text:
    Virginia May Johnson STEWART v. Toby Frank JOHNSON.
    Civ. 2556.
    Court of Civil Appeals of Alabama.
    June 17, 1981.

      Joseph P. Hughes, Geneva, for appellant.
   SCRUGGS, Retired Circuit Judge.

This appeal by Mrs. Stewart, the former wife of Mr. Johnson, involves proceedings by her to enforce the child support provisions of the parties’ divorce judgment. Mr. Johnson sought modification of child support.

We summarize only some of the history and facts of this case now pertinent to the issues before us.

Their divorce judgment of June 7, 1974, approved their agreement whereby Mr. Johnson was required to pay as child support for two daughters either the sum of $35 per week, or an amount equal to thirty percent of his net weekly income, whichever was greater. He was also required to maintain hospitalization and medical insurance upon the children. Both parties have now remarried. In her present complaint, Mrs. Stewart requested that her ex husband be adjudged to be in contempt of court for failure to pay the required amounts as child support and she further requested reimbursement for payment of some of the children’s medical and dental expenses. By counterclaim, Mr. Johnson requested modification of the previous judgment so as to delete therefrom the 30% of weekly wage requirement and to substitute therefor a sum certain to be paid by him as child support.

After an ore tenus hearing before the court, the trial judge rendered a judgment adjudging Mr. Johnson to be in contempt of court for failure to pay $2,850 in delinquent child support, suspended his incarceration in jail therefor, and allowed him to purge himself of contempt by paying thereon $75 each month; rendered judgment against him for the $2,850 and suspended execution on that judgment for so long as he continued to make such $75 per month payments; further rendered judgment against him for $950 for medical expenses with a suspension of execution thereon for 120 days; and modified the previous judgment by substituting the specific amount of $40 per week for child support in lieu of its original provisions. After her motion to alter or amend that judgment, or for a new trial, was overruled by the trial court, Mrs. Stewart duly appealed.

1.

Mrs. Stewart first argues that the unpaid support greatly exceeded the amount as ascertained by the trial court. While no authority exists for a court to remit or reduce the amount of arrearages for already accrued installments of child support under Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963), we do not find that the trial court did so, for a review of the trial evidence reveals that the judgment is supported by the testimony. Under Mrs. Stewart’s evidence, the trial court could have determined arrearages in any amount from about $2,680 to around $6,770. Hence, the circuit court was not in error in its adjudication of $2,850 as due for child support. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974).

2.

The judgment did not make any allowance for interest on the amount of child support determined to be past due, and that deficiency was raised by Mrs. Stewart in her post-trial motion which was overruled. Since that issue was presented to and denied by the trial court, we must find that the failure to impose interest on the past due child support installments was error. Osborne v. Osborne, 57 Ala.App. 204, 326 So.2d 766 (1976).

3.

The trial court suspended execution for 120 days as to the $950 judgment and a suspension of execution applied to the delinquent child support judgment for $2,850 while and if Mr. Johnson made the required $75 per month payments in so purging himself of contempt. Mrs. Stewart contends that this constitutes error, citing Osborne v. Osborne, supra, wherein it is stated:

We comprehend that a contempt of court may be purged by an order of payment of a sum upon past-due installments, but such order should not be a bar to collection of the judgment by execution or garnishment if assets of defendant are available to such process. . . . We therefore follow the rule that accrued installments of support are final judgments and may be collected as any other judgment. An order of the trial court permitting the payment of such judgments in installments is not a bar to any other process for collection of judgments.

57 Ala.App. at 207, 326 So.2d at 768.

The question of the suspension of execution for 120 days as to the $950 judgment for medical and dental expenses is now moot since more than 120 days have expired since its rendition. However, under Osborne v. Osborne, supra, we must reverse that aspect of the order which suspended execution as to the $2,850 judgment.

4.

Mrs. Stewart next contends that the amount of the judgment for medical and dental expenses should have been for a larger sum in that the trial court did not include in the judgment any reimbursement for 1980 expenses. These items were largely represented by exhibits 3 through 8, which are not copied in the transcript since the court reporter certified that they were lost and are not available for copying therein.

There is evidence that exhibit 8 is a bill for dental expenses for an undisclosed amount for one child. Exhibits 5, 6, and 7 apparently were for dental expenses for the children since January 1, 1980. No duty was imposed upon Mr. Johnson by the divorce judgment to pay any dental expenses whatsoever.

As to exhibits 3 and 4, we cannot fathom the amounts thereof, to whom, or when they were paid.

Where some of the evidence which was introduced in the trial court is not included in the record on appeal, we presume that the unincluded documents were sufficient to sustain the action of the trial court. Valley Mining Corp., Inc. v. Metro Bank, Ala., 383 So.2d 158 (1980). Additionally, there was some evidence that Mr. Johnson at trial time carried medical and hospital insurance. The trial court could have ascertained that his obligation under the divorce judgment was fully satisfied by that insurance coverage.

5.

The last contention of Mrs. Stewart is that the original judgment as to child support should not have been modified. We agree.

Mr. Johnson had the burden of proving that there had been a material change in the attendant circumstances since the 1974 divorce judgment before the modification relief sought could have been granted. Ex parte Boley, Ala.Civ.App., 392 So.2d 840 (1981).

The most significant change of circumstances shown by the evidence was that both parties had remarried, and that his remarriage had increased his expenses considerably. At the time of the trial, he was totally supporting his new wife (who was then pregnant) and her child by a previous marriage except for weekly child support of $12 paid by the present Mrs. Johnson’s former husband. On the other hand, his gross income had increased from $3,750 in 1974, and no income in 1975, to $13,851 in 1979.

There was no evidence of the needs of the two teenage daughters; however, we take judicial knowledge that their living expenses have increased due to inflation and their aging since 1974.

While his remarriage and consequent increase in living expenses are circumstances to be considered, those facts are inadequate to justify a modification of child support. Mr. Johnson failed to meet the requisite burden of proof. We are not unmindful of the practical difficulties involved with the enforcement of support judgments which order payment of percentages of weekly net income; however, the proven facts are insufficient evidence of a material change in the circumstances of the parties upon which to base the modification of the judgment as to child support. Osborne v. Osborne, supra; Bill v. Bill, Ala.Civ.App., 370 So.2d 1023 (1979).

Mrs. Stewart has requested an award of an attorney’s fee on appeal, and we order Mr. Johnson to pay to her attorney the amount of $350.

The judgment of the circuit court is affirmed in all respects except as to issues above numbered 2, 3, and 5, as to which the judgment is reversed and the case remanded.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Paul HANSEN v. Deborah H. HANSEN.
    Civ. 2590.
    Court of Civil Appeals of Alabama.
    June 17, 1981.
    James M. Fullan, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellant.
    John T. Ennis, Sr., of Lloyd, Ennis & Lloyd, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, made a division of property, ordered the husband to pay alimony and child support, and awarded the wife an attorney’s fee.

The husband, through able and distinguished counsel, appeals, contending the trial court abused its discretion in the division of property, in the award of alimony and child support, and in the award of attorney’s fees. We find no abuse of discretion and affirm.

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

The parties were married approximately twelve years. Three children, ages seven, five, and four months, were born of the union. The wife was awarded custody of the children. Custody is not an issue in this appeal.

The husband is a soldier in the United States Army. At the time of trial he had attained an E — 6 pay grade. His net income was $1,032.24 per month. There was testimony indicating that the husband would receive a pay raise in the near future. The amount of this anticipated raise was not stated in the record.

There was evidence that the husband was guilty of adultery and that his adulterous conduct spanned a number of years. The husband at the time of trial was living with his paramour.

The wife, at the time of trial, was unemployed. The wife and the parties’ three children lived in the home of her parents. The wife testified to the effect that she had to borrow money from her father to support herself and the children. She also testified that the need to care for the children made it difficult to secure employment. The record further reveals that the wife has a high school education and that she has little work experience.

The parties have few material assets. Their property consists of household furnishings, two automobiles, and various items of personal property. The husband owns shares in the Putnam Growth Fund. These shares were inherited from his father. The wife has no separate estate. The trial court, after an ore tenus hearing, found that the husband’s adulterous conduct caused the divorce and awarded the wife $100 per month as alimony and $150 per month per child as child support. The trial court divided the property by awarding the wife the two automobiles, several Hummel figurines, and the household furnishings. The husband was awarded all personal property in his possession and the Putnam Growth Fund shares. The wife was awarded a $1,000 attorney’s fee.

