author: HOLMES, Judge.

text:
    Stephanie Stephenson FLANNERY, David Osborn and Dawn Osborn v. Steven STEPHENSON and Jeanette Stephenson.
    Civ. 3152.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    Rehearing Denied July 7, 1982.

      Lydia Quarles and Charles T. Yoste, Starkville, Miss., for appellants.
    Wendell W. Mitchell, Luverne, for appel-lees.
   HOLMES, Judge.

This is a child custody jurisdiction case arising under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (Supp.1982), and the Uniform Child Custody Jurisdiction Act, Ala.Code §§ 30-3-20 to -44 (Cum.Supp.1981).

The instant appeal involves a minor child who has been the subject of custody proceedings in three jurisdictions, culminating with the Circuit Court of Crenshaw County modifying all prior decrees and awarding custody to the father.

The mother, through able counsel who has favored this court with an excellent brief and oral presentation, appeals, contending I.) that Alabama did not have jurisdiction to modify custody, and II.) that the trial court abused its discretion in modifying custody. We disagree with the mother’s contentions and affirm.

I.

A review of the facts relative to jurisdiction reveals the following:

The parties’ minor son was born in the summer of 1976, and the parties were married six months later. The mother and father separated only a few months after they were married. The father admits he is the natural father of the minor child, although there has been no formal legitimation procedure.

The child’s paternal grandparents live in Luverne. Shortly after the mother and father separated, the mother sent the child to live with the paternal grandparents. In 1979, after the child had been with the grandparents for several months, the mother requested that the child be given back to her. The grandparents and father refused, whereupon the mother petitioned the Circuit Court of Crenshaw County, Alabama, for a writ of habeas corpus.

At the conclusion of a hearing on the matter, the trial court in Alabama determined that it would treat the proceedings as a contest of the rights of the mother, father, and grandmother for the custody of the minor child. There was no objection to this treatment. On October 15, 1979, the trial court entered an order awarding custody to the mother.

The mother then took the child with her to Michigan where the mother was stationed in the Air Force. The child remained with the mother in Michigan from October, 1979, to March, 1980. The child lived with the paternal grandparents in Alabama in March and April of 1980.

The mother filed for divorce in Michigan. The father was personally served but failed to appear. On April 10,1980, the Michigan trial court entered a judgment of divorce by default. The Michigan decree awarded custody of the minor child to the mother. During this period, as indicated, the child was apparently in Alabama. After the divorce, the child returned to Michigan to live with the mother.

In September, 1980, the mother sent the child back to Alabama to live with the paternal grandparents. When the mother came to Alabama on Christmas leave, she picked up the child and took him to Mississippi. The child’s maternal aunt and uncle live in Starkville, Mississippi. The mother returned to Michigan. The child lived with the aunt and uncle in Mississippi from January, 1981, to November, 1981. In October, 1981, the aunt and uncle initiated guardianship proceedings in a Mississippi court.

The child accompanied the aunt and uncle to Georgia for a visit during the Thanksgiving holidays in 1981. The father and grandparents went to Georgia, picked up the child, and brought him back to Alabama without the permission of the mother or the maternal aunt and uncle.

The mother, aunt and uncle immediately filed a motion in the Circuit Court of Cren-shaw County requesting that the trial court enforce the existing custody decree.

Attached to the mother’s motion were copies of the 1979 Alabama custody order and the 1980 Michigan divorce decree. The father then cross-petitioned for custody of the minor child. The mother moved to dismiss the cross-petition, alleging that Alabama did not have jurisdiction to order a modification of custody.

The trial court held an expeditious hearing. Counsel for the parties first argued at length on the jurisdictional issue. The trial court reserved its ruling on the question of jurisdiction until evidence on all the issues involved in the custody dispute had been presented.

After the hearing, the trial court entered its order on December 23, 1981. The trial court first determined that it had jurisdiction. The trial court then modified any prior custody orders and awarded custody of the minor child to the father. The mother and the maternal aunt and uncle were granted visitation privileges.

The initial question before this court is whether Alabama had jurisdiction to enter an order modifying custody of the minor child.

Interstate custody disputes are governed by the recently enacted federal statute, the Parental Kidnapping Prevention Act of 1980. 28 U.S.C. § 1738A (PKPA). The PKPA is very similar to the Alabama version of the Uniform Child Custody Jurisdiction Act (UCCJA). Because the federal statute, the PKPA, preempts the state law, the UCCJA, in areas where the statutes conflict, questions of jurisdiction arising in interstate child custody matters must now be decided by reference to the PKPA. U.S.Const. art. 6, cl. 2.

In order for Alabama to have properly exercised jurisdiction in the December, 1981, modification proceeding, Alabama must have had continuing jurisdiction. § 1738A(d). Continuing jurisdiction exists when the initial custody order was rendered in compliance with the PKPA and the child or any contestant continues to reside in the state. Id.

The father has remained in Alabama since the rendition of the 1979 order. Therefore, since the initial decree complied with the PKPA and one contestant has continued to reside in this state, Alabama had continuing jurisdiction in December, 1981. § 1738A(d). See Bloodgood v. Whigham, 408 So.2d 122 (Ala.Civ.App.1981).

A state which has continuing jurisdiction may properly exercise that jurisdiction in order to make a custody determination. § 1738A(c)(2)(E). Alabama properly exercised its continuing jurisdiction in December, 1981, in order to determine whether custody should be modified.

Alabama’s continuing jurisdiction was not affected by the custody determination made by the Michigan court in the 1980 divorce decree. The custody provisions of the Michigan decree did not comply with the PKPA and thus Alabama was not required to extend full faith and credit to the Michigan custody order. § 1738A(a).

When the Michigan court issued its default judgment of divorce in April, 1980, Michigan was not the child’s home state nor had it been the child’s home state six months prior to the commencement of the divorce proceeding. § 1738A(c)(2)(A). Alabama still retained home state jurisdiction in April, 1980; thus Alabama’s home state jurisdiction precluded Michigan from entering a custody order. § 1738A(c)(2)(B). Michigan did not meet any other criteria for jurisdiction contained in the statute. § 1738A(c)(2)(C), (D), (E). Because the 1980 Michigan custody determination was not made in compliance with the PKPA, the Michigan custody order is not entitled to full faith and credit.

We further note that Alabama properly exercised its continuing jurisdiction in December, 1981, even though guardianship proceedings were currently pending before a Mississippi court.

Regardless of what Mississippi’s status might be, Mississippi could not modify the 1979 Alabama custody order because Alabama had continuing jurisdiction which it had never declined to exercise. § 1738A(f)(2). In sum, under the instant facts, the PKPA mandates that Alabama was the only state which could modify a prior custody order.

We must next consider whether Alabama should have declined to exercise jurisdiction in December, 1981, due to the father’s act of bringing the child into this state without the mother’s consent. One of the general purposes of the PKPA is to “deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.” Pub.L. 96-611, § 7(c)(6), 94 Stat. 3566 (1980). The PKPA, though, under the instant circumstances, does not expressly require a state to refrain from exercising jurisdiction in interstate custody disputes involving “child-snatching.”

Since the federal law is silent on this issue, we must turn to Alabama’s own statute. The pertinent provision of Alabama’s version of the UCCJA is found at Alabama Code Section 30-3-28 (Cum.Supp.1981):

(a) If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
(b) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances....

While this court does not condone the father’s conduct, we cannot find that the above referenced statute required Alabama to decline to exercise jurisdiction. The father did not take the child from the custodial parent. Rather, the child was taken from the maternal aunt and uncle who had no legal custodial right to the child.

Additionally, this is not an instance where the child was brought into a new state which had never before exercised jurisdiction over this child. Instead, the father brought the child into a state which had continuing jurisdiction over the child’s custody by virtue of the 1979 decree. On these facts, we cannot find that Alabama should have declined jurisdiction and refused to entertain the father’s cross-petition for modification.

We conclude that Alabama properly exercised jurisdiction pursuant to the pertinent provisions of the PKPA and the UCCJA. The trial court had jurisdiction to determine whether the 1979 custody order should be modified.'

II

The mother contends on appeal that the trial court abused its discretion in ordering that custody be modified and awarding the father custody of the child. We disagree.

The parent seeking modification must show a material change in circumstances which affects the best interests of the child. Ford v. Ford, 293 Ala. 743, 310 So.2d 234 (1975). The trial court’s judgment, rendered after an ore tenus hearing, will not be disturbed on appeal unless the judgment is plainly and palpably wrong. Barber v. Lay, 384 So.2d 1095 (Ala.Civ. App.), cert. denied, 384 So.2d 1096 (Ala.1980).

We have reviewed the record with the attendant presumption and find the facts support the trial court’s determination that there had been a material change in circumstances warranting a change in custody. The child has lived with the mother no more than ten months in the two years since the issuance of the 1979 decree. The grandparents kept the child for several months in 1980. Then, in 1981, the mother totally relinquished the child to the care of the maternal aunt and uncle.

The father, meanwhile, has become gainfully employed since the initial custody decree. The father lives near the grandparents, and several witnesses testified as to the father’s character and fitness over the past two years.

