author: WRIGHT, Presiding Judge.

text:
    Buford J. BRYANT v. Elsie Cagle BRYANT.
    Civ. 2478.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 13, 1981.

      Jesse P. Evans, III, of Smyer, White, Taylor, Evans & Sanders, Birmingham, for appellant.
    Charles J. Najjar and J. Gary Pate, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals.

The primary issue is whether the trial court abused its discretion in its division of property or awards of alimony and attorney’s fees to the wife. In considering this issue, we view the judgment of the trial court with a presumption of correctness and will reverse only if it is so unsupported by the evidence as to be arbitrary, unjust and a palpable abuse of discretion. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App. 1978). We find no such abuse and affirm.

The factors to be considered in making division of property and alimony awards are well-established and require no restating here. See, Goodwin v. Goodwin, 364 So.2d 678 (Ala.Civ.App.1978). We briefly relate the facts pertinent to the trial court’s findings.

The parties were divorced in May 1980 after forty-two years of marriage. The husband is a successful sixty-year-old businessman, much of whose substantial assets and yearly income are directly attributable to his position as sole owner of Bryant General Tire, Inc. in Birmingham and as majority shareholder of Bryant General Tire of North Alabama in Huntsville. There is conflicting evidence as to the net worth of the parties. It is at least $540,000 and, as shown on a financial statement completed some eighteen months before the divorce, may be as much as $760,000. The reported income of the husband for the year prior to the divorce was in excess of $50,-000. It is apparent that he derives other substantial monetary benefits as chief executive officer of the two firms. These businesses have operated successfully for a number of years and continue to prosper. The husband’s health is good, his ability to earn is great and he can expect continued financial prosperity.

The wife, a fifty-eight-year-old woman, has spent virtually the entire marriage as a housewife. She has a ninth-grade education, no proven marketable skills and worked only briefly during World War II. She raised the couple’s three children to adulthood and has been a faithful wife and good mother. Her health is not good as she suffers from diabetes, back problems and emotional stress. She has no independent means of producing the income necessary to maintain her standard of living.

After a lengthy ore tenas hearing, the trial court divorced the parties on the ground of incompatibility and found the husband “guilty of many acts of gross misconduct which, in the opinion of the court, directly caused the conflicts, marital problems and eventual breakdown of the marriage.” The wife received assets valued in excess of $300,000 from the division of property and alimony in gross award, the major part of which is the parties’ residence and a lake cottage. She further was awarded $1,500 per month periodic alimony. The husband was ordered to assume the debts of the marriage. The wife was granted $15,-000 in attorney’s fees for her representation at trial. The husband retained the stock in the two corporations which has generated income and related benefits substantially more than $50,000 per year. He also retained other valuable assets.

We perceive no benefit in further relation of the evidence presented. We have carefully considered the record, briefs and oral argument. We find no error in the division of the property of the parties nor in the awards of alimony and attorney fees. The judgment is supported by the evidence and does not constitute an abuse of the discretion of the trial judge. See, Cooper v. Cooper, 382 So.2d 569 (Ala.Civ.App.1980); Patterson v. Patterson, 372 So.2d 329 (Ala.Civ.App.), cert. denied, 372 So.2d 330 (Ala.1979); Smith v. Smith, 369 So.2d 1235 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1239 (Ala.1979).

We find the contention that the trial court erred in allowing a certified public accountant and business executive to testify regarding appellant’s financial status to be without merit. No objection was made as to this witness’s qualifications as an expert. An objection that his testimony was based on insufficient knowledge or erroneous facts would go to the weight of the evidence rather than its admissibility. Dyer v. Traeger, 357 So.2d 328 (Ala.1978).

Appellant’s final assertion of error, in the court’s requiring him to assume the debts of the marriage, is likewise without merit. There was no abuse of discretion in that regard. See, Goodman v. Goodman, 366 So.2d 281 (Ala.Civ.App.1979).

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex Parte Buford J. BRYANT. (Re: Buford J. Bryant v. Elsie Cagle Bryant).
    80-582.
    Supreme Court of Alabama.
    July 17, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: BRADLEY, Judge.

text:
    Ann W. HEATH v. ALABAMA STATE TENURE COMMISSION.
    Civ. 2536.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 13, 1981.

      Donald V. Watkins of Watkins, Carter & Daniel, Montgomery, for appellant.
    Barry N. McCrary, Talladega, for appel-lee.
   BRADLEY, Judge.

This is a teacher tenure case.

Ann W. Heath was employed as a teacher by the Talladega City Board of Education in 1975. In April 1979 she was a math teacher at the Talladega Middle School. On the tenth day of that month, Sebron Harmon, a guidance counselor and, allegedly, assistant principal for the school, had students from Mrs. Heath’s homeroom summoned to the school lunchroom by means of an intercom in an attempt to determine which of them were responsible for littering the floor of the cafeteria with food.

Upon hearing this summons over the intercom, Mrs. Heath temporarily left her sixth period math class and returned to the lunchroom. Several teachers who were present in the lunchroom at the time Mrs. Heath returned to the cafeteria testified that she entered the lunchroom through an exit door asking Harmon in a loud, angry voice why he called her homeroom back to the cafeteria. Mrs. Heath then exclaimed that Mr. Harmon had humiliated and embarrassed her. Mr. Harmon proceeded to inform Mrs. Heath that he would handle the problem of determining which of her students, if any, should be disciplined for their lunchroom behavior and that she should return to her sixth period class. Mrs. Heath, however, refused to return to her math class until she had finished questioning the propriety of disciplining her students and had told them that, contrary to Mr. Harmon’s instructions, they could return to their classes without cleaning up any food which they had spilled onto the cafeteria floor. Mrs. Heath testified that Mr. Harmon, not she, told her homeroom students that they did not have to clean up any portion of the lunchroom and could return to their classes. She denied that she had unnecessarily raised her voice while speaking with Mr. Harmon or that she had become angry with him during the course of their conversation in the lunchroom.

That same day Mr. Harmon notified the superintendent of the Talladega City School System, Mr. Pearino Gaither, of Mrs. Heath’s behavior in the lunchroom. After conducting his own investigation of the April 10 incident, Mr. Gaither informed Mrs. Heath, in writing, that the Talladega City Board of Education (hereinafter referred to as the Board) would meet in executive session on the evening of April 19, 1979 for the purpose of determining her “involvement in a controversy with Mr. Se-bron Harmon on Tuesday, April 10, 1979.” She was “requested” to and did attend this meeting. However, the Board first heard, in Mrs. Heath’s absence, the testimony of three teachers concerning the extent of her participation in the April 10 incident. Mrs. Heath was not afforded the opportunity to cross-examine these witnesses but was permitted, in their absence, to present her version of her April 10 argument with Mr. Harmon to the Board. No minutes or other written memorial of the April 19 meeting was taken nor was Mrs. Heath informed that she had violated any specific rule or policy of the Board for which she might be terminated as a teacher in the Talladega City School System. No further action with regard to the above incident was taken until May 22, 1979 when Superintendent Gaither recommended to the Board that Mrs. Heath’s employment contract with the city school system be cancelled on the ground of insubordination. That same day the Board adopted the following resolution:

Resolved, that cause exists for the cancellation of the employment contract of Mrs. Ann W. Heath; that written notice to Mrs. Heath should be given by the Board through its Secretary informing her of the proposed cancellation of her employment contract on account of insubordination regarding her conduct with Mr. Sebron Harmon on Tuesday, April 10, 1979; that the said notice should name June 19, 1979, at 5:00 o’clock P.M., at Graham Elementary School Library, 403 Cedar Street, Talladega, Alabama, as the exact time and place at which Mrs. Heath may appear before the Board to answer said notice; and that said written notice should be served upon Mrs. Heath by United States registered mail with postage prepaid thereon to Mrs. Heath’s last known address or addresses.

Pursuant to this resolution, Mr. Gaither, by a letter dated May 24, 1979, notified Mrs. Heath, in accordance with § 16-24-9 of the 1975 Code of Alabama, that the Board would meet again on June 19, 1979, to consider the cancellation of her employment contract on the ground of insubordination with regard to the orders of Mr. Harmon. This meeting was later continued to June 25, 1979, at which time Mrs. Heath appeared before the Board to contest the cancellation of her contract for insubordination. After receiving evidence and oral testimony on behalf of the city school system and Mrs. Heath, the Board, on June 27, 1979, cancelled Mrs. Heath’s employment contract with the Talladega City School System. Mrs. Heath appealed the Board’s decision to the Alabama State Tenure Commission. The Commission sustained the Board’s decision, finding that “the action of the Board was in compliance with the Teacher Tenure Law and was neither arbitrarily unjust nor for political or personal reasons.” Mrs. Heath thereafter filed a petition for writ of mandamus in accordance with § 16-24-38 of the Code with the Circuit Court of Talladega County requesting that court to vacate the Tenure Commission’s decision on the grounds that it was arbitrary, unjust and did not comply with the provisions of Chapter 24, Title 16 of the Code in that:

a. The Talladega City School Board unlawfully canceled the contract of petitioner Heath, for “insubordination” because she allegedly refused to follow a request given her by a fellow teacher;
b. Said School Board unlawfully canceled the contract of petitioner without the written recommendation of the Superintendent of Education for the Tal-ladega City School System; and
c. Said School Board unlawfully subjected petitioner to two board hearings to consider the same conduct which gave rise to her dismissal.

The circuit court upheld the decision of the Commission and Mrs. Heath has perfected a timely appeal of this judgment to this court. The issues raised in the circuit court by Mrs. Heath are the same issues argued in her brief here. We will consider them seriatim.

