author: WRIGHT, Presiding Judge.

text:
    Alva Mae JOHNSON and Randal Jones v. Claude KERSH, Jr.
    Civ. 2242.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1980.
    Rehearing Denied Dec. 17, 1980.

      Allan R. Chason of Chason & Chason, Bay Minette, for appellants.
    Fred K. Granade of Stone, Partin & Gra-nade, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

Judgment upon jury verdict was entered for plaintiff against defendant Johnson for breach of a rental agreement and breach of an implied covenant of quiet enjoyment and against defendant Jones for trespass and wrongful interference with business.

The evidence tended to show the following: Plaintiff had an agreement with the husband of defendant Johnson to farm, on halves, twenty-five acres of land owned by Johnson. The husband died in late 1977. In March 1978 plaintiff and Johnson entered into an oral agreement for renting of the land at a rental of $25 per acre. Plaintiff entered on the land and planted a crop of soybeans. He paid the rent in July 1978. He harvested the soybeans and planted a crop of oats in the fall of 1978.

On February 23, 1979, Johnson came to plaintiff’s home and inquired if plaintiff wished to again rent the land. Plaintiff stated that he did, but that he would not have the money to pay the rental until he harvested the oat crop then growing. Johnson responded that if he did not then have the money, she guessed she would have to wait to be paid the rent. She then presented to plaintiff a written document which she had brought with her and which she called a lease agreement. She requested plaintiff to sign it. Plaintiff signed it. That document is as follows:

Rent for land on 25 acres from January 1, 1979 until December 31, 1979. Twenty-five acres of farmland. Twenty-five dollars an acre. Six hundred and twenty-five dollars.

Plaintiff immediately thereafter purchased seed, at a cost of $275, with which to plant a soybean crop on the land after the oats were harvested in the spring of 1979. He had limed the land, prior to planting the oats, with $500 worth of lime in expectation of planting a soybean crop after the oats came off.

In March 1979 Johnson decided to sell her homeplace including the rented land. Without informing plaintiff, Johnson entered into a contract for sale of the land to defendant Jones on April 21, 1979. The contract provided possession be given Jones when the oat crop was harvested. Jones was aware that the oats were plaintiff’s. He thereafter learned that plaintiff claimed a lease of the twenty-five acres with the right to grow a soybean crop after the oats were harvested. Jones and Johnson discussed with plaintiff settlement of his claimed lease.

In May 1979 plaintiff harvested his oats and plowed the land in preparation for planting soybeans. Johnson informed Jones he could have possession. With knowledge of plaintiff’s claimed lease and his preparation of the land for planting, Jones entered on the land and planted his own soybeans. The contract of sale between defendants remained executory at the time. In June 1979 plaintiff brought his suit against defendants.

After trial the jury found in favor of plaintiff on all causes of action presented to them. Verdict and damages were: breach of contract — $2,500; breach of covenant for quiet enjoyment — $2,000 against defendant Johnson; trespass — no damage; wrongful interference with plaintiff’s business— $4,000 against defendant Jones.

Defendants charge error in the court’s instruction to the jury in seven instances. The first we consider is the objection to the court’s charge as to the defendant’s defense of the statute of frauds.

The record indicates that the court gave defendant’s only written requested charge upon the statute of frauds. The court then gave defendant’s second requested charge with amplification, stating that the written memorandum prepared by defendant Johnson and signed by plaintiff and allowed in evidence was not sufficient as a matter of law to constitute a written contract under the statute of frauds. The jury was thus directed to consider only whether there was an oral contract between plaintiff and Johnson and whether that contract by its conditions was to be performed within one year. By way of attempted explanation of whether an oral contract would come within or without the statute of frauds, the court made additional remarks. Defendant objected to these remarks, stating they were erroneous and misleading and not in conformity with the statute.

Though the remarks were not in the exact words of the statute, they were not contrary to it nor to defendant’s requested charge already given by the court. Neither were the remarks misleading when considered in light of the evidence and the entire oral charge. When considering charged error in instructions by the court to the jury, this court looks to the entire charge. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975); Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974). We find reversible error only if the charge is prejudicial when viewed in its entirety. Beltline, Inc. v. Powell, 371 So.2d 920 (Ala.Civ.App.1979). We find no such prejudice in this instance.

Defendants charge error in the instruction of the court as to the measure of damages allowable to plaintiff for breach of a rental agreement if the breach prevented the anticipated planting and growing of a crop.

Defendants correctly contend that the written charge requested by plaintiff is a variation of charge 11.27, Alabama Pattern Jury Instructions at 176. That charge in the accompanying “Notes on Use” is directed to be used only with respect to damage or destruction of growing crops. There is no pattern jury instruction as to the measure of damages for prevention of growing anticipated crops. The charge given was an attempt to vary APJI 11.27 to fit the evidence presented in this case. That evidence was an attempt to show the loss of the value of the anticipated crop by showing a comparable crop actually planted, harvested and marketed. The effect of such a charge, if properly stated, would be to set the measure of damages for the loss of the benefit of a lease of land when the anticipated crop was unplanted to be the loss of anticipated profits. Defendant is correct in contending that such is not the proper measure of damages in such cases.

The case of Snodgrass v. Reynolds, 79 Ala. 452 (1885) established, after extensive discussion of the principles involved, that the measure of damages for the anticipated loss of crops which a lessee is prevented from planting is the reasonable rental value of the land for the term of the lease, less any rent reserved or unpaid. The case of Tyson v. Chestnut, 118 Ala. 387 (1897) is in accord as is the majority of other states. 41 A.L.R.2d 1414; Lamkens v. International Harvester, 207 Ark. 637, 182 S.W.2d 203 (1944); Jay Clutter Custom Digging v. English, 393 N.E.2d 230 (Ind.App.1979); Franklin Drilling Co. v. Jackson, 202 Okl. 687, 217 P.2d 816 (1950); Sullivan v. Wire, 307 S.W.2d 704 (Mo.App.1957). It is therefore clear that the trial court erred in giving plaintiff’s requested charge number three.

It is to be noted that it is made evident by many of the cases cited, including Snodgrass, and though anticipated profits from the unplanted crop of soybeans is not the proper measure of damages, either in an action for breach of contract or an action for breach of an implied covenant for quiet enjoyment (the measure of damages is generally the same in such actions), it is permissible to show probable yield of the leased land by comparison with known yields and profits from crops grown on comparable lands under comparable circumstances. Such evidence is not necessarily accepted as a basis for recovery of profits as damages, but facts from which the jury might draw a conclusion as to the value of the lease. Evans v. Newsome, 56 Ala.App. 651, 324 So.2d 791 (1975); Snodgrass, supra.

Thus defendants’ objection to the admission of evidence relating to the yield and profits made by plaintiff from soybeans planted on similar land nearby in the year 1979 were not well taken per se. We find no error in overruling the objections as they were made in this case. Had the court not given the incorrect charge as to the measure of damages, such evidence could have been available for consideration by the jury in determining the value of the lease. It would have been evidence tending to establish the fact sought to be proved. That is the test of relevance. International Agricultural Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549 (1913); Evans v. Newsome, supra.

We consider the remaining issues presented by defendant relative to the oral charge of the court were not properly preserved for review under Rule 51, ARCP. Odom v. Lindsay, 365 So.2d 664, 666 (Ala. 1978); Leavell v. Nolin, 342 So.2d 1323 (Ala. Civ.App.1972). Further discussion of those issues is unnecessary in view of our decision for reversal. Neither is it necessary to discuss defendant’s complaint that the verdict of the jury is not supported by the evidence.

For the error stated, the verdict and judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex Parte Claude KERSH, Jr. (Re Alva Mae JOHNSON et al. v. Claude KERSH, Jr.).
    80-204.
    Supreme Court of Alabama.
    March 26, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Jerry L. FREEMAN v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.
    Civ. 2418.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    Rehearing Denied Jan. 21, 1981.

      Mary Lil Owens of Wilson, Bolt, Isom, Jackson & Bailey, Anniston, for appellant.
    Herbert D. Jones, Jr. of Burnham, Kline-felter, Halsey & Love, Anniston, for appel-lee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from an order of the Circuit Court of Calhoun County granting the defendant’s motion for directed verdict on plaintiff’s insurance claim. We reverse.

The record before us reveals the following: On November 2,1978, as plaintiff was leaving work at the Anniston Army Depot, his car was struck from the rear by a vehicle driven by an uninsured motorist. In this accident plaintiff allegedly suffered damage to his car and injury to his neck and shoulder. At the time of the occurrence plaintiff had a policy of auto insurance with Alabama Farm Bureau Mutual Insurance Company (Farm Bureau).

After contacting his Farm Bureau agent, which contacts we will discuss later, and receiving no compensation for the loss sustained, plaintiff filed suit against Farm Bureau on October 25, 1979. Plaintiff sought $299.71 in connection with damages to his automobile and $10,000 damages for personal injury pursuant to uninsured motorist coverage. The case proceeded to trial before a jury on May 6,1980. At the close of the plaintiff’s case, Farm Bureau moved for a directed verdict on plaintiff’s uninsured motorist claim, stating as grounds failure to report his injury as required by the policy. The court entered judgment for the plaintiff in the stipulated amount of $199.50 on the collision claim and granted Farm Bureau’s motion as to the uninsured motorist claim “due to unreasonable notice to the defendant of said occurrence and claim.”

