author: BRADLEY, Judge.

text:
    Ann Downey MORGAN v. J. T. MORGAN.
    Civ. 2458.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    As Corrected on Denial of Rehearing June 10, 1981.

      Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Charles J. Najjar and J. Gary Pate of Najjar & Najjar and W. Stancil Starnes, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

On August 15, 1977 Mrs. Morgan filed a complaint against Dr. Morgan seeking divorce on the ground of incompatibility of temperament. Subsequently she amended the complaint to add adultery as a ground. Dr. Morgan filed an answer and cross-complaint based on incompatibility and irretrievable breakdown of the marriage. A hearing was held and on April 29, 1980 a final decree was rendered. Mrs. Morgan’s new trial motion was overruled and she appealed to this court.

The decree appealed from divorced the parties for incompatibility, divided the real and personal property belonging to the parties, made Mrs. Morgan the owner of several insurance policies on the life of Dr. Morgan but required that she pay the premiums, awarded Mrs. Morgan $400,000, payable $40,000 per year for ten years as alimony in gross, required Dr. Morgan to pay all outstanding debts of the parties, awarded Mrs. Morgan $1,500 per month as periodic alimony, and required Dr. Morgan to pay Mrs. Morgan $30,500 for attorneys’ fees.

The following pertinent facts appear in the record. Dr. and Mrs. Morgan were married in 1951. Dr. Morgan is forty-nine years old and Mrs. Morgan is forty-eight years old. They have four adult children.

At the present time Dr. Morgan has a general medical practice in Graysville, Alabama where he owns and operates Long-view General Hospital, Inc., and Longview Pharmacy, Inc.

After the parties were married and while Dr. Morgan was attending medical school, Mrs. Morgan taught school to assist the family financially. She continued to assist Dr. Morgan in establishing the practice of medicine first in Mississippi and then in Graysville, Alabama by working in the office as a receptionist, bookkeeper and assistant in the examining room.

In 1964 Dr. and Mrs. Morgan, with the help of Mrs. Morgan’s mother built a twenty-eight bed hospital. Mrs. Morgan was the administrator. In 1966 the hospital was enlarged to fifty beds and a pharmacy and medical clinic were included in the addition.

The hospital was operated by a corporation, the principal owners of which were Dr. and Mrs. Morgan. Mrs. Morgan owned all of the stock in the pharmacy corporation and operated it. During the time that Mrs. Morgan operated the pharmacy, she used the proceeds to purchase in the name of the corporation several parcels of land in the vicinity of the hospital.

In 1969 the parties built a house at a cost of about $175,000 on some thirty acres of land previously purchased and known as 1100 North Main Street. The parties had previously lived in a two-story house at 251 Main Street where Dr. Morgan used the downstairs as his medical offices.

The parties started having marital difficulties in 1971 culminating in a divorce in 1973. Prior to the divorce Mrs. Morgan dissolved the pharmacy corporation and conveyed the land previously acquired by the corporation to her and her mother. The 1973 divorce was set aside at the joint request of the parties and they resumed marital relations.

After the divorce was set aside Mrs. Morgan and her mother reconveyed the land previously owned by the pharmacy to Dr. and Mrs. Morgan jointly with right of sur-vivorship.

In 1974 Dr. Morgan took over the operation of the pharmacy, formed a new corporation, and made himself sole owner.

Before the 1973 divorce Mrs. Morgan became the owner and beneficiary of $830,000 worth of life insurance on Dr. Morgan. Since 1973 Mrs. Morgan has been paying the yearly premium of $30,000 by borrowing from the cash value of the policies. She is currently paying $4,000 a year in interest on the total amount she has borrowed.

The evidence shows that Dr. Morgan’s gross income for 1979 was between $265,000 and $415,000. Mrs. Morgan’s income was $18,891 but it did not include $18,000 which had been given to her by Dr. Morgan.

The appraised values of the hospital and pharmacy plus the adjoining land, the residence at 1100 North Main Street, and the residence at 251 Main Street varied between $1,302,300 and $2,484,090.

The joint net worth of the parties at trial time was somewhat over $3,000,000.

Mrs. Morgan presently lives in a condominium; however, she says she would need about $5,000 per month to pay her living expenses if she were to move back to the homeplace at 1100 North Main Street.

There is evidence in the record that Dr. Morgan has had a longstanding sexual relationship with a former nurse. There is also evidence in the record that Mrs. Morgan has had a social relationship with a former accountant of the hospital whom Dr. Morgan fired.

Mrs. Morgan’s first contention on appeal is that the trial court erred in limiting her discovery efforts. The question of inadequate discovery is raised by Mrs. Morgan’s most recent attorney. The record reflects that extensive discovery was conducted by Mrs. Morgan’s previous attorneys and, at the time Mrs. Morgan’s present attorney entered the case, the standing master was instructed by the court to determine the extent of additional discovery that might be needed by Mrs. Morgan with the proviso that Dr. Morgan “not be required to produce or answer those things which have been previously produced or answered.” Pursuant to this directive, additional discovery was allowed; however, Mrs. Morgan contends that access to certain information was denied her.

Rule 26, ARCP, permits discovery of relevant information not otherwise privileged; however, this same rule gives the trial court the authority to limit or restrict the discovery process. When the trial court acts to limit or restrict discovery, such action will be liberally and broadly construed and will not be reversed unless, from all the circumstances of the case, it appears that the discretion reposed in that court has been abused. Assured Investors Life Insurance Co. v. National Union Associates, Inc., Ala., 362 So.2d 228 (1978). We find no such abuse in the case at bar.

Mrs. Morgan next contends that the trial court erred in refusing to let a witness testify concerning the value of the land and hospital buildings plus and adjoining eight acres.

Mr. Larry Shipp, who was employed by Estes Health Care Center, was called to testify as an expert on the value of various types of health facilities. The trial court refused to let him testify.

Whether an expert witness is shown to be so qualified is addressed to the sound discretion of the trial court, and the court’s ruling thereon will not be reversed unless it is shown that the exercise of such discretion has been so abused as to work injury to appellant’s cause. Gregath v. Bates, Ala.Civ.App., 359 So.2d 404 (1978). Moreover, whether a witness has had an opportunity to form an opinion is likewise a preliminary question for the trial court and a ruling thereon will not be reversed except for substantial injury. State v. Self, 293 Ala. 541, 307 So.2d 11 (1975); Morris v. State, 25 Ala.App. 494, 149 So.2d 359 (1933).

Mr. Shipp’s qualifications for giving opinion testimony as to value of the health facilities consisted of six years employment as Director of Pharmacy Services for Estes Health Care Center. During this time he was involved in determining the values of eleven health care facilities acquired by Estes. Such involvement appeared to consist of financial analysis of the facilities from a revenue standpoint. Shipp did say that he had looked at Longview Hospital’s financial statement. However there was no evidence that Mr. Shipp was familiar with the value of the property in the neighborhood of Longview Hospital. See Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315 (1910).

In view of the evidence adduced relating to Mr. Shipp’s qualifications to give an opinion as to the value of Longview Hospital and adjoining land, we cannot say that the trial court abused its discretion in refusing to let Mr. Shipp give his opinion as to the value of the facilities in question.

Another issue raised by Mrs. Morgan relates to the reception into evidence of a real estate appraiser’s report where the appraiser testified in court.

Mr. Tommy Young, an MAI real estate appraiser in the company of Mr. Donald Sides, personally inspected the property at 251 Main Street, 1100 North Main Street, and hospital acreage and evaluated these properties. Mr. Young testified that he had inspected the properties, had used the various accepted methods in evaluating the properties, and had arrived at a value for each one of them. All of this was reduced to writing in a report signed by Mr. Young and Mr. Sides.

After Mr. Young had testified concerning his appraisal of the property in question, the written report was accepted into evidence over Mrs. Morgan’s objection that Mr. Young’s testimony was the best evidence.

Assuming but not deciding that the admission of Mr. Young’s written appraisal report was error, we conclude that such error does not require a reversal of the judgment because it does not appear that the rights of Mrs. Morgan have been injuriously affected. Slay v. McKean Paint & Hardware Store, Inc., 55 Ala.App. 487, 317 So.2d 326 (1975); Rule 45, ARAP and Rule 61, ARCP. It appears that the written appraisal report was a mere recapitulation of the oral testimony given by Mr. Young; therefore any error in the admission of the written report did not prejudice the rights of Mrs. Morgan.

Another issue raised by Mrs. Morgan concerns the refusal of the trial court to hear testimony of Dr. Morgan’s misconduct prior to the 1973 divorce. She contends that the trial court committed reversible error by refusing to hear and consider evidence of misconduct committed by Dr. Morgan prior to the 1973 divorce.

The evidence that Mrs. Morgan attempted to introduce related to the sexual misconduct and physical cruelty of Dr. Morgan prior to 1973. The 1977 amended divorce complaint alleged adultery on the part of Dr.. Morgan. The evidence in support of the last complaint for divorce reveals an episode of physical cruelty committed by Dr. Morgan on Mrs. Morgan and also evidence of sexual misconduct on the part of Dr. Morgan.

The remarks of the trial judge made at the time he ruled on the offer of proof of misconduct prior to 1973 indicates that the court considered the parties to have reconciled their differences and to have decided to live together as man and wife. Hence these past difficulties would not be considered by the court in determining the fault or non-fault of Dr. Morgan in bringing about the separation.

Renewal of conduct constituting grounds for divorce revives right of condoning party to insist upon former conduct. Calhoun v. Calhoun, 278 Ala. 610, 179 So.2d 737 (1965).