Section 16-24-8 of the 1975 Code of Alabama authorizes a tenured teacher’s contract of employment with a school system to be cancelled upon proof of insubordination.

The willful refusal of a teacher to obey an order given to him or her by a school principal is deemed to be insubordination. See generally Lewis v. Board of School Commissioners of Mobile County, 419 F.Supp. 476 (S.D.Ala.1976). Insubordination has also been defined as the refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed so long as such order is reasonably related to the duties of the employee. Forstner v. City & County of San Francisco, 243 Cal.App.2d 625, 52 Cal.Rptr. 621 (1966); Shockley v. Board of Education Laurel Special School District, 51 Del. 546, 149 A.2d 331, rev’d on other grounds, 52 Del. 237, 155 A.2d 323 (1959). “Insubordinate” is defined in Webster’s Seventh New Collegiate Dictionary (1969), as “unwilling to submit to authority.”

As noted above, the Board of Education found that Mrs. Heath was insubordinate and cancelled her employment contract. The Tenure Commission found that such order was not arbitrarily unjust. We are not authorized to reverse the Tenure Commission’s order unless we find that the preponderance and overwhelming weight of the evidence is contrary to the Commission’s decision. Sumter County Board of Education v. Alabama State Tenure Commission, Ala., 352 So.2d 1137 (1977). We do not so find.

Although the evidence clearly shows that Mr. Harmon was never officially designated an assistant principal by the Talladega City Board of Education, the preponderance of the evidence shows that he was acting as the assistant principal and was the person in charge of student behavior in the lunchroom on the occasion in question.

Article five, section two of the By-laws and Policies of the Talladega City Board of Education permits a school principal to assign certain of his administrative duties, such as supervising student behavior in a school lunchroom, to an agent, such as a teacher. Although the principal of the Tal-ladega Middle School, Mr. Troy Griffin, never expressly informed any teacher in the school that he was delegating all or a portion of his responsibility for ensuring orderly student behavior in the school’s cafeteria to Mr. Harmon, Harmon and two teachers testified that Mr. Harmon regularly supervised the behavior of the school’s eighth grade students in the school lunchroom and that it was understood by the school personnel that Mr. Harmon was the person in charge. This evidence sufficiently shows that Mr. Griffin did in fact delegate at least part of his responsibility for supervising the behavior of students in the school’s cafeteria to his agent, Mr. Harmon. See generally Perry v. Meredith, Ala.Civ.App., 381 So.2d 649 (1980). (“Although the burden of proving agency rests on the party asserting it, such a relationship may arise from facts and appearances which lead others to believe that such a relationship has been created.”) Furthermore, the evidence reflects that it was generally understood that Mr. Harmon was acting as the assistant principal and was in charge of the school in the absence of the principal.

Thus, we consider the evidence sufficient to show that on April 10, 1979 Mr. Harmon was in charge of monitoring student behavior in the Talladega Middle School lunchroom when Mrs. Heath directly challenged his supervisory authority over the lunchroom behavior of her homeroom students by instructing them to return to their classes. See 2A C.J.S. Agency § 143 (1972). And, Mrs. Heath’s refusal to obey Mr. Harmon’s directives on the occasion in question amounted to insubordination for which her teaching contract could be justifiably cancelled. See generally Lewis v. Board of School Commissioners of Mobile County, supra.

Next Mrs. Heath urges this court to hold that §§ 16-11-17 and 16-12-16 of the 1975 Code of Alabama mandate that, as a matter of law, a tenured teacher’s contract of employment with a city school board cannot be terminated unless the city school superintendent first recommends in writing to the board that the contract be cancelled.

The primary purpose of §§ 16-11-17 and 16-12-16 is to ensure that the city board of education and its superintendent act in concert in deciding whether to cancel a teacher’s contract of employment. See Vodantis v. Birmingham Board of Education, Ala., 373 So.2d 320 (1979). It is made clear that the Board cannot terminate the contract of a tenured teacher without the recommendation of the superintendent and neither can the superintendent discharge a teacher without the affirmative act of the Board.

In the case at bar the minutes of the City Board of Education reflect that the superintendent, after an investigation of the incident in question, recommended that Mrs. Heath’s contract of employment be can-celled. The Board, acting on that recommendation, held a hearing for the purpose of determining whether Mrs. Heath’s employment should be terminated. After the hearing, Mrs. Health’s contract was can-celled.

Although the superintendent did not write a letter to the Board recommending cancellation of Mrs. Heath’s contract, he did dictate into the minutes or orally inform the secretary and two members of the Board of his recommendation. We consider the form of the recommendation made by the superintendent not to be violative of the Code sections in question. There is no question that the purpose of the Code sections has been met; the Board and the superintendent acted in concert to cancel Mrs. Heath’s employment contract. No error here.

The final issue concerns Mrs. Heath’s contention that the Board’s June 25, 1979 meeting violated (1) the double jeopardy clause of the fifth amendment to the United States Constitution, or (2) the principle of res judicata since the Board had determined on April 19, 1979 that Mrs. Heath had not committed an act of insubordination on April 10, 1979. Mrs. Heath is saying, as we understand her argument, that the Board’s April 19,1979 investigative session to determine the extent of her involvement in the April 10 incident placed her in jeopardy of losing her job, that the Board’s subsequent inaction was tantamount to a finding that she was not guilty of insubordination, and that the Board’s June 25,1979 cancellation hearing placed her in jeopardy for a second time of losing her job. We find no merit in this contention.

The fifth amendment’s prohibition against double jeopardy “applies only to criminal proceedings.” Bridges v. Wixon, 144 F.2d 927 (9th Cir. 1944), rev’d on other grounds, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). The proceedings of the Talladega City Board of Education culminating in the cancellation of Mrs. Heath’s contract with the city school system were not criminal in character. Moreover, the Board made no final determination on April 19, 1979 that Mrs. Heath was or was not guilty of insubordination in refusing to obey Mr. Harmon’s order to return to her sixth period class and in telling her students that they could return to their classes without cleaning up at least part of the school lunchroom. In the absence of such a determination, the Board’s June 27,1979 decision to cancel Mrs. Heath’s contract with the city school system was not barred by the principle of res judicata. See Chicago, Rock Island & Pacific Ry. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757 (1926); United States v. Linetsky, 533 F.2d 192 (5th Cir. 1976); see also State v. Brooks, 255 Ala. 689, 53 So.2d 329 (1951). It follows that the Board’s June 25, 1979 hearing to consider the cancellation of Mrs. Heath’s contract and its subsequent cancellation were not barred by the fifth amendment’s prohibition against double jeopardy or by the principle of res judicata.

The judgment of the circuit court is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte Ann W. HEATH. (re: Ann W. HEATH v. ALABAMA STATE TENURE COMMISSION).
    80-578.
    Supreme Court of Alabama.
    July 24, 1981.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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


text:
    Raymond HUGHES v. Madge J. HUGHES.
    Civ. 2538-X.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 27, 1981.
    Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    Joe S. Pittman of Pittman, Whittaker & Hooks, Enterprise, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This present controversy concerns an appeal supersedeas bond as to alimony in gross, where the appeal was previously affirmed.

To provide consistency in the description or designation of the parties in each of their appeals, we shall again refer to Mr. Hughes as the husband and to Mrs. Hughes as the wife although their marriage has ceased.

These parties have been in litigation almost continuously since December, 1974, when the wife filed her divorce complaint. On April 27, 1977, the trial court overruled the husband’s motion for a new trial, withdrew its original divorce judgment of October 6, 1976, and rendered a second judgment, which, among other matters contained the following award of alimony in gross to the wife:

That as an award to the plaintiff wife of alimony in gross payable in installments based on the value of the plaintiff’s inchoate rights in her husband’s estate, the sum of $100,000 is fixed and awarded to the plaintiff from the defendant. The sum is payable in yearly payments of $10,000 until paid, with each annual payment made by defendant before the fifteenth day of February of each year, or in equal monthly payments of $833.33 for ten years beginning immediately.

The husband gave notice of appeal and sought a stay of portions of the judgment and a supersedeas bond. After an eviden-tiary hearing, the trial court on August 10, 1977, ordered that the final judgment be stayed pending the appeal conditioned upon the husband executing a supersedeas bond in the amount of $15,000. By that same order, the wife was awarded as pendente Hte alimony the sum of $500 per month pending the appeal, and the judgment expressly provided, “That all sums paid pending appeal shall not be a credit toward any sums fixed as alimony or support in the final judgment appealed.” The husband duly filed his supersedeas bond. This court affirmed the amended divorce judgment and overruled his application for a rehearing. Hughes v. Hughes, Ala.Civ.App., 362 So.2d 910 (1978). The Supreme Court of Alabama quashed its writ of certiorari to this court as being improvidently granted. Ex parte Hughes, Ala., 362 So.2d 918 (1978). The husband then appealed to the Supreme Court of the United States, who remanded the case for further constitutional considerations. Hughes v. Hughes, 441 U.S. 901, 99 S.Ct. 1986, 60 L.Ed.2d 370 (1979). The Supreme Court of Alabama remanded the case to this court. Ex parte Hughes, Ala., 372 So.2d 845 (1979). In 1979 in Hughes v. Hughes, Ala.Civ.App., 372 So.2d 845, this court constitutionally affirmed the validity of said alimony in gross award to the wife. The husband once more sought certiorari and the writ was denied. Ex parte Hughes, Ala., 372 So.2d 846 (1979). For the second time, he appealed to the Supreme Court of the United States, which appeal was dismissed on February 19, 1980. Hughes v. Hughes, 444 U.S. 1061, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). The final certificate of affirmance was issued by the clerk of this court on May 22, 1980, before which time a disagreement of the parties had already surfaced as to what was owed by the husband to the wife.