At the outset, we note that divisions of property and awards of alimony, child support, and attorneys’ fees in divorce actions are matters within the discretion of the trial court and that the exercise of that discretion will not be reversed on appeal except for palpable abuse. Smythe v. Smythe, Ala.Civ.App., 376 So.2d 1101 (1979); Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979); 8 Ala. Digest, Divorce Keys 223, 235, and 296.

As indicated, the husband contends the trial court abused its discretion in each of the above listed matters. Specifically, the husband contends that the awards to the wife were excessive in light of his income.

First, with respect to the division of property and the award of alimony, we reiterate that there are no fixed standards for determining the amount of alimony or for dividing the parties’ property. Each case must be decided on the basis of its own facts and circumstances. In reaching its decision, the trial court may consider the future prospects of the parties, their ages, sex, health, station in life, the length of the marriage, and the fault of the parties in causing the divorce. Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, writ quashed, 350 So.2d 1045 (1977), appeal after remand, 361 So.2d 590 (1978); 8 Ala. Digest, Divorce Key 240(2). Further, the division of property need not be equal and it is not error under appropriate circumstances to award virtually all of the parties’ assets to one party. Weaver v. Weaver, Ala.Civ.App., 394 So.2d 378 (1980), writ denied, 394 So.2d 380 (1981).

In the instant case, the husband is a soldier in the Army. His net income is $1,032.24 per month. There is evidence that the husband is guilty of adultery and that his misconduct caused the divorce. The wife, on the other hand, is unemployed, has little work experience, and has custody of the parties’ three minor children. In light of the evidence set forth above, particularly that concerning the husband’s misconduct and the wife’s financial situation, we cannot say that the trial court abused its discretion in the division of property or that the award of $100 per month as alimony was excessive.

With respect to the issue of child support, the amount to be granted depends upon the needs of the children and the ability of the parent to pay. Spears v. Spears, Ala.Civ.App., 382 So.2d 572 (1980).

As indicated, the husband’s income is $1,032.24 per month. He is in the Army. There is evidence that the wife cannot provide for the children without financial assistance. In light of these facts, we cannot say that the trial court abused its discretion in requiring the husband to pay $450 per month for the support of the parties’ children. To do so would be to substitute our own judgment for that of the trial court. This the law will not allow. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

Finally, as stated above, the allowance of attorney’s fees in divorce matters is within the sound discretion of the trial court and the exercise of that discretion will not be reversed on appeal in the absence of abuse. Parker v. Parker, Ala.Civ.App., 392 So.2d 229 (1980); 8. Ala. Digest, Divorce Key 223.

After considering the wife’s financial circumstances and the relative earning capacities of the parties, we find that the trial court did not abuse its discretion in awarding the wife an attorney’s fee of $1,000. See, Barber v. Barber, Ala.Civ. App., 346 So.2d 970 (1977).

For the reasons stated above, the case is due to be affirmed.

AFFIRMED.

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


text:
    Robbie M. PRESTON v. ALABAMA POWER COMPANY, a corporation, and Ronald Parker Hyde.
    Civ. 2633.
    Court of Civil Appeals of Alabama.
    July 1, 1981.

      C. R. Lewis of Lewis & Brackin, Dothan, for appellant.
    James H. Miller, III of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellees.
   HOLMES, Judge.

The plaintiff, Mrs. Preston, sued defendants for damages she incurred as a result of an automobile accident in May of 1979.

At trial, Mrs. Preston offered evidence as an element of plaintiff’s damages regarding the loss of profits in Mrs. Preston’s business in 1979. More specifically, Mrs. Preston offered a 1979 Schedule C profit or loss statement which had been filed with the Internal Revenue Service on behalf of Mrs. Preston’s retail clothing store. Mrs. Preston contends that the store’s loss of profits was due to Mrs. Preston’s injuries.

The trial court refused to admit the 1979 profit or loss statement into evidence and Mrs. Preston appeals. We affirm.

The sole issue on appeal is whether the trial court erred in refusing to admit the 1979 profit or loss statement.

Viewing the record with the attendant presumptions, the following facts are revealed: On May 13, 1979, a car in which Mrs. Preston was riding was struck from the rear by a vehicle driven by Mr. Hyde, an employee of the defendant, Alabama Power Company. The parties evidently stipulated at a pretrial conference that Mr. Hyde was acting in the line and scope of his employment when the accident occurred.

Mrs. Preston suffered a back injury as a result of the wreck. The doctor who treated Mrs. Preston told her that she had a compressed vertebra. The injury caused Mrs. Preston to have a great deal of pain, which had not completely subsided at the time of trial. Mrs. Preston testified that as a result of her injury she was unable to carry her normal workload in connection with her clothing store.

Mrs. Preston’s clothing store was actually begun when, in 1973, she added clothes to the beauty shop she had established. In 1975 she moved the clothing part of her business into a Dothan shopping center.

Several salesladies, including Mrs. Preston, worked in the clothing store; some of them worked only part time. Mrs. Preston also employed a certified public accountant and a part time bookkeeper.

At trial, Mrs. Preston testified that, before the accident, she attended several merchandise markets a year and did practically all of the buying for the store. Her friend, Roby Mosely, did accompany her on some of the trips and purchased a small amount of the merchandise for the store. After the injury, Mrs. Preston was physically unable to do the buying necessary to maintain the store’s inventory.

In fact, Mrs. Preston was unable to attend the markets in Dallas and Atlanta which were held a few weeks after the accident. She did attend markets in both places in August, but because of her pain, was not able to make as many purchases as necessary. Consequently, Mrs. Preston contracted with a buying service in New York to meet the store’s inventory needs.

There was also testimony that, before the accident, Mrs. Preston was generally at the store from nine until six, but that she did not keep regular hours after the accident. There was also evidence that her ability to assist customers was impaired and that when she was at the store she spent a lot of time sitting.

As stated above, the sole issue on appeal is whether the trial court erred in refusing to admit the 1979 profit or loss statement. Counsel for Mrs. Preston contends that such evidence is admissible because the clothing store’s loss of profits was due to Mrs. Preston’s inability to render personal effort, skill, or ability as a result of her injuries.

The applicable rule of law in this case is found in Fitzpatrick v. Dean, 278 Ala. 284, 177 So.2d 909 (1965). The Alabama Supreme Court held in that case that if the profits of a business are a product of the personal effort, skill, or ability of the plaintiff and if the plaintiff proves by competent evidence that the profits were diminished as a result of the plaintiff’s inability to render such personal effort, etc., such losses may be recovered. Fitzpatrick, supra. Put another way, the plaintiff must prove that the loss was directly attributable to or a necessary consequence of his injury. Dingus v. Cain, 56 Tenn.App. 294, 406 S.W.2d 169 (1965). The rule stated above is clearly in accord with the general rule that profits which are speculative or remote may not be considered as an element in estimating damages. See, Taylor v. Shoemaker, 34 Ala.App. 168, 38 So.2d 895, cert. denied, 251 Ala. 601, 38 So.2d 900 (1949).

In the instant case, the loss of profits as shown by the attempt to introduce the 1979 “Schedule C” can be said to be speculative. This is so because Mrs. Preston has not adequately shown, so as to require reversal, that the loss incurred was directly attributable to or the necessary consequence of her injury. In fact, the 1979 statement itself shows expense items which have a bearing on the business’s profit, but which Mrs. Preston has not proved were incurred or increased as a result of her injury. Examples are advertising expenses, expenses for legal and professional services, and interest on business indebtedness. It is the lack of connection between such items and Mrs. Preston’s injury which give rise to speculation in the determination of damages.

With the above in mind, this court cannot say the trial court erred to reversal in refusing to allow the “Schedule C” document into evidence. This is so because there was inadequate proof that the loss shown on the document was due to the plaintiff’s inability to render personal effort, skill, or ability.

We note that Mrs. Preston, through able and distinguished counsel, relies heavily on the Fitzpatrick case in contending error on the part of the trial court in the case on appeal. While the law in Fitzpatrick is clearly applicable in this case, the facts are clearly distinguishable from those at hand.

