director’s revocation of Mr. Atchison’s driver’s license was mandatory. Mr. Atchison was not entitled to the writ of mandamus awarded by the trial court. We therefore must reverse the judgment to that effect and direct the circuit court to enter judgment denying the petition and dismissing the cause.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


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    LIBERTY LOAN CORPORATION OF GADSDEN, a corporation v. Tommy WILLIAMS and Gayle Williams.
    Civ. 2928.
    Court of Civil Appeals of Alabama.
    Nov. 18, 1981.
    Thomas M. Goggans of Piel, Bright & Goggans, Montgomery, for appellant.
    William S. Mooneyham, Montgomery, for appellees.
   HOLMES, Judge.

The plaintiff sued the defendants for approximately $5,000 allegedly due on a contract. The trial court entered a judgment for defendants. The plaintiff appeals and we affirm.

The trial court in its decree states the case was submitted to the court “on stipulation of attorneys for plaintiff and defendants . . .. ” There is no stipulation contained in the record before this court.

In any event, this court has carefully read the briefs of both counsel. Additionally, we have perused the record. The state of the record is such that this court cannot determine what theory the case was tried on, what proof was offered, or even what facts were heard or considered by the trial court.

This court must look only to the record for the evidence and cannot consider evidence outside the record. Mauldin v. Mauldin, 399 So.2d 858 (Ala.Civ.App.1981), and cases cited therein. Errors, if any, committed below must be affirmatively demonstrated by the record before the Court of Civil Appeals. Summerlin v. Bowden, 353 So.2d 1175 (Ala.Civ.App.1978). If the record does not disclose the facts upon which the alleged error is based, such error may not be considered on appeal. Clevenger v. State, 369 So.2d 563 (Ala.Civ.App.1979).

Since the record before this court does not affirmatively demonstrate the alleged errors, factual or otherwise, the alleged errors cannot be considered.

The case is due to be affirmed.

AFFIRMED.

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


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    O’Dell McGHEE v. Gail McGHEE.
    Civ. 2955.
    Court of Civil Appeals of Alabama.
    Nov. 18, 1981.
    W. E. Garrett, Atmore, for appellant.
    William Prendergast, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a motion to set aside a judgment by default entered in a divorce action.

Plaintiff-wife brought an action for divorce, custody of and support for two minor children, and other relief in Montgomery County, Alabama, on January 27,1981. Defendant-husband was served with summons and complaint by registered mail in At-more, Alabama, on February 14, 1981. Defendant, though securing an attorney, failed to answer. Upon motion and testimony taken before a commissioner, judgment after default was entered by the court on March 28, 1981.

Defendant moved to set aside the judgment on April 15, 1981. As grounds therefor he alleged that his failure to answer the complaint was due to the trickery of plaintiff in leading him to believe that there would be a reconciliation and an abandonment of the action.

Defendant first complains that the trial court was in violation of Rule 40(a), A.R. C.P., in setting and hearing a motion to set aside a deed from defendant to plaintiff.

We respond that Rule 40(a) does not apply to hearing of motions but to setting of a trial on the merits after pleading and discovery. We further comment that the motion referred to was not appropriate as it pertained to a matter not previously before the court. There was no reversible error in the action of the court on that motion. For setting and hearing of motions other than post-trial, look to Rule 6, A.R.C.P.

Defendant further charges abuse of discretion in denial of his motion to set aside the judgment of divorce. We find no abuse of discretion and affirm on authority of Brown v. Brown, 374 So.2d 332 (Ala.Civ.App.), cert. denied, 374 So.2d 334 (Ala.1979).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    CITY OF PRICHARD v. Samuel LASNER and Ethel Lasner, Partners doing business as S & J Realty Company.
    Civ. 2674.
    Court of Civil Appeals of Alabama.
    Dec. 2, 1981.

      Ralph Kennamer, Mobile, for appellant.
    Frank H. Kruse of Marr & Friedlander, Mobile, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The Lasners sought damages for flooding of their rental house which was proximately caused by the City of Prichard’s (Prichard) negligent failure to maintain a drainage ditch.

Only evidence which is pertinent to the issues raised on appeal and which tends to support the verdict of the jury will be summarized. No special pleas were filed on behalf of Prichard. Only two witnesses presented evidence.

Mr. Lasner testified that they purchased the house and lot in Prichard about twenty years ago. Ten feet behind the house was situated a drainage ditch which was about ten feet deep and fifteen feet wide. It existed when they bought the property. Prichard would use a crew of its employees to periodically clean out the ditch, the last such cleaning having occurred in 1975. By 1976, people had commenced using the ditch as a dump, and by 1977 a tremendous amount of junk, consisting of used refrigerators, washing machines, gas stoves and all kinds of debris, had accumulated in the ditch. In 1976, Mr. Lasner called the city clerk’s office and informed them of the problem. He was referred to another department, with whom he discussed the question on approximately six occasions. During each call, he was promised that they would send someone, but none of the debris was removed prior to May 10, 1978.

