author: PRATHER, Justice,

text:
    SOUTH HINDS WATER COMPANY v. MISSISSIPPI PUBLIC SERVICE COMMISSION.
    No. 53447.
    Supreme Court of Mississippi.
    Nov. 3, 1982.

      Young, Scanlon & Sessums, Stephen W. Rimmer, Pat H. Scanlon, Jackson, for appellant.
    Scales & Scales, Clarence R. Scales, Bennett E. Smith, Jackson, for appellee.
    Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

South Hinds Water Company filed a petition with the Mississippi Public Service Commission in order to gain a rate increase for water service to its certificated area within Hinds County. The Commission initially approved the changes requested by South Hinds but it subsequently reinstated the case and denied the rate increase. On appeal, the Commission’s decision to deny the increase was affirmed by the Chancery Court of the First Judicial District of Hinds County.

The assignments of error raised on South Hinds’ appeal are:

(1) That the Commission erred in excluding authorized but unpaid officers’ salaries as an operating expense;

(2) That the Commission erred in excluding interest expense on long-term debts and on customers’ deposits as operating expenses;

(3) That the Commission erred in failing to include the appellant’s four-acre tract of land as a part of the rate base;

(4) That the Commission erred in its calculation of the working capital component of the rate base;

(5) The Commission erred in arbitrarily establishing a fair rate of return.

I.

On November 2,1979, South Hinds Water Company filed its petition with the Mississippi Public Service Commission for approval of an increase in its rates for water service, and for approval to amend its terms and conditions for rendering said water service to customers in its certificated area. The primary change requested by the utility in this petition was an increase in the minimum monthly charge for service from $8.00 per month to $12.00 per month. Notice of the filing of this petition was provided by publication of a legal notice in a Jackson newspaper.

Thereafter, a hearing was held before the Commission concerning these matters on January 29, 1980. At the hearing, no one appeared to protest or object to the proposed changes in rates. Upon conclusion of the utility’s presentation of its evidence and testimony by a Commission witness, the Commission unanimously adopted the appellant utility’s requests, and on February 15, 1980, the Commission entered its original order approving the changes sought by South Hinds.

Meanwhile, a number of complaints had allegedly been made to the Commission regarding the new rate increase and service. As a result, the Commission concluded that the case should be reinstated, and scheduled May 8, 1980 as the date of rehearing. This hearing began with testimony from several utility customers as to the poor quality of service received from South Hinds. Both sides also presented expert testimony from certified public accountants. For the most part, they based their conclusions on the subject utility’s financial status as indicated by the following financial statements:

- SOUTH HINDS WATER COMPANY, INC. UNAUDITED STATEMENTS OF INCOME FOR THE YEARS ENDED DECEMBER 31,1979 AND 1978

The Commission’s expert witness, Donald C. Weiss, introduced a pro forma statement of income for a twelve month period beginning with the date of the changed rates as follows:

Harold D. Boleware testified on behalf of South Hinds, and he introduced a comparable pro forma statement of income for a twelve month period beginning with the effective date of the rate change as follows:

SOUTH HINDS WATER COMPANY, INC. PRO FORMA OPERATING STATEMENT OF ESTIMATED REVENUES AND EXPENSES FOR TWELVE MONTH PERIOD BEGINNING WITH EFFECTIVE DATE OF CHANGED RATES

SOUTH HINDS WATER COMPANY, INC. PRO FORMA OPERATING STATEMENT OF ESTIMATED REVENUES AND EXPENSES FOR TWELVE MONTH PERIOD BEGINNING WITH EFFECTIVE DATE OF CHANGED RATES

One assignment of error involving a distinction between Boleware’s pro forma statement of income and that introduced by-Weiss was the failure by Weiss to include a substantial amount of authorized salaries for officers, with a corresponding credit for payroll taxes on such salaries. Weiss testified that he included an amount of $1200 for administrative salaries, whereas Bole-ware included $13,520.

Mr. Weiss also presented a “rate cr g CD computation and a “return on rate cr g CD computation as follows:

RATE BASE APPLICABLE TO PERIOD OF APPLIED PROPOSED RATES AND PRO FORMA ADJUSTMENTS

RETURN ON RATE BASE

The two accountants had several disagreements on the above two statements, and these disagreements constitute a major basis of South Hinds’ appeal. Mr. Weiss left out the fixed asset of land in the amount of $4,000 on his rate base computation. In addition, he admitted at the hearing that he deducted $5,000 too much for depreciation in the rate base computation. He also did not consider the interest owed on the long-term debt and customers’ deposits, nor the alleged salary expense in arriving at the working capital component of the rate base computation. He also failed to include these amounts in arriving at net operating income. These differences, of course, had a substantial effect on the “rate base” and “return on rate base” calculations, if improperly omitted.

At the conclusion of this rehearing, the Commission apparently accepted all of Mr. Weiss’s testimony and computations as accurate and therefore rescinded the prior approval of South Hinds’ rate increase by an order dated May 15,1980. On appeal to the Chancery Court of the First Judicial District of Hinds County, the Commission’s decision was affirmed.

II.

There are three essential elements in the rate making process: First, the necessary operating expenses incurred to produce the utility’s products; second, the rate base; and third, the rate of return allowed the utility. F. Welch, Cases and Text on Public Utility Regulation 453-54 (rev. ed. 1968). The rate base is calculated by valuing the property used and useful for public service. Then, a fair and reasonable rate of return is allowed on the value of the property included in the rate base, plus an allowance for the necessary operating expenses. In other words, a utility is given revenues in excess of its operating expenses so that it can pay a fair return to its investors and retire its indebtedness.

Under our statutory framework, the Mississippi Public Service Commission is charged with the responsibility of regulating the business and property of intrastate public utilities. Miss.Code Ann. § 77-3-5 (1972). Thus, rate making is a legislative function which has been delegated to the Commission. United Gas Corporation v. Mississippi Public Service Commission, 240 Miss. 405, 127 So.2d 404 (1961). The Commission, with its expertise, is the trier of facts in a rate case, and it determines the reliability of estimates, the credibility of witnesses, and the weight of evidence. Mississippi Public Service Commission v. Mississippi Power Company, 337 So.2d 936 (Miss.1976); Southern Bell T. & T. Co. v. Mississippi Public Service Commission, 237 Miss. 157, 113 So.2d 622 (1959).

Our courts have only limited review of the rates prescribed for a utility by the Commission. Such orders may not be set aside on appeal unless the court finds that the Commission’s order contains errors of law, or is contrary to the manifest weight of the evidence, or is not supported by substantial evidence. Miss.Code Ann. § 77-3-67 (Supp.1982); Bay Springs Telephone Company, Inc. v. Mississippi Public Service Commission, 370 So.2d 694 (Miss.1979); Mississippi Public Service Commission v. Mississippi Valley Gas Company, 358 So.2d 418 (Miss.1978).

IIIA.

In the instant case, the appellant’s first contention is that the Commission erred in failing to include authorized but unpaid officers’ salaries as a legitimate operating expense. Officers’ salaries are traditionally recognized as an operating expense. 64 Am.Jur.2d Public Utilities § 173 (1972); 73 C.J.S. Public Utilities § 25(2) (1951). And, there is no requirement that such expenses be actually paid. Investors who are also officers should be paid a reasonable compensation for management and operating services, and they are not required to donate such services to the customers of the utility. In such cases, the burden of proof is upon the owners of the utility to show that the services rendered are reasonably worth the compensation authorized for payment. The Commission, in turn, should carefully scrutinize the compensation to be paid, and among several factors, should consider the amount and quality of work performed by the officers in question. Mississippi Public Service Commission v. Home Telephone Company, Inc., 236 Miss. 444, 110 So.2d 618 (1959).

We conclude that the Commission was in error for rejecting this item as an operating expense. Witnesses for South Hinds testified that the payments of these salaries were authorized according to the minutes of directors’ meetings, but that these expenses remained unpaid for lack of funds. The utility employed only one full-time employee who handled mailing and customer complaints. The three stockholders who are unpaid were on the board of directors; they formulated policy, and they gave directions to the full-time and part-time personnel for operation of the plant. Under these circumstances, it does not seem unreasonable for the three stockholder-officers to draw a total sum of $13,520 annual salary for their duties. Thus, it was error for the Commission to exclude these expenses simply because they had not been actually paid. Consequently, it was also error to exclude the payroll taxes on the salaries.

IIIB.

The appellant also contends that the Commission erred in excluding interest expense owed on customers’ deposits and on notes payable- as operating expenses. For the most part, other jurisdictions follow the rule that interest paid on customers’ deposits should be deducted as an operating expense if the deposits were subtracted from the utility’s rate base. See, e.g. Re Missouri Public Service Company, 25 PUR 4th 24 (1978) (proper to reflect such cost as operating expense by multiplying the amount the rate base is reduced by the interest rate on such deposits); Re Davenport Water Company, 76 PUR 3d 209 (1968) (5% interest paid by a water company on customers’ deposits was not included in operating expenses where the deposits were included in the rate base). Some jurisdictions take into account customers’ deposits bearing interest as a part of the capital structure when determining a proper rate of return. Re Consolidated Edison Company of New York, Inc., 41 PUR 3d 305 (1961) (customer deposits on which interest is paid should be treated in same manner as funds obtained through issuance of bonds and stock). But, utilities are not given credit for such an expense in both operating- expenses and in the rate of return analysis since that could permit a double recovery. In the instant case, the Commission did not subtract deposits from the rate base, and, therefore, properly declined to include interest on such deposits as an operating expense.