It is axiomatic in ruling on a motion for directed verdict that the trial court, if there is a scintilla of evidence supporting the party against whom such a motion is made, must deny the motion. Moreover, when a directed verdict is requested, all evidence before the court must be viewed in a light most favorable to the non-moving party. O'Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App.1977); 18 A Ala. Dig., Trial, Key Nos. 139.1(8) and 178. In light of this rule, we think the primary issue on appeal to be whether the evidence produced by plaintiff at trial furnished a scintilla in support of his claim for uninsured motorist coverage.

The trial court granted defendant’s motion “due to unreasonable notice to the Defendant of said occurrence and claim.” The policy contained the following provision regarding uninsured motorist coverage:

17. Proof of Claim: Medial Reports
As soon as practicable, the insured or other person making claim shall give to the company written proof of claim ... including full particulars of the nature and extent of the injuries, treatment, and other details.... (Emphasis ours.)

The term “as soon as practicable” has been generally construed to mean that notice or proof of claim must be given “within a reasonable time” in view of the facts and circumstances of the particular case. State Farm Fire and Casualty Co. v. Hartford Accident and Indemnity Co., 347 So.2d 389 (Ala.1977). In the present case plaintiff did not strictly comply with the provision requiring written proof of claim until September 24, 1979, some ten and one-half months after the accident. In Alabama the length of delay in giving notice of an occurrence to an insurer is only partially determinative of reasonableness, the other factor to consider being the reason for such delay. Aetna Insurance Co. v. Spring Lake, Inc., 350 So.2d 397 (Ala.1977). There can be little argument that a delay of ten and one-half months is unreasonable, absent extenuating circumstances. Southern Guaranty Insurance Co. v. Thomas, 334 So.2d 879 (Ala.1976).

Plaintiff introduced letters from his attorney to the agent of defendant written in June 1979, informing her of the fact and date of an accident and resulting injury to plaintiff requesting copy of the policy then in force and the amount of uninsured motorist coverage in the policy. It was stipulated that the letters were received in the agent’s office and responded to by her secretary or some person in the office. The letters were returned by the agent or her employee with appropriate hand-written notations on them with the requested specimen copy of plaintiff’s policy.

Plaintiff also testified that he visited the agent’s office within a month or six weeks after the accident and told her personally that he had been in an accident with an uninsured motorist and that she would have to take care of it. The agent said, “You have been having trouble,” and returned to her work without further inquiry. Plaintiff further said that oral notice given to the agent in the same manner had resulted in contact from and payment of claims by defendant’s adjuster in two instances of loss previous to the instant one and on one claim subsequent, the latter being damage by an uninsured motorist.

We do not hold that the letters in June were either sufficient or reasonable notice as a matter of law. Neither do we hold the oral statement by plaintiff to the agent within a month or six weeks to be sufficient notice. We do consider that the letters, which indicated loss of the policy and lack of knowledge of its contents, including notice provisions, together with the evidence of prior acceptance of oral notice, standing without contradiction or explanation, provided a scintilla which made the directed verdict erroneous. Where there is evidence of extenuating circumstances and reason for delay upon which reasonable men might differ, the question of reasonable notice becomes an issue for the jury. State Farm Fire and Casualty Co. v. Hart ford Accident and Indemnity Co., supra; American Liberty Insurance Co. v. Soules, 288 Ala. 163, 258 So.2d 872 (1972).

Plaintiff further contends that the policy notice provisions were waived by the defendant through its course of conduct in accepting and paying other claims of plaintiff.

Generally, a provision of an insurance policy requiring the filing of a written claim or notice may be waived by any act or pattern of conduct by the insurer or its authorized agents which reasonably tends to create a belief in the mind of the claimant under the policy that notice or proofs of loss will be unnecessary. American Insurance Co. v. Millican, 228 Ala. 357, 153 So. 454 (1934); Couch on Insurance 2d, § 49.767 (1965). The question of whether or not the acts of the insurer or its agent invoked a waiver is one for the jury. Phoenix Insurance Co. v. Ross Jewelers, Inc., 362 F.2d 985 (5th Cir. 1966). Equitable Life Assurance Society v. Watts, 230 Ala. 297, 160 So. 713 (1935).

The evidence produced by plaintiff at trial as to prior dealings with Farm Bureau’s general agent was supportive of a waiver. It furnished the scintilla necessary for submission of the issue to the jury. At the time of the directed verdict in this case, there was not even a conflict to the plaintiff’s evidence tending to show waiver. It was error to direct the verdict. Pearl Deal v. Jackson, 362 So.2d 214 (Ala.1978).

Plaintiff complains of reversible error in the refusal of the trial court to permit him to reopen after resting for the purpose of questioning the agent of defendant with whom plaintiff had previously dealt upon claims and to whom plaintiff’s counsel had written concerning the accident. We pre-termit discussion of that and any other issue presented here. They are unlikely to reoccur in the same posture upon retrial.

For error stated, the judgment below is reversed and the case is remanded for another trial.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY (Re Jerry L. FREEMAN v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC.).
    80-315.
    Supreme Court of Alabama.
    March 27, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Augustin Petrus NADREAU v. Verna Williams NADREAU.
    Civ. 2341.
    Court of Civil Appeals of Alabama.
    Jan. 28, 1981.
    Rehearing Denied March 11, 1981.

      Richard L. Taylor, Birmingham, for appellant.
    Jerome Tucker of Newton & Tucker, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a most unusual divorce case. Defendant husband appeals from a judgment granting to plaintiff wife a divorce, custody of a child, and a property settlement. The appeal is unusual in several ways. First, there is no proper transcript of the testimony taken ore tenus before the trial judge. Second, there are voluminous and repetitive filings by the defendant in the clerk’s record totaling over three hundred pages which were never supported by legal evidence. Third, defendant was represented at some phase of the proceedings by at least three attorneys. However, most of the filings were made pro se. No attorney appeared for defendant at trial though a continuance was granted for that purpose via a pro se request. Defendant attempted to use his son as his representative at trial. Fourth, defendant is incarcerated in a Canadian prison after conviction for drug smuggling. Fifth, defendant is a Haitian National. He was in prison and a non-resident of Alabama at time of service of the complaint, yet he appeared by answer-cross-complaint and a third-party complaint without contesting his in-personam jurisdiction.

Defendant, though permitted a forma pauperis appeal, is represented by counsel who has filed in this court what he entitles Brief and Argument containing some eighty pages. Much of this instrument (thirty-two pages) is termed a statement of facts. This “statements of facts” is nothing more than “allegations” contrived from the pleadings filed by defendant and is unsupported by any evidence presented at trial. This material is not for this court’s consideration, any more than it was for the trial court’s consideration. Allegata without probata is nothing. Wilson v. Crosby Lumber Co., 386 So.2d 1173 (Ala.Civ.App.1980). A case is not tried upon allegations, even if in form of affidavits, but upon evidence presented from the witness stand and subject to cross-examination. Defendant made many allegations but defaulted in producing evidence.

The only evidence presented according to the statement of the court in its judgment was presented by the plaintiff. Even that evidence is not properly presented to this court on appeal. There apparently was no reporter present at trial. Defendant has attempted to prepare a statement of the evidence under Rule 10(d), ARAR A statement was prepared by defendant’s son from his recollection. That statement was served upon counsel for plaintiff who objected to it and moved to strike it. The trial court denied that motion and said in its post trial order that the statement was substantially correct as far as it went but that it was incomplete, there having been additional evidence presented. Thus it is clear that the trial court heard evidence not presented to this court. Without deciding whether the evidence produced in the record was properly presented under Rule 10(d) through the recollection of one not a party nor an officer of the court, this court may not reverse a judgment of a trial court which is not contrary to the evidence in the record and which judgment states there was additional evidence heard but not contained in the record. Smith v. Haynes, 364 So.2d 1168 (Ala.1978). It is well settled that evidence heard by the trial court but not present in the record on appeal is presumed to support the judgment of the trial court. Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978); Nunn v. Nunn, 276 Ala. 621, 165 So.2d 704 (1964).

Finding nothing in the record to the contrary, the judgment is conclusively presumed to be supported by the evidence and correct.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Edward S. FREEMAN v. Ralph KELLEY and Jimmy Edwards.
    Civ. 2452.
    Court of Civil Appeals of Alabama.
    March 4, 1981.
    Horace N. Lynn of Piel & Lynn, Montgomery, for appellant.
    Elno A. Smith, Jr., and Jerry L. Cruse, C.P., of Smith & Cruse, Montgomery, for appellees.
   HOLMES, Judge.

The plaintiff sued defendants for negligently allowing a tree to fall on plaintiff’s house. The trial court, sitting without a jury, entered a judgment of $7,500 against the defendant who cut the tree down. The trial court found in favor of defendant-landowner.

The plaintiff appeals, contending the trial court erred in failing to enter judgment against defendant-landowner. We affirm.

