text:
    Harold HONEYCUTT et al. v. Fred B. SIMPSON.
    79-278.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Joe M. Berry of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellants.
    Jack Giles of Giles, Anderson & Smith, Huntsville, for appellee.
   PER CURIAM.

Plaintiffs (appellants), as residents and citizens of Madison County, sought injunc-tive and restitutionary relief against Fred Simpson, District Attorney for the Twenty-Third Judicial Circuit of Alabama. Plaintiffs’ complaint was amended some seven times to add or delete parties and to allege further acts of misconduct by defendant. The substance of the amended complaint averred that defendant (1) engaged in conduct unbecoming a public official, (2) used the status of a public official for private benefit, (3) converted public monies to personal use, and (4) engaged in criminal activity.

After trial, Judge Kenneth Ingram took the case under advisement, but before Judge Ingram rendered a decree, this Court decided the case of Jones v. Benton, 373 So.2d 307 (Ala.1979). Based on the Jones opinion and defendant’s motion, Judge Ingram dismissed the case. Plaintiffs appeal from the trial court’s grant of defendant’s motion to dismiss.

In the case of Jones v. Benton citizens brought suit against a district attorney, alleging various acts of misconduct and seeking an injunction and an accounting for public monies and other property. We affirmed the trial court’s grant of dismissal because of the quasi-judicial nature of the district attorney’s office. In denying the equitable relief sought, we recognized other possible avenues of redress. We found that criminal prosecution, impeachment, or the electoral process itself may provide the public the means to rid itself of an offending district attorney.

We do not now find the Jones case ill-considered, and we follow the law announced in Jones. The case before us, however, is one of several cases to come before this Court in which district attorney misconduct was alleged. Our review of the record in this case convinces us that, indeed, criminal prosecution, impeachment, or the electoral process will not provide the prompt and impartial investigation and inquiry needed to address charges of district attorney misconduct.

We in no way condone the type of conduct alleged against District Attorney Simpson, and we have not foreclosed application of the Code of Professional Responsibility in the case of District Attorneys. See, Simpson v. Alabama State Bar, 294 Ala. 52, 311 So.2d 307 (1975). However, this is a suit for an accounting and an injunction by citizens against a district attorney. Although a governmental authority charged with accounting for public funds might bring such a suit (and mandamus may lie to compel action by the authority), for the policy reasons set forth in the Jones opinion, we will not allow suit by private citizens.

AFFIRMED.

All the Justices concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The ARMORY COMMISSION OF ALABAMA, a corporation. v. Wanda T. STAUDT.
    79-654.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      Charles A. Graddick, Atty. Gen., and James R. Solomon, Jr., Asst. Atty. Gen., for appellant.
    Charles B. Langham, Decatur, for appel-lee.
   PER CURIAM.

This is an appeal by permission, Rule 5, ARAP, from an interlocutory order entered by the circuit court, denying the Armory Commission of Alabama its motion to dismiss. The Commission’s motion was based on its claim of governmental immunity; however, the circuit court found that the immunity afforded by Ala.Const. art. I, § 14 did not extend to the Armory Commission. We reverse.

On or about August 20, 1979, the plaintiff, Wanda T. Staudt, entered the National Guard Armory located in Morgan County. It was attested that at the time Ms. Staudt entered the building, the floor had been freshly swept and mopped and was being waxed. She allegedly entered the Armory at a fast pace, and as she attempted to turn around, her feet went out from under her, and she was thrown upon the floor, causing permanent physical injury, economic loss, and mental anguish.

She filed a tort action against the defendants-the Armory Commission of Alabama, a corporation, and Adjutant General Henry J. Cobb, Captain John Parker, and Sergeant Thomas E. McCutcheon, individuals. The action was dismissed without prejudice against Thomas E. McCutcheon, and the motion to dismiss the action against the other defendants was granted except as to the Armory Commission.

The Alabama Constitution art. I, § 14 provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” Code 1975, §§ 31-4-1 to 31 — 4-19, provides for the creation, composition, powers and duties of the Armory Commission. Section 31-4-3 specifically states that “[sjaid commission may in its corporate name sue and be sued ....” We are called upon to determine whether § 31-4-3 contravenes the constitutional provision.

Since our Constitution unquali-fiedly prohibits suits against the state, the legislature may not consent to such a suit. Dunn Contr. Co. v. Board of Adjustment, 234 Ala. 372, 175 So. 383 (1937). Necessarily our inquiry is whether a suit against the Armory Commission is a suit against the state within § 14 of the Alabama Constitution. If so, it is of no consequence that Code 1975, §§ 31-4-2, -3, allows the Commission to incorporate and to sue and be sued in its corporate name, because the plenary authority of the legislature to enact laws is limited by provisions of our Constitution.

Whether a governmental body is immune from suit cannot turn on labels placed on the body by the legislature. Were it otherwise, the legislature could circumvent the constitutional prohibition by merely delegating a state function to a separate legal entity in the interest of legislative or administrative convenience. The legislature may not deny immunity from suit when that immunity is constitutionally granted.

Here, the legislature by statute permits the Armory Commission to incorporate.

The power of the State to create a body corporate as its agent to carry on certain special kinds of work for its benefit or for the public interest can not be doubted. And where this power is exercised, the institution thus established is in every sense a State institution, and belongs to the State, although managed and its affairs administered under the supervision of trustees of the body corporate created for that purpose.... And where [the corporations] are created, who has the property interest in these institutions? Clearly the State. In the exercise of its right of sovereignty it established them for public purposes; it donates the property or the funds to purchase it upon which they are built, supplies the means by which they are maintained and operated. They have no capital stock, or shares held by individuals. Indeed, they have no membership or stockholders. They are not created for profit, but solely as public benefactors, the beneficiaries being the people who compose the State.

White v. Alabama Insane Hospital, 138 Ala. 479, 482, 35 So. 454, 454 (1903).

The fact of incorporation alone, then, in no way affects the character of a state institution, and if the Armory Commission is not immune from suit, it must be for reasons other than its status as a separate body corporate.

Appellee cites several Alabama appellate court decisions which indicate that the word “State” as used in the Constitution does not include public corporations. See, e. g, Knight v. West Alabama Environmental Improvement Auth., 287 Ala. 15, 246 So.2d 903 (1971) (construing Ala.Const. art. IV, §§ 93, 94 and Ala.Const. art. XI, § 213); Edmonson v. State Indus. Dev. Auth., 279 Ala. 206, 184 So.2d 115 (1966) (construing Ala.Const. art. IV, § 93 and Ala.Const. art. XI, § 213); Curtis v. Alabama Elk River Dev. Agency, Inc., 372 So.2d 353 (Ala.Civ.App.1979) (construing Ala.Const. art. I, § 14). We do not overrule the eases but hold that some determination, other than the fact of incorporation, is required. Whether a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body. All factors in the relationship must be examined to determine whether the suit is against an arm of the state or merely against a franchisee licensed for some beneficial purpose. State Docks Commission v. Barnes, 225 Ala. 403, 406-07, 143 So. 581, 584 (1932).

In State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932), the Court examined the function of the State Docks Commission and its relation to the state. Although concededly the operation of the state docks was a business or corporate undertaking, the Court examined other attributes of the state docks and the State Docks Commission to decide whether the Commission was an arm of the state and thus immune from suit. The Court noted that the state owned facilities in its own name and right. The Commission operated the docks as an agent for the state and not as a separate entity. State docks funds belonged to the state, and in the lawsuit, those funds would have been subjected to liability. The Court concluded that, under the circumstances, the State Docks Commission operated as a representative of the state and, consequently, was immune from suit.

After study of the case before us, we note that legislative power to organize and provide for a state militia is constitutionally provided. Ala.Const. art. XV, § 271. Substantial appropriations for the Armory Commission are made through the Military Department and are payable from funds in the state treasury to the credit of the Armory Commission. See, e. g., 1979 Ala. Acts, No. 79-124, p. 192. Additionally, the governor is authorized to use any appropriation for military purposes to pay expenses or obligations of the Commission. Code 1975, § 31-4-6.

We have said that a lawsuit directly affecting a state contract or property right is tantamount to a suit against the state. Gill v. Sewell, 356 So.2d 1196 (Ala.1978). A judgment in favor of Ms. Staudt would directly diminish amounts appropriated to the Commission, and, should the Commission appropriation become insufficient, the governor may find it necessary to supplement the Commission appropriation with funds from the general military appropriation. Without doubt, a judgment against the Armory Commission would adversely affect the state treasury.

