author: TORBERT, Chief Justice.

text:
    McDONALD’S CORPORATION and The Industrial Development Board of Elmore County v. Jack DeVENNEY, et al. ARONOV REALTY COMPANY and K-Mart v. Jack DeVENNEY, et al.
    80-494, 80-495.
    Supreme Court of Alabama.
    June 11, 1982.

      Edward S. Allen and J. Foster Clark of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for McDonald’s Corp.
    William B. Dunn of Howard, Dunn & Howard, Wetumpka and William M. Slaughter and Mark E. Ezell of North, Has-kell, Slaughter, Young & Lewis, Birmingham, for Aronov Realty Co. and K-Mart Corp.
    J. Michael Rediker and W. Clark Goodwin of Ritchie & Rediker, Birmingham and Joe A. Macon, Jr. of Stowe & Macon, Wetump-ka, Joseph H. Johnson, Jr. and David W. Spurlock of Johnson & Thorington, Birmingham, for appellees.
   TORBERT, Chief Justice.

Appellees, a group of individuals who either are the owners of or have an ownership interest in existing retail businesses in Elmore County, filed a declaratory judgment action against appellants, McDonald's Corporation, Aronov Realty Company, K-Mart Corporation, and the Industrial Development Board of Elmore County, regarding the validity of two proposed bond issues established pursuant to Code 1975, §§ 11-20-30 to -50 (1977 County Board Act). The bond issues were authorized by the Industrial Development Board of Elmore County. The two projects involve retail facilities. One project is a McDonald’s Restaurant and the other is a retail shopping center comprised of various retail mercantile stores including a K-Mart Store.

The issue on appeal is the same issue that was before the trial court — whether the two projects are within the definition of “project” under the 1977 County Board Act. The trial court held that the Act does not include as a “project” the “planned expansion of retail facilities.”

Appellants submit that the trial court incorrectly limited the scope of the 1977 County Board Act and that the court should not “second-guess” the Industrial Development Board of Elmore County as to whether the projects would have been undertaken regardless of the bond issue. The position of the appellants is that the Legislature intended for retail businesses to make use of the 1977 County Board Act.

Appellees, on the other hand, contend that the Legislature did not intend for the 1977 Act to finance the construction of retail facilities. In addition, appellees submit that the 1977 Act must be interpreted along with the 1949 Cater Act (Code 1975, § 11-54-81(a)), the 1951 Wallace Act (Code 1975, §§ 11-54-20 to -32) and the 1961 County Act (Code 1975, §§ 11-20-1 to -13). The trial court agreed with the appellees and held as follows:

“The acts provide for city board, city, county and county board issuance of industrial development bonds. There seems to run throughout the four acts a theme of inducing, attracting and persuading businesses, and particularly those of an industrial or manufacturing type, to locate in this state. The stated objective was to promote industry, develop trade and further the use of the agricultural, natural and human resources of the state. The need for these acts was brought about during the 1940's and 1950’s when citizens of this state realized mechanization of farming, logging and other local operations would result in an abundance of raw products and resources and an available labor supply, without the means of converting the raw products and resources into finished products and without providing jobs for the displaced workers. The Court is well aware and judicially knows that interest rates for conventional borrowing and financing have risen sharply in the last few years, even to the point of drastically curtailing building expansion in the business and private sectors. The successful operation of any business requires that all building and operating costs, including the payment of interest for expansion purposes, be kept to a minimum. It appears to the Court from the evidence in this case, and a review of the applicable law, that the defendants McDonald’s and K — Mart are attempting to obtain lower interest rates for already planned expansion, through the vehicle of the 1977 Act, which was intended to induce and persuade other businesses, which might not intend to do so, to locate in this state. This Court cannot find that the 1977 Act was intended by the Legislature of the State of Alabama to allow retail businesses, such as McDonald’s and K-Mart, to finance their planned expansions by means of taxfree industrial development bonds. The Court specifically finds that the projects of defendants Aronov Realty Company, McDonald’s Corporation and K-Mart Corporation in this case are not legally authorized under the 1977 Act.”

We affirm.

Alabama Code, 1975 § 11-20-30, defines “project” as:

“(5) PROJECT. Any land and any building or other improvement thereon and all real and personal properties deemed necessary in connection therewith, whether or not now in existence, which shall be suitable for use by the following or by any combination of two or more thereof:
“a. Any industry for the manufacturing, processing or assembling of any agricultural, manufactured or mineral products;
“b. Any commercial enterprise in storing, warehousing, distributing or selling any product of agriculture, mining or industry; and
“c. Any enterprise for the purpose of research, but does not include facilities designed for the sale or distribution to the public of electricity, gas, water or telephones or other services commonly classified as public utilities.”

Obviously, subsections a. and c. do not apply; thus, the question before this Court is whether the Legislature intended for retail enterprises such as McDonald’s or El-Mart to be considered as “[a]ny commercial enterprise in storing, warehousing, distributing or selling any product of agriculture, mining or industry.”

“The proviso, here under review, is by no means so clear in its meaning as not to need interpreting. We proceed, then, to ascertain the legislative intent, which is the guiding star in construing a statute .... One approach in determining the legislative purpose and intent is to examine the prior law, and related statutes, on the subject embraced in the statute being construed.” State v. AAA Motors Lines, Inc., 275 Ala. 405, 407-08, 155 So.2d 509 (1963).

Appellants submit that this Court should examine the 1977 County Board Act separate from the other “projects for promotion of industry and trade acts,” i.e., the Cater Act, the Wallace Act, and the 1961 County Act. We disagree, because all four acts have a common purpose and the means provided to effectuate this purpose are identical. These sections of the Code are in pari materia; and, as a general rule, such statutes should be construed together to ascertain the meaning and intent of each. Locke v. Wheat, 350 So.2d 451 (Ala.1977); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974).

The purpose of the 1977 County Board Act, like that of the Wallace Act, the Cater Act, and the 1961 County Act, is to bring industry and thus jobs to Alabama. This legislative intent is expressed in the respective statutes. In the Cater Act, § 11-54-81, the Legislature stated:

“It is the intent of the legislature by the passage of this article to authorize the incorporation in the several municipalities in this state of industrial development boards to acquire, enlarge, improve, replace, own, lease and dispose of properties to the end that such boards may be able to promote industry, develop trade and further the use of the agricultural products and natural and human resources of this state ... by inducing manufacturing, industrial, commercial and research enterprises: (1) To locate in this state, (2) To enlarge, expand and improve existing operations . . .. ”

In the Wallace Act, § 11-54-21, the Legislature stated:

“It is the intent of the legislature by the passage of this article to authorize municipalities to acquire, own and lease and, in connection with any such acquisition, to enlarge, improve and expand projects for the purpose of promoting industry and trade ... by inducing manufacturing, industrial, commercial and research enterprises to locate in this state or to expand and enlarge existing enterprises .... ”

In the 1961 County Act, § 11-20-2, the Legislature stated:

“It is the intent of the legislature . .. to authorize counties to acquire, own and lease projects for the purpose of promoting industry and trade by inducing manufacturing, industrial and commercial enterprises to locate in this state or to expand, enlarge or modernize existing enterprises or both .... ”

In the 1977 County Board Act, § 11-20-31, the Legislature stated:

“It is the intent of the legislature . .. to authorize the incorporation in the several counties in this state of public corporations to acquire, enlarge, improve, replace, own, lease and dispose of properties to the end that such corporations may be able to promote industry, develop trade and further the use of the agricultural products and natural and human resources of this state .... ”

All of these acts express a similar intent and purpose, that is, to give a municipality or county the power to offer inducements to industrial, manufacturing, commercial, and research enterprises to either locate in Alabama or expand existing facilities in this state. These acts authorize municipalities and counties to acquire industrial, manufacturing, commercial, and research projects and to issue bonds to finance the cost of such acquisitions. Each of the four acts grants this authority to a different body. The Cater Act gave municipalities the authority to incorporate industrial development boards to carry out the goal of offering inducements. The Wallace Act gave municipalities the authority to carry out the goal of offering inducements as an entity without the establishment of a separate board. In order to give counties the same opportunities as municipalities, the legislature gave counties the same power of creating inducements for location or expansion of manufacturing, industrial, and commercial enterprises. The 1961 County Act gave counties the authority to offer inducements, while the County Board Act of 1977 gave the counties the same authority as municipalities, that is, the power to incorporate a separate industrial board to carry out the inducements to the specified groups. Therefore, the Cater Act, the Wallace Act, the 1961 County Act, and the County Board Act of 1977 are each a part of a legislative plan to give municipalities and counties the authority to offer inducements to industrial, manufacturing, commercial, and research enterprises either by way of industrial boards or as a governmental entity.

This Court is of the opinion that the intent of the Legislature in the passage of the 1977 County Board Act, as well as the Cater Act, the Wallace Act, and the 1961 County Act, was not to give retail business establishments desiring to expand their operations within the state such as McDonald’s and K-Mart, ready access to lower cost financing than other retail businesses; the legislative intent was to induce, attract, and persuade businesses of a non-retail nature, particularly industrial, mining, manufacturing, and research enterprises, to locate here or to expand existing facilities in this state.