We note the paternal grandparents and the maternal aunt and uncle testified at the hearing. The record reflects that these four people are all of outstanding character. They genuinely love the minor child and want it to have a stable, caring home. However, while the concern of other family members is not to be lightly discounted, the trial court in this action had to determine which parent, rather than which family, would serve the best interests of the child.

In light of the above, we find the trial court did not abuse its discretion in finding there had been so material a change in circumstances that it would be in the best interests of the child to modify the award and give custody to the father.

This case is due to be affirmed.

AFFIRMED.

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

      . (a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
      (b) As used in this section, the term—
      (1) “child” means a person under the age of eighteen;
      (2) “contestant” means a person, including a parent, who claims a right to custody or visitation of a child;
      (3) “custody determination” means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications;
      (4) “home State” means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
      (5) “modification” and “modify” refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not;
      (6) “person acting as a parent” means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;
      (7) “physical custody” means actual possession and control of a child; and
      (8) “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.
      (c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
      (1) such court has jurisdiction under the law of such State; and
      (2) one of the following conditions is met:
      (A)Such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
      (B)(1) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training and personal relationships;
      (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
      (D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
      (E) The court has continuing jurisdiction pursuant to subsection (d) of this section.
      (d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
      (e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.
      (f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—

        (1) it has jurisdiction to make such a child custody determination; and
      (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
      (g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.


source: Caselaw Access Project

license: Public Domain

text:
    SESSIONS PULPWOOD, INC. and Tony Butts v. Walter H. MARTIN and Gladys Martin.
    Civ. 3138.
    Court of Civil Appeals of Alabama.
    June 23, 1982.
    William T. Faile, Selma, for appellants.
    William J. Gamble of Gamble & Gamble, Selma, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case is for trespass Quare Clausum Fregit.

The plaintiffs were the owners of certain real estate, consisting of a 5.81-acre residential lot, upon which the defendants trespassed with their equipment and, according to some of the evidence, cut or damaged 441 of the plaintiffs’ trees and saplings.

An expert witness testified without objection that the difference in the value of the land before and after the trespass was $1,743. One of the plaintiffs swore without objection that some of the trees and tops that had been cut were left upon their property in a drainage ditch, and that it would cost between $2,100 and $2,200 to remove the debris therefrom.

After a non-jury trial, the learned trial court rendered a final judgment in favor of the plaintiffs for $3,843. The defendants have appealed and claim that the damages as ascertained by the circuit court were excessive or improper since the appropriate measure of compensatory damages for trespass to land through the cuttage of timber thereon is the difference between the value of the land immediately before and after the trespass, citing Hammond v. Stephens, 269 Ala. 210, 112 So.2d 324 (1959) and Agee v. Griffin, 389 So.2d 513 (Ala.Civ.App.), cert. denied, 389 So.2d 516 (Ala.1980).

The correct measure of damages for trespass quare clausum fregit is such difference in the before and after values. However, both of the cases relied upon by the defendants involved the issue of whether evidence could be introduced concerning the value of the trees which were cut during a trespass. Since the worth of such trees is not the proper measure of damages in a civil action for trespass to land, both cases held such evidence to be inadmissible.

Here, the evidence was not of the value of timber cut or damaged, but the issue is concerned with that testimony of one of the plaintiffs as to the cost of cleaning up the debris which remained after the trespass. “[I]n a count for damages for trespass quare clausum fregit, the damages recoverable are for injury to the lands.... ” Hammond v. Stephens, supra at 212, 112 So.2d 324.

Once the trial court determined that the defendants had trespassed upon the plaintiffs’ land, the court then, as to compensatory damages, had the duty to ascertain from the evidence and reasonable inferences therefrom, as to what amount of an award would provide full compensation to the owners for the injury caused to their land. Opinion evidence as to before and after values may be properly introduced after proper predicate therefor, but the rules of evidence do not solely limit proof of damages to such method. The reasonable cost of removing the debris was admissible and could be considered by the trial court in connection with all of the other evidence in determining the difference in the before and after values of the plaintiff’s land. Such expense could have a direct bearing upon the value of the land after the trespass.

We liken the evidence of this party plaintiff to evidence in an automobile damage case as to the cost of vehicular repair. In Mobile Light & R. Co. v. Gadik, 211 Ala. 582, 100 So. 837 (1924), concerning that type litigation, it was stated:

In fixing the measure of damages it is the aim of the law to reimburse the actual loss. This loss is usually ascertained by finding the difference between the reasonable market value immediately before and immediately after the injury.. . .
[C]osts of repairs and other items in evidence should be looked to in connection with all the evidence, to determine the difference in market value immediately before and immediately after the injury.

In the present case in determining the before and after damages occasioned by the injury to the land, the trial court was authorized to consider the cutting and damaging of the 441 trees and saplings, the photographs which were introduced, the clean up costs, the nature of the land and its use, and all other competent evidence. The trial court was not here limited solely to the opinion evidence as to values before and after the trespass. All of such evidence was properly admitted to assist the trial court in fixing the true amount of compensatory damages pursuant to the proper measure of damages. It is reasonable and proper for a trial court to consider all of the evidence, and its reasonable tendencies, concerning injury occasioned to the land by a trespass in order to fix a fair, reasonable and just compensatory award pursuant to the established damage yardstick, the difference in before and after values.

Here, we cannot say that the trial court did not properly apply the correct measure of damages for the injury done to the plaintiffs’ land by the trespass of the defendants. 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.


author: BRADLEY, Judge.

text:
    Rowland MONTGOMERY, d/b/a Montgomery’s Supply Company v. Don MARDIS.
    Civ. 3162-X.
    Court of Civil Appeals of Alabama.
    June 23, 1982.

      Luke E. Alexander of Guin, Bouldin, Porch & Alexander, Russellville, for appellant.
    Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Don Mardis was injured on February 15, 1980 while he was at work. The evidence shows that Mardis fell from a diesel fuel truck, injuring his back. As a result of these injuries, Mardis brought suit against his employer to recover workmen’s compensation benefits.

The parties stipulated at trial that the accident had arisen out of and in the scope of Mardis’s employment. It appears from the evidence that Mardis has seen numerous doctors concerning his back injury. Dr. Bryce Bracken, an orthopedic surgeon, testified on behalf of Mardis. He testified that he had examined Mardis several times. He stated that Mardis had pain in his back and hip. The doctor also placed Mardis in a back brace. Although Mardis continued to experience pain, Dr. Bracken could find no reason why the pains were continuing. Finally Dr. Bracken testified that Mardis had suffered a seventeen percent impairment.

Mardis also offered the deposition of William Breen, who is the owner of an industrial relations consulting firm. Mr. Breen stated that he had interviewed Mardis and had examined the medical records concerning Mardis. Breen stated that in his opinion Mardis was suffering a one hundred percent permanent disability.

Two doctors testified for the employer. Both of these doctors stated that they could not find any further physical disability, although they both admitted that Mardis was continuing to have pain. Both felt that this pain was due more to psychological problems rather than physical problems.

On November 20, 1981 the trial court entered its final judgment. The court found that Mardis had suffered a temporary total disability and was entitled to workmen’s compensation benefits for a period of three hundred weeks. From this judgment the employer appeals and Mardis cross-appeals.

The employer raises two issues on appeal: (1) whether the trial court properly admitted into evidence the deposition of William Breen, and (2) whether the trial court erred in finding that Mardis was entitled to temporary total disability benefits for an additional period of three hundred weeks. Mar-dis, as cross-appellant, contends that the court erred in not finding that he was entitled to permanent total disability benefits.

With regard to the second issue, both parties contend that the trial court erred in finding that Mardis suffered a temporary total disability and was entitled to recover benefits for three hundred weeks. The employer argues that the evidence clearly shows that Mardis has completely recovered from his injuries and has no further disability. Mardis, on the other hand, contends that the evidence shows that he has suffered a permanent total disability.

We note that at trial the parties, by stipulation, apparently attempted to limit the court’s determination to the question of whether Mardis was permanently disabled. Mardis, in his cross-appeal, argues this point, alleging that the court could not legally make a finding of temporary disability. We do not agree. Although the parties may enter into an agreement to try their case on any theory they choose, Reese Funeral Home v. Kennedy Electric Co., 370 So.2d 1030 (Ala.Civ.App.1979), the court is not bound by the parties’ agreement as to the law to be applied in the case, or by agreements of fact which are contrary to the facts as disclosed by testimony. Garrett v. Mathews, 474 F.Supp. 594 (N.D.Ala.1979), aff’d, 625 F.2d 658 (5th Cir. 1980). The extent and type of disability suffered by a workmen’s compensation claimant, and the amount of compensation to be awarded in a given situation, are matters for the court to decide. In this case the trial court was free to make a determination of temporary or permanent disability, or lack thereof.

The question remains as to whether the decision of the trial judge in awarding additional temporary total disability benefits is supported by the evidence. As in all workmen’s compensation cases, our scope of review is limited to an examination of the evidence to determine whether any reasonable view of it supports the conclusion of the trial court. We will not examine the weight or preponderance of the evidence but will look only to see if there is any legal evidence to support the trial court’s findings. McGaughy v. Allied Products Co., 412 So.2d 803 (Ala.Civ.App.1982). After examining the record, we cannot find that the trial court erred.