In contrast to the Docks Commission, the Armory Commission permissibly operates in corporate form for a noncorpo-rate or nonbusiness purpose, i. e., to provide and care for military facilities. In fact, whether the Commission is incorporated at all is discretionary with the Commission. See Code 1975, § 31-4-2. Also, six of the nine Commission members are state officials or Alabama National Guard officers. See Code 1975, § 31-4-1.

The make-up, function, and relation of the Commission to the state leads to the inescapable conclusion that the Commission operates as an arm of the state. That being so, the Constitution prohibits the instant lawsuit, and the motion to dismiss was due to be granted.

REVERSED AND REMANDED.

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

FAULKNER, JONES and EMBRY, JJ., dissent.


author: SHORES, Justice. MADDOX, Justice

text:
    Robert THOMASON v. Honorable O. H. FLORENCE, etc., et al.
    79-900.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      Charles C. Pinckney, of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    Edwin A. Strickland and Gregory T. Bitt-ner, Birmingham, for appellee O. H. Florence.
    J. Clewis Trucks of Trucks, Parsons & Guyton, Fairfield, for appellee Charles H. Crim.
   SHORES, Justice.

This expedited appeal, submitted on briefs, presents the issue of whether a tax assessor appointed to an office vacated by a prior appointee (who had been appointed upon the death of the original, elected tax assessor) is required to stand for election at the first general election to be held six months or more after the first vacancy and appointment or whether the subsequent vacancy and appointment postpone the requirement of election until six months or more after that appointment.

In November, 1978, the Honorable Earl T. Rogers was elected and sworn in as tax assessor of Jefferson County. Mr. Rogers died in November of 1979, and the Governor appointed Clinton R. Milstead to fill the vacancy. Mr. Milstead took the oath of office in December, 1979, was commissioned in January, 1980, and served until he resigned in May, 1980. The Governor then appointed Charles H. Crim to fill the vacancy. Mr. Crim took the oath of office and received his commission in June, 1980.

Act No. 429, Section 1, of the Acts of Alabama and Appendix Section 1006, Volume 14, Code of Alabama 1958, provides for the filling of vacancies which occur in the office of tax assessor, among others, and states:

Whenever any vacancy occurs in any [elected] state or county office in any county having a population of 500,000 or more, according to the last or any subsequent federal decennial census, the vacancy shall be filed in the manner prescribed by law but any person appointed to fill any such vacancy shall hold office only until the next general election for any state officer held at least six months after the vacancy occurs, and until his successor is elected at such election and qualified. The successor chosen at such election shall hold office for the unexpired term, and until his successor is elected and qualified.

The next general election for any state office will be held on November 4, 1980.

On July 7, 1980, the chairman of the Jefferson County Republican Executive Committee filed with Jefferson County Probate Judge O. H. Florence, papers certifying Robert Thomason as the Republican nominee for Jefferson County Tax Assessor. On July 21, Judge Florence notified Thomason orally and in writing that he could not certify the general election ballot with Thomason on it because the office was not up for election.

Thomason petitioned the circuit court for an alternate writ of mandamus to require Judge Florence to place his name on the ballot. Charles Crim intervened, and the hearing was set for August 13 before Judge William C. Barber, who denied relief to Thomason and dismissed his petition. Thomason appealed to this Court contending that the legislative purpose and statutory language of Act No. 429, Section 1, and considerations of certainty and the avoidance of political abuse require the election of tax assessor in the November, 1980, general election.

We disagree and affirm the circuit court’s order dismissing the petition.

It is appellant’s contention that when there are successive appointed officials, the language of the Act which requires an appointed official to run for office at “the next general election ... six months after the vacancy occurs” was intended by the legislature to refer only to the initial vacancy and appointment, not to any subsequent vacancies. In other words, it is only the death, resignation or other departure of the elected official that should concern us. We disagree. The plain and unambiguous language of the Act refers to “any person appointed to fill any such vacancy” (emphasis added). The words “any vacancy” mean just that — not “an initial vacancy by an elected official,” not “any vacancy except one caused by the departure of an appointed official,” but any vacancy. The Alabama Code of 1975, § 36-9-1, in delineating how offices are generally vacated, refers to the vacating official as “the incumbent,” not the elected incumbent nor the non-appointed incumbent. In an earlier decision, McDonnell v. State, 199 Ala. 240, 74 So. 349 (1917), we construed a provision in the Alabama Constitution for the filling of vacancies in the elected judgeships which is identical in its pertinent parts. We found the provision to “deal solely and entirely with ... the method of filling” vacancies and to be “plain and unambiguous.” 199 Ala. at 241, 74 So. at 350. Under the equally unambiguous language of Act No. 429, Crim, as an appointed official, is entitled to hold his office at least six months before being required to stand for election, as would “any person appointed to fill any such vacancy.”

The legislative intent behind Act No. 429 is undoubtedly, as appellant contends, in part a concern that vacancies in elected offices be filled by the decision of the electorate. The legislature, under its prerogative, could equally have intended to give each person holding office, whether elective or appointive, a sufficient period of time in which to give to the public serious dedicated service with continuity and purpose. Every appointed official, and not merely the first appointees, should have the opportunity to share equally in this advantage and responsibility.

In Hooper v. Siegelman, 386 So.2d 207 (Ala.1980), in construing Section 6.14 of Amendment No. 328 of the Alabama Constitution, we held that no appointee to a circuit judgeship can serve beyond the term of his predecessor in office, even if his predecessor also is an appointee. However, there are significant differences between Section 6.14 and Act No. 429 which distinguish that case from this situation.

Section 6.14 says that:

A judge . . . appointed to fill a vacancy, shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next General Election held after he has completed one year in office. At such election such judicial office shall be filled for a full term of office beginning at the end of the appointed term. [Emphasis added.]

An appointee-judge under Section 6.14 must run for a full new term of office. Under Act 429, the official may run only for the unexpired term of the original, elected official.

Of course, in no event may an appointed official hold the office beyond the term of the originally elected official. Thus, if an official is appointed to fill a vacancy less than six months before the end of the full elected term, then he must stand for office at the general election which marks the end of that elective term, whether or not he has been in office six months. The term of an appointee is limited to the remaining unexpired term of the vacating official or to a period ending with the next general election held at least six months after the vacancy occurred, whichever is earlier.

Mr. Milstead’s resignation of May 31, 1980, created a vacancy which occurred five months and four days before the general election on November 4, 1980. Thus, Mr. Crim will not have held the office of tax assessor for six months as required by Act No. 429 and is not required to stand for election. We, therefore, hold that Probate Judge Florence was correct in refusing to certify the ballot with Thomason’s name on it and that Circuit Court Judge Barber was correct in dismissing the petition.

AFFIRMED.

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

MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

The office of tax assessor is an elective office. When the person elected to that office dies, resigns or is removed, the vacancy contemplated by the statute exists, and if a general election is held six months after the date of that vacancy, an election must be held to fill the vacancy for the “unexpired term” of the officeholder who died, resigned or was otherwise removed from office. The “six months” specified in the statute is for the purpose of allowing the political parties sufficient time to conduct primaries or otherwise select their nominees, and for individuals to qualify as independent candidates for the general election, and is not for the purpose, as the majority holds, “to give each person holding office, whether elective or appointed, a sufficient period of time in which to give the public serious dedicated service with continuity and purpose.”

When primaries were held in May, the “six months” approximated the time between the primaries and the general election. When the legislature changed the primary date to the “first Tuesday after the first Monday in September” [Code 1975, § 17-16-6], it did not change the “six months” provision of the statute now under review. The fact that the legislature did not change the “six months” provision in the statute under review is of no consequence, in my opinion.

Under the express terms of the statute, Milstead’s (the initial appointee’s) term obviously could not go beyond the time of the November 4, 1980, general election, or at most, until his successor was elected and qualified.

When the elected tax assessor died, the six months clock began to run. At that time, an election for the office of tax assessor for the unexpired term was statutorily mandated.

The holding today produces what could be an unconstitutional and inequitable result.