Our conclusion is supported by the fact that the Legislature has enacted various pieces of legislation which specifically provide inducements for retail enterprises such as McDonald’s and K-Mart. Some of these acts were passed before the 1977 County Board Act and some were passed subsequent to it.

For example, in the Airport Authority Act, the Legislature specifically authorized the authority “[to] construct, acquire, establish, improve, extend, enlarge, reconstruct, equip, maintain and repair buildings, structures and facilities, suitable for use as manufacturing plants, industrial plants, retail shopping areas or centers ... or for the conduct of any lawful business at, upon or adjacent to any airport ...." Code 1975, § 4-3-11 (emphasis added). Also, the Legislature enacted the Birmingham-Jefferson County Commercial Development Authority Act, Act No. 80-648, Acts of Alabama 1980 (uncodified), which in its definition of “project” specifically included “a shopping center or similar facility suitable for use by two or more commercial enterprises engaged in any business, trade, profession, occupation or activity.” In Code 1975, § 11-94-2, the Legislature granted to port authorities the power “to develop waterfront property for recreational, transporta-tional, agricultural, industrial and commercial purposes.” This Act included in its definition of the term “projects” motels, restaurants, coffee shops, and stores. See Code 1975, § 11-94-1.

Finally, Act No. 4, Acts of Alabama 2d Special Session 1956 (uncodified), and Act No. 337, Acts of Alabama 2d Special Session 1971 (uncodified), granted authority to municipalities to acquire, own, and lease, projects for the purpose of promoting trade by inducing commercial enterprises to locate new projects in this state. “Projects” were defined in these two acts as any land, building, or improvement thereon suitable for use by commercial enterprises which provide one or more of the following services: hotel services, including food or lodging or both, convention, and meeting facilities.

Clearly, these acts show that the Legislature has enacted legislation designed to include retail enterprises. Appellants’ contention that retail establishments similar to McDonald’s and K-Mart were intended by the Legislature to be included in the definition of “project” in the County Board Act is a persuasive argument because a retail establishment could fall under the broad term “commercial enterprise” as that term is used in the County Board Act, if that term is viewed independently from the rest of the statute and the history of the legislation. However, we must view the statute in a manner which best comports with the intent of the Legislature. Thus, we must interpret the term “commercial enterprise” as it is used in the statute by reference to the entire statute and we must examine the history of the legislation, which shows the County Board Act to be a part of the legislative plan to bring industry into this state. The Legislature could have specifically included the word “retail” in its definition of “project” but it did not. The Legislature passed the 1977 County Board Act, including its definition of “project,” to carry out its purpose of enhancing the use of Alabama’s resources in order to provide economic development for the benefit of its citizens. The Legislature chose its words carefully and we must conclude that the Legislature did not intend for retail establishments such as McDonald’s and K-Mart to benefit from this legislation. If it so desires, the Legislature can enact legislation for the benefit of retail establishments in future sessions.

Appellants and appellees have presented to this Court cases from other jurisdictions to support their respective positions. See Day v. Development Authority of Adel, Georgia, 248 Ga. 488, 284 S.E.2d 275 (1981); State v. Jacksonville Port Authority, 305 So.2d 166 (Fla.1974); State ex rel. the Ohio County Commission v. Samol, 275 S.E.2d 2 (W.Va.1980). While these are helpful, we view the issue to be one of statutory construction wherein, in deciding the question posed, we must look to the intent of our Legislature at the time the statute was enacted. See League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974).

Our decision takes into consideration the legislative declaration that the respective acts should be liberally construed. However, this declaration does not allow this Court, in considering the construction of a statute, to expand the definitions beyond a reasonable interpretation of the language. The decision of the trial court is correct and it is hereby affirmed.

AFFIRMED.

MADDOX, JONES, SHORES, EMBRY and ADAMS, JJ., concur.

FAULKNER, ALMON and BEATTY, JJ., not sitting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, a Corporation v. Charles A. GRADDICK, as Attorney General of the State of Alabama on Behalf of the Affected Customers of South Central Bell Telephone Company, and the State of Alabama.
    80-860.
    Supreme Court of Alabama.
    June 11, 1982.

      R. E. Steiner, III, Walter R. Byars, Montgomery, W. M. Booker, Jr., Peyton D. Bibb, Jr., and Atley A. Kitchings, Jr., Birmingham, Steiner, Crum & Baker, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Wendell Cauley and Charles A. Guyton, Asst. Attys. Gen., for appellee Charles A. Graddick, etc.
    Euel A. Screws, Jr., and James M. Edwards of Copeland, Franco, Screws & Gill, Mark Wilkerson, Montgomery, for appellee Alabama Public Service Com’n.
   PER CURIAM.

This appeal, filed by South Central Bell Telephone Company, challenges the Alabama Public Service Commission order of August 28, 1981, which order decreased the Company’s telephone intrastate long distance toll rates.

Because of our holding of mootness, a detailed recital of the background procedures leading up to the order here under attack is not necessary. Suffice it to say that the August 28 order, by its terms, became effective “within three days”; and on September 4,1981, in a general rate case (separate and distinct from the instant case and now pending on appeal), the Commission, by written order formalizing its prior findings, denied the Company’s application for stay of its rate decrease order in toto and ordered “a reduction in local residential rates by approximately $2,317,000 annually based on the number of residential customers at March 31, 1981,” and further ordered that “all schedules of rates and services filed, approved and in effect on August 28, 1981 (except those for local residential rates) shall remain in effect and are therefore not affected by this order.”

The Attorney General, who initiated both the rehearing and the original petition that ultimately resulted in the order here appealed from, candidly conceded during oral argument that, except for the three-day interval between the effective date of the instant order and the Commission’s September 4, 1981, general rate case order, the latter order mooted and rendered ineffective the August 28 order. He further acknowledged that the amount of refund involved for the three-day period was so miniscule in amount as to be impractical to collect, but insists that we address the merits of the appeal and render an opinion for its precedential value.

Judicial restraint compels us to refrain from addressing the merits of the challenged order. The record is clear that the Commission’s September 4 order in the Company’s general rate case embraced the whole of the subject matter spoken to by the Commission in its order here under review. The three-day period between the two orders has the effect of reducing the amount in controversy to such a de minimis status as to render the instant order totally ineffective and, thus, moot.

Consequently, the Commission’s August 28, 1981, order is due to be, and hereby is, reversed; and the cause is hereby rendered.

REVERSED AND RENDERED.

All the Justices concur.


author: FAULKNER, Justice.

text:
    Onva W. NIGG v. Thomas A. SMITH, Jr.
    80-548.
    Supreme Court of Alabama.
    June 18, 1982.

      Richard H. Clem, Birmingham, and Juliet G. St. John of St. John & St. John, Cullman, for appellant.
    Thomas A. Smith, Jr., pro se.
   FAULKNER, Justice.

Onva W. Nigg appeals an order of the Probate Court of Cullman County declaring her to be non compos mentis and appointing a guardian for her. On a prior appeal, this Court upheld the decree of a proceeding pursuant to Code 1975, § 26-2-51, to revoke the order declaring her insane. Nigg v. Smith, 395 So.2d 47 (Ala.1981). Nigg now makes a direct attack on the original order.

Justice Adams, speaking for the Court, stated the facts as follows:

“Nigg, 81 at the time of her petition, is a widow and lives alone. It is undisputed that her vision and hearing are impaired.
“Nigg’s sisters, Leila Moore and Sadie Young, originally petitioned the probate court of Cullman County to declare her non compos mentis and commit her property to the custody of a guardian. A writ to take custody of Nigg for this lunacy inquisition was returned with the county sheriff’s statement: ‘It not being consist ent with the health and safety of the said Onva W. Nigg ... I have not taken her into custody and do not have her present at the place of trial.’ A six man jury found her to be of unsound mind, and the probate court subsequently issued a decree to that effect. The court also appointed Thomas A. Smith, the attorney for Nigg’s sisters, as guardian of Nigg’s estate. According to Nigg’s testimony, the only notice to her of this inquisition occurred when Smith appeared at her home to inform her of the decree.
“Later obtaining her own legal counsel, Nigg filed a petition for revocation of the non compos mentis decree pursuant to Code 1975, § 26-2-51. The petition named her two sisters and the court appointed guardian as respondents. This proceeding was tried in the same probate court before a six man jury. Evidence was introduced by both sides to the issue of Nigg’s mental state. Nigg was present at this proceeding. The jury returned a verdict upholding the original decree of non compos mentis from which Nigg appeals.”
After this Court affirmed the judgment entered in the revocation proceedings, Nigg filed a motion for relief from decrees entered in the original proceeding in accord-anee with ARCP 60(b)(4). Nigg argues that the Probate Court lacked in personam jurisdiction and thus the decrees entered were void. The probate judge denied the motion. Nigg appeals. We reverse and remand.
The issue presented on appeal is whether Nigg waived her right to appeal from the original decree of the probate court in accordance with Code 1975, § 12-22-20, by electing to first pursue the remedy provided by Code 1975, § 26-2-51, a revocation proceeding. We hold that Mrs. Nigg did not waive her right to attack a void judgment.

