author: HOLMES, Judge.

text:
    Don Leslie FOSTER v. Cherie Lynn FOSTER (Olson).
    Civ. 2700-X.
    Court of Civil Appeals of Alabama.
    Sept. 23, 1981.
    Rehearing Denied Oct. 28, 1981.
    Certiorari Denied, Jan. 29,1982 Alabama Supreme Court 81-149.

      Kenneth Shelton, Decatur, for appellant.
    Ernest L. Potter, Jr. of Butler & Potter, Huntsville, for appellee.
   HOLMES, Judge.

The mother of two minor children sought modification of a child custody award to the father. The trial court, after an ore tenus hearing, made certain changes in the prior decree as it related to the children. The father appeals and the mother cross-appeals. We affirm.

On February 6, 1980, the mother petitioned the court to modify an earlier divorce decree which placed the children in the custody of their father. She alleged that, due to a material change in circumstances, the children should be placed in her primary custody. The trial court entered a pendente lite judgment which required the mother and father to consult with a family counseling service in an attempt to work out a plan of custody which was agreeable to both mother and father. No such agreement was reached.

Final judgment on the mother’s petition to modify was entered on September 16, 1980. Though the court found a material change in circumstances, it allowed the two minor children to remain in the principal custody of their father. The mother, however, was to be afforded as much association with the children as was reasonable in order that the children be afforded the benefits of maternal association to the fullest extent possible. Both the mother and father were to share responsibility and control of the children. In addition, the trial court required the mother and father and, when appropriate, the children to continue to avail themselves of the facilities of the family counseling service. The father was required to pay $3,600 per year as child support to the mother.

One month later, in October, the father made a motion to alter, amend or vacate the September 16 judgment. The father asked the trial court to delete from the judgment the requirement that he pay $3,600 per year child support and the requirement that he and the mother consult with the family counseling service.

In November, 1980, the mother filed a motion with the trial court seeking to have the father held in contempt for failure to pay child support as required by the September 16 judgment. She later amended that motion to again ask that she be given primary custody of the children. Alternatively, the mother asked the court to grant her specific visitation privileges with the children.

The trial court, on January 5, 1981, heard oral testimony on the motions of both the father and mother. After considering all the evidence, the court, on January 15,1981, found the father in contempt for failure to pay a portion of the child support required to be paid by the September 16 judgment. The court further found that there had been a substantial change in circumstances since the September 16 judgment. Pursuant to this finding, the court modified the September 16 judgment by reducing the amount of child support to be paid from $3,600 per year to $2,880 per year. The court further granted custody of the children to the mother one weekend each month and two months during the summer. The court specifically reaffirmed the portion of the September 16 judgment that required the mother and father to consult with family counseling professionals. Finally, the court awarded $350 to the mother for attorney’s fees in conjunction with the contempt aspect of the case and taxed costs against the father.

As indicated, both parties appeal from the aforementioned proceedings.

The father, as appellant, contends the trial court erred in four instances.

Initially, he contends the trial court erred in awarding the mother child support when he, as the father, had primary custody of the children. Expanding upon his initial argument, the father next contends that the court erred in holding him in contempt for failure to pay child support. He reasons that if the support order was unlawful, then he could not default in the payment of a sum not due. Thirdly, the father contends the court committed error in requiring him and the mother to attend counseling sessions.

Finally, the father contends the court erred in awarding an attorney’s fee to the mother for representation during the combined contempt-modification proceedings which culminated in the judgment of January 14, 1981.

The mother, as cross-appellant, contends the trial court erred in two instances. First, the mother contends the court erred in failing to award primary custody of the children to her. Second, she contends that the trial court erred in failing to award an attorney’s fee to her for representation in the modification proceedings brought by her.

First, we will consider the contentions of the father:

The father, as indicated initially, contends the trial court erred by requiring him to pay child support when he had primary custody of the children.

Through able counsel in brief, the father relies on this court’s decision in Modling v. Modling, 45 Ala.App. 493, 232 So.2d 673 (1970), where we said a noncustodial parent was not entitled to child support for periods of visitation.

In the instant case, viewing the trial court’s action with the attendant presumptions, the trial court ordered that “[b]oth the mother and father are to share in the responsibility and control of the children” and further ordered that “the mother of the children shall be afforded their custody at least one weekend each month ... [and] shall have full custody of the children for at least two months in the summer. . . . ” (Emphasis supplied.) This case, then, differs from Modling. In Modling, the mother was merely given visitation rights. It can be gleaned from the judgment in the action before us, though, that the mother and father were to share in the custody of the children.

It was not improper for the trial court in this action to award child support to be used for the benefit of the children while they are in the primary care of the mother. McGregor v. McGregor, 257 Ala. 232, 58 So.2d 457 (1952). It is interesting to note that the trial court provided that child support funds paid to the mother were to be placed in a trust account for the children. Any funds not expended for their benefit were to be distributed to the children at age 19. The mother will have custody of the children for a substantial portion of each year. The mother is not employed, while the father earns in excess of $40,000 per year. Furthermore, the mother now lives 300 miles from the father and two children. The trial court recognized that the mother might use these funds to pay for some of the expenses incurred for transportation. This court specifically approved, in Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976), the requirement that the parent with primary custody should pay transportation expenses for the children. See also Wheeler v. Wheeler, 249 Ala. 119, 29 So.2d 881 (1947).

In view of the above, we find no reversible error in the trial court’s action regarding the award of support payments.

The father also contends the trial court erred by holding him in contempt for failure to pay $600 in child support. We disagree. The basis of the father’s contention is that he could not be held in contempt because the trial court was in error in requiring him to pay child support. As indicated above, however, the award of child support was within the discretion of the trial court. The trial court found the father was in contempt of court for refusing to pay child support.

Appellate review of a judgment of contempt is by way of an appropriate extraordinary writ and not by appeal. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980). Put another way, where there is any evidence in the record to support the trial court’s finding of contempt, this court will affirm the judgment.

The trial court’s judgment in this instance is supported by evidence in the record, especially by the father’s own admission that he was able to pay the amount of child support awarded. Brady v. Brady, 358 So.2d 744 (Ala.Civ.App.), cert. denied, 358 So.2d 748 (Ala.1978).

The father next argues that the trial court erred in requiring the mother, father, and children to attend counseling sessions with a group of psychologists known as Child-Family Consultants. We note at the outset that matters involving custody are within the discretion of the trial court. Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979). The prevailing consideration in child custody matters is the best interest of the children. Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.), cert. denied, 370 So.2d 1019 (Ala.1979).

The trial court ordered that the children be made available to the consultants and that the parties should “attend any consultation the consultants find consistent with the emotional well being of the children.”

We find no abuse of discretion in view of the fact that the order is geared to the well being of the children. Indeed, since the mother now lives in another state, it appears the trial court was not concerned that the mother and father themselves receive counseling. Rather, the trial court was only trying to ensure that the two children were afforded professional assistance to help them cope with the trauma associated with divorce and custody disputes. The order may later be modified by the trial court if it determines that counseling is no longer in the best interests of the children or if it determines that the sessions have become an undue financial hardship on the father when the money spent for such services can best be used in another manner for the children.

Finally, the father argues the trial court abused its discretion in awarding an attorney’s fee to the mother on her motion to hold the father in contempt. Section 30-2-54, Code of Ala.1975, provides that attorneys’ fees may be awarded in actions to recover support where there have been contempt citations. Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.), cert. denied, 376 So.2d 1099 (Ala.1979). We find there was no abuse of discretion on the part of the trial court in its award of an attorney’s fee since the father was found to be in contempt of court.

As stated earlier, on cross-appeal, the mother raises two issues that, she contends, warrant partial reversal of the trial court.

As to the mother’s contention regarding the custody of the children, we note that prior to entering its orders of September 16, 1980, and January 14, 1981, both of which maintained the father as the primary custodian of the children, the trial court heard evidence from both parties in support of their positions. We do not deem it necessary to set out in detail the testimony presented before the trial court. Suffice it to say, as indicated, both parties presented evidence indicating that each was the proper party to be awarded primary custody. It was the duty of the trial court to resolve the conflict. Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976).

This court has held on numerous occasions that where a trial court conducts an ore terms hearing, it will be reversed only upon a showing of plain and palpable error. Lowery v. Lowery, 391 So.2d 120 (Ala.Civ.App.1980); Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980). Where there is credible evidence to support the trial court’s judgment, as in the case before us, this court cannot say the judgment was plainly and palpably erroneous. Raidt v. Crane, 342 So.2d 358 (Ala.1977). Consequently, the mother’s first contention as cross-appellant is without merit.

The mother next contends that the trial court erred in failing to award her an attorney’s fee in relation to the modification aspect of the decree.

The award of attorney’s fees in a modification proceeding is a matter within the discretion of the trial court. Green v. Green, 380 So.2d 884 (Ala.Civ.App.1980); Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). While the trial court could have, without error, awarded an attorney’s fee, this court cannot, in view of all the circumstances as indicated, find the trial court committed reversible error in failing to do so.

The mother requests an attorney’s fee for representation on appeal. A fee of $350 is awarded for such representation.

The case is due to be affirmed.

AFFIRMED.