The statute specifically states that “... any person appointed to fill any such vacancy shall hold office only until the next general election for any state offices held at least six months after the vacancy occurs .... ” [Emphasis supplied.] It should be noted that this statute contemplates that there will be an election for the unexpired term. Code 1975, § 36-9-17, contemplates that any appointee will be appointed for the unexpired term. Therein lies a significant distinction.

Assume the facts are similar to those here involved. An elective officeholder dies more than six months prior to a general election for a state officer. The appointing authority fills the vacancy. Assume that one political party holds a primary election to select a nominee to run in the general election for the unexpired term of that officeholder. That primary is hotly contested and the candidates spend substantial sums of money to gain their party nomination. The incumbent appointee gets his party’s nomination by convention or caucus. The incumbent appointee, believing he may lose the general election, resigns and the appointing authority fills the vacancy. Under the holding today, there would be no election held to fill the vacancy at that general election. That result presents serious legal and constitutional questions and is also inequitable. That is why I respectfully dissent.

FAULKNER, J., concurs.


author: HOLMES, Judge.

text:
    Helen JACOBS v. Leonard JACOBS.
    Civ. 2170.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    Sydney Friedler of Sheehy & Friedler, Hempstead, N. Y., for appellant.
    James C. King of Wilson & King, Jasper, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Walker County divorced the parties, made a division of property, and awarded the wife periodic alimony. The wife appeals and we affirm.

The dispositive issue is whether the evidence supports the trial court’s action in divorcing the parties and the amount of the award of alimony. We find the evidence amply supports the trial court.

We do not deem it necessary to set out in detail the evidence as revealed by the record. Pertinently, we find the following:

The parties were married in 1951. Three children were born of the union; they are now adults. The parties separated in 1966 when the wife moved to Miami Beach, Florida. The husband continued to support the wife and children and on occasion visited with the wife and children in Florida. In 1978, the husband filed for divorce.

After an ore tenus hearing, the trial court divorced the parties on the ground of incompatibility of temperament, made a division of property and awarded the wife $550 per month periodic alimony.

As we perceive the wife’s contention, it is that there was not sufficient evidence to support the trial court’s finding of incompatibility of temperament. The evidence does not support this contention.

The husband testified that the parties had marital difficulty even prior to the 1966 separation; that they “quarreled incessantly about in-law problems.” He further testified that they had had no sexual relations since 1966. The husband specifically stated the parties could not live together.

Interestingly, the wife testified that the husband’s personal hygiene was intolerable and that she was ashamed to go places with him. Furthermore, there is evidence that it was the wife’s decision to leave their home in Jasper and move to Florida.

The court has defined incompatibility as follows:

[Ijncompatibility refers to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other.
Incompatibility of temperament necessarily involves both parties. While one spouse may have a more normal temperament than the other and the overt acts evidencing incompatibility may come largely from the other spouse, it is inconceivable that a husband’s temperament can be compatible with that of his wife if hers is incompatible with his. (Emphasis supplied.)

Phillips v. Phillips, 49 Ala.App. 514, 520, 274 So.2d 71, 77 (1973).

The above evidence and other evidence revealed by the record clearly support the trial court’s determination that the parties are incompatible. Consequently, the ore tenus rule precludes reversal on this ground. Smith v. McNaughton, Ala., 378 So.2d 703 (1979); Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965).

The wife in brief appears to argue that the husband is estopped to seek a divorce because of evidence that the parties’ lengthy separation was mutually agreed upon.

In view of the evidence as indicated above and the authorities cited above, we find no merit in the wife’s contention.

The wife contends that the award of $550 per month periodic alimony is insufficient. Put another way, the wife argues the trial court abused its discretion in the award of alimony.

The testimony reveals that the husband has in the past earned approximately $20,-000 to $25,000 a year. However, before the divorce the husband was on a retainer; at the time of the divorce he was being paid on a fee basis. The husband’s employer testified at trial that he would now make substantially less than $20,000 a year.

The general rule is that an award of alimony is within the sound discretion of the trial court. Kitchin v. Kitchin, Ala.Civ. App., 370 So.2d 1031 (1979). Furthermore, the court may consider the husband’s ability to pay as a factor in awarding alimony. Clark v. Clark, Ala.Civ.App., 356 So.2d 1208 (1978).

In view of the above, we cannot say that the trial court abused its discretion in the award of periodic alimony. Shivers, supra.

The case is due to be affirmed.

AFFIRMED.

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


text:
    METROPOLITAN LIFE INSURANCE COMPANY, a corporation v. Garnet AKINS and Mattie Lorena Etheridge Akins.
    Civ. 2274.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.

      Jim Harrison of Merrill & Harrison, Do-than, for appellant.
    Cada M. Carter of Byrd, Carter & Smith, Dothan, for appellees.
   HOLMES, Judge.

The Circuit Court of Houston County denied the insurance company’s Rule 60(b)(1), ARCP, motion. The insurance company appeals.

The dispositive issue is whether the trial court abused its discretion in denying the Rule 60(b)(1) motion. We find no such abuse of discretion requiring reversal and affirm.

The record reveals the following pertinent information:

The trial court divorced Mr. and Mrs. Akins. However, the trial court retained jurisdiction of a portion of the divorce controversy. The purpose of the trial court’s action was to determine certain aspects of two insurance policies. Pursuant thereto, the insurance company was made a third party defendant. The insurance company was properly served. The insurance company made no response to the third party action. Thereafter, the trial court entered a default judgment apparently adverse to the insurance company.

Within four months (one day prior to the expiration of four months), the insurance company filed its Rule 60(b)(1) motion. The motion requested relief from the default judgment. The petition asserted that through mistake, inadvertence, or excusable neglect, the insurance company did not appear to defend. Additionally, a meritorious defense was asserted.

Specifically, the petition and accompanying affidavits, which are all that are before this court, allege that a para — legal in the home office of the insurance company failed to properly internally handle the matter. More specifically, an attorney supervisor of the insurance company stated that the para-legal should have referred the matter to him; that if the matter had been so referred, he (the attorney) would have retained “outside” counsel to appear in court for the insurance company. The attorney further stated that they had a meritorious defense.

At the outset, we note that a denial of a motion under the rule allowing the trial court to relieve a party from a final judgment or proceeding is an appealable order. However, the only matter reviewable on appeal is the order of denial itself. A Rule 60(b)(1) motion does not serve as a substitute for appeal, and therefore does not present for review the underlying judgment as indicated. Furthermore, in considering the action of the trial court upon a Rule 60(b) motion, such as we have here, we look only to determine if there has been an abuse of discretion. See, McSween v. McSween, Ala.Civ.App., 366 So.2d 293 (1979); Gallups v. United States Steel Corp., Ala.Civ.App., 353 So.2d 1169 (1978); Marsh v. Marsh, Ala.Civ.App., 338 So.2d 422 (1976); Halstead v. Halstead, 53 Ala.App., 255, 299 So.2d 300 (1974), and cases cited therein.

The insurance company, through able counsel, devotes a good portion of its brief explaining to this court the insurance company’s meritorious defense to the trial court’s prior action. We do not deem it necessary to address ourselves to this aspect. Conceding without so deciding that the insurance company had a meritorious defense to the action, we still find no such “mistake, inadvertence, or excusable neglect” that would require the trial court to set aside its decree previously entered against the insurance company.

In Charles Townsend Ford, Inc. v. Edwards, Ala.Civ.App., 374 So.2d 900 (1979), facts analogous to the instant appeal were presented to this court. There we found in discussing a Rule 60(b)(6) motion that the trial court did not so abuse its discretion as to require reversal.

We realize that there may be some considerations present in a Rule 60(b)(6) motion that are not necessarily present in a Rule 60(b)(1) motion; however, we find no significant distinguishing considerations present in the instant appeal.

What this court stated in Townsend, supra, 374 So.2d at 902, is appropriate and dispositive of this appeal:

Under these facts, for this court to find that as a matter of law the trial court was required to set aside the judgment would be tantamount to holding that all judgments by default must be set aside when the defendant simply does not defend within the time prescribed by law. This we are not prepared to do.

Put another way, the insurance company was properly served. It had ample time to defend. However, due to an internal procedure in its own legal counsel department the appropriate documents were not relayed to the proper “in house” lawyer. Based on these facts, we cannot say the trial court so abused its discretion in failing to set aside the default judgment that we are required to reverse.