The record in pertinent part reveals:

The plaintiff and defendant-landowner own adjoining property. The defendant-landowner allowed defendant-Edwards to come on defendant-landowner’s property to cut timber. Defendant-Edwards paid defendant-landowner approximately $350 for this privilege. While on the property defendant-Edwards cut a tree which fell on the plaintiff’s home causing damage.

The trial court, after an ore tenus hearing, apparently found the defendant-Edwards to be an independent contractor and no negligence on the part of the defendant-landowner. These apparent findings resulted in a judgment in favor of defendant-landowner.

We do not deem it necessary nor prudent to set out in detail the evidence. Suffice it to say it is not a paragon of clarity as to precisely what occurred. There is evidence to support a conclusion that defendant-landowner’s action did not constitute negligence.

Where the evidence is heard orally before the trial court, such as we have in this instance, the finding of the court has the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. See, First Southern Federal Savings & Loan Ass'n of Mobile v. Nicrosi, Ala., 333 So.2d 780 (1976); 2A Ala. Digest, Appeal & Error Key 1008.1(2).

In the instant appeal we find the judgment of the trial court not to be plainly erroneous or manifestly unjust.

This case is due to be affirmed.

AFFIRMED.

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


text:
    George R. CARTER v. James M. CARTER, Acting Director of the Department of Industrial Relations; Goodwill Industries.
    Civ. 2467.
    Court of Civil Appeals of Alabama.
    March 4, 1981.
    Peter J. Meredith, Birmingham, for appellant.
    George C. Cocoris and Harry A. Lyles, Montgomery, for appellee.
   HOLMES, Judge.

This is an unemployment compensation case. The Circuit Court of Jefferson County, after an ore terms hearing, found the employee was not entitled to unemployment compensation benefits. The employee appeals and we affirm.

The dispositive issue is whether the employee’s employment was “covered” by unemployment compensation. Put another way, was the employee's employment within the purview of § 25-4-10(b)(21)d, Code of Ala. 1975 (1980 Cum.Supp.).

Section 25 — 4—10(b)(21)d of Alabama’s unemployment compensation law is as follows:

(b) The term “employment” [for purposes of unemployment compensation] shall not include:
(21) Services performed ...
d. In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market by an individual receiving such rehabilitation or remunerative work[.]

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is revealed: The employee sought employment through the State of Alabama Employment Service. He was referred by the employment service to Goodwill Industries. After an interview, the employee was determined not to be qualified for the job as advertised. The employee was later contacted by Goodwill Industries and offered a different position.

There is evidence that the employee was hired as a “sheltered employee” pursuant to § 25-4-10(b)(21)d, and furthermore, that he met the conditions as indicated by the statute. Specifically, the personnel manager of Goodwill Industries so testified. Thereafter, the employee was discharged and made claim for unemployment compensation benefits.

The employee’s contentions on appeal, as stated in his brief, are: “The key to claimant’s argument is that he was never notified of his status as a ‘sheltered employee’, received the minimum wage, and was held to the work standards of regular employees.”

This court does not find such argument persuasive. The statute does not mandate that if the factors, as indicated above, are present, § 25-4-10(b)(21)d is inoperative.

In any event, it is the law in Alabama that when an unemployment compensation case is heard orally the trial court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Dept. of Industrial Relations v. Lynch, Ala.Civ.App., 370 So.2d 1050 (1979). As indicated, there is ample evidence that the employee was in fact a “sheltered employee” within the purview of § 25-4-10(b)(21)d.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Charles Elton GILLILAND v. Peggy GILLILAND.
    Civ. 2491.
    Court of Civil Appeals of Alabama.
    March 4, 1981.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    Randy H. Beard of Beard & Beard, Gun-tersville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals claiming that (1) the property division disproportionately favors the wife, and (2) the $500 per month child support provision is excessive.

The trial court heard the evidence ore terns, and we view its findings with a presumption of correctness. Johnson v. Johnson, 360 So.2d 996 (Ala.Civ.App.), cert. denied, 360 So.2d 999 (Ala.1978). Division of property and determination of the amount of child support are matters within the sound discretion of the trial court and will not be reversed on appeal except upon our finding a manifest abuse of that discretion. Goodman v. Goodman, 366 So.2d 281 (Ala.Civ.App.1979).

It appears that the parties were cooperatively enterprising and succeeded in accumulating substantial real and personal property. The trial court dealt generously with the wife in its division of assets. However, she was given the custody and the personal responsibility of providing a home and care for the minor children. It is without dispute that the wife handled the funds and accounts of the marriage and worked alongside the husband in making and conserving the marital estate. We perceive no particular benefit in cataloging the assets of the parties and the court’s order of division. It is sufficient that this court finds no abuse of the trial court’s discretion in the division of property nor in its award of child support. Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979). The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Philip Wayne MAYHAN v. Deborah Sue MAYHAN.
    Civ. 2555.
    Court of Civil Appeals of Alabama.
    March 4, 1981.

      Jerry L. Cruse, Montgomery, for appellant.
    Marlin M. Mooneyham, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal involves a post-divorce sale of real estate.

The December 1979 divorce judgment summarily approved and incorporated therein an agreement of the parties which contained the following provisions:

3. The parties agree that the husband shall have the use of the house owned by the parties located at 621 Daffodil Drive, Millbrook, Alabama, and the husband shall be responsible for the mortgage payments due on said property. Should the house be sold, the equity from the sale of the property will be divided equally between the parties.

In August 1980 the former wife filed her petition to modify, which, among other relief, sought the sale of the house and an equal division of the net sale proceeds. She alleged that the former husband no longer resides on the property and that he had threatened to burn the house. The husband’s answer denied such averments. While no witness’s evidence presented at the hearing held by the trial judge appears in the appeal record, from two exhibits which are included in the transcript it appears that the husband on two occasions had listed the property for sale with separate real estate agencies, the last listing being in July 1980. The September 1980 judgment of the circuit court by explicit provisions ordered a sale of the property, and the husband here contends that the trial court was without authority to so adjudge in that the judgment improperly modified a property settlement.

We concur with the husband that a divorce judgment dividing property between the parties is not subject to modification as to such property division on account of changed conditions. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980); Russell v. Russell, 386 So.2d 758 (Ala.Civ. App.1980). However, the 1980 judgment did not modify the 1979 agreement and judgment. The agreement authorized an equal division of their equity in the property should the house be sold and no alteration as to such provision was made by the latest judgment. The agreement was ambiguous since it did not state how, when, by whom or in what manner the house would be sold, and the judgment clarified such matters. By virtue of the agreement of the parties, the court originally had jurisdiction of the property. By operation of law, the circuit court retained jurisdiction for any further judgments which might be subsequently required in order to enforce, implement or make a final disposition of the matter. For the purposes of appeal, the 1979 divorce judgment was final; yet, it was also interlocutory in nature “insofar as necessary to implement or enforce the provisions as to final disposition of the property by sale and division of the proceeds. (Citations omitted).” Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973). In Haney the husband raised the same issue as is here involved and it was there decided contra to him.

On the merits the appeal must, therefore, fail; however, it is necessary to affirm the judgment for an additional vital reason. The contract approved by and incorporated in the judgment of divorce was ambiguous or uncertain concerning the sale of the property, and it was the duty of the court at the last hearing to construe it so as to express the intent of the parties or of the trial judge. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978). Evidence “of facts and circumstances aliunde (from another source) or in pais (outside the record of the contract) may be introduced” to aid the court in construing its true meaning. Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980). None of the testimony is included in the record. Such evidence may have influenced the trial court in reaching its decisions. Under such circumstances, we do not disturb the findings of the trial court but must presume that the evidence was adequate to sustain the judgment. Valley Mining Corporation v. Metro Bank, 383 So.2d 158, 165 (Ala.1980).

We affirm.

Appellee’s request for an attorney fee on appeal is denied. This action brought by the wife is merely for construction of the original decree and sale of property. It does not relate to modification, or enforcement of payment of support or alimony. We therefore deny an attorney fee.

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), Code of Alabama (1975), and this opinion is hereby adopted as that of the court.

AFFIRMED.

ALL THE JUDGES CONCUR.


text:
    Willard M. BRIGGS, Jr. v. Ricky G. WOODFIN.
    Civ. 2601.
    Court of Civil Appeals of Alabama.
    March 4, 1981.

      Carl E. Chamblee, Jr. of Chamblee & Chamblee, Birmingham, for appellant.
    B. Boozer Downs, Jr. of Davies, Williams & Wallace, Birmingham, for appellee.
   HOLMES, Judge.

The Circuit Court of Jefferson County granted defendant’s Rule 12(b)(6), ARCP, motion to dismiss. The plaintiff appeals and we reverse and remand.

The plaintiff sued the defendant for assault and battery. The plaintiff’s complaint is as follows:

1. On or about the 30th day of June, 1978, the defendant committed an assault and battery on the plaintiff.
WHEREFORE plaintiff demands judgment against the defendant in the sum of $10,000.00 dollars and costs.