The medical and other expert testimony in this case was extremely controverted. Although the doctors could find no physical cause of Mardis’s pain, they all agreed that he was still having pain. Certainly from this testimony the trial court could conclude that Mardis was still suffering from a disability which resulted from his work-related injury.

Mardis contends that the evidence supports a finding that he is suffering from a permanent total disability. We cannot agree. Although Mardis’s witnesses testified that he was suffering a permanent total disability, there is other evidence which supports a finding that the disability would not be permanent.

The doctors recommended that Mardis should be placed in a physical therapy program to strengthen his back. It was also suggested that he receive psychological counseling. Although Mardis tried these programs, he quit because he could not establish the proper rapport with his doctors. From this testimony the trial court could have concluded that additional physical therapy coupled with psychological counseling could enable Mardis to recover completely or reach that point where it could be concluded that maximum recovery had been achieved. Such evidence supports the trial court’s finding that Mardis’s disability was temporary.

The employer argues that the trial court also erred in awarding temporary total benefits for a period of three hundred weeks. In a case involving temporary total disability, it is the duty of the court to make an estimate from the evidence as to the probable duration of the disability. In making this determination the trial court is not bound by expert medical testimony. The court must consider all of the evidence, including its own observation, and interpret it to its own best judgment. Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala. Civ.App.1980). We cannot say that the trial court erred in finding that Mardis was entitled to temporary total disability for three hundred weeks.

The remaining issue on appeal concerns the employer’s objection to the admission of Breen’s deposition. The objection was based on the fact that Mardis did not state a sufficient ground for allowing Breen to testify by deposition.

In a workmen’s compensation case where there is legal evidence to support the trial court’s findings, this court will not consider questions regarding the trial court’s rulings on objections to the admission of evidence, unless the amount of illegal evidence accepted suggests the probability that the trial court’s findings have been

influenced thereby. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979); Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976), cert. denied, 342 So.2d 924 (Ala.1977). In the present case we do not find that the deposition of Breen exerted any influence upon the court’s decision. However, we should not be understood as holding that the questioned evidence is inadmissible. Since we find sufficient legal evidence upon which to support the trial court’s findings, we will not consider this issue.

For the foregoing reasons, the judgment entered below is affirmed.

AFFIRMED.

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


text:
    GEER BROTHERS, INC., a corporation v. Mary J. WALKER.
    Civ. 2939.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      Hugh W. Roberts, Jr., of Roberts, Davidson & Wiggins, Tuscaloosa, for appellant.
    J. Paul Whitehurst and Walter Henley, Northport, for appellee.
   HOLMES, Judge.

Plaintiff-appellee, Mary J. Walker, filed suit in the Circuit Court of Tuscaloosa County against Geer Brothers, Inc. The complaint alleged three causes of action against the defendant: (1) breach of warranty, (2) breach of contract, (3) negligence or wantonness.

At the conclusion of the trial the case was submitted to the jury on the theories of breach of contract and negligence. The jury found the issues in favor of the plaintiff and awarded her $5,000.

After the jury verdict the defendant made a motion for j. n. o. v. or, in the alternative, for a new trial. The trial court denied this motion, hence this appeal.

Briefly stated, the facts giving rise to this appeal are as follows: The plaintiff owned a mobile home. The defendant is a corporation engaged in the business of selling and servicing mobile homes. The services provided by the defendant included the transportation of mobile homes. Sometime in July, 1979, the plaintiff contacted the defendant and arranged for the defendant to transport her mobile home. On July 30, 1979, the mobile home was transported by the defendant’s employees. During transit the mobile home was damaged. The plaintiff brought this action seeking compensation for the damages which occurred to her mobile home.

On appeal, the defendant, through able counsel, raises four issues that it contends warrant reversal on appeal. This court will address each of these issues. The facts will be further elucidated as they relate to the specific issues raised by the defendant.

I

The first issue this court will consider concerns the defendant’s right to qualify the jury. In brief the defendant alleges that Foremost Insurance Co. is the insurer of the mobile home in question and that the First National Bank of Tuskaloosa is the mortgagee of the mobile home. The defendant further alleges that it did not become aware of the interests of the insurance company and the bank until after the trial had begun; consequently, it was not able to qualify the jury regarding any interest the jurors might have in these two entities. According to the defendant, because it was not able to properly qualify the jury, this case should be reversed. We do not agree.

Assuming that the defendant had valid objections to the composition of the jury, the rule in Alabama, in both civil and criminal cases, is that such objections must be made before entering upon the trial of the case on its merits. If the objection is not made before entering upon the trial on the merits, the right to make that objection is deemed to be waived. Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala.1980); Williams v. State, 342 So.2d 1328 (Ala.1977). The objection is not deemed to be waived, however, if fraud is subsequently discovered or if objectionable matters are discovered which were not known prior to the beginning of the trial on its merits or which by the exercise of due diligence could not have been known. Brown, supra; Williams, supra.

In this case there is no contention that any fraud was involved in selecting the jury. Furthermore, in light of the broad discovery provided by the Alabama Rules of Civil Procedure the defendant could have discovered whether an insurance company was involved in this action or whether a bank claimed any interest in the mobile home.

Finding neither one of the exceptions to the general rule to be applicable, any objections possessed by the defendant regarding the qualifications of the jurors are deemed to be waived.

II

The defendant next contends that the trial court erred to reversal in admitting the testimony of the expert witness offered by the plaintiff. In support of this contention the defendant asserts that the expert had no personal knowledge of the facts upon which he based his opinion and that the facts were not presented to him in the form of a hypothetical question. We find no merit in this contention.

In Alabama, an expert’s testimony may be based upon his personal knowledge of the facts. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974); C. Gamble, McElroy’s Alabama Evidence § 130.01 (3d ed. 1977). If the expert’s testimony is based upon his own personal knowledge, the expert need not be asked a hypothetical question. C. Gamble, supra.

The objected to testimony in this case concerned the value of the mobile home in its damaged and undamaged conditions. The record reveals that the plaintiff was the first witness. Among other things, she testified as to the damage suffered by her mobile home and offered into evidence pictures showing some of the damage. The record further reveals that the expert witness visited the plaintiff in November, 1980, and observed the mobile home in its damaged condition. The witness testified that he observed damage to the underside of the mobile home, the front of the mobile home, the axles and springs of the mobile home, and the outside skin of the mobile home. Based upon his observations and his experience in mobile home repair he was able to estimate the value of the mobile home as damaged and its value had it not been damaged. In light of the above stated principles of law, it is permissible to allow such testimony. See Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974).

Finally, we know of no authority requiring the exclusion of this testimony because the expert may have talked to someone regarding who caused this damage. The expert testified only as to the value of the mobile home with and without the damage he observed and not as to who caused the damage.

Ill

The defendant next contends that the plaintiff’s counsel and the plaintiff made certain improper references to the comparative wealth of the parties and that these references were so highly prejudicial that this judgment must be reversed. Specifically, the complained of statements include references to the plaintiff as a widow lady with limited financial resources, a statement that she lived in the mobile home for a time without the normal utilities, statements that the plaintiff had had a heart attack and a statement that she lived with a retarded son. On only one occasion did the defendant object to any of the foregoing statements. The objection came when the plaintiff referred to herself as a “widow lady.” The objection was sustained and the jury was instructed to disregard the non-responsive answer.

As a general rule, it is improper to inform the jury of the relative wealth of the parties to a lawsuit. Patterson v. Craig, 394 So.2d 948 (Ala.1981); Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 268 So.2d 725 (1972). It is also a general rule that a trial court cannot be put in error for allowing supposedly improper statements unless there is an objection to such statements. Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340 (1968); ARCP rule 46. If, however, the statement is so highly prejudicial “that neither retraction nor rebuke by the trial court would have destroyed its sinister influence,” (Anderson v. State, 209 Ala. 36, 44, 95 So. 171, 179 (1922)), the general rule has no application.

In light of the foregoing, the question this court must decide is whether the complained of statements are so highly prejudicial that the evil influence of such statements was beyond the curative powers of the trial court. After reviewing the record we are unable to hold that the complained of statements reach such a high level of prejudice.

In answering the question before us, much depends upon the issues, parties and atmosphere of a particular case. Contrary to the defendant’s assertion in its brief, this court has been unable to find constant references to the comparative wealth of the parties. Our review of the record reveals only isolated and, except for one instance, unobjected to references to wealth. Such references as there were were relatively oblique and did not reveal a conscious and blatant attempt by plaintiff’s counsel to improperly appeal to the jury’s sympathies.

Both of the attorneys zealously and ably represented their clients. The presentations to the jury were not flawless, but then few are. Based upon the evidence, the jury decided the issues and returned a verdict. This court has been unable to find any statements so pervasively evil and prejudicial as to require us to reverse this jury verdict.