The plaintiff in Fitzpatrick sold office equipment for a business in which he was a one-third owner. Although the business was incorporated, it was run as a partnership, with the plaintiff receiving 33*/8% of the profits.

Plaintiff suffered neck injuries in an automobile accident. He was treated for several months, some four of which he had to wear an orthopedic collar. Plaintiff’s sales production decreased after the accident, and there was a corresponding decrease in the profits of the business.

The Alabama Supreme Court equated plaintiff’s loss of profits from sales with a loss of earnings and stated that:

[T]he diminution in plaintiff’s earnings from his business was clearly shown to be a result of his inability to devote the time and effort to the job of selling office machines after the accident to the same degree that he did so prior to the accident. . . .

Fitzpatrick v. Dean, 278 Ala. at 286, 177 So.2d at 912.

As stated above, Mrs. Preston has not clearly shown in the case on appeal that her store’s loss of profits was necessarily a result of her inability to perform after the accident to the same degree as she did before the accident.

The case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Dollie L. WILLIS v. Billy Ray WILLIS.
    Civ. 2646.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    William Beck, Sr. of Beck & Beck, Fort Payne, for appellant.
    David A. Rains of Scruggs, Rains & Wilson, Fort Payne, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Suit for divorce on the ground of incompatibility was filed by the wife on October 20, 1978. After a hearing on September 16, 1980 the trial court divorced the parties for incompatibility of temperament, awarded the custody of the two minor children to plaintiff-mother, awarded her $30.00 per week per child as child support, found that as of July 1978 — the time of separation— the parties had assets of $41,000.00 and liabilities amounting to $36,000.00, divested the wife of her joint interest in three parcels of property — the only property owned by the parties — and awarded title to the husband, awarded all personal property remaining in the home to the husband, required the husband to pay off all marital debts incurred prior to separation, and awarded the wife $2,500.00 as alimony in gross, which is “one-half of the net value of assets owned by the parties at the time of separation.”

After hearing plaintiff’s motion for new trial, the trial court increased the alimony in gross award from $2,500.00 to $4,500.00 after finding that the parties’ assets amounted to $45,000.00 and denied a new trial. Plaintiff appeals.

The dispositive issues on appeal are deemed to be the inadequate amount of alimony in gross received by plaintiff and the insufficient amount awarded as child support.

The facts show that Mr. and Mrs. Willis were married in 1954 and have seven children. At the time of the separation two of the children were still minors and lived at home.

The marriage was a stormy one almost from its inception. The wife testified that she was physically abused by the husband on many occasions during their married life. The wife stated that it was after such an episode in July 1978 that she left her husband and filed for a divorce.

At the time of the separation in 1978 the husband was employed by TVA and was earning a net take-home pay of $282.70 per week. The wife, at this time, was operating a dress shop known as the Dollie Shop.

Mr. Willis testified that in 1976 he borrowed $10,000.00, a part of which was used to put the Dollie Shop into operation and most of the remainder was used to remodel and refurbish the marital home. Security for the loan was a mortgage on the house. Nineteen thousand dollars was borrowed to purchase the property where the Dollie Shop was located. This loan was being paid off in monthly installments.

Plaintiff testified that in June 1978 the value of the Dollie Shop’s inventory, fixtures and furnishings was about $22,000.00. Defendant stated that the current value of the Dollie Shop’s contents was $6,000.00 to $8,000.00. He said that the contents of the shop had deteriorated because of mildew. Defendant also said that the value of the Dollie Shop property was about $19,000.00.

The forty acres of unimproved land jointly owned by the parties was valued by the husband at $16,000.00, whereas the wife said it was worth about $50,000.00.

Defendant testified that the parties had $36,000.00 in debts at the time of the separation.

Plaintiff now resides in Atlanta, Georgia in an apartment with her two sons and a diesel mechanic whom she plans to marry. She and her friend each earn about $200.00 net per week. Plaintiff said her grocery bill was $150.00 per week and she needed $100.00 per week in support for the two boys. Defendant stated that it cost $15.00 to $20.00 per week for food and clothing for one of the boys who lived with him for a short while.

It is well settled that we will not set aside or revise a trial court’s division of marital property between the parties to a divorce proceeding unless it is “so arbitrary, disparate and contrary to equity as to be clearly wrong and unjust.” Cox v. Cox, Ala.Civ.App., 395 So.2d 1027 (1981). Such division need not be equal, but it must be equitable “according to the circumstances of the case.” Weaver v. Weaver, Ala.Civ.App., 394 So.2d 378 (1980), cert. denied, Ala., 394 So.2d 380 (1981).

Plaintiff contends that the trial court’s award of all the parties’ real property to the defendant is arbitrary and unjust. We disagree.

The evidence as to the value of the forty acres of unimproved land ranged between $16,000.00 and $50,000.00. The defendant testified that the parties were lucky to get a $10,000.00 mortgage on the marital home. The wife said that the house had deteriorated since the separation. The defendant valued the Dollie Shop at $19,000.00 and its contents at $6,000.00 to $8,000.00. The plaintiff testified that in 1978 the value of the contents of the shop was $22,000.00.

The evidence also shows that the plaintiff wrote defendant a letter telling him that she did not want any of the property, that she thought that he should sell the property, pay their debts and give her one-half of the profit. In an amendment to her original complaint, plaintiff also asked the court to give the real property to the husband but require him to pay all debts and encumbrances.

The trial court found from the evidence that the parties had assets worth $45,000.00 and liabilities amounting to $36,-000.00. It awarded defendant title to the three parcels of real property and required him to pay the debts of the parties. It then awarded plaintiff $4,500.00 as alimony in gross, which would be one-half of the net worth of the parties. We find such an award to be equitable under the circumstances of this case.

Plaintiff’s other contention is that the trial court’s award of $60.00 per week as child support is inadequate and, therefore, erroneous. We disagree.

An award of child support in a divorce case is discretionary with the trial court and will not be reversed or modified by this court absent proof of palpable abuse in the exercise of such discretion. Kitchin v. Kitchin, Ala.Civ.App., 370 So.2d 1031 (1979). Although the plaintiff testified that she needed $50.00 per week per child for support, defendant stated that he only spent between $15.00 and $20.00 per week when one of the boys was living with him. Based on this state of the record we cannot say that the trial court erred in awarding $30.00 per child per week as support.

For the reasons above stated, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Vicky Sue ASHLEY v. BLUE BELL, INC.
    Civ. 2665.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Daniel G. McDowell of Fine, McDowell & Cooper, Russellville, for appellant.
    Braxton W. Ashe of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee, Vicky Sue Ashley, was employed as a sewing machine operator at Blue Bell, Inc., in Red Bay, Alabama. Ms. Ashley’s job required her to move bundles of pants panels to her work station. While moving some “bundles” she injured her back. The injury occurred in the line and scope of her employment.

Ms. Ashley filed suit against Blue Bell, Inc., for workmen’s compensation benefits. Trial was had and compensation was awarded to the employee in the amount of $1,846.08.

Ms. Ashley appeals and in part contends that the trial court erred to reversal in failing to make a finding as to her loss of ability to earn. We agree.

The trial court’s pertinent finding was that Ms. Ashley suffered a 12.5% permanent partial disability to the whole body. The above mentioned compensation was then awarded. However, this finding is insufficient as a matter of law. Put another way, there must be a finding as to the employee’s loss of ability to earn.

In this instance, under the Alabama workmen’s compensation laws, compensation is awarded on the basis of loss of ability to earn. Lingo v. Dixie Veneer Co., Ala.Civ.App., 349 So.2d 591 (1977). Without a finding of fact as to the loss of ability to earn, there can be no award. Lingo, supra; Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973); B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971).

With the above in mind, we reverse and remand to the trial court for the ascertainment of the existence of a permanent partial loss of ability to earn.

REVERSED AND REMANDED.

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


text:
    Ronald Mark Christopher FASSINA v. Vivian Mabry FASSINA (Little).
    Civ. 2691.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    William H. Mills of Redden, Mills & Clark, Birmingham, for appellant.
    Roger D. Burton, Birmingham, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child custody case.

