text:
    Phillip WHITWORTH and Virginia Whitworth v. The UTILITIES BOARD OF the TOWN OF BLOUNTSVILLE, Alabama, and Charles Hendrix.
    No. 79-21.
    Supreme Court of Alabama.
    April 11, 1980.

      Thomas B. Prickett, II, Thomas L. Roun-tree, Oneonta, for appellants.
    Robert E. Austin, of Nash & Walker, Oneonta, for appellee Utilities Bd. of the Town of Blountsville.
    B. J. McPherson, Oneonta, for appellee Charles Hendrix.
   ALMON, Justice.

This is an appeal by the plaintiffs, Phillip and Virginia Whitworth, from the denial of their motion for new trial. The complaint consisted of two counts. The first count charges the Utilities Board with negligence in maintaining its sewer lines. The second count against Hendrix, the builder of the plaintiffs’ house, is in warranty. At the conclusion of the plaintiffs’ case, the court directed verdicts for the defendants.

On November 29, 1976, the plaintiffs, Phillip and Virginia Whitworth, owned and resided in a house within the Town of Blountsville, Alabama. This house had been purchased from defendant Charles Hendrix in 1975.

While Hendrix owned this house a sewage line was installed. It was hooked onto the main sewage line which is owned and operated by defendant Utilities Board of the Town of Blountsville.

At the time this line was attached Kermit Clayburn was employed as Superintendent of water and sewage by the Utilities Board. He inspected the lines at the time of installation as it was his job to keep the Town’s sewer system operating effectively. The plaintiffs paid a monthly bill to the Utilities Board of the Town of Blountsville for this sewer service.

On the morning of November 29, 1976, Virginia Whitworth heard gurgling noises in the basement of her home and found sewage backing up into the basement through the drain in her shower. She immediately called the Blountsville Town Hall and reported this to the Town Clerk, requesting assistance.

That afternoon Kermit Clayburn arrived at the Whitworths’ home. Clayburn attempted to stop the backup of sewage by pouring acid into the drain of a shower stall. This attempt failed to stop the flow of sewage. Phillip Whitworth and a neighbor then dug .up the sewer line and knocked a ventilator hole in it. Sewage poured out of this hole into the Whitworths’ yard. The sewage flow into the basement ceased.

The following day Clayburn inserted a steel cable approximately one hundred feet long into the hole made by Phillip Whit-worth. This metal snake was not long enough to reach the clog. Clayburn then inserted the snake into a manhole located fifty yards from the Whitworths’ property. The clog was found and cleared. Clayburn told the plaintiffs that this clog was in the main or feeder line of the sewer and not in the line from their house.

Two days later sewage again backed up in the shower stall. However, it was confined to this area and no damage was done. Clayburn was called and he cleared the sewer line.

The plaintiffs brought suit against the Utilities Board of the Town of Blountsville and Charles Hendrix for damages resulting from this sewage backup. During the course of the trial plaintiffs requested that Kermit Clayburn be considered as an adverse witness under Rule 43(b), ARCP, and that they also be allowed to refresh his memory from a previous deposition. The trial court refused both requests.

Motions for directed verdict were filed on behalf of each defendant and granted by the trial court. Plaintiffs’ subsequent motion for a new trial was denied.

The plaintiffs assert that the trial court was in error in failing to grant their motion for a new trial and raise the following issues:

(1) Did the trial court err in refusing to allow the plaintiffs to question Kermit Clayburn as an adverse witness? and
(2) Did the trial court err in granting defendants’ motion for a directed verdict? [1] Rule 43(b), ARCP, sets forth the

scope of examination and cross-examination. For one to be considered an adverse witness under this Rule the defendants contend that such person must be a party to the law suit “or an officer, director, or managing agent of a public or private corporation . . . .” And since Clayburn fails to fall within any of these categories he could not be an adverse witness. This is the position taken by the trial court.

In its analysis of Rule 43(b), Wright & Miller’s treatise on federal practice and procedure states that:

. the second sentence of Rule 43(b) creates a broader remedy. It allows a party to call to the stand an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association that is an adverse party. A witness so called may be interrogated by leading questions, he may be contradicted, and he may be impeached just as if he had been called by the adversary. This useful provision of the rule has been liberally construed by the courts. They have taken a broad view of who is a “managing agent” and they have expanded the concept of the adverse party to include anyone who could have been sued, either instead of the named defendant or as a codefendant. They have not extended the rule, however, to a mere employee of a party or others not closely enough related to a party.

9 Wright & Miller, Federal Practice and Procedure § 2413, at p. 368-70 (1971). See also, Skogen v. Dow Chem. Co., 375 F.2d 692 (8th Cir. 1967).

We find Clayburn to be a managing agent within the meaning of Rule 43(b). Clayburn’s title, while employed by the Utilities Board, was that of Superintendent of Water and Sewage. His duties were to keep up the main line, the sewer, and all meters to the main sewer. As he appears to be the sole person concerned with the maintenance of the city sewers the trial court was in error in failing to permit the plaintiffs’ questioning him as an adverse witness.