The case is due to be affirmed.

AFFIRMED.

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


text:
    ALABAMA FARM BUREAU INSURANCE COMPANY v. Joseph Homer COOK.
    Civ. 2334.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.

      Taylor D. Wilkins, Jr., of Wilkins, Bank-ester & Biles, Bay Minette, for appellant.
    E. E. Ball of Owen & Ball, Bay Minette, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

A judgment was entered against the appellant upon the uninsured motorist coverage of an automobile liability policy issued to the plaintiff by the defendant.

The policy contained the following provisions:

18. Notice of Legal Action.
If, before the Company makes payment of loss hereunder, the Insured or his legal representative shall institute any legal action for bodily injury against any person or organization legally responsible for the use of an automobile involved in the accident, a copy of the summons and complaint or other process served in connection with such legal action shall be forwarded immediately to the Company by the Insured or his legal representative.

The plaintiff was involved in an automobile accident on November 11, 1976 with an uninsured motorist, S. I. Austin, whom the plaintiff sued for damages for personal injuries. A copy of the summons and complaint against Austin was not forwarded to his insurance carrier by the plaintiff. Eventually, on July 12,1978, a judgment by default was rendered in favor of the plaintiff and against Austin in the amount of $75,000. The plaintiff did not notify his insurer as to any claim under the policy arising out of the accident or of said case or of the judgment against Austin until October 3, 1978.

In January 1979 the plaintiff sued the defendant upon the uninsured motorist provisions of the policy. The circuit court originally granted the insurance company’s motion for a summary judgment on the ground of the plaintiff’s failure to forward to them a copy of the Austin case summons and complaint, but that judgment was set aside by agreement and the court subsequently overruled such motion. The case was tried by the judge without a jury. Over the defendant’s objection, the plaintiff introduced his judgment against Austin. The uncontroverted evidence proved a lack of compliance with the foregoing quoted proviso of the policy.

A judgment was rendered against the defendant in the amount of $10,000 and the defendant insurance company appeals.

In Almeida v. State Farm Mutual Insurance Co., 53 Ala.App. 175, 298 So.2d 260 (1974), the facts were strikingly similar to the instant case in that Mr. Almeida was injured in an accident with an uninsured motorist and two and one-half years later recovered a default judgment against the uninsured. Almeida had not sent a copy of the suit against the uninsured motorist to his insurer nor did he otherwise notify his insurance carrier of said suit until after the judgment was rendered against the uninsured. Notice of such legal action was required by a paragraph in his uninsured motorist coverage which was identical in all respects to the above quoted policy proviso of this plaintiff’s policy. In the Almeida case this court held .that such policy provision was valid, that compliance with such notice requirement was essential, and that the trial court properly rendered a summary judgment in favor of State Farm because of Mr. Almeida’s non-compliance with such policy requirement.

There are no distinguishing material differences between the Almeida case and the present case. We, therefore, hold that the trial judge should have granted the defendant’s motion for a summary judgment; but, having failed to do so, he should have sustained the defendant’s objection to the introduction of the judgment against Austin. The trial judge should not have rendered judgment in favor of the plaintiff because of the plaintiff’s failure to comply with the “Notice of Legal Action” provisions of his insurance policy. We reverse and remand.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975. His opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Molly Grable WILSON v. Jackson Lamar WILSON.
    Civ. 2335.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    William T. Coplin, Demopolis, for appellant.
    W. W. Dinning of Lloyd, Dinning & Boggs, Demopolis, for appellee.
   HOLMES, Judge.

This is a child support case.

The wife sought an increase in child support and clarification of a certain portion of the divorce decree. After an ore terms hearing the trial court denied any increase in child support and attempted to clarify the prior decree of divorce. The wife appeals.

The primary issue on appeal is whether the trial court abused its discretion in failing to award any increase in child support.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following pertinent facts are revealed.

The parties were divorced in February of 1977. They had three children; twins Kathy and Jay, were nine and Michael was seven. The wife was awarded $150 per month child support.

In 1977 the husband’s salary was $15,775. When the wife brought this action in 1979, his salary was $18,339, which amounted to a 16% increase since the divorce.

The wife, through able counsel, contends that the children’s expenses have increased and further relies on inflation to show that an increase of child support is necessary. There is evidence to support her contention.

It is well-settled in Alabama that the modification of a child support decree, based upon changed circumstances of the parties, is a matter within the discretion of the trial court. Young v. Young, Ala.Civ. App., 376 So.2d 737 (1979); Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616 (1973). The trial court’s determination will not be reversed unless it is so unsupported by the evidence as to be plainly and palpably wrong. Bill v. Bill, Ala.Civ.App., 370 So.2d 1023 (1979). The burden is on the petitioner to show a material change in circumstances sufficient to warrant a modification of a child support decree. McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977).

While the trial court’s action may not have been what this court would have done in the first instance, we cannot say that the trial court so abused its discretion as to require reversal. To do so would be to substitute our judgment for that of the trial court. This Alabama law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

As indicated above, there is evidence that the financial needs of the children had increased between 1977 and 1979. There is additional evidence, however, that the husband, even though not legally required to do so, has in fact met those needs. Additionally, the husband’s salary has increased by only a small amount and there has been a relatively short period of time since the divorce decree was rendered. In light of these facts, as indicated, there has not been such an abuse of discretion by the trial court as to require reversal.

The other issue regarding the clarity of a provision in the original decree of divorce was, during oral argument before this court, waived by counsel.

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

The case is due to be affirmed.

AFFIRMED.

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


text:
    STATE of Alabama v. Samuel HALL.
    Civ. 1877.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.

      Vanzetta Penn Durant, Montgomery, for appellant.
    Marvin H. Campbell of Legal Services Corp. of Ala., Montgomery, for appellee.
   HOLMES, Judge.

This is a paternity suit.

The dispositive issue is whether the suit is barred by Code of Alabama 1975, § 26-12-7. That code section is as follows:

Proceedings under this chapter shall not be brought after the lapse of two years from the birth of the child, unless, in the meantime, the reputed father has legally acknowledged paternity or has supported said child.

The child involved in this action was born in January, 1970. The instant paternity action was filed against the purported father-appellee in September, 1978. The suit was dismissed in favor of the purported father and the State appeals.

Section 26-12-7 requires suit to be brought within the two years following the birth of the child. The record clearly indicates that this requirement was not satisfied.

The limitation period of § 26-12-7 may be tolled, however, by showing that the reputed father either legally acknowledged paternity or supported the child within the two-year period following the birth of the child. State v. Maddox, Ala. Civ.App., 358 So.2d 461 (1978). See, Hunter v. State, 293 Ala. 226, 301 So.2d 541 (1974).

There is no evidence that the purported father supported the child.

At trial the purported father did admit that he orally acknowledged paternity shortly after the birth of the child. There was other testimony asserting that he made similar statements during the two-year period following birth. These acknowledgments, if legally sufficient, would have tolled the statute.

Tolling, however, does not abrogate the limitation period of § 26-12-7. Even after the reputed father has legally acknowledged paternity, suit must be brought against him within two years of the date of the acknowledgment.

In State v. Maddox, supra, at 462, this court stated:

Evidence of supporting the child before the expiration of two years from the birth of the child and within two years before the complaint is necessary to toll the running of the statute of limitations. (Citations omitted.) (Emphasis supplied.)

See, Ward v. State, 42 Ala.App. 529, 170 So.2d 500 (1964), cert. denied, 277 Ala. 703, 170 So.2d 504 (1965). Under § 26-12-7, the effect of support and legal acknowledgment is the same. Either one will toll the statute. This court’s statement in Maddox is, therefore, applicable here.

This suit was not filed within two years of the purported father’s statements. The tolling provisions of § 26-12-7 do not prevent that section from barring this suit. Put another way, since the instant paternity action was not commenced within two years of the birth of the child nor within two years of the alleged statement of acknowledgment, it is barred by § 26-12-7. Therefore, the trial court’s dismissal of the State’s action was not error.

The above being dispositive of the issues in this ease, we do not find it necessary to consider the legal sufficiency of appellee’s acknowledgments of paternity.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J„ and BRADLEY, J„ concur.


author: WRIGHT, Presiding Judge.

text:
    DEN-TAL-EZE MANUFACTURING CO. and St. Paul Fire and Marine Insurance Co. v. Lester GOSA.
    Civ. 2187.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.