The parties’ divorce judgment of July 10, 1978, approved their agreement which granted to the mother the custody of their daughter, Traci, who was born in October 1974. In June 1980, the father filed his modification petition which sought Traci’s custody. As to matters now argued in brief, he alleged that the mother had been arrested and charged with the possession of a controlled substance in the residence where the child lived, which residence is unsuitable and an improper environment for the child, and that Traci’s best interest required that her custody be awarded to him. After an ore tenus trial, the trial court denied the relief sought by the father, who now appeals and raises as the sole issue whether the trial court abused its discretion by so ruling.

We are cognizant of the attendant presumption accorded to the trial court’s judgment in our summarization of some of the tendencies of the evidence. The father’s argument upon the facts is that Traci should be removed from the mother’s home because of a “drug environment” therein and we shall largely concern ourselves with that factual matter.

The mother married Billy Little in March 1980. Mr. Little admitted to the occasional use of marijuana but insists that such use has ceased. When he moved into his new wife’s home upon their marriage, he brought some marijuana seeds with him without her knowledge. Around June 1 he threw a few of those seeds into pots situated on the deck outside the kitchen to see what would happen. Some of them germinated. About a week later, the mother asked what they were, and he informed her what he had done, which was her first information as to the identity of the plants. The remainder of the seed was placed in his dresser drawer, and he later hid in the home less than one-half ounce of marijuana which had been given to him. The mother swore that she was unaware of the seeds or of any marijuana being in her home. On June 12, the house was searched by law enforcement officials and the marijuana, twenty-seven marijuana plants from the deck and the seed were seized. Those plants were from two to six inches tall, had dried up, were in bad condition, and there was some evidence that they were then dead from lack of attention. Mr. and Mrs. Little were both charged with possession of marijuana. Her criminal case was continued for over a year, for she was accorded the privilege of what was designated as “deferred prosecution.” She further testified that no one ever smoked marijuana in her house.

Traci, her mother and Mr. Little reside in the same residence which was occupied by the parties before their divorce. The child has several young girl friends near her home, and she participates in a children’s church choir. The mother maintains a neat home. Traci is a clean, well cared for, well rounded, mannerly, happy, normal, mindful, healthy child who is very lovable toward her mother. The father admits that the mother is a good housekeeper, that she takes good care of Traci, who is well adjusted, very bright and who has no physical nor mental imparities.

The parties have had no problems relative to the periods of Traci’s visits with her father, for the mother has been very lenient in that respect. The father resides in an apartment where there is no yard available for children’s play. The father admits that he has consumed alcoholic beverages, but contends that he has now quit.

The father’s most respected and capable counsel contend that the best interest of a child, common sense, and reason each obviously dictates that it is an abuse of discretion for a court to leave a minor child in a drug environment. We find no fault with that argument, but such an environment did not here exist if the mother’s testimony is accepted. Assuming, without deciding, that the evidence was otherwise adequate to prove the existence of a drug environment, the trial court was at liberty to believe the mother’s testimony which negated that her home atmosphere was drug oriented.

Our cases have reiterated many times the settled principles that in order to secure a modification of a judgment of child custody, there must be shown a material change of circumstances since the prior judgment which affects the best interest and welfare of the child. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App. 1976). When, after oral hearing, the trial court renders its judgment, this court presumes it to have correctly applied discretionary authority and adjudged the best interest of the child. Donald v. Donald, 50 Ala.App. 9, 276 So.2d 436 (1973). We will not disturb or revise that judgment, unless it is so unsupported and contrary to the evidence as to appear plainly wrong. Stewart v. Grace, 360 So.2d 1032 (Ala.Civ.App.1978)

Barber v. Lay, 384 So.2d 1095 at 1096 (Ala.Civ.App.), cert. denied, 384 So.2d 1096 (Ala. 1980); Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980); Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979); Simon v. Simon, 368 So.2d 289 (Ala.Civ.App.1979).

In child custody cases especially, the intent perception of an attentive trial judge is of great importance. While .we review the complete record, we are not permitted to reverse a trial court that personally observed and heard the evidence unless the judgment is so unsupported by the evidence that it constitutes an abuse of judicial discretion, and was, thus, clearly and palpably wrong. Ashley v. Ashley, 383 So.2d 861 (Ala.Civ.App.1980). The weight to be afforded to the evidence was a matter within the exclusive prerogative of the trial court. We have meticulously reviewed all of the evidence and the excellent briefs, and we cannot hold that the trial court abused its discretion by failing to award Traci’s custody to her father. The judgment of the trial court is, accordingly, affirmed.

Pursuant to her motion, we hereby grant to the appellee the sum of $500 to be paid by the appellant to the appellee’s attorneys as their fee on this appeal.

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.

BRADLEY and HOLMES, JJ., concur.


text:
    BIG "B" DISCOUNT DRUGS, INC., a corporation v. Norma R. PARKER, surviving widow of Walter Edward Parker, etc.
    Civ. 2742.
    Court of Civil Appeals of Alabama.
    July 1, 1981.

      Clyde C. Owen, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case involving the employee’s death occasioned by a heart attack.

Mr. Parker was a store manager for Big “B” in Montgomery. He was a physically inactive person. For one and one-half hours during the late afternoon of January 10, 1979, Mr. Parker and two other employees unloaded a truck of drugstore supplies at that store. It was somewhat unusual for him to assist in such activities. Some of the boxes which he handled weighed approximately fifty pounds. Although it was “very cold,” he sweated profusely and excessively and complained about the heat and his tiredness. He was short of breath, appeared to very tired and had trouble in breathing.

About fifteen minutes after the truck was unloaded, he proceeded home where “[h]e just literally in a prone position just crawled on the couch.” He was very pale and soon went to bed without eating his meal. He could not sleep, being very restless and vomiting twice during the night. Because of his difficulty in breathing, he sat on the side of the bed. He complained of hurting in the back between the shoulder blades and of a full feeling in his chest. He was weak, stiff and moved slowly.

Those symptoms continued, and others developed such as excessive swelling of his ankles, and he, finally, was admitted to the hospital on January 18, where he died in less than eighteen hours of myocardial infarction. He had not suffered any similar difficulties prior to their appearance on January 10.

The trial court found that in unloading the truck, Mr. Parker “exerted or strained himself or was exposed to conditions of risk or hazard and that he would not have strained or exerted himself or been exposed to such conditions had he not been performing his job ...” that such was, in fact, a contributive cause to his death which was caused by an accident arising out of and in the course of his employment.

Heart attack workmen compensation cases present particular causation problems. In such matters, causation has two parts, a legal part and a medical part. The only issue in this ease is “whether there is any evidence of medical causation” of Mr. Parker’s death which will support the trial court’s award of survivorship or dependent benefits. Accordingly, we must determine whether the medical test of causation was proved — “i. e., did the conditions, dangers or risks on the job precipitate or contribute to ...” his death. Newman Bros., Inc. v. McDowell, Ala.Civ.App., 354 So.2d 1138 (1977), cert. denied, 354 So.2d 1142 (1978); City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). Primarily, only pertinent facts to that issue are summarized or discussed.

In Newman Bros., supra, it was further stated as to medical causation:

If . . . the exertion or strain . . . was, in fact, a contributing cause to his injury or death, the [medical] test whether the job caused the injury or death is satisfied.

354 So.2d at 1140.

The medical evidence by Mr. Parker’s attending cardiologist, while hospitalized, was that he felt strongly that Mr. Parker’s heart attack preceded his admission to the hospital by about a week. Some of his testimony was:

With no previous development of such symptoms prior to unloading that truck and the development of these symptoms in close proximity to that, I think there’s a very reasonable probability that this stress may have played some part in his myocardial necrosis....
I have to say that there is a reasonable probability and my feeling is that it (the stress of January 10) probably did contribute to his myocardial infarction. . . .
I think those findings that you described, the sweating, the weakness, the shortness of breath, are a definite manifestation that something has gone, has happened with his ticker and that the overwhelming probability is that he has had a myocardial infarction that preceded the symptoms, so I think that certainly says that his myocardial infarction was before that day (January 12).. ..
I think it is a very likely probability that that exercise (unloading the truck) did contribute to his myocardial infarction. (Parentheses supplied.)

The employer argues vigorously that such evidence is insufficient proof of medical causation. We disagree.

While that physician testified that he would never know with certainty whether the exertion or strain in unloading the truck in fact caused or contributed to Mr. Parker’s heart attack, the above quotations from his evidence strongly indicate that he was of the definite opinion that it was reasonably probable that the stress of unloading the merchandise contributed to his myocardial infarction from which he died.