The plaintiffs allege that their amended complaint contains two theories of recovery, one being breach of an implied contract, and the other that of negligence. They contend that the trial court erred in directing a verdict' against them on both of these theories.

However, we find that the plaintiffs’ complaint as amended, contains counts sounding only in negligence and not in contract. As the contractual issue was not properly before the trial court it may not now be raised on appeal. Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 3.66 So.2d 251 (Ala.1979); Brown v. Robinson, 354 So.2d 272 (Ala.1977).

The plaintiffs’ negligence theory of recovery is based upon § 11-47 — 190, Code 1975, which states:

No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body

It is alleged that the damage to their home was proximately caused by Clayburn’s failure to promptly respond to plaintiffs’ requests for assistance.

In Sisco v. City of Huntsville, 220 Ala. 59, 124 So. 95 (1929), this Court found that a city could be held liable, in some instances, for the damage caused by its sewer system. The Court stated that:

A municipality duly authorized to construct and maintain a system of municipal sewers, when undertaking so to do, owes the duty of reasonable and ordinary care to avoid injury to persons and property. While related to the government function of preserving the public health, such improvement and the maintenance thereof involves continuous management.
******
. The liability is analogous to that involved in the construction and maintenance of streets, or public utilities like water works and light plants.

220 Ala. at 60, 124 So. at 96. [Citations omitted.]

The question presented is whether the City exercised reasonable and ordinary care in dealing with the Whitworths’ sewage problem as there is no absolute liability for sewer system backups. Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419 (1957).

On the day in question, Mrs. Whitworth discovered sewage backing up into her home at 10:00 o’clock that morning. She immediately called City Hall requesting assistance. Mrs. Whitworth attempted to solve the problem herself by pouring Drano into the shower drain. This attempt was unsuccessful and when she returned that afternoon, after picking up her daughter from school, she found her basement flooded with sewage. She again called City Hall asking for help. Kermit Clayburn finally arrived at 4:00 p. m., some six hours after Mrs. Whitworth’s first phone call. The reason for this delay is not apparent from the record.

The Utilities Board will not be liable for mere delay by Clayburn in arriving at the Whitworth’s home. It must be shown that his delay was due to negligence. However, there is no need for us to resolve this issue as this case is due to be reversed on another ground previously stated. We will not decide what the trial court might have found had the plaintiffs been allowed to cross-examine Kermit Clayburn as an adverse witness under Rule 43(b).

The decision of the trial court directing a verdict in favor of the Utilities Board of the Town of Blountsville is due to be reversed. The trial court’s decision as to defendant, Charles Hendrix, is hereby affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    W. T. McKNIGHT v. PRICE FARMS, INC., a corp.
    79-315.
    Supreme Court of Alabama.
    April 11, 1980.

      Henry B. Steagall, III of Steagall & Adams, Ozark, for appellant.
    Edward M. Price, Jr., Farmer, Farmer, Price & Espy, Dothan, for appellee.
   EMBRY, Justice.

W. T. McKnight, defendant, appeals from a final judgment in a boundary line dispute which established, located, and defined the boundary line between property owned by McKnight and property owned by plaintiff, Price Farms, Inc., and also ordered that the expenses incurred for the survey work done relative to this boundary line dispute be shared by both parties. We affirm.

Price Farms, Inc., initiated this proceeding by filing a complaint which included allegations that: (1) plaintiff and defendant are coterminous landowners whose properties share a common boundary for approximately 2500 feet; (2) there is a dispute as to the location of the common boundary; (3) the defendant built a fence on plaintiff’s land; (4) there is confusion and uncertainty between plaintiff and defendant as to the true location of the boundary between the properties; and (5) it is necessary for the court to appoint a qualified and licensed surveyor to'establish permanent landmarks to settle the boundary dispute as is permitted by § 35-3-3, Code 1975. McKnight filed a general denial and counterclaim alleging, among other things that: (1) it is necessary for the court to establish all boundaries between the parties; (2) the boundary line between the parties’ lands has long been marked by a wire fence; and (3) McKnight has had open, notorious, continuous, adverse and exclusive possession for twenty years of all land west of the old fence line between the parties’ property. Price Farms filed a denial of McKnight’s counterclaim.

The trial court conducted a hearing, ore tenus, and entered its final judgment with the following findings:

“The plaintiff and defendant own adjoining lands. There is a dispute as to the location of the boundary line between their property. An old fence, remnants and evidence of said fence being still in existence and on the ground, marked the boundary between the two parcels of property for years. Admittedly, the fence is crooked and does not follow the deed description and does not run exactly on a section line or 40 line. The fence meanders along, going from tree to tree, stump to stump, and gully or wash to gully or wash. It basically followed natural markings paying no attention to the deed description or to any government survey. The Court is of the opinion that this old fence line is the boundary line between the property in question.
“The Court is further of the opinion that in order to locate and define the boundary line, a line must be established by a survey and by the placing of judicial land marks along the boundary.
“The Court is further of the opinion that both parties should share the expenses incurred for the survey work done relative to this boundary line dispute.”