Evidence that Dr. Morgan had physically abused Mrs. Morgan prior to the 1973 reconciliation and that he had been involved in sexual misconduct should have been received by the trial court, and its failure to do so was error. However, there was ample evidence of fault on the part of Dr. Morgan between the 1973 decree and the 1980 decree that was before the court; consequently, the disallowed evidence would have been cumulative at the most. Therefore we do not consider such error to be so prejudicial as to require a reversal of the trial court’s decree. Slay v. McKean Paint & Hardware Store, Inc., supra; Rule 61, ARCP; Rule 45, ARAP.

Mrs. Morgan next contends that the trial court erred in awarding her an inequitable amount of the marriage property.

To help us assess the correctness of this aspect of the trial court’s decree, we observe two well-known and often cited divorce case principles: the division of property need not be equal but it must be equitable, Thompson v. Thompson, Ala.Civ.App., 377 So.2d 141 (1979); and the division of property in a divorce case is within the sound discretion of the trial court and will not be reversed except for palpable abuse of that discretion. Kabaci v. Kabaci, Ala.Civ.App., 373 So.2d 1144 (1979).

While the value of the various assets of the parties was in sharp dispute, it appears from the briefs that the total value of their net estate was slightly in excess of $3,000,000. The division of this estate by the court resulted in Dr. Morgan receiving assets of about $2,300,000 and Mrs. Morgan receiving approximately $962,000. Mrs. Morgan thus receives roughly one-third of the parties’ estate. We are not persuaded that the trial court abused its discretion in making such an award of the parties’ property. Sides v. Sides, 284 Ala. 39, 221 So.2d 677 (1969).

In conjunction with her argument that the trial court awarded her an inadequate amount of the parties’ property, Mrs. Morgan submits that she should have been awarded as her separate estate five parcels of property purchased by Longview Hospital Apothecary, Inc. while she was the sole owner of the stock of that corporation.

The evidence reflects that these parcels were purchased when Mrs. Morgan was the owner of the stock of the pharmacy but it is also suggested that Dr. Morgan negotiated for these parcels of property and all Mrs. Morgan did was to sign the checks and that the pharmacy was in her sole name only because the attorney had recommended it to avoid a conflict with the ownership of the hospital. Notwithstanding these circumstances, it clearly appears from the record that Mrs. Morgan transferred title to these parcels of land to her and her mother when the corporation was dissolved, and then, after the reconciliation, she and her mother transferred the title to her and Dr. Morgan as joint tenants with right of sur-vivorship.

The determination of what is and what is not the wife’s separate estate is for the trial court. Foreman v. Foreman, Ala.Civ.App., 379 So.2d 89 (1980). And when the parties to a divorce action submit themselves to the jurisdiction of the court for the division of jointly owned property, the court has the authority to make such division as equity requires. Foreman v. Foreman, supra.

The jointly owned property was divided by the court and, as said above, we consider it to have been an equitable distribution.

Lastly, Mrs. Morgan argues that the trial court awarded an inadequate amount of periodic alimony and as a result the court committed reversible error.

The trial court awarded Mrs. Morgan $1,500 per month as periodic alimony, and she argues that based on the standard of living to which she had become accustomed during her former marriage and based on the misconduct of Dr. Morgan, a larger amount of periodic alimony should have been awarded to her.

Dr. Morgan replies that Mrs. Morgan tes-, tified that $5,000 a month would be sufficient for her needs and that the record shows that Mrs. Morgan’s annual income will be $77,000.

The award of alimony in a divorce case is a matter within the discretion of the court and such a decision is to be made based on the peculiar facts of that case. Elsevier v. Elsevier, Ala.Civ.App., 355 So.2d 382 (1978). The court’s discretion is to be exercised in light of various factors, such as the earning ability of the parties, future prospects, age health duration of the marriage, accustomed standard of living, source, value and type of property and the conduct of the parties as related to the marriage. Elsevier v. Elsevier, supra. And an award of alimony after an oral hearing is surrounded with a presumption of correctness and will not be set aside except for gross abuse of the court’s discretion. Metcalf v. Metcalf, Ala.Civ.App., 340 So.2d 38 (1976).

After a careful consideration of the evidence in the light of the factors above enumerated, we are unable to say that the trial court’s award of periodic alimony is palpably wrong. Furthermore we consider such a conclusion to be supported by the fact that Mrs. Morgan’s yearly income will be in excess of the amount she testified she would need for living expenses. See Harris v. Harris, 275 Ala. 329, 154 So.2d 748 (1963).

Mrs. Morgan argues that since she is required to pay the $30,000 per year premium on the $830,000 worth of insurance awarded to her, her yearly income will be reduced below the amount she needs for her living expenses and, therefore, the periodic alimony award is totally inadequate.

The testimony shows that Mrs. Morgan has been paying the premium since 1973 by borrowing against the policies and paying the interest on the amount she had borrowed. At the time of trial the interest amounted to $4,000 per year.

It is certain that the $4,000 interest payment does not reduce Mrs. Morgan’s yearly income below that to which she testified she would need to meet her living expenses.

We would further note, however, that a periodic alimony award is subject of modification depending on the existence of changed circumstances.

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

Mrs. Morgan’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Ann Downey MORGAN. (In re Ann Downey MORGAN v. J. T. MORGAN).
    80-667.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Randy Lynn SEGREST v. Tamara Anita SEGREST.
    Civ. 2547.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Rehearing Denied June 10, 1981.

      Thomas J. Knight, Anniston, for appellant.
    Joe J. Estep, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. Husband brought suit for divorce in October 1979, charging incompatibility and irretrievable breakdown of the marriage. His complaint alleged one child born of the marriage and offered custody of the child to the mother. The wife, represented by Calhoun Legal Services, answered and counterclaimed.

The case was presented orally to the court on March 19, 1980. The husband appeared pro se. The husband was informed by the court that counsel for the wife would pose the questions to him necessary to support his complaint to the court. The court also interrogated the husband. During that questioning the husband stated he did not want visitation privileges with the child because he did not feel it was his child.

The wife testified that the child was conceived while the parties were married and living as husband and wife and that the husband was the father. The court recalled the husband and examined him again. The husband said he separated from the wife because she admitted she was “going out on me.” He said she told him the names of men she had been out with, but he could not remember but one. He could not remember the dates, but it began during a previous separation and continued until after she became pregnant. The wife denied telling the husband she had been out with other men.

Judgment of divorce was entered on March 21, 1980. The wife was given custody of the child with the husband ordered to pay child support. There was division of personal property which is not material to this appeal.

Motion for rehearing was promptly filed on behalf of the husband by counsel alleged to be retained by the parents of the husband. After oral hearing of arguments of counsel, the court denied rehearing. The husband appealed.

The issue is whether the trial court erred in denying rehearing so that the husband could secure evidence to refute his paternity of the child.

It is the rule that the granting or denial of a new trial is a matter resting primarily in the discretion of the trial judge, and his exercise of that discretion carries with it a strong presumption of correctness. That presumption is not overcome upon review unless some legal right was abused and the record clearly shows that the trial court abused its discretion. Robertson Banking Co. v. Ebersole, 331 So.2d 278 (Ala.1976); Bayliss v. Bayliss, 364 So.2d 1215 (Ala.Civ.App.1979). We find no violation of the rule in this case.

The judgment denying rehearing is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: JONES, Justice.

text:
    Ex parte Randy Lynn SEGREST. (In re Randy Lynn SEGREST v. Tamara Anita SEGREST).
    80-661.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge.

text:
    FIRST ALABAMA BANK OF GUNTERSVILLE v. Earl E. HUNT.
    Civ. 2572.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Rehearing Denied June 3, 1981.

      John B. Tally, Jr., and T. Randall Hart-ley, Jr., of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, and Inzer, Suttle, Swann & Sti-vender, Gadsden, for appellee.
   HOLMES, Judge.

This case is governed by Article III of Alabama’s Uniform Commercial Code, §§ 7-3-101 et seq., Code of Ala. 1975.

The First Alabama Bank of Guntersville sued Hunt on a promissory note. The trial court found that on the basis of pertinent uncontroverted evidence, First Alabama Bank was barred from holder in due course status by § 7-3-302(3)(c), Code of Ala. 1975, and entered a directed verdict in favor of Hunt. First Alabama Bank appeals and we reverse.

The dispositive issue is whether § 7-3-302(3)(c), Code of Ala. 1975, applies to the facts of this case.

The record reveals the following facts:

In August of 1974, Hunt pursuant to a contract for the sale and purchase of two residential lots executed a promissory note payable to Fitts and Rodgers. Fitts and Rodgers were real estate developers who, in addition to selling two lots to Hunt, sold residential subdivision lots to several individuals. Like Hunt, these individuals paid for their lots .by giving Fitts and Rodgers promissory notes.

In December of 1974, Fitts and Rodgers sold the Hunt note and nine to thirteen other notes to First Alabama Bank. At trial the president of First Alabama Bank testified to the effect that, while the bank had dealt with Fitts and Rodgers in the past, this was the only time the bank had purchased promissory notes from them. There was no evidence as to whether Fitts and Rodgers had sold notes to other purchasers.

At the outset, we note that the question of whether a plaintiff is a holder in due course only arises where the defendant has established a defense to liability on the note. Patterson v. First National Bank of Huntsville, 47 Ala.App. 98, 251 So.2d 230 (1971); § 7-3-307(3), Code of Ala. 1975. In the instant case, Hunt did establish such a defense. However, the issue presented on appeal does not require discussion of this matter. Suffice it to say that Hunt, through uncontroverted evidence, established a defense which would bar recovery on the note unless First Alabama Bank was a holder in due course. See, § 7-3-306(b) and (c), Code of Ala. 1975.