In Fordham v. Southern Phenix Textiles, Inc., Ala.Civ.App., 387 So.2d 204, cert. denied, 387 So.2d 206 (1980), workmen’s compensation was denied by the trial court to an employee who had suffered a stroke. As to medical causation, the depositions of physicians were introduced into evidence. They deposed that the employee’s job, as well as three other factors, could have contributed to her stroke. This court affirmed because some of the medical evidence indicated that the employee’s job was not necessarily a cause of her stroke. Thus, competent evidence sustained the trial court’s findings. However, it was expressly observed therein, “This court should not be understood as necessarily finding that there is no evidence to support a contrary result. Only that under the appropriate standard of review there is evidence to support the trial court’s conclusion.” In Fordham, had the trial court awarded compensation, it would have been upheld as to medical causation by the evidence that the “job could have contributed to her stroke.” See also, Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So.2d 87 (1965). Here, the cardiologist’s evidence was even more definite than “could have.” It constituted competent proof of medical causation, that the exertion or strain of unloading the truck was, in fact, a contributing cause of Mr. Parker’s death.

The burden of proof in workmen’s compensation cases is upon the employee to reasonably satisfy the trial court by the evidence of the truth of the elements of the cause of action. The Newman Brothers and City of Tuscaloosa cases, supra, did not alter nor enlarge that burden, but simply clarified the elements in heart attack cases as to medical and legal causation. Evidence must appear as to both aspects of causation or the employee’s case fails for lack of proof. Such is not the case at hand.

In reviewing judgments in workmen’s compensation cases, this court may not weigh the evidence, but must determine if there is any legal evidence, or reasonable inferences therefrom, to support the judgment. Vulcan Materials Co. v. Belcher, 49 Ala.App. 61, 268 So.2d 843, cert. denied, 289 Ala. 754, 268 So.2d 848 (1972). As previously indicated, competent evidence is supportive of the trial court’s findings as to medical causation.

We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Annie J. JOHNSON v. STATE of Alabama.
    Civ. 2756.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Annie J. Johnson, pro se.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BRADLEY, Judge.

This appeal is from a judgment forfeiting an appearance bond in the amount of $5,000.00.

Arthur Levert was arrested in Jefferson County, Alabama, for violating the Alabama Uniform Controlled Substances Act. He, as principal, and Annie J. Johnson and Willie Mae Levert, as sureties, entered into an undertaking whereby Arthur Levert was to appear at the next term of the circuit court and from term to term thereafter until discharged by law to answer the charge made against him.

Arthur Levert failed to appear in the circuit court as provided in his appearance bond and a conditional judgment of forfeiture was entered on August 18, 1980 against Annie J. Johnson and Willie Mae Levert as sureties on the bond.

The sureties were ordered to appear on October 3, 1980 and show cause why the conditional judgment should not be made final. On that date appellant appeared and informed the court that the whereabouts of the principal, Arthur Levert, was unknown. Between October 3, 1980 and November 6, 1980 appellant notified the trial court that Arthur Levert was incarcerated in the State of California on charges of grand theft auto and robbery and that she could not produce Arthur Levert in Jefferson County, Alabama.

Appellant was given additional time to return Arthur Levert to Alabama; however, on December 12, 1980, the appellant having failed to return Levert to Alabama, the trial court made the bond forfeiture final and absolute.

On that same day, i. e. December 12, 1980, appellant moved the trial court to vacate the final forfeiture judgment. This motion was overruled. Notice of appeal was then filed by Annie J. Johnson, pro se.

Appellant’s principal contention here is that the trial court erred in finally forfeiting the appearance bond because Arthur Levert was in jail in California and she could not return him to Alabama.

The rule is well established that the incarceration in another state of the principal in a bail bond arrangement made in this state does not relieve the sureties on that bond of their obligation to produce the principal at the appointed place and time in Alabama. Swift v. Esdale, 293 Ala. 520, 306 So.2d 268 (1975); Cain v. State, 55 Ala. 170 (1876).

Arthur Levert was incarcerated in a jail in California at the time he was scheduled to appear in the courts of Alabama. Appél-lant was, therefore, unable to produce Le-vert in Alabama as she had agreed to do in her undertaking. The inability of appellant to produce Levert in the Alabama courts because he was incarcerated in California does not relieve her of that duty. The finding of the trial court to this effect is correct.

Appellant’s final contention is that the trial court erred in not ruling on her motion to reopen the case to allow her to introduce additional evidence.

The record shows that on December 12, 1980 the trial court entered a final judgment of forfeiture and on that same day appellant filed a motion to vacate the judgment. The motion was denied on December 12, 1980. Within thirty days of the final judgment of forfeiture, i. e. December 12, 1980, appellant filed a motion for a new trial. On January 12, 1981, and in the absence of a ruling on the motion for a new trial, appellant filed her notice of appeal.

In the recent case of Farmer v. Farmer, 398 So.2d 723 (Ala.Civ.App., 1981), we held that where a motion for a new trial has been filed but not ruled on at the time an appeal is taken from the final judgment and the movant and appellant are one and the same, the motion for a new trial is discontinued, i. e. the trial court has no authority to rule on the motion. Likewise, in the case at bar, when Mrs. Johnson appealed from the final judgment of forfeiture before obtaining a ruling on her motion for a new trial, she, in effect, withdrew from the trial court its authority to rule on her motion.

Consequently, the trial court committed no error in failing to rule on appellant’s motion for new trial.

For the reasons set out above, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Debra BRACEWELL, alias v. STATE.
    4 Div. 663.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Donald F. Colquett, Opp, J. Fletcher Jones, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Debra Bracewell, alias, Debra Jeanene Bracewell, was indicted by the grand jury of Covington County in a seven-count indictment under the Alabama Death Penalty Act for the intentional killing of one Rex Carnley by shooting him with a pistol while in the commission of a robbery.

The trial court denied the appellant’s application for youthful offender treatment and appointed two experienced lawyers to represent her.

Following the overruling of several pretrial motions, the appellant’s trial in this cause ensued. The jury found the appellant guilty “as charged,” and fixed punishment at death. The trial court thereafter conducted a hearing on the aggravating and mitigating circumstances, as required by law, and sentenced the appellant to death by electrocution.

The tenor of the State’s evidence is to the effect that on the night of Sunday, August 14,1977, Mr. Rex Carnley went to his store, known as “Carnley’s Grocery,” located on U. S. Highway 84, East, between Opp and Elba in Covington County, Alabama. Members of Mr. Carnley’s family assisted him in opening the store, and others remained with him there until late evening, at which time, at Mr. Carnley’s request, he was locked in the store to remain there during the evening because he was concerned about burglaries, and also due to the fact that he was keeping a large amount of cash within the premises.

Early the following morning, Mr. Carn-ley’s body was found lying in the store with a pearl-handled .22 pistol lying beside his body.

The State Toxicologist’s report indicated that nine shots were fired into his head and a number of bullets were removed therefrom. The cause of death was attributed to “death by gunshot wounds to the head.”

Because reversible error occurred in the admission of the written confession of Debra Bracewell to Sheriff W. E. Harrell, on January 23, 1978, we must reverse and remand this cause for a new trial.

I

Sheriff W. E. Harrell testified at trial that the appellant had been arrested on November 4, 1977, on another charge and placed in the Covington County Jail. Thereafter she was interrogated on three occasions in November and again on January 19, 1978. On at least two of these occasions, according to Sheriff Harrell and Mr. Marlon Brewer, Criminal Investigator for the State Department of Public Safety, Bureau of Investigation, she was given her constitutional rights through a Miranda warning. The two officers and the district attorney indicated that, prior to interrogating Debra Bracewell on January 23, 1978, she was again given a Miranda type warning, and that the interrogation took place in the Sheriff’s Office in the Court House. They testified that she was not threatened, intimidated, coerced, or induced into making her statement.

Mrs. Debra Bracewell, however, testified that she was frightened by statements made to her by the district attorney concerning the possible death penalty. This was why she gave her statement. The officers and the district attorney refuted these assertions, and the trial court found the statements to have been voluntarily given.