With regard to the question concerning interest expense owed on the utility’s long-term debt, a review of the law applied by other jurisdictions also indicates a strong rejection of including interest on other indebtedness, such as notes payable, as an operating expense. See, e.g. Re Gas Company of Vermont, Inc., 26 PUR 4th 155 (1978) (standard in utility regulation that interest expense is a below the line item); Re Cheshire Water Company, 100 PUR (NS) 244 (1953) (interest and dividends are not proper items to be charged to operating expense); Ex Parte Westside Transit Lines, 91 PUR (NS) 56 (1951) (interest on borrowed capital cannot be regarded as a proper operating expense for rate making purposes); 64 Am.Jur.2d Public Utilities § 185 (1972) (interest charges on borrowed capital are not allowed as operating expenses but must be considered in determining a fair rate of return). This rejection is based on the attitude that interest expense is analogous to dividends. See Ex Parte Breaux Bridge Teleph. Company, 25 PUR 3d 82 (1955) (interest is a payment for the use of borrowed capital just as dividends are payments for the use of equity capital. In other words, neither interest on indebtedness nor dividends should be regarded as operating expenses to be paid by the customers. Rather, cost of debt is included in the capital structure to arrive at a fair rate of return. We conclude that this rule is sound in theory, and therefore, affirm the Commission’s ruling to exclude interest owed on notes payable as an operating expense.

IIIC.

The appellant’s third contention is that the Commission erred in failing to include a four-acre tract of land as a part of the rate base. A public utility company is entitled to a fair return only upon the value of such of its property as is useful and being used in service for the customers’ benefit. 1 A. Priest, Principles of Public Utility Regulation 174 (1969); 73 C.J.S. Public Utilities § 18 (1951). Otherwise, the resulting rates would impose on customers the burden of paying for something from which they receive no benefit.

It should be recognized, however, that property is not necessarily used and useful only when it is currently being used to produce the utility’s product. Time lag and costs associated with development must be considered so that utilities are encouraged to maintain and increase adequate service to the public. Thus, if the property will be employed within a reasonable time, and if the utility’s management can show a definite plan as to how the property will be employed for public service, then the property’s value may be included in the rate base. See Welch, supra at 363-66 (discussion of types of property used and useful). The land in question was a couple of vacant lots in south Jackson, and there was no evidence produced as to when the land would be placed into public service, nor was there any precise indication of a proposed use. In the absence of such evidence, it was proper to exclude the value of the land from the rate base total.

HID.

The appellant also claims that the Commission made several errors with regard to calculating the working capital component of the rate báse. Working capital represents the amount of cash, materials, and supplies ordinarily required by a utility in its day-to-day business operation to meet current expenses and such contingencies as may typically develop. Preparing For The Utility Rate Case 195 (F. Welch ed. 1954). It is customary to include an allowance for working capital in the rate base, since cash working capital, like fixed assets, represents invested capital for which the owners should gain some return.

In the case sub judice, the appellant’s counsel argued that the salaries expense and the interest expense should have been included in the working capital component. Since the officers’ salaries and payroll taxes should have been regarded as legitimate operating expenditures, these amounts should have also been included in the working capital component. See J. Barnes, The Economics of Public Utility Regulation 495-99 (1942) (discussion of expenses to be included in working capital such as salaries and wages).

HIE.

The appellant’s final contention is that the Commission arbitrarily set a rate of return without considering the rate necessary to cover all expenses. In Southern Bell Telephone and Telegraph Company v. Mississippi Public Service Commission, 237 Miss. 157, 113 So.2d 622 (1959), our Court noted the importance of fixing a rate which would not only provide for operating expenses, but would also sustain the capital costs of the utility such as service on the debt and dividends on the stock. Indeed, a fair return implies one which will enable a utility to gain enough profit to pay its interest requirements. In the case under consideration, neither the Commission’s order, nor its arguments on appeal, shed any light on its findings as to cost of equity, the cost of indebtedness, or the weighted cost of capital. Furthermore, it is readily apparent that the utility, under its current rates, cannot pay the omitted officers’ salaries and the interest expense on its $140,000 loan. Since the Commission has wholly failed to show any reason as to how it determined that the current rate of return was fair and reasonable, it must be concluded that the Commission has committed error by arbitrarily setting the utility’s rate of return.

V.

Since the Commission’s order dated May 15, 1980, is based on errors of law and insubstantial evidence, we must reverse the order as confiscatory. Thus, the prior order dated February 15,1980, is in full force and effect and thereby, providing for the rate increase requested by South Hinds. Said order shall stand until such a time when substantial evidence is available which indicates that the new rate structure is unreasonable or that a more equitable rate structure is available. Finally, questions concerning service complaints were not raised on appeal, and they are therefore not addressed by this opinion.

REVERSED AND RENDERED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, HAWKINS and BOWLING, JJ., concur.

DAN M. LEE, J., takes no part.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. June E. SAMPIA v. HORIZON HOMES, INC., Robert P. Sheppard, Marvin C. West, First National Bank of Jackson.
    No. 53502.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Rehearing Denied Dec. 15, 1982.
    James G. McIntyre, E. Reeves Jones, Jackson, for appellant.
    Perry, Crockett, Morrison & Starling, Thomas W. Crockett, Jr., Thomas I. Starling, Jr., Young, Scanlon & Sessums, E. Stephen Williams, Kenneth G. Stamps, Jackson, for appellees.
   Appeal from Chancery Court, Madison County; E.G. Cortright, Chancellor.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    Stephanie OWEN v. Thomas C. GERITY.
    No. 53529.
    Supreme Court of Mississippi.
    Nov. 17, 1982.

      Powell & Thrash, Gary D. Thrash, Jackson, for appellant.
    Watkins & Eager, James A. Becker, Jr., Jackson, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Hinds County wherein Thomas C. Gerity, appellee, sought modification of a previous divorce decree based upon a material change in circumstances occurring subsequent to the rendition of the divorce decree. Gerity, in his petition, averred that Stephanie Owen, his former wife, appellant, had engaged in sexual misconduct and thereby forfeited her right to all future alimony under the previous divorce decree. Ms. Owen denied the material averments of the petition and subsequently filed a petition for contempt, alleging that Gerity had failed to pay a promissory note which he was obligated to pay under the provisions of the final decree for divorce. The cases were consolidated and at the conclusion of the testimony, the chancellor terminated Ms. Owen’s alimony based on a finding that she had engaged in fornication with Haywood Ellis, Jr. The chancellor also found that Gerity was not in contempt of court for failing to pay the promissory note. From this finding, Ms. Owen appeals. We reverse.

The parties were married on August 21, 1971. On February 11,1980, they separated and subsequently filed a joint bill for divorce on March 4, Í980, upon the grounds of irreconcilable differences. No children were born to the parties during the marriage. On May 7, 1980, a final decree of divorce was granted to the parties. The decree incorporated the parties’ property settlement agreement which provided, among other things, that appellee would pay appellant $325 per month in alimony beginning twenty-four months from the date of the agreement for housing, and continuing thereafter for sixty months so long as appellant remained the exclusive occupant of her residence.

On June 16, 1981, appellee filed the present petition for modification of the final decree for divorce, alleging that appellant had forfeited her right to receive future alimony because she was involved in a sexual relationship with Haywood F. Ellis, Jr.

On June 19, 1981, appellant filed a petition for contempt, contending appellee had failed to abide by the parties’ property settlement agreement incorporated in the final decree of divorce in that he had failed to discharge a promissory note owing to appellant’s mother. The two cases were consolidated for trial.

Appellee’s proof as to the alleged sexual relationship between appellant and Ellis was wholly circumstantial. The proof established that appellee and Ellis were fond of each other, enjoyed each other’s company and saw each other on an average of three to four times a week. Both appellant and Ellis admitted they had chaperoned dances together, exhanged gifts, attended movies together, dined together, attended various functions together and had even been alone in appellant’s house together on occasion. Appellant and Ellis denied they had ever engaged in sexual relations even though they had had ample opportunity to do so if they so desired.

Although appellee sought by photographs to establish that Ellis was seen leaving appellant’s home early in the morning on June 12, 1981, the evidence overwhelmingly established that Ellis was staying at appellant’s residence while she was visiting her mother in Nashville, Tennessee. Both appellant and Ellis denied they had ever slept overnight in the same house except when they stayed with appellant’s mother in Nashville for a visit.

Based upon the proof, the chancellor ordered that appellant’s alimony be terminated.

I. Did the chancellor err in terminating appellant’s alimony based upon her alleged adulterous relationship?

The subsequent misconduct of a wife following an absolute divorce from her husband may, in proper circumstances, constitute a material change in circumstances so as to entitle the husband to modification of the final decree for divorce. McHann v. McHann, 388 So.2d 823 (Miss.1980); McRae v. McRae, 381 So.2d 1052 (Miss.1980); and Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961). The misconduct most often complained of involves alleged sexual misconduct of a wife whereby the husband seeks a termination of future alimony provided for by the final decree of divorce.