IV

The defendant’s final contention is based upon ARCP rule 19. Specifically, the defendant contends that Foremost Insurance Co., the alleged insurer of the damaged mobile home and/or the First National Bank of Tuskaloosa, the alleged mortgagee of the mobile home, fall within rule 19(a) as persons to be joined if feasible. Because neither one of the foregoing entities were joined, the defendant maintains the judgment should be reversed and remanded for a new trial.

At the outset we note that it is no objection to our consideration of this issue that the defendant raised the issue for the first time in its post-trial motion. Our supreme court has previously held that the absence of an indispensable party can be raised for the first time as late as on appeal. Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala.1977).

In considering this issue of absence of an indispensable party, this court is still bound by the record. See Stephens v. Central of Georgia Railroad Co., 367 So.2d 192, 194 (Ala.1978). A review of the record reveals that nothing was introduced into evidence and therefore nothing was in the record proper that even remotely suggests that Foremost Insurance Co. insured the mobile home in question. All that is before this court regarding the insurance company is the defendant’s assertions in its motion for j. n. o. v. and in its brief on appeal that Foremost does in fact insure the mobile home.

It is a well settled principle that an appellate court will not generally consider matters outside the record. American Benefit Life Insurance Co. v. Ussery, 373 So.2d 824 (Ala.1979). It is equally well settled that an assertion in a party’s brief cannot be taken to supplement the record. Maul-din v. Mount Hebron United Methodist Church, 289 Ala. 493, 268 So.2d 770 (1972). Furthermore, an appellate court cannot consider statements in brief that are not supported by the record. King v. Smith, 288 Ala. 215, 259 So.2d 244 (1972).

Finding nothing in the record to support the defendant’s contention regarding the Foremost Insurance Co., the foregoing authority prohibits this court from considering it as a basis for reversal.

A review of the record does, however, reveal that the First National Bank of Tus-kaloosa did hold a mortgage on the mobile home. As a mortgagee, the bank had an interest in the mobile home because it looked to the mobile home in the event of default by the plaintiff. Using the terminology of rule 19, this interest is sufficient to make the bank a “person to be joined if feasible.” Cavalier Insurance Corp. v. Hulsey, 333 So.2d 594 (Ala.Civ.App.1976).

In determining whether to vacate the proceedings below and remand for a new trial, this court’s inquiry does not end with rule 19(a), however. When a person or entity who should be joined under rule 19(a) is absent, rule 19(b) must be considered in order to determine whether in “equity and good conscience” the action can proceed in the absence of such a person or entity. Only if the criteria of rule 19(b) are met will the person or entity be considered an indispensable party.

[11,12] When a judgment is rendered in the absence of a person who should be joined under rule 19(a), rule 19(b) requires this court to consider the prejudicial effect of such judgment to both the absent person or entity and the parties presently before the court. The record does not reveal the extent of the bank’s interest in the mobile home so this court cannot determine the prejudicial effect, if any, of this judgment to the bank. Regarding the possibility of prejudice to the bank we believe it is pertinent to note that the record reflects no attempt by the bank to intervene at the trial to protect its interest nor is the bank presently before this court pressing its interest. Regarding the parties, since the plaintiff prevailed below, she has a strong interest in preserving that judgment and would be prejudiced only if this court remanded this case for a new trial. As for the defendant, by joining the bank as a plaintiff in this action it seeks to avoid the prejudicial effect of a later suit by the bank against the defendant. Where, as here, the moving party is seeking to protect only itself and is not seeking vicariously to protect the absent party against a prejudicial judgment, this court, in determining the weight to be placed upon the possibility of prejudice to the defendant, may properly consider the defendant’s delay in seeking to have the bank joined. Fed.R.Civ.P. 19, Comments. See generally, Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).

Another criterion that rule 19(b) requires this court to consider is the adequacy of the judgment rendered in the absence of the person or entity who should be joined under rule 19(a). In interpreting this criterion of rule 19(b) of the Federal Rules of Civil Procedure which in most respects is identical to rule 19(b) of the Alabama Rules of Civil Procedure, the United States Supreme Court deemed it to be a protection of the public’s interest in “complete, consistent, and efficient settlement of controversies.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. at 111, 88 S.Ct. at 738. The Supreme Court further noted that “[ajfter trial, considerations of efficiency . . . include the fact that the time and expense of a trial have already been spent.” Id.

Considering that the bank at no time in this action has attempted, in any way, to protect its interest in the mobile home and that the defendant seeks to make the bank a party solely to protect itself from a later suit by the bank and that the defendant did not raise this issue until after the trial had been completed, this court, in equity and good conscience, cannot conclude that the bank’s absence is so prejudicial that a new trial is required. Professors Wright and Miller in their treatise on federal procedure state that when the issue of nonjoinder is raised for the first time after the trial has concluded, “considerations of judicial economy and fairness dictate that the court closely examine the merits of any assertion of nonjoinder to be certain that it really will have prejudicial effects.” 7 C. Wright & A. Miller, Federal Practice and Procedure § 1609 at 90 (1972). After carefully considering the record, this court has determined that the possibility of prejudice to the defendant is, at best, remote and not sufficient to require a new trial.

This case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    SOUTHEAST ALABAMA GAS DISTRICT v. Alma Donald TAYLOR.
    Civ. 3026.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

Alma Donald Taylor was injured and her automobile damaged when she collided with pipes protruding above the street'. At the time of the impact, Mrs. Taylor and nine children who attended her day care center were riding in her car, a 1975 Vega station wagon.

Mrs. Taylor filed suit against Southeast Alabama Gas District, claiming negligence causing property damage and personal injury. Southeast answered, pleading not guilty and contributory negligence. Southeast also moved to strike the claim for property damages because of a prior arbitration between Mrs. Taylor’s insurer and the insurer of Southeast. It was averred that Taylor’s insurer had paid her $493.75 for the cost of repairs to her automobile under her policy. There was subsequent binding arbitration between the parties’ insurers. Taylor’s insurer lost the arbitration. Southeast therefore contended that the arbitration is res judicata of liability on the property damage count. The motion to strike was denied.

The case was tried before a jury. Mrs. Taylor was the only witness. She testified that several pipes were protruding from the street and that she hit the tallest one — apparently a gas pipe. She said her car stopped instantly, and that her head hit the windshield, breaking the glass. She was treated and released at Coffee General Hospital’s emergency room. She saw a doctor twice. Mrs. Taylor testified that she was stiff and sore, and was out of work for a month. During that time she hired someone to do her job at the day care center, and to cook for her. She said she used a local taxi service for transporting the children and herself. Specific sums were stated as to each expense. Mrs. Taylor testified that the value of her car before the accident was $2,500, and after, only $500.

At the close of plaintiff’s case, Southeast moved for directed verdict. The motion was denied. Southeast then moved to join plaintiff’s insurer as a real party in interest. The motion was denied as untimely. Southeast rested and renewed its motion for directed verdict. Again, it was denied. The court instructed the jury upon negligence, contributory negligence and the appropriate measure of damages. The court instructed the jury that insurance benefits received by Mrs. Taylor from her insurer could not be considered in computing damages.

The jury returned a verdict for Mrs. Taylor in the amount of $2,500. Southeast’s motion for JNOV or new trial was denied. Southeast appeals.

Southeast contends on appeal that the trial court erred in:

(1) denying directed verdict as to damages paid to plaintiff by her insurer;
(2) refusing to recognize the arbitrator’s decision;
(3) charging the jury that insurance benefits could not be taken into account in computing damages; and
(4) denying JNOV or new trial.

We will address these issues in inverse order.

A jury verdict is presumed to be correct and that presumption is strengthened where the trial court denies a motion for new trial. Merrill v. Badgett, 385 So.2d 1316 (Ala.Civ.App.), cert. denied, 385 So.2d 1319 (Ala.1980). Granting or denying a new trial is in the discretion of the trial court and is presumed correct. Hill v. Cherry, 379 So.2d 590 (Ala.1980); Free v. Palmer, 373 So.2d 1100 (Ala.Civ.App.), cert. denied, 373 So.2d 1103 (Ala.1979). We find no abuse of discretion by the trial court in denying new trial, or judgment notwithstanding the verdict. There was sufficient evidence to support a $2,500 verdict on the property damage and personal injury counts.

The next issue is the propriety of the trial court’s instruction which stated that:

[T]he fact that a plaintiff has received benefits under an insurance policy will not be taken into account in computing damages in this case.

Such an instruction was not inappropriate even though Mrs. Taylor had stated on cross-examination that her insurer had paid her $493.75 for repair to her car. It has long been the rule that the amount paid by an insurer to a plaintiff for damages to his vehicle does not affect his measure of recovery, and such evidence is not admissible in the trial of such cause. Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963).

The payment for property damage to plaintiff by her insurer was not an appropriate defense for defendant in this case. The right of subrogation is between the insured and her insurer. A contract for binding arbitration as to fault between insurers cannot affect the right of action between their insureds. We do not know the terms of the contract between plaintiff and her insurer. That contract is not in the record, neither are the terms of the arbitration agreement. Plaintiff’s insurer may be subrogated to Mrs. Taylor’s right of recovery for property damage against Southeast, at least in the amount of its payment to her. However, such right of subrogation would belong to that insurer. It has not appeared in the case to claim such right. We are unable to determine how defendant may claim benefit from such right. Defendant was not due a directed verdict on the property damage claim because of the payment of insurance to plaintiff.