Alabama Rule of Civil Procedure 60(b)(4) provides that a court may relieve a party from a judgment if that judgment is void. A lack of jurisdiction, either over the person or over the subject matter renders a judgment void. Gradelle v. Star Guidance, Inc., 66 F.R.D. 424 (S.D.N.Y.1975). A void judgment may be distinguished from an erroneous one, which is subject only to direct attack. Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645 (1st Cir. 1972). A judgment rendered by a court without jurisdiction may be directly or collaterally attacked, unless the jurisdiction question has already been adjudicated. Davis v. St. Paul Mercury Indemnity Co., 294 F.2d 641 (4th Cir. 1962). Since the question of jurisdiction was not presented in the revocation proceeding, the general rule is that the question may be presented on appeal unless there is some overriding policy reason to the contrary.

Section 26-2-43 of the Alabama Code provides:

“The judge of probate must issue a writ directed to the sheriff commanding him to summon six disinterested persons of the neighborhood for the trial thereof and also issue subpoenas for witnesses, as the parties may require, returnable to the time of trial. The probate judge must also issue a writ directed to the sheriff to take the person alleged to be of unsound mind and, if consistent with his health or safety, have him present at the place of the trial. (Code 1852, § 2751; Code 1867, § 3190; Code 1876, § 2758; Code 1886, § 3393; Code 1896, § 2258; Code 1907, § 4348; Code 1923, § 8106, Code 1940, T. 21, § 12; Acts 1945, No. 468, p. 704.)”

The return of service from the sheriff’s office states on its face that Onva Nigg was not taken into custody or present at the trial. The writ does not aver that any notice was given Onva Nigg. While an alleged incompetent need not be restrained to establish the court’s jurisdiction over him or her, the person must have notice of the proceeding. Prestwood v. Prestwood, 395 So.2d 8 (Ala.1981). The Court’s decree must affirmatively show the facts establishing jurisdiction over the allegedly insane person. Fowler v. Fowler, 219 Ala. 453, 122 So. 440 (1929). The Court’s decree recites nothing establishing that Onva Nigg had any notice of the proceeding. The decree merely states that “it would not be consistent with the health and safety of said Onva W. Nigg to have her present for the trial at said time.” These allegations, without more, are simply insufficient to show the Court’s jurisdiction over Onva Nigg.

The appellees contend that the revocation proceeding is a part of the original proceeding. Since the probate court had jurisdiction over Nigg in the revocation proceeding, the jurisdictional defects of the original proceedings were cured. Although the two proceedings may have some characteristics of a continuous proceeding, for the purpose of determining jurisdiction, they are not the same proceeding.

The revocation proceeding is one to allow a person who has been adjudged insane to show that he or she is now “of sound mind.” Code 1975, § 26-2-51. The most compelling distinction between a proceeding adjudicating a person insane and a revocation proceeding is the burden of proof. In a proceeding to adjudicate a person insane, the burden of proving insanity is on those persons trying to prove insanity. See Hornaday v. Hornaday, 254 Ala. 267, 48 So.2d 207 (1950). In a revocation proceeding, however, the burden is on the allegedly insane person to prove sanity. Nigg v. Smith, 395 So.2d 47 (1981); Pope v. Bolin, 224 Ala. 322, 140 So. 382 (1932). The original proceeding and the revocation proceeding are not part of one continuous action for purposes of determining jurisdiction. Therefore, the jurisdictional defects of the first proceeding cannot be cured by establishing jurisdiction in the revocation proceeding. Such a holding would violate due process requirements of notice.

The appellees also argue that Nigg tried the revocation proceeding on the assumption that the original proceeding was valid. By choosing to bring a revocation proceeding, the appellees claim that Nigg elected between two mutually exclusive remedies and cannot now appeal the first action. Onva Nigg is not estopped from seeking relief in a direct attack. Nigg presented the issue of the validity of the first judgment in the appeal from the judgment entered in the revocation proceeding but this Court refused to review the issue. An essential element of precluding the relit-igation of an issue is that the issue must have been actually litigated and determined. See Owen v. Miller, 414 So.2d 889 (Ala.1981); Russell v. Russell, 404 So.2d 662 (Ala.1981).

Finally, the appellees urge this court to hold that an appeal and a revocation proceeding are mutually exclusive remedies and that once Onva Nigg elected to pursue the remedy of a revocation proceeding, she was precluded from bringing a motion for relief from the original judgment and an appeal. This contention is untenable.

The revocation proceeding often gives a remedy in the case of changed circumstances, such as when the insane person is restored to sanity. A direct appeal from an inquisition permits review of error only in the original proceeding. While the two proceedings may serve some similar functions, clearly they provide remedies which are supplemental to each other.

There is no reason to make an exception to the general rule that a judgment which is void may be attacked in any proceeding, direct or collateral. Therefore, the judgment of the trial court is reversed and remanded for the trial court to grant the Rule 60(b)(4) motion for relief from the judgment.

REVERSED AND REMANDED.

JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX and ADAMS, JJ., concur in the result.

      . This Court in the first appeal, Nigg v. Smith, 395 So.2d 47 (Ala.1981), refused to address the jurisdiction question because it was not properly presented on appeal. An inquisition may be attacked on jurisdictional grounds by a collateral action, including a revocation proceeding.


author: BRADLEY, Judge.

text:
    Ronald Eugene ROBERTSON v. Robin Lee ROBERTSON (Watkins).
    Civ. 2990.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Rehearing Denied March 31, 1982.

      Stephen V. Hammond of Chenault, Che-nault & Hammond, Decatur, for appellant.
    Miles T. Powell, Decatur, for appellee.
   BRADLEY, Judge.

This is a child custody modification proceeding.

The parties to the proceeding were married on August 13, 1970. Two children, both daughters, were born of the marriage. On October 9,1979 the parties were granted a divorce by reason of incompatibility by the Morgan County Circuit Court. Pursuant to an agreement of the parties, the court awarded custody of the parties’ minor children to the father, granting the mother reasonable visitation rights and privileges.

On March 25, 1981 the mother filed a petition to modify the custody provisions of the prior decree. At the hearing on that petition the following facts were elicited. Prior to the 1979 divorce, the father apparently discovered that the mother had had an extramarital affair. The divorce was promptly obtained. The court adopted an agreement of the parties whereby the mother voluntarily gave the father custody of the parties’ two minor children. The mother testified that at the time the agreement was made, she was distressed and unable to make an intelligent decision as to custody of the children. She also testified that she had no counsel at the time, and that she was coerced into the agreement. The father denied these allegations.

Although it was apparently unknown at the time of the divorce proceeding, the father had, during the marriage, had an extramarital affair with a woman whom he later married. An illegitimate child was born of that affair. The mother testified that she did not know of the father’s activities at the time the agreement was made.

From the time of the divorce up until the institution of these proceedings in March 1981, the mother made no attempt to either visit or correspond with her children. She testified that she had visited with them only once, for a period of five days, in April 1981. She also stated that she was not kept informed as to the father’s whereabouts.

Since the divorce, the mother has remarried and has moved back to the proximity of her parents in the state of Washington. She has one child by the second marriage, and is active in the Mormon church. In her petition for modification, she alleges that this change in circumstances, and the natural relationship between mother and daughter, justify an award of custody to her.

The father has also been married again, to the woman who bore his illegitimate child. With children from former marriages and the illegitimate child, the father now has five children living in his household. The father testified that in 1976 he was discharged from the army, during the time the parties were still married. Since that time he has been employed at eleven different jobs in various locations in the states of Alabama and Florida. Six of these jobs, including his present membership in the United States Army, were held subsequent to the parties’ divorce in 1979. The length of employment in these diverse locations varied from one week to a year and a half.

After the hearing the Circuit Court of Morgan County granted the mother’s petition, awarding her custody of the parties’ two minor children. The court found that (1) the mother and the court were not, at the time of the rendition of the original decree, fully aware of all of the facts in the case; (2) the mother was under some undue influence at the time; (3) a different result as to custody of the children may have been reached if the entire set of facts had been known; and (4) a material change in the circumstances of both parties had taken place, justifying an award of custody to the mother. The court stated:

The interest of this Court is in the welfare and the well-being of the two minor children. The issue is, as between these parties, which parent can best provide for the long term security, stability and welfare and well-being of these minor children, and can most likely offer these children the best chances of reaching majority best equipped to lead a useful and productive life. In considering this, the Court considers the natural relationship of mother and daughter and the intimate benefits that a daughter of tender age can derive from that relationship; the stability of the relative homes and lifestyles of the parents; the adequateness of the physical facilities for the children by each parent; the ability of each parent to provide for and support the children; and the general and overall well-being and welfare of the minor children.