In accord with its findings the trial court ordered: (1) that the boundary between plaintiff’s and McKnight’s properties is located and established as the old fence line as it existed after 1952 (the trial court later in the decree gave an accurate legal description of the location of the property line); (2) that Steensland and Associates survey the line and place markers along it; (3) that a prior survey prepared by Steens-land and Associates accurately depicts the location of the property line; (4) that McKnight pay plaintiff one-half the court cost and one-half the survey cost; and (5) that within fifteen days of the date of the decree McKnight remove any fence he had placed on plaintiff’s land.

McKnight filed his motion for new trial and the trial court conducted an ore tenus hearing on it. The trial court then entered an order stating among other things:

“The Court ordered and appointed Steensland and Associates, licensed surveyors in the State of Alabama, to locate and define the boundary line between the parties pursuant to certain finds [sic] by the Court and instructions from the Court and to place judicial land marks along the same. The Court finds that Steensland and Associates followed the Court’s instructions to the letter and the judgment of April 30,1979 shall stand as written so far as it relates to the boundary line.
“The Court further finds that the only survey ordered by the Court in this case was the survey ordered after the February 22, 1979 hearing, wherein judicial land marks were placed along the land in accordance with the Court’s instructions. The cost of the Court ordered survey was $1024.48 and that the sum shall be taxed as cost in this cause and paid equally by the parties.
“The Court further finds that all other surveying work done in regards to this case should be borne individually by the party employing or retaining the survey- or.”

Defendant, McKnight, contends the trial court’s decree erroneously located one of the judicial markers when establishing the boundary line between his and Price Farms’ properties; therefore, this court should reverse. We cannot agree.

The trial court specifically determined in its order, issued after the hearing on motion for new trial, that the surveyor had correctly placed the judicial markers in accordance with the instructions contained in its decree. In that decree, the trial court specifically established the boundary line between the two properties after hearing all the evidence ore tenus. Furthermore, the record reflects credible evidence supporting the trial court’s findings as to the location of the boundary line. In an appeal from a judgment establishing a boundary, such judgment will be affirmed if, under any reasonable aspect of the case, the decree or judgment is supported by credible evidence; that is to say, the trial court will not be reversed unless there is a clear and decided preponderance of the evidence against its judgment. Kirby v. Jones, 370 So.2d 250 (Ala.1979); Francis v. Tucker, 341 So.2d 710 (Ala.1977).

There being credible evidence to support the trial court’s final judgment, it is hereby affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Homer G. STEADHAM v. UNITED STATES LEASING CORPORATION.
    Civ. 1966.
    Court of Civil Appeals of Alabama.
    Jan. 16, 1980.
    Rehearing Denied Feb. 13, 1980.
    Norman J. Gale, Jr., of Clay, Massey & Street, Mobile, for appellant.
    Lawrence B. Voit of Silver & Voit, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff United States Leasing Corporation filed suit against defendant Homer G. Steadham alleging breach of an equipment leasing agreement and demanding judgment in the amount of $3,125.16. Along with the complaint plaintiff served a Request for Admissions under Rule 36, ARCP. These pleadings were served on December 30, 1976.

On February 14, 1977, the trial court granted a motion by plaintiff to compel answers to the Request for Admissions and gave defendant ten days to answer. Defendant failed to answer the Request for Admissions within the ten days. On March 10, 1977, plaintiff filed a motion requesting that the facts in the Request for Admissions be taken as established pursuant to Rule 36(a), ARCP and for summary judgment. On March 21, 1977, defendant filed his answers to the Request for Admissions. On March 25, 1977, plaintiff withdrew its motion for summary judgment.

On April 18, 1977, defendant filed an answer to the complaint denying that he had breached the leasing agreement and a counterclaim alleging fraud by plaintiff.

On May 13, 1977, the trial court entered an order establishing the facts in plaintiff’s Request for Admissions. The substance of the Request for Admissions went to the material allegations of plaintiff’s complaint and amounted to an admission of liability and the amount of that liability. Plaintiff subsequently filed another motion for summary judgment which was granted by the court on June 17, 1977. Defendant filed no further pleadings for nearly two years.

On March 9,1979, plaintiff filed a motion for summary judgment on defendant’s counterclaim with a supporting affidavit. The trial court granted that motion.

Defendant appeals from the granting of plaintiff’s motions for summary judgment.

We consider first plaintiff’s motion for summary judgment on its complaint. The trial court granted this motion based on the pleadings, a copy of the lease, and the admissions deemed established by reason of Rule 36(a). No other evidence was before the court.