The issue of refusal of the court to recognize some binding effect of the arbitration decision between the insurers as to fault in the accident is without any merit. Such an arbitration can have no effect on anyone except the parties to it. Section 6-6-14, Code of Alabama (1975) has no application to the facts of this case. There is no indication or suggestion that the insured was party or privy to any arbitration agreement. In fact, there is nothing in the record to indicate what contentions or issues were arbitrated. There is only a form stating, “Applicant failed to prove contentions.”

If the result of the arbitration between the insurers was to determine that plaintiff was at fault and had no right of recovery against defendant, the insurer of plaintiff would then have no right of subrogation. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Williams, 365 So.2d 315 (Ala.Civ.App.1978). If that result were to be applied in the suit between plaintiff and defendant, how could plaintiff recover property loss above the payment by his insurer? How could the right to recover property damage be res judicata and the action for personal injury be continued? The answer to these questions appears obvious. The arbitration is between insurers and binds only them. If plaintiff’s insurer loses the arbitration after payment to its insured of his claim, such insurer could interplead its right of subrogation in a suit by its insured; or it could reimburse the defendant’s insurer in the event of plaintiff’s recovery. It is certain that such arbitration cannot be used to bar plaintiff’s right to a judicial determination of the dispute. Wells v. Mobile County Board of Realtors, Inc., 387 So.2d 140 (Ala.1980).

Appellant has cited Max, Arbitration — The Alternative to Timely, Costly Litigation, 42 Alabama Lawyer 309 (1981). The conclusion of that article is that the right to arbitrate m Alabama is “limited to either existing disputes or future disputes limited to amounts in controversy and not liability therefor.” We consider that conclusion to correctly state the law of this state.

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.

      . Mrs. Taylor’s deductible was $100.


text:
    Judith M. TUCKER v. William D. TUCKER.
    Civ. 3032.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      Earl E. Cloud of Cloud & Cloud, Huntsville, for appellant.

      M. H. Lanier and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
   HOLMES, Judge.

The husband petitioned for a modification of a prior decree of divorce pursuant to section 30-2-55, Code of Alabama 1975 (Cum.Supp.1980), alleging the wife had cohabited or lived openly with a member of the opposite sex.

After an ore tenus hearing, the trial court granted the husband’s petition and the wife appeals. We affirm in part and reverse in part.

For clarity, we will discuss the facts which are pertinent to each of the four issues raised by the wife on appeal:

I.The trial court abused its discretion in finding that the wife had cohabited or lived openly with a member of the opposite sex;
II.The agreement executed by the parties which was incorporated into the divorce decree was a nonmodifiable property settlement;
III. The trial court abused its discretion in imposing discovery sanctions upon the wife for her failure to answer interrogatories; and
IV. The trial court erred in refusing to consider the wife’s motion for recu-sal.

I

The wife’s first contention is that the evidence is insufficient to support a finding that she had lived openly or cohabited with a member of the opposite sex. We disagree.

The applicable statutory provision, section 30-2-55, provides:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. This provision shall be applicable to any person granted a decree of divorce either prior to April 28, 1978, or thereafter; provided, however, that no payments of alimony already received shall have to be reimbursed.

Cohabitation has been defined as some permanency of relationship coupled with more than occasional sexual activity between the cohabitants. Hicks v. Hicks, 405 So.2d 31 (Ala.Civ.App. 1981). The question of whether a former spouse is living openly or cohabiting with a member of the opposite sex is a factual determination. Parish v. Parish, 374 So.2d 348 (Ala.Civ.App.), cert. denied, 374 So.2d 351 (Ala.1979), appeal dismissed, 444 U.S. 1041, 100 S.Ct. 725, 62 L.Ed.2d 726 (1980). This court can only reverse the trial court’s determination if, after a consideration of all the evidence and the reasonable inference drawn therefrom, we conclude that such determination is plainly and palpably wrong. Blackwell v. Blackwell, 383 So.2d 196 (Ala.Civ.App.1980).

We find the evidence in the instant action supports the trial court’s conclusion that the wife had lived openly or cohabited with a member of the opposite sex.

The wife had become acquainted with Norman Savage approximately two years before the husband filed his petition to modify. The wife and Savage had at one time made a joint application for an apartment. Several witnesses, including Savage himself, Savage’s son, and the wife’s neighbors gave testimony from which the trial court could have concluded that Savage frequently spent the night at the wife’s home. When the wife’s home was damaged by fire, Savage stayed with the wife at a local motel. Savage used the wife’s address as his own on his checking account and driver’s license. There was evidence that the wife provided financial support for Savage and his children.

In light of the above evidence, we find the trial court did not abuse its discretion in its determination that the wife had lived openly or cohabited with Savage. Consequently, the husband was entitled to relief under section 30-2-55.

II

The wife next contends that the trial court had no authority to modify the decree of divorce. Specifically, the wife contends that the divorce decree had incorporated an agreement between the husband and wife which constituted a nonmodifiable property settlement.

The pertinent provisions of the agreement incorporated into the 1975 decree are:

5. The party of the first part [husband] will pay to the party of the second part [wife] as alimony for her support and maintenance the sum of Two Thousand and No/100 ($2,000.00) Dollars per month beginning with the month of September, 1975, such payments to terminate upon the death or remarriage of the party of the second part.
6. The party of the second part is now the owner and beneficiary of the following life insurance policies on the life of the party of the first part:
New England Life, Policy No. 3030734, in the amount of $50,000
Manhattan Life, Policy No. 524216, in the amount of $50,000.00
and party of the first part agrees to pay all present and future premiums when due on each of the above numbered policies.
7. The party of the first part agrees to create, or cause to be created a trust, either inter vivos or testimentary, and to convey to the named trustee assets sufficient and of a nature to produce an annual income of not less than Sixteen Thousand and No/100 ($16,000.00) Dollars, and by the terms of said trust beginning with the death of party of the first part, the trustee shall pay to the party of the second part, or for her use and benefit, all of such income during the life of party of the second part or until her remarriage, whichever event shall first occur.
Until paid or provided for, said amount shall constitute a debt owed by plaintiff to the defendant and at the time of his death shall be a lawful claim upon his estate and binding upon his representatives, heirs, devisees and legatees.

As indicated, the trial court granted the husband’s petition to modify based on the finding that the wife had cohabited or lived openly with a member of the opposite sex. In this decree granting the husband’s petition, the trial court stated “that the original divorce decree should be modified in that paragraphs 5, 6 and 7 of the separation agreement embodied in said decree should be deleted. ... ”

On appeal, the wife apparently contends that paragraphs 5, 6 and 7 are part of an integrated bargain agreement between the husband and wife which the trial court had no authority to modify without the consent of both parties. Little v. Little, 349 So.2d 48 (Ala.Civ.App.1977) (Holmes, J., concurring specially).

Whether an agreement between divorcing parties constitutes an integrated bargain is an issue which must be determined by the trial court after the presentation of evidence concerning the parties’ intent when executing the agreement. See Duvalle v. Duvalle, 348 So.2d 1067 (Ala.Civ.App.1977).

The record before us reveals no evidence on the question of whether the parties intended that this settlement agreement be treated as an integrated bargain. Issues which were not raised at trial may not be considered for the first time on appeal. Brown v. Brown, 374 So.2d 332 (Ala. Civ.App.), cert. denied, 374 So.2d 334 (Ala. 1979). The wife’s failure to present evidence at trial on the issue of whether this agreement constitutes an integrated bargain precludes this court from now considering that issue on appeal.

We must now consider, then, whether the trial court abused its discretion in modifying the decree by deleting paragraphs 5, 6 and 7.

A trial court may terminate an award of periodic alimony pursuant to section 30-2-55 once it has been determined that a former spouse has cohabited or lived openly with a member of the opposite sex. See Hicks v. Hicks, supra; Blackwell v. Blackwell, supra; Parish v. Parish, supra. Section 30-2-55, however, applies only to awards of periodic alimony. Higginbotham v. Higginbotham, 367 So.2d 972 (Ala.Civ.App.1979). Awards of alimony in gross and/or divisions of property are neither modifiable nor subject to section 30-2-55. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980).

The above referenced paragraph 5 is clearly an award of periodic alimony. Since the trial court determined that the wife had cohabited or lived openly with Savage, we cannot find the trial court abused its discretion in terminating the award of periodic alimony pursuant to section 30-2-55.

Paragraph 6, however, is not an award of periodic alimony which could be modified under section 30-2-55. The two life insurance policies awarded the wife in paragraph 6 are deemed an award of alimony in gross and/or a property division. Higginbotham v. Higginbotham, supra. In the instant action, the trial court had no authority to modify the decree by relieving the husband of his obligation to pay the insurance premiums. Accordingly, we find the trial court erred to reversal by deleting paragraph 6.