The father appeals from that order, alleging (1) that the trial court wrongfully considered the “tender years” presumption, a doctrine recently held unconstitutional by the Alabama Supreme Court, in making its decision; (2) that there was no evidence of a material change in circumstances sufficient to justify modification of the prior custody provisions; and (3) that the court erred in considering facts existing but unknown at the time the original divorce decree was rendered.

The party seeking to modify the custody provisions of a prior decree has the burden of proving a material change of circumstances among the parties since the rendition of the decree, or of proving material facts which, although in existence at the time of the original decree, were then undisclosed and have since been revealed. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976). The paramount consideration in every child custody case is the best interest of the children. Hodges v. Nelson, 370 So.2d 1020 (Ala.Civ.App.1979). In child custody modification proceedings, we will review the judgment of the trial court with a presumption of correctness. The award of custody is a matter within the sound discretion of the trial judge, and that decision will be reversed on appeal only for plain and palpable error. Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977).

Appellant first contends that the trial court wrongfully based its decision to modify the award of custody on the “tender years” presumption, a doctrine declared unconstitutional by the Alabama Supreme Court in the case of Ex parte Devine, 398 So.2d 686 (Ala.1981). Appellant bases his contention on the court’s language in the final decree stating, “the Court considers the natural relationship of mother and daughter and the intimate benefits that a daughter of tender age can derive from that relationship.”

While we recognize the validity of appellant’s contention regarding the unconstitutionality of the “tender years” presumption, we do not find that the court’s statement concerning the mother-daughter relationship in fact constitutes an improper reliance on that doctrine. The trial court, in child custody matters, is free to consider, among other factors, the sex and age of the children involved, along with the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children. Ex parte Devine, supra. We do not find that the court’s consideration of the relationship is a singularly significant factor underlying the court’s decision, as was the case in Devine. The court in its order indicated that it also considered a variety of other factors in awarding custody of the children. In view of the numerous factors considered by the court, we find no merit in appellant’s first contention.

Appellant next contends that there is no evidence of a material change in circumstances sufficient to justify modification of the child custody provisions. Specifically, appellant contends that the court erred in considering (1) the changes in residence made by appellant since the divorce, alleging that, absent a showing of an adverse effect on the children, a change of residence is insufficient by itself to justify modification; and (2) the fact of appellee’s remarriage and change in lifestyle. We agree with appellant that neither a change in residence, absent a showing of an adverse effect on the children, nor the remarriage of one of the parties, alone justifies a modification of an existing child custody award. Porter v. Templeton, 368 So.2d 35 (Ala.Civ.App.1979); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214 (1975). However, both changes in residence and a party’s subsequent remarriage are factors to be considered, among others, by the trial court in making its determination of whether a material change in circumstances has been proven. See Hodges v. Nelson, supra; Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970). The trial court, as it indicated in its order, considered a number of factors in ascertaining whether the best interests of the children would be served by a modification of the previous custody decree. No one factor by itself appears to have unduly influenced the court’s decision. We find no merit in appellant’s second contention.

Appellant lastly contends that the trial court erred in considering facts existing at the time of the original decree but which were unknown at that time, since those facts would not have required a different result in the original child custody proceedings. We cannot agree with appellant’s contention. In a custody modification proceeding, the trial court may consider facts which, although known at the time of the original proceeding, were undisclosed and have later been revealed. Smith v. Smith, supra. At the time of the original custody proceeding, the misconduct of either spouse is a factor to be considered by the court in determining the best interests of the children involved. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980). Full knowledge of the respective indiscretions of both parties may have affected the decision of the trial court in the original divorce and custody proceeding, and was certainly properly considered by the trial court in the present proceeding. We find no error here.

For the foregoing reasons, the judgment below is affirmed.

AFFIRMED.

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


author: ALMON, Justice. MADDOX, Justice

text:
    Ex parte Ronald Eugene ROBERTSON. (In re Ronald Eugene ROBERTSON v. Robin Lee ROBERTSON (Watkins)).
    81-583.
    Supreme Court of Alabama.
    June 11, 1982.
    Stephen V. Hammond of Chenault, Che-nault & Hammond, Decatur, for petitioner.
    Miles T. Powell, Decatur, for respondent.
   ALMON, Justice.

WRIT DENIED. 415 So.2d 1085.

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

MADDOX, JONES and SHORES, JJ., concur specially.

MADDOX, Justice

(concurring specially).

I agree that the writ is due to be denied. Even though the trial judge did consider “the natural relationship of mother and daughter and the intimate benefits that a daughter of tender years can derive from the relationship,” I am not convinced that this Court should review the Court of Civil Appeals, especially since that court, after a review of the record, determined that the judgment of the trial court was based upon a totality of circumstances, including the sex and age of the child.

The Court of Civil Appeals found:

“While we recognize the validity of appellant’s contention regarding the unconstitutionality of the ‘tender years’ presumption, we do not find that the court’s statement concerning the mother-daughter relationship in fact constitutes an improper reliance on that doctrine.”

In view of the fact that the Court of Civil Appeals determined, after a review of the record, that the trial court did not rely upon the tender years presumption in its award of custody, I agree that the writ can be denied.


author: WRIGHT, Presiding Judge.

text:
    James William PARKER v. Mary Joan PARKER.
    Civ. 2996.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    Rehearing Denied April 21, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-644.

      Carl E. Chamblee, Birmingham, for appellant.
    Conrad M. Fowler, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a denial of a petition to modify child support.

The parties herein, James William Parker and Mary Joan Parker, were divorced by consent decree on June 20, 1979. No appeal was taken within the time allowed by law. Of the four children born of the marriage, two were minors at the time of the divorce. The wife was awarded custody of the minor son and daughter, and child support was set at $500 per month “until such time as the parties’ youngest child shall attain the age of 19, marry or become full-time employed.” The minor daughter attained the age of 19 years on October 26, 1980. Beginning with his November 1980 child support payment, the former husband reduced the amount paid to $250.

On April 10, 1980, the former wife petitioned the court to hold the former husband in contempt for failure to comply with the original divorce decree. Parker answered on May 13, 1980, and cross-petitioned alleging that the wife should be held in contempt for failure to comply with the original divorce decree, and that the decree was ambiguous and unclear regarding child support. Both parties subsequently filed various amendments to their pleadings. Parker included a prayer for modification of the amount of child support. An ore tenus hearing was held April 28, 1981.

The court entered its findings on May 7, 1981, held both parties in contempt of court for failure to comply with the original decree, and denied the former husband’s petition for modification of the child support payments. The court found the husband to be in arrears in the amount of $1,500 for child support, and awarded the wife $750 for her attorney’s fee. Post judgment motions by both parties were denied. The husband appeals the denial of his petition for modification of child support, the ar-rearage, and the award of attorney’s fees to the former wife.

The issues on appeal are whether the trial court abused its discretion (1) by refusing to modify the child support; (2) in ascertaining an arrearage of $1,500 for past due child support; and (3) in allowing the former wife $750 as an attorney’s fee.

Appellant contends that the child support provision in the original decree was improperly changed to read “until such time as the parties’ youngest child shall attain the age of 19, marry or become full-time employed.” No appeal was taken from that decree within the time allowed, and the appellant cannot now complain about that provision. See, Marino v. Marino, 381 So.2d 89 (Ala.Civ.App.1980). We also note that it was stipulated that the original decree was entered pursuant to an agreement of the parties and with their consent.

We turn now to the issue concerning the denial of the petition for modification of child support. Such a modification must be necessitated by a material change in circumstances, and is a matter within the judicial discretion of the trial court. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981). We will not disturb the exercise of such discretion on appeal unless after a review of the evidence we find the trier of fact to be plainly and palpably wrong. Moore v. Moore, 396 So.2d 1074 (Ala.Civ.App.1981).

In the instant case, the former husband had remarried, one of the minor children had reached the age of 19, and the former husband alleged that his income had diminished. The court, after an ore tenus hearing, resolved the income issue against Parker. The court, in denying the modification, apparently did not find the other changes sufficient to justify a reduction in child support. That decision is presumed correct and will not be disturbed on appeal unless the evidence shows it to be plainly and palpably wrong. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980). We find no error.

We also find no error as to the arrearage. The same presumptions apply, and the calculation of the trial court is supported by the evidence. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974).

The final issue concerns the award of attorney’s fees to the former wife. The award of a reasonable attorney’s fee in connection with a petition to modify is within the trial court’s discretion. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978). We find no abuse of that discretion here.

The wife’s request for attorney’s fees on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . In the instant action, the parties stipulated that the final decree of divorce was entered pursuant to the settlement agreement of the parties and with the consent of the parties.

      . The divorce case was heard ore tenus by the Honorable Judge Harold Walden. The final decree of divorce, however, was entered by the Honorable Judge James H. Sharbutt pursuant to Rule 63, A.R.C.P. when Judge Walden was out of the state. Judge Sharbutt apparently changed and initialed this provision of the consent decree. It originally read in pertinent part, “until such time as the parties’ children attain the age of 19, marry or become full-time employed.”


author: HOLMES, Judge.

text:
    Thomas D. PINION v. ALABAMA STATE TENURE COMMISSION.
    Civ. 2972.
    Court of Civil Appeals of Alabama.
    March 24, 1982.
    Rehearing Denied April 21, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-650.