Defendant contends that the trial court abused its discretion in not accepting his tardy responses to the requested admissions. He cites Billingsley v. Gordon, 340 So.2d 743 (Ala.1976) as controlling precedent. However, we do not find that case to be controlling of the result in this one. There the trial court had denied a motion by the plaintiff to allow the tardy responses. The denial of this motion was found to be an abuse of discretion. Here no motion was made to allow the response nor was one made to withdraw or amend the admissions, and summary judgment had been entered thereon two years before complaint of any kind was made.

Defendant cites Evans v. Insurance Company of North America, 349 So.2d 1099 (Ala.1977), and federal cases cited therein as calling for the exercise of the trial court’s discretion even in the absence of a motion, amendment or withdrawal. He cites no case where, as here, a party has allowed a case to proceed to judgment without any objection to the establishment of the admissions as fact. Defendant has ignored a valid request for admissions and an order of the court directing him to answer that request. He failed to adequately raise any objection to the admissions in response to plaintiff’s motion for summary judgment or by motion to set aside the summary judgment.

Defendant holds a similar position as one who has allowed the introduction of illegal evidence without objection. He claims an abuse of the court’s discretion when he never by motion invoked that discretion under Rule 36(b). The trial court merely followed the mandate of Rule 36(a).

Defendant further contends that the request for admissions was beyond the scope of Rule 36 in that it went to the material allegations of plaintiff’s complaint. In support of this contention he cites Pick-ens v. The Equitable Life Assurance Society of the United States, 413 F.2d 1390 (5th Cir. 1969).

Pickens was decided before the 1970 Amendment to Federal Rule of Civil Procedure 36 upon which the Alabama rule is based. The 1970 amendment changed FRCP 36 to allow request's for admission as to the application of law to the facts of a case. Requests for admission of material allegations of a complaint are no longer considered beyond the scope of Rule 36. See 4A Moore’s Federal Practice 36.04[4] (1975).

It is well established that admissions established by reason of Rule 36(a) are a sufficient basis for summary judgment. Evans v. Insurance Company of North America, Supra. The admissions in this case, established as facts, are sufficient for summary judgment on plaintiff’s complaint. The trial court’s order granting summary judgment was appropriate.

We turn now to the summary judgment on defendant’s counterclaim. Defendant’s counterclaim for fraud is based on misrepresentations allegedly made by George King. Defendant alleges that King, acting as an agent of plaintiff, represented to him that if the leased equipment failed to function satisfactorily, it would be removed and his obligation to pay extinguished.

The exhibits and the affidavit of George King which accompanied plaintiff’s motion for summary judgment show conclusively that King was not an agent of plaintiff and was not empowered to make any representations on behalf of plaintiff. The lease itself states that King is a salesman for Pitney-Bowes, Inc., and that he is not an agent of plaintiff. Defendant’s affidavit merely reinforces this evidence. He states that King represented to him that Pitney-Bowes would stand behind the equipment. There is nothing in the affidavits or exhibits which would indicate that King was an agent of plaintiff or had been represented to be one. Under no view of the facts before the trial court could defendant recover against plaintiff on his counterclaim for fraud. Summary judgment was appropriate in this case. Ancora Corporation v. Miller Oil Purchasing Co., 361 So.2d 1008 (Ala.1978).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    Ex parte Homer G. STEADHAM, etc. In re Homer G. STEADHAM v. UNITED STATES LEASING CORPORATION.
    79-388.
    Supreme Court of Alabama.
    May 2, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    Douglas C. HOLCOMBE v. Billy W. BLACKWELL and Roger E. Weafer.
    Civ. 1989.
    Court of Civil Appeals of Alabama.
    Feb. 20, 1980.
    Rehearing Denied March 26, 1980.
    Joe G. Burnett of Speaks & Burnett, Clanton, for appellant.
    Clyde C. Owen, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellees.
   BRADLEY, Judge.

This is an appeal from a jury verdict in favor of the plaintiffs against the defendant, Douglas Cecil Holcombe, for malicious prosecution.

Charges of grand larceny were filed against the plaintiffs, Billy Blackwell and Roger Weafer, based on a sworn statement executed by the defendant. The grand larceny charges were later nol prossed on motion of the State.

The plaintiffs then filed the present action against the defendant for malicious prosecution. The jury returned a verdict in favor of the plaintiffs in the amount of $7,500. The defendant filed a motion for a new trial and the motion was denied after the court heard argument and the testimony of the court bailiff.

The dispositive issue in this appeal — and the only issue adequately argued — is the defendant’s contention that the communications between the bailiff and the jury had the effect of coercing a verdict for plaintiffs and thereby constituted reversible error.