The officers explained that her statement was taken down by notes made by Mrs. Cassady, that she reduced the statement to typewritten form, and that the statement was then read by the appellant, who then signed it in the presence of Mrs. Cassady and Mr. Brewer.

Mrs. Bracewell admitted in this statement to the officers that she had driven to Mr. Rex Carnley’s store with her husband, Charles Bracewell, during the late evening of August 14, 1977, knocked on the door, that Mr. Carnley admitted them, and that while they were talking about a purchase, her husband held a gun on Mr. Carnley while she obtained a pistol from underneath a counter, at her husband’s direction, and held it on the deceased, Rex Carnley. A discussion ensued, she was directed by her husband to fire, which she did, and that later she saw her husband fire several shots at Mr. Carnley’s head. Mrs. Bracewell stated that she ran outside, and shortly thereafter her husband came out with a pistol and the deceased’s billfold in his hands, that they got in the car and her husband counted more than $1200.00 which he removed from this billfold.

Mr. Brewer testified on trial that his investigation revealed Mrs. Bracewell was seventeen years of age and had completed the seventh grade in school at the time she gave her statement.

Section 12-15-l(3)b, Code of Alabama, 1975, reads as follows:

“(3) CHILD.
“b. Such term, after December 31, 1977, means an individual under the age of 18 or under 19 years of age and who committed the act of delinquency with which he is charged before reaching the age of 18 years.”

Section 12-15-67, Code of Alabama, 1975, reads as follows:

“Use of statements of children, etc., during custody, preliminary inquiries, predisposition studies, etc., prior to determination of allegations of petition in delinquency or in need of supervision cases or prior to conviction in criminal proceedings.
“Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction. (Acts 1975, No. 1205, § 5-125)”

This Act became effective on January 16, 1977, Parker v. State, Ala.Cr.App., 351 So.2d 927, cert. denied, Ala., 351 So.2d 938 (1977), seven (7) months before this crime was committed.

Sheriff W. E. Harrell’s testimony at trial (Volume 2, R. pp. 328-330) pertaining to the taking of a written statement from Debra Bracewell on January 23, 1978, reads as follows in pertinent part:

“Q. And it says down there, which I have explained to you, that is not true, is it? You did not explain any more than to read her what is on that paper?
“A. Yes, I read it to her and explained each line to her.
“Q. You did?
“A. Yes, sir. I asked her did she understand it.
“Q. Well, go to the part in there about a lawyer. If you cannot afford — let’s see. That’s number three, isn’t it?
“A. Yes, sir. Three and four pertain to that.
“Q. Well, starting from the top there. ‘You have the right to remain silent.’ That’s the first thing. You read her that? ‘Anything you say can and will be used against you in a court of law.’ You read her that?
“A. Yes, sir.
“Q. And, ‘Three. You have the right to talk to a lawyer and have him present with you while you are being questioned.’ Now, that’s the one I am asking you about?
“A. Right.
“Q. Did you say anything more to her when you told her, ‘You have a right to a lawyer,’ did you, at that time, say to this young lady, how old was she then?
“A. At that time, she had not reached her eighteenth birthday she said.
“Q. She was eighteen then, Monday of this week, isn’t she?
“A. Right.
“Q. So, she was seventeen years old, this young girl that you were talking to there in the presence of these other men that you have just referred to, Mr. McGill, wasn’t he there?
“A. Yes, sir.
“Q. Sergeant Brewer of the Alabama Department of Investigation, wasn’t he there?
“A. Yes, sir.
“Q. And this was where, in the Sheriff’s office, wasn’t it?
“A. Right.
“Q. And outside the door there were other deputy sheriffs and a secretarial force that you maintain down here in your office?
“A. I don’t know who was outside other than the secretaries.
“Q. Did you then stop and say, Debra Bracewell, you have a right to a lawyer. Now, we will stop right here and if you don’t have the money to hire a lawyer, we will have one appointed for you before we ask you anymore questions?
“A. No, I did not break it down that much.
“Q. Did you do it at all?
“A. Yes, sir.
“Q. Tell this jury exactly everything you did?
“A. Okay. I told her that she had a right to talk to a lawyer and have him present with her while she was being questioned. I told her that if she could not afford to hire a lawyer, that the court would appoint one to represent her before we asked her anything, if she so desired. And she said she did not need a lawyer.
“Q. Oh, she did?
“A. That’s right.
“Q. Well, you didn’t say that a moment ago. But she said she did not need a lawyer?
“A. That’s exactly right. And she come on down and repeated it again.
“Q. All right. Now, the date of that was January twenty-three of ’78, wasn’t it?
“A. Yes, sir.
“Q. When was she arrested?
“A. She was actually arrested on November the fourth of last year.
“Q. All right. Now, Sheriff, she was then taken to the Covington County Jail and placed in confinement there November 4, 1977?
“A. Right.”

Sheriff Harrell’s testimony at trial also reveals that counsel was not appointed in her behalf until February 22, 1978 (R. p. 331).

Prior to the admission into evidence of the appellant’s written statement (Volume II, R. pp. 348-350, State’s Exhibit 32), the trial court conducted a hearing on the “vol-untariness” of this statement, as well as on the advice as to her constitutional rights and Miranda type warning. Over objection of the defendant, and a motion to suppress and exclude, the trial court admitted Debra Bracewell’s statement into evidence. Counsel at trial pointed out that, due to the age of the appellant, and the fact that she did not have counsel present at the time this confession was obtained, such should not be admitted. It is irrelevant that the appellant’s confession was voluntarily made as she did not have counsel present at the time because of her age. Watts v. State, 361 So.2d 1200 (1978).

Because error to reversal occurred in the admission of appellant’s confession into evidence (State’s Exhibit N-. 32), under Section 12-15-67, Code of Alabama, 1975, it is mandatory for this Court to reverse and remand this cause for a new trial. Watts, supra.

REVERSED AND REMANDED.

All the Judges concur.

      . Sections 13-11-2 through 13-11-9, Code of Alabama 1975.


author: PER CURIAM:

text:
    Ex parte State of, Alabama ex rel. Attorney General. In re Debra BRACEWELL, alias v. STATE of Alabama.
    No. 78-249.
    Supreme Court of Alabama.
    May 25, 1979.
    Rehearing Denied July 6, 1979.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, petitioner.
    Donald F. Colquett, Opp, J. Fletcher Jones, Andalusia, for respondent.
   PER CURIAM:

We granted the Petition for Certiorari to review the opinion of the Court of Criminal Appeals, which reversed Defendant’s conviction and sentence of death on the ground that the trial Court erred in admitting Defendant’s confession into evidence.

The Facts: Defendant, age 17, committed a capital offense August 14, 1977. Alabama’s Juvenile Code, increasing the age of “child” from 16 to 18 and requiring presence of a lawyer to render a confession admissible, became effective January 1, 1978. She made her confession, without the presence of a lawyer, on January 23, 1978, which was admitted as evidence in her trial in April, 1978, shortly before her 18th birthday.

The Issue: Did the change of definition of “child” — from 16 to 18 years of age — between time of commission of offense to time of confession render the confession, given in compliance with Miranda, but in violation of the Juvenile Code, inadmissible? Stated another way, does the law in effect at the time of the commission of the offense or at the time of the making of the confession govern the confession’s admissibility?

The Holding: Counsel for the State and the Defendant acknowledge, and we agree, that the answer is not to be found in any explicit expression of the Juvenile Code (T. 12, Ch. 15, Code 1975). In affirming the Court of Criminal Appeals in Ex parte Bol-den, 358 So.2d 795 (Ala.1978), this Court held that a 17-year old defendant who committed an offense prior to January 1, 1978, and was tried after that date was not entitled to be treated as a juvenile. In other words, although he fit the definition of “child” at the time of trial, he was not entitled to treatment as a juvenile because he did not fit the definition of child at the time of his alleged offense.

Admittedly, this case presented an added dimension. The incident of the Defendant’s confession — the subject matter under review — did not take place until after the effective date of the current Juvenile Code, and, as there defined, Defendant was a “child.” The argument for a different result from that obtained in Bolden is a persuasive one. But our reading of the entire Juvenile Act convinces us that the fundamental issue is a jurisdictional one; and, when so viewed, we are constrained to adhere to the interpretation consistent with our holding in Bolden. Absent a clear expression in the Statute to the contrary, we think the law applicable at the time of the offense was intended to govern the offense, the offender, and all proceedings incident thereto, and we so hold. There was no error in admitting the Defendant’s confession under the circumstances of this case. We reverse and remand to the Court of Criminal Appeals.