      Tim Jolley of Locke & Locke, Birmingham, for appellant.
    Carl E. Johnson, Jr., of Bishop, Colvin & Johnson, Birmingham, for appellee.
   HOLMES, Judge.

This is a teacher tenure ease.

The teacher-principal, Thomas Pinion, had been employed by the Jefferson County school system for eighteen years and had attained continuing service status (tenure). The county board of education terminated the teacher, and he appealed to the Alabama State Tenure Commission. The tenure commission affirmed the decision of the board of education. The teacher petitioned the circuit court for a writ of mandamus. The circuit court, in denying the teacher’s petition, found that the action of the tenure commission was in compliance with the applicable provisions of the Teacher Tenure Act and that the action was not arbitrarily unjust.

The teacher, through able counsel, appeals to this court and we affirm.

The teacher’s contentions on appeal are: 1) the action taken by the board of education was arbitrarily unjust; 2) the board of education violated the Teacher Tenure Act when it failed to make specific findings of fact and submit them as part of the record; and 3) certain other acts of the board of education resulted in a denial of the teacher’s right to due process.

We find it neither necessary nor prudent to set forth all the facts which resulted in the teacher’s termination. Suffice it to say that the record before us contains evidence which indicates the teacher failed to properly carry out his duties as principal.

We note “that the State Tenure Commission’s conclusions and judgment will not be reversed on appellate review as being unjust unless it is against the preponderance of the evidence and the overwhelming weight of the evidence.” Sumter County Board of Education v. Alabama State Tenure Comm’n, 352 So.2d 1137, 1139 (Ala.1977).

I

Section 16-24-8, Code of Alabama 1975, provides in pertinent part:

Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, ... or other good and just cause, but cancellation may not be made for political or personal reasons.

Viewing the record with the attendant presumptions, the following is pertinently revealed:

In September, 1979 the board of education notified the teacher that his contract had been suspended and that a hearing had been set to consider terminating the teacher. The board of education stated as grounds for the proposed termination incompetency, insubordination, neglect of duty, and other good and just cause. In support of these statutory grounds for termination, the board of education cited the failure of the teacher to maintain discipline, to properly assess and evaluate the faculty, and to actively participate in the school’s accreditation process. The board of education further alleged that the teacher had failed to report sick days, and that the teacher’s health problems undermined his support from the faculty and the community.

Incompetency can mean disqualification, inability, or incapacity. County Board of Education v. Oliver, 270 Ala. 107, 116 So.2d 556 (1959). The evidence in the record before us supports the conclusion that the teacher was incompetent.

The demerit system employed by the teacher was not an effective means of ensuring discipline. Students were left unsupervised in the “sick” room. The evidence indicates the teacher failed to communicate coherently with students and faculty. His morning intercom announcements were sometimes incomprehensible. The teacher was often sluggish and was seen sleeping at his desk for as much as three hours a day. Once, when sitting in at a conference between a faculty member and a parent, the teacher read a newspaper instead of participating in the discussion between the parent and the other teacher.

Insubordination on the part of the teacher is evidenced here specifically by his failure to comply with the rules of the board of education regarding assessments and evaluations. The teacher allowed his secretary to complete parts of the assessment and evaluation forms. The teacher evaluated some faculty members without properly observing them in a classroom setting.

In alleging that the teacher neglected his duty, the board of education specifically noted that the teacher did not take an active part in the school’s accreditation process. During the fall of 1978, when the school was being reviewed for accreditation, the teacher was often absent due to illness. A school counselor testified that she had to take primary responsibility for overseeing and completing the entire accreditation process. The teacher failed to participate in or review the school counselor’s plans in this regard.

The board of education also alleged in its notice of proposed termination that the teacher’s health problems constituted good and just cause for termination because “[t]here [would] be extreme troubles with the community and faculty.... ” It is undisputed that the teacher was addicted to alcohol and certain medications. The teacher informed his superiors during the summer of 1979 that he was seeking treatment for his alcohol and drug abuse problem. There is evidence that the teacher successfully completed a rehabilitation program, and his physicians informed the teacher’s superiors of his progress.

The circuit court ruled that if the teacher was indeed on sick leave during the summer of 1979 with the consent of his superiors, then the board of education could not charge the teacher with failing to carry out his responsibilities during that time period. The learned trial court, though, further stated in its order:

However, the charges against [the teacher] do not actually seem to relate to that period of time, and even disregarding that period of time the Court finds there is sufficient evidence to support the Board’s finding.

In view of the above, the findings and conclusions by the board of education and the tenure commission of incompetency, insubordination, and neglect of duty on the part of the teacher are not against the preponderance of the evidence and the overwhelming weight of the evidence. Therefore, this court has no alternative but to affirm.

II

The teacher next contends that the board of education’s failure to make specific findings was a violation of the Teacher Tenure Act.

We find our recent decision in Pratt v. Alabama State Tenure Comm’n, 394 So.2d 18, 21 (Ala.Civ.App.1980), cert. denied, 394 So.2d 22 (Ala.1981), to be dispositive of this point:

At the outset, we note § 16-24-9, Code of Ala. 1975, outlines the procedure the board of education must follow in terminating teacher contracts. Neither this code section nor any other in the Teacher Tenure Act requires the board to make specific findings of fact.
This court is cognizant of § 16-24-10(b), Code of Ala. 1975, which requires the board of education to assemble, for the purposes of the teacher’s appeal to the State Tenure Commission, the record of its proceedings including the board’s finding and decision.

In the instant action, the teacher was notified by letter that the board of education was considering terminating his contract. This letter, which is contained in the record, listed the statutory grounds and specified the reasons for the proposed termination. The hearing in this action lasted five days and resulted in a 1246 page transcript. The teacher was represented by an attorney throughout the proceeding. Thereafter, the teacher was notified in writing that the board of education had considered all the evidence and exhibits presented at the hearing and had voted in favor of termination. The evidence, as indicated above, supports this finding.

Therefore, we cannot hold that the board of education’s failure to make specific findings violated the Teacher Tenure Act. We note, however, that it would be better practice for the board of education to make specific findings setting forth the grounds upon which it relied in terminating the teacher’s contract. Pratt v. Alabama State Tenure Comm’n, supra.

Ill

The teacher’s final contention is that he was deprived of due process of law. The essential pertinent elements of due process under the Teacher Tenure Act which relate to the teacher’s final contention are that the teacher or his counsel appear and be allowed to examine and cross-examine witnesses. Alabama State Tenure Comm’n v. Board of School Commissioners, 332 So.2d 724 (Ala.Civ.App.), cert. denied, 332 So.2d 732 (Ala.1976).

The teacher alleges that the board of education intimidated one of the teacher’s witnesses, William Pugh, who served as director of employee relations and as in-house counsel to the board. Mr. Pugh was questioned about an alleged statement made by a member of the board of education which might have indicated personal or political bias on the part of the board of education in violation of section 16-24-8. See Marshall County Board of Education v. Alabama State Tenure Comm’n, 291 Ala. 281, 280 So.2d 130 (1973).

We have reviewed the record and can find no evidence that Mr. Pugh was intimidated or otherwise prohibited from responding to questions put to him by the teacher’s attorney. Indeed, members of the board of education themselves questioned Mr. Pugh about this alleged statement. Mr. Pugh’s testimony on this point fills several pages of the record on appeal. Because Mr. Pugh was allowed to testify at length about the alleged statement, and because there is no evidence that he was prevented from so testifying, the teacher’s due process right to examine and cross-examine witnesses was satisfied.

The teacher also contends his right to due process was violated because this same witness, Mr. Pugh, was present during the executive session of the board of education when the vote was taken to terminate the teacher.

We initially point out that the minutes of the board of education’s meeting are not part of the record on appeal, and thus this court cannot look to evidence dehors the record to determine who was present at the meeting. Southern Haulers, Inc. v. Martin, 382 So.2d 491 (Ala.1980).

The record does reflect, as indicated, that Mr. Pugh served in some instances as in-house counsel and as the director of employee relations (personnel director) for the board of education. It is also apparent that the teacher was aware of Mr. Pugh’s connection with the board of education when the teacher called Mr. Pugh as a witness. The teacher made no objection to Mr. Pugh’s presence at the hearing nor did the teacher raise questions about the capacity in which Mr. Pugh served.

Assuming, then, that Mr. Pugh actually attended the board of education’s executive session, we can find no denial of due process on these facts, especially in light of the fact that the teacher himself chose to call as a witness the person who served as in-house counsel for the board of education and the director of employee relations.

In view of all the above, we find this cause is due to be affirmed.

AFFIRMED.

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

      . The teacher is to be commended for this action.


text:
    Robert L. WARD, Sr. v. Hugh KING, d/b/a King’s IGA.
    Civ. 3021.
    Court of Civil Appeals of Alabama.
    March 24, 1982.
    Rehearing Denied April 28, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-668.