The court bailiff testified at the hearing on defendant’s motion for new trial. There was no testimony by any of the jurors, nor are there any affidavits from the jurors in the record. The bailiff testified that after the jury began its deliberations, one of the jurors informed him that the jury was divided five to seven and had not reached a verdict. The bailiff testified that he immediately relayed this message to the trial judge. The bailiff stated that the trial judge told him to go back and tell the jury that they had to be unanimous one way or the other. The bailiff’s testimony indicated that the above described series of communications was repeated at least three times, each about thirty minutes apart. The bailiff testified that each time he communicated with the jury, he told them that they had to reach a unanimous verdict.

We think it also noteworthy that there is nothing in the record indicating that counsel for either party was present when the trial judge instructed the bailiff.

In Kansas City, M. & B. R. R. v. Phillips, 98 Ala. 159, 13 So. 65 (1893), the supreme court said:

[Wjhere misconduct on the part of the jurors, or the officers having them in charge, is shown, and it reasonably appears, from the nature of the misconduct and the attendant circumstances, that the verdict may have been unlawfully influenced thereby, a new trial ought to be granted.

In the case at bar we are not convinced that the proof offered in support of the motion for new trial shows that “the verdict may have been unlawfully influenced” by the statements of the bailiff. All that was shown was that the bailiff told the jury that their verdict must be unanimous and to keep trying. There was no evidence presented that these statements influenced the jury one way or the other in arriving at its verdict. In the absence of such proof the defendant fails to carry the burden placed upon him by the above quoted rule.

It is also important to remember that the granting or denial of a motion for a new trial rests largely in the discretion of the trial court, and such action will not be disturbed on appeal except for a plain and palpable abuse of that discretion. Sangster v. Sangster, Ala.Civ.App., 366 So.2d 1136 (1979). Although we conclude that the denial of the motion for new trial was not error, we are not to be understood as condoning the procedure used by the trial court to communicate with the jury, especially in the absence of counsel for the parties.

No error prejudicial to the substantial rights of the defendant having been successfully argued, the order denying the motion for new trial is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Larry Charles LIVENGOOD v. Vannie Elizabeth Livengood (SECHLER).
    Civ. 2079.
    Court of Civil Appeals of Alabama.
    Feb. 27, 1980.

      Joseph W. Smith of Smith, Smith & Morgan, Phenix City, for appellant.
    James M. Ivins of Cornett, Perdue & Iv-ins, Phenix City, for appellee.
   HOLMES, Judge.

This is a child custody case.

After an ore tenus hearing, the Circuit Court of Russell County awarded custody of a six year old female child of the parties to the mother. The father appeals and we affirm.

The dispositive issue is whether the learned trial judge abused his discretion in awarding custody to the mother.

The record reveals the following: The parties were divorced by decree entered December 3, 1975. The mother was granted custody of the minor child.

Approximately one year later, this decree was modified to incorporate a subsequent agreement of the parties. Under the new decree, the father obtained custody of the child. However, it was also provided that the child could elect to return to and reside with the mother at any time.

On August 20, 1979, a petition to modify was filed by the mother seeking permanent custody of the child. By oral counterclaim, the father also sought permanent custody.

The trial judge heard testimony as to the fitness of the parties to raise the child. He also conducted a private in camera interview of the child in which she apparently indicated a desire to return to the mother. Both parties consented to this interview. What transpired at the interview is not a part of the record before this court.

There followed a decree by the trial court which found, in essence, that both the mother and father were fit and proper parents who had the best interests of the child at heart. The trial court further found that the child was on very good terms with the mother’s new husband and that the child desired to live with the mother. As indicated, the mother was granted permanent custody with liberal visitation rights afforded the father.

At the outset we note that in cases of this nature where the trial court hears and sees the witnesses we presume its judgment is correct. Furthermore, we will not revise the trial court’s exercise of its discretion upon appeal unless we determine from the evidence that the trial court has plainly and palpably erred. Stewart v. Grace, Ala.Civ.App., 360 So.2d 1032 (1978).

Both parties attempted to show that the other was unfit. We do not deem it necessary or prudent to set out this testimony. However, of particular pertinence since the mother prevailed was testimony which revealed she had remarried since the prior decree, that the new husband was on good terms with the child and desired custody, and that the mother and her new spouse could provide a suitable and healthy environment to further the child’s upbringing.

As indicated, in an in camera interview which was not recorded, the child apparently expressed a desire to live with the mother. This court has previously recognized the practice of interviewing children in this manner and has acknowledged that in certain instances such an examination can be helpful in obtaining full and frank disclosures. We have accordingly held that when the parties agree to the examination in camera, as was present here, there is no error in the examination itself. Furthermore, it is well established that a finding of fact will not be disturbed where a trial court has evidence before it which may have influenced it in arriving at its finding of fact and such evidence is not before this court. See, Hagler v. Hagler, 50 Ala.App. 266, 278 So.2d 715 (1973), and cases cited therein.