On April 22, 1977 and May 10, 1978, the house was flooded. He testified to consequent damages which totaled $8,500. Proper claims or notices as to each incident were filed with Prichard, but were not paid.

The house had never been flooded before the 1977 occurrence. When Prichard kept the ditch clear, it did not inundate the property even after similar heavy rains. When Prichard ceased maintaining the ditch, the property was flooded. Without objection from Prichard, Mr. Lasner opined that the ditch would not have overflowed without the debris, which caused the damage, for there was so much debris in the ditch that water would not flow through it.

The ditch originates in Prichard three miles above the Lasner house and it empties into a creek one mile below that property.

The other witness was an engineer of the City of Mobile, who testified that the ditch, known as Toulmin’s Branch, is a drainage canal. It is a natural waterway and was not man-made.

Prichard’s motions for a directed verdict, which were made at the conclusion of the Lasners’ evidence and renewed at the close of all of the testimony, were both denied. The jury’s verdict fixed the Lasners’ damages from Prichard at $8,500. The trial court overruled Prichard’s motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial.

By statute, a city or town may make needful provisions for drainage and may construct and maintain ditches, surface drains and canals. § 11-50-50, Code of Alabama 1975. As long as this power is not exercised, the city is not liable for its failure to use that authority. City of Montgomery v. Stephens, 14 Ala.App. 274, 69 So. 970 (1915). However, a municipality is responsible for damages to a property owner whose property is injured as a proximate result of the construction of such drainage facilities. Fricke v. City of Guntersville, 254 Ala. 370, 48 So.2d 420 (1950).

When undertaking to maintain a system of municipal sewers, the municipality owes a duty of reasonable and ordinary care to avoid injury to persons and property, but there is no absolute liability in that regard. Whitworth v. The Utilities Board of the Town of Blountsville, 382 So.2d 557 (Ala.1980). Such laws concerning sewers and those pertaining to drainage are totally compatible, if not absolutely identical, in this particular area.

If, “as a result of negligence in the construction of the ditch, or in maintaining it, the ditch was insufficient to convey the water discharged therein, and overflowed with resultant injury, it [the city] is liable.” (Citations omitted.) (Emphasis supplied.). City of Montgomery v. Stephens, supra.

The fact that the particular drain may be a natural watercourse rather than an artificial construction does not alter the rule of municipal liability for damage resulting from obstructions, so long as the municipality has adopted the sewer or drain for drainage purposes and assumed control over it. Thus, it has been held that a municipality is liable for damages to adjoining landowners resulting from its negligence in not keeping a drain or sewer free from obstructions, whether the drain or sewer is a natural stream adopted for drainage purposes or an artificial channel. [Footnotes omitted.]

57 Am.Jur.2d, Municipal, etc., Tort Liability, § 215, p. 193.

If Toulmin’s Branch was a natural stream (which could be a jury question), Prichard was under no duty originally to keep it free from obstructions, but, if Prichard subsequently maintained it, the city thereby becomes liable for damages to adjoining property owners if it, thereafter, negligently failed to reasonably keep the branch or ditch reasonably free from obstructions. “One who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith.” City of Prichard v. Kelley, 386 So.2d 403 (Ala.1980).

No objection was voiced by Prichard towards any opinion expressed by Mr. Las-ner. In its brief, Prichard has a bare assertion, without citing any authority nor does it contain any elaboration, that to allow such testimony was an error of the worst sort. Under that posture of the evidentiary question, we are not authorized to determine the matter. With just a mere unadorned statement that a certain ruling of a trial court was invalid, an appellate court will not treat the issue as being adequately raised and argued and will not search for authority which might invalidate the evidence. Culbert v. State, 52 Ala.App. 167, 290 So.2d 235 (1974).

Here, the facts support the finding by the jury of negligence, for reasonable minds might differ as to whether there was negligence or not, thereby making it a question for the jury. Water Works and Sanitary Board v. Norman, 282 Ala. 41, 208 So.2d 788 (1968).

There was adequate evidence from which the jury could have concluded that Prichard had proper statutory notice of the accumulation of the debris. Even if we ignore the undisputed evidence that Mr. Lasner, over a period of several months, made at least seven telephone calls to either the city clerk’s office or to the city department to which he was referred regarding the debris, the further undisputed evidence, that the accumulation of debris had existed for over a year before the first flooding of the house, was adequate to authorize the jury to find and to presume that Prichard’s governing body had constructive knowledge or notice of the defect. City of Prichard v. Kelley, supra; § 11-47-190, Code of Alabama 1975.