      Joel M. Nomberg of Nomberg, McCabe & Fulford, Daleville, for appellant.
    J. M. Albritton of Albrittons & Givhan, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The trial court, sitting without a jury, found that plaintiff had sustained a thirty percent permanent partial loss of ability to earn and awarded benefits commensurate with such finding. Plaintiff appeals. We affirm.

The issues on appeal are: (1) whether the trial court’s decree contains sufficient findings of fact to meet the requirements of § 25-5-88, Code (1975); and (2) whether there is sufficient evidence in the record to support the findings of a thirty percent permanent partial loss of ability to earn.

Section 25-5-88, Code (1975) provides in pertinent part:

[T]he judgment ... shall contain a statement of the law and facts and conclusions as determined by said judge.

This is necessary because the only method of review in workmen’s compensation eases is by certiorari. Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.), cert. denied, 387 So.2d 206 (Ala.1980). Substantial compliance with the requirements of the section, however, has been held sufficient. Republic Steel Corporation v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.), cert. denied, 370 So.2d 297 (Ala.1979).

The following is a summary of the findings of fact contained in the trial court’s decree:

1. At the time of the injury the relationship between plaintiff and defendant was that of employee and employer within the meaning of Alabama’s Workmen’s Compensation statute.
2. Plaintiff’s injury was incurred while in the course of his employment with defendant.
3. Defendant has paid to plaintiff temporary total disability compensation at a rate of $116.67 per week for fifty-two weeks.
4. Defendant has paid to plaintiff $35.00 per week for thirty-seven weeks for a thirty percent permanent partial disability of the body as a whole.
5. Defendant has paid medical expenses incurred in the treatment of plaintiff’s injuries and agrees to pay any expenses arising from the injury which are unpaid.
6. Plaintiff’s average weekly wage at the time of his accident was $175.00 and his compensable rate for total disability would be $116.67 per week.
7. As a result of the accident plaintiff sustained a thirty percent permanent partial loss of ability to earn.

The decree then sets out specifically the number of weeks which had elapsed since the injury, the number of weeks in which disability has already been paid, the amount of compensation due as of the date of the trial, and the amount to be paid in weekly installments in the future.

Plaintiff contends that the decree did not have sufficient findings of fact upon which the court could base its conclusion that as a result of the accident plaintiff sustained a thirty percent permanent partial loss of ability to earn. We note that the decree does not specifically describe plaintiff’s physical injuries, his educational background, or his previous work history. Where, however, there is merely an omission of one of the necessary facts to be found by the trial judge, the appellate court can go to the evidence in the record to determine if the judgment can be sustained. Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969).

It is a well-settled rule that a judgment in a workmen’s compensation case will not be disturbed upon review by certiorari if there exists any legal evidence to support the trial court’s findings. Bolden v. M. Lowenstein & Sons, Inc., 392 So.2d 1207 (Ala.Civ.App.1981).

The record before us reveals the following: Plaintiff was fifty-three years old at the time of the trial. He had only a seventh-grade education. He had served in the armed services and worked on a farm. For the past several years, however, he had been employed as a meat cutter. He was employed as such with defendant at the time he suffered his injury. Plaintiff injured his back while lifting approximately seventy pounds of chickens. He has undergone surgery on his back three times. At the time of the trial he was still complaining of pain in his back and leg and had some difficulty walking. Plaintiff testified that he had gone to a rehabilitation center and sought employment at the unemployment office. He was still unemployed at the time of trial. His attending physician testified that plaintiff had suffered a thirty percent permanent partial disability and could not engage in heavy lifting or twisting movements. An occupational expert, who had interviewed plaintiff several months prior to trial, testified that because of plaintiff’s physical disability and educational level as much as eighty percent of the job market might be closed to him.

Plaintiff contends that the trial court failed to properly distinguish between physical disability and decreased earning capacity. He argues that the testimony of the occupational expert should have been given more consideration.

The testimony of experts is not conclusive on the trial court. Falls v. Warrior Drilling & Engineering Company, Inc., 399 So.2d 854 (Ala.Civ.App.1981). Even if such testimony is uncontradicted, the weight and sufficiency to be attributed to an expert witness is for the trier of fact. Clark Lumber Company, Inc. v. Thornton, 360 So.2d 1019 (Ala.Civ.App.1978). Evidence as to physical disability of the body is not the sole determinative factor in assessing the percentage of loss of earning capacity. Education, age and work experience are other factors which the trial court may consider. City of Enterprise v. Herring, 372 So.2d 358 (Ala.Civ.App.1979). When the evidence is conflicting, resolution of the conflict is for the trial judge. The evidence in the instant case is in conflict. Since the trial judge has the opportunity to observe the demeanor of the witnesses and is not bound by expert testimony, the determination of the proper percentage of permanent partial disability rests with him. Hester v. Ridings, 388 So.2d 1218 (Ala.Civ.App.1980).

We cannot say that the evidence here fails to support the trial court’s finding of a thirty percent permanent partial loss of ability to earn.

Plaintiff’s contention that the trial court erred in failing to award mileage expenses incurred in the obtaining of medical treatment is not well taken. Section 25-5-77(c), Code (1975) is concerned with board, lodging and travel expenses incurred by an employee who must move away from his customary residence to undergo vocational rehabilitation. The mileage expenses claimed by plaintiff were incurred in obtaining medical treatment from his attending physicians. In any event, the record is void of proof of the actual expenses incurred and the reasonableness of those expenses.

Finding no error this case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    U. S. A. OIL, INC., a corporation v. Anne SMITH.
    Civ. 3019.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    Rehearing Denied April 28, 1982.
    Richard L. Taylor, Birmingham, for appellant.
    Ralph E. Coleman, Birmingham, for ap-pellee.
   HOLMES, Judge.

This appeal requires this court to consider for the first time the tort of outrage as recognized by our supreme court in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981).

This appeal arose from an action instituted by U.S.A. Oil, Inc. (appellant) against Gaines Smith and Anne Smith (appellee). U.S.A. Oil’s action against Gaines Smith was based upon his alleged failure to pay for products delivered to him by U.S.A. Oil. The action against Anne Smith was for fraud based upon her alleged failure to properly bill her husband’s account while she was employed by U.S.A. Oil as a bookkeeper. The Smiths denied these allegations and filed several counterclaims against U.S.A. Oil. Among the counterclaims was an allegation that U.S.A. Oil, due to its extreme and outrageous conduct, intentionally or recklessly caused the Smiths to experience severe emotional distress.

A jury trial on the issues raised by the parties was held on July 8, 1981. At the close of the evidence the appellant made a motion for a directed verdict on the outrage counterclaim. The trial court denied the motion and allowed the issue to go to the jury. After considering the evidence the jury determined that Gaines Smith was liable to U.S.A. Oil for the products received by him and that U.S.A. Oil was liable to Anne Smith for punitive damages in the amount of $10,000 on her outrage counterclaim.

On August 3, 1981 U.S.A.. Oil made a motion for a judgment notwithstanding the verdict and in the alternative for a new trial. The learned trial judge denied this motion. This appeal followed.

The issue that this court must determine is whether the facts and circumstances of this case are sufficient to subject U.S.A. Oil to liability for the tort of outrage. We hold, as a matter of law, they are not.

The record reveals the following: Appel-lee Anne Smith had been employed by appellant U.S.A. Oil as a bookkeeper since 1973 or 1974. Her duties as a bookkeeper required her, among other things, to make entries or supervise the making of entries on the accounts receivable ledgers. Among the accounts receivable ledgers that appel-lee was responsible for was that of her husband who purchased gasoline from U.S.A. Oil.

On June 29, 1977 appellee received a call from a dispatcher for U.S.A. Oil concerning her employment. As a result of this call, appellee called Joe Saxon, who was president and chairman of the board of U.S.A. Oil. According to appellee, Saxon told her that she was not fired but that she should take a leave of absence. Furthermore, Saxon informed her that he would continue to pay her for a month and after that she would receive a $500 retainer. After this conversation appellee received three more checks. The $500 retainer never materialized. Also, in spite of Saxon’s statement that she was not fired, this conversation in fact served as her termination.

After appellee was terminated certain ostensible irregularities were discovered. U.S.A. Oil sent appellee a letter dated September 1,1977 outlining the claimed irregularities. Among them was the discovery that charges for two gasoline deliveries that had apparently been made to appellee’s husband were never entered on the husband’s accounts receivable ledger sheet at U.S.A. Oil. Additionally, the company discovered certain discrepancies in the oil invoices wherein some of them had been marked paid yet no cash in the amount of the payment was deposited in the company account. Also a telephone refund check had not been properly deposited in the company account. It was also discovered that certain materials that had been used to remodel appellee’s home had been charged to U.S.A. Oil. The company also claimed that appellee had in her possession a calculator which belonged to the company. In closing, Mr. J. W. Traylor, administrative vice president and author of the letter, stated that consideration was being given to presenting the matter to the grand jury.