As indicated above, the trial court found that First Alabama Bank was barred from holder in due course status by § 7-3-302(3)(c), Code of Ala. 1975, and entered a directed verdict in favor of Hunt. Apparently, the trial court found that First Alabama Bank purchased the note as part of a bulk transaction not in regular course of business of the transferor, here Fitts and Rodgers. This determination was based on the uncontroverted evidence that First Alabama Bank purchased ten to fourteen notes at one time and that this was the only time Fitts and Rodgers sold notes to First Alabama Bank.

First Alabama Bank contends through counsel that the trial court erred in its interpretation of § 7-3-302(3)(c). We agree.

Section 7-3-302(3)(c) provides:

A holder does not become a holder in due course of an instrument;
(c) By purchasing it as part of a bulk transaction not in regular course of business of the transferor.

Since the key phrase “bulk transaction not in regular course of business of the transferor” is not defined by the Uniform Commercial Code, the scope of § 7-3-302(3)(c) cannot be readily ascertained from the face of the statute. However, Comment 3 of the Official comments to § 7-3-302(3)(c) does provide guidance in determining this Code section’s field of operation. Comment 3 in pertinent part states:

Subsection (3) is intended to state existing case law. It covers a few situations in which the purchaser takes the instrument under unusual circumstances which indicate that he is merely a successor in interest to the prior holder and can acquire no better rights... .
Subsection (3)(c) applies to bulk purchases lying outside of the ordinary course of business of the seller. It applies, for example, when a new partnership takes over for value all of the assets of an old one after a new member has entered the firm, or to a reorganized or consolidated corporation taking over in bulk the assets of a predecessor. It has particular application to the purchase by one bank of a substantial part of the paper held by another bank which is threatened with insolvency and seeking to liquidate its assets.

From Comment 3 we find that § 7-3-302(3)(c) has narrow field of operation limited to bulk transfers incident to the cessation, liquidation, or reorganization of the transferor’s business where the circumstances indicate that the transferee is a mere successor in interest to the transferor. Third National Bank in Nashville v. Hardi-Gardens Supply of Illinois, Inc., 380 F.Supp. 930 (M.D.Tenn.1974); Pugatch v. David’s Jewelers, 53 Misc.2d 327, 278 N.Y.S.2d 759 (1967). Stated differently, a bulk transfer of notes incident to the cessation, liquidation, or reorganization of the transferor’s business to a person who is merely a successor in interest to the transferor is not a transfer in the regular course of business of the transferor. This type of transaction is to be distinguished from transactions wherein the transferor sells or pledges notes to obtain cash funds for use in his business. The latter type of transaction is one which would be in the ordinary course of business, Third National Bank in Nashville, supra; Pugatch, supra, and which would be in the regular course of business regardless of whether the transaction was the transferor’s first or fortieth.

In the instant case there is no evidence indicating that the sale of the notes to First Alabama Bank was incident to the cessation, liquidation, or reorganization of Fitts and Rodgers’ real estate development business, nor is there evidence of circumstances indicating that First Alabama Bank is a mere successor in interest to Fitts and Rodgers.

As stated above, the fact that the sale of the notes to First Alabama Bank was a one time occurrence is not dispositive of the question of whether or not the transaction was in the ordinary course of business. We find that the learned trial judge misinterpreted § 7-3-302(3)(c) and that, by relying on the fact that the transaction was a one time occurrence, it erred in entering a directed verdict in favor of Hunt.

However, by so deciding we do not find that First Alabama Bank is a holder in due course under § 7-3-302(1), Code of Ala. 1975. That question is, in this instance, apparently a question of fact to be determined by the trier of fact. We hold only that § 7-3-302(3)(c) does not bar First Alabama Bank from establishing that it is a holder in due course.

The case is due to be reversed.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    Ex parte Earl E. HUNT. In re FIRST ALABAMA BANK OF GUNTERSVILLE v. Earl E. HUNT.
    80-635.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    KAISER ALUMINUM & CHEMICAL SALES, INC., a corporation v. Eugene CRUM.
    Civ. 2445-X.
    Court of Civil Appeals of Alabama.
    May 27, 1981.
    Rehearing Denied July 1, 1981.

      Michael Gillion, Brown, Hudgens, Richardson, Whitfield and Gillion, Mobile, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Mobile County awarded the employee $120 as accured temporary total disability benefits. The employer appeals from the trial court’s denial of its post-trial motion to tax costs against the employee. We affirm.

The issue presented for review is whether taxation of costs against a plaintiff-employee in a workmen’s compensation action is mandatory when the employee refuses an offer of judgment and later obtains a judgment that is less favorable than the offer.

The record reveals the following facts:

The employee sued the employer under Alabama’s Workmen’s Compensation Act seeking to recover temporary total disability benefits, permanent partial disability benefits, and medical expenses. On a date more than fifteen days prior to trial, the employer pursuant to rule 68, ARCP, served an offer of judgment in the amount of $550 on the employee. The employee refused this offer. The case proceeded to trial and, as stated above, the employee was awarded $120 as temporary total disability benefits.

Following the entry of judgment the employer filed a motion with the trial court seeking to have the costs that it incurred in defending the suit taxed against the employee. These costs totaling $467 were incurred after the employer made its offer of judgment and consisted primarily of deposition fees paid to medical witnesses and court reporter fees.

As indicated, the employer’s motion was denied and the employer appeals from that denial.

The employer, through able counsel, contends that rule 68, ARCP, governs the taxation of costs under the facts of this case and that the trial court erred in failing to tax the aforementioned costs against the employee.

Rule 68, ARCP, provides that when an offer of judgment is refused:

If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

In short, the employer argues that under the facts of this case taxation of costs against the employee is mandatory.

We do not agree.

Rule 81(a), ARCP, states that:

In the following proceedings, these rules shall be applicable to the extent that the practice in such matters is not provided by statute:
(31) Workmen’s compensation.

Section 25-5-89 of Alabama’s Workmen’s Compensation Act, §§ 25-5-1 et seq., Code of Ala.1975, states that in workmen’s compensation cases “costs may be awarded by [the trial] court in its discretion.... ”

Section 25-5-89 specifically provides for the taxation of costs in workmen’s compensation cases. Therefore, we find that in workmen’s compensation cases § 25-5-89 supersedes the seemingly mandatory cost taxing provision of rule 68. Stated differently, the taxation of costs in a workmen’s compensation case is within the discretion of the trial court even when the employee refuses an offer of judgment and later fails to obtain a judgment more favorable than the offer.

We would further note that a provision requiring mandatory taxation of costs against an employee in a workmen’s compensation action might in some instances deprive an injured employee of a large portion, if not all, of his compensation benefits and in some instances such a provision would place an injured employee in a position where he owes his employer money, namely when the amount of costs exceeds the amount of the award of benefits. In addition, we find that a mandatory cost taxing provision would have a chilling effect on the pursuit of claims by injured employees and would tend to defeat the beneficent purposes of the Workmen’s Compensation Act.

There remains the question of whether the trial court in this instance abused its discretion by failing to tax costs against the employee. After reviewing the record, we find no abuse. There is evidence indicating that the employee was injured and that the injury arose out of and in the course of his employment by the employer. Put another way, there is evidence that the employee had a bona fide claim against his employer. The existence of such a claim is further demonstrated by the trial court’s award of temporary total benefits. In light of this and in light of the amount of the award ($120), the amount of the employer’s offer of judgment ($550), and the amount of the employer’s costs ($467), we cannot say that the trial court abused its discretion in refusing to tax costs against the employee.

The employee, Crum, has also appealed from the trial court’s action. Crum’s appeal is due to be dismissed for failure to prosecute.

The case is due to be affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Ex parte KAISER ALUMINUM AND CHEMICAL SALES, INC. (In re KAISER ALUMINUM & CHEMICAL SALES, INC., a corporation, v. Eugene CRUM).
    80-730.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Blair Marques RICH v. Jack Pearce RICH, Jr.
    Civ. 2414.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Rehearing Denied July 29, 1981.

      Sloan Y. Bashinsky, II, Birmingham, for appellant.
    Kenneth D. Wallis, Jr., Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals claiming alternatively that (1) the trial court’s failure to award her periodic alimony constituted a palpable abuse of discretion, and (2) if the judgment awarding only alimony in gross is correct, the amount awarded thereunder is insufficient.

The trial court heard the evidence ore tenus and we view its findings with a presumption of correctness. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). The trial court, in its discretion, may award periodic alimony or alimony in gross or both and the exercise of the court’s discretion will not be reversed except for palpable abuse thereof. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978); Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978); Bowers v. Bowers, 355 So.2d 732 (Ala.Civ. App.1978). An award of alimony incident to the granting of a divorce is not mandatory but is a matter addressed to the trial court’s discretion. Plaskett v. Plaskett, 348 So.2d 784 (Ala.Civ.App.), cert. denied, 348 So.2d 789 (Ala.1977). The court’s decision to award or deny periodic alimony depends upon the facts of the particular case. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975).

In the instant case, the trial court declined to award periodic alimony to the wife. Instead the court awarded alimony in gross of $8,400, roughly equal to one-third of the husband’s estate, to be paid in twenty-four monthly installments of $350 each over the next two years. Without detailing the evidence which led to the trial court’s determination, it is sufficient that we find no abuse of discretion therein. Clark v. Clark, supra. The evidence, particularly that regarding the wife’s age, intelligence, numerous civic activities and various employments during part of the marriage, is indicative of a person capable of successfully reentering the job market. The trial court apparently considered it so and ordered monthly alimony in gross installments to allow the wife time to overcome her anxiety suffered as a result of the divorce, which her physician testified would cease interfering with her functioning within a year’s time.

The wife further claims that the alimony in gross award is insufficient.