Upon remand of this cause, the Court of Criminal Appeals is instructed to further review the entire record of the proceedings below, including the propriety of the sentence of death.

REVERSED AND REMANDED TO COURT OF CRIMINAL APPEALS WITH INSTRUCTIONS.

All the Justices concur.

      . This 2-year advance in age was accomplished in two stages:
      “a. [Child] before January 1, 1978, means an individual under the age of 17
      “b. . .. after December 31, 1977, [child] means an individual under the age of 18 . .Code 1975, 12-15-1(3) a, b.


author: BOOKOUT, Judge. TYSON, Judge, DeCARLO, Judge,

text:
    Debra BRACEWELL, alias v. STATE.
    4 Div. 663.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Certiorari Granted Oct. 20, 1980.
    See 101 S.Ct. 312.
   BOOKOUT, Judge.

This cause was remanded with instructions by the Supreme Court of Alabama to the Court of Criminal Appeals “to further review the entire record of the proceedings below, including the propriety of the sentence of death.” Bracewell v. State, 401 So.2d 123 (1979).

Pursuant to these instructions, this Court has carefully reviewed the entire record, including all of the circumstances presented at trial with reference to both the “Miranda” predicate and the “voluntariness” predicate, and we find that a proper predicate was laid at trial in each instance.

I

We are of the opinion that there was a sufficient voluntariness predicate laid and that the trial judge did not improperly limit the appellant’s opportunity to inquire into the circumstances surrounding her written confession. We likewise conclude that the circumstances of the appellant’s interrogation were not as severe and overpowering as those in Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), referred to in the dissent of Judge Tyson.

We find that thé Miranda predicate was proper. We conclude that both elements lacking in Square, Marcus, Trott and United States ex rel. Williams, referred to in the dissent, are sufficiently covered in the instant Miranda warning.

II

The conviction should be affirmed, but the cause should be remanded with directions for the trial judge to conduct another sentencing hearing and only consider aggravating circumstances set out in § 13-11-6, Code of Alabama 1975.

More specifically, the trial court considered the appellant’s participation in grand larceny and other crimes not involving “the use or threat of violence to the person” as outweighing the mitigating circumstances it had earlier found. Pursuant to § 13-11-6(2), the court could only consider whether the appellant “was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.” It should be noted that the trial court was not listing other offenses for the purpose of negating the mitigating circumstance enumerated in § 13-11-7(1), that the appellant had no significant history of prior criminal activity. To the contrary, the trial court’s finding in this regard was to specifically outweigh two other mitigating circumstances as an aggravating circumstance and was thus improper under the statute.

Pursuant to the mandate of the Alabama Supreme Court in remanding this cause to this court, we would likewise direct the trial court to carefully reconsider the imposition of the death sentence where two mitigating circumstances weigh heavily in the appellant’s favor, i. e., her young age and the dominance of her husband, her senior by several years.

AFFIRMED, REMANDED WITH DIRECTIONS.

HARRIS, P. J., and BOWEN, J., concur in the above.

DeCARLO, J., concurs in Part I and concurs specially in Part II.

TYSON, J., concurs in Part II and dissents as to Part I.

TYSON, Judge,

dissenting in part and concurring in part.

I

Sheriff W. E. Harrell testified that, at 1:10 p. m. on January 23, 1978, after questioning Debra Bracewell on at least four or five prior occasions over a three month interval, he gave the following Miranda type warning just prior to an interrogation in his office at the Covington County Courthouse. Also present was Mr. Marlon Brewer, Criminal Investigator for the State Department of Public Safety, Bureau of Investigation, and during part of the interrogation one or more of the deputies were in and out of the office at the time. Mrs. Linda Cassady came in and took down the statement, which was reduced to writing, read back to the appellant, and then executed by her (Vol. II, R. p. 324), and is as follows:

“A. ‘Number One. You have the right to remain silent. Number Two. Anything you say can and will be used against you in a court of law. Number Three. You have the right to talk to a lawyer and have him present with you while you are being questioned. Number Four. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. Number Five. You can decide at any time to exercise these rights and not answer any questions or make any statements.’ After we did that, we told her or asked her rather, did she understand each of these rights that we had explained to her and she replied that she did. We asked her then, at that time, having these rights in mind, do you wish to talk to us now. She replied that she did. Then we read another paragraph on this same page known as the waiver of rights. It says, T have read or had read to me a statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promise or threat has been made to me and no pressure of any kind has been used against me to get me to make a statement.’ ” (Emphasis supplied.)

Investigator Brewer stated that he, too, read the Miranda type warning to Debra Bracewell on the afternoon of January 23, 1978, which Miranda warning is as follows (Volume II, R. p. 304):

“A. I advised her from this form. ‘You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.’ And, I asked her if she understood those. And she stated she did. I asked her, having those in mind and understanding them, was she willing to talk with us and she said she was.
“Q. All right. At that time, did you ask her to sign it?
“A. Yes, I did.
“Q. And did she sign it in your presence?
“A. Yes, she did.
“Q. Did you witness it in her presence?
“A. I certainly did.
“Q. And did Linda Cassady witness it then?
“A. Yes, she did. In her presence.” (Emphasis supplied.)

I do not consider either of these warnings to be models to emulate because of the “futuristic” aspect of the warnings above set forth and underscored. See Square v. State, 283 Ala. 548, 219 So.2d 377 (1969); Marcus v. State, 50 Ala.App. 526, 280 So.2d 786, cert. denied, 291 Ala. 350, 280 So.2d 793 (1973); Trott v. State, 51 Ala.App. 40, 282 So.2d 392, cert. quashed, 291 Ala. 800, 282 So.2d 402 (1973); United States ex rel. Williams v. Twomey, 7 Cir., 467 F.2d 1248 (1972).

However, I do consider the type of Miranda warning here given, and the form of same to be one factor to be considered in determining whether or not the trial court made a proper determination of the “volun-tariness” of the appellant’s statement.

In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); and Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), the United States Supreme Court set forth a number of criteria which are used by that Court in determining the “voluntariness” of an incriminatory statement.

From these cases, I learn that the age of the party, the opportunity to confer with family, or counsel, if the party be a minor, the length of time of incarceration before a statement is given, the opportunity to confer with counsel, the mental condition of the accused, the educational background of the accused; and the “likelihood of the truth” of the statement is not the proper criteria “standing alone” to pass upon this matter.

Because only the circumstances surrounding the accused’s statement given in the sheriff’s office, allegedly on the afternoon of January 23, 1978, were before the trial court, after reviewing the entire circumstances leading up to the final incriminatory statement, I am of the opinion that the wrong test was used by the trial court in determining the voluntariness of Debra Bracewell’s statement, and, therefore, would reverse and remand this cause for these reasons. White v. State, 260 Ala. 328, 70 So.2d 624 (1954); and Myhand v. State, 259 Ala. 415, 66 So.2d 544 (1953).

Debra Bracewell was born April 17, 1960 (Volume II, R. p. 290). At the time of her arrest on November 4, 1977, she was seventeen years of age. She was an individual who had been married to her husband, Charles Bracewell, a man twenty-six years of age, for approximately ninety days. She had an eighth grade education.

Because it was necessary for this Court to look carefully at the testimony offered at the sentencing hearing on the question of aggravating, as well as mitigating, circumstances which exist, in order to put the total interrogation in this cause in its proper perspective, I also note the following.

Investigator Brewer testified at the sentencing hearing (see §§ 13-11-1 through 13-11-9, Code of Alabama 1975) that he first met Debra Jeanene Bracewell on or about August 18 or 19, 1977, at the Police Department in Opp, Alabama. He interrogated her with reference to some allegedly stolen property and read to her a “standard Miranda card” at that time (Volume III, R. pp. 411-412). He stated the conversation took place in the Chief of Police’s office and that he interrogated her concerning some shoplifting, which allegedly took place at the T G & Y store in Opp. He stated that he also interrogated her with reference to an alleged robbery of a “Jr. Food Store” in Andalusia in which she and her husband were involved. Investigator Brewer also stated that he interrogated her concerning an alleged shoplifting incident concerning a hardware store in Samson, Alabama, and also an alleged robbery of a Jr. Food Store in Samson. Investigator Brewer stated that he interrogated Debra Bracewell on other occasions later, but that he next talked with her concerning another incident in Elba, Alabama, on November 2,1977, and this involved the alleged burglary of a service station by removing some chain saws.