We also find the award to the wife in paragraph 7 cannot be characterized as periodic alimony subject to termination under section 30-2-55. Periodic alimony is an allowance for the future support of the wife payable from the current earnings of the husband. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (Ala.1974). The payments to the wife pursuant to paragraph 7 will be derived from the income of an inter vivos or testamentary trust created by the husband. The payments from the trust will not' begin until the husband dies. The payments to the wife under paragraph 7 are not deemed to be periodic alimony because they are not derived from “the current earnings of the husband.” Hager v. Hager, supra. Because section 30-2-55 only applies to awards of periodic alimony, we find that Code provision to be inapplicable to the award of trust income to the wife in paragraph 7. The trial court abused its discretion in deleting paragraph 7 from the original decree of divorce.

We realize it is difficult to characterize paragraph 7 as an award of alimony in gross and/or a division of property. Payments to the wife from the trust will cease upon her death or remarriage. Our supreme court, in Hager v. Hager, supra, determined that a provision providing that an award which will terminate upon the death of the payee spouse does not prevent such an award from being properly characterized as nonmodifiable alimony in gross. Likewise, on the facts before us, we find that a provision providing that payments from a trust account will cease upon the wife’s remarriage does not alter the nonmodifiable characteristics of the award in paragraph 7 as construed within the purview of section 30-2-55.

Ill

The wife’s third contention on appeal is that the trial court, prior to trial, abused its discretion in imposing discovery sanctions on the wife for her failure to answer certain interrogatories propounded by the husband.

When the husband filed his petition to modify, he served interrogatories upon the wife. The wife failed to answer these interrogatories, whereupon the trial court entered an order compelling discovery. The wife did not comply with the discovery order. The husband then moved the trial court to hold the wife in contempt and to sanction her for failing to answer the interrogatories.

The trial court then entered an order sanctioning the wife by temporarily relieving the husband from payments of alimony and payment of premiums on the two life insurance policies.

The wife subsequently answered the interrogatories and the case proceeded to trial. On appeal, the wife contends the trial court abused its discretion in ordering sanctions under rule 37(b)(2), ARCP. The pertinent provisions of rule 37(b)(2) provide:

(b) Failure to Comply with Order.
(2) Sanctions by Court in Which Action is Pending. If a party . . . fails to obey an order to provide or permit discovery .. . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The choice of sanctions to be imposed is largely within the discretion of the trial court. See Ultracashmere House, Ltd. v. Meyer, 407 So.2d 125 (Ala.1981); Weatherly v. Baptist Medical Center, 392 So.2d 832 (Ala.1981).

In this instance, the wife’s failure to comply with a discovery order compelling her to answer the interrogatories could have subjected her to sanctions “such as contempt, exclusion of claims, defenses or evidence, stays, and default judgments.” Committee Comments to rule 37, ARCP.

We find it was within the trial court’s discretion to sanction the wife by temporarily relieving the husband from making payments of periodic alimony. We find, however, that the trial court erred in sanctioning the wife by temporarily relieving the husband from making payments of the life insurance policies.

As discussed above, an award of periodic alimony is modifiable under section 30-2-55. Conceivably, the trial court in this action could have sanctioned the wife by entering a default judgment, resulting in a permanent termination of the payments of periodic alimony. The trial court had the discretion to choose a less drastic sanction, and we find no error in the trial court’s decision to temporarily halt the payment of periodic alimony.

We have noted, though, that the award of the two life insurance policies to the wife is an award of alimony in gross and/or a property division. Such an award, as indicated, is not subject to section 30-2-55. Because the trial court no longer had any authority to terminate the award of the life insurance policies on the merits of the action, we find it had no authority to terminate the award as a discovery sanction under rule 37(b)(2). Even the most drastic sanction, a default judgment, would in this case have left the award of alimony in gross and/or a property division unaffected.

IV

The wife’s final contention on appeal is that the trial court erred in failing to consider her motion for recusal.

Shortly before the trial, the wife wrote her attorney stating that she would like Judge Green, the trial judge, to recuse himself. The wife said in this letter that she felt the Honorable trial judge had exhibited bias or prejudice by making disparaging remarks against the wife.

An unsworn copy of the wife’s letter was attached to the wife’s motion to recuse. The record is devoid of any affidavit or legal evidence in support of this motion. No ruling on the motion for recusal appears in the record, but we note that Judge Green did preside at the modification proceeding.

We find there is no issue here presented for appellate review. As this court stated in Parsons v. Parsons, 337 So.2d 765, 770 (Ala.Civ.App.1976), in discussing a recusal issue:

There is a “substantial burden” on a party alleging bias to show grounds therefor. Street v. Hutto, 46 Ala.App. 324, 241 So.2d 848. Where such a party does not meet this burden by legal proof or affidavit, but merely rests upon an allegation, there is insufficient matter for our review. Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461. We accordingly cannot consider appellant’s contention of bias.

The lack of any competent evidence, or offer thereof, or an affidavit supporting the wife’s motion for recusal precludes, in this instance, this court from now considering the issue on appeal.

The wife has requested an attorney’s fee for representation on appeal. A fee of $350 is awarded. We would be remiss in not commenting upon the excellent oral presentation by counsel for the husband.

We find this action is due to be affirmed in part, reversed in part, and remanded for entry of an order not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

All the Judges concur.


author: PER CURIAM.

text:
    CONGRESS FINANCE CORPORATION v. Kenneth FUNDERBURK.
    Civ. 3098.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      C. Kerry Curtis of Curtis & Curtis, Phe-nix City, for appellant.
    Robert P. Lane of Phillips & Funderburk, Phenix City, for appellee.
   PER CURIAM.

The Circuit Court of Russell County permanently enjoined the appellant, Congress Finance Corporation, from executing on a judgment or selling a 1977 Dodge van at a sheriff’s sale. The trial court ordered the sheriff to release the van to the custody of the appellee, Kenneth Funderburk. Congress Finance appeals and we reverse.

A review of the record reveals the following pertinent facts. Diane Funderburk, sister-in-law of the appellee, stated that she bought the 1977 Dodge van from a private individual in the summer of 1976. Diane’s husband, the appellee’s brother, testified that Diane bought the van in May or June of 1977. Diane financed the van through the First Alabama Bank. Diane’s promissory note with First Alabama Bank dated July 11, 1977, was admitted into evidence. A certificate of title issued to Diane shows the date of purchase to be July 11, 1977 with First Alabama Bank as the sole lien-holder. First Alabama Bank retained possession of the certificate of title.

The appellee testified he bought the van from his sister-in-law, Diane, and gave her a bill of sale on July 1, 1977. The bill of sale states the van was subject to the above referenced lien with First Alabama Bank.

Diane never endorsed or gave the appel-lee a certificate of title. An officer from First Alabama Bank stated that no one ever requested the certificate of title be changed to show a new owner. A 1982 tag receipt showed Diane to be the registered owner of the van, although Diane’s husband signed the receipt as applicant for the tag.

In December, 1977, Diane filled out a loan application with appellant Congress Finance. In this application, Diane stated that she was the owner of a 1977 Dodge van financed through First Alabama Bank. After verifying this information with First Alabama Bank, Congress Finance loaned Diane $700 and took a security interest in some miscellaneous household goods.

When Diane defaulted on the $700 loan, Congress Finance obtained a judgment against her in July, 1978. In June, 1981, an execution was issued against the Dodge van that Diane had listed on her loan application with Congress Finance.

The appellee petitioned the trial court to enjoin the sheriff’s sale. The appellee alleged in his petition that he had purchased the van from Diane on July 1,1977 and that the van had been used by the appellee and his brother in the appellee’s business. In requesting the injunction, the appellee alleged that Diane’s debt with and the judgment in favor of Congress Finance had arisen after Diane had sold the van to the appellee. Since Diane no longer owned the van, the appellee contended in his petition that Congress Finance could not execute on the van.

The trial court held an ore tenus hearing to consider the appellee’s petition for in-junctive relief. After the hearing, as indicated, the trial court entered an order permanently enjoining Congress Finance from executing on or selling the van.

On appeal, Congress Finance contends that the trial court erred in ordering the injunction.

Congress Finance first argues that the trial court erred as a matter of law in finding that Diane did not own the van. Specifically, Congress Finance contends that a certificate of title to a vehicle must be transferred in compliance with section 32-8-44, Code of Ala. 1975, for the sale to be valid against third parties. Since there had been no transfer of title to the appellee, Congress Finance contends that Diane, rather than the appellee, was the owner of the van.

Congress Finance’s second contention is that the trial court’s finding that Diane was not the owner of the van was against the great weight and sufficiency of the evidence.

The Alabama legislature enacted the Uniform Certificate of Title and Antitheft Act in 1973. §§ 32-8-1 to -87, Code of Alabama 1975. One purpose of the act is to frustrate the possession and disposition of stolen motor vehicles in the state. State v. Spurlock, 393 So.2d 1052 (Ala.Cr.App.1981). The act also provides a means for interested parties to ascertain essential information concerning title to vehicles. See Nationwide Insurance Co. v. Bank of Forest, Forest, Mississippi, 368 So.2d 1273 (Miss.1979).