The decree fixed alimony, child support and mortgage obligations on the husband which, when added to his testified minimal living expenses of $650 per month, total some $20,556 per year. These obligations and expenses alone approximately equal the husband’s net salary for the current year. In addition the husband is required to maintain $25,000 and $40,000 in life insurance on himself with the wife and children as beneficiaries, respectively. He is to provide medical and dental insurance for the children and assume between $2,600 and $3,200 in other debts of the marriage. He was additionally ordered to pay $1,200 to the wife’s attorney for her representation at trial. There was no abuse of discretion in the amount of alimony in gross awarded, particularly in view of the other awards to the wife and obligations placed on the husband by the decree. Miller v. Miller, supra.

The wife’s contention that the parties’ home should have been awarded to her outright instead of remaining in joint ownership of the parties was a matter for the sound discretion of the trial court. We find no abuse in that regard.

The judgment of the trial court is due to be affirmed. The wife’s request for attorneys’ fees for her representation on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Tommie SAMS v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES; United States Steel Corporation, a corporation; Iris Holmes; Bernice Sams Armstead.
    Civ. 2363.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 19, 1981.

      Carl E. Chamblee of Chamblee & Cham-blee, Birmingham, for appellant.
    Bryant A. Whitmire, Jr., of Whitmire, Coleman & Whitmire, Birmingham, for ap-pellees.
   BRADLEY, Judge.

This is an appeal from an order setting aside a default judgment, and an order awarding the proceeds of a life insurance policy to the appellee, Iris Holmes. We affirm.

The pertinent facts are as follows: On March 13, 1977 George Sams died. George Sams had in effect at the time of his death a life insurance policy in the amount of $6,000. The beneficiary of the policy was Iris Holmes. Holmes had lived with George Sams approximately two years prior to George Sam’s death. The two were never married.

Tommie Sams was George Sams’s brother. Tommie apparently believed that George had made him the beneficiary of his life insurance; however, Tommie never saw the insurance policy and was never a beneficiary.

After George’s death, Tommie brought a declaratory judgment action seeking to recover the proceeds from George’s insurance policy. Named as defendants were Iris Holmes, United States Steel, and Equitable Life Assurance Society of the United States.

On March 21, 1977 a summons and complaint were issued to Iris Holmes as a defendant. Service was not perfected because the sheriff said there was no such address as was set out in the summons. The proper address was 1405 N. 16th Street. Instead, process was for 1405 N. 16th Avenue.

Equitable interpleaded the full amount of the policy, i. e. $6,000, into court and attempted service on Holmes at the incorrect address. Service, of course, was not perfected. Equitable subsequently asked for service by publication and thereby perfected service. Based on this service by publication Tommie Sams was granted a default judgment and awarded the insurance proceeds.

In 1979 Holmes filed a motion to vacate the 1977 judgment. Thereafter Holmes filed a “Bill in the Nature of a Bill in Review.” On January 14, 1980 the trial court set aside the 1977 judgment and awarded Holmes the insurance proceeds. Sams’s post-judgment motions were denied and he appeals.

The first issue is whether the trial court erred in setting aside the 1977 decree and reopening the case. We find no such error.

Tommie Sams contends that the proper method for setting aside the 1977 default judgment would have been the use of Rule 60(b)(4) or (6), ARCP, rather than by a bill in the nature of a bill of review.

Rule 60(b)(4) and (6), ARCP authorize a judgment, on motion, to be set aside if: “(4) the judgment is void;” or if there is “(6) any other reason justifying relief from the operation of the judgment.” However, it is also provided in Rule 60(b) that the trial court is not precluded from entertaining an independent action, if filed within three years, to relieve a party of a judgment.

Iris Holmes filed a 60(b) motion seeking to have set aside the default judgment on the ground that she had not been properly served with process nor was she able to comprehend the nature of the proceedings that had been filed against her. Subsequently, she filed, at the suggestion of the trial court, a bill in the nature of a bill of review asserting essentially the same grounds for relief as she had asserted in her 60(b) motion.

Appellant points out, however, that Rule 60 abolished bills in the nature of a bill of review and, as a consequence, the trial court was without jurisdiction to entertain and decide Holmes’s action to vacate the default judgment.

While abolishing the artificial boundaries between extraordinary attacks on a judgment, i. e. rehearings, motions to vacate, bills of review, etc., Rule 60 retains the substance of such devices. It substitutes for the complicated procedures of these devices the simplified procedures of the motion and the independent action. Committee Comments, Rule 60 ARCP. Furthermore, there is little procedural difference between the motion and the independent action. Courts have consistently treated the two methods as practically the same. Hadden v. Rumsey Products, 196 F.2d 92 (2d Cir. 1952); 7 Moore’s Federal Practice, § 60.38(3) (2d ed. 1979).

Although denominated a bill in the nature of a bill of review, as suggested by the trial court, we view the pleading as an independent action, the substance of which was to attack and have set aside the 1977 default judgment. As we see it, whether the default judgment was attacked by a Rule 60(b)(4) or (6) motion or an independent action is of little moment in the case at bar, for we believe that the trial court had an adequate, basis for setting aside the default judgment regardless of the method of attack used by Iris Holmes.

Iris Holmes’s principal ground of attack on the default judgment is that she was not properly served with a summons and complaint and the trial court was thus without jurisdiction to render a default judgment against her.

The evidence shows that appellant knew where Iris Holmes lived, knew her correct address at all times pertinent to this inquiry and, yet, made no effort to serve her with process after the initial effort failed because of an erroneous address. A plaintiff must exercise due diligence in perfecting personal service of process on a defendant and the failure to do so precludes notice by publication. Whitfield v. Sanders, Ala., 366 So.2d 258 (1979). The failure to properly notify a defendant of the action filed against him deprives the trial court of personal jurisdiction over the party and a default judgment rendered against said party would be void. Whitfield v. Sanders, supra.

The evidence shows that Tommie Sams was fully aware of Iris Holmes’s address at all times in question. Under such circumstances notice by publication was insufficient to invest the trial court with jurisdiction and the default judgment rendered against her was void and properly set aside.

Notwithstanding the probability that Holmes was not properly served with process, appellant argues that this is of little consequence since Holmes had actual knowledge of the lawsuit filed against her and thus she should not now be heard to complain. In support of his contention, Sams asserts that Holmes was told by a representative of Equitable shortly after George Sams’s death that a suit had been filed contesting her right to receive the insurance proceeds. He also says that he told Holmes about the lawsuit.

The evidence shows, however, that Iris Holmes has a birth defect that makes it difficult for her to hear, and a speech impediment that makes it difficult for most people to understand her. A rehabilitation counselor to whom Holmes had been referred by the Department of Pensions and Security testified that he had difficulty communicating with her and getting her to understand him. He also said that Holmes is in the lower end of the mildly retarded stage; however, he did say that his records show that Holmes completed the seventh grade in school. Another witness testified that Iris Holmes was about the same now as she was when she was a baby She understands some words and can write her name and address. She can also read lips.

The trial court found that Iris Holmes was unable to understand what she was told about the lawsuit which was filed to determine the rightful beneficiary of George Sams’s insurance policy and, thus, could not have actual knowledge of the lawsuit. Based on the evidence in the record before us—an agreed statement of the evidence prepared in accordance with Rule 10(d) and (e), ARAP—we cannot say that the trial court’s findings are unsupported by the evidence.

Next, appellant says that Holmes waited an unreasonable length of time before she sought to vacate the default judgment and have the proceeds of the insurance policy in question awarded to her. He argues that the doctrine of laches applies here.

Holmes brought her action to set aside the default judgment about fifteen months after it was entered, and, based on the evidence relating to failure of service of process on Holmes, her mental condition and her lack of ability to understand, we cannot say that Iris Holmes failed to file her vacation action within a reasonable length of time. See McNutt v. Beaty, Ala., 370 So.2d 998 (1979).

Finally, Sams contends that the trial court erred in admitting certain evidence over his objection. James O. Harris, a witness for Holmes, testified that he was a vocational counselor and had interviewed Holmes, who had been referred to him by the Department of Pensions and Security. After talking to Holmes on one or two occasions, Harris referred her to a psychologist. After testing Holmes, the psychologist made a report of his findings and sent it to Harris who placed the report in his files.

While testifying on behalf of Holmes, Harris answered questions based on the information contained in the doctor’s report. There was an objection to such testimony on the ground that the proper predicate had not been laid and that the report itself would not be the best evidence. The objection was overruled and the witness was allowed to testify.

He said that Iris Holmes had an IQ of 56 and that she had the mental development of a child in the four to seven year age group.

It should be noted here that no transcript of the testimony was made by a court reporter. The record contains an agreed statement of the evidence in narrative form as authorized by Rule 10(d) and (e), ARAP.

Due to the state of the record it is difficult to determine the precise answer given by the witness that is objected to by Sams. It appears that Sams was objecting to the witness, who had not prepared the report, giving answers based on the information contained in the report.

As pointed out above, the objection was directed to the absence of a proper predicate and whether the report was the best evidence. Based on the record before us, we are unable to say whether a proper predicate was laid or not and neither are we able to say that the report itself would not have been the best evidence. Consequently, we cannot say that the trial court committed error in overruling the objection. We observe, however, that had the ruling of the trial court been erroneous, such error does not necessarily require reversal. In order for reversal to occur, it must be shown that such error prejudicially affected the substantial rights of the appealing party. Agee v. Griffin, Ala.Civ.App., 389 So.2d 513, cert. denied, Ala., 389 So.2d 516 (1980); Rule 45, ARAP. Sams fails to satisfy us that the admitted testimony prejudiced his rights, particularly in view of other unob-jected-to evidence of Holmes’s mental condition and her inability to hear and to talk understandably. Campbell v. Southern Railway Co., 398 So.2d 728 (Ala.Civ.App., 1981).