Proceedings were had in the circuit court regarding the ten percent affirmance penalty and interest; whether the husband was entitled to a credit upon the alimony in gross for payments of pendente lite alimony while the case was on appeal; the amount, if any, then due to be paid in a lump sum as having accrued as alimony in gross payments which were superseded; the time alimony in gross payments were due to commence; whether a lien upon his General Motors stock to secure the payment of alimony should be eliminated and other matters not now in issue. From a decision of the trial court, the husband appealed and the wife has cross-appealed. Since the issues in each are so entwined and interrelated we shall consider the appeal and cross-appeal jointly.

ACCRUED ALIMONY IN GROSS

The trial court’s judgment as entered on April 27,1977, was finally certified as being affirmed on May 22, 1980. As of May 22, 1980, the wife became entitled to the fruits of the judgment dated April 22, 1977, relative to accrued alimony in gross during that interim of time. It amounted to $30,000, with $10,000 being due on February 15 of each of the years 1978, 1979 and 1980.

To hold that the judgment, when affirmed, did not require any payments to commence upon the alimony in gross until the date of the certificate of affirmance would totally ignore the purpose of the supersedeas bond which was executed by the husband. Such a decision would be equivalent to holding that, while the bond stayed execution upon the installments as they fall due, nothing accrued on the judgment, neither alimony installments, penalty nor interest, since the installments under such a contention would not commence until after the case had been affirmed on appeal. If the husband’s contention in that regard were accepted, no workmen’s compensation would accumulate during an appeal where the employer superseded the payment thereof. As another example of the results so argued, no monthly mortgage payments would accumulate pending an appeal where supersedeas was filed in a case where the validity of the mortgage was upheld by the trial and appellate courts. We deem the law to be contra to the husband’s contentions.

Section 12-22-75 of the Code of Alabama of 1975 is dispositive of that issue, wherein it is stated:

When an appeal shall be prosecuted from a judgment to the appropriate appellate court and such appeal is dismissed or the judgment is affirmed, upon a certificate of judgment of the appellate court being filed in the office of the clerk of the court from which the case was originally appealed, execution may issue and other proceedings be had thereon in all respects as if no appeal had been prosecuted.

Under that statute, the judgment of April 22, 1977, may now be enforced in all respects as if none of the husband’s many appeals had been perfected. A supersedeas bond does not alter or affect the terms of a judgment in any way, but it merely stays execution on that judgment. Thus, the three yearly installments totaling $30,000 are due and payable.

CREDIT ON ALIMONY IN GROSS FOR TEMPORARY ALIMONY PAID PENDING THE APPEALS

We now turn to the issue of whether the husband should receive a credit upon the accrued alimony for temporary alimony payments to the wife under the trial court’s judgment of August 10, 1977.

A trial court has authority to grant temporary alimony pending an appeal. Segare v. Segare, Ala.Civ.App., 333 So.2d 155 (1976). Segare was also a case where only alimony in gross was awarded and the husband was ordered to pay temporary alimony pending the appeal.

Here, the alimony pending the appeal was set by the trial court at $500 per month, and, admittedly, it was paid until March, 1980, when the permanent monthly payments of $833 per month upon the alimony in gross were commenced. As previously indicated, the trial court’s order expressly prohibited a credit upon alimony in gross for any of the temporary alimony payments. That portion of the order was not discussed in, and was not disturbed by, any of the opinions of any court in any of the multiple appeals of this case.

While no Alabama decision is in point, most cases in other states provide that a credit upon permanent alimony should be allowed for such temporary alimony payments pending an appeal if the case is affirmed as to alimony. 86 A.L.R.2d 696. However, we are barred from deciding whether that majority rule is the rule in this state because, in argument before the trial court at the hearing therein concerning this question, learned, diligent and earnest counsel for the husband expressly stated that they were not seeking a credit upon permanent alimony for such amounts paid as pendente lite alimony. That constituted a waiver of such credit. Accordingly, the matter of the credit was not mentioned in any judgment or order of the circuit court. While the husband, by amendment to his motion for a new trial, did request allowance of those credits, that issue in controversy had been effectively waived at the trial. Considering the circumstances of this case in the greatest light favorable to the husband, at most, the overruling of his motion for a new trial on that ground rested within the sound discretion of the trial court and its ruling is presumed to be correct subject to the palpable abuse rule. Hill v. Cherry, Ala., 379 So.2d 590 (1980). The husband cannot place the trial court in error for overruling his motion for a new trial when, at the trial itself, it was clearly stated to that court that a credit for the temporary alimony paid by him was not being sought.

PENALTY AND INTEREST

To said accumulated alimony in gross of $30,000 will be added the ten percent penalty ($3,000) imposed by section 12-22-72 of the Code of Alabama of 1975. Hughes v. Hughes, Ala.Civ.App., 362 So.2d 910, 917 (1978). In a workmen’s compensation case where a supersedeas bond was filed by the employer it was held that “The 10% damages have been assessed against the defendant-petitioner and the surety on all payments which have accrued up to the time of affirmance.” (Emphasis supplied.) Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 351, 96 So.2d 278, 285 (1957).

Additionally, simple interest to the date that payment occurs will be computed at the rate of six percent per year on $10,000 from February 15, 1978, on $10,000 from February 15, 1979, and on $10,000 from February 15,1980. § 8-8-1 and 10, Code of Ala. of 1975.

The total of those three items, the $30,000 accumulated alimony in gross, the $3,000 as the 10% penalty and such interest would constitute the amount due under the present issues. The husband, of course, is further required to make the remaining sums, totaling $70,000, due after February 15, 1980, either monthly or annually as required by the judgment of the circuit court of April 22, 1977.

LIENS AND GENERAL MOTORS AS A PARTY

The husband further contends that the liens should be removed, which liens were imposed upon certain of his assets by virtue of the trial court’s judgment of April 27, 1977, and that General Motors should be dismissed as a party. The circuit court denied that latest request. Parts of this issue were expressly raised, discussed and decided adversely to him in his first appeal to this court. Hughes v. Hughes, Ala.Civ. App., 362 So.2d 910 (1978). Nevertheless, we do not find an abuse of discretion in failing to remove such liens, for, if they were initially needed, such necessity is still existent since none of the $100,000 alimony in gross awarded to the wife in 1977 had been paid to her by the husband as of March 1, 1980.

CONCLUSION

The judgment of the trial court is reversed and this case is remanded to the circuit court where a judgment shall be there rendered consistent herewith. The husband is taxed with the costs of his appeal and also with the costs of the cross-appeal of the wife.

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 this court.

REVERSED AND REMANDED.

All the Judges concur.


author: ADAMS, Justice.

text:
    Ex parte Raymond HUGHES. (Re: Raymond HUGHES v. Madge J. HUGHES).
    80-647.
    Supreme Court of Alabama.
    July 17, 1981.
   ADAMS, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Mary Elizabeth WEAVER v. Harry Alton WEAVER.
    Civ. 2579.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 13, 1981.
    Robert B. Huie, Birmingham, for appellant.
    G. W. Nicholson, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

The parties were divorced in February 1977 after twenty years of marriage. The decree awarded custody of the couple’s four minor children to the wife and directed the husband to pay $500 per month child support. In July 1980 the wife filed for a Rule Nisi, alleging that the husband owed $2,100 in accrued but unpaid child support since October 1978.

The answers to requests for admissions disclose that in October 1978, the parents agreed that the oldest child leave the home of the mother and reside with her father. The other children remained with the mother. At that time, the father unilaterally reduced his payments of support to $400 per month. The child who went to live with her father reached the age of nineteen years on February 1, 1980. The mother’s claimed arrearage of support was for $100 per month from October 1978 to the filing of the petition for Rule Nisi in July 1980.

With only these facts before it, the trial court found that the defendant was in arrears in the payment of child support because he had reduced the amount ordered without benefit of court modification; that the defendant is entitled to credit for the amounts expended for the support of the child who resided with him; and that the credits to which he is entitled are at least equal to the amount of the arrearage, thus no arrearage is owed. The petition for Rule Nisi was denied. Plaintiff-wife appealed. We reverse.

Claims of arrearage of ordered child support may be allowed off-set by credit for amounts expended by the obligated parent when such parent actually furnishes support for a child while in his custody or the custody of another. Keller v. Keller, 370 So.2d 306 (Ala.Civ.App.), cert. denied, 370 So.2d 308 (Ala.1979); Nabors v. Nabors, 354 So.2d 277 (Ala.Civ.App.1978).

It would not have been error if the trial court had credited the $100 per month withheld by the father from the ordered amount of child support from October 1978 until February 1,1980, if there was evidence that he had actually supported the child in that amount or more. However, there is no testimony that the father supported her in any amount during such time. The fact that she resided with him is insufficient. She may have been self-supporting.

In any event, there is no authority for the court to credit the father with any support furnished her after she reached majority. He had no legal obligation to do so. Therefore he had no legal excuse to claim credits against the ordered amount. Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977). The trial court correctly held that there was an arrearage due under the support order even though the father assumed custody and support because there had been no modification of the original decree by the court. Roberts v. Roberts, 357 So.2d 150 (Ala.Civ.App.1977), writ quashed, 357 So.2d 154 (Ala.1978). The order did provide for a reduction in the event of future change of events, such as one of the children attaining majority. The attaining of majority by the child did not modify the obligation of support any more than the change of custody. Such events only provided cause for seeking modification.