Although in previous decisions this Court has referred to this type of sexual misconduct as adultery, adultery cannot be committed by an unmarried woman with an unmarried man, the gist of the offense being voluntary sexual intercourse of a married person with a person other than the offender’s spouse. Because the bonds of matrimony in cases such as this one have been severed, the offending spouse’s sexual misconduct cannot be categorized as anything more than fornication. In such a case, the chancellor, as the trier of fact, has the duty to find whether or not the alleged misconduct of the former wife is of such a nature as to forfeit her right to future alimony. This question must be faced and determined on a case-by-case basis. McHann, supra, and McRae, supra.

An adulterous relationship may be established by circumstantial evidence, the act itself usually being committed in secret, thereby rendering direct proof thereof impossible. Hand, Mississippi Divorce, Alimony and Child Custody § 4-7 (1981), and Bunkley & Morse’s Amis, Divorce and Separation in Mississippi § 3.09(5) (1957). Where the proof is circumstantial, the party asserting the adulterous relationship carries a heavy burden. In Banks v. Banks, 118 Miss. 783, 79 So. 841 (1918), this Court stated:

Where an offense of this kind is sought to be proven by circumstantial evidence, the circumstances must be proven with reasonable certainty, and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven, the proof will be insufficient because, to invest mere circumstances with the force of truth, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence. (118 Miss, at 787-88, 79 So. at 842).

See also Hulett v. Hulett, 152 Miss. 476, 119 So. 581 (1928). The proof of such a charge must be clear and convincing. Nix v. Nix, 253 Miss. 565, 176 So.2d 297 (1965); and McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872 (1950).

Adultery is a violation of the exclusivity of the marital relationship. Hand, supra. A divorce upon a charge of adultery may be granted upon a showing of either an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant. Either of these elements must be supported by proof of a reasonable opportunity to satisfy. Hand, supra, and Bunkley & Morse’s Amis, supra, § 309(6). These elements must be shown to obtain a divorce upon the ground of adultery.

McHann, supra, and McRae, supra, both are distinguishable from the present case. In both cases the divorced wives admitted sexual relationships and cohabitation with men following their divorce decrees. This was not established in the present case. Here the proof at most showed that appellant dated Ellis frequently and the two would occasionally visit alone together in her home. Both denied any sexual relationship and furthermore denied ever sleeping in the same house except when they visited appellant’s mother in Nashville.

Appellee relied upon the presumption that appellant had engaged in fornication with Haywood Ellis. Although the proof showed both a mutual infatuation and an opportunity to gratify, there was no presumption created thereby because appellant was not a married woman. There being no presumption created by the circumstances, the evidence was insufficient to establish a material change of circumstances due to appellant’s alleged sexual misconduct. The chancellor was therefore manifestly wrong in terminating appellant’s alimony for this reason.

II. Did the chancellor err in finding ap-pellee was not in contempt for failing to pay the promissory note held by appellant’s mother pursuant to the parties’ separation agreement?

Appellant contends, under paragraph 7 of the agreement, appellee was obligated to pay a $1000 promissory note executed by the parties in favor of appellant’s father, who is now deceased. According to appellant, her father loaned the parties $2000 to use as a down payment on their first house. Sometime after the money was advanced, a note was submitted to the parties, whereupon they executed the same. When appellant’s father died (June 8, 1978), the note was not listed in the inventory of the estate. No demand was made on appellee for repayment. The note was assigned on July 17, 1980, from Deliann Tolliver Owen, executrix of the estate of William Owen, deceased, to Deliann Tolliver Owen, sole beneficiary under the will of William Owen. Mrs. Owen is appellant’s mother. At the time of trial, only $1000 was alleged to be owing on the note.

The question before this Court is whether the term “bills” as used in the parties’ separation agreement encompasses the promissory note executed by the parties. Appellant contends the note is encompassed by the term. According to her, it was the intent of the parties that she leave the marriage without any debt owing on her part. Appellee contends the note was not discussed during the parties’ negotiations and it was his understanding that he was responsible for only household bills incurred by the parties before February 1980.

The property settlement agreement, being prepared by appellant’s attorney, must be construed more strongly against her. Moreover, any ambiguity or vagueness appearing therein must be construed more strongly against appellant. Stampley v. Gilbert, 332 So.2d 61 (Miss.1976). Words of a contract are to be given their ordinary meaning. Continental Casualty Co. v. Hester, 360 So.2d 695 (Miss.1978).

Under paragraph 4, appellee agreed to discharge the monthly installment note on the house. Under paragraph 6, appellant agreed to be responsible for the indebtedness on one of the automobiles, while the appellee agreed to be responsible for the indebtedness on the second automobile and an airplane.

From the agreement, it is evident that the parties treated their indebtednesses apart from the bills mentioned in paragraph 8. Had the parties agreed that appellee would be responsible for the promissory note in question, it would have been very simple to provide so in the agreement. However, since the parties did not do so and because their indebtedness were separated from the bills provided for in paragraph 8, we cannot say the chancellor was manifestly wrong in his finding.

III. Did the chancellor err in awarding appellant attorney’s fees?

A chancellor has broad authority and discretion in setting appropriate attorney’s fees and unless he is manifestly wrong, this Court will not disturb his award of attorney’s fees. Walters v. Walters, 383 So.2d 827 (Miss.1980). However, the allowance of an attorney’s fee has been held erroneous where the wife has ample means to engage the services of an attorney. Bernard v. Bernard, 43 So.2d 727 (Miss.1949).

Appellant, in the present case, earned approximately $12,000 per year, was purchasing her own home, and owned jewelry and silver with a substantial value (approximately $18,000-$22,000). She also owned a $2000 certificate of deposit and a savings account with a $300 balance. Although appellant certainly had adequate means with which to employ and pay an attorney, this case is controlled by Gresham v. Gresham, 199 Miss. 778, 25 So.2d 760 (1946), wherein we stated:

This brings us to the question of attorney’s fees. The learned chancellor denied application of appellant for any amount for her solicitors. Appellee cites Miller v. Miller, 173 Miss. 44, 159 So. 112; Parker v. Parker, 71 Miss. 164, 14 So. 459; Rees v. Rees, 188 Miss. 256, 193 So. 334, 194 So. 750. But they have no application here, except that appellant is entitled to representation by a competent solicitor, and solicitor’s fees accordingly. Her alimony allowance and rentals cannot be termed large enough for her to pay her counsel out of it. (The house in Brookhaven is mortgaged.) The appellant brought her into court on this matter resulting from their former marital status, seeking, without justification, an alteration of his liability to her from a court decree fixing it, and we think should pay her an attorney’s fee. Otherwise, he could sue her so often as to impose an oppressive burden on her allowance in resisting his repeated applications. We think allowance of an attorney’s fee should have been made her by the court below.
(199 Miss. at 784-85, 25 So.2d at 762).

Because it was the appellee’s action that required appellant’s hiring an attorney, we believe an attorney’s fee was proper in the instant case.

Based on the foregoing, this cause is reversed and rendered as to appellant’s alimony and affirmed as to all other parts.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.

      . For the first 24 months following the divorce, appellee agreed to pay the house note, insurance and taxes on the parties’ residence. The house was then sold pursuant to the parties’ settlement agreement which provided for the sale of the house upon appellant’s remarriage, appellant’s failure to occupy the domicile as her principal residence or the expiration of 24 months.


author: ROY NOBLE LEE, Justice,

text:
    John DANIELS v. STATE of Mississippi.
    No. 53853.
    Supreme Court of Mississippi.
    Nov. 24, 1982.

      Travis Buckley, Dan C. Taylor, Ellisville, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SUGG, P.J., ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

John Daniels was indicted, tried and convicted in the Circuit Court of Covington County, Honorable L.D. Pittman, presiding, for sale of a controlled substance. He was sentenced to serve a term of six (6) years with the Mississippi Department of Corrections and has appealed, assigning the following errors in the trial below:

(1) The' trial court erred in refusing the appellant’s requested instruction for- a directed verdict after having established un-rebutted evidence of entrapment.

(2) The trial court erred in not requiring disclosure of the identity of the police informant involved in the illegal sale.

On April 17, 1980, the Mayor of Collins, Mississippi; Lloyd Jones, Sheriff of Simpson County; Wade Parham, a criminal investigator for the district attorney’s office in the circuit court district; and two narcotics investigators from Hattiesburg, Randy Johnson and Raymond Dear; met north of Collins for the purpose of working on a controlled substance case. Also present was an informant, whose identity was not disclosed.

Upon information received from the confidential informant, Mayor Blackwell of Collins supplied three hundred dollars ($300.00) in cash and Investigator Magee and Sheriff Jones marked the bills with their initials. Agent Johnson, accompanied by the informant, went to the appellant’s home. They were trailed there by Agents Dear and Parham in an unmarked car. Upon arrival at appellant’s home, the informant, acting upon the direction of Agent Johnson, went into the house to get Daniels in order that Agent Johnson could purchase drugs from him. Johnson waited in the vehicle, and after approximately five minutes, the informant and Daniels came out and the informant introduced them. Daniels had a broken leg, wore a cast on it, and walked with crutches. About this time, appellant’s mother came home and Daniels went back inside and stayed for approximately five minutes. His mother left the building, and appellant came back outside with a brown paper sack. He got into the vehicle with Johnson and the informant, and they drove in and around Collins for approximately forty-five (45) minutes, finally stopping on Highway 84. The informant emerged from the car to answer a call of nature, and, in this interim, Agent Johnson bought one hundred sixty-seven (167) assorted pills from appellant. Agent Johnson and the informant returned appellant to his home and met with the group of officers on U.S. Highway 49 where the contraband was delivered to the mayor.