Notwithstanding the threatened criminal action, no action was taken against appellee on any of the accusations contained in the letter except appellee’s alleged failure to properly bill her husband’s account which was the basis of the fraud claim. At trial, however, appellee responded to all the charges contained in the letter.

With regard to the calculator, appellee testified that Saxon informed her that she could have the calculator. With regard to the materials used in her home, appellee testified that they had been paid for through payroll deductions from her husband who had previously worked at U.S.A. Oil. Regarding the telephone refund check she testified that she and Saxon had split the checks which had amounted to less than $200. With regard to the lack of deposits corresponding to payments appellee testified simply that she deposited all the monies she ever received to the account of U.S.A. Oil. Finally, regarding the failure to bill her husband for two gasoline deliveries she stated that she was not familiar with the two deliveries. Further testimony also indicated that apparently some error had been made in a department other than bookkeeping in documenting the two deliveries.

As stated earlier, the jury, after considering the evidence, awarded appellee $10,000 on her outrage counterclaim. The appellant appeals contending that appellee’s evidence did not meet the quantum of proof required to establish a claim for outrage. We agree.

In reaching its decision in Inmon, our supreme court was guided by section 46 of the Restatement (Second) of Torts. Section 46 provides the following:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

It is apparent from a reading of section 46 that there are four separate and distinct elements of the tort of outrage. As stated by the Supreme Judicial Court of Massachusetts in Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315, 313-19 (1976), it must be shown:

... (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct ...; (2) that the conduct was “extreme and outrageous,” ...; (3) that the actions of the defendant were the cause of the plaintiff’s distress, ...; and (4) that the emotional distress sustained by the plaintiff was “severe” ....

See also Inmon, supra; Peddycoart v. City of Birmingham, 392 So.2d 536 (Ala.1980); Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974). There can be no recovery for the tort of outrage unless all four elements are established.

Appellee, through able counsel, maintains that appellant’s conduct of terminating her, not paying her a retainer as promised, sending her a letter threatening her with prosecution for embezzlement and bringing suit against her for fraud was sufficiently extreme and outrageous to support recovery. We need not decide, however, whether the above conduct was so outrageous and extreme as to go beyond all possible bounds of decency (Inmon, supra, at 365) because the proof in this instance was legally deficient in two other respects. Our decision is based upon appellee’s failure to establish with legally sufficient evidence that the above conduct caused her emotional distress and appellee’s failure to prove with legally sufficient evidence that her emotional distress was severe.

The testimony regarding appellee’s emotional distress was quite brief. Appellee testified that after her termination she had to go to the doctor. She also testified that her employment problems affected her sleep. Appellee’s husband testified that ap-pellee had problems sleeping after she was terminated. He further testified that the letter from U.S.A. Oil upset her and she cried a lot. Finally, the husband testified that his wife was a very nervous person and had to take tranquilizers.

The foregoing, though indicative of some emotional distress, does not sufficiently establish that appellant’s conduct was the cause of the distress. Appellee’s husband testified that his wife “is a very nervous person” which strongly indicates that appel-lee’s nervous condition existed prior to the complained of conduct. The appellee herself testified that she went to the doctor but she did not specify why she went nor how many times she went nor the recommended treatment if any. Appellee’s husband testified that appellee had to take tranquilizers but there was no testimony as to the strength of the medication nor whether it was prescribed by a doctor nor how long she had been taking the medication nor whether she was taking medication prior to the alleged outrageous conduct. Both the appellee and her husband testified that she had experienced some problems sleeping. Again, however, neither the exact nature of these problems nor their duration was specified. Also, as with the medication evidence, evidence regarding ap-pellee’s sleep habits prior to the alleged outrageous conduct would have been a useful tool in establishing causation.

In summary, due to the lack of evidence of appellee’s emotional and physical state prior to the complained of conduct and the lack of particularities regarding appellee’s emotional and physical state after the complained of conduct, this court must hold, as a matter of law, that causation was not established in this case. See Harris v. Jones, supra.

Appellee’s proof was also deficient regarding the element of “severe emotional distress.”

The tort of outrage was not developed to provide a person with a remedy for the trivial emotional distresses that are common to each person in his everyday life. Such distress is the price of living among people. Restatement (Second) of Torts § 46, Comment j (1965). Thus, in order to prevent the tort of outrage from becoming a panacea for all of life’s ills, recovery must be limited to distress that is severe. In describing the type of distress that would support recovery our supreme court stated that “[t]he emotional distress . . . must be so severe that no reasonable person could be expected to endure it.” Inmon, supra, at 365. See Harris v. Jones, supra; Agis v. Howard, supra; George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971); Restatement (Second) of Torts § 46, Comment j (1965). After reviewing the evidence in light of the above, we must conclude that, though appellee apparently did suffer some distress, it was not so “severe” as to support recovery for the tort of outrage.

This conclusion is supported by the facts and outcome of Inmon. It should be remembered that in Inmon, though the supreme court recognized a cause of action for outrage, it also held that the facts of the case were not sufficient to bring it within that cause of action. The facts of that case regarding emotional distress are similar to the facts of the present case in that in Inmon the plaintiff established that he had suffered weight loss and insomnia.

Also similar is Harris v. Jones, supra, wherein the emotional distress manifested itself in the aggravation of a pre-existing nervous condition and a worsening of a speech impediment. It was also established that the plaintiff had visited a physician once during the duration of the outrageous conduct and that the physician recommended the same treatment the plaintiff had been receiving for the past six years which was the taking of pills. After chronicling the above evidence of emotional distress the Court of Appeals of Maryland held, as a matter of law, that the humiliation suffered by the plaintiff did not constitute severe emotional distress.

In light of the foregoing we must conclude that the facts of the instant case are not sufficient to establish a cause of action for outrage. Consequently, the trial court erred in not granting appellant’s motion for a directed verdict or judgment notwithstanding the verdict.

This case is due to be reversed and remanded for disposition not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . The trial court granted Anne Smith’s motion for a directed verdict on the fraud claim.


text:
    Ex parte Anne SMITH. (In re U.S.A. OIL, INC., a Corporation v. Anne SMITH).
    81-669.
    Supreme Court of Alabama.
    June 11, 1982.
    Ralph E. Coleman, Birmingham, for petitioner.
    Richard L. Taylor, Birmingham, for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied. 415 So.2d 1098.

In denying the petition for writ of certio-rari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

All the Justices concur.


text:
    Edsel Charles JOHNSON v. Maebelle L. JOHNSON.
    Civ. 3082.
    Court of Civil Appeals of Alabama.
    April 14, 1982.
    Rehearing Denied May 12, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-685.
    Myron K. Allenstein, Gadsden, for appellant.
    G. Coke Williams of Williams, Williams & Norton, Anniston, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Calhoun County divorced the parties in 1979. Two years later, the husband petitioned the trial court to amend the decree of divorce and terminate the award of periodic alimony. The wife cross petitioned for an increase in periodic alimony and an attorney’s fee.

After an ore tenus hearing, the trial court denied the husband’s petition. The trial court ordered that the payments of periodic alimony to the wife be increased from $260 to $286 per month. The husband additionally was ordered to pay an attorney’s fee of $350.

The husband appeals and, through able counsel, contends the trial court erred in failing to terminate the award of periodic alimony. The husband also contends the trial court abused its discretion in awarding an attorney’s fee.

We disagree with the husband’s contentions and affirm the decision of the trial court.

The record reveals the following pertinent facts:

In 1979, after a thirty year marriage, the parties entered into an agreement which was incorporated into the decree of divorce. Specifically, the husband agreed to pay the wife $260 per month as periodic alimony out of the husband’s military retirement pay of $670 per month. The alimony payments would terminate upon the wife’s remarriage.

The husband was subsequently apparently prompted by the United States Supreme Court’s ruling in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 67 L.Ed.2d 589 (1981) to petition the trial court to terminate alimony. It is the husband’s contention that McCarty, supra, precludes the courts of this state from ordering periodic alimony being paid out of the funds received as military retirement pay.

We find this court’s recent decision of Dorey v. Dorey, 412 So.2d 808 (Ala.Civ.App. 1982) to be dispositive of this issue:

In McCarty v. McCarty, [supra], it was held that military retirement pay is not subject to a property division. However, the Court did not say that military retirement pay could not be considered in awarding periodic alimony in appropriate cases....
... In Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979), this court held that military retirement benefits could be considered in an award of periodic alimony. McCarty, supra, did not preclude our courts from considering military retirement for periodic alimony purposes. As a result, we find no error in the award of periodic alimony which would be paid from military retirement benefits.

In light of our holding in Dorey, supra, we cannot find the trial court erred in refusing to terminate the award of periodic alimony. McCarty, supra, has no application to the facts of the instant action where the divorce decree via agreement provides that the husband pay periodic alimony to the wife out of the moneys received as military retirement pay. The husband alleges no factors other than the rendition of the decision in McCarty, supra, constituting changed circumstances which would warrant a termination of alimony. Therefore, we find the trial court properly refused to terminate the award of periodic alimony.