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

      . The court noted specifically that the mother had moved to Georgia.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R. S. CROWDER v. ZONING BOARD OF ADJUSTMENT and City of Birmingham, Alabama.
    Civ. 2784.
    Court of Civil Appeals of Alabama.
    Oct. 14, 1981.
    Rehearing Denied Nov. 18, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81 — 184.

      R. S. Crowder, pro se.
    William M. Pate, Jr., Birmingham, for appellee.
   PER CURIAM.

This is a zoning case.

R. S. Crowder appeals from the denial of a motion for rehearing by the Circuit Court of Jefferson County dated March 23, 1981. The Zoning Board of Adjustment of Birmingham has filed a motion to dismiss the appeal on the grounds that it is untimely. We agree with this contention and dismiss the appeal.

We start by noting that this is one of several cases brought by Crowder against the Zoning Board of Adjustment. AH of these cases were brought by Crowder because of variances granted by the Zoning Board to a person not a party to this appeal. The Board sought dismissal of all these cases. The present case was dismissed by the Circuit Court of Jefferson County on October 31, 1980. Crowder moved for. rehearing on or before November 13, 1980. The motion was set for hearing but was continued several times at Crowder’s request. It was not until March 23,1981 that the trial court finally denied the motion.

The Board has filed a motion with this court to dismiss the appeal, contending that under A.R.C.P. 59.1 a motion which remains in the trial court more than ninety days is considered denied, and the time for appeal runs from the ninetieth day. In this case Crowder’s motion for rehearing was made on November 13, 1980. Ninety days from November 13, 1980 would have been February 11, 1981. From this date Crowder had forty-two days to file his appeal. However, he did not file his appeal until April 24, 1981, long after the time limits provided in the rules had run.

This identical issue was addressed in Crowder v. Zoning Board of Adjustment, 406 So.2d 917 (Ala.Civ.App.1981). This was a previous case brought by Crowder on the same issues in the zoning of another piece of property. In that case we clearly held that the forty-two day period for appeal began to run from the ninetieth day after the filing of the motion for rehearing.

Rule 59.1 is very specific on this issue. It states:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period. [Emphasis added.]

Crowder argues that this court can extend the time limits under the rule. It is true that the appellate court can extend the time limits, but only if the motion for extension is filed before the ninety days has run. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975). Mr. Crowder failed to file his motion for an extension of time before the expiration of the ninety day period;. therefore this court is without authority to extend the time limits of Rule 59.1. Consequently we find this argument to be without merit.

The only other way an extension can be granted is by the express consent of the parties which must appear in the record. In this case the Board never expressly consented to an extension.

Once the other party consents or the appellate court grants an extension, then the trial court can grant further extension for good cause shown. In this case, however, there was no agreement by the parties and no request within the time allowed to the proper appellate court for an extension of time; consequently the trial court was without authority to grant an extension of time.

The only other issues raised in Crowder’s motions filed in this court concern substantive issues about certain facts and evidence which he claims that the trial court failed to consider. Since this appeal was not timely filed, we cannot consider these substantive issues.

The appeal in this case must be dismissed because it was not filed within the time limits specifically provided for in the rules.

APPEAL DISMISSED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    William C. VINES v. Liane VINES.
    Civ. 2828.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.
    Rehearing Denied Dec. 2, 1981.
    Certiorari Denied, Feb. 19,1982 Alabama Supreme Court 81-274.
    Richard W. Bell, Pelham, for appellant.
    Edward L. Hardin, Jr., Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce ease.

William C. Vines married Liane Vines, a citizen of West Germany, in Worms, Germany in 1966. They lived together as husband and wife until October 1, 1979 when they separated. Two children were born of this marriage, namely, Melissa, age thirteen, and Ginger, age seven.

On February 28, 1980 the parties entered into an agreement which was incorporated into the final decree of divorce which was rendered on February 29, 1980. In that agreement husband agreed to pay wife $700.00 a month for child support, and $700.00 a month for alimony. The alimony payments were to be reduced to $500.00 a month in March 1981.

Also as part of the final decree, very specific visitation privileges were given to husband. He was to have the children every other weekend, five weeks in the summer, and one week at Christmas.

Although wife sought a rule nisi for husband’s failure to pay alimony and child support, the issues presented on this appeal are concerned only with husband’s petition for modification of the alimony and child support payments due to changed financial circumstances and the trial court’s refusal to hold wife in contempt for allegedly failing to permit husband visitation with his children. We will consider the modification issue first.

To begin, it is the rule in Alabama that a trial court may modify an award of alimony and child support in a divorce case upon a showing of a material change in the financial circumstances of the parties, and such a modification will not be reversed on appeal unless the decree is plainly and palpably erroneous. Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1979). Furthermore, where the decree fixing alimony and child support is based on an agreement of the parties, that decree should not be modified “except for clear and sufficient reasons after the question has been subjected to thorough consideration and investigation.” Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969).

The burden of establishing the conditions authorizing a modification of the decree rests upon the moving party. Taylor v. Taylor, supra.

In the present case the husband sought a modification of the alimony and child support decree on the basis of changed financial circumstances of the parties. After a hearing the trial court refused to modify the former decree and, in effect, held that husband had failed to carry the burden of showing a material change in the parties’ financial circumstances. Husband says in brief that the trial court erred in so holding. We disagree.

The evidence shows that at the time of the divorce, the husband was employed at Brada-Miller Freight Lines in Birmingham, Alabama earning $42,000 a year. The agreement which was made the basis of the trial court’s decree provided that the husband was to pay $700 per month as support for his two children and $700 per month as periodic alimony until March 1, 1981 when this amount would be reduced to $500 per month. Husband paid the amounts required by the decree for the months of March and April of 1980. Thereafter husband made only partial payments or no payments at all. The trial court found that he was $6,200 in arrears in his payments. Husband attributes the failure to pay the amounts agreed to to changing jobs and being unemployed for about two months. At the time of the hearing husband was working for Indiana Refrigerator Truck Lines earning $32,500 and had been so employed for several months.

Husband testified that he had remarried since the divorce and that his living expenses had increased and his income had decreased. He particularly mentioned an indebtedness at First Alabama Bank of Birmingham in the amount of about $66,000. This debt resulted when husband borrowed $100,000 to buy stock in Brada-Miller Truck Lines. The stock was and still is pledged as security for the loan. Husband says the interest payments have increased and presents an added financial burden to him.

In the divorce decree husband received the stock in Brada-Miller and the wife received the marital home. Subsequent to the marriage the wife sold the house and placed the proceeds in a savings account and certificates of deposit.

The wife is employed part time and earns about $1,200 to $1,500 per year. She testified that she had to borrow about $6,000 from her family for living expenses because of husband’s failure to maintain alimony and child support payments.

Although the trial court noted in its opinion that husband was earning the same amount of money at the time of the filing of the modification petition as he was earning at the time of the agreed-to divorce decree, the court went on to hold that the evidence failed to show that there had been a substantial change in the husband’s financial circumstances such as to require a modification.

It is true that at the time husband filed the petition for modification he was still employed at Brada-Miller earning the same amount of money as he was earning at the time of the divorce decree. It was, however, shortly thereafter that he voluntarily left Brada-Miller and sought employment elsewhere. He was for about two months unemployed but did obtain employment earning about $1,000 per month less than he was earning at the time of filing the modification petition.

Husband’s income has decreased about one-third but he is a certified public accountant and his prospects for future increases in earnings are good, whereas wife’s earning prospects are not so good. Wife is from Germany and has a.n equivalent to our high school education. As previously noted, she is employed part time in a dress shop earning about $100 per month. She has no readily marketable job skills, although her health is good and she has sought employment.

The record reflects that at the time the motion for new trial was overruled in this case, husband’s required payment of alimony and child support, i.e. $1,200 per month, was just over fifty percent of his net take-home pay, whereas at the time of the divorce decree husband’s alimony and child support payments, i.e. $1,400 per month, were slightly less than fifty percent of his net take-home pay.

In view of the above cited rule that an alimony and child support decree which is based on an agreement of the parties is not to be modified unless the evidence shows a material change in the financial circumstances of the parties, the trial court’s decree refusing to so modify is not plainly wrong.

Husband’s other issue concerns the trial court’s refusal to hold wife in contempt for allegedly interfering with his visitation rights. The trial court denied husband’s request for the rule nisi on the ground that the original divorce decree, although prescribing specific child visitation periods did not enjoin the parties from interfering with child visitation or from harassing each other relative to child visitation.

In his petition for the rule nisi the husband alleged that wife had discouraged and interfered with his efforts to visit his children and had discouraged the children from visiting with him by making untrue statements about him.

The evidence introduced in support of this aspect of the case was directed toward the interference of wife with husband’s visitation, with her harassment of him, and with disparaging remarks about him made to the children in an effort to alienate them from him.

The trial court did refuse to grant husband relief because the divorce decree failed to enjoin the parties from interfering with each other’s visitation rights and failed to enjoin the parties from harassing each other over child visitation. The trial court was correct in that the divorce decree contained no such injunctions; it merely specified the times when the parties were to have and to see the children. The trial court’s decree is therefore correct. Notwithstanding the technical correctness of the trial court’s order refusing the relief requested by husband, the evidence relating to child visitation also supports a refusal of husband’s requested relief.

Husband made very few attempts to visit his children and then only for short periods of time. He seldom called them on the phone and made little effort to remember them with gifts.