The judgment below must be reversed and the cause remanded for further proceedings not contrary hereto.

The requested award of attorney’s fee is denied on authority of § 30-2-54, Code of Alabama (1975); Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978).

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte Harry Alton WEAVER. (Re Mary Elizabeth Weaver v. Harry Alton Weaver).
    80-585.
    Supreme Court of Alabama.
    July 24, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge.

text:
    Delores "Dee" PESEAU v. CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama.
    Civ. 2612-X.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied May 6, 1981.
    Jack Drake of Drake & Pierce, University, for appellant.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee.
   HOLMES, Judge.

The appellant, Dee Peseau, is seeking to recover back pay for wrongful dismissal and demotion.

Peseau, formerly an employee of Tuscaloosa County, appeals from a partial award of back pay granted her by the Tuscaloosa County Circuit Court. Peseau argues on appeal that the circuit court erred in its determination of the amount of back pay to which she is entitled. The civil service board (hereinafter “the board”), through able and distinguished counsel, cross-appeals, arguing that the circuit court erred in awarding transcript costs and an attorney’s fee to Peseau. We affirm in part and reverse and remand in part.

This is the second appeal by Peseau to this court. Peseau’s original appeal was decided in Peseau v. Civil Ser. Bd. of Tuscaloosa County, Ala.Civ.App., 385 So.2d 1310, cert. denied, Ala., 385 So.2d 1316 (1980) (hereinafter “Peseau I”). Interested parties may refer to Peseau I for a detailed recitation of the facts. We do not deem it necessary to restate these facts.

However, the following facts are pertinent to this appeal: Peseau was a civil service employee of Tuscaloosa County. She was wrongfully dismissed from her position as chief clerk in the Tuscaloosa County Probate office.

Peseau appealed her dismissal to the board pursuant to Act 357, Acts of Alabama, Regular Session 1949. The board did not sustain plaintiff’s dismissal, but did order her demoted from chief clerk to clerk. Peseau did not accept the demoted position. Instead, she appealed the board’s order to the circuit court, as provided by the Act. The circuit court affirmed the board’s action.

Peseau then appealed to this court in accordance with Act 357. In Peseau I, we held that Peseau was not only wrongfully dismissed, but was also wrongfully demoted. We reversed and remanded to the circuit court for proceedings not inconsistent with our opinion.

On remand, the circuit court ordered, inter alia, the board to pay Peseau (1) the full chief clerk’s salary from the date of her dismissal until the date of her demotion, (2) the difference between the chief clerk’s salary and the salary Peseau would have made in the demoted position from the date of her demotion until September 19, 1980, (3) the cost of preparing the transcript of the board’s proceedings, and (4) an attorney’s fee.

Peseau appealed from the circuit judge’s order. She raises one issue on appeal: whether the circuit court erred in its determination of the amount of back pay to which Peseau is entitled.

The board raises two issues on cross-appeal: (1) whether the circuit court erred in awarding Peseau the cost of the transcript of the board’s proceedings; and (2) whether the circuit court erred in awarding Peseau an attorney’s fee.

I

As stated above, the sole issue raised by Peseau is whether the circuit court erred in its determination of the amount of back pay to which Peseau is entitled. Peseau contends on appeal that the court erred in deducting the salary she would have made in the demoted position from the chief clerk’s salary for the period from her demotion until September 19. Put another way, Peseau argues that she is entitled to the full amount she would have earned as chief clerk had she not been dismissed or demoted.

A civil service employee is entitled to his salary as an incident of his employment. When such an employee is wrongfully dismissed from his employment, he is entitled to recover full back pay without any deduction of compensation earned from other pursuits. City of Mobile v. Mitchell, 294 Ala. 474, 318 So.2d 708 (1975). In other words, the doctrine of mitigation of damages does not apply to back pay claims of civil service employees. City of Mobile, supra.

In the instant case, Peseau was a civil service employee pursuant to Act 357. She held her job as chief clerk as a matter of law. She was wrongfully prevented from working as chief clerk, first, by wrongful termination and, second, by wrongful demotion.

As stated above, the doctrine of mitigation of damages does not apply to back pay claims of civil service employees. Put another way, a wrongfully dismissed employee cannot be required to mitigate his damages by securing employment elsewhere. By the same “token” and logic, a wrongfully demoted employee cannot be required to mitigate his damages by accepting the demoted position. See, City of Mobile, supra.

In the instant case Peseau did not accept the demoted position. She was not required to do so. Therefore, the deduction of the amount she would have earned had she accepted the demoted position was improper.

We note that had Peseau, a public employee, accepted the demoted position, then possibly an entirely different issue might be before this court. However, the facts of this case do not require this court to address that question and we therefore refrain from doing so.

With the above in mind, we hold that Peseau is entitled to receive as back pay the full amount she would have earned as chief clerk had she not been dismissed or demoted. We therefore reverse the learned trial judge on this ground.

II

On cross-appeal the board argues that the circuit court erred in awarding Peseau the cost of producing the transcript of the board’s hearing.

The pertinent statute in this case, Act 357, does not provide for the taxing of costs. Therefore, we must look elsewhere for guidance in this matter.

Rule 81(a)(32) of the Alabama Rules of Civil Procedure provides that “these rules shall be applicable to the extent that the practice is not provided by statute: [in] . . . [a]ll . . . actions or proceedings removed, appealed, taken by certiorari or otherwise brought into the courts enumerated in Rule 1.... ” Rule 1(a) states that those rules govern procedure in the circuit courts. In fact, the committee comments to Rule 1 specifically state that the rules govern procedure in the circuit courts on appeal to such courts from administrative agencies. Consequently, because Act 357 does not provide for taxing of costs, the rules of civil procedure are applicable in this regard.

The rule of civil procedure which provides for taxing of costs is ARCP 54(d). Rule 54(d) states that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs .. .. ”

The circuit court awarded the cost of the transcript to the prevailing party in this action. With the above in mind such award was clearly within the authority of the court. We find no error and affirm on this ground.

Ill

The second issue raised on cross-appeal is whether the circuit court erred in awarding Peseau an attorney’s fee. Peseau concedes error on this ground.

Attorney’s fees are recoverable only when authorized by statute, provided in a contract, or in an equitable proceeding when efforts of an attorney create a fund out of which fees may be paid. Shelby County Comm’n v. Smith, Ala., 372 So.2d 1092 (1979).

Act 357 does not provide for attorney’s fees. Under the facts of this case, we find that Peseau' was not entitled to an attorney’s fee, as conceded by Peseau. We therefore reverse and remand on this ground.

This cause is due to be affirmed in part and reversed in part, and remanded for entry of a judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


text:
    Ex parte CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama. (re: Delores "Dee" PESEAU v. CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama.)
    80-573.
    Supreme Court of Alabama.
    July 17, 1981.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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


text:
    Linda Kate CLARK v. Jerry B. CLARK.
    Civ. 2720.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Rehearing Denied June 3, 1981.
    James B. Morton of Propst, Topazi & Morton, Birmingham, for appellant.
    Morris W. Savage of Bankhead, Savage & Stephens, Jasper, for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1972. The divorce decree awarded custody of the parties’ three minor children to the wife and directed that the husband pay $150 per month as child support.

In April 1980 the wife filed two separate actions in the Winston County Circuit Court. The first, a petition for modification, sought an increase in child support. The second, entitled “Petition for Sale for Division or Alternatively for Partition of Land,” alleged the parties to be joint owners of a parcel of land purchased prior to the divorce and requested the sale or partition thereof. The cases were consolidated for trial. After an ore tenus hearing the trial court modified child support as the wife sought, but found her to have no right, title or interest in the parcel of land and denied her relief in that respect. The wife appeals from the trial court’s finding as it pertains to the parcel of land.

The primary issue is whether the evidence at trial was sufficient to sustain the court’s finding that the wife had no right, title or interest in the land. We find that it was and affirm.

Our rule of review in cases where the trial court makes findings after hearing the evidence ore tenus is to indulge every presumption in favor of those findings. Scott v. Gill, 352 So.2d 1143 (Ala.Civ.App.1977). In those cases the trial court’s judgment will not be reversed unless plainly erroneous or manifestly unjust, and must be affirmed if supported by any credible evidence. Raidt v. Crane, 342 So.2d 358 (Ala.1977); Gann & Lewis Roofing Co. v. Sokol, 359 So.2d 815 (Ala.Civ.App.1978); 2A Ala. Digest, Appeal and Error, Key No. 1010.-1(1).

Although we find it unnecessary to set forth in detail the evidence adduced at trial, conflicting as it was, regarding the ownership of the disputed parcel, we do relate the following facts supportive of the trial court’s finding:

The parties purchased the one hundred-acre tract in 1968 and owned the property jointly with right of survivorship. The purchase price was approximately $15,000, and at the time of the parties’ divorce in 1972 they had made payments of $8,000 pursuant thereto. Prior to their divorce the parties orally agreed that the wife would receive $4,000 as payment for her half of the couple’s $8,000 equity. The wife, herself, testified she agreed to accept $4,000 as payment for her interest and thought her husband’s brother had become owner of the property prior to the divorce. In February 1973 the husband began sending monthly checks in the amount of fifty dollars marked “Equity Payment” to the wife, in addition to the separate $150 checks for child support already being paid. He sent and she accepted these “Equity Payment” checks for some six years until the $4,000 agreed to was almost completely paid. He then increased his child support payments to $200 from the $150 per month required by the decree. The husband has made substantial improvements to, paid the remaining purchase price for, and, at various times, lived upon the subject property since the parties’ divorce. The wife has neither used nor made payments toward the property since that time.