The defendant filed a Rule 12(b)(6), ARCP, motion to dismiss for failure to state a claim upon which relief can be granted. Specifically, the defendant in his motion to dismiss alleged that the plaintiff’s action for assault and battery arose out of the same transaction or occurrence which was the subject matter of a prior lawsuit between the parties. The prior lawsuit was an action for breach of contract. The plaintiff further alleged that the assault and battery action should have been a compulsory counterclaim in the prior lawsuit and therefore is barred by Rule 13, ARCP.

The trial court, on the basis of the above, granted defendant’s motion to dismiss. We note that there is nothing in the record before this court other than what is indicated above.

A motion to dismiss is warranted only when allegations of the complaint itself clearly demonstrate that plaintiff does not have a claim. Lavoie v. Aetna Life & Casualty Co., Inc., Ala., 374 So.2d 310 (1979). Clearly, in this instance, such is not the case.

The proper test of a motion to dismiss, such as we have in this instance, is whether it appears that plaintiff can prove no set of facts in support of claims entitling him to relief. Smith v. Potts, 293 Ala. 419, 304 So.2d 578 (1974).

As indicated, a Rule 12(bX6) motion to dismiss only encompasses the determination of whether the pleading states a claim upon which relief can be granted. Matters outside the pleadings should not be considered in deciding whether to grant a Rule 12(b)(6) motion. Hales v. First National Bank of Mobile, Ala., 380 So.2d 797 (1980). In the event matters outside the pleadings are called to the attention of the trial court, as in this instance, the trial court should treat the Rule 12(b)(6) motion as one for summary judgment under Rule 56 and proceed accordingly. Hales v. First National Bank of Mobile, supra; Papastefan v. B & L Construction Co., Ala., 356 So.2d 158 (1978). See Lyons, Alabama Practice, Vol. 1, pp. 175-176. See also, Sims v. Lewis, Ala., 374 So.2d 298 (1979).

The record before us indicates that no affidavits, etc., were presented by either party and therefore it appears to this court that, quite obviously, the trial court did not treat the motion as one for summary judgment nor “proceed accordingly.”

In view of the above, this court has no alternative but to reverse and remand the learned and distinguished judge’s action granting the motion to dismiss.

We should note, however, that we would be remiss in not attempting to distinguish Slepian v. Slepian, Ala.Civ.App., 355 So.2d 714 (1977), writ denied 355 So.2d 717 (1978), from the instant appeal.

In Slepian, this court held that a trial court could take judicial notice of proceedings pending in the same court where the defendant in a Rule 12(b)(6), ARCP, motion to dismiss asserted that the subject matter of the complaint and the prayer for recovery therein were embraced in motions pending in another civil action before the court. These circumstances are not present in the instant appeal. The prior proceedings alluded to in the defendant’s motion to dismiss in the instant appeal were not pending in the Circuit Court of Jefferson County. In fact, that lawsuit was concluded some time ago in Jefferson County and subsequently appealed to this court.

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Shona Joy COBB v. Jerry Alan COBB.
    Civ. 2606.
    Court of Civil Appeals of Alabama.
    March 4, 1981.
    Charles Thomason, Anniston, for appellant.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The plaintiff submitted this matter for a divorce judgment upon her complaint, the defendant’s answer and waiver, and the deposition of the plaintiff. Apparently, when filed the answer and waiver was dated the 11th day of November, 1980, but when submitted to the court the date had been altered or changed to the 12th instead of the 11th. The trial court dismissed the case because of that alteration or change.

The entire file of the circuit court is before us, and it reflects that the only valid problem area consists of such date modification. While any unauthorized change in filed legal documents is serious, there is nothing in the record indicative that the plaintiff was personally responsible for it. Therefore, under the circumstances, a dismissal of her ease was harsh. Accordingly, we reverse and remand this civil action with the suggestion that, if the trial court in its discretion deems it advisable, it may set aside the submission and strike the altered answer and waiver ex mero mota, thereby requiring either the obtaining of service of the summons and complaint upon the defendant or the procuring of another answer and waiver from him.

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

REVERSED AND REMANDED.

All the judges concur.


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    Aileen G. COX v. James E. COX.
    Civ. 2398.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Bryce U. Graham, Tuscumbia, for appellant.
    James H. Tompkins of Tompkins & Tompkins, Tuscumbia, for appellee.
   HOLMES, Judge.

This is a divorce case. The husband filed a petition for divorce on grounds of incompatibility. The trial court granted the divorce, ordered a division of property, awarded custody of the parties’ minor child to the wife, and required the husband to pay $175 per month as child support. The wife appeals.

The issues on appeal are (1) whether the trial judge abused his discretion in the division of property and (2) whether the trial judge abused his discretion in the amount of child support the husband was ordered to pay. We find no such abuse of discretion as to require reversal and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is pertinently revealed: The parties were married in 1967. Both had been married previously and had children by prior marriages. One daughter was born to the parties; she was eleven at the time of trial.

The wife’s first husband died, leaving her the proceeds from a $50,000 insurance policy, about $20,000 of which she spent before marrying Mr. Cox. The wife also received benefits from the Social Security Administration, the Veteran’s Administration, and workmen’s compensation as a result of her first husband’s death. The wife was not working when she married Mr. Cox.

When the parties married, the wife and her three minor children moved into a small house owned by the husband. The mortgage on that house was foreclosed several years later. The wife loaned or furnished $10,000 which was used to redeem the house. A few years later the husband executed a deed to the small house to the wife in order to protect his interest from attachment by the husband’s former wife.

Between 1967 and 1969, the wife paid $6,400 for two adjacent lots. Title to both was put in the wife’s name for the reason cited above. After the first lot was acquired, the husband began building a larger home for the parties. He was the general contractor and the trial court found the services the husband rendered in connection with the building of this home were worth $12,000 to $15,000. The wife contributed $22,000 and the parties borrowed $25,000 from a savings and loan association. At the time of trial the home was worth in excess of $80,000 and the extra lot was worth $5,000.

After their marriage in 1967, the parties opened a joint checking account at the bank. For almost thirteen years the husband’s weekly paycheck was deposited to this account; his average yearly income was $12,000. The wife’s contributions were somewhat less than the husband’s. She contributed some of the money she received as a result of her previous husband’s death. When she went to work in 1975, she contributed more, but her salary never was as great as the husband’s.

After moving into the new house, the parties rented the small house and the rent payments they received were deposited in the joint checking account. Funds from the joint checking account were used for the general support of the family.

At some time prior to the husband’s filing of the divorce petition, the wife’s daughter moved into the small house. The daughter did not pay rent. Shortly thereafter, the daughter married and there was some discussion regarding a sale of the small house by the parties to the daughter and her husband. However, no agreement was reached.

Some six days before the husband filed for divorce, the wife transferred title to the small house to her daughter. At the time the transfer was made, the wife knew that the husband wanted a divorce and that he wanted one-half of all the real property owned by the parties.

As stated above, the trial judge granted the parties a divorce on grounds of incompatibility. He awarded custody of the parties’ minor child to the wife and ordered the husband to pay $175 per month as child support.

Additionally, the trial judge, in effect, awarded the husband a one-half undivided interest in the small house which the wife had transferred to her daughter; he set the value of this interest at $15,000. The court also awarded the husband a one-half interest in the large house and the adjacent vacant lot.

Specifically, the trial court ordered the larger house and the adjacent lot sold. The proceeds are first to be applied to the mortgage. Then each party is to receive one-half of the remaining proceeds. However, $15,000 of the wife’s one-half is to be given to the husband in lieu of his interest in the small house, which the wife’s daughter now apparently owns.

The initial issue on appeal is whether the trial judge abused his discretion in the division of property.

A trial court is afforded wide discretion in awarding marital assets in divorce cases and such discretion is presumed correctly applied on appeal. Thompson v. Thompson, Ala.Civ.App., 377 So.2d 141 (1979). That division of property will not be set aside or revised unless it is determined to be so arbitrary, disparate and contrary to equity as to be clearly wrong and unjust. Thompson v. Thompson, supra; Kirk v. Kirk, Ala.Civ.App., 371 So.2d 54 (1979).

The wife in this case, through able counsel, contends that because much of the real property was in her name and because she paid the full purchase price for two of the lots, she would have been given more than a one-half interest in the real property.

The facts, as stated above, show that prior to the parties’ marriage the husband owned the small house, subject to a mortgage. That mortgage was foreclosed and the wife provided the funds to redeem it. Thereafter, the husband transferred title to the wife.

The general rule is that a conveyance of real property from a husband to his wife is presumed a gift. Cone v. Cone, Ala., 331 So.2d 656 (1976). However that presumption may be rebutted by prooí of the real intent of the parties. Cone v. Cone, supra; Campbell v. Campbell, Ala. Civ.App., 371 So.2d 55 (1979).

In this case the judge heard evidence that the purpose of transferring title to the small house was to preclude the husband’s former wife from obtaining a lien on it. In fact, the wife admitted this at trial. The trial judge concluded from the evidence that the real intent of the parties was that they hold title to the small house jointly.

Credibility of oral testimony is addressed to the trier of fact. Ragle v. Ragle, 281 Ala. 222, 201 So.2d 59 (1967). This court cannot substitute its own judgment for that of the trier of facts. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972).