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Andy R. WILLIS v. Elizabeth Marya LEVESQUE.
    Civ. 2574.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Elno A. Smith, Jr., of Smith & Cruse, Montgomery, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

Alabama is the responding state in an action brought by the mother of two minor children residing in the state of Maine, under the Uniform Reciprocal Enforcement Support Act, §§ 30-4-80 to 98, Code of Alabama (1975), against the father, a resident of Alabama.

After hearing, the Circuit Court of Montgomery County, Alabama, rendered judgment against the father and ordered payment of support in the amount of $75 per month beginning November 15, 1980. The father appealed.

The case is presented to this court on the sole issue of whether the judgment is erroneous in that it overruled a prior Alabama divorce decree rendered in 1974.

The brief facts are that the husband obtained a decree of divorce by default in Montgomery County, Alabama, on November 5, 1974. A motion to set aside the decree filed by the wife was denied on December 4,1974. The custody of the children was not determined in that decree nor was there an order for support. There was typed into the printed form for a divorce decree the following: “That petitioner waives his right of visitation in lieu of paying child support.” That entry is the basis of this appeal.

Appellant submits the argument that the quoted statement in the divorce is a determination that he owed no duty of support, and for the court in this case to order support violates § 30-4-93(b) of the Code of Alabama (1975). Section 30-4-93(b) provides as follows:

(b) Any order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.

The argument of appellant is, to put it charitably, totally unacceptable. In the first place, the contention that the strange provision in the divorce decree constitutes a judicial holding of no duty to support is as strange as the provision itself. The waiver of rights of visitation in exchange for release from the duty of child support is a legal impossibility. This court has held that the right to support of a child from its parents is inherent and cannot be waived by the parents even by agreement. See, Percer v. Percer, 370 So.2d 308 (Ala.Civ.App.), cert. denied, 370 So.2d 311 (Ala.1979); 15 A Ala. Digest, Parent & Child, Key No. 3.1(8).

In the second place, the statute is being misinterpreted. The order of support in a case of reciprocal support does not in any manner “supersede,” overcome or replace an order of child support in a divorce case — that is exactly what the statute says. However, the order in such a case is cumulative; that also is provided by statute. Section 30-4-98 provides: “The remedies provided in this article are in addition to and not in substitution for any other remedies.” Therefore, an order, as appellant contends is in the divorce decree, even if existent, would not bar the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Leonard Ray WILSON, Sr. v. Peggy D. Wilson FREEMAN.
    Civ. 2636.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 19, 1981.

      Fred Blanton, Birmingham, for appellant.
    Rodney A. Max of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

Trial court found former husband in criminal contempt for violating the visitation provisions of the divorce decree and in civil contempt for failure to pay child support. Former husband seeks review through petition for writ of certiorari.

After ore tenus hearings on the former wife’s petition for rule nisi and the former husband’s post-trial motions, the trial court entered judgment as follows:

[T]he court is of the opinion that the defendant in this cause is in criminal contempt of the orders of this court in that he did remove [the child] ... from the custody of the plaintiff contrary to the directions and orders of the Court. The Court is further of the opinion that the defendant is in civil contempt of this Court in that he has failed to pay child support as ordered and that the arrearage at the time of the hearing in this cause was $1,075.00 plus a court cost of $36.00. It is the further order of this Court that reasonable attorney’s fees as to the civil contempt should be and is (sic) hereby assessed at $1,000.

The court then committed defendant to jail for five days for criminal contempt and “until such time as he purges himself” for civil contempt.

The first two issues raised by petitioner concern his interpretation of the court’s order as to civil contempt. As we understand his arguments, Wilson first contends that the order was at least partially based on his failure to pay attorney’s fees, that the order allows him to purge himself only upon such fees being paid and that, because such fees constitute a debt rather than child support, his incarceration for failure to pay is an unconstitutional “imprisonment for debt.”

We find no merit in that argument. The order clearly states that Wilson was in contempt for failure to pay child support. It sets arrearage at $1,075. The court then awarded a reasonable attorney’s fee of $1,000 for the former wife’s representation in the civil contempt proceeding. This it could properly do. Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App.1980); § 30-2-54, Code of Alabama (1975).

The order neither found Wilson in contempt for failure to pay attorney’s fees nor made the payment of such fees a purgative condition. Thus, our determination of whether such attorney’s fees incident to a proceeding for support constitute a debt or child support is not required. We determine that the civil contempt was based on the failure to pay child support. The amount of arrearage, $1,075, is supported by the evidence. Clutts v. Clatts, 54 Ala.App. 43, 304 So.2d 599 (1974).

Wilson’s second contention is that the order is unenforceable because it lacks clarity, i. e., he asks whether the order requires payment of attorney’s fees as a purgative condition or payment of child support arrearages only. By this argument Wilson merely restates his first contention in a different way. The order found child support arrearages, found Wilson in civil contempt for failure to pay and allowed him to purge himself of his contempt. The order is clear and enforceable. Wilson’s argument is untenable.

Petitioner next argues that his inability to pay should have precluded a finding of civil contempt. Without detailing the evidence regarding the former husband’s financial condition, it is sufficient that we find this evidence supportive of his present ability to pay. Williamson v, Williamson, 391 So.2d 115 (Ala.Civ.App.1980); Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923 (1970). There was no error in this regard.

The next issue is whether the trial court erred in finding Wilson in criminal contempt for violating the visitation provisions of the decree. The evidence relative to such violations reveals the following:

On June 1, 1980, Wilson picked up the parties’ minor child at the mother’s home for a two-week visitation. On June 15, the day this visitation was to end, the mother received a telephone call, spoke with Wilson and requested that he return the child. He refused. The child was not returned, the mother sought relief from the court through petition and sheriff’s deputies eventually located and returned the child to her. A few days later, another visitation period was to begin at six o’clock in the evening. Wilson, while the mother was at work, came by her home around three o’clock in the afternoon and picked the child up from the yard without informing anyone of his actions. The mother came home, found the child missing and the baby-sitter unaware of his location. She received no communication from Wilson as to the child’s whereabouts for several days. The child was not returned at the scheduled end of this visitation. The mother again petitioned for the aid of the court.

Presented this evidence as to his continuous disobedience of its orders regarding visitation, the court found Wilson in criminal contempt and sentenced him to five days in jail.

There is authority for the use of a criminal contempt citation in domestic relations cases as a means of punishing one disobedient to the orders of the court. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123 (1971); See, Tetter v. State, 358 So.2d 1046 (Ala.1978). In distinguishing between civil and criminal contempt, this court in Muery, supra, quoting from Ex parte Hill, 229 Ala. 501, 158 So. 531 (1935), stated the following:

A criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience to the orders of the court. A civil contempt invokes the power of the court to commit one who is continuing to violate his orders until he complies with them.”

Criminal contempt is “imposed to punish for an act of past disobedience, to preserve the power and vindicate the dignity of the court and to punish any act which is in disrespect of the court....” Tetter, supra, (quoting from Carroll v. State, 350 So.2d 723 (Ala.App.1977)). The evidence regarding Wilson’s actions leading to the finding of criminal contempt is substantially uneon-troverted. It indicates at least three incidents, over a few weeks’ time, in disobedience to court-ordered visitation provisions. In 24 Am.Jur.2d, Divorce and Separation § 811, the following comment appears:

There is a serious question as to whether a civil contempt proceeding is an effective remedy for the violation of visitation rights. The effect of the statutes generally is that imprisonment for a civil contempt is coercive in purpose and that the cotemnor can only be imprisoned until he performs an act, whereas visitation rights contemplate a long series of acts.... But a proceeding in criminal contempt with imprisonment for a definite period of time, may be of more practical value.

The history repeated complaints of disobedience and violation of the trial court’s orders by Wilson is well known to this court and is exemplified by the fact that this is the seventh time this case has been brought to this court. In view of that history and the evidence before the court below, we find the finding of criminal contempt not inappropriate. There is no legal prohibition against the finding of both criminal and civil contempt in an appropriate factual setting.

Finding no error in the judgment of the trial court, we affirm.

The wife’s request for damages for frivolous appeal pursuant to Rule 38, ARAP is denied. Attorney’s fees, requested by the wife for her representation on this appeal, are awarded in the amount of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . There is authority that payment of attorney's fees awarded pursuant to a support order may be enforced by contempt proceedings, in the face of “imprisonment for debt” arguments. See, Potter v. Wilson, 6 Family Law Reporter 2456 (Okl.1980); Ducksworth v. Boyer, 125 So.2d 844 (Fla.1960); Carper v. Carper, 94 Miss. 598, 48 So. 186 (1909).


text:
    Gary Trent JONES v. Susan JONES.
    Civ. 2657.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    John Grow, Mobile, for appellant.
    Barber (Bob) Sherling, Mobile, for appel-lee.
   WRIGHT, Presiding Judge.

This a divorce case.

Wife filed petition for divorce and husband answered and counterclaimed. The case proceeded to ore terms hearing before the Mobile County Circuit Court.

On July 28, 1980, before the decree finalizing their divorce was rendered, the parties notified the husband’s lawyer that they wanted to give their marriage another try. The lawyer informed the parties that he would draw up a motion to dismiss.divorce proceedings. The parties went home together that evening and apparently had an argument or two and couldn’t get along. The next morning the wife went to her attorney’s office and requested that the divorce proceed.

On August 1,1981, the court rendered its decree divorcing the parties. Husband filed a motion to set aside the judgment of divorce and attached thereto the motion to dismiss which had not previously been filed.

The trial court held an evidentiary hearing on the husband’s motion to set aside judgment of divorce. The motion was denied and the husband appeals. We affirm.

The dispositive issue is whether there was a reconciliation between the parties prior to the court’s rendering its decree. The husband claims a reconciliation occurred and that the trial court thus erred in rendering a final judgment of divorce. The wife • claims the parties had not reconciled.