At trial and on appeal the wife has asserted her continued ownership of the property. She has also claimed that although she agreed to accept $4,000 as payment for her interest therein, such agreement was procured through the husband’s harassment of her. The evidence on these issues was conflicting and due to be resolved by the trial court. Suggs Music Co. v. State Department of Revenue, 365 So.2d 977 (Ala.Civ.App.1978), cert. denied, 365 So.2d 979 (Ala.1979).

The wife also contends that the oral agreement for sale of her interest in the property is void and unenforceable under our • Statute of Frauds, § 8-9-2, Code of Alabama (1975).

Section 8-9-2(5), where pertinent, provides that contracts for the sale of land or any interest therein must be in writing, “ unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.” (Emphasis ours.)

We find the exception, as set forth in the above quotation, applicable to the instant case. See, Pierce v. Murphree, 274 Ala. 20, 145 So.2d 207 (1962); Eddleman v. Cade, 261 Ala. 154, 73 So.2d 362 (1954); Talley v. Talley, 248 Ala. 84, 26 So.2d 586 (1946).

There was evidence, in the form of the checks marked “Equity Payment,” that the husband had paid all or a portion of the wife’s equity interest to her. There was also evidence that the husband moved onto the property, i. e., was put in possession of the land, subsequent to the oral agreement. See, Pierce v. Murphree, supra. The effect of compliance with these two elements is to except the oral agreement from the statute and make the contract enforceable by either party. Eddleman v. Cade, supra.

The trial court found, after hearing the evidence set forth above, that the wife had no right, title or interest in the subject property. We find the evidence sufficiently supportive of such finding. Gann & Lewis Roofing Co. v. Sokol, supra.

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Linda Kate CLARK. (Re Linda Kate Clark v. Jerry B. Clark).
    80-649.
    Supreme Court of Alabama.
    July 31, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    ALABAMA STATE TENURE COMMISSION v. TUSCALOOSA COUNTY BOARD OF EDUCATION.
    Civ. 2565.
    Court of Civil Appeals of Alabama.
    April 15, 1981.
    Rehearing Denied May 20, 1981.

      Kenneth L. Thomas, Sp. Asst. Atty. Gen., for appellant.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

The teacher’s contract was canceled by the Tuscaloosa County Board of Education. The teacher appealed to the State Tenure Commission and the Tenure Commission reversed the Board. The Board filed a petition for mandamus in the Circuit Court of Tuscaloosa County seeking review of the Tenure Commission’s action. The circuit court reversed the Tenure Commission. The Tenure Commission appeals. We reverse the circuit court.

Section 16-24 — 38, Code of Alabama (1975) provides:

The action of the state tenure commission in reviewing ... cancellation of teacher contracts, if made in compliance with the provisions of this chapter, and unless unjust, shall be final and conclusive.

The most recent cases of our supreme court provide that the State Tenure Commission’s conclusions and judgment will not be reversed on appellate review as being unjust unless against the preponderance and the overwhelming weight of the evidence. Alabama State Tenure Commission v. Mountain Brook Board of Education, 343 So.2d 522 (Ala. 1976); Sumter County Board of Education v. Alabama State Tenure Commission, 352 So.2d 1137 (Ala. 1977). The dispositive issue presented by this appeal is whether the evidence sustains the finding of the Commission.

The record reveals the following facts:

The teacher has been employed by the Board of Education for eleven years and has attained continuing service status. The events leading to the cancellation of the teacher’s contract occurred during the 1979-1980 school year. There had been no previous difficulty between the teacher and the school administration or the Board. The school’s principal and the Board’s supervisor classified the teacher’s performance as a classroom teacher as “adequate” or “satisfactory.” As grounds for her dismissal the Board charged that: “(1) the teacher demonstrated insubordination on three occasions by failing to carry out specific instructions given by her superiors, (2) the teacher demonstrated incompetency by habitually submitting important reports and records to the school office containing numerous errors, and (3) the teacher demonstrated neglect of duty by failing to follow school policy on arranging makeup work for students with excused absences.” The Board found that there was substantial evidence to support these charges and canceled the teacher’s contract on the statutory grounds of insubordination, incompetency, and neglect of duty.

The Tenure Commission, after hearing the arguments of the teacher and the Board, found that “the evidence adduced at the hearing was not sufficient to justify the termination of the teacher based on the stated grounds.”

The purported incidents of insubordination were alleged to have occurred on November 21, 1979, January 7, 1980, and January 28, 1980. The Board contends that on November 21, 1979, the teacher was instructed to call a parent for the purpose of scheduling a parent-teacher conference and that the teacher failed to call as instructed. We find no evidence that the teacher was in fact instructed to call the parent. The Board contends that on January 7,1980, the teacher was instructed by the principal to turn in a class count and that she failed to do so on that day as had been instructed. There is evidence in support of this contention, but there is also evidence that the requested report was turned in by the teacher the next day, January 8. The Board finally contends that on January 28, 1980, the teacher was ordered to allow the secondary supervisor to inspect her grade book and that the teacher refused to allow the inspection. She stated to her supervisor and subsequently to her principal, that she kept two grade books, a “working” book for daily entries and a “neat” book for presentation to school officials and parents. There was testimony that the teacher had her “working” book at school and her “neat” book at home when inspection was requested. She denied inspection of her “working” book. The principal directed her to go home and get the “neat” book. She did not return with it that day. She stated that she was unable to gain access to her home in time to return to school with the book before the principal left the school. She was then suspended. She stated she subsequently produced the book, but no one saw it.

The Board contends the teacher demonstrated incompetency by habitually submitting erroneous reports and records. The record discloses that the teacher did submit erroneous reports and records and that these reports and records were of three basic types: a cumulative record book, the school attendance register, and various daily reports compiled from information obtained from the teacher’s homeroom students. There is evidence that the cumulative record book did contain errors committed by the teacher. However, there is also evidence that these errors were not discovered until after the teacher had been suspended pending the Board’s hearing on the cancellation of her contract. Therefore those errors were not reasons for her dismissal.

There was evidence that the teacher’s attendance register contained errors. However, it was shown that she was the only teacher instructed by the principal to maintain her own register and that the other teachers’ attendance registers were maintained for them by one individual.

There was testimony by the school secretary that the teacher’s daily homeroom reports were found erroneous on several occasions. However, such errors were not uncommon and not confined to this teacher. There was testimony that the teachers were required to collect several items of information from their students during the short homeroom period; that for the first time in the 1979-1980 school year the teachers were required to monitor the halls for a period of twenty minutes prior to the homeroom period and that this activity cut down on the time that had been used by the teachers in previous years for homeroom activities; that the teacher’s homeroom period had been interrupted on several occasions by parents seeking parent-teacher conferences; and that the late arrival of school buses delayed the performance of the teacher’s homeroom duties on several occasions.

With respect to the charge of neglect of duty, the Board contends that the teacher failed to adhere to school policy concerning makeup work for students with excused absences. The policy in question is that makeup tests should be announced at least one day in advance and that ample time' should be given to allow the students to complete the test. Our review of the record fails to reveal any evidence of an instance when the teacher failed to follow this policy where students with excused absences were involved. The only evidence with regard to this charge concerns one instance when thirteen test papers were misplaced by the teacher’s student assistant. The teacher, in order to avoid delaying the computation of the first semester grades, required thirteen students whose papers had been misplaced to repeat the same test. The amount of advance notice given these students is not clear, but the teacher testified that the students were given ample time to complete the test.

The Commission could have given consideration to the admission by the principal that after the initial complaint against the teacher by parents in October of 1979, that he, and under his instruction, his secretary, began to compile a list of faults and errors of the teacher through the keeping of a written log of her mistakes.

From this review of the evidence, its conflicts and reasonable inferences, we cannot say that the Tenure Commission’s conclusion was against the preponderance and overwhelming weight of that evidence. Therefore the order of the circuit court setting aside the Tenure Commission’s judgment must be reversed.

The Board in brief contends that the Tenure Commission failed to follow the directive of the Alabama Supreme Court set out in Marshall County Board of Education v. Alabama State Tenure Commission, 291 Ala. 281, 280 So.2d 130 (1973). In that case the court admonished the Tenure Commission for failing to enter “some reasonable statement based on the evidence of reasons for the overturning of the action of the Board.” We do not find the failure of the-Commission to comply fully with Marshall County Board of Education sufficient to require a return of the case to the Commission. However, we admonish the Commission to adhere to Marshall County Board of Education so that this court will have the benefit of its view of and conclusions from the evidence.

The judgment of the circuit court is reversed and the judgment of the Tenure Commission is to be reinstated.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: JONES, Justice.

text:
    Ex parte TUSCALOOSA COUNTY BOARD OF EDUCATION. (Re: ALABAMA STATE TENURE COMMISSION v. TUSCALOOSA COUNTY BOARD OF EDUCATION).
    80-588.
    Supreme Court of Alabama.
    July 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: SCRUGGS, Retired Circuit Judge.

text:
    HEALTH-TEX, INC. v. Eloise WEST.
    Civ. 2654.
    Court of Civil Appeals of Alabama.
    April 22, 1981.
    Rehearing Denied May 27, 1981.
    Luke E. Alexander and William M. Boul-din of Guin, Bouldin, Porch & Alexander, Russellville, for appellant.
    Ronald H. Strawbridge, Vernon, for ap-pellee.
   SCRUGGS, Retired Circuit Judge.