      Michael Gillion and E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellants.
    James E. Hart, Jr., Brewton, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The action arose out of an accident which occurred when a heavy box which employee and a co — worker were lifting slipped out of the co-worker’s grasp. The entire weight of the box was shifted to employee and he suffered severe injury to his lower back. Employee, Lester Gosa, brought suit against both his employer, Den-Tal — Eze, and its insurer, St. Paul Fire and Marine. St. Paul’s motion to be dismissed as a defendant was denied. The case proceeded to trial.

Judgment was entered against defendants for payment of medical expenses, temporary total and permanent total disability with a ten percent penalty. Defendants began immediate payments pursuant to the final judgment and appealed to this court. Subsequently the defendants filed a Motion to Terminate Payments alleging employee’s failure to submit to rehabilitation. The motion was denied and the Notice of Appeal was amended seeking reversal of that order.

The appellants first assign error disputing the right of an employee to sue both the employer and the insurer. There is no question that this form of action was improper. Pounds v. Travelers Insurance Co., 259 Ala. 573, 196 So. 108 (1940); Humphrey v. Poss, 245 Ala. 11, 15 So.2d 732 (1943). In the absence of some applicable statute there can be no direct action against an employer’s insurer by an injured employee. Section 25-5-8(f)(4), Code of Alabama (1975) provides the only instance where such direct suit may be maintained. That statute has no application here.

The insurer raised its immunity from suit as a defense by filing a motion styled “Motion, for Judgment on the Pleadings.” Such a motion, as styled, is a 12(c) ARCP motion and is appropriate only after the pleadings are closed. Such was not the case at the time of filing and the motion was denied. However, our courts consider motions according to their substance, not their captions. The substance of the insurer’s motion was sufficient to be considered as proper under either 12(b)(2) or 12(b)(6), ARCP. The insurer’s motion should have been granted.

The effect of the trial court’s error in allowing the suit to proceed against both parties requires only the reversal of the judgment against St. Paul and its dismissal as a defendant. The error resulted in no material prejudice to the appellant employer. Lowe’s of Dothan, Inc. v. Acme Drywall Co., 341 So.2d 166 (Ala.Civ.App.1976); 2 A Ala.Dig. Appeal & Error, Key No. 1026.

The next issue involves the appellant’s Motion for Change of Venue and the trial court’s failure to transfer the cause.

The first pleading filed was employer’s Rule 12(b)(6), ARCP, Motion to Dismiss for Failure to State a Claim for Relief of April 2, 1979. The following day the employer filed his Motion for Change of Venue under 12(b)(3). It is obvious from the sequence of filing these motions that it will not be necessary for us to determine where proper venue could be had. The employer waived his venue objections by filing the 12(b)(6) motion first. Objections to improper venue are waived if not raised in the first responsive pleading. Rules 12(g), 12(h)(1), ARCP.

Appellants contend that the court erred in awarding permanent total disability to the injured employee.

The record reveals that employee was a forty-six-year-old male who had worked substantially his entire adult life doing heavy manual labor. The evidence further shows that as a result of his accident, employee was operated on and had three discs removed from his lower back. The operating surgeon testified that employee had forty percent disability to the spine and twenty-five percent to the body as a whole. He also testified that employee should not engage in heavy activity or manual labor requiring bending, stooping, lifting, etc., and that he was totally and permanently unable to engage in heavy manual labor.

We find there is evidence to support a finding of permanent total disability. Our cases have consistently held that total disability does not mean absolute helplessness or entire physical disability, but refers instead to the injured employee’s inability to perform the work of his trade or an inability to obtain reasonable gainful employment. Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958); Carroll Construction Co. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977); Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370 (1973). We will not disturb the finding of the trial court where legal evidence exists to support its conclusion of total and permanent disability. Carroll Construction Co. v. Hutcheson, supra; Mobile Paint Mfg. Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975).

Appellants, however, argue that evidence showing the employee refused work as an insurance salesman and that he has the ability to be “cross-trained” to other employment should preclude the court’s finding of permanent total disability. Whether the employee can be rehabilitated to another vocation is a question of fact. The weight of evidence before the trial court is not before this court on appeal in a workmen’s compensation case. Horton v. DeLoach, 276 Ala. 357,162 So.2d 453 (1964). The court could properly find the evidence insufficient to support rehabilitation to another vocation, especially in view of the fact that the employee had been a manual laborer for some twenty-six years.

Appellants next contend that their Motion to Terminate Payments was improperly overruled and that the trial court erred in providing for “one more interview” to wind up rehabilitation efforts. Appellants claim employee failed to comply with § 25-5-77(c), (d), Code of Alabama (1975). Section (c) provides in applicable part that “If the employer so elects, the employee shall submit to and undergo vocational rehabilitation at the employer’s expense through a vocational rehabilitation facility or institution recommended by a vocational rehabilitation specialist ....” Section (d) provides that refusal of the employee to accept rehabilitation at employer’s request results in the loss of compensation for each week the refusal continues.

There is conflicting evidence in the record as to the extent of the employee’s cooperation with rehabilitation efforts. The appellant’s own expert testified as to the employee’s seeming eagerness to be rehabilitated. Employee’s evidence also supported a finding that he had cooperated fully with any reasonable attempts at rehabilitation. The weight given to the conflicting evidence is not before us. Horton v. DeLoach, supra. There was no error as to this finding.

Appellants next contend that the employee fraudulently concealed prior injuries to his back. This contention is not supported by the evidence. Employee freely submitted to a physical examination by the employer’s own physician. That physician stated that the conditions disclosed by his examination were consistent with the accident related to him by the employee. There is no indication that the injury for which this action was brought was related in any way to any prior injury. Section 25-5-58 provides:

If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employee shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.

Appellant contends error in refusal of admission into evidence of voluminous records of alleged prior injuries and claims filed by employee while employed on other jobs. We find no error. There appears no evidence or inference that such alleged pri- or injuries were in any way related to the degree or duration of the present injury or disability. Prior injury without connection to the injury presently complained of would appear without relevancy and would possibly be prejudicial. In any event, it has been held that under our statutory review by certiorari, rulings on admission of evidence will not be considered if it appears that the judgment is supported by legal evidence. Defense Ordinance Corporation v. England, 52 Ala.App. 565, 295 So.2d 419 (1974) (cases cited therein).

There is ample legal evidence to support the judgment. We therefore affirm the judgment against defendant Den-Tal-Eze Manufacturing Co. We reverse the judgment against St. Paul Fire and Marine Insurance Co. and direct entry of judgment dismissing St. Paul Fire and Marine Insurance Co. as a defendant.

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

BRADLEY and HOLMES, JJ., concur.


text:
    Dianne B. FILLINGIM v. Lenard B. FILLINGIM.
    Civ. 2253.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.
    James A. Ward, III, Abbeville, for appellant.
    Charles W. Woodham of Halstead, Whid-don <& Woodham, Abbeville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves modification of child visitation privileges.

On April 6, 1979, the parties were divorced and the defendant father was given certain visitation privileges with his son, Jimmy. In early July, 1979, the plaintiff and the boy moved from southeast Alabama to Bessemer. In August the defendant filed a petition for a rule nisi and for modification of his rights to have the boy visit with him.

After an ore tenus hearing, the circuit court enlarged the father’s rights of visitation with the 5V2 year old boy and required the mother to place the son on a weight reduction program and to submit to the court a monthly statement of the child’s weight. The mother was adjudged to be in contempt of court for refusing to permit the boy to visit with his father in accordance with the divorce judgment. The ex-wife appeals and contends in both of her briefs that the trial court erred in two respects: (1) the court allowed the minor child to visit liberally in the home of the defendant father without orders to protect the boy from a serious health threat and (2) the court abused its discretion, acted erroneously, or exceeded its authority when it ordered the plaintiff to place the child on a weight reduction program and to report his weight monthly to the court. No case, statute, or authority is cited by the appellant in either of her briefs as to any alleged error; however, the facts are extensively argued.

Upon this appeal, no question was raised about the contempt adjudication. This is properly so because the review of an order made in contempt of court proceedings is by way of an appropriate extraordinary writ and not by appeal. 4A Alabama Digest Contempt Key 66(1).