Sheriff Jones and the other officers went to the appellant’s home where they arrested him. Upon searching his person, the marked money was found in his pockets. This series of incidents occurred between 12:40 and 2:00 p.m. Laboratory tests confirmed that a large part of the contraband constituted controlled substances.

I.

Did the lower court err in refusing appellant’s requested instruction for a directed verdict because of entrapment?

At the trial, the State’s case indicated facts substantially as those related above. Appellant testified that the informant and another individual by the name of Jimmie Dickens came to his house before the arrest. Appellant did not know the informant, and Dickens introduced them, referring to the informant as “Don.” Appellant said that the two men came to him because the informant Don wanted to borrow two hundred dollars ($200.00) and that he left with appellant a bag of legal pills “that you could not be arrested for.” According to Daniels, he gave them the $200.00, they left, and he took the bag of pills because they were to assure the return of his money. Appellant’s mother corroborated the fact that Jimmie Dickens and another male visited her son around 5:00 p.m. the day before his arrest. Appellant testified that the next time he saw the informant was on the day he was arrested. Appellant said that the informant Don and the agent came to his house, Don came in, and said that he had the money for him, and also that he wanted to get some stuff out of the bag. The informant got some of the drugs, and then asked if Daniels wanted to go for a ride. Appellant agreed, and they took the bag and left with the agent. According to appellant, the informant never got out of the truck, but sitting between them, the informant gave the bag of pills to the agent, who then gave the informant the money, and the informant handed Daniels the money and said, “Here’s the $200.00 back I owe you.” Af-terwards, they drove back to appellant’s home and in about five minutes, the police came and arrested him.

On cross-examination, appellant admitted exchanging the pills for the money, but claimed that it was strictly repayment of the $200.00 loan. He said he has a friend, one Charles Hughes, who sells caffeine pills legally, and he believed the informant Don when he said the pills were legal.

The State raises the question as to whether or not appellant raised the defense of entrapment, because one who denies the act which constitutes entrapment cannot afterwards claim entrapment as a defense. Pace v. State, 407 So.2d 530 (Miss.1981); McCormick v. State, 279 So.2d 596 (Miss.1973).

Even though appellant testified that he believed the pills to be legal, in our opinion, he may still set up the defense of entrapment. The lower court held that such defense was properly raised.

In Tribbett v. State, 394 So.2d 878, 882 (Miss.1981), the Court said:

The usual entrapment case which arises under Mississippi law involves a confidential informant or police officer who originates the sale of contraband by supplying it to the accused, who then, acting in complicity with the confidential informant or police officer, sells or disposes of it to another officer or person who initiates the prosecution.

See also Epps v. State, 417 So.2d 543 (Miss.1982) and Sylar v. State, 340 So.2d 10 (Miss.1976).

The appellant made out a prima fa-cie case of entrapment by his testimony, which was partially corroborated by his mother. It then became the duty and responsibility of the prosecution to rebut and overcome that prima facie case by introducing the confidential informant and Agent Randy Johnson. The State is responsible for the undenied actions of its informant and officers when the defense of entrapment is raised. Torrence v. State, 380 So.2d 248 (Miss.1980). The State failed to introduce the confidential informant, without making any explanation therefor. Although Agent Randy Johnson testified on the State’s case in chief, the appellant implicated him in the entrapment process and testified that Agent Johnson gave the $200.00 to the confidential informant who then handed it to the appellant, with the statement, “Here’s the $200.00 back I owe you.” The State failed to call Agent Johnson to the stand in rebuttal to refute that statement and other testimony involving Agent Johnson in the alleged entrapment.

Since the testimony of the appellant is . uncontradicted and the defense of entrapment was not rebutted or overcome, the appellant should have been granted a peremptory instruction for a directed verdict of not guilty and should have been discharged.

II.

Did the lower court err in not requiring disclosure of the identity of the police informant involved in the sale?

The principle is established that, the identity of the confidential informant is not required to be disclosed, if he simply is used as an informant and is not a participant in the investigation or purchase of contraband. In the case sub judice, the informant was active in the actual purchase of the contraband and was a witness to certain facts. The appellant was entitled to know his identity in order to call him as a witness and possibly to confirm his testimony. The fact that the State did not disclose his name, even though the prosecution could give no reason for not doing so, and the fact that he was not called by the State, lends some suspicion to the informant.

In Sims v. State, 313 So.2d 27 (Miss.1975), in a concurring opinion, Justice Rodgers distinguished an informant from a participant:

If a reliable informer tell the officers: “If you go yonder you will find” a certain crime or evidence of a certain crime, the identity of the informer may be withheld. On the other hand, if a reliable informer tells the officers: “Come with me and I will help you apprehend the criminal” and takes part in the activity of the police, or the informer becomes a witness to the facts constituting the crime, he becomes a witness whose presence at the trial may be required by the defendant as a constitutional right to be “confronted with the witnesses against him.” U.S. Const. Amend. VI; Miss. Const. § 26. [313 So.2d at 30].

See Hemphill v. State, 313 So.2d 25 (Miss.1975) and Hardy v. State, 313 So.2d 26 (Miss.1975).

The lower court erred in failing to require the State to identify the confidential informant.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Chester Jordan JOHNSTON, Jr. v. STATE of Mississippi.
    No. 53899.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Chester Jordan Johnston, Jr., pro se.

Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Walter Richard SMITH v. Wilsie “Smith” FRIEND.
    No. 53794.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Donald P. Sígalas, Sr., Pascagoula, for appellant.
    Robert W. Smith, Thelma S. Zinner, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    Alberta TONEY v. Jimmy Dale REEVES.
    No. 53400.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Saunders & Todd, Suzanne N. Saunders, Jackson, for appellant.
    McCoy, Wilkins, Noblin & Anderson, Joseph L. McCoy, Jackson, for appellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    GENESCO, INC. v. Ina Ruth HARRIS.
    No. 53521.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Rehearing Denied Dec. 15, 1982.
    Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo, for appellant.
    Comer & Jenkins, Ed Jenkins, Booneville, for appellee.
   Appeal from Circuit Court, Tippah County; William R. Lamb, Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Marshall BRANNAN v. Vernon HOWELL, etc., et al.
    No. 53522.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Parsons & Matthews, Eddy Parsons, Jack Parsons, Wiggins, for appellant.
    Sidney A. Barnett, Lucedale, Cumbest, Cumbest & Hunter, John L. Hunter, Pasca-goula, for appellees.
   Appeal from Chancery Court, George County; Glenn Barlow, Chancellor.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Pamela ALBRITTON v. Shannon COLLINS.
    No. 53451.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Jon A. Swartzfager, J. Larry Walters, Laurel, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Norman Gene Hortman, Jr., Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before SUGG, P.J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    W.H. FANNING & ASSOCIATES, LTD. v. FIRST NATIONAL BANK OF JACKSON and The Lamar, Inc.
    No. 53650.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Young, Scanlon & Sessums, James Leon Young, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Stephen W. Rosenblatt, James W. Newman, III, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before SUGG, P.J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Stewart Travis SEYMOUR v. STATE of Mississippi.
    No. 53901.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Acevedo & Tisdale, Brenda A. Freeman, Biloxi, for appellant.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Bill Allain, Atty. Gen. by Walter Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BROOM, BOWLING, HAWKINS and PRATHER, JJ., concur.


text:
    FINANCE AMERICA PRIVATE BRANDS, INC. v. James H. DURBIN, d/b/a Durbin’s TV and Appliance.
    No. 53462.
    Supreme Court of Mississippi.
    Nov. 24, 1982.
    Megehee, Brown, Williams & Mestayer, Larry A. Smith, Pascagoula, James W. Wilson, Ocean Springs, for appellant.
    Corlew, Krebs & Hammond, Frank J. Hammond, III, John G. Corlew, Robert A. Pritchard, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

REVERSED AND REMANDED.

SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    John L. HOWARD v. Eloise HOWARD.
    Civ. 3133-X.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1982.
    Thomas A. Deas of McDermott, Deas & Boone, Mobile, for appellant.
    William L. Howell of Howell & Nobletto, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case with five issues raised by appellant-husband and two issues raised by appellee-wife on cross appeal.

First, husband claims his constitutional right against self-incrimination was violated. He was required, over objection, to answer questions as to an adulterous affair. (See § 15-3-2, Code 1975). Husband cites Vail v. Vail, 360 So.2d 992 (Ala.1978), as authority for error. Vail is easily distinguishable from this case. Here, husband testified only as to acts occurring beyond the one-year statute of limitations. In Vail the husband testified to acts which fell within the statute of limitations and exposed him to possible criminal prosecution.

Husband also claims error in the requiring of his sexual partner to testify as to her part in the relationship. We find no error for two reasons. First, the testimony was required only to any acts beyond the one-year statute of limitations. Second, the constitutional privilege against self-incrimination is a personal one. Even an erroneous denial of the privilege to a witness who is not a party, is not an error which a party may claim on appeal. C. Gamble, McElroy’s Alabama Evidence 3d, § 374.03.