However, we are not to be understood as intimating that the child’s preferences are to be viewed as anything more than a factor in aiding the trial court to maké its disposition of the custody issue. This is true even in this instance. The trial judge must ultimately base his decision on what is in the best interest of the child. Hagler v. Hagler, supra. Therefore, although the child’s wishes are to be given much weight, they are not controlling. Campbell v. Campbell, Ala.Civ.App., 377 So.2d 1098 (1979).

Here, the trial judge found the mother to be fit. There is evidence to support this conclusion.

Where the evidence is as indicated, and the mother is found to be a fit parent, we find no error in awarding the mother custody.

The judgment in this case is due to be affirmed.

AFFIRMED.

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


text:
    Doris H. COOPER v. L. Bancroft COOPER.
    Civ. 2017.
    Court of Civil Appeals of Alabama.
    March 26, 1980.

      Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
    G. A. Lindsey and Thomas E. Head, III of Lindsey & Head, Elba, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The husband initiated divorce proceedings on May 23,1973, by filing a petition for divorce on the ground of incompatibility. The wife filed an answer and an amended cross-complaint seeking divorce on the ground of adultery.

After hearing, the trial court found that the husband had proved that the parties were incompatible and that the wife had proved that the husband was guilty of adultery. Based on that finding, the trial court denied a divorce to either party due to the doctrine of recrimination. On appeal this court reversed the trial court’s judgment and remanded the case for determination of which ground would be the basis for the divorce and consideration of the other claims for relief made by the parties. Cooper v. Cooper, 331 So.2d 689 (Ala.Civ.App. 1976).

On remand, the record of the hearing in the original proceeding was introduced by stipulation and the trial court proceeded to hear additional testimony. On February 28, 1979, the trial court rendered a decree of divorce on the ground of incompatibility, reserving for decision the questions of alimony and division of property. On March 14, 1979, the trial court rendered its final decree which, among other provisions, made a division of the parties’ property, denied alimony on the basis of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), and awarded $1,000 to the wife for her attorney’s fees. In response to the wife’s motion to amend or for new trial, the trial court made minor alterations in the decree dealing with division of property and awarded periodic alimony in the amount of $200 per month for a period of five years. A second post-trial motion by the wife was denied and she appeals.

The only issue on appeal is whether the trial court abused its discretion in its division of property, award of alimony or award of attorney’s fees. In considering this issue, this court views the judgment of the trial court with a presumption of correctness, to determine if it is so unsupported by the evidence as to be arbitrary, unjust or capricious and an abuse of discretion. Miller v. Miller, 361 So.2d 577 (Ala. Civ.App.1978).

The husband is a man with substantial assets and income. The evidence established his net worth at the time of trial to be between $161,000 and $266,000. His assets include an office building, 13.5 acres of commercial property, stock in Peoples Bank of Elba, and a 100% interest in Little Beaver Dam Investment Inc., a corporation, which owns and operates a store located on his commercial property. He receives substantial income from his medical practice in Elba. His adjusted gross income for the tax years of 1974, 1975, 1976 and 1977 was never less than $53,000 and averaged over $72,000. Although Little Beaver Dam Investment, Inc., has substantial liabilities to offset its assets, the income from the corporation’s business has been adequate to service the corporation’s debts and pay its operating expenses. It is obvious that as a result of the husband’s income the parties enjoyed a high standard of living during their marriage. The husband’s future prospects for maintaining that standard are excellent. His medical practice continues to prosper and his investments appear sound.

On the other hand, the wife’s potential for maintaining her former standard of living is limited. She was awarded the husband’s interest in the parties’ residence, his interest in a 120-acre farm and some beach property. The husband is obligated to pay off outstanding mortgages on the residence and farm. In addition, she was awarded $200 per month in alimony for a period of five years. There is no evidence that any of the property awarded to the wife is income producing.

Both parties are in their fifties. They were married thirty-four years. During that time the husband was the sole source of the family’s income and property. The wife attended college for two years but has not been employed for any significant period during the marriage. There is no evidence that she has the skills to enter the job market and obtain employment which would produce the income necessary to maintain her standard of living.

Finally, there is substantial evidence in support of the wife’s charge of adultery on the part of the husband. At the time of trial the husband had been living with a young woman for almost five years. Although they denied having a sexual relationship, the court in the original proceeding in 1974 found that the charge of adultery had been proven and no new evidence was introduced on, retrial to negate this finding. The husband points out that the court on retrial granted the divorce on the ground of incompatibility. However, it is settled in Alabama that the fault of the parties may be considered in division of property and award of alimony, even though the divorce is granted on a no-fault ground. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978).

The wife has argued on appeal that the property division made by the trial court is inadequate and should be altered. We see no need to set out in detail the extent of the husband’s assets and the proportion of those assets awarded to the wife. It is not required that the property awarded to the respective parties be equal or that it be in certain proportions. The law requires only that the award be fair and equitable and that is a matter for the discretion of the trial court. Miller v.' Miller, supra. When the trial court has exercised that discretion, it will be reversed only where the award is so unsupported by the evidence as to be arbitrary, unjust or capricious and an abuse of discretion. Miller v. Miller, supra. We cannot say that the property division made by the court is unsupported by the evidence.