This workmen’s compensation case concerns an acute allergic dermatitis suffered by the employee, Mrs. West.

Many facts were stipulated, including that her condition arose out of the course of her employment with the defendant. The primary question in the trial court was the extent of her disability. After a non-jury trial, the final judgment specified that the employee was permanently and totally disabled. The issue on appeal is the sufficiency of the trial evidence to support that adjudication. Accordingly, our inquiry and recital of facts shall be largely limited to that aspect.

Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence. (Citations omitted.)

B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 250, 253 So.2d 37, 43 (1971).

The following were included by the trial court among its findings of fact in the final judgment:

That the Plaintiff was 53 years of age at the time of the hearing; that she has approximately a 9th grade education; that her employment history and training is that of a garment factory worker, and that she is not now trained or suited for any other type of work or employment than working in a garment factory; ... that Plaintiff over a period of time developed allergic dermatitis to materials with which she worked or which were present in the Defendant’s factory; Plaintiff was totally and permanently physically injured as the result of an accident arising out of and in the course of her said employment with Defendant; and because of her education and training she is unable to perform work of her trade or obtain reasonably gainful employment, resulting in her permanent and total loss of ability to earn... . That Plaintiff is permanently and totally disabled ....

On the trial date, the employee was fifty-three years of age. She had a ninth-grade education. Her only employment, job training and experience had been as a sewing machine operator in various garment plants for twenty-eight years.

On June 1, 1977, she first consulted with her family physician concerning her acute allergic dermatitis. She described her problem as, “I break out in a rash, and it itches, and it irritates you nearly to death and you can’t hardly get rid of it.” On numerous occasions, her doctor treated her for that problem. He would order her not to work, and, after increasingly longer periods of treatment, the allergy would clear up; however, upon returning to her job, the reaction would rapidly reappear, at times within five minutes after just walking through the plant. Her condition became progressively more severe, and more time was required to enable the rash to clear up. Over a seven-month period she was transferred by her employer from job to job and worked upon different materials at different locations in her employer’s plant, and, on each occasion, the allergy reoccurred. In that regard, she wholly cooperated with the employer. Basically, other garment factories use the same kind or type of materials as were being utilized by the defendant. She testified that she was advised by her doctor that she could not work in any garment plant. While shopping, the plaintiff cannot remain for very long in a department store or in a fabric center without her allergy commencing again. Her job applications in other industries or fields have not been successful.

The family physician deposed that, while he does not know the specific cause of her allergy, it was connected with her employment, and that she is 100% disabled from working in the presence of the causative allergen. He could not testify whether the allergen would be present in another garment plant.

A dermatologist, whose deposition was introduced by the employer, and who had examined her only when she was free from any rash, testified that, as far as discomfort and a rash are concerned, what is disabling to one person is not necessarily disabling to others. It is possible for one to come into contact with a particular substance on a regular basis without any problem, and then to suddenly develop a reaction to it. Sometimes subsequent reactions progressively become more severe. He further stated that, if the employee is allergic to something, she should avoid it as much as possible. The doctor was not able to reach any conclusions as to whether or not she would ever be able to work in a garment plant.

In considering, without weighing, that evidence which was favorable to the holding of a total and permanent disability, we deem it to adequately support that finding. The following language from Carroll Construction Company v. Hutcheson, 347 So.2d 527, 530 (Ala.Civ.App.1977) is especially applicable:

Total disability does not mean absolute helplessness or entire physical disability, but means inability to perform the work of one’s trade or inability to obtain reasonably gainful employment. Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958); B. F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So.2d 776 (1975) cert. quashed, 295 Ala. 401, 324 So.2d 788 (1976); Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370 (1973). Total permanent disability under Tit. 26, § 279(E)3 may occur without loss of specific members of the body; in that case the court considers the education and training of the individual and the effect of the injury on his earning ability. Brunson Milling Co. v. Grimes, supra. We will not disturb the finding of the trial court because there was legal evidence to support its conclusion of total and permanent disability. Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969); Woodward Iron Co. v. Jones, 217 Ala. 361, 116 So. 525 (1928); Mobile Paint Mfg. Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975). The weight of the evidence before the trial court is not before this court on appeal in a workmen’s compensation case. Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453 (1964).

We affirm.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte HEALTH-TEX, INC. (Re: HEALTH-TEX, INC. v. Eloise WEST).
    80-639.
    Supreme Court of Alabama.
    July 17, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    Tom SMITH, d/b/a Tom Smith Artesian Well Company v. Rudwin L. ROBERTS.
    Civ. 2583.
    Court of Civil Appeals of Alabama.
    May 13, 1981.
    Rehearing Denied June 17, 1981.

      Kenneth L. Funderburk and Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.
    Harry D. Raymon of Raymon, Nathanson & Raymon, Tuskegee, for appellee.
   BRADLEY, Judge.

This is a fraud case.

The facts are as follows. Smith was a well digger doing business as Tom Smith Artesian Well Company. Roberts hired Smith to drill a well on his property in 1976. Smith drilled a well which apparently produced plenty of water. The cost of drilling the well was $1,180.00. The bill presented to Roberts from Smith itemized the drilling cost to be $700.00 for the first one hundred feet and $480.00 for the additional eighty feet.

In 1979 Roberts made some modifications to the well by adding an additional foot and a half to the pipe at the top of the well. This additional pipe was needed to allow Roberts to build up the ground near the well so as to construct a building thereon.

During this period Roberts had difficulty with the well and he got a neighbor to help him check it. This neighbor pulled the pipe out of the well, which was at one time connected to a submergible pump in the well casing. The pump had somehow separated from the pipe and was still in the well casing or someplace under the casing. The neighbor measured the pipe and it measured approximately fifty-four feet. The neighbor then dropped a measuring tape in the well with a small wrench tied to the end of it and it measured about the same as the pipe which was pulled from the well. The tape became entangled on something in the well and is still there. Before the tape became entangled in the well, the wrench was pulled up to the surface several times and it had mud on it.

Plaintiff proved that the Macon County Health Department had no record of defendant filing an intent to drill a water well for plaintiff as required by its regulations.

The defendant’s evidence tended to show that well drillers do not place the submergi-ble pump which is attached to the water pipe at the bottom of the well. Ordinarily the pump is placed below the water level to a sufficient depth so as to assure an adequate supply of water. The water level in plaintiff’s well was determined to be about forty-three feet.

There was evidence that defendant had drilled the well to a depth of one hundred eighty feet, and he did so to obtain a good supply of water. He stated that the length of the well casing and the depth the pump is placed in the well have nothing to do with the depth of the well.

Defendant also produced testimony that the space between the pump and the well casing is so narrow as to prevent anything passing between the two. There was also testimony that the pump was probably still in the well casing.

On September 14, 1979 Roberts filed a complaint asserting that the depth of the well had been misrepresented to him by the defendant, Smith. The case was tried before a jury on September 25, 1980. Smith made a motion for directed verdict asserting that there was not a scintilla of evidence to support a finding that the depth of the well was less than one hundred eighty feet; motion overruled. The jury returned a verdict in favor of Roberts and fixed his damages at $7,000.00. Later Smith filed a motion for j. n. o. v. or in the alternative for new trial contending, among other things, that the trial court erred in denying the request for directed verdict, that the verdict was against the great weight of the evidence, and that Roberts had failed to carry his burden of proof. The motion was denied and Smith appealed.

The dispositive issue here is whether Roberts proved that Smith misrepresented the depth of the well that was drilled.

“Misrepresentations of a material fact made willfully to deceive . . . constitute legal fraud.” § 6-5-101, Code 1975. And where there is evidence reasonably affording an inference that the plaintiff was defrauded, the case is one for the trier of fact. Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973). Moreover, it is within the province of the jury to resolve any conflict in the evidence. Ron Shafer Chevrolet v. Hires, Ala.Civ. App., 347 So.2d 1358 (1977). Also, when the jury does resolve the conflict in the evidence and renders a verdict, such verdict on appeal is strengthened by the action of the trial court in overruling defendant’s motion for new trial. Huntsville Dodge, Inc. v. Furnas, Ala.Civ.App., 361 So.2d 585 (1978).

The evidence for plaintiff showed that the length of the water pipe removed from the well measured fifty-four feet; that the pump was not on the pipe when the pipe was removed from the well; that measurements made after the water pipe was removed from the well by dropping a one hundred foot tape measure into the well showed a depth of fifty-four to fifty-six feet; that plaintiff paid defendant for drilling the well to a depth of one hundred eighty feet; that a wrench which was attached to the tape measure came back up with mud on it; that the water in the well contained a lot of mud; that the Macon County Health Department records do not reflect that the defendant requested a permit to drill a well for plaintiff; and that a new pump has been inserted in the same well and is pumping water.

Although the evidence introduced on behalf of the defendant is contrary to that of the plaintiff, we hold that plaintiff’s evidence is sufficient to support the jury’s finding that defendant had knowingly misrepresented the depth of the well drilled for plaintiff. Hence the judgment of the trial court is affirmed.

AFFIRMED.

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


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    Frank E. SCOTT v. Carol E. SCOTT.
    Civ. 2604.
    Court of Civil Appeals of Alabama.
    May 20, 1981.
    Rehearing Denied June 17, 1981.

      Jack W. Torbert of Torbert, Turnbach & Warren, Gadsden, for appellant.
    Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   BRADLEY, Judge.