In Alabama, a reconciliation between the parties in a pending divorce action abrogates the cause of action and, ordinarily, the only allowable judgment thereafter is one dismissing the cause. McNutt v. Beaty, 370 So.2d 998 (Ala.1979); James v. James, 369 So.2d 811 (Ala.Civ.App.1979).

In Rikard v. Rikard, 387 So.2d 842 (Ala.Civ.App.1980), the only previous case in which this court has addressed the issue of whether reconciliation has occurred, we adopted the following general definition of “reconciliation”:

Voluntary assumption of marital cohabitation in the fullest sense of living together as husband and wife, having sexual relations and where possible, joint domicile. The intention of the parties must be to resume married life entirely, and not merely to enjoy each other’s society temporarily, for limited purposes, or as a trial of whether they want to be reconciled. (Emphasis added.)

We also stated as follows:

Separated married couples who later cohabit on a trial basis do not have a present intent to resume married life entirely and on a permanent basis. They utilize the trial cohabitation as an instrument to assist them in making up their minds. The requisite intent is not present. They do not intend to settle their differences on a permanent basis, but rather conditionally. After a separation, if the parties casually cohabit, or if the cohabitation is sporadic, or if it is conditional or provisional, there is no reconciliation because of the absence of the required intent. (Emphasis added.)

We further stated that the question of whether the parties intended to resume married life entirely is a factual matter to be considered by the trial judge along with all of the other evidence in the case and reasonable inferences therefrom.

We perceive no particular benefit in setting out in detail the evidence pertaining to reconciliation. The parties contacted the lawyer and were together on July 28. The wife testified there were conditions to their rejoindure and that the husband broke some of these that very night. The next morning she went to her lawyer seeking to have the divorce proceed. It did.

From this and other evidence and inferences therefrom the court could well have found that the parties engaged in a “conditional reconciliation,” as the trial judge put it, and did not intend to resume married life entirely but to cohabit on a trial basis. The trial judge listened to extensive testimony at the hearing on husband’s motion to set aside. The record indicates he exercised his judgment fairly and discreetly.

The judgment is affirmed.

Attorney’s fees, requested by the wife for her representation on appeal, are awarded in the amount of $300.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SCRUGGS, Retired Circuit Judge.

text:
    Judith Ann WADE v. James David WADE.
    Civ. 2661.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Joel M. Nomberg of Nomberg, McCabe & Fulford, Daleville, for appellant.
    L. A. Farmer, Jr. of Farmer & Farmer, Dothan, for appellee.
   SCRUGGS, Retired Circuit Judge.

This is a divorce case. The present issues generally concern a division of the property of the parties and the amount of the wife’s periodic alimony.

No assets were brought into their 1951 marriage by either party. They are childless, are now in their mid to late forties, and presently enjoy good health. The separation and divorce in 1980 were occasioned by their incompatibility of temperament.

The husband has worked throughout the marriage. In 1975 he and two others entered into the farm equipment business, and he and his brother each currently own one-half of its capital stock. His only income is derived from that business and from interest on savings. In 1980, he drew as a salary from the business a net of $320 per week and further received an annual bonus of $5,000. On his 1979 state income tax return, his total income was stated to be $37,194. Because of present economic conditions, he testified that his business is now in a shaky fiscal posture. His partial list of his personal monthly expenses, excluding clothing and miscellaneous matters, totalled almost $700, including one-half of the house. mortgage payment.

The wife was employed full time for eight years during the marriage, but in 1980 she only worked for two days per week because of her necessary attention directed to her 93-year-old father. The record is not clear as to when she worked full time nor for how long she has worked part time. Her take-home salary is $145 per week, to which could be added $10 which is voluntarily deducted from her wages as credit union savings. Her income consists of her salary and interest receipts from savings. Her total income of $8,530 was reported on the 1979 state income tax return. Her listed monthly personal expenses, plus $58.75 as one-half of the home monthly mortgage payment, amounted to around $780.

The only real estate which was accumulated by the parties was their jointly-owned house and lot. A balance of $12,000 was owned upon the first mortgage on the house, and over $240,000 against it remained unpaid upon a second mortgage, which was given to partially secure a business loan for his corporation. The court awarded to the wife the use of the home until she moved from it or remarried, at which time it would be sold and the net proceeds divided, with the wife receiving sixty percent and the husband forty percent thereof. Each party is required to pay one-half of the home’s taxes, insurance, upkeep and of its first mortgage monthly payments. The husband has to be responsible for the payment of the second mortgage.

Additionally, the divorce judgment granted the following to the wife: all household goods and furniture, a 1976 Oldsmobile automobile, an antique 1949 Ford pickup truck, all life insurance policies upon her life, and a United Federal Savings and Loan (UFS&L) certificate in the unencumbered amount of $27,199. As to that certificate, in 1972 or 1973 she received $6,800 from her father, which she invested in a savings certificate along with the further sum of $3,000, which she had saved' from her employment. The certificate has accumulated interest apparently since its inception. While the evidence is most cloudy as to the origin of the balance of the funds constituting that certificate, it could be reasonably interpreted that such balance came from the husband’s funds. The money which each of them earned over the years was commingled in their savings. She was directed by the divorce judgment to assume a debt of $1,400, which was borrowed for the benefit of her nephew.

The farm equipment business was granted to the husband, who testified that its liabilities almost exceeded its assets. He also received a 1973 mobile home in which he currently resides and for which he owes $4,000, and was allowed to retain his one-half interest in a mobile home where the wife’s father resides. Further awards to him were a 1971 MGB automobile; a 1969 fifteen-foot boat, motor and trailer; all life insurance policies which insure his life; eleven shares of Liberty National stock; and the following UFS&L certificates: a certificate for $13,569 with a $5,969 loan against it, a certificate for $10,000, and a certificate for $16,966 against which there is a loan of $10,708. He was further awarded two passbook savings accounts totalling $429. In addition to other debts which have been previously mentioned, he was held responsible by the judgment for the debt upon his mobile home and for all loans against UFS&L certificates which he was awarded.

The husband was ordered to pay $400 each month to the wife as periodic alimony.

Regarding the $27,199 certificate, the wife contends that the trial court abused its discretion since it did not consider that some, if not all thereof, constituted her separate funds and that the trial court awarded to the husband some of her cash. Particular reliance is placed upon Foster v. Foster, 365 So.2d 1227 (Ala.Civ.App. 1978); however, the facts there and here are materially different. In Foster, it was declared to be error to award to the husband $6,500 from the wife’s savings account, which was her separate estate. In the present case the husband was not awarded any portion of that particular certificate, which is the only certificate which the wife claims to have been a part of her separate estate. To the contrary, all of it was granted to the wife. There is nothing in the record or in the judgment to indicate that, in making the property divisions, the trial court did not give due and proper consideration to that matter by excluding from its consideration in dividing the property such portion of the certificate as that court determined constituted a portion of the wife’s separate estate. The trial court also could have taken into account the fact that their UFS&L invested funds were commingled by the parties. We find this particular contention of the wife to be without merit.

The other issues concern whether the trial court abused its discretion as to the amount of the award of periodic alimony, and, generally, whether there was an inequitable property distribution, especially in not awarding the home absolutely to the wife.

The evidence was heard orally by the trial court, and its findings as to alimony and as to a division of property are, consequently, presumed to be correct and can be set aside on appeal only if they are palpably wrong. The award of alimony and the proper division of the property of the parties lie within the sound judicial discretion of the trial court, which is reviewable only for abuse thereof. The division of property in a divorce case may be disproportionate and unequal; however, it should be equitable. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App. 1980); Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App. 1980); Hicks v. Hicks, 387 So.2d 207 (Ala.Civ.App.), cert. denied, 387 So.2d 209 (Ala.1980); Lindsey v. Lindsey, 380 So.2d 880 (Ala.Civ.App. 1980); Bouler v. Bouler, 366 So.2d 290 (Ala.Civ.App. 1979); Godec v. Godec, 346 So.2d 459 (Ala.Civ.App. 1977); Dickson v. Dickson, 57 Ala.App. 732, 331 So.2d 740 (1976).

We have carefully considered all of the trial evidence, and the record discloses nothing to persuade us that the trial court abused its discretion or rendered an inequitable judgment. The final judgment of the circuit court is affirmed.

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

AFFIRMED.

All the Judges concur.


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    William J. DAVIS, as Director of The State of Alabama, Department of Industrial Relations v. Douglas C. NULL.
    Civ. 2688.
    Court of Civil Appeals of Alabama.
    July 15, 1981.

      George Cocoris, Gen. Counsel, Frank D. Marsh, Montgomery, and Julius R. Vaughn, Asst. Gen. Counsel, for appellant.
    William T. Coplin, Jr., Demopolis, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

After decision of the Board of Appeals denying plaintiff’s claim for unemployment compensation benefits, appeal was taken to the Marengo County Circuit Court for a trial de novo.

At the conclusion of claimant’s evidence, the defendant-Department of Industrial Relations orally requested a directed verdict on the ground that plaintiff had not met his burden of proof under § 25-4-77, Code of Alabama (1975). More specifically, the Department claimed the plaintiff had not met his burden of showing “availability” for work throughout the benefit period and was, therefore, ineligible for benefits. The trial court denied the Department’s motion and the case proceeded.