I

Jimmy has a medical history of suffering infrequent, but severe, motor seizures, at which time he is potentially in much physical danger. His pediatrician testified by deposition that it would depend entirely upon Jimmy’s father, whom the doctor did not know, as to whether it would be detrimental for the boy to visit him. The other specialist deposed that visitation privileges of a parent not having custody should be entirely eliminated because “the moving of children back and forth between families for visitation rights is, in general, a very detrimental psychological impact on any child ....” That physician advised the plaintiff to have access to a medical facility.

The boy has had no seizures since November 14, 1978, when he was placed upon a new medication. He daily attends kindergarten.

Admittedly, the plaintiff is very protective of her son. She objects to him leaving Bessemer for paternal visits. It is her belief that her son should be nearer to Children’s Hospital now than when he regularly suffered from seizures. She testified, without objection, that Jimmy would like to visit with his father, but that he does not desire to move back there.

The father, who has remarried, presently resides in Banks in Pike County, which is approximately twenty-five miles from Troy. He knows in detail the procedures to be followed if Jimmy suffers a seizure.

When the evidence was concluded, the judge stated that he saw nothing in the evidence to indicate that overnight visitation should not occur. He accordingly granted extensive visitation rights to the father.

We think the change in the father’s residence is a sufficient change in conditions to justify the modification of the original decree, if, of course, such change is in the best interest of the children. As to this, we note that both the original and the modification proceedings were heard by the same trial judge. In view of the favorable presumption attending his findings from the evidence taken ore tenus, we are not prepared to say that he erred to a reversal in decreeing the change in the father’s visitation rights. In other words, we cannot say that his decision is palpably wrong. ...”

Snellings v. Snellings, 272 Ala. 254, 256, 257, 130 So.2d 363, 365 (1961).

The trial court has much discretion in ascertaining visitation rights, and each case must stand upon its own peculiar facts and the personalities involved. Allen v. Allen, Ala.Civ.App., 385 So.2d 1323 (1980); Phillips v, Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974); Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753 (1970).

It is clear from reading the trial judge’s colloquy and questions directed to the mother at the conclusion of the trial that he had studiously read and considered the depositions of the two physicians. After a careful review of the entire record, we are not prepared to hold that he abused his discretion in granting more extensive visitation privileges or in not imposing restrictive protective provisions therein upon either party with regard to the seizure problem. This contention was directed to the trial court’s attention in the mother’s motion for a new trial, which was duly overruled by the circuit judge. We feel that the learned trial jurist considered that Jimmy’s welfare was of paramount consideration. Visitations cannot be denied nor restricted merely because the custodial parent deems such visits to be inadvisable.

II

When Jimmy was 5V2 years of age, he was four feet tall and in the preceeding seven months had an unusual weight gain of twenty-five pounds, from seventy-five pounds to one hundred pounds. One doctor testified that Jimmy is overweight and that he discussed that problem with the plaintiff, but he did not prescribe a formal diet. Jimmy’s pediatrician had not dealt with the obesity problem, but made a notation in his records to discuss it with the mother. The plaintiff has diminished the size of her son’s meals and has eliminated some objectionable foods therefrom, but she has not placed him on a diet. Without objection, she stated that Jimmy notices other children in kindergarten and desires to lose weight.

The same circuit judge has been saddled with hearings and decisions in this case since its inception in June, 1978. He could have ascertained from the evidence that the plaintiff was, on the whole, underconcerned about Jimmy’s weight problem. In any event, we do not fault his judgment. The judge had a discretion to exercise in Jimmy’s best interest and he did so. The judgment did not prescribe any medication, diet, exercise, or the type of weight program to be. undertaken on the boy’s behalf, such being matters within the province of his physician, but the child’s obesity was properly a concern of the court, and we find no fault in the judgment in that regard.

As to both of the issues raised on appeal, we deem Presiding Judge Wright’s decision in the Allen case, supra, to be especially applicable. There the original divorce judgment as to visitation rights prohibited the father from operating a motor vehicle while occupied by the son. Mr. Allen had a history of periodic seizures, but had controlled the condition by medication and relied upon such apparent control as the change in circumstances to remove the driving limitation. The trial judge refused to eliminate the prohibition. This court affirmed, holding that a reversal could occur only where the evidence showed the trial judge to be plainly and palpably wrong and unjust since the trial judge had a broad discretion concerning visitation rights for the noncustodial parent. In this case, we cannot say that the evidence shows the trial court’s judgment in either aspect to be plainly and palpably wrong and unjust or that it is not in the best interest of Jimmy. The judgment is affirmed.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code of Ala. 1975. His opinion is here by adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Joyce L. PROUTY v. L. E. PROUTY, Jr.
    Civ. 2346.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.

      Ronnie E. Keahey and V. Wylynn Gilmore, Grove Hill, for appellant.
    Windell C. Owens, Monroeville, for appel-lee.
   PER CURIAM.

This is an appeal from a modification of a prior judgment of divorce entered in 1971.

The petitioner (former husband and ap-pellee) brought a petition seeking elimination of the alimony provisions of the judgment of divorce. The former wife and appellant answered and cross-filed for an increase of child support. After oral hearing, the trial court reduced the required alimony payment from $500 per month to $200 per month and increased the required payment for child support from $166 per month to $466 per month. The former wife appeals from the reduction of alimony. We affirm.

The evidence, stated succinctly, tends to show that the parties entered into an agreement as to division of property, and amount of alimony and child support at the time of their divorce. That agreement was incorporated by the court into the judgment of divorce. The petitioner had fully performed as agreed for some eight years until filing this petition for modification.

The former wife sold the home she received title to in the property settlement, and purchased a home in Mobile. She obtained permanent employment there in 1972 and now earns between $758 and $1,000 monthly.

Petitioner remarried and adopted the child of his new wife. His present income approximates $40,000 to $50,000 per year as compared to $25,000 per year in 1971.

The minor child of the marriage is now twelve years of age and in need of costly orthodontic treatment and appliances.

The trial court found that the present employment and income therefrom of the wife constituted a material change of circumstances from that existing at the time of the divorce. It therefore found the alimony should be substantially reduced. It also found the needs of the child to have substantially increased, warranting a substantial increase in child support.

It is to be noted that the modification entered does not diminish the monthly payment obligation for alimony and child support. It merely reallocates the total previously in force. In addition the petitioner was ordered to pay for the orthodontic work for the child.

We have carefully considered the evidence heard by the trial court in light of the legal presumption of its correctness. Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317 (1963); Fuller v. Fuller, 368 So.2d 30 (Ala.Civ.App.1979). We are cognizant of the discretionary authority of the trial court to modify its prior judgment when there appears a material change in circumstances. Morrow v. Morrow, 351 So.2d 923 (Ala.Civ.App.1977). We are further cognizant that our review is bounded, not by what we might have done if sitting as the nisi prius court, but by whether the judgment of the trial court is so without support in the evidence as to constitute a clear abuse of its judicial discretion. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967); Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979).

It is sufficient to say that we find no such abuse. We therefore affirm the judgment below.

AFFIRMED.

All the Judges concur.


text:
    In the Matter of Infant male MORRISON (Thomas Duane Olson and Joy Diane (Aune) Olson).
    Civ. 2329.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.
    Irvin Grodsky of Grodsky & Wilson, Mobile, for appellant.

      J. U. Blacksher of Blacksher, Menefee & Stein, Mobile, for guardian, Catholic Social Services of Mobile.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an adoption case.

Only facts essential to this decision are herein summarized.

The appellants, a husband and wife, petitioned the probate court for the adoption of a six month old infant. Catholic Social Services, who had been granted custody of the child by the juvenile court and who had further been designated to investigate the adoption petition, consented to the adoption. At no time was any testimony heard by the court, the only evidence ever before the court being a report, as supplemented, of Catholic Social Services which not only passively approved the adoption, but also affirmatively supported it. There were no negative facts in the report contra to approving the adoption.

On November 28, 1979, the learned probate judge rendered a judgment denying the petition for adoption as not being in the minor’s best interest and further finding that petitioners were not the proper persons to adopt this particular child. Within thirty days thereafter, the appellants filed a motion for a new trial. The probate judge did not rule upon such motion, and the appellants filed their notice of appeal within forty-two days of the ninetieth day after the filing of the motion for a new trial.