The husband claims the court erred in requiring him to pay certain expert fees incurred by the wife in preparation of her case. These fees were expenses incurred by wife’s attorneys in bringing and prosecuting her suit. It strikes us that such expense, if determined to be reasonably necessary and reasonable in amount, ought to be considered as necessary to her suit as are attorney fees. Whitfield v. Whitfield, 283 Ala. 433, 218 So.2d 146 (1969). The court allowed expenses incurred in representing the wife as a part of the attorney’s fees in Whitfield. This court did the same in Cooper v. Cooper, 57 Ala.Civ.App. 674, 331 So.2d 689 (1976). We discern no meaningful distinction between requiring such fees to be paid directly and in assessing them as a part of attorney fees. In either case they are “suit money.”

Husband next claims an abuse of discretion in awarding wife’s attorneys a fee of $25,000. The amount of attorney’s fee to be awarded always rests within the sound discretion of the trial judge, and his judgment as to the amount of the fee will not be reversed on appeal unless it is clearly shown that discretion has been abused. Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107, cert. denied, 293 Ala. 748, 309 So.2d 111 (1975). There was testimony from more than one attorney that a reasonable fee for the service performed by wife’s attorney would be between $15,000 and $40,000. Although such a large fee may exceed the usual, it is not so much greater than that charged by counsel of the husband. We cannot find it contrary to the evidence and thus an abuse of discretion.

We briefly turn to appellee-wife’s claims before we address the main issue in the case involving the manner and amount of the alimony-in-gross award.

Wife contends for the first time on appeal that the court erred in extending the period for payment of the alimony in gross beyond ten years. The basis for the contention is that such extension causes heavy taxation to the wife. We fail to find anything in the record concerning the matters related and argued in brief on the subject of such taxes. Not having been previously presented, it cannot now be considered on appeal. Brown v. Brown, 374 So.2d 332 (Ala.Civ.App.), cert. denied, 374 So.2d 334 (Ala.1979).

Wife claims the court abused its discretion in awarding her only $1,250 per month as periodic alimony. The trial court’s judgment as an award of alimony is presumed correct and will not be disturbed on appeal, unless there is a clear and palpable abuse of discretion. Robinson v. Robinson, 381 So.2d 637 (Ala.Civ.App.), cert. denied, 381 So.2d 641 (Ala.1981). In reviewing the evidence we find no abuse of discretion.

Finally, we come to husband’s claim that the trial court abused its discretion in the award and manner of payment of alimony in gross. The alimony-in-gross award is $302,500 — $150,000 payable in three annual installments of $50,000 beginning in December 1982, the remaining $152,500 payable in monthly installments of $1,250 beginning in December 1981.

There were accountants, C.P.A.s and others, who testified to various aspects of the husband’s business and assets. It is clear that in recent years the husband and a partner have made large sums of money and secured valuable capital assets. He was admittedly earning in salary at the time of trial some $5,000 net per month. In the years of 1979 and 1980 his net income exceeded $125,000 per year. His business supported his family in grand style. There was a Cadillac Seville for the wife and two other expensive automobiles for the daughter. There were boats, jewelry and furs, and expensive trips.

The husband’s primary business is the building of commercial fishing boats. There are several complementary corporations doing business with one another. There are three shrimp boats owned and operated by separate corporations. However, in 1980 and subsequently, business fell off greatly and the market value of the boats and capital assets fell markedly. Only three boats are under construction as compared to forty built in 1979.

As in most cases involving businesses, their operation, income, assets and their market value, the testimony of experts in this case widely varied. The testimony as to net assets varied from approximately one and one-half million dollars to some half million dollars. However, the present net salary of approximately $5,000 per month is undisputed. It is undisputed that capital assets have decreased markedly in value. There is little or no market for shrimp boats nor income to be made from them. Within the past two years, similar businesses in Bayou La Batre have fallen from ten or more down to that of appellant and that of Reverend Moon. There are presently no contracts other than three boats under construction for Liberia. There are on hand three unfinished hulls for which the contract was cancelled. There is invested in them cost of nearly $800,000. They are heavily mortgaged to banks. Their appraised value comprises a substantial part of the assets of the husband’s business. However, there is no market for them, especially in their unfinished condition. There is no evidence of capital in the personal or business accounts of the husband with which to pay the annual cash payments of $50,000 awarded the wife. The payment of $2,500 monthly in periodic and gross alimony will take some one-half of husband’s salary which apparently is being paid from advances against the Liberia contract.

It is to be noted that by agreement of the parties already completed, the wife received the home, her valuable furs, her Cadillac, jewelry, all of the hoarded cash, checking and savings accounts of the total value of $49,000 and half of a monthly payment note for $40,000 — all of the agreed present value of approximately $170,000. The decree of the trial court required the husband to pay costs and some $43,000 in attorney fees and expert witness fees. The question arises— where will the husband get such cash sums? Must he sell assets of his business or increase an already heavy indebtedness? Can he do this and still produce the income to maintain the monthly payments and live?

The answer to these questions in light of the undisputed evidence must be that the husband has no such cash available in his personal estate. The evidence fails to disclose any assets other than real and personal property derived from the previous division agreement with the wife. His business assets owned jointly with others are heavily mortgaged, and consist of property items with little or no market demand. It was stated in Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966), that equity does not require a choice between the sacrifice of capital assets or jail if an award of alimony in gross cannot be paid. To secure the cash necessary to pay approximately $43,000 in costs and attorney fees, $50,000 on December 31, 1982, $50,000 payments for the next two years and $30,000 annually in monthly payments of periodic and gross alimony would clearly require the sale or further encumbrance of business assets of greatly diminished value in a period of economic depression. Such action could possibly effect the loss of the business and the income therefrom which is calculated to presently support the husband, wife and daughter and to pay the wife $30,000 per year for the next ten years, and $15,000 per year thereafter. To sacrifice the business assets of the husband to such an extent in order to add to the already sizeable estate of the wife is neither wise nor equitable.

We conclude that the award of $302,500 in gross alimony, payable as directed by the trial court, when viewed in light of the evidence is so excessive and unfair as to constitute an abuse of discretion. We therefore set aside that portion of the judgment awarding alimony in gross. We direct that the trial court enter instead a judgment directing an award to the wife of $200,000 alimony in gross as payment for the loss of her interest in the marital estate, payment of such sum to be made as follows: $150,000 to be paid in monthly installments of $1,250 each for a period of ten years, said payments to begin as may be determined by the trial court. The remaining $50,000 to be due and payable on the last day of the tenth year from the beginning of the monthly installments. Said $50,000 shall draw interest from the date of its entry in judgment at the rate of ten percent per annum until paid, the interest earned being payable yearly upon the anniversary date of the judgment. However, husband shall be granted the right to pay said $50,000, or any part thereof, with accrued interest at any time subsequent to judgment and prior to the due date. Failure to timely pay interest when due will accelerate the due date of the entire $50,000.

All other provisions of the judgment below, including the award of periodic alimony are affirmed.

The request of the wife for attorney fees on appeal is denied.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Everett L. GILLILAND v. Margaret Louise H. GILLILAND.
    Civ. 3294.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.

      Jere L. Beasley of Beasley & Wilson, Montgomery, for appellant.
    John D. Cates, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Montgomery County Circuit Court, after an ore tenus hearing, divorced the parties and incorporated in part and amended in part a separation agreement drawn up by the husband and wife prior to the divorce. The trial court awarded the wife $650 per month in periodic alimony, plus title to the family home.

The husband through able counsel appeals, contending the trial court erred in amending the separation agreement; in granting the wife periodic alimony; and in awarding her attorney’s fees. We find no abuse, and affirm.

The record viewed with the attendant presumptions reveals the following facts.

The husband and wife had been married twenty-nine years. They have two grown children. She is fifty-one, he is forty-seven years old. The husband is the sole stockholder in an ambulance company which operates both in Montgomery and Tuscaloosa. The wife is unemployed.

Prior to filing for divorce, the parties entered a separation agreement in anticipation of divorce. By the terms of that agreement, the wife would receive the family home plus the sum of $50,000 as alimony in gross to be paid in monthly installments over a period of eight years.

The husband filed for the divorce, asking that the court incorporate the separation agreement into the divorce decree. In her answer, the wife admitted entering into the agreement but said she was without counsel at the time and was not sure she had had access to her husband’s financial circumstances. In her answer she asked the trial court to grant her sufficient time to discover her husband’s financial situation.

In her counterclaim for divorce, she stated she entered the agreement without her husband’s full disclosure of his holdings and assets, and that she “may have entered into said agreement without sufficient information to protect her interests under the law....”

In her prayer for relief, the wife asked if she discovered her interests had not been adequately protected that the trial court set the agreement aside and enter its own decision concerning property settlements and alimony and support for her.

In the final decree of divorce, the trial court after “a long and arduous process of discovery” to determine the husband’s financial situation and an ore tenus hearing amended the agreement to provide the wife with $650 per month until death or remarriage. The trial judge also awarded $1,500 in attorney’s fees to the wife. The remainder of the agreement, including the transference of title of the home to the wife, was incorporated into the decree.

From this decree, as indicated, the husband appeals.

I

The husband first argues that the separation agreement entered into by the parties should have been approved in its entirety by the trial court. This court in previously addressing this same argument via our Presiding Judge Wright held:

“The first issue is whether the separation agreement in contemplation of divorce is binding upon the court in entering its judgment in an action for divorce between the parties thereto.
“The answer to the issue is ‘No.’ The matter of alimony allowance in favor of the wife is a matter addressed to the discretion of the court.... The court is not bound by agreement of the parties, but may adopt or reject such parts of it as it may deem proper from the situation of the parties as shown by the evidence.”