After trial, judgment was entered finding plaintiff eligible to receive benefits. The Department filed a post-trial “Motion to Vacate Judgment and Enter a Judgment for the Defendants” on substantially the same ground as its earlier motion for directed verdict, i. e., that plaintiff had failed to meet his burden of proof in showing “availability” for work. The trial court entered the following order pursuant to this motion:

Upon consideration of Defendant’s motion to vacate judgment and to enter a judgment for defendant, the Court is of the opinion that the motion to vacate is due to be granted. However, the Court is of the opinion that the motion for judgment for defendant is due to be denied in that the plaintiff was wrongfully discharged, and may have a valid claim for unemployment compensation.
It is the further ORDER of this Court that additional testimony shall be taken ... for the soul (sic) purpose of determining whether or not the plaintiff fulfilled all eligibility requirements for obtaining unemployment compensation.

The Department appeals from this order. At issue is the propriety of the trial court’s action in setting a hearing for the purpose of taking additional testimony on the question of the eligibility of the plaintiff to receive benefits.

The Department claims that the court’s order, in effect, granted a partial new trial on the eligibility issue and that such was granted on the court’s own initiative more than thirty days after judgment in violation of Rule 59(d), ARCP. The Department alternatively contends that the court was prohibited from granting a new trial because such relief was not requested in its post-trial motion.

The appellant’s argument that the court granted new trial on its own untimely initiative is not well taken. It is seemingly based on the assertion that new trial was granted to plaintiff in order to allow him to produce evidence essential to his burden of proof on the question of eligibility. § 25-4-77, et seq., Code of Alabama (1975).

While we are not asked to, nor could we from the scant record before us, determine whether the plaintiff carried his burden of proof on the question of eligibility, we do note that there was evidence before the court indicating plaintiff’s “availability” for work at all times after filing for benefits. The trial court entered judgment for plaintiff, and defendants filed its post-trial motion to vacate and enter judgment for defendants challenging the sufficiency of the evidence to support that judgment. In response to defendant’s motion, the trial court set aside its judgment in favor of plaintiff, and set a hearing for taking additional testimony on the question of eligibility. It is evident, the court did not grant a new trial on its own initiative. It granted a new trial in response to defendant’s timely-filed motion. Rule 59(d), ARCP is not applicable.

The question remaining is whether the trial court should be prohibited from ordering relief, i. e., the taking of additional testimony, when such relief was not requested in the post-trial motion. The Department contends the court should be so prohibited. We do not agree. We consider that Rule 59(a) authorizes the trial court’s action in a non-jury case.

This issue comes to us in a strange posture; that is, the party upon whose motion the judgment was vacated is now complaining of the relief ordered. The peculiarity results from the Department’s aforementioned assertion that the trial court should have entered judgment in its favor upon the post-trial motion and that taking additional testimony will allow plaintiff to produce additional evidence on the question of eligibility. We find nothing wrong with that. Such occurs always when a new trial is granted. In this case it serves the purpose of the rules and the beneficent purpose of the Unemployment Compensation Act.

There is authority for the court’s granting a new trial where different relief is sought by post-trial motion. Federal Courts have held that on a motion for judgment notwithstanding the verdict under Rule 50(b), FRCP, the trial court may, rather than grant judgment for the movant, in its discretion, order a new trial in the interest of fairness and justice. Stonehocker v. General Motors Corp., 587 F.2d 151 (4th Cir. 1978); Weider v. Hoffman, 238 F.Supp. 437 (M.D.Pa. 1965); See, Peterman v. Chicago, Rock Island and Pacific Railroad Co., 493 F.2d 88 (8th Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974). The court’s discretion in granting new trial in such a situation may be exercised if it believes any defect in proof might be remedied by a second trial. See, Weider v. Hoffman, supra; Wright and Miller, Federal Practice and Procedure, Civil § 2538.

The case was tried non-jury. The Department’s post-trial motion requested entry of judgment for defendants, not unlike the function of a motion j.n.o.v. in a case tried before a jury. The court granted the motion and ordered additional testimony on the eligibility question. Such action is consistent with the procedure outlined in the cases cited above. See, Peterman, supra. The court’s taking additional testimony should enable it to clear up any doubts it may have with regard to plaintiff’s eligibility for benefits and this is in keeping with the beneficent purpose of our unemployment compensation laws. See, Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970). We find no abuse of discretion in either the procedure or the propriety of the court’s ordering additional testimony to do justice between the parties. See, City of Union Springs v. Evans, 286 Ala. 412, 240 So.2d 662 (1970).

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . We note that defendant’s motion for “directed verdict” in this non-jury case was, in fact, a Rule 41(b) motion for dismissal. See, Chaney v. General Motors Corp., 348 So.2d 799 (Ala.Civ.App.1977).


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    STEEL CITY ERECTION COMPANY, INC., a corporation, v. JOHNSON-RAST & HAYS, INC., a corporation.
    Civ. 2708.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    R. O. Hughes of Barber, Johnston, Hughes & Whittington, Birmingham, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The plaintiff, Johnson-Rast & Hays, sought the recovery of insurance premiums from the defendant, who appeals.

A nonjury trial was held before the trial court. The evidence in the case was in dispute as to the terms of an accord or agreement of the parties. Summarily stated, the controversy was whether the accord included only the balance due as premiums upon two insurance policies, or whether it encompassed the entire account between the parties, which consisted of the balance of premiums payable upon three insurance policies. A question of fact was presented in that regard for the decision of the trial court. Security Transactions, Inc. v. Nelson Excavating & Paving Co., Inc., 55 Ala.App. 223, 314 So.2d 297, cert. denied, 294 Ala. 768, 314 So.2d 304 (1975); W. B. Davis Hosiery Mill, Inc. v. Word Lumber Co., Inc., 49 Ala.App. 492, 273 So.2d 469 (1972), writ denied, 290 Ala. 372, 273 So.2d 474 (1973); Homewood Dairy Products Co., Inc. v. Robinson, 254 Ala. 197, 48 So.2d 28 (1950).

If the trial court had found that factual issue in accordance with the contentions of the defendant, nothing would be due to the plaintiff since the entire indebtedness would have been extinguished as to any and all premiums due on the three insurance policies. On the other hand, if the trial court ascertained that factual question favorably to the plaintiff, the defendant would still owe to the plaintiff the balance due on a premium for an excess indemnity policy. The only testimony in the record as to that amount is $10,117.

The learned trial judge, after making a finding of fact that there had been no meeting of the minds between the parties as to the proposed compromise agreement, announced the following from the bench:

This is a case at law which the lawyers understand, but I don’t know if you parties do. It is a case in law, and not one of equity. The equity, I have got more power to balance the equities to do what I think is fair; in law, I am not given that right or that authority, either all or nothing. And quite frankly, I don’t like that. I think what we have here is a bona fide misunderstanding, bona fide dispute between two good businessmen. Both of them were acting in good faith. What I am going to do is try to attempt a settlement of this compromise, based upon my best ability to apportion what I consider to be the equities in this case. Inasmuch as I am going to do that, if either one of you wants to appeal, you can appeal automatically and summarily, and very promptly and quickly get me reversed, if that’s what you all want to do. I’m awarding the plaintiff $4,000 principal plus $200 interest, Court costs to be divided equally among the parties. As I said before, anybody that wants to appeal can get me reversed. I just hope you all will be satisfied with it. If you don’t, you all can get me reversed.

Where the trial court’s judgment is not supported by any competent evidence, our only alternative is to reverse, and this is true regardless of the presumption that a trial court’s findings of fact are valid where the trial was orally conducted before it. McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974). For, even where the evidence was heard ore tenus, the findings of the trial court cannot be upheld if they are palpably wrong, without supporting evidence, or manifestly unjust. Cotton States Mut. Ins. Co. v. Conner, Ala., 387 So.2d 125 (1980); 2A Ala.Digest, Appeal & Error key 1010(2). A trial court’s finding as to the amount due from one party to the other is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. Martin v. House of Carpets, 41 Ala.App. 460, 135 So.2d 171 (1961).

There is no evidence, nor any proper inference therefrom, which supports a judgment for $4,000. As the trial court aptly observed, it was a case of “either all or nothing,” “all” being the sum of $10,117. In its effort to compromise or settle this dispute, the trial court admittedly abused its discretion in rendering its judgment, and we, accordingly, reverse and remand, as the circuit court so appropriately prophesied.

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

REVERSED AND REMANDED.

All the Judges concur.


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    William J. DAVIS, as Director of the State of Alabama Department of Industrial Relations v. Edna L. McBROOM.
    Civ. 2677.
    Court of Civil Appeals of Alabama.
    July 22, 1981.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Montgomery, for appellant.
    Larry H. Keener of Floyd, Keener & Cu-simano, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an unemployment compensation case. The trial court awarded benefits to the claimant and the department appeals.

The trial court properly concluded that the claimant did not leave her work voluntarily without good cause — this is true under the evidence and also because that holding or finding is not attacked on appeal, hence same is waived. However, no evidence was introduced concerning her ableness and availability for work under §§ 25-4-77 and -78(5) of the Code 1975. Such lack of proof is the only issue raised and argued by the department on this appeal. Proof that the claimant was able to, and available for, work was necessary to sustain her case. Quick v. Director of State Department of Industrial Relations, Ala.Civ.App., 398 So.2d 312 (1981) and cases cited therein. Accordingly, we must reverse this case. We have carefully considered the scholarly argument of sincere counsel for the claimant.

When a judgment is reversed, we may remand the case to the trial court for further proceedings, or we may enter such judgment as that court should have rendered in those cases where the record enables this court to do so. Code 1975, § 12-22-70.

The department requests that we render a judgment denying benefits to the claimant because she failed to prove such facts. However, we deem that such action on our behalf would be contrary both to the beneficent purpose of the Unemployment Compensation Act and to the philosophy of Alabama’s modern judicial system whereby, among other objectives, the courts seek the just determination of all cases on their merits. ARCP, Rule 1(c); ARAP, Rule 1.