As regards the large house, the wife contends that because she provided the purchase price for the lot on which it was built, as well as the adjacent lot, she should have received more than one-half interest. Again, the evidence shows that title to both lots was placed in the wife’s name to prevent the husband’s former wife from obtaining an interest in them.

The evidence also shows that the husband did some of the construction himself. In fact, the services he rendered were valued by the trial court at $12,000 to $15,000. While it is true that the wife paid for both the lot on which the larger house was built and the adjacent lot and that she provided some construction funds, the parties also took out a $25,000 loan. Payments on that loan were made out of the parties’ joint checking account.

The determination of who originally supplied purchase money for property acquired during a marriage is neither the sole nor the most salutary method of determining the proper division of such property where its acquisition, under all the circumstances, was a joint enterprise. Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975).

The trial judge in this case apparently determined that the acquisition of the real property in this case was a joint enterprise. In light of the facts, as stated above, there is evidence to support such a conclusion.

In view of the court’s findings regarding the intention of the parties to hold title to the small house jointly and that the acquisition of the larger house and the adjacent lot was a joint enterprise, we do not find any abuse of discretion which requires reversal in the trial court’s action which, in effect, divided the aforementioned property by giving the husband and wife each a one-half interest.

The wife also contends on appeal that the trial judge erred in its award of child support. Determination of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal in absence of a manifest abuse of discretion. Dismukes v. Dismukes, Ala.Civ. App., 376 So.2d 730 (1979).

The record shows the parties’ income in 1978 was as follows: The wife made almost $10,000 and the husband made about $15,-000.

In this case the wife has the ability to earn a living, and is doing so. Additionally, the husband’s income is not significantly higher than the wife’s. In view of the above, we do not find an abuse of discretion in ordering the husband to pay $175 per month child support. Williamson v. Williamson, Ala.Civ.App., 391 So.2d 115 (1980).

This case is due to be affirmed.

AFFIRMED.

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


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    Walter Earl MORGAN v. RHEEM MANUFACTURING CO.
    Civ. 2399.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      George E. Hutchinson of Kirk & Hutchinson, Montgomery, for appellant.
    N. T. Braswell, III, of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The trial court held that the employee had failed to file suit within the time prescribed under our workmen’s compensation law and was thus barred. The employee appeals.

Section 25-5-80, Code of Alabama (1975) provides a one-year statute of limitations for the filing of a civil action claiming workmen’s compensation benefits. The statute begins to run from the date of the injury. Cunningham v. Milstead Pulpwood Company, 366 So.2d 737 (Ala.Civ.App.1979). The commencement of the action within the time prescribed by the statute is an indispensable condition to the liability of the defendant and to the plaintiff’s right to sue. Hale v. United States Fidelity and Guaranty Co., 45 Ala.App. 379, 384, 231 So.2d 156, 160 (1970). The thrust of the employer’s evidence at trial was an effort to prove the employee’s noncompliance with the one-year requirement. The trial court found the employee did not meet the requirement. The dispositive issue on appeal is whether there was any evidence supportive of the court’s finding. There was and we affirm.

The employee filed suit on November 2, 1979, and alleged that he had injured his back in May of that year when he was lifting a hot water heater tank onto an assembly line. A detailed analysis of the evidence relevant to the issue of when the injury occurred is not warranted here. That evidence was conflicting in the following manner:

On the one hand the employee testified that his injury occurred on May 1, 1979, a time well within the one-year requirement. On the other hand, the employee testified that he really didn’t know when he hurt his back but that the pain became too much for him on May 1. Although the employee testified repeatedly that this May 1 occurrence was the first time he had ever had any back problems while working for the employer, a physician’s report was introduced showing that he had sustained an injury to and received treatment for his back in July 1978, resulting from lifting water heaters while working for the employer. If the court believed, as it apparently did, that the injury complained of actually 0C9urred in July 1978, then the suit filed by the employee in November 1979 would be untimely.

The weight of the evidence and the credibility of the witnesses are not before us. Florence Enameling Company v. Jones, 361 So.2d 564 (Ala.Civ.App.), cert. denied, 361 So.2d 567 (Ala.1978). In reviewing judgments in compensation cases we are not concerned with a preponderance but look simply to see if there is any evidence to support the findings of the trial court. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979). If there is any legal evidence to support those findings, they will not be disturbed on appeal. Barfield v. General Steel Tank Co., 370 So.2d 1005 (Ala. Civ.App.), cert. denied, 370 So.2d 1008 (Ala. 1979).

The evidence of the injury occurring in 1978 was sufficient legal evidence from which the trial court could find the employee’s noncompliance with the one-year statute of limitations. § 25-5-80, Code of Alabama (1975).

The appellant-employee’s many and varied allegations found in brief but not in the record are not before us on appeal. Old Southern Life Insurance Co. v. Free, 46 Ala.App. 622, 247 So.2d 379 (1971).

Finding no error in the record, we affirm the trial court’s judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    John Leslie STINSON, Jr. v. LIBERTY MUTUAL INSURANCE COMPANY, A Corporation and United Parcel Service, Inc.
    Civ. 2419.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Michael Gillion and John D. Richardson of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Benjamen T. Rowe and Michael L. Fees of McRight, Sims, Rowe & Stewart, Mobile, for appellees.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Plaintiff, John Leslie Stinson, Jr., was employed by UPS as a truck driver to deliver packages. On November 11, 1978, while so employed, Stinson attempted to close a bulkhead door in the delivery vehicle and dislocated one of his shoulders. A passerby helped him get the shoulder back in place and he completed the day’s deliveries. Upon returning to the home office that evening, Stinson testified that he reported the injury to one or both of his supervisors. These two supervisors deny that Stinson reported to them that he had been injured.

Stinson continued to work as a parcel delivery truck driver through Christmas Eve of 1978 when he was laid off. Stinson was not called back to work for UPS until February 1979.

Stinson testified that he continued to have problems with his shoulder through the first part of 1979. In April of 1979 he consulted Dr. Rutledge, an orthopedic surgeon in Mobile, Alabama. An operation was suggested but it was delayed until August of 1979. During the time from February 1979 to August 1979, Stinson worked for UPS but not on a continuous basis.

In August 1979 surgery was performed on Stinson’s shoulder and he was released for work on January 14, 1980. The attending physician stated that surgery on the shoulder was the result of the shoulder injury of November 11, 1978 and that Stinson had, as a result of the injury, an eight percent permanent partial disability to the body as a whole.

Stinson was informed by his supervisor, Jack Williams, that UPS would not pay him workmen’s compensation or his medical expenses because he failed to properly notify UPS of the injury that caused or contributed to the resulting surgery.

Stinson filed an action in September 1979 against defendant, Liberty Mutual Insurance Company, as the insurer for UPS, seeking to recover compensation benefits and medical expenses as a result of the injury received on November 11,1978 while in the employ of UPS. Later UPS was added as a party defendant. The defendants answered the complaint and contended among other things that Stinson had failed to notify UPS of the November 11, 1978 injury.

The case was tried before the court sitting without a jury, and the cause was taken under submission. Subsequently the trial court granted Liberty Mutual’s motion for summary judgment and entered judgment for UPS on the ground that Stinson had failed to notify UPS of the job-related injury. Stinson appeals.

One of the issues raised on appeal by Stinson relates to a protective order issued by the trial court to prevent an adjuster for Liberty Mutual from being deposed.

Pursuant to Rule 26(c) ARCP, the trial court was requested to issue an order preventing A. G. Pilley, Jr., an employee of Liberty Mutual, from being deposed by plaintiff. After hearing arguments, the court granted the motion but, in doing so, ordered “Plaintiff’s counsel ... to submit interrogatories covering the subject matter intended to be covered in the proposed deposition .... Plaintiff is not barred from again raising the question of the deposition of Mr. Pilley by motion on the ground that those interrogatory answers are insufficient.” The interrogatories were answered and no question of their insufficiency was presented to the trial court.

Rule 26(c) ARCP provides in pertinent part:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition or production or inspection, the court in the circuit where the deposition or production or inspection is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery ....

This rule envisions considerable discretion being reposed in a trial court to decide whether to allow extensive discovery or to put limits on a proposed discovery method.

In Campbell v. Regal Typewriter Co., Ala., 341 So.2d 120 (1976) the supreme court said:

The particular details of the discovery process must necessarily be left to the sound discretion of the trial court. The court may enter appropriate orders under ARCP 26(c) and if necessary, on a showing of undue burden, it may order alternative means of discovery.

In the case at bar the trial court, after hearing oral argument — the details of which are not before this court — disallowed the taking of Pilley’s deposition but ordered that interrogatories could be submitted to him and if his answers were not sufficient plaintiff could again request of the court authority to depose Mr. Pilley.

The interrogatories were submitted to Pilley, he answered them, and plaintiff made no objection as to their sufficiency. Under these circumstances we find no abuse of the trial court’s discretion in prescribing an alternative method for discovery of relevant information from Mr. Pilley.