The one time wife refused husband visitation was due to his refusal to pay her child support that was overdue. She stated that she was mad with husband and thus refused visitation. Otherwise she encouraged the children to visit with their father.

Based on this evidence we could not say that the trial court’s judgment denying husband’s request for the rule nisi was in error.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Robert J. CARSON, et al. v. Anthony L. CANALES and Joan H. Canales.
    Civ. 2854.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.
    Rehearing Denied Nov. 25, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-202.
    Murray W. Beasley, Tuscumbia, for appellants.
    Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appel-lee.
   HOLMES, Judge.

The plaintiffs sued the defendants for breach of implied warranty of habitability. After an ore tenus hearing, the trial judge rendered a judgment in favor of the plaintiffs. The defendants appeal and we affirm.

The dispositive issue is whether the evidence supports the trial court’s action.

The record reveals the following: The defendants are in the business of constructing houses for the purpose of sale as new residences. One such house was located at 805 Edgewood in Sheffield, Alabama. In June 1978, the plaintiffs moved into the house and in August, 1978, they purchased the house. The plaintiffs were the initial residents of the house.

When the plaintiffs took possession of the house they were aware of no defects nor were any defects visible to them. Later, however, certain problems began to develop. These problems included a ridge down the middle of the house, cracked walls, the hearth separating from the mantle, the chimney smoking through the walls, cracked front porch, difficulty in opening and closing doors, and a sagging kitchen floor. The existence of most of these problems is largely undisputed by the defendants. Instead, the defendants contend the problems are due to the normal settling of the house.

The only evidence as to the effect of the above problems on the value of the house was offered by the plaintiffs. The plaintiff, Anthony Canales, testified that, as a result of the above defects, the market value of the house had been reduced from $58,000 to $50,000 or $51,000.

Based upon the foregoing evidence, the trial court rendered judgment in favor of the plaintiff in the amount of $7,000 plus costs. As indicated, the defendant appeals from this judgment.

The defendant specifically contends the plaintiff failed to establish the existence of an implied warranty of fitness and habitability. Our supreme court in Sims v. Lewis, 374 So.2d 298, 303 (Ala.1979), stated that a claim under implied warranty involved at least the following:

(1) The plaintiffs purchased a new residence from the defendants; (2) The defendants had constructed the residence; (3) The residence had not been inhabited by any other person or persons prior to the purchase of the residence; (4) The residence was constructed by the defendants for purposes of sale and was sold in a defective condition, which defective condition impaired the intended use of the residence, namely, inhabitation; (5) Plaintiffs were not aware of the defective condition and were not possessed of any knowledge or notice by which they could have reasonably discovered it; (6) By reason of the defective condition, the plaintiffs suffered damages in the form of a decrease in the fair market value of the residence. Theis v. Heuer, 264 Ind. 1, 280 N.E.2d 300, 303 (1972).

The trial court, in its judgment, made specific findings of fact on each of the above elements. The record reflects that each of these findings was supported by the evidence. Where the trial court’s judgment is supported by the evidence it will not be disturbed on appeal. Knapp v. Knapp, 392 So.2d 527 (Ala.1980).

The defendant next contends that the amount of damages was not properly proven and was unreasonable. An owner of property may testify as to the value of such property. State v. Hastie, 333 So.2d 795 (Ala.1976); Cinader v. Cinader, 367 So.2d 487 (Ala.Civ.App.1979); C. Gamble, McElroy’s Alabama Evidence § 128.11 (1977). In the instant case, the only evidence as to the diminished value of the house came from its owner, a plaintiff. He testified the house had decreased in value approximately $7,000 to $8,000. After hearing this evidence, the trial court rendered judgment for plaintiff in the amount of $7,000.

Where evidence has been presented ore tenus, the trial court’s findings as to the amount of damages will not be disturbed in absence of an abuse of discretion. S. A. Martin v. House of Carpets, Inc., 41 Ala. App. 460, 135 So.2d 171 (1961). An award based upon competent, undisputed evidence is not unreasonable and does not constitute an abuse of discretion.

The defendant also contends that the evidence was insufficient to prove a fraudulent attempt to conceal. This case, however, was decided on the basis of breach of implied warranty. Fraud is not a necessary element in that cause of action. Consequently, any discussion of fraud is preter-mitted.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Norman Leon GUTHERY v. Rita GUTHERY.
    Civ. 2610, 2736 and 2846.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.
    Rehearing Denied Dec. 9, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-272.

      John L. Sims, Hartselle, for appellant.
    Sherman B. Powell, Jr., and J. Tilden Dillard, Decatur, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The wife, Rita Guthery, filed a complaint for divorce on July 3, 1980. The husband, Norman Leon Guthery, filed an answer on August 28, 1980. The case was tried September 8, 1980 and decree divorcing the parties and dividing the property was rendered on September 12, 1980.

A petition for rule nisi was filed by the wife on September 23, 1980. The petition alleged among other things that the husband had harassed the wife, had altered an automobile awarded the wife in the division of property, had refused to give the wife a key to the residence awarded her and had refused to pay court-awarded alimony and child support.

Various other motions were filed by the husband. Petition for rule nisi was heard by the trial court and resulted in a decree of contempt which was rendered on November 5, 1980.

The husband’s motion for new trial which had been filed on October 10, 1980 was denied on December 3, 1980. On December 16, 1980 notice of appeal from the final decree of divorce, the contempt citation and the denial of the motion for new trial was filed.

The record reveals the following facts. The parties had been married approximately nineteen years. The husband owns and operates a body shop which repairs wrecked automobiles. The wife has a tenth grade education, but has obtained a cosmetology manager’s license. She has not worked for several years. She testified her medical condition prevented her from working. The couple had two male children: Rodney, age fourteen and Randy, age seventeen.

The decree divorced the parties on the grounds of incompatibility of temperament. The husband received custody of Randy and the wife received custody of Rodney. Visitation rights were set out in the decree. The husband was to pay $250.00 per month as child support for Rodney.

The wife was given $200.00 per month as periodic alimony for a period of two years or until she dies, remarries, or becomes self-supporting, whichever comes first.

The divorce decree also gave Mrs. Guth-ery the house, a 1978 Trans Am automobile, and the household furnishings. Husband received .his body shop business, all cars except the Trans Am, and his personal property.

Conflicting evidence was presented as to the value of the marital estate. The residence was valued at between $40,000 and $50,000. The husband’s business had various estimates as to its value. The husband contended it was worth only $12,000 while other testimony placed the value at $100,-000. The husband also contended his income was only $1,000 a month, but his accountant testified that husband earned $96,000 a year.

Several contempt proceedings have been brought since the initial decree. Wife claimed that husband altered the Trans Am by placing a wrecked hood on it instead of the hood that was on the car at the time of the initial decree. The hood was valued at $400.00.

On November 5, 1980 the husband was held in contempt by the trial court. He was ordered to pay wife $500 to repair the Trans Am. Wife was ordered to allow husband to obtain possession of some of his personal item§.

The first issue we are asked to consider is whether the trial judge was disqualified from hearing this divorce case due to the fact that he and wife’s attorney are brothers-in-law and own an airplane jointly.

Leave of this court was granted so that husband could file a motion under A.R.C.P. 60(b)(6) to have the divorce judgment set aside because of the judge’s disqualification. At the hearing on this motion, the original trial judge testified that he had disclosed his relationship to the wife’s attorney and that the parties orally agreed to allow him to hear the case. As a result, the 60(b) motion was denied, and husband appeals this denial as well as other issues concerning the divorce decree.

It is clear to this court that under Canon 3(C)(1)(d) of the Canons of Judicial Ethics a trial judge is disqualified where it is found that he is related to one of the parties or attorneys within the fourth degree. Clearly in this case, the judge was disqualified to serve because he was related to the attorney within the proscribed degree and owned property jointly with him. The only way this disqualification can be remitted is for the judge to fully disclose his disqualification in the record and for the parties to agree in writing to allow him to hear the case. In the instant case the parties and their attorneys were informed in open court of the disqualification, and the appellant through his attorney agreed for the judge to hear the case. The agreement, however, was not reduced to writing.

Husband contends that since the judge was disqualified, the divorce decree is invalid and void. We cannot agree with this contention.

Our courts have held that a final judgment rendered by a judge who is disqualified to serve is merely voidable and not void. State ex rel. Burns v. Phillips, 250 Ala. 120, 33 So.2d 239 (1947); Phillips v. State, 32 Ala.App. 238, 24 So.2d 226 (1945). Furthermore, once a judgment becomes final, our courts are reluctant to overturn it.

It has been stated numerous times that motions under Rule 60(b) to set aside a judgment are meant for extraordinary circumstances. Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979); Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). The final decree of divorce was rendered over one year ago. In view of this and the evidence showing that the husband was informed at trial of the judge’s disqualification and assented to his hearing the case, we do not find circumstances which warrant a conclusion that the provisions of Rule 60(b) should be invoked. See Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), cert. denied, 878 So.2d 1118 (Ala.1980). It should be noted that at the 60(b) hearing the husband in no way disputed knowing of the judge’s disqualification at the time of trial.