JURISDICTION

This court ex mero motu raised the issue of whether Rules 59 and 59.1, ARCP, applied to the Olsons’ motion for a new trial. If those rules do not apply, the appeal is tardy and this court is without jurisdiction.

Section 12-13-12, Code of Ala.1975, provides as follows:

The provisions of this Code in reference to evidence, pleading and practice, judgments and orders in the circuit court, so far as the same are appropriate, ... in the absence of express provision to the contrary, are applicable to the proceedings in the probate court.

With regard to the practice in the probate courts, the appellants’ timely filed motion for a new trial was in strict accordance with Code § 12-13-11, which specifically authorizes the filing of a motion for a new trial in probate courts on enumerated grounds within thirty days from the entry of judgment. That Code section further permits the probate court to grant such motion and to tax costs. No further guidance whatsoever is prescribed for the handling and disposition of motions for new trials in the probate court. There are no specific provisions governing the handling of motions for new trials in the adoption statutes. Thus, under § 12-13-12, the probate court must look to the provisions of the Code in reference to pleading and practice in the circuit court.

The sole language governing the practice and procedure for the disposition of a motion for a new trial in the circuit courts is found in ARCP Rules 59 and 59.1, which were enacted pursuant to the authority granted to the Supreme Court of Alabama by § 12-2-7(4), Code of Ala.1975. Thus, under § 12-13-12, the practice in the probate courts with regard to the necessity of presentation of motions for a new trial is governed by ARCP Rule 59(g) and by ARCP Rule 59.1 as to the disposition of motions for new trials.

To read Rule 1(a), ARCP, in harmony with other applicable statutes and rules, a party appealing an order of a probate court in an adoption proceeding must first strictly proceed in compliance with procedures prescribed by the codified adoption statutes. If those statutes do not make reference to particular procedures applying to new trial motions, then the litigant must look to the statutory procedures governing probate courts. If neither the probate court Code sections nor the adoption statutes make reference to the particular motion for a new trial practice, then the litigant must abide by procedures applicable to the circuit courts. This is the only construction of the various statutes and rules governing procedure to apply to motions for new trials in the probate courts which effects an integrated .procedural system. Rule 1(b), ARCP.

We, therefore, find that the notice of appeal was timely filed in this case since Rules 59 and 59.1, ARCP, apply to motions for new trials filed in the probate court.

MERITS

The report of Catholic Social Services, which highly recommended the adoption, is analogous to a report of a master and is due to be accorded the weight of a jury verdict. Williams v. Pope, 281 Ala. 416, 203 So.2d 271 (1967), appeal after remand, 284 Ala. 456, 225 So.2d 861 (1969); Claunch v. Entrekin, 272 Ala. 35, 128 So.2d 100 (1961). As such, the report of Catholic Social Services should not have been disturbed unless the probate court, on a review of the evidence, was convinced that such report was palpably and plainly wrong. Patterson v. Lovelady, 233 Ala. 554, 172 So. 646 (1937). No evidence in addition to the report, as supplemented, was ever presented to nor allowed by the probate court.

Therefore, the report of Catholic Social Services stands as the sole evidence before the court and is equivalent to á jury verdict in favor of granting the adoption. The probate court was not justified in denying the adoption under any part of the only evidence which the court had before it, the report. The trial court should have granted the Olsons’ motion for a new trial. We reverse and remand.

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

REVERSED AND REMANDED.

All the Judges concur.


author: ADKINS, Justice. ENGLAND, Justice,

text:
    STATE of Florida, Petitioner, v. Miguel SEGARRA, Respondent.
    No. 54928.
    Supreme Court of Florida.
    Sept. 4, 1980.
    Rehearing Denied Oct. 30, 1980.
    Jim Smith, Atty. Gen. and Margarita Es-quiroz and Steven L. Bolotin, Asst. Attys. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Miami, for respondent.
   ADKINS, Justice.

By petition for certiorari we have for review a decision of the Third District Court of Appeal Segarra v. State, 360 So.2d 79 (Fla.3d DCA 1978), which allegedly conflicts with a prior decision of another district court of appeal Mulder v. State, 356 So.2d 870 (Fla.4th DCA 1978), on the same point of law. Art. V, section 3(b)(3), Fla. Const.

The defendant, Segarra, was charged with burglary, a second degree felony carrying a maximum sentence of fifteen years. Plea negotiation resulted in a plea of guilty with a five-year cap in possible sentence. After a presentence investigation the trial court sentenced defendant to five years probation with two conditions, one of which defendant violated. The trial court revoked defendant’s probation and sentenced defendant to fifteen years. The district court of appeal reversed this decision and held that the maximum sentence which the court could impose upon violation of the probation was five years. The court pointed out that there had been an agreed maximum sentence of five years as part of plea negotiations which was accepted and approved by the defendant, the prosecutor and the judge.

In Mulder v. State, supra, the defendant, after plea negotiations, entered a plea of guilty with an agreement that the maximum sentence to be imposed would be for a two-year term. The trial judge placed defendant on probation. Defendant violated the conditions and, upon revocation of probation, was sentenced to three years incarceration. The district court of appeal affirmed and referred to section 948.06(1), Florida Statutes (1975), which provides that after probation has been revoked the trial judge can “impose any sentence which it might have originally imposed before placing the probationer on probation.” In its opinion the Court said:

Accepting appellant’s contentions would lead to absurd results. If the original plea negotiations including [sic] an understanding that a defendant would be placed on probation, and the court agreed, the court would then be unable to impose any prison sentence in the event probation was subsequently revoked. It cannot be said that the legislature intended to leave society without any recourse against those defendants who receive the benefit of the court’s mercy by being placed on probation and, subsequently, violate the terms thereof.
Appellant, having violated the terms of his probation, cannot now be heard to argue that the State is bound by the terms of an agreement which resulted in the initial imposition of probation.

356 So.2d at 871.

In Johnson v. State, 378 So.2d 335 (Fla.2d DCA 1980), defendant pled guilty pursuant to a plea bargain under which he was to receive no more than concurrent sentences of five years on both charges. At the sentencing hearing defendant’s attorney requested that he receive another chance. The court placed defendant on probation but admonished him that if revocation became necessary it might imprison him for a period of up to twenty years. A year and a half later the defendant violated his probation. The court revoked probation and sentenced him to concurrent five and ten-year terms. Upon appeal, this judgment and sentence was affirmed, the court saying:

The third district court of appeal has held that since the punishment received by a probation violator is imposed under the original charge, this punishment cannot be in excess of the terms of the bargain upon which the defendant first entered a plea. Payne v. State, 372 So.2d 152 (Fla.3d DCA 1979); Overman v. State, 368 So.2d 434 (Fla.3d DCA 1979); Kord v. State, 361 So.2d 800 (Fla.3d DCA 1978); Segarra v. State, 360 So.2d 79 (Fla.3d DCA 1978). The fourth district court of appeal held to the contrary in Mulder v. State, 356 So.2d 870 (Fla.4th DCA 1978).
As between the two views, we opt for the position taken by the fourth district court of appeal. So long as the order of probation was within the terms of the agreement, the court has fulfilled the plea bargain. The events which bring about a revocation open a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime.
In a different context the supreme court has held that the conduct of a defendant which leads to a probation revocation may be such as to allow the imposition of a greater punishment than would have been permitted at the time of the entry of the order of probation. In Scott v. State, 326 So.2d 165 (Fla.1976), the court held that a trial judge who previously sentenced a defendant to a term of years less than the maximum allowed by law could, after a new trial in which the defendant is placed on probation, impose for violation of the terms of probation any sentence up to the maximum which could have been originally imposed. 378 So.2d 335-36.

We follow the reasoning of the Second District Court of Appeal and the Fourth District Court of Appeal. We therefore hold that when a defendant pleads guilty pursuant to a plea bargain and the court places him on probation, if he violates his probation the court can sentence him to a term in excess of the provisions of the original bargain.

The decision of the district court of appeal is quashed and the cause is remanded with instructions to affirm the sentence imposed by the trial court.

It is so ordered.

SUNDBERG, C. J., and OVERTON and ALDERMAN, JJ., concur.

ENGLAND, J., dissents with an opinion, with which BOYD, J., concurs.

ENGLAND, Justice,

dissenting.