However, we find no reasonable justification for the award of $200 per month alimony for five years. The need of the wife for support and the ability of the husband to pay a reasonable amount is clear and undisputed. At the age of nearly sixty and without income or employable skills, it is clearly arbitrary and unjust to deny the wife alimony from a culpable husband after thirty-four years of marriage. It is the opinion of this court that the sum of $1,000 per month permanent alimony is not unreasonable in light of the income of the husband.

The wife charges as inadequate the award of attorney fees of $1,000. This case has been in litigation for some six years. There have been prior substantial awards of attorney fees to the wife, both at nisi prius and on appeal. It is our considered opinion that in view of the total circumstances, the award below, though meager in view of the hours of service shown, is not so low as to warrant a finding of palpable abuse of the discretion of the court. Smith v. Smith, 369 So.2d 1235 (Ala. Civ.App.1979). We therefore leave it undisturbed. However, in response to request upon appeal, this court grants to the wife the sum of $1,000 for attorney’s fee for the appeal.

The judgment of the trial court is affirmed in all respects except that of the award of alimony. As to that aspect, the judgment is reversed and the case remanded with direction to the trial court to enter an award of $1,000 per month as periodic permanent alimony.

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

BRADLEY and HOLMES, JJ., concur.


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    Lee SPEARS v. Mary Jane SPEARS.
    Civ. 2129.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Samuel H. Sanders, III, Birmingham, for appellant.
    Oscar W. Adams, Jr. of Adams & Clemon, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties were married in 1967 and they have three children. The wife filed for divorce in March of 1979 citing incompatibility of temperament as grounds for divorce.

After hearing the evidence ore tenus, the trial court granted the parties a divorce. The court awarded the wife custody of the two minor children and ordered the husband to pay $300 per month in child support.

The only issue presented by this appeal is whether the amount of child support required to be paid by the husband is excessive.

In a child support case the presumption is that the trial court’s decree is correct. Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976).

The amount of child support to be granted in a divorce proceeding depends upon the needs of the child or children and the ability of the parent to pay. Metcalf v. Metcalf, Ala.Civ.App., 340 So.2d 38 (1976). Furthermore, an award of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal except for palpable abuse. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979).

The evidence in the case at bar revealed that the income of the parties for 1976 was $7,211.73 for the husband and $1,527.46 for the wife. In 1977 the husband’s income was $14,384.14 and the wife’s income was $4,967.73. There is no evidence of income of either party for 1978.

We have reviewed the record and cannot say that the trial court abused its discretion in requiring the husband to pay $300 per month for the support of the two minor children. Therefore the decision of the trial court is due to be affirmed.

The wife is awarded $500 as a reasonable attorney fee for prosecuting this appeal.

AFFIRMED.

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


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    Pamela HYDE v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 2081.
    Court of Civil Appeals of Alabama.
    April 2, 1980.
    Joe J. Estep, Daniel C. Lemley and Reid G. Webster, Calhoun County Legal Services, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., and Attys. for State Dept, of Pensions and Sec.
   WRIGHT, Presiding Judge.

This is a child custody case.

On March 19, 1979, the Department of Pensions and Security (DPS) filed a petition in Calhoun County Circuit Court seeking permanent custody of appellant’s minor daughter. After an ore tenus hearing, the trial court granted the petition. The mother appeals.

The mother raises three issues on appeal. The first two issues question the constitutionality of the juvenile code on the grounds that the termination of the parent-child relationship is permitted for reasons less compelling than required by the United States Constitution and that the definition of “dependent child” in § 12-15-1(10), Code of Alabama (1975) is so vague as to constitute a denial of due process. As a basis for these contentions the mother relies on the case of Roe v. Conn, 417 F.Supp. 769 (M.D. Ala.1976).

The record discloses that no constitutional issue was presented to the trial court during the hearing. This court has previously said that such issues presented first on appeal come too late. Hanley v. Houston County, Alabama Department of Pensions and Security, 365 So.2d 81 (Ala.Civ.App. 1978); and Smith v. State Department of Pensions and Security, 340 So.2d 34 (Ala. Civ.App.1976). We see no reason to repeat what we have said in those cases.

Appellant’s third issue is whether the trial court should have granted her motion to exclude reports by the DPS from the court file. In Kelley v. State Department of Pensions and Security, 366 So.2d 736 (Ala.Civ. App.1979), we held that § 12-15-65(f), Code of Alabama (1975) specifically provides that the court at such hearings may receive oral and written reports and rely upon them to the extent of their probative value. In Kelley the written reports of a social worker were offered and accepted into evidence. Here the reports were never offered as evidence at the hearing; they were merely placed in the case file. There is indication in the record that the trial court did not consider them evidence in the case. In any event, there appears more than sufficient legal evidence to support the judgment of the court. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972).