From this we cannot find that the husband’s rights were so prejudiced that the one-year-old divorce decree should be invalidated. Even though technically the trial judge erred in not requiring the disqualification to be remitted in writing and incorporated in the record, husband has not shown that he was prejudiced by the method used by the trial judge to remit his disqualification. Rule 45, A.R.A.P. Consequently, we affirm the denial of the 60(b) motion.

All of the rest of the issues raised by husband concern the alimony and property provisions of the divorce decree. The division of property is within the sound discretion of the trial court and will not be reversed absent a palpable abuse of discretion. Furthermore, there is no fixed standard for division of marital property. Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979).

In this case we can find no error in awarding husband his business and wife the marital home. We also cannot find error in the trial judge’s award of personal property. If the parties cannot agree what constitutes “furnishings” in the decree, then their remedy is to ask the trial court to resolve the problem.

As to the alimony and child support provisions, those items are also in the sound discretion of the trial court. The court is to consider factors of age, health, station in life, etc. Kabaci v. Kabaci, supra. Clearly, alimony payments which will cease after two years are not an abuse of discretion considering the wife’s inability to work. Neither can we find an abuse of discretion in the award of $250.00 per month and payment of medical and dental bills as child support. Ellison v. Ellison, 386 So.2d 471 (Ala.Civ.App.1980).

The husband also contends that the court erred in finding him in contempt. The record, however, reflects that the husband did change the hood on the automobile and that he harassed the wife. From this we cannot find that the trial judge erred in holding the husband in contempt and in ordering the husband to pay wife $500 to put the motor vehicle in the condition it was in at the time the vehicle was ordered transferred to wife.

Finally, husband contends that it was error to deny him a new trial. The granting or denying of a motion for new trial is within the discretion of the trial court, and its decision is presumed correct. Taylor v. Birmingham News Co., 341 So.2d 689 (Ala.1977). We find no abuse of discretion here.

The wife has requested an award of an attorney’s fee on appeal. This request is granted and the wife is awarded $500.00 as an attorney’s fee.

AFFIRMED.

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


text:
    Jerry SHOEMAKER, Director, Alabama Department of Public Safety v. Leroy MONEY.
    Civ. 2847.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Rehearing Denied Jan. 13, 1982.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellant.
    Patrick K. Nakamura, Dothan, for appel-lee.
   BRADLEY, Judge.

This is an appeal from the granting of plaintiff Leroy Money’s petition for writ of mandamus directing defendant, Jerry Shoemaker, as Director of the Alabama Department of Public Safety, to reinstate plaintiff’s driver’s license and driving privileges.

The stipulated facts indicate that on June 7, 1980 appellee, Leroy Money, was arrested for allegedly driving under the influence of alcohol in violation of § 32-5-170, Code 1975 (repealed 1980). Prior to trial, Money approached District Judge Gary MeAliley and asked him to explain the consequences of the entry of a guilty plea to the offense. At no time during the lower court proceeding was Money represented by an attorney. Judge MeAliley, mistakenly believing that the new Rules of the Road Act, § 32-5A — 1 to -266, Code 1975, was in effect, informed Money that if he pleaded guilty to the charges he would be required to pay a fine of $100.00 plus court costs, and attend the area’s DWI educational program, but that his driver’s license would not be revoked by the Department of Public Safety. In fact, § 32-5A-1 to -266 did not become effective until August 17, 1980.

In reliance on Judge McAliley’s representations, Money entered a guilty plea to the charges. A judgment was entered on June 11, 1980, finding Money guilty of driving under the influence of alcohol, but specifically stating that Money’s driver’s license was not to be revoked or suspended.

Around September 1, 1980 Money received notice from the Department of Public Safety that, pursuant to § 32-6-16(f)(2) (repealed 1980), his driver’s license would be revoked because of his DWI conviction. The revocation was to be effective September 12, 1980. After he received the notice, Money approached Judge MeAliley to find out why his license had been revoked. Money alleged that he would not have pleaded guilty had he known that his license would be revoked automatically. Admitting his error regarding the effective date of § 32-5A-191(c), Judge MeAliley issued an order on September 8, 1980 allowing Money to withdraw his guilty plea, setting aside the judgment of conviction, and ordering a new trial set for October 3, 1980. At the new trial, Judge MeAliley, considering the testimony of the arresting officer, found Money guilty of reckless driving instead of driving under the influence of alcohol. Money was ordered to pay a fine of $100.00 plus court costs, and to attend DWI school. A copy of the court’s new order was sent to the Department of Public Safety-

On October 22, 1980 Money received a letter from the Department of Public Safety informing him that:

On the advice of the Attorney General’s Office this department cannot accept the Order from the District Court of Coffee County. Therefore, the six month revocation against your driving privilege is in effect and it will be necessary for you to surrender your driver license and any registration plate (tag) issued in your name to this department.

Money was to surrender his license and tags on November 5, 1980, and he promptly did so.

On November 7, 1980 Money filed a petition in the Circuit Court of Montgomery County for a writ of mandamus directing appellant, Jerry Shoemaker, as Director of the Department of Public Safety, to reinstate Money’s license, and preventing him from revoking it thereafter. The circuit court stayed the revocation of Money’s license pending a hearing on the petition. The case was submitted to the court on cross motions for summary judgment. On May 19, 1981 the court entered a judgment denying the Department’s summary judgment motion and granting the writ of mandamus directing appellant to reinstate Money’s license. The Department of Public Safety appeals from that judgment.

The question to be answered here is whether the Montgomery County Circuit Court properly granted Money’s request for a writ of mandamus directing the Department of Public Safety to reinstate his license. The answer to that question in turn depends upon whether the district court had jurisdiction to set aside the original conviction and order a new trial of the issue after a period of eighty-nine days had expired.

At common law, a court of record retained the power to vacate, modify or set aside its judgments or decrees at any time during the term of court in which the judgment was rendered. Schaeffer v. Walker, 241 Ala. 530, 3 So.2d 405 (1941). In 1936 the Alabama legislature abolished terms of court, providing that the courts were to be open for judicial business at all times. Williams v. Wicker, 235 Ala. 348, 179 So. 250 (1938); Tit. 13, § 114, Code 1940. In order to place a limit on the power of the courts over prior judgments, the legislature in 1939 enacted Tit. 13, § 119, Code 1940, which read in pertinent part:

[Ajfter the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day ....

That statute became the authoritative provision governing the power of the court over its prior decisions.

When the current code was enacted in 1977, the thirty-day statute was deleted. Money argues that this deletion from the code indicates that there are now no limits to a court’s jurisdiction over its judgments. We, however, can find no merit in this argument.

In the present ease Money was convicted of the criminal offense of DWI. As a result, we must apply the law relating to criminal procedure to determine whether the district court had authority to set this judgment aside. A defendant may appeal to the circuit court from a final judgment rendered by the district court in a criminal case. Such appeal must be made within fourteen days from the date of the judgment or the date of the denial of a post trial motion, whichever is later. § 12-12-70, Code 1975. Appeals from the district court are heard in the circuit court by trial de novo. § 12-12-71, Code 1975. There was no post trial motion filed and no appeal taken to the circuit court in the instant case; the statute creating the district court contains no provision reserving to the court any inherent power to modify, vacate or set aside its judgment after these time periods have expired. See Russell v. Lee, 282 Ala. 504, 213 So.2d 236 (1968). Thus it would appear that the district court lost jurisdiction to set aside on its own motion its judgment of conviction after the time for appeal had expired. If this were not true in the factual situation presented by the instant case, criminal judgments in the district court would never be final. Such a result cannot be condoned.

After an exhaustive search, we are unable to find any authority which would permit a district court on its own motion to set aside a judgment in a criminal case after the expiration of eighty-nine days. Money suggests in brief here that the circuit court could have treated his visit to the district judge as a petition for a writ of error coram nobis and that what subsequently occurred in the district court satisfied the requirements of the writ of error coram nobis.

The record made in the circuit court contains nothing to suggest that the court considered the actions of the district court judge to be anything other than the setting aside of a criminal judgment on his own motion. This theory of the case in the circuit court is clearly evident from the pleadings, the stipulation of facts, the briefs of the parties and the judgment of the court.

An appellate court reviews a case only upon the theory under which it was tried below. Sutton’s Music Co. v. Top Music Co., 377 So.2d 1092 (Ala.Civ.App.1979). The case was tried in the circuit court on the theory that the district court had the authority to set aside the DWI conviction on its own motion even after the lapse of eighty-nine days. As noted above, the district court had no such authority. As a result, the judgment of the circuit court is reversed and the cause remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: WRIGHT, Presiding Judge.

text:
    ALABAMA STATE TENURE COMMISSION v. Andrew GREEN.
    Civ. 2848.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Rehearing Denied Jan. 13, 1982.
    Raymond E. Ward, Sp. Asst. Atty. Gen., for appellant.
    Kenneth L. Thomas, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

Andrew Green was employed for three consecutive school years as an instructor and guidance counselor by the Greene County Board of Education. In the fourth year of his employment with the Board, he was promoted to Coordinator of Guidance and Counseling for the entire system and moved into the central office of the school board. Various other duties were delegated to Green including that of system’s evaluator and director of several federally-funded projects. These were in addition to his position of Coordinator of Guidance and Counseling. He remained at the central office in those roles until 1980. Despite his location in the central office, Green had contact with both teachers and students in the system through actual group and individual counseling of students and teacher training sessions. He also supervised the system’s standardized testing programs.