I respectfully dissent. The result which the majority has adopted does not comport with fundamental fairness or evenhanded treatment between the state and criminal defendants. The Court’s error, I believe, is based on an implicit misconception as to the role of resentencing in a probation revocation proceeding. The correct role, when analyzed against the three events which in fact occurred in this case, leads me to conclude that the Third District Court of Appeal was correct in limiting the maximum sentence following probation revocation to the five-year term stipulated in the plea agreement.

The first step in this proceeding was preliminary to sentencing. The prosecuting attorney struck an agreement to obtain Se-garra’s guilty plea in exchange for a maximum possible sentence (i.ea sentencing “cap”) of five years imprisonment. The agreement was taken to the trial judge and approved. At that point, it became, for all intents and purposes, a binding executory contract.

The second step in the sequence was sentencing. At the sentencing proceeding, the judge elected to provide more leniency than the agreement had afforded, and he sentenced Segarra to probation. The contract thus became executed, or fulfilled. The court acted within the bounds of the agreement it had approved. Segarra received the benefit of the state’s concession that he not be sentenced for more than five years. The state received the benefit of its bargain by being relieved of the necessity of proving at a trial that Segarra was guilty of the crime with which he was charged. Neither party could complain at that point, for both had received precisely what they had bargained for, and all terms of the agreement were satisfied.

The third step in this proceeding occurred when Segarra violated the terms of his probation, which precipitated his resentenc-ing at a revocation proceeding. As will be explained, my disagreement with the majority stems from its characterization of that event.

The majority correctly notes that section 948.06(1), Florida Statutes (1977), enables the trial court, upon revocation of probation, to “impose any sentence which it might have originally imposed before placing the probationer on probation.” Although this provision generally has been interpreted to mean that the court can impose any penalty within the maximum prescribed by statute, the presence of a completed plea agreement compels an exception to this interpretation, at least in cases such as this one. The distinctive feature here was that the trial court accepted Segarra’s guilty plea, in exchange for which the state relinquished the opportunity for incarceration beyond a five-year term. Once the plea agreement was approved, I would argue that five years became the maximum sentence which the court could “originally impose” under the statute.

As a consequence of his failure to abide by the terms of probation in the third phase of these events, Segarra should be placed in the same position he occupied prior to the end of the second phase, or sentencing-namely, at risk of being imprisoned for up to five years without the state having to prove his guilt. I cannot understand why the state should be relieved from proving Segarra’s guilt without Segarra receiving the benefit of the five-year cap. The majority is, in effect, allowing the state, but not Segarra, to benefit from the agreement.

The majority’s view, I believe, is predicated on an erroneous assumption that the imposition of a sentence upon revocation of probation — generally termed “resentenc-ing” — is to be determined on the basis of the defendant’s subsequent conduct which led to revocation. On the contrary, resen-tencing is exactly what the word connotes — a new sentence on the original offense rather than a new sentence for subsequent conduct. The majority is led astray in all probability because the trial court, after reviewing the presentence investigation in phase two, gave Segarra a more lenient sentence than that for which the state had bargained. But the trial court necessarily placed Segarra on probation because it believed he could live at liberty without being a risk to society. While that prognostication did not come true, the assignment of probation, in all meaningful senses, fulfilled the terms of the plea agreement.

It follows that revocation of probation, and the substitute of jail time for what was originally leniency, simply puts the court and the parties back in the position they were in at the time of the original sentencing. The court, of course, has added knowledge regarding the defendant’s rehabilitative potential, and it can utilize that knowledge in resentencing the defendant on the original offense. The original maximum sentence, however, whether set by statute or by an approved plea agreement, still limits the court’s sentencing discretion.

The majority is apparently troubled by the possibility that, if a plea bargain were made for probation, a court would be unable to impose any prison sentence on revocation and there would be no incentive for the defendant to keep the terms of probation. The easy answer to that concern is that this problem can never arise in cases like this one, where the plea bargain entails a maximum sentence other than probation. In cases such as this one, moreover, any risk of under-sentencing at the second step is wholly within the* control of the state, where the responsibility should and does, in fact, lie.

Prosecutors may adjust the terms of plea agreements to take probation into account as a sentencing alternative by including in their agreements an express understanding that a revocation of probation will enable the court to impose any sentence up to the statutory maximum. Alternatively, prosecutors can simply acknowledge in the bargain that probation is up to the court, placing on the trial judge the burden of warning the defendant (when the plea is accepted) that if probation is ordered, its subsequent revocation may result in the imposition of the maximum statutory sentence. Following either of these alternatives will provide a fringe benefit to society, since the defendant will have more incentive to abide by the agreement’s terms if he is aware of the more severe possible consequences on revocation of probation. Under either alternative, the trial judge could fairly sentence a defendant to the maximum statutory penalty upon revocation since, in truth, the defendant would be receiving what he had “bargained for.” The problems envisioned by the majority thus would be avoided with very little effort.

In this case, the state by contract has relieved itself of the risk of failing to prove Segarra’s guilt at trial. Basic notions of due process now require that the same contract be enforced on Segarra’s behalf. I would affirm the decision of the Third District Court of Appeal and limit the trial judge on resentencing to the five-year maximum period (with credit for time served) to which the state and Segarra had agreed.

BOYD, J., concurs.

      . Segarra v. State, 360 So.2d 79, 80 (Fla.3d DCA 1978).

      . See State v. Jones, 327 So.2d 18 (Fla.1976); Scott v. State, 326 So.2d 165 (Fla.), cert. denied, 429 U.S. 836, 97 S.Ct. 104, 50 L.Ed.2d 103 (1976); Hutchinson v. State, 360 So.2d 1160 (Fla. 1st DCA 1978).

      .This principle is implicit within section 948.-06(1), Florida Statutes (1977), which limits re-sentencing upon revocation of probation to any sentence which the trial court could originally impose. Accord, People v. Johnson, 40 Ill. App.3d 388, 391, 352 N.E.2d 462, 464 (1976) (“The sentence imposed when probation is revoked must be one which is appropriate for the offense for which the defendant was placed on probation, not one designed to punish for the subsequent criminal conduct which led to the revocation.”).

      . This alternative approach was upheld by the Fourth District Court of Appeal in Pugh v. State, 379 So.2d 398 (Fla.4th DCA 1980), wherein the court concluded that:
      the trial court acted well within its authority under the circumstances presented here. [Defendant’s] agreement specifically contemplated a term of probation. When probation is imposed, the potential consequences of a violation of probation are an implicit part of the arrangement. Here the [defendant] was specifically advised that the trial court had authority to sentence him to a total of five years imprisonment possibly in the form of a one year - sentence forthwith, and another four years should he violate his probation. Hence, his later sentence of five years with credit for time served was not in violation of the agreement approved by the court.

        Id. at 400 (emphasis added).
      The court in Pugh correctly distinguished the instant case, noting that “probation was not contemplated by [Segarra’s] plea negotiations and it does not appear that the defendant was specifically advised that upon revocation of his probation he could be sentenced to more than five years.” Id. at 399. While Segarra was warned at the sentencing proceeding that his violation of the terms of probation would result in a “very stiff jail sentence,” this warning was, at best, ambiguous. Nothing in the warning suggests that Segarra understood that revocation of probation would result in a sentence in excess of the agreed five-year cap.

      . Art. I, § 9, Fla.Const.

      . It would not be appropriate to allow Segarra to withdraw his plea and put the state to its proof, since Segarra already has served over three years of imprisonment.


text:
    Lenson A. HARGRAVE, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 59720.
    Supreme Court of Florida.
    Sept. 24, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker and Karen M. Gott-lieb, Asst. Public Defenders, Miami, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petitioner, Lenson A. Har-grave, has presented by petition for writ of habeas corpus two issues which could have been raised, but were not raised, on his direct appeal. It is well settled that habeas corpus may not be used as a vehicle to raise for the first time issues that the petitioner could have raised during the formal trial and on appeal. State v. Mayo, 87 So.2d 501 (Fla.1956); Irvin v. Chapman, 75 So.2d 591 (Fla.1954), cert. denied, 348 U.S. 915, 75 S.Ct. 297, 99 L.Ed. 718 (1955). Cf. Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977) (issue first raised on review under Florida Rule of Criminal Procedure 3.850). Accordingly, the petition for writ of habeas corpus and the application for a stay of execution pending our disposition of this matter are hereby denied.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.