This appeal is from an order of the trial court construing and interpreting the provisions of an agreement which was incorporated into a prior divorce decree.

The parties to this appeal were divorced by the Circuit Court of Calhoun County in October 1975. Incorporated in that decree was a pretrial agreement of the parties which provides in pertinent part as follows:

3. Mr. Scott agrees to pay Mrs. Scott alimony in the amount of $1,000.00 per month, said payments to be made by the 10th of each month commencing with November, 1975. Said payments of alimony shall cease if and when Mrs. Scott remarries or when either party hereto dies, or when the youngest surviving child becomes twenty-one years of age, whichever of said contingencies occurs first. During the time said alimony is being paid, Mrs. Scott will be entitled to claim said children as dependents on her income tax returns.
4. Mr. Scott agrees to pay, in addition to the alimony provided for herein, the necessary and reasonable education expenses of said children.
6. In the event Mrs. Scott remarries, Mr. Scott agrees to pay to her the sum of $500.00 per month for each of said minor children who is still living with her and is under the age of twenty-one years. Said payments are to be made by the 10th of each consecutive month for the support and maintenance of each child until said child ceases to reside with Mrs. Scott or becomes twenty-one years of age, whichever is first, at which time payments for said child shall cease.
7. The parties agree that this agreement may be filed in the pending divorce suit between them, and that the parties may be required by the order and judgment of divorce to comply with the provisions of this agreement. Mr. Scott further agrees that he will pay the costs of said proceeding and a fee of $1,000.00 for the attorney representing Mrs. Scott in said proceeding.

In April 1980 the wife filed a motion asking that the agreement which was a part of the divorce decree be clarified and enforced. More specifically she averred that the husband had failed to comply with paragraph four of said agreement in that he had refused to pay for the reasonable and necessary educational expenses of the two children.

After a hearing the trial court rendered an order which is in pertinent part as follows:

1. Mr. Scott is ordered to pay to Mrs. Brennan [i. e. the former Mrs. Scott] the sum of $500.00 per month for the support and maintenance of each of the children of the parties who is under the age of twenty-one years and is living with Mrs. Brennan. Said payments shall be made by the tenth of each consecutive month. Said payments may be terminated as to either of said children upon the .happening of any one of: (1) the child becomes twenty-one years of age; (2) the child no longer lives with Mrs. Brennan (temporary absence from her home to attend school will not be construed as no longer living with her); or (3) the child marries or is otherwise situated so as to lose the benefit of the agreement between the parties referred to herein.
2. In addition to the monthly payments provided for above, Mr. Scott is ordered to pay the following expenses for the education of each of said children: (a) tuition; (b) books; (c) school fees; and (d) dormitory and board furnished by the school attended by said child (this does not include any off-campus living expenses) or contribute that sum toward the expense of the child if living off campus.

The husband appeals.

The husband says here (1) that the agreement in question never became a part of the 1975 divorce and is nothing more than a contract, the enforcement of which cannot be had in the divorce courts; (2) that he is not required by the terms of the agreement to pay the reasonable and necessary educational expenses while the children are minors and under no circumstances is he required to pay the expenses after the children become adults; (3) that, assuming that he does have to make the support payments and to pay for the educational expenses of the children after they reach age nineteen, he should not be required to pay the money to the appellee; (4) that the payment of the children’s tuition, books, school fees and housing expense are not necessary and reasonable education expenses; and (5) that the trial court erred in awarding the wife attorney’s fees.

Appellant’s first contention is that the agreement in question was not incorporated into and made a part of the divorce decree and, therefore, cannot be enforced as other divorce decrees are enforced for the reason that certain magic words were not used in the decree.

The trial court entered a divorce decree in which it divorced the parties for incompatibility of temperament and then said:

4. That the agreement between the parties on file in this cause be and it hereby is ratified and approved, and the parties are ordered to carry out their obligations as contained therein.

An agreement made by the parties to a divorce action with respect to alimony and child support when adopted by the court and made a part of the final decree becomes as effective as any other decree that was entered without an agreement. Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317 (1963).

Although the decree did not use such words as “incorporate,” “adopted,” “made a part of,” the decree did provide that the parties’ agreement, which was on file with the court, was “ratified” and “approved,” and that the parties were ordered to carry out the obligations of the agreement. For almost five years the parties did carry out the obligations of their agreement as they had been directed to do. Under these circumstances we conclude that the agreement was incorporated into and made a part of the court’s divorce decree and is subject to being construed and interpreted as are other court decrees.

Appellant next contends that he is not obligated under paragraph four of the agreement to pay the children’s educational expenses because the wife has remarried and he no longer pays alimony. We disagree.

In Fox v. Dick, Ala.Civ.App., 389 So.2d 940 (1980), we said:

Divorce decrees are to be construed like other written instruments and if there is any uncertainty and ambiguity the court must construe it so as to express the intent of the parties. Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the judgment. Price v. Price, Ala.Civ.App., 360 So.2d 340 (1978).

The trial court construed the language in the agreement to require the husband to pay the reasonable and necessary educational expenses of the children even though the wife had remarried. We consider such interpretation to reasonably express the intent of the parties as set out in their agreement and is incorporated into the divorce decree.

The husband says that if he is required to pay the educational expenses of the children after the wife remarried, he certainly should not be required to pay those expenses after the children reach their majority.

In Alabama an equity court cannot sua sponte require a parent to support his adult child. Davenport v. Davenport, Ala.Civ.App., 356 So.2d 205 (1978). But, a decree which is based on an agreement providing for support and educational expenses to be paid by one of the parents after the children reach their majority can be enforced and modified. Ralls v. Ralls, Ala. Civ.App., 383 So.2d 857 (1980).

In the instant case the parties agreed that the husband would pay child support until the children reached twenty-one years of age or ceased to live with their mother, whichever event occurred first. Also the parties agreed that the father would pay the reasonable and necessary educational expenses of the children without limitation to a particular age.

The trial court ordered the appellant to pay the support and educational expenses as required by the agreement. No error here.

Appellant’s next contention is that he should not be required to make the support payments to the appellee after the children reach age nineteen if he has been ordered so to do, but instead should be permitted to make those payments directly to the children. We find no merit in this contention.

The agreement provides that the appellant is to make the child support payments to the mother until the children reach twenty-one years of age or cease to live with her. The children, however, are still living with the mother and have not reached twenty-one years of age. We perceive no error in the trial court’s requirement that the support payments continue to be made to the mother.

Next, appellant says that the trial court’s interpretation of “necessary and reasonable education expenses” as set out in paragraph four of his agreement to include tuition, books, school fees, and dormitory and board or its equivalent if the child is living off campus is erroneous. We disagree.

Obviously the term “necessary and reasonable education expenses” as used in paragraph four of the agreement requires interpretation by the court since the agreement itself did not provide a definition of the term. The court interpreted the term “necessary and reasonable education expenses” to include books, fees, tuition and room and board. We find nothing in this interpretation to be unreasonable, because a person attending a school or college will be required to pay for one or more of these expenses.

Finally, appellant says that the trial court erred in awarding appellee an amount for attorney fees.

The parties stipulated that should the trial court see fit to award an attorney’s fee, $750.00 would be a reasonable amount. This sum was awarded by the court to the wife for her attorneys.

Appellant does not complain about the amount, but he does say that there was no proof of need on the part of the wife.

The wife’s need for an attorney’s fee is a factor for the trial court to consider in deciding whether to award an attorney’s fee. Rosser v. Rosser, Ala.Civ.App., 355 So.2d 717 (1977), cert. denied, Ala., 355 So.2d 722 (1978).

The evidence shows that appellee is a housewife and is not otherwise employed. It appears that appellee and her present husband have incurred expenses for the children’s education of about $5,000. Appellant was ordered by the court to pay this amount to appellee.

Based on the evidence in this case and the reasonable inferences to be gleaned therefrom, we cannot say that the trial court erred in awarding appellee an attorney’s fee for the representation she received in the trial court.

The appellee has requested that she be awarded a reasonable attorney’s fee for defending this appeal. We consider $500 to be a reasonable fee and award her that amount.

For the reasons above noted the decree of the trial court is affirmed.

AFFIRMED.

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


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    REICHHOLD CHEMICALS, INC. v. REPLEX CORPORATION and John Medina.
    Civ. 2540.
    Court of Civil Appeals of Alabama.
    May 27, 1981.
    Rehearing Denied July 1, 1981.

      James G. Gann, III, of Silberman, Silber-man & Loeb, Birmingham, for appellant.
    Stanley Jay Murphy of Murphy & Murphy, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This controversy arose out of the following facts: During the fall of 1978 Replex Corporation (Replex) purchased some $7,750 in materials from Reichhold Chemicals (Reichhold) on account. Replex did not pay the account as it came due and on March 8, 1979, with a balance owing of $6,948.90, executed to Reichhold four promissory notes totalling the amount due. The notes were executed by Replex’s vice president, John Medina (Medina), in his representative capacity.

Replex paid two of the four notes, leaving a balance due of $2,948.90, and, apparently, went out of business. The balance due remained unpaid.

On December 31, 1979, Reichhold filed suit against Replex and Medina, claiming Medina to be personally liable as guarantor of the two unpaid notes. The District Court of Lamar County granted judgment in Reichhold’s favor against defendant Re-plex for the balance due under the notes, $2,498.90. The court found that defendant Medina was not personally liable as guarantor and Reichhold appealed to the circuit court. The Lamar County Circuit Court likewise entered judgment in favor of Medina and it is from that judgment that Reich-hold now appeals. The liability of Replex under the notes is not in dispute.