Baumler v. Baumler, 368 So.2d 864, 865 (Ala.Civ.App.1979).

The trial court in the instant case after hearing the evidence ore tenus determined that the agreement should be amended to grant the wife periodic alimony until her death or remarriage. Such a finding was a proper exercise of discretion, and we affirm.

II

The husband next contends the trial court abused its discretion in awarding alimony to the wife.

In a divorce proceeding, the trial court may in its discretion award periodic alimony and this exercise of the trial court’s discretion will not be reversed except for palpable abuse thereof. E.g., Rich v. Rich, 402 So.2d 997 (Ala.1981); Rose v. Rose, 395 So.2d 1038 (Ala.Civ.App.1981).

In this case the wife is fifty-one years old, unemployed, with no marketable skills, a back injury, and a high school diploma. She was married to the husband for twenty-nine years. The husband, by his testimony, has a yearly salary from his corporation of $26,000, plus other assets. In light of the wife’s lack of job skills, her age and health, the duration of the marriage, the husband’s means and other factors not mentioned, we find no abuse of discretion, and affirm the award of periodic alimony.

Ill

The husband next contends the trial court erred in awarding an attorney’s fee to the wife’s attorney in view of language in the separation agreement. The pertinent part of the agreement reads: “Husband shall pay all Court costs incurred as a result of any divorce action filed or to be filed, which costs shall not include attorney’s fees.”

With the exception of the alimony provisions, the trial court incorporated “all other provisions of the original separation agreement” into the final decree. But the trial court’s order for the husband to pay $1,500 in attorney’s fee is not in conflict with the above quoted section. We have often held that “[djivorce decrees are to be construed like other written instruments and if there is any uncertainty and ambiguity the court must construe it so as to express the intent of the parties.... Such intent can be derived from the provisions of the judgment.” Scott v. Scott, 401 So.2d 92, 95 (Ala.Civ.App.1981).

In this case, the trial court apparently construed the provision as not prohibiting an award of attorney’s fees, but only that the attorney’s fees were not to be considered payable as court costs of the proceeding. Such a construction is a reasonable reading of the parties’ intent.

Furthermore, an award of attorney’s fee rests in the sound discretion of the trial court who must consider among other factors the earning capacity of the parties and the financial circumstances of the husband. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974). The determination of the amount of attorney’s fees is within the sound discretion of the trial judge. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969).

In light of the wife’s claim that she was without the resources to pay her attorney, and that testimony was heard that the wife’s attorney’s rates were “quite reasonable,” we cannot say the trial judge abused his discretion, and therefore affirm.

The wife has requested an award of reasonable attorney’s fees for defending this appeal. We consider $500 to be a reasonable attorney’s fee and award her that amount.

The case is due to be affirmed.

AFFIRMED.

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


author: ALDERMAN, Chief Justice. ADKINS, Justice,

text:
    Douglas L. GROSE, Thomas P. Fox, and Committee for Constitutional Education, Appellants, v. George FIRESTONE, Secretary of State, and Dorothy Glisson, Deputy Secretary of State for Elections, Appellees.
    No. 62796.
    Supreme Court of Florida.
    Nov. 1, 1982.
    Thomas P. Fox, and Douglas Leon Grose of Anderson, Thorne, Grose & Quesada, Tampa, for appellants.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for appellees.
    Arthur I. Jacobs, Fernandina Beach, and Raymond L. Marky, Tallahassee, for Florida Pros. Attys. Ass’n, Florida Police Chiefs Ass’n, Fraternal Order of Police and IMPACT, appellees-intervenors.
    Ronald A. Labasky of Madigan, Parker, Gatline, Swedmark & Skelding, Tallahassee, for Florida Sheriffs Ass’n, amicus curiae.
   ALDERMAN, Chief Justice.

This cause has been certified to us by the District Court of Appeal, First District, pursuant to article V, section 3(b)(5), Florida Constitution. Since this is a matter of great public importance requiring immediate resolution, we accept jurisdiction to review the judgment of the circuit court which holds that there is no constitutional or statutory impairment which would warrant interference with the submission to the voters of Amendment 2 on the ballot of the November 2, 1982, election. We agree with the trial court and affirm its judgment.

Amendment 2 is a proposed amendment to article I, section 12, Florida Constitution, relating to the right to be free from unreasonable searches and seizures. On June 24, 1982, House Joint Resolution No. 31-H was filed in the office of the Secretary of State. This Resolution provides:

A joint resolution proposing an amendment to Section 12, Article I of the State Constitution, relating to searches and seizures, to provide a rule of construction and to limit the exclusion of evidence.
Be It Resolved by the Legislature of the State of Florida:
That the following amendment to Section 12 of Article I of the State Constitution is hereby agreed to and shall be submitted to the electors of this state for approval or rejection at the general election to be held in November 1982.
ARTICLE I
DECLARATION OF RIGHTS
SECTION 12. Searches and seizures.— The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
BE IT FURTHER RESOLVED that the following statement be placed on the ballot:
CONSTITUTIONAL AMENDMENT
ARTICLE I, SECTION 12
SEARCHES AND SEIZURES. — Proposing an amendment to the State Constitution to provide that the right to be free from unreasonable searches and seizures shall be construed in conformity with the 4th Amendment to the United States Constitution and to provide that illegally seized articles or information are inadmissible if decisions of the United States Supreme Court make such evidence inadmissible.

Appellants initiated this challenge to Amendment 2 on October 22, 1982, by the filing of a petition for injunctive relief seeking to enjoin George Firestone, as the Secretary of State, and Dorothy Glisson, as Deputy Secretary for Elections, from placing the proposed amendment on the November 2, 1982, ballot. On October 26, 1982, an amended petition was filed requesting injunctive and declaratory relief.

After hearing arguments for appellants and appellees and arguments of amicus curiae on behalf of the Florida Prosecuting Attorneys Association, the Florida Police Chiefs Association, the Fraternal Order of Police and Independent Minded People Against Crime Today, and the Florida Sheriffs Association, the trial court, in a succinct order, denied the petition for preliminary injunction and dismissed the amended petition with prejudice.

Appellants appealed to the District Court of Appeal, First District, but requested that the district court certify the judgment to us for immediate resolution.

Appellants initially contend that the trial court erred in not granting their request for preliminary injunction since the ballot summary of the proposed amendment is misleading and does not fully advise the electors of the effect of the amendment. Appellants submit that although the chief purpose of the joint resolution proposing the amendment is to provide a rule of construction and to limit the exclusion of evidence in criminal cases, the ballot summary only discloses that the state constitution is to be amended to provide that article I, section 12, is to be construed in conformity with the fourth amendment to the United States Constitution as interpreted by the Supreme Court of the United States. Appellants suggest that the ballot summary fails to disclose or put voters on notice of the total effect of this amendment. We disagree with appellants and hold that the ballot summary clearly and unambiguously gives voters notice of the effect of this amendment.

Section 101.161, Florida Statutes (1981), which sets out the prerequisites for submission of a constitutional amendment or other public measure to the vote of the people, states in pertinent part:

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot .... The wording of the substance of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the joint resolution .... The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of....

Recently in Askew v. Firestone, 421 So.2d 151 (Fla.1982), we said that the purpose of section 101.161 is to assure that the electorate is advised of the meaning and ramifications of the amendment. We said:

The requirement for proposed constitutional amendment ballots is the same as for all ballots, i.e.,
that the voter should not be misled and that he have an opportunity to know and be on notice as to the proposition on which he is to cast his vote.... All that the Constitution requires or that the law compels or ought to compel is that the voter have notice of that which he must decide.... What the law requires is that the ballot be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.
Hill v. Milander, 72 So.2d 796, 798 (Fla.1954) (emphasis supplied).
Simply put, the ballot must give the voter fair notice of the decision he must make. Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981)....

Id., at p. 155.

The wording of the ballot summary of proposed Amendment 2 is unambiguous and clearly states the amendment’s chief purpose. The purpose of the amendment is to assure that article I, section 12 of the Florida Constitution, is read in conformity with the fourth amendment to the United States Constitution as interpreted by the Supreme Court of the United States and that any evidence found inadmissible by that Court would be inadmissible in this state. There are no hidden meanings and no deceptive phrases. The summary says just what the amendment purports to do. It gives the public fair notice of the meaning and effect of the proposed amendment.

Appellants effectually seek an exhaustive explanation reflecting their interpretation of the amendment and its possible future effects. To satisfy their request would require a lengthy history and analysis of the law of search and seizure and the exclusionary rule. Inclusion of all possible effects, however, is not required in the ballot summary. Smathers v. Smith, 338 So.2d 825 (Fla.1976). The ballot summary of Amendment 2 clearly states the chief purpose of this amendment and provides the electorate with fair notice of the intent of the amendment. This ballot summary complies with all the requirements of the law.

On several occasions this Court has removed an amendment from the ballot because the measure was clearly and conclusively defective. Examples are Askew v. Firestone, ballot summary misleading; Adams v. Gunter, 238 So.2d 824 (Fla.1970), proposed amendment would improperly alter more than one section of the constitution; Rivera-Cruz v. Gray, 104 So.2d 501 (Fla.1958), “daisy chain” method of amendment improper; Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318 (1944), proposed amendment improperly related to more than one subject; Gray v. Moss, 115 Fla. 701, 156 So. 262 (1934), proposed amendment not properly passed by both houses of the legislature; Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912), amendment not proposed by the requisite vote of each house of the legislature. None of these factual situations exist in this case.