Brewer further related that he also questioned Debra Bracewell concerning some alleged incidents involving a house trailer located on the Geneva Highway out of Enterprise and that allegedly some guns were taken from a “burglarized house trailer.” Investigator Brewer related that he read Mrs. Bracewell a Miranda card on each occasion that he talked with her, and that she was not threatened, abused, or offered any hope of reward to make, these admissions.

Insofar as the record before us is concerned, it does not establish that any of these incidents referred to in this questioning over several months by Investigator Brewer, Sheriff Harrell, and others, were brought to trial, and the appellant duly indicted and charged therefor. I will comment further on this aspect of the matter in my treatment of the sentencing hearing (see Part II, infra).

Suffice it to say here that Investigator Brewer related that he first talked with Mrs. Bracewell on November 2, 1977, concerning the alléged robbery and murder of one Rex Carnley, the case on present review, on November 2, 1977, that he made notes from time to time, but did not write down or record a written statement until January 23, 1978. Investigator Brewer indicates that he interrogated Mrs. Bracewell six or eight times, “perhaps ten at the most,” during the interval of November 2, 1977 to January 23, 1978. No written record was offered other than the testimony of Investigator Brewer from notes which he allegedly made following conversations with Debra Bracewell. Brewer also stated that Debra’s husband, Charles Bracewell, was being held at that time for an alleged burglary of the home of Bracewell’s sister, who lived just across the Florida line, and the removal of a stereo set, some records and a television set from the home of Ramona Roberts, Charles Bracewell’s sister. Brewer also testified at the sentencing hearing that, at some time during January, 1978, he had gotten an oral statement from both Charles and Debra Bracewell and that following “an oral conversation” held on January 19, 1978, in the Sheriff’s Office, Debra Bracewell allegedly told Brewer and Sheriff Harrell that she had to “step up on a stool in order to reach a pistol” and allegedly fired the weapon at the deceased, Rex Carnley.

On January 20, 1978, she agreed to ride with the two officers and show them where her husband, Charles Bracewell, had allegedly thrown out the wallet belonging to the victim, Rex Carnley. It, therefore, appears from the record that Charles Brace-well and Debra Bracewell were confronted with oral statements allegedly given the officers, which were conflicting, during January, 1978, and, as a result of this, Debra Bracewell took the officers in an effort to locate the wallet of the victim on January 20, 1978, and subsequently gave an oral inculpatory statement, which was in the presence of Sheriff Harrell and Investigator Brewer, and taken down by Mrs. Cassa-dy, then reduced to written form and executed by Debra Bracewell.

The essence of Debra Bracewell’s statement is that she and her husband went to the store of Rex Carnley on August 14, 1977, knocked on the door and were admitted by Carnley. They talked with him for a few moments and discussed a purchase. At that point Charles Bracewell pulled a gun on Carnley and directed his wife to obtain a pistol from underneath the counter and hold it on the deceased, Rex Carnley. Mrs. Bracewell acted as directed by her husband and subsequently fired the pistol once at Carnley’s head, then dropped the pistol and saw her husband pick it up and fire several shots at Carnley’s head. She ran out of the store, and shortly thereafter her husband emerged with the pistol and the deceased’s billfold in his hands. Her statement also indicates that they then got into their automobile and her husband counted out more than $1200.00 which he removed from the billfold of the victim. They drove away and her husband discarded the victim’s billfold.

Mrs. Linda Cassady, who took down the oral statement given on January 23, 1978, testified at the sentencing hearing that she accompanied Debra Bracewell, together with Deputy Sheriffs George Szpek and Jim Stallings, and they looked in an area near Samson, called Peery, in an effort to locate the missing wallet.

Statements were presented from a number of persons who were either cousins or relatives of Charles Bracewell, or friends of the couple, who saw them on occasions following their marriage, during August through October, 1977. Each of these individuals described Debra Bracewell as being without any members of her family. They stated that Debra Bracewell seldom spoke and only seemed to want to be at her husband’s side, hugging or holding on to him. She did not visit or chat with other women and appeared to be totally under the influence of her husband, Charles Bracewell.

Another factor brought out was that Debra Bracewell’s family had moved to Louisiana, and that Debra and Charles were staying with either his relatives or friends during the sixty to ninety day period that they were married before their arrest and incarceration in the Covington County Jail.

This Court should apply the “totality of circumstances” doctrine to the factors here-inabove set forth. One conclusion is inescapable when this record is so considered, and it is that Debra Bracewell was frightened by statements made to her by the officers, that she was without family, friends, or an attorney to advise her, and, finally, after repeated interrogation over a three months period, gave a written statement. I cannot consider this as the product of a willing individual freely giving her version of matters which happened several months prior thereto. Rather, the picture emerges of a person of limited education, with limited mental capacity, under the domination of her husband, some years older, who led her over a three months period on what might be termed a crime spree involving several counties in two states.

Because of her age and educational and mental background, I cannot conclude that the statement here admitted in evidence was the product of a rational intellect, knowingly and intelligently made by voluntarily waiving her privilege against self-incrimination and her right to have appointed counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

I would, therefore, hold that the trial court erroneously admitted appellant’s statement of January 23, 1978, into evidence and unduly and improperly restricted the inquiry as to the “voluntariness” of same. The clear evidence established at the “sentencing hearing” shows that such was not voluntary, but rather given following a protracted interrogation over a three months interval during which she was without family, friends, or legal counsel. Her first contact with legal counsel, insofar as this record reveals, occurred approximately a month after she gave the alleged written statement, counsel having been appointed by the trial court on February 22, 1978. See Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965), and cases cited.

I, therefore, conclude that the appellant’s confession was not voluntarily, intelligently, and understandingly given, and would therefore reverse and remand this cause. Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), and authorities herein cited.

II

Mindful of our obligation to also consider the “sentencing hearing,” I join in Part II of the majority opinion.

The authorities in Alabama are legion that incriminatory statements involving other criminal offenses which have not been made the subject of indictment, trial and conviction may not be introduced in evidence in a criminal proceeding, Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973), and authorities cited, nor may such unadju-dicated criminal charges be used as evidence in a sentencing hearing involving the death penalty. Cook v. State (Ala.), 369 So.2d 1251 (1978).

The trial court erred in its consideration of these matters. I, therefore, would reverse and remand this hearing and the imposition of the death penalty in this cause.

DeCARLO, Judge,

concurs in Part I and specially in Part II.

I concur in Part I of the foregoing opinion. I concur in the remandment for a new sentencing hearing as set forth in Part II of the opinion.

However, I would make no directions to the trial court concerning the sentencing hearing.


author: FAULKNER, Justice.

text:
    Ex parte Debra BRACEWELL. (Re: Debra Bracewell, alias v. State).
    79-413.
    Supreme Court of Alabama.
    April 11, 1980.
   FAULKNER, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Debra BRACEWELL, alias v. STATE.
    4 Div. 663.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.
   BOOKOUT, Judge.

Reversed and remanded on the authority of Beck v. State, Ala., 396 So.2d 645 (1980) modified March 6, 1981.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte State of Alabama. (Re Debra BRACEWELL, alias v. STATE of Alabama).
    80-535.
    Supreme Court of Alabama.
    June 25, 1981.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for the State.
    No brief for respondent.
   PER CURIAM.

The opinion dated June 19, 1981, is withdrawn and the following, together with Justice Maddox’s special concurring opinion, is substituted in its place.

WRIT DENIED.

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

MADDOX and JONES, JJ., concur specially.

MADDOX, Justice

(concurring specially).

By denying the writ of certiorari in this case, I assume that the Court of Criminal Appeals, after reviewing the record in this case, has determined that there was some evidence presented on a lesser included offense, or that the record of trial does not affirmatively preclude evidence of a lesser included offense (Cf. Ritter v. State, 403 So.2d 154 (Ala.1981), view of Maddox, Jones and Adams, JJ.), which would have entitled the accused to an instruction on a lesser included offense.

JONES, J., concurs.