On August 15, 1980, Green was informed by lettér that he would be transferred to Carver Junior High School as a guidance counselor for the 1980-81 school year. He was to continue in his other duties with the exception of one federally-funded project that was scheduled to terminate. Green contested the transfer and requested a hearing before the Board. A hearing was held September 16, 1980, and subsequent thereto, the Board confirmed Green’s transfer. From that decision, Green appealed to the Alabama State Tenure Commission alleging that his transfer was for personal and political reasons, and therefore violated § 16-24-7, Code (1975).

The Commission determined that Green was not a tenured teacher and dismissed his appeal for lack of jurisdiction after a hearing on November 3, 1980. Green filed a petition for writ of mandamus in the Circuit Court of Greene County on November 12, 1980. The circuit court found that Green was a tenured teacher and ordered the Commission to hear the merits of Green’s appeal. From that order, the Commission appeals.

The criteria for tenure or “continuing service status” is set out in § 16-24-2(a), Code (1975) which reads as follows:

Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.

Teacher is defined in § 16 — 24—1, Code (1975) “to mean and include all persons regularly certified by the teacher certificating authority of the state of Alabama who may be employed as instructors, principals or supervisors. ...” (Emphasis ours.)

The primary issue in this case is whether Green is tenured as a “teacher” under the statute. The Commission contends that Green is not tenured because (1) he was not employed in year four of his employment with the Greene County Board of Education in the same capacity as his first three consecutive school years, and (2) he does not come within the term “supervisor.” We note that construction of the statute is necessary to determine Green’s status and that little case law has been generated in Alabama in this area.

A threshold issue is whether one employed as a teacher for three consecutive school years gains tenure when employed for the succeeding year in a position not within the scope of “teacher” as defined in § 16 — 24—1. Even though the teacher tenure law is to be construed liberally in favor of teachers, Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.), cert. denied, 380 So.2d 877 (Ala.1980), we do not find that the statute reaches so far. Teachers are the prime beneficiaries of the tenure law, Haas, supra, and one employed for the fourth year outside that definition should not be protected by the statute.

Appellant contends that after employment as a teacher for three consecutive school years, reemployment in the succeeding year must continue in the same capacity — either instructor, supervisor or principal. Since “teacher” includes all three categories, that theory is not well taken. We find that one who serves as a “teacher” for three consecutive school years and is reemployed (within the statutory definition of “teacher”) for the succeeding year by the same school system attains continuing service status. In this case the “teacher” attained continuing service status as an “instructor” if his reemployment for the fourth year was within the definition of “teacher.”

The determinative issue therefore is whether Green’s position as Coordinator of Guidance and Counseling in which he was reemployed for his fourth consecutive school year was within the definition of “teacher.” He was neither an instructor nor a principal. Was he then a supervisor? That term has not been clearly defined in this state, but our supreme court held recently that the position of “advisor” was supervisory in nature. Smith v. Birmingham Board of Education, 403 So.2d 226 (Ala.1981).

Green’s duties included active participation with both students and teachers. He counseled students individually and in groups. He also conducted teacher training sessions in guidance and counseling-related areas. These activities bring his position within the ambit of “supervisor.” Appellant’s contention that Green was director of several federally-funded projects does not detract from his supervisory role. Also appellant’s contention that Green was paid from the federal Youth Work program is somewhat misleading since that program had only been in existence for one year in the system at the time of Green’s transfer. Green’s supervisory position began in 1970, some eight or nine years prior to the implementation of the Youth Work program. In any event, the source of the funds for his salary is not determinative. He was an employee of the Greene County Board of Education.

Though not necessary to the disposition of the issues in this case, we note that service for three consecutive years as a supervisor satisfies the statutory requirements for attaining continuing service status as a supervisor. Green served some ten years as supervisor. It is our construction of §§ 16-24-1,-2 that Green has attained continuing service status and is therefore entitled to all the privileges and protection of the Alabama Teacher Tenure Law. The judgment of the circuit court is affirmed and the Alabama State Tenure Commission is directed to forthwith proceed accordingly.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Sarah D. McLAIN v. Claude E. McLAIN.
    Civ. 2885.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Rehearing Denied Jan. 13, 1982.
    Certiorari Denied, Feb. 26, 1982 Alabama Supreme Court 81 — 419.

      Drayton N. James and Judith S. Critten-den of Clark, James & Crittenden, Birmingham, for appellant.
    John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
   BRADLEY, Judge.

Sarah and Claude McLain were married on December 20, 1974. The husband filed for divorce on January 30, 1979. A final decree of divorce was rendered on August 29, 1979. The wife appeals and contends here that the parcel of land upon which is situated the marital home is her separate property and that the trial court erred in decreeing that the property be sold and the proceeds divided equally between the parties.

The facts showed that both parties were employed by the Birmingham Board of Education at the time of their marriage. The husband subsequently retired. At the time of the divorce, the husband was earning $1,574.84 per month. The majority of this income was social security and teacher’s retirement. The wife earned $9,900.00 a year from her job.

The evidence also showed that the parties purchased a home in 1976. They paid $16,-500.00 down, and a mortgage of $24,000.00 was taken for the balance. The parties disputed what amounts they each contributed to this purchase. Husband contends that he initially contributed $13,225.00 to the purchase and made payments on the mortgage in the amount of $6,180.00. The wife testified that she had given the husband some of this money. The testimony also indicated that she made several lump-sum payments to reduce the mortgage balance.

During the marriage, the wife purchased three parcels of land which surrounded the subject property. It is undisputed that this was the wife’s separate property.

Also the testimony indicated that the husband’s income was used for the support and maintenance of the parties and the home.

The evidence further showed that in 1978 the parties began to experiénce marital difficulties, and the husband filed a complaint for divorce which he later withdrew. The husband then had an attorney draft a warranty deed conveying the house to the wife. He stated that he did this to effect a reconciliation, and because his wife had been adamant in requesting title to the home.

In its initial decree the trial court imposed a resulting trust on the home. It further found that both parties were entitled to a one-half interest in the home. On appeal we found that the evidence was not sufficient to impose a resulting trust; however, we did not preclude the trial judge from finding that the parcel in question was marital property and that it or the proceeds from the sale thereof could be equitably divided between the parties. McLain v. McLain, 384 So.2d 114 (Ala.Civ.App.1980).

On remand the trial court found that the parties were each entitled to a one-half interest in the home, ordered that the home be sold and that the proceeds be equally divided unless the parties could agree oh a settlement.

Division of property pursuant to divorce is a matter within the discretion of the trial court and will not be disturbed on appeal absent a showing of plain and palpable abuse of discretion. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980). Furthermore, the division of property does not have to be equal, but should be based on the nature of the case. Phillips v. Phillips, 344 So.2d 786 (Ala.Civ.App.1977).

In the case at bar, the wife argues that the marital home became her separate property by virtue of her husband deeding it to her. She contends that this constituted a gift, precluding the trial court from finding that it was marital property subject to division. We, however, find that the trial judge in looking at the facts and circumstances of this case could conclude that the home was still marital property. See Foreman v. Foreman, 379 So.2d 89 (Ala.Civ.App.1980).

We have stated before that the determination of what constitutes the wife’s separate estate is a matter to be determined by the trial court. Shamblin v. Shamblin, 361 So.2d 580 (Ala.Civ.App.1980). In the present case, there was sufficient evidence for the trial judge to conclude that the home was not the wife’s separate property. The husband’s purpose in transferring the property to the wife was to effect a marital reconciliation because the parties had had several arguments over placing the property solely in her name. Even after the property was deeded to the wife, the parties continued to use it as their joint homeplace.

The wife has cited us to cases that state that a conveyance from a husband to his wife is presumed a gift. It should be noted, however that that presumption can be rebutted by showing the parties’ real intent. Cox v. Cox, 395 So.2d 1027 (Ala.Civ.App.1981). In this case, the evidence showed that the husband conveyed the property to the wife in order to effect a reconciliation. From this evidence and considering the close proximity of the conveyance to the divorce, the court could conclude that there was no intent that this should be a gift.

We, therefore, find that the trial court could properly conclude that the property was still marital property and not the wife’s separate property. No abuse of discretion having been shown, the decree of the trial court is affirmed.

Both parties have petitioned this court for attorneys’ fees on appeal. After considering the circumstances of this case, we deny both of these requests.

AFFIRMED.

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


text:
    AMERICAN FIRE & CASUALTY COMPANY, INC., a Corporation v. Yvonne ARCHIE.
    Civ. 2913.
    Court of Civil Appeals of Alabama.
    Dec. 23, 1981.
    Rehearing Denied Jan. 27, 1982.

      Jerry E. Stokes, Andalusia, for appellant.
    Gareth A. Lindsey, Elba, and Griffin Sikes, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

Yvonne Archie’s home was destroyed by fire in the early morning hours of June 19, 1978. Neither Mrs. Archie nor her two children were at home when the incident occurred. Testimony at trial indicated that neighbors were awakened by a “loud boom,” observed flames coming out the windows and notified the fire department. The cause of the fire was not determined. The home was insured against fire loss by American Fire & Casualty, appellant herein. The Farmer’s Home Administration held a first mortgage on the property.