Appellants’ argument that the substance of the amendment is unconstitutional is not a justiciable issue in this case and may be raised in an appropriate proceeding in due course when the issue is properly presented. Gray v. Winthrop, 115 Fla. 721, 156 So. 270 (1934); Gray v. Moss.

Accordingly, finding no merit to appellants’ arguments, we affirm. No petition for rehearing will be permitted.

It is so ordered.

BOYD, OVERTON, ■ McDONALD and EHRLICH, JJ., concur.

ADKINS, J., concurs with an opinion, with which OVERTON, J., concurs.

ADKINS, Justice,

concurring.

Unlike the situation that existed in Askew v. Firestone, 421 So.2d 151 (Fla.1982), the ballot summary here does not imply it is doing one thing, when, in fact,, it is doing the opposite. .The ballot summary of the proposed amendment in question is not misleading and thus the Askew decision does not apply.

Appellants have also tried to argue that the proposed amendment is unconstitutional. No judgment may be made by this Court on the wisdom of the proposed measure and the trial court was correct in refusing to examine the measure on this basis.

The trial judge could have dismissed this case upon the grounds of laches. The house joint resolution was filed with the office of the secretary of state on June 24,1982. No action was taken by the appellants until October 22,1982, a mere eleven days before the November 2, 1982, election. No reason has been given for the delay. Appellees, relying on no challenge to the proposed amendment, ordered the ballot printed, mailed out ballots to absentee voters, and have spent public money to insure proper ballots to all the electorate. At this date, there is no physical way to stop the ballot-printing process prior to election and still have a smooth running election. All of the facts presented by appellants were known on or immediately after June 24,1982. The record of the legislation has been public and there has been no fraud or concealment of any facts by the appellees. The case of the appellants is barred by reason of laches.

OVERTON, J., concurs.


author: PER CURIAM.

text:
    George C. WRIGHT, Petitioner, v. Ruby M. WRIGHT, Respondent.
    No. 59907.
    Supreme Court of Florida.
    Nov. 10, 1982.

      Richard W. Hennings of Cauthen, Robuck & Hennings, Tavares, for petitioner.
    W.B. Hunter, Tavares, for respondent.
   PER CURIAM.

This cause is before the Court on petition for review of the decision below, Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), which conflicts with Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner George C. Wright owned a house in Florida, a house in Indiana, two certificates of deposit each in the amount of $10,000, and fifteen shares of bank stock. He acquired all of this property during a long working life and first marriage before he married respondent Ruby M. Wright. After they married, the husband conveyed the house in Indiana to the wife. He conveyed the Florida property, the two certificates of deposit, and the bank stock to himself and his wife as tenants by the entir-eties. The parties resided in the Indiana home during the summer and in the Florida home during the winter. The marriage lasted ten years.

In the dissolution proceeding, the husband asked the court to award the above-named properties to him on the ground that, since they were acquired with his separate assets before the marriage, he had a “special equity” in the property interests to which legal title was held by the wife. As the district court noted, there was no question that the properties were acquired before the marriage and that the wife made no contribution whatsoever to their acquisition. The husband testified the conveyances of the Indiana property to the wife and of the other properties to himself and his wife as tenants by the entireties were made so that his wife would have right of surviv-orship if he died. The wife testified that survivorship was never mentioned and that the conveyances to her were made so that they would own the properties “as husband and wife.”

The trial court gave effect to the record legal title to the property. He awarded the wife the Indiana property already held in her name and ordered the jointly-held properties divided between husband and wife. On appeal the husband argued that the court erred in refusing to award him a special equity in the property interests held by the wife. He based his contention on Ball v. Ball, 335 So.2d 5 (Fla.1976).

The district court held that Ball was inapplicable because the conveyances in question were made before the Ball decision was rendered. This holding directly and expressly conflicts with Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978), where the Ball decision was applied in a case where the disputed property was conveyed before Ball was decided.

The district court erred in holding Ball to be inapplicable. In Ball, the Court said that in order to avoid litigation the decision would “apply only to dissolution proceedings instituted after the date this opinion becomes final.” 335 So.2d at 8. The language indicates that the date a dissolution proceeding is instituted by the filing of a petition is dispositive. The date of the conveyance is irrelevant. The decisions on this point in Hart v. Hart, 377 So.2d 51 (Fla.2d DCA 1979), and Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979), upon which the district court relied, were erroneous. The principles of Ball v. Ball, then, are fully applicable to this case since the dissolution proceeding was begun after the Ball decision became final.

The decision of the district court of appeal is therefore quashed. Having decided the legal point upon which there was conflict, we remand the case to the district court to consider the appeal in light of our holding.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and McDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Harvey SCHELL, Respondent.
    No. 60532.
    Supreme Court of Florida.
    Nov. 10, 1982.
    Barry D. Hunter of Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, Miami, for complainant.
    Jerold H. Reichler of the Law Offices of Jerold H. Reichler, North Miami Beach, for respondent.
   PER CURIAM.

The Florida Bar filed a petition against Harvey Schell claiming that he had been involved in the unauthorized practice of law. A stipulation and an order have been presented to this Court, which we have considered and now approve.

The following activities constitute the unauthorized practice of law and may not be carried out or conducted in Florida by a person not admitted to the Florida Bar: (a) printing, or having printed on his behalf, business cards stating that he is an attorney at law, (b) delivering the aforesaid business cards to any member of the public, (c) otherwise holding himself out as an attorney authorized to practice law in Florida. The respondent has admitted that he has engaged in these activities.

Having considered the petition and stipulation, the respondent is permanently enjoined from engaging in the acts set forth above and otherwise engaging in the practice of law in the State of Florida and, in the event that respondent engages in any of the conduct enjoined herein, he will be found in indirect criminal contempt of the Supreme Court of the State of Florida for the unauthorized practice of law in this state.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, MCDONALD and EHRLICH, JJ., concur.


author: OVERTON, Justice.

text:
    Armond P. SAVOIE, Petitioner, v. STATE of Florida, Respondent.
    No. 61083.
    Supreme Court of Florida.
    Nov. 10, 1982.

      Edward R. Kirkland, Orlando, for petitioner.
    Jim Smith, Atty. Gen. and Barbara Ann Butler and Sean Daly, Asst. Attys. Gen., Daytona Beach, for respondent.
   OVERTON, Justice.

This is a petition to review the decision of the Fifth District Court of Appeal reported as Savoie v. State, 401 So.2d 1138 (Fla. 5th DCA 1981). We find conflict, as acknowledged by the district court in its opinion, with T.C. v. State, 336 So.2d 17 (Fla. 3d DCA 1976), and Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The issue before us arose from a denial of a motion to suppress made during trial. Although the trial judge heard the motion on the merits, he denied it both on the merits and on the ground of waiver, finding waiver because the motion was made during trial and was, therefore, not timely under the provisions of Florida Rule of Criminal Procedure 3.190(h)(4). On appeal, the district court affirmed the waiver ruling and refused to consider the denial on the merits. Under the circumstances of this case, we reject the district court’s holding that waiver was the proper basis for denying the motion to suppress. The trial judge considered the motion on the merits, and we find that this renders the waiver issue moot. We further find that the trial judge correctly denied the motion to suppress on the merits. We have addressed this issue because, once we accept jurisdiction over a cause in order to resolve a legal issue in conflict, we may, in our discretion, consider other issues properly raised and argued before this Court. We, therefore, approve the result of the district court’s decision.

We must detail the mostly uncontrovert-ed facts in the record in order to properly address the issues in this cause. Petitioner, Armond Savoie, was charged by information with having committed bribery by corruptly giving the sum of five thousand dollars to Officer Stewart of the City of Winter Park police force with the intent to influence the performance of that officer by requesting that he destroy or dispose of evidence in two pending criminal cases. According to Officer Stewart’s testimony, he met with Savoie in a restaurant in Cler-mont, Florida, at which time Savoie asked if he could dispose of the criminal charges pending against one James Savage, and, if so, how much this service would cost. Officer Stewart, who was an investigator in the Savage case, prepared simulated evidence to sell to Savoie. This simulated evidence consisted of fabricated video tapes and two envelopes containing money. Officer Stewart put police evidence tape on all of these items and marked them as evidence. He then contacted Savoie and arranged to meet him at a motel in Kissimmee, Florida. Several law enforcement officers were stationed in the room adjoining that in which Officer Stewart and Savoie were meeting.

Officer Stewart testified that, when he gave Savoie the simulated evidence, Savoie in turn gave him fifty $100 bills and that Savoie placed the simulated evidence in an attache case, which he locked, and left the room with the case. A short distance outside the room, Savoie was placed under arrest by one of the accompanying police officers; Savoie was carrying the attache case at the time of his arrest. The officer searched Savoie, handcuffed him, and took control of the attache case. During the search, the officer found the key to the attache case and immediately opened the case at the scene of the arrest. The search was conducted without a warrant and without Savoie’s consent.