Section 12-22-70 of the Code specifies that an appellate court “may,” not “must,” render the proper judgment upon a reversal. If the record enables us to render a judgment, we should not remand the case after reviewing it unless we are able to perceive clearly that such a course is demanded by justice. Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969). In the Hal-stead case the trial court set aside a default judgment in the amount of $25,000 against a defendant upon the ground that he was not served with notice of the suit, but there was no proof that the defendant had a meritorious defense. Upon reversing the case on that ground, Justice Merrill stated therein:

It is abundantly clear to us that justice requires this case to be reversed and remanded, so that the complainant [defendant on the law side] may show that he had a meritorious defense to the default judgment of $25,000, which was obtained without personal service or notice to him.

Justice requires that this case be remanded, not rendered, to enable the claimant to show whether she was able to work and was available for work, since it has already been adjudged that she did not leave her work voluntarily without good cause. “The court’s taking additional testimony should enable it to clear up any doubts it may have with regard to plaintiff’s eligibility for benefits and this is in keeping with the beneficent purpose of our unemployment compensation laws.” Davis, Director of Department of Industrial Relations v. Null, 402 So.2d 1011 (Ala.Civ.App.1981).

The judgment is reversed and the cause is remanded to the circuit court where additional evidence shall be taken and a judgment rendered with regard to the claimant’s eligibility for benefits particularly under §§ 25-5-77 and -78(5), Code 1975.

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

REVERSED AND REMANDED.

All the Judges concur.


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    L. Richard CARTER v. Ernest SMITH, Vera M. Smith and Joy Carter.
    Civ. 2699.
    Court of Civil Appeals of Alabama.
    July 22, 1981.

      Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
    John T. Robertson of Henslee & Bradley, Gadsden, for appellees.
   HOLMES, Judge.

Ernest and Vera Smith sued Richard Carter to recover the unpaid balance of a $8,500 loan.

Carter denied liability and filed a third party complaint against Joy Carter seeking indemnity for any funds found to be due the Smiths.

The trial court, after an ore tenus hearing, found in favor of the Smiths and entered judgment against Carter in the amount of $2,324.06. The trial court found in favor of Joy Carter on the third party claim.

Carter appeals and we affirm.

The dispositive issue is whether there is any evidence to support the trial court’s finding that Joy Carter was not liable to Carter on his third party claim.

The record, viewed with the attendant presumptions, reveals the following:

Ernest and Vera Smith are the parents of Joy Carter. Richard Carter is their former son-in-law. The Carters were divorced in 1980 prior to the filing of this suit.

In 1975 the Smiths wrote a $3,500 personal check and purchased a $5,000 cashier’s check. The $3,500 check was payable to Joy Carter and the $5,000 check was payable to Carter. Both checks were deposited in the Carters’ joint bank account. There is evidence indicating that the money may have been used for the construction of the Carters’ homeplace.

At trial Mr. Smith testified to the effect that the $8,500 was given to Carter as a loan and that Carter was solely responsible for its repayment. He also testified that Joy Carter came to his home on behalf of Carter to pick up the $3,500 and that this was why that check bore her name. The testimony of Mrs. Smith and Joy Carter was to the same effect.

Carter testified to the effect that he did not borrow any money from the Smiths and that if there was a loan, it was to his ex wife, Joy Carter. This was the basis of Carter’s third party claim.

There was also evidence that all but $2,324.06 in principal and interest had been repaid.

As indicated, the trial court found in favor of the Smiths on their claim and in favor of Joy Carter on the third party claim. We note at the outset that Carter does not contest the trial court’s decision regarding the Smiths’ claim, but rather, Carter contends the trial court erred in ruling in favor of Joy Carter on his third party claim.

It is clear from the above that there was a conflict in the testimony. It was encum-bent upon the trial court to resolve that conflict. Suggs Music Co. v. State Dept. of Revenue, Ala.Civ.App., 365 So.2d 977 (1978), writ denied, 365 So.2d 979 (1979).

It is equally clear that if there is any evidence to support the trial court’s finding we must affirm. Jansen v. Fair Harbor Marina, Inc., Ala.Civ.App., 373 So.2d 325 (1979); Hover v. Wittaker-Warren Agency, 56 Ala.App. 255, 321 So.2d 213 (1975).

In the instant case there was evidence that the $8,500 was given to Carter as a loan and that he alone was responsible for repaying it. In addition, there was no evidence of any agreement between Carter and Joy Carter regarding repayment of the loan. Stated differently, there was evidence from which the trial court could conclude that the loan was made to Carter and that Joy Carter was not in any way responsible for its repayment.

In view of the rule set forth above, the case must be affirmed.

Carter, through able counsel, additionally contends that Joy Carter is es-topped to deny liability to him on his third party claim. Discussion of this issue is not necessary.

Estoppel is an affirmative defense which must be specially pleaded. Kimbrell v. City of Bessemer, Ala., 380 So.2d 838 (1980); Rule 8(c), ARCP. It was not pleaded in this case nor was it raised in the trial court. The issue cannot be considered for the first time on appeal. Dobbins v. Getz Exterminators of Alabama, Inc., Ala.Civ.App., 382 So.2d 1135 (1980). See also, Hendricks v. Blake, 291 Ala. 575, 285 So.2d 82 (1973).

The case is due to be affirmed.

AFFIRMED.

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


text:
    Rebecca CURRY v. Donald Wayne CURRY.
    Civ. 2722.
    Court of Civil Appeals of Alabama.
    July 22, 1981.

      J. Milton Coxwell, Jr., of Coxwell & Cox-well, Monroeville, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This matter began as a divorce case but developed into an issue of the paternity of a child.

Plaintiff brought petition for divorce. There was no reference to a child in the petition. The plaintiff had a child born in February 1978, while she was married to a prior husband. The defendant moved for the prior husband to be added as a party plaintiff, alleging that there was a question as to which husband of plaintiff was the father of the child. The prior husband, Victor Kabel, appeared and answered that he was the child’s father. Defendant filed a counterclaim seeking a determination that he is the father of the child, Anthony Don Kabel.

The evidence disclosed that plaintiff knew Kabel and defendant in the summer of 1977. She had sexual intercourse with defendant in June 1977 and with others in April and May. She did not have sexual intercourse with Kabel in any of those months. She had her menstrual period about the first of June, but had no period in July. She thought she was pregnant thereafter and tests confirmed it. She told defendant he was the father and asked him to marry her. He either refused or told her to wait until he could support her. Plaintiff said defendant denied paternity.

After confirming her pregnancy, plaintiff went to Pensacola and stayed with Kabel, who was in military service, until he returned to Germany. She asked Kabel to marry her, telling him he was the father of her unborn child. She later joined him in Germany and married him in January 1978. The child was born shortly thereafter and was registered as the child of Kabel. The child was born several weeks earlier than its calculated time for birth.

Plaintiff and Kabel returned to this country and were divorced in September 1978. Plaintiff and defendant were married in November 1978.

Plaintiff was required to state, over objection, that she considered defendant was the natural father of her child if it was conceived after her period in June. However, she was told by a doctor in Germany that because of its size, her baby could have been conceived earlier than she thought and not born prematurely as she first thought.

After hearing the evidence orally, the trial judge granted the divorce, found defendant the father of the child and gave its custody to plaintiff. Plaintiff appeals from that part of the judgment finding defendant to be the father of her child.

Two recent cases of our supreme court have dealt extensively with the law of this state as to the issue of paternity of a child born of a married woman. Those cases are Rumlin v. Lewis, 381 So.2d 194 (Ala.1980); Leonard v. Leonard, 360 So.2d 710 (Ala.1978). /Those cases iterated the long-standing rule that a child born of a married woman, no matter when conceived, is presumed to be the legitimate child of her husband./ Such presumption may be rebutted by clear and convincing evidence, which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father. Any evidence which is competent and tends to show that the husband could not be physically or biologically the father is admissible./ However, the husband and wife are incompetent to testify that their child is illegitimate. The wife may not give testimony which would establish the illegitimacy of her child born in wedlock, though she may testify as to circumstances from which non-access by her husband and the impossibility of his parenthood may be inferred. The burden of overcoming the presumption of legitimacy is upon the one denying it.

Without consideration of error in the admission of testimony of the plaintiff denying the legitimacy of her own child (such error not being charged on appeal), we find the evidence as to illegitimacy to fall short of the required standard of proof.

/ It has. been said by our courts that the presumption of legitimacy remains one of the highest known to law and is not to be overcome except upon the highest proof. It has never been allowed just and reasonable to hold a child a bastard unless there is no judicial escape from that conclusion. Franks v. State, 26 Ala.App. 430, 161 So. 549 (1935).

It is clear from the questions put to the mother by the court and its comments upon her response in the last portion of the record, that the decision rendering the child, Anthony Don Kabel, illegitimate, and the child of defendant, is founded upon the conclusion that the child was not carried by the mother for 270 or more days from conception to birth. The court fastened upon the statement of the mother that the child was born some three weeks prematurely on February 2, 1978, to conclude that it must have been conceived at a time in June when only defendant had sexual access to the mother.

Our examination of the total testimony of the mother indicates that she originally considered the child premature because it was born less than nine months after her last menstrual period. After being informed by her doctor that the size of the baby indicated that she may have erred in the calculation of the time of conception, she said she believed it may not have been premature at all, but may have been conceived in April or May when she denied having intercourse with defendant.

The court in Franks held that the trial court erred in limiting testimony as to time of possible conception to a period of nine months or even 280 days prior to birth. It pointed out that time of gestation may vary from 260 to 301 days and in most cases is 280 or more days.

We therefore hold that the proof of illegitimacy of Anthony Don Kabel falls short of the standard established by the cited cases and was thus insufficient to overcome the presumption of his being the child of the marriage of plaintiff and Victor Kabel. We therefore reverse and remand to the trial court.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.