The insurance policy included the following pertinent coverage limitations:

Dwelling — $15,000
Unscheduled personal property — $7,500

Following the fire, Mrs. Archie contacted her agent and later talked with an adjuster. At the request of the adjuster and with the aid of an attorney, Mrs. Archie prepared an inventory of personal items lost in the fire, listing both the approximate original cost and age of each item. She also executed a sworn proof of loss statement required by the insurer which set out her total loss as $25,647.57, including the dwelling and personal property. The American Fire & Casualty Company paid the $14,606.70 balance owed on the mortgage to FHA and received an assignment thereof. Mrs. Archie’s claim was not honored.

Upon the insurer’s refusal to pay, Mrs. Archie sued in the Circuit Court of Coving-ton County for $22,500, the maximum liability under the policy terms. The company defended by generally denying the complaint and raising the defenses of (1) intentional burning by the insured, and (2) misrepresentation in the application and in the proof of loss as to the value of the personal property insured.

At the conclusion of a jury trial, a verdict was returned against defendant for $7,894, an amount equal to the difference between the $15,000 dwelling and the $14,606.70 paid FHA, plus the $7,500 coverage of the contents. From that judgment, defendant appeals.

On appeal, the defendant contends that the trial court erred (1) in its instructions to the jury regarding misrepresentation; (2) in several evidentiary rulings, (3) in its failure to grant a directed verdict, and later a judgment notwithstanding the verdict; and (4) by commenting on the evidence.

The policy contained the following provision:

This entire policy shall be void if, whether before or after loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.

Defendant contends that plaintiff made misrepresentations both in her application for the policy and in the claim of loss.

There is a difference in the required elements of misrepresentation before loss and misrepresentation after loss. Before loss, a misrepresentation must be material to an increase in the risk of loss and must be relied on by the insurer tq its prejudice. See, Hartford Fire Insurance Co. v. Clark, 258 Ala. 141, 61 So.2d 19 (1952); National Union Fire Insurance Co. v. Schwab, 241 Ala. 657, 4 So.2d 128 (1941). After loss, a misrepresentation need only be made with the actual intent to deceive and be related to a matter which is material. Hartford, 258 Ala. at 151, 61 So.2d 19; National Union, 241 Ala. at 659, 4 So.2d 128. Risk of loss is not at issue after the loss has occurred since it cannot be increased at that point. Hartford, 258 Ala. at 150, 61 So.2d 19; National Union, 241 Ala. at 659, 4 So.2d 128. Proof of loss misrepresentations are specifically referred to in § 27-14-28, Code (1975), which provides that:

No misrepresentation in any proof of loss under any insurance policy shall defeat or void the policy unless such misrepresentation is made with actual intent to deceive as to a matter material to the insured’s rights under the policy.

The trial judge refused written charges requested by defendant as to misrepresentation in the application and in proof of loss. However, he charged as follows in his oral charge:

[F]or the defendant to sustain its plea of misrepresentation, the defendant has the burden of reasonably satisfying the jury, from the evidence, that there was a misrepresentation by the plaintiff. That the matter misrepresented was material to the risk of loss. That the misrepresentations were false and made with either actual intent to deceive and that the representations were relied on by the defendant to its prejudice.

At the close of the oral charge, out of the presence of the jury, defendant’s counsel spoke to the court concerning the charge. As relevant, he said as follows:

Just a couple of things, your honor. I also think the charge covered just about everything. But I do want to object for the record for the failure of the court to give all of our requested charges. (He then spoke to an aspect of the case not in issue on appeal).... The other objection of substance that I had is on our charge on the misrepresentation where you indicated that the misrepresentation would have to increase the loss. I understand that misrepresentation after the loss can void the policy, if it is done with intent to deceive, and, the insurance company was prejudiced and it is in the policy that it won’t increase the loss. But it would be grounds to void the policy.

The court responded:

I thought I said or I thought I put it in. Anyway I hope I did.

Counsel responded:

That’s all I have.

The defendant claims error in that the court’s charge referred only to misrepresentation prior to loss and ignores the elements of misrepresentation after loss.

We have set out all aspects of the charge and objections of counsel referrable to the defenses of misrepresentation. We first comment that the recorded objection that the court failed “to give all of our requested charges” is not sufficient under Rule 51, A.R.C.P., which requires specific objection and statement of grounds therefor. Wright v. Waters, 367 So.2d 960 (Ala.1979). We next comment that the second referenced objection appears to apply to the oral charge and complains of the absence of certain terminology which the court did in fact use. Thus the complaint appears to be without foundation. However, the compelling reason for our holding of absence of reversible error is that our review of the evidence fails to discern any factual support for the defenses of misrepresentation either before or after loss. Therefore, we conclude that any defect in the charge as given has not affected the substantial right of the defendant and is therefore subject to Rule 45, A.R.A.P.

Defendant also assigns as error several evidentiary rulings of the trial court.

First, defendant contends that the following between Mrs. Archie arid her attorney, Mr. Lindsey, was erroneously allowed:

Q. Mrs. Archie, at any time, did anybody from this insurance company come to you or communicate with you or say to you that they disagreed with the value of ten thousand six hundred and forty-seven dollars and fifty-seven cents ($10,647.57)—
Mr. Stokes: We object.
Q. That you put on your personal property.
Mr. Stokes: We object. Unless there is some identification as to who it was.
The Court: Overruled.
Q. At any time, did anybody object to that?
A. No.
Mr. Stokes: We object to the hearsay.

Defendant’s contention on appeal is that the testimony should not have been admitted as an admission by silence or a prior inconsistent statement. This objection was not properly raised in the court below and thus will not be considered on appeal. Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436 (1968). The hearsay objection will not be considered. It was untimely made in the trial court since it came after the response. Wilkinson v. Duncan, 294 Ala. 509, 319 So.2d 253 (1975). The general objection made in a timely fashion did not include the specific objection of hearsay. See, Bowlen v. State Department of Pensions and Security, 51 Ala.App. 665, 288 So.2d 728 (1974).

The second evidentiary issue is raised by the following testimony which was objected to at trial in a timely fashion on the basis of hearsay:

Q. And were they unable to find what you were looking for—
Mr. Stokes: We object to the hearsay.
The Court: You may answer what was found.
A. No, they didn’t find anything.
Mr. Stokes: We object.
Q. Thank you.
Mr. Stokes: Excuse me. We object to that and move to exclude it because he is telling what somebody in Enterprise did.
The Court: Overruled.

The trial court erred in its ruling on the proper hearsay objection and the motion to exclude. Evidence based on the competency and credibility of one other than the witness is properly defined as hearsay. Pasquale Food Co. v. L. & H. International Airmotive, Inc., 51 Ala.App. 127, 283 So.2d 438, cert. denied, 291 Ala. 795, 283 So.2d 448 (1973). We do not find this to be prejudicial error since the same testimony was admitted at another stage of the trial without error. Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So.2d 110, 113 (1958).

Defendant also contends that the trial court erred in denying its motion for directed verdict following the plaintiff’s case or for judgment notwithstanding the verdict subsequent to the jury’s return.

In light of the scintilla of evidence rule and viewing the evidence most favorable to the non-movant, we hold that the trial court properly denied directed verdict. See, Nationwide Mutual Insurance Co. v. Herren, 362 So.2d 253 (Ala.Civ.App.), cert. denied, 362 So.2d 256 (Ala.1978); Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976). A motion for judgment notwithstanding the verdict cannot be granted unless the directed verdict should have been granted. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979).

As to defendant’s contention that the trial court erred in allowing Mrs. Archie’s counsel to lead her on the subject of actual value of personal property lost in the fire, we note that the trial court has vast discretion in this area. See, McElroy’s Alabama Evidence § 121.05(3) (3rd ed. 1977). We acknowledge, however, that Rule 43(b), A.R.C.P. sets out that, “Leading questions are generally allowed on cross-examination and, except when justice requires otherwise or as hereinafter set out, only on cross-examinations. .. . ” (Emphasis ours.) We find no prejudicial error in this instance since the same testimony was repeated later on examination of the witness by the trial court without objection. See, Harvey Ragland Co., supra.

The final issue on appeal is whether the trial court committed error by commenting on the evidence. No objection was made below, thus there is nothing for our review on appeal. Lane v. Lee, 50 Ala.App. 75, 277 So.2d 352 (1973); Chambers v. Burgess, 50 Ala.App. 591, 281 So.2d 643 (1972). We do not find the remarks of the court to be a comment upon the evidence.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Robert A. WALTON, Jr. v. Teresa R. WALTON.
    Civ. 2941.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1982.

      Martha Campbell Watson and David Cromwell Johnson, Birmingham, for appellant.
    Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Robert A. Walton, Jr., appellant, and Teresa R. Walton, appellee, were married by legal ceremony on May 11, 1977. One child, a daughter, was born of the marriage. The parties were subsequently divorced by final decree on October 19, 1979. The divorce decree provided that appellee would retain custody of the child, with visitation privileges given to appellant; that appellant was to provide medical and life insurance for the child, and pay $200.00 per month as child support; and that appellant would receive the entire interest in the parties’ home in Ensley, which they both purchased during the marriage. Appellant was required to pay appellee the sum of $1,500.00 for her interest in the house, and the parties’ other property was divided between them. Appellee thereafter continued to use her married surname.