The husband’s final contention is that the trial court erred in awarding an attorney’s fee to the wife. The award of an attorney’s fee in a proceeding to modify a judgment awarding periodic alimony is solely within the sound discretion of the trial court. Cf. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978). We, in this instance, find no abuse of the trial court’s discretion in the award of an attorney’s fee.

For the foregoing reasons, the action of the trial court is due to be affirmed.

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

AFFIRMED.

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


author: WRIGHT, Presiding Judge. BRADLEY, Judge,

text:
    Guy SPARKS v. CALHOUN COUNTY, Alabama.
    Civ. 3119.
    Court of Civil Appeals of Alabama.
    April 28, 1982.
    Rehearing Denied May 26, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-747.
    Guy Sparks, Anniston, pro se.
    Herbert D. Jones, Jr. of Burnham, Kline-felter, Halsey & Love, Anniston, for appel-lee.
   WRIGHT, Presiding Judge.

Guy Sparks, an attorney and appellant herein, was hired by and did legal work for the Calhoun County Civil Service Board (Board) from June 1,1976, until August 20, 1980. Calhoun County Commission paid his legal fees routinely until February 1978. At that time the Commission notified the Board that it had overspent its $2500 budget appropriation for legal matters on outside counsel and that no more funds would be made available for that purpose. The Commission pointed out that § 10 of Act of August 12, 1969, No. 384, 1969 Ala. Acts 754, which created the Board, provided in pertinent part that:

In all proceedings before the Board, the County Attorney may appear and represent the interest of the county and he shall, also, give such legal advice and legal assistance to the Board as may be requested by it.

The letter further stated that it was the opinion of the Commission that the county attorney could serve the Board and the Commission at a more reasonable amount of compensation than outside counsel hired by the Board.

Additionally, in February of 1978, the Commission requested an opinion from the Attorney General of Alabama construing §§ 6 and 10 of the aforementioned act. Section 6 provides that:

The Board shall have power to appoint personnel necessary for its work and to delegate to such personnel such duties and powers as may be practicable.

The attorney general’s opinion stated that the Board is required by § 10 to use the county attorney, and that § 6 does not permit the Board to hire an attorney to represent it at the expense of the county. Rather, § 6 gives the Board the power to appoint personnel for its administrative and internal work.

Sparks continued to represent the Board after February 1978, and upon refusal of payment by the Commission, sued in the Calhoun County District Court for his fees. The district court’s decision was in favor of Sparks, and the County appealed to circuit court. The County stipulated a judgment for Sparks in January 1979 when a new Commission took office. However, subsequently, on October 25, 1979, the Commission adopted a resolution that no further payments would be made to any attorney hired by the Board, but that the county attorney should represent the Board with payment by the County. Sparks once again represented the Board, payment was refused and he sued in district court. This time, he lost. No appeal was taken. This appeal arises from a third suit which Sparks lost in the district court and appealed to the circuit court. The circuit court, after trial without a jury, held that Act No. 384 does not require independent counsel for the Board, and that the Commission did not wrongfully disallow Sparks’s charges from February 1980 to August 1980. From that judgment, Sparks appeals.

Sparks contends on appeal that pursuant to § 6 of the Act the Board may hire outside counsel at the expense of the county. He apparently contends that the Commission has no control over this power of the Board and is required absolutely to pay for such services under § 16 of the Act which states that:

The governing body of Calhoun County shall provide for the salaries and expenses of the Civil Service Board, and shall provide in its annual budget an estimated appropriation sufficient to cover the salaries and expenses of such board.

We cannot agree with appellant’s construction of the act in question. To do so would be to give the Board free rein to spend county money without budget control by the county governing body. The legislature, in § 11-8-2, Code (1975), stated that the purpose of Chapter 8 of Title 11 is “to vest in the County Commission more efficient power and control over all public funds that may now or hereafter be under its control,. . . . ”

Rules of statutory construction set out that in construing statutes, courts must look to legislative intent in the language of the statutes. Mitchell v. Mobile County, 294 Ala. 130, 313 So.2d 172 (1975). Words in a statute are to be given their usual and ordinary meaning. Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974). In determining the legislative intent behind a statute, the statute must be interpreted as a whole, and if possible, every section should be given effect. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977). When possible, conflicting statutes should be reconciled in favor of each other to form one harmonious plan. B. F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So.2d 776, writ quashed, 295 Ala. 401, 324 So.2d 788 (1975).

Under the foregoing principles, we construe the act in question as follows:

Funds for legal counsel for the Board should be budgeted by the County under § 16 of the Act. When legal counsel is necessary, the Board should use the county attorney and he shall represent it. Utilization of the county attorney would make other counsel unnecessary in most instances. To construe the Act to give the Board broad discretion under §§ 6 and 10 to bind the county finances via § 16 would be unreasonable and could not have been the legislature’s intent. We consider that the legislature meant for the county attorney to represent the Board at its request. To permit total discretion by the Board to bypass the service of the county attorney or to hire other counsel without budgeted funds or approval of the Commission would be contrary to the intended fiscal control of the county finances by the County Commission.

Sparks argues that the settled administrative interpretation as to payment for his services was favorable to him and should have been followed. We can find no settled interpretation of the Act in this record. On the contrary, the County and the courts have made various decisions in this matter.

Sparks had notice of the Commission’s interpretation of the Act and of its denial of obligation to pay for his services. All of the charges sued for here accrued subsequent to notice to the Board and Sparks that no more fees would be paid.

We do not decide here that the Board can never hire outside counsel. Certainly, § 16 of the Act, along with various budgeting statutes governing county finances found in Title 11 of the Code, intends that the Board request appropriations and stay within funds budgeted for specific purposes. The Commission must have control over county finances in order to fulfill the statutory obligations to provide services to its citizens.

This cause is due to be affirmed.

AFFIRMED.

HOLMES, J., concurs.

BRADLEY, J., dissents.

BRADLEY, Judge,

dissenting:

I respectfully dissent. The only issue in this case is whether the Board had the authority to employ outside counsel. Clearly under the Act the Board does have such authority.

Section 6 of Act 384 in part provides:

The board shall have power to appoint personnel necessary for its work and to delegate to such personnel such duties and powers as may be practicable. [Emphasis added.]

Sparks argues, and I agree, that this gives the Board authority to hire outside counsel. Clearly it was the intent of the legislature to give the Board authority to hire needed personnel.

The County argues that § 10 of the Act contemplates that the Board would be required to use the county attorney in all cases before the Board. However, as quoted in the majority opinion, § 10 states that the county attorney “shall also give such legal advice and legal assistance as may be requested by it.” (Emphasis added.)

Clearly § 10 is worded so as to give the Board discretion in the use of the county attorney. Obviously it would be less expensive to use the county attorney as an advis- or rather than employ outside counsel. However, it is equally obvious that the county attorney will, in most circumstances, have a conflict of interest because he will be prosecuting charges against county employees on behalf of the county. Surely the legislature intended to give the Board unrestricted power to employ outside counsel when it deemed it necessary, for it clearly placed the authority to employ outside counsel in the Board. The language of the statute is clearly permissive. If the Board has the power to use the county attorney, the converse is equally true; the Board has the authority not to use him if they so desire, for whatever reason.

This conclusion is further supported by the fact that the legislature has amended this statute several times without changing the provision in question. The Board had hired Sparks prior to these amendments, and had by administrative interpretation determined that they had authority to hire outside counsel. The weight to be given an administrative board’s interpretation of a statute is increased where the legislature’s reenactment of the law fails to disapprove the settled interpretation. Hamm v. Proctor, 281 Ala. 54, 198 So.2d 782 (1967).

The majority relies on the fact that the county had not budgeted any money for outside counsel. Section 16 requires the county to provide in its budget for the expenses and salaries of the Board. The majority would appear to penalize Sparks for the county’s failure to budget money for outside counsel. Such a result is unjust and contrary to the intent of the legislature as expressed in the wording of the statute.

Section 16 puts the burden of budgeting for the Board’s salaries and expenses on the county. The majority opinion would allow the county complete authority to prevent the Board from hiring needed personnel simply by not providing money for such personnel in its budget.

By allowing the county to prevent the Board from hiring needed personnel through the budgeting process, the majority’s holding is clearly contrary to the intent of the legislature. The Board is set up to be independent from the county so that all personnel disputes can be resolved fairly. By giving the county authority to prevent the Board from hiring outside counsel, the majority is in effect giving the county complete control. As a result the intent of the legislature to provide for an independent board has been thwarted.

The legislature authorized the Board to hire the necessary personnel to assist it in carrying out its duties, including hiring outside counsel to advise it on legal matters. During the time that Sparks was employed by the Board the legislature has not seen fit to restrict this authority. Under these circumstances I would hold that it is within the authority of the legislature to alter the Board’s power to employ outside counsel, and not within the authority of the courts to do so. Accordingly, I would hold that Sparks should be allowed to recover his fees.

      . County financial affairs.