The issue is whether the trial court’s judgment, that Medina was not personally liable as guarantor of the two remaining notes, was correct. We find otherwise and reverse.

At trial, Reichhold introduced into evidence the notes and purported guaranty agreements upon which its claims against Replex and Medina were based. The guaranty agreements, printed on the back of each note, read as follows:

FOR VALUE RECEIVED THE UNDERSIGNED AND EACH OF THEM HEREBY FOREVER WAIVE PRESENTMENT, DEMAND, PROTEST, NOTICE OF PROTEST AND NOTICE OF DISHONOR OF THE WITHIN NOTE AND THE UNDERSIGNED AND EACH OF THEM GUARANTEES THE PAYMENT OF SAID NOTE AT MATURITY AND CONSENTS WITHOUT NOTICE TO ANY AND ALL EXTENSIONS OF TIME OR TERMS OF PAYMENT MADE BY HOLDER OF SAID NOTE. (Emphasis ours.)

Following the agreement was the signature, “John Medina.” Medina admitted that he signed the notes and agreements as they appear.

The trial court found Medina not personally liable under the guaranty. The court noted that the guaranty “talks about notice and waivers and written protest and et cetera and right in the middle of it it says something about guarantees . . . [it] is totally ambiguous.... ”

Section 7-3 — 416, entitled “Contract of Guarantor,” provides in subsection (1) the following:

“Payment guaranteed” or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party.

The official comment to § 7 — 3—416 states that “[A]n indorser who guarantees payment waives not only presentment, notice of dishonor and protest, but also all demand upon the maker or drawee.” Reading this comment, it is apparent that the guaranty signed by Medina explicitly incorporated all four of the waivers which naturally result from such contract of guaranty. The guarantee also specifically set forth that the undersigned “GUARANTEES THE PAYMENT OF SAID NOTE AT MATURITY.”

We find the guaranty agreement in no way ambiguous. Its wording is indicative of language validly used in everyday practice by those making use of such agreements and which is commonly upheld by the courts. See, e. g., Warner-Lambert Pharmaceutical Co. v. Sylk, 471 F.2d 1137 (3d Cir. 1972); Lutz v. Gatlin, 22 Wash.App. 424, 590 P.2d 359 (1979); Universal Metals & Machinery, Inc. v. Bohart, 18 U.C.C.Rep. 1238 (1976).

Medina, having executed the contract of guaranty, became a “guarantor” and engaged that if the instrument was not paid when due, he would pay it according to its tenor without resort by Reichhold to any other party. Metze v. Entman, 584 S.W.2d 512 (Tex.Civ.App.1979); § 7-3-416, Code of Alabama (1975). This was the nature of his liability.

Medina was permitted to testify that he did not understand he would be personally liable on the notes and that he was not informed of such liability. There was evidence that Reichhold insisted on an individual guarantor because of previous trouble in collecting from Replex. In the absence of allegations or proof of fraud or misrepresentation, and no ambiguity existing, the parties’ writing was the sole expositor of their transaction and intention. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976). Medina’s stated ignorance of the contents of the written guaranty contract executed by him in no way avoids his obligation thereunder in the absence of fraud or misrepresentation. Eley v. Brunner-Lay Southern Corporation, 289 Ala. 120, 266 So.2d 276 (1972).

Having addressed the basis of the judgment as stated by the trial court and reviewed the record carefully, we find no merit in the remaining argument of defendant that because of his linguistic disabilities after twenty years of citizenship, the court may have determined him to be incapable of understanding what he signed.

Medina entered into an unambiguous contract as guarantor of notes executed by Replex. Replex failed to pay two of the notes. The trial court found Medina not liable as guarantor because of ambiguity in the guaranty. The judgment of the trial court is erroneous and is reversed. Judgment for plaintiff and against defendant Medina is directed to be entered.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Doris H. COOPER v. L. Bancroft COOPER.
    Civ. 2576.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Rehearing Denied July 1, 1981.
    Henry C. Chappell, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
    G. A. Lindsey and Thomas E. Head, Elba, for appellee.
   WRIGHT, Presiding Judge.

The wife appeals from the trial court’s judgment modifying a divorce decree. We affirm.

This case has been before this court on two previous occasions (Cooper v. Cooper, 331 So.2d 689 (Ala.Civ.App.1976) and Cooper v. Cooper, 382 So.2d 569 (Ala.Civ.App. 1980)). After the first appeal the trial court divorced the parties, the decree awarding periodic alimony to the wife in the amount of $200 per month for five years. On the second appeal, we reversed and directed $1,000 per month alimony to the wife.

Our judgment directing $1,000 per month was rendered on March 26, 1980. The trial court entered an order in accordance therewith on April 17, 1980. The husband filed petition to modify the decree on April 18, 1980, alleging that changed circumstances prevented him from paying the alimony award. On April 25, 1980, the wife filed motions to dismiss the modification petition and to hold the husband in contempt. The basis for these motions was the husband’s failure to pay the $1,000 alimony payment due on April 15, 1980, as ordered by this court and $2,000 in attorney’s fees. The motion for contempt was amended to include the husband’s failure to pay the $1,000 alimony payments due for May, June and July, 1980, i. e., the period between the second appeal and the trial date on the petition for modification.

The trial court heard evidence on the contempt matter and petition for modification on July 22, 1980. On August 1, 1980, the trial court issued an order denying both the wife’s motion to dismiss the modification petition and the contempt citation. It granted the husband’s petition for modification lowering alimony payments from $1,000 to $350 per month, effective May 15, 1980. As a condition to such modification the husband was required to pay all accrued payments as of the date he filed his petition to modify, i. e., the $2,000 for attorney’s fees plus interest and the April alimony of $1,000 plus interest. The wife’s post-trial motions were denied and appeal taken.

The circumstances surrounding the divorce appear in the two previous appeals’ opinions. However, certain events have occurred since the last appeal pertinent to the case at bar.

The husband discontinued the practice of medicine in February 1980 due to a heart condition. In March 1980 he had heart surgery. He attempted to return to work in June 1980 but could not. Sometime in July of that year he began working two to two and one-half hours a day in his practice. Believing that he will be unable to work full time in the future, he testified he could earn a net income of between $1,000 to $1,500 per month. There was no proof otherwise. The husband’s practice appears to be his primary source of income. In 1978 he made $62,000 of which $38,000 was from his medical practice. In 1979 his income was approximately $79,000, virtually all of which came from the medical practice.

During the husband’s disability and illness he had income from insurance policies of over $4,700 between April and July 1980. He netted some $3,400 on the sale of a mobile home. He also had pending disability claims of between $3,000 and $4,000. However, there was evidence that his many expenses and debts more than offset the income he received in 1980. A checking account in one bank was overdrawn by some $3,500, though he had some $7,000 in an account in another bank at which he also had a large indebtedness. There was overdue interest of more than $3,000 on a loan of some $90,000, upon which there had been no payment of principal in more than two years. Other loans were overdue but extended. There had been no payment on income tax due for 1979, which was estimated by the husband’s accountant to be $22,000.

The record reveals that the wife has been living on approximately $300 per month. She does not work nor has she sought employment since the separation and divorce.

The first issue is whether the trial court erred in failing to dismiss the petition to modify, through application of the “clean hands” doctrine. The argument is that the husband was in arrears in alimony payments and attorney’s fees at the time of his petition to modify; therefore his petition should not have been considered.

We note that the application of the “clean hands” doctrine is a matter peculiarly within the sound discretion of the trial court. Adams v. Adams, 368 So.2d 552 (Ala.Civ.App.1979). Such discretionary application will not be reversed absent plain and palpable abuse. The basis for application of the doctrine is closely related to the issue of contempt.

The evidence indicates that subsequent to the last appeal, but before this court’s order in March 1980, Dr. Cooper discovered the necessity for heart surgery. He discontinued his medical practice in February and underwent surgery in March. As of the time of the most recent hearing and modification from which this appeal comes, he had resumed a daily practice of only two and one-half hours per day. In summary there was evidence that during the periods of default for which a finding of contempt was sought, Dr. Cooper was in financial difficulty and very serious physical condition. We cannot find that the trial court palpably erred in refusing to apply the “clean hands” doctrine or in failing to find Dr. Cooper in contempt.

Inability to comply or non-contumacious failure to comply with an order of the court, if proven to the court’s satisfaction, will avoid a finding of contempt. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123 (1971); Ex parte Gunnels, 25 Ala.App. 577, 151 So. 605 (1933). The trial court heard the evidence and found that a contempt citation was not warranted. We find no palpable abuse in such finding. See, Lassitter v. Lassitter, 371 So.2d 918 (Ala.Civ.App. 1979).

Appellant next contends that the trial court erred in granting the petition for modification.

In Alabama, periodic alimony obligations may be modified upon a showing of changed circumstances of the parties. Gargis v. Gargis, 367 So.2d 476 (Ala.Civ.App.), cert. denied, 367 So.2d 479 (Ala.1979); 8 Ala. Digest, Divorce, Key No. 245. Where the changed health of one of the parties results in an evidenced change in financial conditions, a modification of alimony may be justified. O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (1976).

The trial court found that the husband’s physical condition had changed since the divorce decree of 1979. As a result of his physical condition, his income has been significantly reduced. There is support in the evidence for such finding. It is presumed correct upon review. We find no abuse of discretion.

Attorney’s fees, requested by the wife for her representation on appeal, are denied. This court would hope that future matters between the parties will not require our consideration for a fourth time.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.