Prior to the October 19 decree, appellee had moved out of the parties’ Ensley home and rented a house in Gardendale. Around October 22, 1979, after the divorce had become final, appellant brought appellee her copy of the divorce decree. Both parties agree that they had a conversation regarding living together again, although the evidence as to the contents of the conversation is in dispute. At that time appellee moved back into the Ensley house with appellant. The provisions of the October' 19 decree were apparently ignored.

Appellee’s stay at the Ensley house with appellant was sporadic, with appellee sometimes leaving the house for several days and moving back in at a later date. The parties continued to live in this fashion for a period of seven months.

During the time the parties lived together, they sold their Ensley home, executing the conveyance as husband and wife. The parties subsequently attempted to purchase a farm; the contract for purchase was signed by both parties as husband and wife. When the purchase of the farm fell through, the parties bought a house in Pleasant Grove in the summer of 1980. The conveyance was signed by both appellant and appellee as husband and wife, although appellant claims he had no knowledge of that fact. The real estate agent who prepared the documents testified that she assumed the parties were husband and wife; she was not told otherwise. The evidence is unclear as to whether the proceeds of the sale of the Ensley house were used to finance the Pleasant Grove house. Appellant testified that the down payment came from his savings account; both parties assumed first and second mortgages, although appellant subsequently made all the payments.

In June 1980 appellee moved out of appellant’s residence completely, and the parties began to comply with the provisions of the divorce decree. Appellant was later institutionalized for treatment of alcoholism and related emotional problems.

In December of 1980 appellant filed a bill in the circuit court to set aside the deed to the Pleasant Grove house and to reform the document to reflect appellant as sole owner. Appellee subsequently filed a pleading, alleging that the parties had entered a common-law marriage after their October 19, 1979 divorce, and requesting that the court grant the parties a divorce and effect a division of property. Appellant denied that the common-law marriage existed.

The Circuit Court of Jefferson County, hearing the evidence ore tenus, found that the marriage between the parties had been reestablished by their post-divorce conduct, and granted the parties a divorce. The provisions of the decree were similar to the provisions of the original decree, with three exceptions. The Pleasant Grove house was to be sold, the mortgages paid, and the leftover proceeds divided equally between the parties. Appellant was required to pay appellee the sum of $500.00 as alimony in gross, and to pay appellee’s attorney’s fee of $1,000.00. Appellant asserts that the actions of the court were erroneous, and brings this appeal.

Appellant raises three issues to be decided by this court: (1) whether the parties’ post-divorce conduct clearly established the existence of a common-law marriage; (2) assuming a common-law marriage was established, whether it was error and an abuse of discretion for the court to require that the Pleasant Grove property be sold and the proceeds divided between the parties, and to require appellant to pay appel-lee $500.00 as alimony in gross and to pay her attorney’s fee; and (3) whether it was error for the court to refuse to allow appellant to make an offer of proof concerning certain excluded evidence.

Appellant first contends that the evidence is insufficient to establish the existence of a marriage relationship. We do not agree. To constitute a common-law marriage, there must be a present agreement or a mutual understanding to enter into the marriage relationship; the parties must be capable in law of making the marriage contract; and there must follow cohabitation as husband and wife and a public recognition of that relationship. Golden v. Golden, 360 So.2d 994 (Ala.Civ.App.), cert. denied, 360 So.2d 996 (Ala.1978). No words of assent are required; present intention is inferred from cohabitation and public recognition. Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978).

The marriage relationship may be shown in any way that can be known by others, such as living together as man and wife, referring to each other in the presence of others as being in that relation, declaring the relation in various types of documents and transactions, sharing household duties and expenses, and generally engaging in “.. . all of the numerous aspects of day-to-day mutual existence of married persons.” [Citations omitted.]

Bishop v. Bishop, 57 Ala.App. 619, 330 So.2d 443 (1976).

Due to the serious nature of the marriage relationship, the courts will closely scrutinize claims of common-law marriage and require clear and convincing proof thereof. Piel v. Brown, 361 So.2d 90 (Ala.1978). The ore tenus rule applies, however; this court need determine only if there is evidence to support the trial court’s findings. Huffmaster v. Huffmaster, 279 Ala. 594, 188 So.2d 552 (1966). We find that there existed ample evidence to support the finding that a marriage relationship existed. During the time that the parties lived together, they sold their home in Ensley and purchased a new home in Pleasant Grove, executing both conveyances as husband and wife. For the tax year 1979 the parties filed a joint tax return as husband and wife. The returns were prepared by the appellee’s accountant from information provided by appellant, and signed by both parties. Appellee at times also used appellant’s Sears charge card; the evidence is in dispute as to whether appellant gave his permission for the use. Ap-pellee opened a Parisian account, using her married surname.

Prior to the divorce decree of October 19, 1979, the parties maintained a joint bank account. Appellant maintains that after the divorce he withdrew appellee’s name from the signature card, and ultimately closed the account. Appellee testified that the account still existed after the divorce and that the proceeds from the sale of the Ensley house were deposited there. Nevertheless, appellee’s portion of the proceeds from the sale of the Ensley house was never separated from the rest of the proceeds, and presumably was used to finance a part of the purchase of the Pleasant Grove house.

Appellee also testified to at least two occasions in which the parties were introduced as husband and wife. There is also evidence that appellee filed claims as appellant’s spouse on the insurance policy provided him by his employer.

In short, then, we find ample support for the trial court’s finding that a marriage relationship did indeed exist between the parties. That portion of the trial court’s judgment is hereby affirmed.

Appellant next contends that, assuming a marriage relationship did exist, it was error for the court to order the Pleasant Grove house to be sold and the proceeds divided equally between the parties. We find no error in the court’s decree. Nor do we find any abuse of discretion in the award of $500.00 alimony in gross and $1,000.00 in attorney’s fee to appellee. A division of property and an award of alimony, after consideration of the equities and contributions by the parties, are matters of discretion of the trial court and will not be disturbed on appeal except for palpable abuse. Harris v. Harris, 390 So.2d 293 (Ala.Civ.App.), writ quashed, 390 So.2d 294 (Ala.1980). The requirement that the husband pay the wife’s attorney’s fee is likewise discretionary with the trial judge and will not be reversed except for abuse of discretion. Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979).

In view of the fact that appellee had an interest in the house itself, and the fact that she retained custody of the minor child, equal division of the proceeds of the house in which the parties lived during marriage can reasonably be justified, as can the award of $500.00 alimony in gross and the award of attorney’s fee. Appellee contributed in her own way toward the marriage; apparently, too, there was fault on both sides in necessitating the divorce which the court might consider. Considering all relevant factors, there was no abuse of discretion on the part of the trial court.

Appellant lastly contends that the circuit court committed reversible error in refusing to allow him to make an offer of proof with respect to certain excluded evidence, since only in that way could he preserve error on appeal. Generally, in order to preserve review of the trial court’s ruling sustaining an objection to proffered evidence, the party offering the evidence must make an offer of proof indicating what the evidence would have shown. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968). However, in situations in which the question disallowed indicates on its face the expected answer, no offer of proof is necessary to preserve error on appeal. Id.

Appellee called Officer Logan to the stand to testify that he had accompanied appellee when she went to appellant’s house to collect the articles of furniture and clothing which were hers by virtue of the October 19 divorce decree. Officer Logan testified that appellant met them at the door. In a conversation which followed, Officer Logan questioned appellant:

I said, “Are you divorced?” And he said, “We’re getting one.” I said, “Are you divorced?” And he said, “No.”

On cross-examination Officer Logan stated that upon entering the house he, Officer Logan, telephoned appellant’s counsel. Appellant’s counsel then asked the following question:

Q. That they were divorced, was that discussed with you over the phone in their presence and did you discuss that in their presence?
A. I think you told me—
MR. LONG: Object, Your Honor.
THE COURT: Sustained.

This question appears on its face to clearly indicate what the expected answer would be, i.e. that the marital status of the parties was discussed. We are therefore able to review the propriety of the court’s ruling sustaining an objection to the above testimony.

We find that the court committed error in excluding the proffered testimony. The evidence sought to be introduced would be admissible for the purpose of proving merely that a statement was made, not to prove the truth of the matter stated. See Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976). However, rule 45 of the Alabama Rules of Appellate Procedure provides that no judgment may be reversed or set aside “unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” Viewing the case as a whole, we do not find the court’s error to be reversible error. The testimony in question of Officer Logan was offered presumably to refute the existence of a marriage relationship between the parties. In light of the other facts already in evidence, admission of this testimony would have had little effect on the outcome of the case.

Accordingly, the judgment of the trial court is affirmed.

Appellee’s request for attorney’s fees is granted in the amount of $350.00.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


text:
    Carroll L. THORNE v. BIRMINGHAM COMMUNITY DEVELOPMENT.
    Civ. 3011.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1982.

      Renee D. Culverhouse of Dinsmore, Waites & Stovall, Birmingham, for appellant.
    David P. Whiteside, Jr. and Michael L. Hall of Johnston, Barton, Proctor, Swedlaw & Naff, and Charles H. Wyatt, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This an employee dismissal case. The case is before this court by writ of certiora-ri.