Savoie did not file a pre-trial motion to suppress the contents of the attache case, and the trial commenced on May 19, 1980. On May 20, during the testimony of the officer who made the arrest, the prosecution attempted to have him identify the contents of the attache case. Savoie’s counsel objected, asserting that Savoie’s constitutional rights had been violated. The trial judge excused the jury and heard the testimony of the officer as to the circumstances of the arrest and preliminary legal argument by counsel as to the validity of the search and seizure. A recess was then taken so that counsel and the court could research and examine relevant eases. It was only after the trial court had heard all the testimony from the arresting officer and full argument by both counsel on the merits of the motion to suppress that the state objected to the motion because it was not timely filed. The state asserted that Savoie had waived the right to make the motion to suppress by failing to make the motion before trial, as required by rule 3.190(h)(4). During the discussion which ensued on the waiver issue, the trial judge expressed concern that the state could not immediately appeal an adverse ruling on the motion as it could have done had a pre-trial motion to suppress been granted. Counsel for Savoie contested the waiver claim by contending that the discovery information furnished by the state did not adequately disclose that the contents of the attache case were to be submitted as evidence.

The trial judge, in ruling on the motion, stated: “On the merits ... I am going to deny the Motion to Suppress.” The trial judge ruled alternatively, stating, “I think it has been waived.” With regard to the motion’s merits, the trial judge expressly relied on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in finding that the search in this case was reasonable because it was made incident to a valid arrest and was not rendered invalid by the fact that the police did not believe that Savoie had access to a weapon in the attache case or was about to destroy evidence which might be contained in the case.

The district court affirmed the trial court’s denial of the motion on the basis of waiver, reasoning that:

Because Savoie failed to move to suppress prior to the trial as required by the Rule when he was aware of the grounds for the motion and had ample opportunity to make the motion, we hold that he failed to preserve for appeal any error in the admission of the evidence.

Savoie, 401 So.2d at 1139. It did not address the trial court’s ruling on the merits.

Waiver under Rule 3.190

The first issue we must address is whether Savoie’s failure to make a pre-trial motion resulted in an absolute waiver of his right to contest the validity of the search and seizure of the contents of his attache case and the admission of these contents into evidence. The state contends that petitioner is not entitled to a hearing on the merits of the motion to suppress and that a waiver is the only appropriate sanction for enforcing the provisions of rule 3.190(h)(4).

Rule 3.190(h) concerns motions to suppress evidence obtained in an unlawful search and seizure. The relevant portions of the rule read as follows:

(2) Contents of Motion. Every motion to suppress evidence shall clearly state the particular evidence sought to be suppressed, the reasons for suppression and a general statement of the facts on which the motion is based.
(3) Hearing. Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, the defendant shall present evidence supporting his position and the State may offer rebuttal evidence.
(4) Time for Filing. The motion to suppress shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court may entertain the motion or an appropriate objection at the trial.

(Emphasis added.) This rule is designed to promote the orderly process of trial by avoiding the problems and delay caused when the trial judge must interrupt trial, remove the jury from the courtroom, and hear argument on a motion to suppress that could easily have been disposed of before trial. Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969). Also, when the rule is complied with, the state is afforded an opportunity to appeal the ruling of a trial judge in the event the evidence is suppressed; when the judge rules at trial to suppress evidence, the state is foreclosed from appealing that decision. See Fla.R.App.P. 9.140(c)(1)(B).

Rule 3.190(h)(4) does not, however, require that all motions to-suppress be heard before trial. Rather, the rule expressly grants the trial judge discretionary authority to entertain either a motion to suppress or an objection to the introduction of certain evidence made during the course of the trial. This discretionary authority is necessary in order to avoid the sixth amendment ramifications which might result from the application of an absolute waiver rule against a defendant whose counsel failed to comply with the requirements of rule 3.190(h). Likewise, the rule does not affect the inherent power of the trial court to reconsider, while the court has jurisdiction of the case and upon appropriate motion or objection by either counsel, a ruling previously made on a motion to suppress.

We find that in the instant case the trial judge exercised his discretion to entertain the motion to suppress made during trial. He heard the proffer of testimony and the arguments of counsel on the validity of the search and seizure, and he ruled on the merits of the motion. In our opinion, the issue of waiver became moot because the hearing was held and a ruling made on the motion’s merits. We fully agree with the statement in Davis that, if the judge

decides to entertain this motion it is then his decision that results in interruption of the trial, and once the trial has been interrupted the reason for the old rule vanishes, whether the judge subsequently grants or denies the motion.... [Wjhen the trial judge proceeds to exercise his discretion to entertain the motion he has, in a sense, rejected defendant’s waiver of his right to contest this issue.

226 So.2d at 259.

In exercising the discretionary authority granted by the rule to decide whether to hear a motion to suppress made during the course of a trial, the judge must balance the rights of the defendant to due process and effective assistance of counsel with the rights of the state to have an opportunity to appeal an adverse ruling on the motion to suppress. However, once the decision is«made to hear the motion on the merits, we find the issue of waiver is no longer before the court. We conclude, therefore, that, in the circumstances of this case, once the trial judge interrupted the trial and conducted a hearing on the merits of the motion to suppress, waiver was no longer a proper ground for denying the motion.

Jurisdiction of this Court to Consider the Merits of the Motion to Suppress

We agree with the acknowledgment in the district court’s opinion that its decision conflicts on the waiver issue with Davis and T.G. v. State, 336 So.2d 17 (Fla. 3d DCA 1976). We have jurisdiction, and, once this Court has jurisdiction of a cause, it has jurisdiction to consider all issues appropriately raised in the appellate process, as though the case had originally come to this Court on appeal. This authority to consider issues other than those upon which jurisdiction is based is discretionary with this Court and should be exercised only when these other issues have been properly briefed and argued and are dispositive of the case. In Zirin v. Charles Pfizer & Co., 128 So.2d 594, 596 (Fla.1961), Justice Drew explained the reasons why, once it has jurisdiction, this Court should exercise its discretion and dispose of the entire cause when the issues are properly before it:

Needless steps in litigation should be avoided wherever possible and courts should always bear in mind the almost universal command of constitutions that justice should be administered without “sale, denial or delay.” Piecemeal determination of a cause by our appellate court should be avoided and when a case is properly lodged here there is no reason why it should not then be terminated here.... “[m]oreover, the efficient and speedy administration of justice is ... promoted” by doing so.

We have concluded that, based upon these principles, we can appropriately address the correctness of the trial judge’s denial of the motion to suppress on its merits. Both parties have fully briefed and argued the issue before this Court, and our action in resolving this question will avoid a piecemeal determination of the case.

The Merits of the Motion to Suppress

At the outset it should be noted that Savoie concedes the validity of his custodial arrest. The question to be determined is whether the search of the contents of the attache .case Savoie was carrying at the time of his arrest was a reasonable search incident to a lawful arrest.

A search incident to a lawful arrest is a well-established exception to the requirement of a search warrant. Petitioner contends that the search of the attache case was not within the proper scope of a search incident to a lawful arrest. Petitioner theorizes that, because the attache case was beyond his control at the time of the search, its contents were not a threat to the arresting officers nor was there any possibility that petitioner could destroy the evidence contained within the case. As a result, petitioner argues, the search was no longer a search incident to a lawful arrest under the reasoning in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

We disagree. In United States v. Chadwick, 433 U.S. 1, 14, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977), the United States Supreme Court stated that searches incident to a lawful custodial arrest may be conducted “whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence.” We find that the recent decision of the United States Supreme Court in New York v. Belton, 453 U.S. 454,101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), clearly controls our disposition of this case. In Belton, the majority upheld, as a valid search incident to a lawful arrest, the search of a closed zipper-pocket in the defendant’s jacket, which was seized from inside the passenger compartment of defendant’s automobile. The search occurred after the defendant had been arrested and while he was being held by police outside his vehicle. The majority opinion states:

[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach.

Id. at 460, 101 S.Ct. at 2864 (footnotes omitted). The majority emphasized that “[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Id. at 461, 101 S.Ct. at 2864 (quoting from United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973) (emphasis added)). It is clear from the dissenting opinions in Belton by Justices Brennan and White that the majority in Belton rejected the theory advanced by petitioner in this case that the actual ability of one placed under custodial arrest to reach a weapon or destroy evidence is the determinative consideration in deciding whether a search incident to an arrest is valid.

Petitioner would have us hold that a container carried by a person at the time of his arrest could not be searched after it was seized. This interpretation is illogical and unreasonable in light of the decision in Belton that a container left inside a car at the time of an arrest can validly be searched without a warrant as part of a search incident to a lawful arrest. In our view, the law is now clear that when there is a lawful arrest it is a reasonable intrusion incident to that arrest to search both the person and any container that person is carrying. See also United States v. Brown, 671 F.2d 585 (D.C.Cir.1982). We, therefore, conclude that the trial judge was correct in denying the motion to suppress the contents of Savoie’s attache case.

For the reasons expressed, the judgment and sentence, as affirmed by the district court, are approved, but the reasoning contained in the district court’s opinion, based as it is upon a waiver theory, is disapproved.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., concurs in result only.

      . The state could retain the right to appeal if the defendant consented, prior to the hearing on the motion, to a mistrial in the event the trial court suppresses the evidence.

      . The basic exceptions to the warrant requirement include: (1) a search incident to a lawful arrest, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); (2) a search conducted when contraband is in plain or open view, see Ensor v. State, 403 So.2d 349 (Fla.1981); (3) a search under the “automobile exception,” see United States v. Ross,-U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); (4) an inventory search incident to a proper impoundment, see Miller v. State, 403 So.2d 1307 (1981); (5) a “stop and frisk” search, see Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).