The evidence classifies this case as greatly different from the usual “dependency” case in which the State Department of Pensions and Security seeks declaration of dependency and termination of parental rights so that permanent planning may be made for a minor child. The State did not initiate the removal of this child from its mother into foster home care. The mother brought the child to the Department at birth and voluntarily requested foster care. For more than two years the State provided foster care for it while attempting to counsel and aid the mother in preparing for its return to her. On one occasion the child was returned to the mother for a month, but she returned it again for foster care.

The child in this instance is a bi-racial child of black appearance. The mother is white. The father is black. The alleged father denies paternity and has never seen the child. The child, a girl, more than two years of age, has been continually in the home of black foster parents. She does not recognize her mother and has hysterically resisted her attentions on every occasion. The mother clearly has made little effort to prepare for return of her child since its birth and is obviously unable to do so. The best interest of the child requires permanent separation of parent and child so that placement for adoption may be planned before the child grows older.

We affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Billy Ray CLARK v. Emma R. CLARK.
    Civ. 2097.
    Court of Civil Appeals of Alabama.
    April 2, 1980.

      Billy Ray Clark, pro se.
    No brief filed for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The wife filed a complaint for divorce on the grounds of incompatibility. She also requested custody of the parties’ two minor children. The husband answered denying that an incompatibility of temperament existed and asking that the children continue in the custody of the State Department of Pensions and Security (DPS).

At the oral hearing, the husband appeared pro se. He was then and continues to be incarcerated in the Madison County jail after conviction and sentence for an assault.

The wife testified that it was her desire that the children remain in the custody of DPS pending a dependency hearing. The court heard testimony on the issue of incompatibility. Thereafter, judgment was entered granting a divorce on the ground of incompatibility and reserving the question of custody of the children pending disposition of dependency cases filed by DPS in July 1979. The husband filed an appeal from the granting of the divorce.

The husband, acting as his own counsel, has presented no issues on appeal, merely contending the divorce should not have been granted. Thus, there is nothing for this court to review. There was more than sufficient evidence of incompatibility. The judgment of the trial court must be affirmed. Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523 (1973).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Charles Narvaez NALL and Yvonne Marie Nall v. Donald NALL.
    Civ. 2066.
    Court of Civil Appeals of Alabama.
    April 9, 1980.

      Bert W. Rice, Atmore, for appellants.
    Hugh M. Caffey, Jr. of Caffey & Byrd, Brewton, for appellee.
   WRIGHT, Presiding Judge.

Appellee, Donald Nall, instituted this action by complaint for specific performance asking the trial court to compel appellants, Charles and Yvonne Nall, to accept final payment and satisfy a mortgage which they held on real estate of the appellee. Appellants answered and counterclaimed for a reformation of the deed by which they had conveyed the property to appellee. After hearing, the trial court granted the relief requested by appellee and denied appellants’ request for reformation of the deed.

In response to a motion by appellants, the trial court vacated its judgment and ordered a new trial. The new trial was held on July 26, 1979. After hearing additional testimony presented at this trial, the court entered a judgment reinstating its prior judgment.

Appellant cites as error the trial court’s refusal to reform the deed. Reformation was sought on the grounds that the deed did not conform to the intentions of the parties because of a mutual mistake or a mistake by one party which the other party at the time knew or suspected. § 35-4-153, Code of Alabama (1975).

The courts of Alabama will assume jurisdiction to reform a written instrument on the ground of mistake where there has been an agreement actually entered into, but the instrument in its written form does not express the parties’ intentions. Gray v. Lincoln Industrial Insurance Co., Inc., 295 Ala. 157, 325 So.2d 151 (1976).

In order to warrant relief by reformation, the complainant has the burden of showing by evidence that is clear, exact, convincing and satisfactory that the instrument does not express the true agreement of the parties and what, in fact, the parties had intended the writing should contain. Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974); Mid-State Homes, Inc. v. Anderton, 291 Ala. 536, 283 So.2d 426 (1973).

Appellants contend that it was the intention of the parties that the warranty deed by which they conveyed eighteen acres of land to appellee contain a reservation of all mineral rights. The parties agree that they intended the conveyance to reflect the desires of their deceased father. The dispute concerns their beliefs about the desires of their father.

The trial court heard the evidence ore tenus; thus, its finding as to the facts is to be accorded all the presumptions indulged in favor of a jury verdict. Mid-State Homes, Inc. v. Anderton, supra. The parties to the transaction and the attorney who drafted the deed testified at trial. The trial court found that their testimonies were in direct conflict as to the intent of the parties at the time the deed was executed and clearly show that there was no mutual mistake of the parties and no mistake on the part of one party which the other party at the time knew or suspected. After a careful reading of the record, we cannot say that the trial court’s finding was erroneous.

It follows that the trial court did not err in finding that appellants had failed to meet their burden of proof and refusing to order reformation of the deed. The trial court’s order is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.