The general provision governing the transfer of motor vehicles, section 32-8-44, provides:

(a) [I]f an owner transfers his interest in a vehicle, other than by the creation of a security interest, he shall, at the time of the delivery of the vehicle, execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate or as the department prescribes, and cause the certificate and assignment to be mailed or delivered to the transferee or to the department.
(b) Except as provided in this section, the transferee shall, promptly after delivery to him of the vehicle, execute the application for a new certificate of title in the space provided therefor on the certificate or as the department prescribes, and cause the certificate and application to be mailed or delivered to a designated agent.
(c) Upon request of the owner or transferee, a lienholder in possession of the certificate of title shall, unless the transfer was a breach of his security agreement, deliver the certificate to the transferee. Upon receipt of the certificate the transferee shall make application to a designated agent for a new certificate. The delivery of the certificate does not affect the rights of the lienholder under his security agreement.
(d) If a security interest is reserved or created at the time of the transfer, the certificate of title shall be retained by or delivered to the person who becomes the lienholder and the parties shall comply with the provisions of section 32-8-62.
(e) Except as provided in section 32-8-45, and as between the parties, a transfer by an owner is not effective until the provisions of this section have been complied with.

The Alabama Certificate of Title Act is only applicable to 1975 model year vehicles and all models subsequent thereto. § 32-8-30, Code of Ala.1975;

Eleven Automobiles v. State ex rel. Graddick, 384 So.2d 1129 (Ala.Civ.App.1980). The 1977 Dodge van involved in the instant action falls within the purview of this legislation.

We cannot agree with Congress Finance’s initial contention that the appel-lee’s failure to effectuate a transfer of the certificate of title in accordance with section 32-8-44 rendered the sale void.

There are no Alabama cases interpreting section 32-8-44 stating that the failure to comply with the statute precludes a buyer from asserting title against a third party such as Congress Finance.

In other jurisdictions with statutes substantially similar to our own, we can find no decisions to support Congress Finance’s contention that noncompliance with the statute renders the transfer of a vehicle void as to third parties. Uniform Motor Vehicle Certificate of Title and Anti-Theft Act § 14, 11 U.L.A. 441 (1955). The trial court in this action under these facts was not required to find, as a matter of law, that Diane still owned the van even though the certificate of title was still in Diane’s name.

We find, therefore, that section 32-8-44 does not provide an exclusive method of transferring ownership. For example, nondelivery of a certificate of title does not prevent, as between the parties, the passage of title from the seller to the buyer. Wood Chevrolet Company v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Likewise, depending upon the circumstances, it appears that a transfer may be effective as to third parties, such as Congress Finance, notwithstanding the parties’ failure to transfer the certificate of title. See, e.g., Matter of Emergency Beacon Corp., 665 F.2d 36 (2d Cir. 1981). To hold otherwise would, in effect, render a certificate of title the absolute evidence of ownership regardless of the circumstances. The statute does not mandate such a conclusion.

We agree, however, with Congress Finance’s second contention that the trial court’s findings were against the great weight and sufficiency of the evidence. In a majority of jurisdictions with some form of a motor vehicle title act, a certificate of title establishes prima facie title in the person whose name appears on the certificate. 14 Blashfield Automobile Law and Practice § 467.54 (3d ed. 1969).

The certificate of title to the Dodge van in the instant case remained in Diane’s name. Therefore, the burden was on the appellee to rebut the prima facie evidence established by the certificate of title indicating that Diane was still the owner of the van. § 32-8-39(d), Code of Ala.1975. See Government Employees Insurance Co. v. Fulmer, 376 So.2d 748 (Ala.Civ.App.1979).

We find the appellee did not adequately meet his burden of contradicting the prima facie evidence of ownership remaining in Diane. The appellee merely produced a bill of sale and a 1982 tag receipt signed by the appellee’s brother, but which still listed Diane as the registered owner. The only other evidence supporting the appellee’s claim was his testimony, along with the testimony of the appellee’s brother and Diane, that the appellee had bought the van on July 1, 1977.

In City Car Sales, Inc. v. McAlpin, 380 So.2d 865 (Ala.Civ.App.1979), cert. denied, 380 So.2d 869 (Ala.1980), we held that a bill of sale and a license registration would not contradict a valid certificate of title. Similarly, under the facts before us on appeal, it does not appear that the bill of sale, the tag receipt, and the testimony of the appellee and his witnesses contradict the prima facie evidence established by the certificate of title showing Diane to be the owner of the van.

We further note that the prima facie evidence of title remaining in Diane is bolstered by other evidence presented at trial by Congress Finance. Diane was the registered owner listed on the 1982 application for a license tag. Diane was listed as the named insured on a notice for reinstatement for automobile insurance on the van in 1979. A witness from First Alabama Bank testified that Diane personally made payments on the van during 1981.

We find on the instant facts that the trial court erred to reversal in determining that Diane was not the owner of the van. Put another way, the trial court’s finding that Diane was no longer the owner of the van was against the great weight and sufficiency of the evidence.

Accordingly, we reverse the learned trial judge’s order enjoining Congress Finance from executing on or selling the 1977 Dodge van.

This case is due to be reversed and remanded for entry of a judgment not inconsistent with the foregoing.

REVERSED AND REMANDED.

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


text:
    Carolyn G. MULLINS v. Charles R. MULLINS.
    Civ. 3134.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellant.
    Charles E. Shaver, Jr. and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

The wife filed a complaint for a divorce a vinculo martimonii and requested pendente lite alimony, child support, suit money and attorney’s fees. After a hearing the trial court issued a pendente lite order granting custody of the parties’ minor daughter to the wife and awarding the wife alimony and child support. The wife was awarded the right to occupy the parties’ jointly-owned residence and the husband was required to keep in force medical insurance for the benefit of the wife and minor daughter. The husband thereafter answered and counterclaimed for divorce. The wife amended her complaint to ask for a divorce a mensa et thoro instead of a vincu-lo matrimonii. After an ore tenus hearing the trial court issued a final decree. The decree made the following provisions: (1) granted a divorce a mensa et thoro; (2) awarded custody of the minor daughter to the wife; (3) gave each party his or her own personal effects and awarded the household furnishings to the wife; (4) ordered that the husband pay $50.00 per week child support and $50.00 per week alimony, “until October 24, 1984 at which time child support payments shall cease”; (5) ordered that the residence of the parties be sold within a reasonable period of time after October 24, 1984, and the proceeds divided equally between the parties; (6) awarded an attorney’s fee to the wife in the total amount of $1,558.70; (7) awarded the wife a 1973 Monte Carlo Chevrolet automobile; (8) ordered the husband to pay the wife’s current medical bill in the amount of $297.00; (9) divided the parties’ four cemetery lots equally between the parties; and (10) ordered that “The husband shall maintain the wife’s medical insurance until this divorce is final.” The wife appeals to this court contending that the trial court abused its discretion in its award of periodic alimony and alimony in gross. She requests an attorney’s fee for this appeal.

The record reveals the following pertinent facts: The parties have been married approximately twenty-six years. Of the three children born of the marriage, the daughter, Judy, was still a minor at the time of the trial. She will reach her majority on October 24, 1984. The husband was forty-eight years old at the time of the trial and employed as a market manager at Huntsville Coca Cola Company. In addition to his weekly gross salary of $414.00, the husband is furnished the use of an automobile for business purposes, gets vacation pay and a Christmas bonus. His company provides a retirement plan and medical insurance. The husband is in good health.

The wife was forty-five years old at the time of the trial. Her formal education did not continue past the tenth grade. She has obtained a GED. The wife’s work experience has included four or five years in the spinning room at Huntsville Manufacturing Company, two years at the Lee High School cafeteria, one summer’s employment at J. C. Penney’s, seven years babysitting, and nine years selling Mary Kay Cosmetics. The wife’s income in 1980 was approximately $46.00 per week. Her income in 1981 was approximately $52.80 per week. For the past four or five years the wife has suffered from rheumatoid arthritis. At trial the parties stipulated that the wife will not be able to exceed her previous earnings and in all probability will earn less in the future. An employment expert testified that the wife has little or no employability potential. The wife’s monthly expenses are approximately $584.45. In addition she estimated annual expenses at $1,810.00 and incurs approximately $750.00 a year for trips to Washington for therapy. The cost of prescription and non-prescription medicines is approximately $100.00 per month.

The first issue raised by the wife on appeal is whether the trial court abused its discretion in the amount of periodic alimony awarded.

We review judgments entered by the trial court after oral hearing with a presumption of correctness. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980). Awards of periodic alimony in a divorce case are within the sound discretion of the trial court and will not be reversed unless the record indicates a clear and palpable abuse of that discretion. Rose v. Rose, 395 So.2d 1038 (Ala.Civ.App.1981). In determining the proper amount of alimony the factors to be considered include the future prospects of the parties, their ages, health, station in life, the length of the marriage, in appropriate cases the conduct of the parties as regards the cause of the divorce, the needs of the recipient and the ability of the other to pay. Hurd v. Hurd, 397 So.2d 133 (Ala.Civ.App.1980), cert. denied, 397 So.2d 135 (Ala.1981).