Carroll L. Thorne, the appellant, was employed by the City of Birmingham as a Senior Community Resource Officer with the Community Development Department. On December 18, 1980, the appellant was arrested at a “mini-movie” theatre and charged with indecent exposure and disorderly conduct. Subsequent to his arrest, the appellant was notified by his department head that there would be a determination hearing on January 6, 1980, concerning contemplated personnel action against the appellant. On January 7, 1981, the appellant was notified by the Personnel Board of Jefferson County that he was being terminated as the result of violation of rule 6.2(c), conduct unbecoming an employee in the public service and 6.2(e), disorderly or immoral conduct, of the Jefferson County Personnel Board’s Rules and Regulations.

Pursuant to Section 22 of the Personnel Board’s Enabling Act, appellant submitted a notice of appeal of his dismissal to the Personnel Board. In the notice of appeal appellant essentially denied that he had committed any act which would warrant his dismissal under rule 6.2(c) and (e).

A de novo hearing was held before the Personnel Board on March 19, 1981. The Community Development Department presented evidence tending to show that the appellant did commit the acts which led to his arrest. Additionally, the Community Development Department presented evidence tending to show that the appellant’s job required extensive contact with the public. The appellant was unable to dispute the occurrence of the incident for which he was arrested. Instead, appellant stressed that the incident occurred during a period in which he was experiencing severe personal problems and, furthermore, that the incident was in no way job related. Additionally, appellant presented evidence tending to show that he was a competent, well educated employee who consistently received very high job performance ratings.

After hearing the above evidence, the Personnel Board affirmed the appellant’s dismissal.

Appellant then appealed the decision of the Personnel Board to the circuit court. There, a three-judge panel considered the transcript of the testimony presented to the Personnel Board along with the oral arguments of the respective parties and concluded that the Personnel Board’s action was due to be affirmed.

Since there can be no appeal from decisions of the three-judge panel, this case is before this court by writ of certiorari. Ex parte Smith, 394 So.2d 45 (Ala.Civ.App.1981).

Appellant, through able counsel, contends that the statute and rules under which he was dismissed are unconstitutional. Appellant’s specific contentions are as follows: (1) Appellant’s discharge violated due process in that his discharge was not rationally related to any legitimate governmental interest; (2) The provisions of rule 6.2 under which appellant was dismissed are unconstitutionally vague and capricious; (3) Appellant’s discharge violated his constitutional right to privacy. For the reasons stated below we do not consider contentions (2) and (3) and we find no merit in appellant’s first contention.

After reviewing the record it is apparent to this court that appellant raised neither issue (2) nor issue (3) in any of the proceedings below. This court will not consider constitutional issues raised for the first time in a brief before this court. Noble v. Personnel Board of Jefferson County, 267 Ala. 488, 102 So.2d 902 (1958), cert. denied, 359 U.S. 937, 79 S.Ct. 651, 3 L.Ed.2d 637 (1959); City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551 (1955). We do note, however, that similar personnel rules and regulations have been subjected to similar constitutional attacks and have been upheld. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Davis v. Williams, 617 F.2d 1100 (5th Cir.), cert. denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980); Smith v. Price, 616 F.2d 1371 (5th Cir. 1980). This court calls particular attention to Williams v. City of Birmingham, No. CV-80-PT-1253-S (N.D.Ala. April 17, 1981), which specifically upheld the validity of rule 6.2(c) against a contention that it was unconstitutionally vague.

We now address appellant’s due process argument. At the Personnel Board hearing, the appellant presented evidence tending to show that his job performance was not affected by the incident which led to his arrest. The appellant contends that since the incident did not affect his job performance his dismissal violated due process of law because the fifth amendment due process guarantee requires that there be a rational connection between the reason for dismissal and job performance before a government employee may be dismissed. Appellant relies upon cases from the federal courts (Norton v. Macy, 417 F.2d 1161 (D.C.Cir.1969); Scott v. Macy, 349 F.2d 182 (D.C.Cir.1965)) and court of other states (Gay Law Students Association v. Pacific Telephone and Telegraph Co., 24 Cal.3d 458, 595 P.2d 592, 156 Cal.Rptr. 14 (1979)) for support of this contention.

The issue of whether termination under the Jefferson County Personnel Board’s Rules and Regulations must be related to job performance has never been determined by an appellate court of this state and, furthermore, we do not so determine in this case. We do note, however, that even if job performance was the proper test for termination, the test- was met in this case. The evidence established that appellant’s job required extensive contact with the public. Some of the character witnesses called by the appellant himself indicated that the incident in which appellant was involved would affect appellant’s credibility in his job performance. Additionally, appellant’s immediate supervisor stated that, in his opinion, the appellant’s credibility in working with the public had been destroyed by the incident.

The foregoing is sufficient to establish a rational connection between the reason for termination and job performance. . Thus, regardless of what is the proper test for determining the extent of due process protection in government employee terminations, there was no violation of due process in this case.

WRIT DENIED.

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

      . Act No. 248, Acts of Alabama 1945, as amended by Act No. 562, Acts of Alabama 1947; Act No. 670, Acts of Alabama 1953; Act No. 1600, Acts of Alabama 1971 and Act No. 679, Acts of Alabama 1977.


text:
    Myrtle Black RAYBORN v. John Kendrick RAYBORN.
    Civ. 2902.
    Court of Civil Appeals of Alabama.
    Jan. 27, 1982.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellant.
    Kenneth Cooper, Bay Minette, for appel-lea
   BRADLEY, Judge.

This is an appeal from the modification of a prior divorce decree.

Myrtle Black Rayborn and John Kendrick Rayborn were divorced by final decree in the Circuit Court of Baldwin County on February 17, 1975. The divorce decree awarded custody of the parties’ minor child to Mrs. Rayborn, subject to visitation by Mr. Rayborn, and directed Mr. Rayborn to pay Mrs. Rayborn the sum of $75.00 per week, one-half as alimony and one-half as child support. The decree further provided that:

5. The home of the parties, being vested in the Complainant and the Respondent jointly with survivorship, shall remain in the exclusive possession of the Complainant for the use and benefit of herself and her minor daughter until such time as the Complainant shall remarry or until her minor daughter shall attain her majority, whichever shall first occur, at which time, the home of the parties shall be sold at the insistence of either party and the sales proceeds, less the expenses of sale, shall be divided equally between the parties.

The parties complied with the terms of the decree for several years.

On September 29, 1980 Mr. Rayborn filed a petition in the circuit court to amend the original decree, requesting that the court award custody of the parties’ minor child to him, and return to him the use of the parties’ home until the child reached legal age. The court held a hearing on October 30,1980 and, with the consent of Mrs. Ray-born, awarded custody of the child to Mr. Rayborn. The court additionally awarded Mr. Rayborn the use of the parties’ home until the child reached the age of majority.

Mrs. Rayborn subsequently remarried on November 22,1980. On January 7,1981 she filed a motion requesting that, pursuant to the provisions of the 1975 divorce decree, the parties’ home be sold and the proceeds divided equally. The circuit court, hearing evidence on all pending motions ore tenus, found that the best interests of the child would be better served by awarding custody to Mr. Rayborn, and that the minor child should have the shelter of the family home. The court thereupon granted Mr. Rayborn “exclusive possession of the home of the parties until such time as the child of the parties reaches the age of twenty-one (21) or be married, or be independent, whichever shall first occur.” The court further provided that upon the child’s attaining the age of majority, “the home of the parties shall be appraised and either party may purchase the other parties’ interest at the price of the appraisal, the husband having the first opportunity to purchase.”

Mrs. Rayborn appeals from the denial of her motion for sale of the property, alleging that the circuit court committed error in amending the original divorce decree of 1975 with respect to the disposition of the parties’ house. Specifically, she alleges that paragraph 5 of the 1975 decree, providing for the disposition of the jointly-owned home, is a property settlement between the parties, and cannot be modified some four to five years later.

We agree with appellant’s contention. A property settlement cannot be modified by the court, except to correct clerical errors, after a lapse of thirty days from the entry of a final judgment approving the settlement. Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980). The disposition of the parties’ jointly-owned home in the 1975 divorce decree was in the nature of a property settlement between the parties, providing for the equitable allocation of the parties’ respective interests in the property upon their divorce. The decree provides that the house is to be sold and the proceeds divided when “the [appellant] shall remarry or [when] her minor daughter shall attain her majority, whichever shall first occur.” (Emphasis added.) The wife remarried before the child reached her majority. This double contingency, the wife’s remarriage or the child’s majority, indicates that the provision was not intended merely to provide additional support for the child, but was a means by which to afford the wife her share of the parties’ marital property.

We find support for our decision in the case of Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1978). In that case a provision nearly identical to the one in the present case was labeled a property settlement, and was held nonmodifiable after the lapse of thirty days from the rendition of the final judgment. We think this case necessitates the finding that the provision in question was in fact a property settlement, and could not be modified some five years after the original decree was handed down.

For the foregoing reasons we reverse that portion of the circuit court’s judgment allowing appellee to retain possession of the house until the child reaches the age of majority and refusing to grant appellant’s motion for sale of the property. The cause is hereby remanded to the circuit court with instructions to order the sale of the parties’ home and to divide the proceeds equally between the parties.

We would note, however, that although the disposition of the parties’ home is non-modifiable, this rule does not affect the ability of the trial court to modify child custody and support provisions of a final divorce decree as the best interests of the child require. Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App.1976).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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