Concerning two given written charges requested by the Lasners and a portion of the oral charge of the trial court, Prichard argues that, since there was no evidence that the city changed the course of the waterway, it could not be liable. With proof of prior maintenance of the ditch, of the great accumulation of debris over a long period of time and of all of the other evidence previously summarized, it was not necessary for the Lasners to introduce additional evidence of an alternation of the course of the ditch by Prichard in order to render them liable.

We have studiously contemplated each issue argued by distinguished counsel for Prichard, and, for the foregoing reasons, we find no error presented to us and 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.


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    James McLeod ROWELL v. Patricia M. ROWELL.
    Civ. 2754.
    Court of Civil Appeals of Alabama.
    Dec. 2, 1981.

      Thomas E. Head, III, Elba, for appellant.
    Eugenia L. Loggins of Loggins & Log-gins, Opp, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties and pertinently made a division of property and an award of alimony in gross. The husband appeals contending the trial court abused its discretion in the division of property and award of alimony in gross.

We find no abuse of discretion requiring reversal and affirm.

Viewing the record with the attendant presumption accorded the trial court’s decree the following is revealed:

The parties were married in 1965. One child, age thirteen, was born of the marriage. The husband worked as a civilian aircraft mechanic for thirteen years at Fort Rucker. In 1976, the husband left his place of employment to open a Sears dealership with his wife. The wife has a high school education. During most of the marriage she did not work outside the home. In 1976, the wife began operating the Sears store.

The parties owned a seven acre plot of land on which they built a house and several buildings incident to farming operations. The house is valued at approximately $45,-000, exclusive of some of the seven acres upon which it is situated. A mortgage of more than $3,000 is still outstanding on this property.

During the marriage the parties acquired more than 240 acres of land on which the husband farms. The deeds indicate this farm land was bought at different times over the past eight years for a total purchase price of approximately $104,000. No appraisal reflecting the current market value of this property was offered as evidence. The wife indicated the farm property is encumbered with three mortgages totaling more than $120,000.

In addition to the real property, house and farm structures, the couple owned livestock worth approximately $13,000. They also owned farm equipment with an estimated value of $28,000. The parties also had several personal automobiles and bank accounts containing a small amount of funds. Additional debts incurred during the marriage amounted to less than $15,000.

Finally, as indicated earlier, the parties owned a Sears store which the wife operated. The store produces a net income of approximately $18,000.

There is evidence that the husband was at fault in contributing to the marital breakdown. He admitted an adulterous affair and physically assaulted his wife.

With the above facts before him, the learned trial judge divorced the parties and awarded custody of the minor child to the wife. The court ordered the father to pay child support and granted him reasonable visitation privileges. The wife was awarded her car, and the husband received all farm equipment.

The trial court retained jurisdiction for final judgment regarding the division of the parties’ other property. Two months after the divorce decree, the trial court heard further testimony and divided the remainder of the property.

The wife was awarded the house and the seven acres around the house. All household furnishings were awarded to the wife. The wife was awarded the Sears store and alimony in gross in the amount of $15,000.

The husband was awarded all other real property, to wit, approximately 240 acres of farmland. The husband was ordered to make all mortgage payments on the real estate, including the seven acres awarded the wife.

On appeal, the husband contends the trial court abused its discretion by making an excessive division of property and/or alimony in gross in favor of the wife.

We note at the outset that the award of alimony and the division of property of the parties lie within the sound judicial discretion of the trial court, which is reviewable only for abuse thereof. Wade v. Wade, 402 So.2d 1009 (Ala.Civ.App.1981). The division of property need not be equal, but must be equitable according to the circumstances of the case. Weaver v. Weaver, 394 So.2d 378 (Ala.Civ.App.1980), cert. denied, 394 So.2d 380 (Ala.1981). The award of alimony may be based on considerations of the future prospects of the parties, their ages, sex, health, station in life, the length of the marriage and the fault of the parties causing the divorce. Hansen v. Hansen, 401 So.2d 105 (Ala.Civ.App.1981).

We cannot find on the facts of the instant case the trial court abused its discretion in the award of property to the wife. The husband’s adultery and physical abuse of the wife were factors contributing to the divorce. This was a marriage of relatively long duration. The wife did not receive an award of periodic alimony.

The husband, through able counsel, contends that, since the farm is heavily mortgaged, the award of both the Sears store and $15,000 to the wife is excessive. We disagree. The husband is a skilled mechanic who could seek employment to supplement his farm income. The award of the Sears store to the wife provides her with a means of employment. Additionally, we note that the $15,000 award of alimony in gross is a payment in lieu of marital rights in the estate of the husband which she aided him in accumulating during the fifteen year marriage. See Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979), a case strikingly similar to the instant action.

The wife is awarded an attorney’s fee of $500 for representation on appeal.

AFFIRMED.

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