The conduct of the husband, as revealed by the record, shows a marked indifference and callous disregard for the wife’s health problems. The husband does not believe the wife is as ill as she claims. He admits to seeking the company of another woman and living openly with her in the presence of his daughter. Such conduct may properly be considered in determining an award of alimony. Clearly the wife is in need of greater support than $50.00 per week. In view of the husband’s earnings, however, and his current additional responsibility to pay $50.00 per week in child support, we cannot say that the alimony award constitutes a clear abuse of discretion. We note that alimony in divorce from bed and board may be modified upon a showing of a material change in circumstances as in the case of absolute divorce. Adair v. Adair, 258 Ala. 293, 62 So.2d 437 (1952). Cessation of the husband’s responsibility to pay child support in October 1984 might be viewed as a circumstance affecting his ability to pay alimony should the wife seek a modification at that time.

The wife expresses concern that the provision in the decree for alimony and child support may be construed to mean that alimony ceases at the time child support ceases. Her concern is without support. We consider the provision allowing cessation of child support in October 1984 has no effect on the payment of alimony.

The second issue on appeal is whether the trial court erred in its award of alimony in gross or division of property. In addressing this issue, we are confronted with an unusual situation. We have previously disclosed that plaintiff sought and was awarded a divorce a mensa et thoro (in statutory language, a divorce from bed and board). It has long been the case law of this state that such a divorce does not remove the vinculum of the marriage. Ellison v. Mayor, 53 Ala. 558 (1875). The legal effect of such divorce is to permit the parties to live apart but to preserve to the wife her right of dower interest in the husband’s estate, the right to share and participate in the division of his personal estate, if she survives him, and to have a homestead or an allowance in lieu thereof. McLendon v. McLendon, 277 Ala. 323, 169 So.2d 767 (1964); Adair, supra. (In view of recent gender neutral decisions and amendments to that end to our divorce statutes, it may be contended that such legal effect extends to both husband and wife.)

Our courts have said that a property division or alimony in gross is a final, non-modifiable settlement of all equities between the parties derived from or growing out of the marriage relationship. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). It must reasonably follow, therefore, that such a remedy is not available to the court in the granting of a limited divorce from bed and board. Adair, supra.

In this case, the wife, though alleging joint ownership of a home with her husband, did not seek the sale and division of it, but only sought the right of occupancy for herself and her minor child. By seeking only a limited divorce, it may be presumed that the wife did not wish to extinguish her marital rights in the estate of her husband. The record indicates that she believed that an absolute divorce would terminate her coverage under the husband’s health insurance. She was probably correct.

The unusual aspect of the case is that the wife has not raised as an issue on appeal any error in the decree of the court other than an abuse of discretion in the awards of periodic alimony and alimony in gross. It is a general rule of appellate review that no matters will be considered on appeal unless presented and argued in brief. McNeill v. McNeill, 332 So.2d 387 (Ala.Civ.App.1976). This court therefore will not consider the order for the sale of the home and equal division of the proceeds therefrom as cause for reversal. We have set out these matters above for the information of the parties and the trial court. For further edification as to possible claims of homestead in the future, at least, if the sale precedes further decretal disposition in an absolute divorce, we cite McLendon, supra; Drake v. Drake, 262 Ala. 609, 80 So.2d 268 (1955); Adair, supra.

It is our opinion that the sale of the home and equal division of the proceeds therefrom, as ordered, is not so erroneous as to be termed a gross abuse of discretion, though it might be said that it takes nothing from the estate of the husband. The standard of our review is not what we ‘ might have done if sitting nisi pruis, Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). We do not therefore reverse on that issue.

The wife contends for construction of the final sentence of the decree. That sentence is, “The husband shall maintain the wife’s medical insurance until this divorce is final.”

We admit to some quandary as to the intent of the reference to “until this divorce is final.” It is certain that the decree for divorce from bed and board was final on the date it was signed by the judge. Otherwise it would not be here on appeal. Searcy v. Searcy, 242 Ala. 129, 5 So.2d 97 (1941). Certainly the learned trial judge knew his judgment was final as to all issues then presented. Therefore it may be surmised that he had in mind a final absolute divorce obtained under § 30-2-2, Code (1975). However, the construction of that sentence is not properly before us. The question of construction and meaning of its decree should have been presented to the trial court by motion under Rule 59, A.R. C.P. Not having been so presented, we do not consider it now properly before us.

Attorney fee requested by the wife on appeal is denied.

The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Estimated expenses do not include medical expenses covered by the husband’s medical insurance.


text:
    Joseph D. GLENN v. The KENT CORPORATION.
    Civ. 3153.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      F. Raymond Ingram, Birmingham, for appellant.
    John W. Clark, Jr. and Michael B. Maddox, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Employee, Joseph D. Glenn, was working at a plant owned by his employer, the Kent Corporation, on March 5, 1980 when he allegedly fell and injured his back while trying to move a four hundred and fifty pound drum. Employee notified the corporation of his accident, complaining of a disabling pain in his back, and he was subsequently sent to be examined by the company doctor. The employer notified its insurance carrier of the accident, and the carrier began to pay temporary total disability benefits to employee.

The company doctor, after examining employee, was unable to find a medical reason for employee’s alleged pain. Employee was thereafter referred to a group of orthopedic surgeons for further tests. The orthopedic surgeons, after extensive testing and hospitalization of employee, were also unable to find anything medically wrong with employee, and on May 20, 1980 one of the surgeons issued a “return to work” slip to employer, stating that in the doctor’s judgment employee had received the maximum medical benefit from that group of doctors, and could return to work.

When the insurance carrier received notice of the “return to work” slip issued by the doctor, it discontinued the compensation benefits. Employee thereafter instituted suit in the Jefferson County Circuit Court in January of 1981, claiming additional temporary total disability benefits and/or permanent total disability benefits. Employee continued to see additional doctors in an attempt to discover the medical reason behind his pain. The record indicates that prior to and during the course of the suit for compensation, employee was examined by at least nine doctors, ranging from general practitioners to orthopedic surgeons to psychiatrists. None of these doctors could find anything medically wrong with employee. Employee nevertheless claims that since the date of his accident his pain and disability have gotten steadily worse, and as a result he cannot hold a job.

The circuit court found in favor of the employer, denying employee’s claim for additional workmen’s compensation benefits. The circuit court noted that there was “a serious question as to whether or not the plaintiff did suffer an injury by accident which arose out of and in the course of his employment,” but found that this was “not dispositive of the issues in this case in that the testimony as presented does not satisfy the burden of establishing any loss of earning capacity.” Employee appeals from that decision.

Employee initially contends that the trial court erred to reversal in failing to make a finding as to whether employee’s alleged injuries arose out of and occurred in the course of his employment. It is a settled rule that the trial court has a duty to make a finding on each issue presented and litigated before the court, and that failure to do so requires reversal. Harbin v. United States Steel Corp., 356 So.2d 179 (Ala.Civ.App.1978). The question of whether the employee suffered a work-related injury was presented to the trial court for decision and the trial court failed to find as a fact that the employee had incurred a work-related injury. The failure to so find does not, however, require a reversal of this case.

The trial court held that the dispositive issue in the case was the failure of the employee to establish “any loss of earning capacity.” And, this court will not reverse the trial court for a ruling which could not have legally affected the result of the trial. Clevenger v. State, 369 So.2d 563 (Ala.Civ.App.1979). A finding as to whether employee’s injuries were work-related would not have affected the decision of the trial court, given its finding that employee had not proven any loss of earning capacity. Employee would not be entitled to any compensation benefits in either case.

In reviewing workmen’s compensation awards, this court is limited to a determination of whether there is any legal evidence, or reasonable inferences therefrom, to support the facts as found by the trial court. If those findings are supported by any legal evidence, they shall be conclusive and will not be disturbed on appeal. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974).

The trial court found that employee was not entitled to additional temporary disability benefits or to permanent disability benefits, based on a lack of proof as to employee’s loss of earning capacity. Proof of loss of earning capacity is necessary to entitle employee to compensation benefits under Alabama’s workmen’s compensation statute, with the exception of those scheduled disabilities found in § 25-5-57(a)(3), Code 1975. See Defense Ordinance Corp. v. England, supra; § 25-5-57(a)(3)(g) and -57(a)(4)(d), Code 1975.

Employee candidly admits that none of the doctors who have examined him have been able to find any medical reason for his alleged back and leg pains. No evidence has been presented as to any psychiatric problems as the basis for employee’s symptoms. Employee continues to complain of debilitating back pains, but at least one group of doctors who examined employee was of the opinion that he could return to work. The court’s decision is further supported by the testimony of Larry Foster, a supervisor for the Kent Corporation, who stated that he had seen employee walking and moving normally just prior to the date of trial.

Based upon the above evidence, we are of the opinion that the trial court’s denial of employee’s request for additional temporary total benefits and permanent disability benefits must be upheld.

AFFIRMED.

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