The next issue presented by Stinson concerns the summary judgment granted in favor of defendant, Liberty Mutual Insurance Company. Stinson argues that the trial court erred in summarily finding in favor of Liberty Mutual in his direct action against it.

Section 25-5-8(f)(4), Code of Alabama, 1975, authorizes claims to be made directly against an employer’s insurer in workmen’s compensation cases provided the insured posts notices in conspicuous places on the premises that he is insured and by whom insured, and if the insured files a copy of such notice with the department of insurance. The trial court found as a fact that UPS had failed to identify its insurer by proper notices and had failed to file a copy of such notice with the state insurance department. The absence of proof of these statutory elements warranted the summary judgment in favor of Liberty Mutual Insurance Company. See Thomason v. Midland Insurance Co., Ala.Civ.App., 380 So.2d 902 (1980).

Plaintiff’s principal issue on appeal concerns the trial court’s finding that he failed to properly notify his employer of the alleged on-the-job injury.

Section 25-5-78, Code of Alabama 1975, provides in pertinent part as follows:

Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article and article 2 of this chapter ....

It is undisputed that Stinson did not give UPS written notice of his alleged injury within five days after its occurrence. However, it has been held that written notice is not required where it is shown that the employer has actual knowledge of the injury. Legg v. Americold Compressor Co., Ala.Civ.App., 336 So.2d 1121 (1976). Actual knowledge sufficient to remove the requirement of giving written notice is a question of fact in each case. B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45 and 287 Ala. 726, 253 So.2d 46 (1971).

Stinson contends that he gave oral notice of the injury to one or both of his supervisors on the same day the injury occurred, and he contends that the employees do not deny the oral notice, but our review of the evidence clearly reveals that the two supervisors deny that Stinson told them about the injury on that day. The resolution of this conflict in the evidence relating to whether notice of the injury was given to the employer is for the trial court.

This court does not weigh the evidence heard by the trial court to determine if its judgment is supported by the evidence; we only look to see if there is any legal evidence to support the judgment. Mobile Paint Manufacturing Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975). If there is such evidence we affirm the judgment.

In the instant case there is evidence to support the trial court’s finding that the plaintiff failed to properly notify his employer of his alleged injury. Under these circumstances the trial court’s judgment must be affirmed.

AFFIRMED.

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


text:
    Ernest E. ROBERTS v. Jane P. ROBERTS.
    Civ. 2432.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Richard L. Thiry, Mobile, for appellant.
    Benjamin H. Kilborn and F. Grey Red-ditt, Jr., Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals from a judgment denying his petition to modify and awarding alimony arrearages and attorney’s fees to the wife. We affirm.

The parties were divorced in August 1979, after twenty-four years of marriage. There was an agreement between the parties as to alimony and other matters. The agreement was incorporated in the judgment of divorce. In December 1979 the husband filed a petition to modify the judgment, contending a material change in circumstances. He alleged that his income had substantially decreased, that he had not received a ten percent raise in salary contemplated at the time of the divorce and that his wife had received a raise in her salary. He requested a termination of or decrease in alimony payments. The wife answered the petition and, by cross-petition, sought accrued but unpaid alimony, attorney’s fees and a contempt citation against the husband.

After an ore terns hearing the trial court entered judgment denying the husband’s petition to modify and awarding the wife $1,500 in accrued alimony and $300 in attorney’s fees. The husband’s post-trial motion was denied. He appeals.

Although the husband’s able counsel has, via brief, presented several issues to this court, there are only three determinative of this appeal.

The first issue is whether the trial court abused its discretion in refusing to modify the prior decree as to alimony and in finding the husband $1,500 in arrears in payment of such alimony.

Our well-established rule on appeal is that the trial court’s judgment will be presumed correct where it hears the evidence ore terms. 2 A Ala. Digest, Appeal & Error, Key Nos. 931(1), 1008.1(6). The modification of a prior decree for alimony, based upon changed circumstances of the parties, is a matter largely within the sound discretion of the trial court and the exercise of that discretion will be disturbed on appeal only if, after reviewing the evidence, this court finds such an abuse thereof as to make the judgment plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). The burden of proving a material change in circumstances sufficient to warrant a modification of a previous decree relating to periodic alimony is on the petitioner. McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). When, as in this case, a provision for periodic alimony is based upon the agreement of the parties, that provision should not be modified without close scrutiny, especially where so short a time, here six months, separates the decree and the hearing for modification. Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1243 (Ala.1979).

Although the husband submits numerous contentions of a material change in circumstances, we consider the primary evidence of change to be a decrease in his income of $4,000 since the time of the decree. The husband possesses a doctorate in clinical psychology and is a licensed psychologist in Alabama. His primary source of income is salary as an associate professor of psychology at the University of South Alabama. This position, along with his $4,000 income as a private practitioner and monies derived from other sources, allowed him to enjoy an annual income of about $28,500 at the time of the divorce. At the hearing the husband testified he could no longer engage in private practice for various reasons and that his income had thereby decreased some $4,000. Other evidence contended a material change is that the wife now earns some twenty-four dollars more per week in her job as a registered nurse than at the time of divorce.

The husband complains of the refusal of the court to permit testimony as to his anticipation of a raise in salary at the time of his agreement to pay alimony, and the subsequent failure of the raise to materialize. He submits such testimony would indicate a change in circumstances. We consider that such testimony had no relevance to show a change of circumstances. Our supreme court has so held in the case of Colton v. Colton, 252 Ala. 442, 41 So.2d 398 (1949).

The husband currently earns an income of approximately $24,500 per year. The decree provides that he is to pay the wife $450 per month alimony. He also makes other payments on mortgages, insurance and bills accumulated by the marriage, totaling about $375 per month at the time of the divorce. Several of these payments appear to be short-term obligations and others are apparently made for the benefit of the children, who have already reached majority. See, Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977). We have carefully reviewed the evidence preserved by the record. Although there was evidence that the husband’s ability to pay had diminished somewhat and the wife was now earning slightly more salary than at the time of the divorce, we find no palpable abuse of discretion in the trial court’s refusal to modify the alimony provision. Meyer v. Meyer, 375 So.2d 799 (Ala.Civ.App.1979).

The undisputed evidence was that the husband did not pay the $450 periodic alimony in October, November or January and had paid only $300 in December of 1979. This supports the trial court’s award of $1,500 in arrearages and the award is not subject to reversal.

We find no abuse of discretion in the award of $300 as an attorney’s fee to the wife. Clark v. Clark, 46 Ala.App. 432, 243 So.2d 517 (1970).

For failure of appellant to show error, the judgment of the trial court is affirmed.

The wife has requested a reasonable attorney’s fee for her representation on appeal. A fee of $300 is awarded.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Sylvia P. ROSE v. Jerry ROSE.
    Civ. 2466.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Herndon Inge, Jr., of Inge, McMillan & Inge, Mobile, for appellant.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this proceeding were divorced by the Circuit Court of Mobile County for incompatibility of temperament. In its decree the trial court divided the personal property of the parties, including cash in savings accounts, on a basis of about sixty percent for the wife and forty percent for the husband, awarded the wife the possession of the jointly owned homeplace for the rest of her life, and gave her $50 per month as periodic alimony until such time as she begins to draw her Social Security benefits. She is also to receive twenty-five percent of the husband’s net take-home pay if and when he becomes gainfully employed and she is to receive twenty-five percent of any royalties or commissions he may receive from Zippo Manufacturing Company.

The facts gleaned from the record are as follows: The parties were married in 1947. They have three grown children. At the time of trial Mr. Rose was sixty-nine years old and Mrs. Rose was sixty-one years old. Neither party was in the best of health. Mrs. Rose has not been employed except in the Stanley-Rose Company, the family business.

Stanley-Rose was founded by Mr. Rose and a partner in 1954. Eventually Mr. Rose became the sole owner. The business is involved in selling advertising specialties, political campaign material, imprinted pens, calendars, and the like. The business itself made approximately $764.00 for the year 1978-79.

Over the years the parties have accumulated cash, stocks, real estate, and jewelry, all of which was valued at approximately $145,000 to $150,000.

Mr. Rose testified that his income consisted solely of his Social Security, which was $431.00 per month, and a Veterans Administration disability benefit of $88.00 per month from which $80.00 is deducted by the government to repay a loan. Thus, Mr. Rose’s total income was approximately $440.00 per month. He further testified that he was retired. Averaging the past four years, the federal income tax forms show Mr. and Mrs. Rose’s income to be $7,400.00. Over half of this money is composed of interest income from bank accounts.

The principal issue on appeal concerns the periodic alimony awarded to the wife. She contends the amount is inadequate.

Awards of periodic alimony in a divorce case are within the sound discretion of the trial court and will not be reversed unless there is a clear and palpable abuse of that discretion. Furthermore, there are no fixed standards for determining the amount of alimony and as a consequence each case must be decided on its own facts and circumstances. Stewart v. Stewart, Ala.Civ. App., 341 So.2d 490 (1977).

The evidence shows that Mr. Rose is near seventy years of age and ready to retire. He testified that the bulk of his income is from Social Security benefits of about $440.00 per month. Based on this evidence it is quite apparent that Mr. Rose is limited in the amount of alimony he can pay and we believe that the trial court took that into consideration in setting the amount of periodic alimony. To do so is not improper. Malkove v. Malkove, Ala.Civ. App., 349 So.2d 52 (1977).

The trial court went further, however, and decreed that Mrs. Rose was to receive twenty-five percent of any commissions or royalties received by Mr. Rose from the Zippo Manufacturing Company and she was also to receive twenty-five percent of his net take-home pay should Mr. Rose become gainfully employed.

We believe it reasonable to conclude that the trial court considered Mr. Rose to be retired but we believe also that the trial court wanted to make sure that Mr. Rose would share his earnings with his former wife should he again become gainfully employed.

The wife contends that the decree’s provisions relating to possible income from Zippo Manufacturing Company and gainful employment are uncertain and indefinite and will be difficult to enforce.

We do not agree that the provisions are uncertain and indefinite but we do concede that these provisions may be a little more difficult to enforce than the provision relating to the payment of $50.00 a month to Mrs. Rose. However the mere possibility that these provisions may be more difficult to enforce does not require that the decree be reversed.

Finally, Mrs. Rose argues that the decree is unclear as to which party is responsible for the payment of the taxes and insurance on the homeplace and to keep it in good repair.

It is true that the decree did not speak to this issue, but the property was jointly owned and Mrs. Rose was given possession of the property until her death. We conclude that the trial court intended to leave the parties where he found them except that the wife was to have possession. This means that the parties, being the owners of the property, will have to decide how these problems will be solved. We find no error with this aspect of the decree.

Both parties have requested attorney’s fees for this appeal. Such requests are denied.

AFFIRMED.

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


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    Kaye Comfort PHILLIPS v. Scott PHILLIPS.
    Civ. 2476.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    James W. May of Odom, May & De Buys, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals from a judgment modifying a divorce decree. We affirm.

The parties were divorced in June 1979. They entered into an agreement incorporated into the divorce decree which provided, among other things, that the husband pay $1,100 per month for the support and maintenance of the couple’s two minor children.

The wife filed a petition for Rule Nisi in September 1979, alleging the husband’s failure to comply with the support provision. The husband was found to be in arrears in support payments in the amount of $1,575 and in contempt of court. He paid the arrearage.

On February 25, 1980, the wife filed another petition for Rule Nisi, again alleging the husband’s failure to comply. The husband filed a petition on April 3, 1980, seeking a modification of the support and maintenance provisions of the decree.

The court heard testimony as to the charged contempt of the husband for failure to pay past support payments when due. At the same time it heard testimony upon the petition of the husband to modify the support order because of changed circumstances causing an inability to pay. On May 8 judgment was entered finding support in arrears in the sum of $3,689.60, and that the husband’s failure to pay the past-due support was because of his contumacy rather than his inability to pay. He was found in contempt and committed to jail until the contempt was purged by payment of the arrearage. His father paid the ar-rearage.

On May 30 the court entered judgment on the husband’s petition to modify the support order. The court found that the defendant had suffered a great loss of income and employment which constituted a material change of circumstances. The support was reduced from $1,100 per month to $80 per week pending the finding of new employment. The wife contends the judgment modifying the support is inconsistent with the finding and judgment of contempt and therefore erroneous. She appeals.

A short resume of the testimony at the hearing on May 8,1980, discloses the following. At the time of the divorce in June 1979, the defendant was practicing dentistry in Birmingham. His practice had begun to diminish because of his failure to regularly attend to it. His indebtedness was heavy and increasing. Creditors were harassing him and threatening legal action. His attorney advised bankruptcy and termination of his practice. He was duly adjudged a bankrupt and moved into his parents’ home. He made some effort to find employment in his profession. Nothing developed and he secured employment in a car wash. He had worked for several weeks prior to the hearing and turned over to the plaintiff most of his salary checks. It was undisputed that he had no funds and no income other than his salary of $60 to $80 per week at the car wash. His father had paid his past-due support payments on the prior occasion when plaintiff charged him with contempt. He had lived with his father and borrowed funds from him since closing his practice. He had a prospect and hope for a job in his profession in Florida.

The plaintiff contended before the trial court, and contends here, that the defendant intentionally and deliberately gave up the practice of his profession in order to avoid payment of the order of child support. Such action was contumacious contempt. The trial court found defendant guilty of that conduct. However, that conduct related to past events, and defendant was purged of that conduct by payment of the delinquent support. There was no appeal from that finding and its correctness is not before this court.

The issue before us is whether the evidence supports the second finding, i. e., that defendant, because of changed circumstances, is now without the financial ability to pay the original amount of support and can reasonably pay only $80 per week.

Our review of the evidence conclusively shows that defendant has been judicially adjudged a bankrupt. He makes a small salary as a laborer in a car wash. He lives with and off the munificence of his parents. The amount of the present order for support exceeds his proven total income. The wife argues that defendant has purposely placed himself in his present menial circumstances to avoid supporting his children. Perhaps such is true, though it is difficult to accept that a man would so intentionally demean himself in order to avoid payment of agreed child support. It is undisputed that he has been paying and is now ordered to pay the entire amount of his earnings from his employment at a car wash. The evidence is without dispute that the husband is now without means of his own to pay the original support order.

Our well-established rule is that the modification of a decree for child support is a matter for the judicial discretion of the trial court. Strother v. Strother, 355 So.2d 731 (Ala.Civ.App.1978). On appeal, this court will not disturb the exercise of that discretion absent our finding, upon review of the evidence, that the trial court’s judgment is plainly wrong. Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App. 1979). In reviewing the evidence in a case where modification has been granted, our concern is whether there is sufficient proof of a material change in circumstances such that the judgment does not amount to a palpable abuse of the trial court’s discretion. 8 Ala.Digest, Divorce, Key No. 309.-2(2).

There is ample evidence to sustain the finding of the court as to changed circumstances and as to the husband’s inability to pay the original amount. The judgment therefore is not an abuse of discretion and erroneous.

Finally, the wife’s motion for reconsideration was a post-trial motion under Rule 59, ARCP. Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978). The grant or denial of such motion rests largely within the discretion of the trial court, and unless the record shows a plain and palpable abuse of that discretion, we will not reverse the court’s exercise thereof. Educators' Investment Corp. of Alabama v. White, 374 So.2d 905 (Ala.Civ. App.1979).

The trial court shall, of course, retain jurisdiction over matters incident to the decree.

The wife’s request for an attorney’s fee for representation on appeal is denied.

Finding no error in the judgment of the trial court, that judgment is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Patricia S. JOHNSON v. Lewis F. JOHNSON.
    Civ. 2489.
    Court of Civil Appeals of Alabama.
    March 11, 1981.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellant.
    G. A. Lindsey and Thomas E. Head, Elba, for appellee.
   HOLMES, Judge.

This is a child custody case.

The Circuit Court of Coffee County divorced the parties and awarded custody of the parties’ two minor children to the father. The mother appeals and through able and distinguished counsel contends that the trial court abused its discretion in awarding custody to the father. We find no such abuse as to require reversal and affirm.

Viewing the record with the attendant presumptions, the following facts are pertinently revealed:

The parties were married in 1968. They have two daughters, Aimee and Lori, who were eight and nine, respectively, at the time of trial. The family has resided in Ino, Alabama, since the children were very young. The parties were separated in November of 1979. At that time, the mother left the father, taking the girls with her to her mother’s home in Opp.

There were some attempts at reconciliation while the mother and girls were in Opp. While these attempts were being made, the mother admitted being involved with another man and having sexual intercourse with him. The children were aware that the mother was involved with this man.

On one occasion, after the separation, the mother threatened self-destruction while the children were present. Specifically, the father had convinced the mother and children to leave Opp and come home. While at the parties’ home the father and mother had an argument in the presence of the children. During the course of the argument, the mother locked herself in a room with a pistol. The father broke into the room and took the pistol away from her. After this episode, the trial judge awarded temporary custody of the girls to the father.

Thereafter, the mother moved to Dothan and took a job. Upon moving into an apartment in Dothan, the mother gave an extra apartment key to a male friend. That same male friend visited with the mother while the children were visiting the mother.

Since the separation the father has resided in the couple’s home in Ino and the children have been able to attend the same school and remain involved in church activities. Although the father did move to Savannah last summer for several months for job training, he planned to return to Ino with the girls at the conclusion of his training.

We would be remiss in not commenting that in addition to the above there is ample evidence that the wife is a loving and caring mother.

The record further reveals that, with knowledge of the parties and without objection, the trial judge held an in camera conversation with the children. The content of this conversation is not included in the record. Neither party requested a transcription of this conversation.

As stated above, the dispositive issue is whether the trial judge abused his discretion in granting custody of the minor children to the husband.

Determination of child custody rests in the sound discretion of the trial court and the exercise of such discretion will not be reversed except for plain and palpable abuse. Collum v. Collum, 53 Ala.App. 6, 296 So.2d 907 (1974). Furthermore, there is a strong presumption favoring the trial court’s finding in child custody cases. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

In view of the facts as stated above, with particular emphasis on the father’s ability to provide a stable home environment for the girls, we find no abuse of discretion as to require reversal. To reverse this case would require this court to substitute its judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

In addition, we note that there was evidence before the trial court which is not before this court; i. e., the in camera conversation with the children. It has long been established that this court may not disturb a trial court’s finding of fact “where there was evidence before the trial court which may have influenced it in arriving at its finding of fact and which is not before us.” Hagler v. Hagler, 50 Ala.App. 266, 278 So.2d 715 (1973), citing Mason v. Mason, 276 Ala. 265, 160 So.2d 881 (1964).

We feel constrained to comment that it is obvious that the children in the instant appeal have the love arid affection of both parents. The trial court was required to make a difficult decision as to which party would have primary custody. That decision was made and has now been affirmed by this court. It would be this court’s hope that now all parties concerned would join together and concentrate their efforts on behalf of the children.

The case is due to be affirmed.

AFFIRMED.

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


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    Anita JENKINS v. John Michael JENKINS.
    Civ. 2499.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      George Beck, Montgomery, for appellant.
    Maury Smith and Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

The former wife petitioned for modification of a child custody decree. After an ore ten us hearing, the wife’s petition was denied and she appeals.

The dispositive issue is whether the trial court abused its discretion in failing to grant the requested modification. We find no abuse of discretion and affirm.

Our review of the record reveals the following:

The parties were divorced in August 1979. The divorce decree awarded temporary custody of the parties’ two minor children, an eleven-year-old daughter and a six-year-old son, to the wife. The decree provided for a second hearing on the issue of child custody. That hearing was held on December 3,1979, and resulted in the wife’s being awarded permanent custody of the children. The husband was given liberal visitation rights. The wife’s custody was, however, made subject to certain conditions. The condition pertinent to this appeal is as follows:

The children are to live in the City of Montgomery, Montgomery County, Alabama, and are to continue as students in the Montgomery Academy unless both parents agree otherwise.

The wife is seeking a modification of the above condition. She wishes to move, with the children, to Atlanta, Georgia, where she plans to remarry and secure better employment.

The record reveals that the children, particularly the daughter, suffered from severe emotional disturbances at the time of the parties’ divorce. There is testimony indicating that since the divorce the daughter’s emotional condition and overall attitude have improved. The son’s condition has shown improvement as well. The trial court considered the children’s attendance of Montgomery Academy as a particularly positive influence on the emotional progress they had made. There is, however, no evidence that the children’s emotional problems have been resolved.

The question of modification of a child custody decree is vested in the sound discretion of the trial court. Rogers v. Rogers, 345 So.2d 1368 (Ala.Civ.App.1977). The party seeking modification has the burden of showing a material change in circumstances which will warrant modification. Cheatham v. Cheatham, 344 So.2d 525 (Ala. Civ.App.1977); 8 Ala.Digest, Divorce, Key Nos. 303(2)-(6). As in all cases where the trial court has heard evidence ore terms, its judgment is presumed correct and will not be disturbed unless so unsupported by or contrary to the evidence as to amount to an abuse of discretion. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979).

The trial court stated that it recalled the evidence previously presented as to the emotional problems of the children. It could not be expected to do otherwise. Though there had been marked improvement, the court considered that the improvement was due in large measure to the influence of school and the more stable conditions existing since the divorce. Even though improvement has been shown and circumstances may have changed, the welfare of the children remains the primary concern of the court. It is not required to modify its prior judgment even if circumstances have changed unless the evidence is so clear and convincing that to fail to do so would be a clear abuse of discretion. We will not substitute our judgment for that of a compassionate judge who is familiar with every aspect of the case and the parties. We know well that he has no desire to prevent the mother from pursuing her personal happiness and career any longer than is necessary for the best interest of the children. To do so would be unjust to the mother and possibly raise resentment between her and her children. It would seem that with passage of a reasonable time and continued emotional improvement, the happiness of the mother and the welfare of the children would cease to be antipathetical.

At this time we find no palpable abuse of the trial court’s discretion in continuing to require the children to remain in their present school and environment.

The judgment of the court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Cherie S. MURPHY v. Douglas W. MURPHY.
    Civ. 2515.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Kelby E. Strickland, Jr., Birmingham, for appellant.
    Donald M. Phillips, Lanett, for appellee.
   WRIGHT, Presiding Judge.

This is a child support case.

The ex-wife appeals from an order of the Chambers County Circuit Court which, among other things, denied her petition to hold the ex-husband in contempt, excused his obligations under previous orders of child support and set the amount of such support payable in the future at $30 per week.

The parties were divorced in September 1975 by decree of the Superior Court of DeKalb County, Georgia. The decree awarded custody of the parties’ minor child to the wife. The husband was ordered to pay $50 per week child support and other amounts in alimony.

The wife remained in Georgia and the husband moved to Chambers County, Alabama. The wife initiated proceedings in Georgia under the Uniform Reciprocal Enforcement of Support Act (URESA) to compel the husband’s payment of child support. Pursuant to URESA, § 30-4-80, et seq., Code of Alabama (1975), the Chambers County Circuit Court ordered the husband to pay child support of $30 per week beginning December 18, 1975. On February 26, 1976, the court issued another order pursuant to URESA ordering the husband to pay $120 per month child support.

The wife moved to Alabama and in August 1980 filed a petition for Rule Nisi, seeking to hold the husband in contempt for failure to pay alimony or child support as required by the Georgia divorce decree. After a hearing the court refused to hold the husband in contempt. In addition, the court found the husband’s alimony obligation to have been discharged, excused his obligation to pay child support due prior to the hearing date and ordered him to pay $30 per week child support beginning August 26, 1980. The wife appeals.

We note in beginning that appel-lee seeks to have the appeal dismissed on the ground that certiorari is the proper way to review the court’s action refusing to cite for contempt. Although this assertion is technically correct, we can and do choose to treat the wife’s appeal as a petition for certiorari and will consider her arguments accordingly. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953); Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.), cert. denied, 376 So.2d 1099 (Ala.1979).

The wife raises three issues for our determination: (1) whether the trial court erred in excusing the husband’s obligations under previous orders of child support, (2) whether the court erred in setting the amount of child support payable in the future at $30 per week, and (3) whether the court erred in failing to hold the husband in contempt for failure to pay child support.

As to appellant’s first issue, the Georgia divorce decree set child support payments at $50 per week. It is clear from the record that the husband has not met his obligations under the Georgia decree. The Georgia cases hold that a court is without authority to “forgive” or “excuse” past-due installments of child support in proceedings brought by the wife against the husband to enforce a support order. Anderson v. Anderson, 230 Ga. 885, 199 S.E.2d 800 (1973). See also, Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150. Alabama, similarly, provides that installment payments for child support under a divorce decree become final judgments as of the date due and are immune from change. Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963). We have previously held that final judgments for child support of a sister state require full faith and credit in the courts of Alabama, and Alabama courts may determine the amount of arrearage under the foreign judgment. McBride v. McBride, 380 So.2d 886 (Ala.Civ.App.1980); Smith v. Smith, 361 So.2d 369 (Ala.Civ.App.), cert. denied, 361 So.2d 372 (AIa.1978). The court erred in excusing the husband’s obligations as to past-due installments of child support, though any payments made under the URESA order may be credited against the total amount accumulated under the Georgia judgment. § 30-4-93(b), Code of Alabama (1975).

The appellant next claims that the trial court erred in setting the amount of support payable in the future at $30 per week. Appellant views this as a modification of the Georgia decree’s $50 per week support provision and challenges the authority of the circuit court to so modify. Alabama courts may modify support provisions in a sister state’s divorce decree with respect to future installments when the parties are properly before it. Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); Green v. Green, 239 Ala. 407, 195 So. 549 (1940). Although this matter was initiated by the appellant as a contempt proceeding, and we find no petition for modification, the record tends to indicate that it evolved into inclusion of present ability of appellee to pay future child support.

We view the order setting future support at $30 per week not as a modification of the Georgia decree, but as an original order of support. The parties were before the court. It had jurisdiction to enter an order for support. There being no modification, the Georgia decree remains in effect for whatever it is worth. The Georgia decree was not, as appellee contends, modified by the earlier URESA support orders. Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911 (1972); § 30-4-93(b), Code of Alabama (1975).

Finally, appellant claims the court erred in failing to hold the husband in contempt. Our scope of review on the issue of contempt is limited to questions of law and, if there is any evidence to support its finding, the judgment of the trial court will not be disturbed. Beavers v. Beavers, 359 So.2d 387 (Ala.Civ.App.1978). Inability to pay is a valid defense for failure to comply with the support provisions of a divorce decree. Parmer v. Parmer, 373 So.2d 846 (Ala.Civ. App.1979); Mahaffey v. Mahaffey, 238 Ga. 64, 230 S.E.2d 872 (1976). It is sufficient that there was evidence from which the court could find an inability to pay in the present case. There was no error in that respect.

For error in excusing the husband’s past-due child support obligations, the judgment of the trial court in that respect is due to be set aside. The trial court is directed to do so.

The appellant-wife is granted an attorney’s fee of $300 for her representation on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.