text:
    Billy J. WALKER v. HUMANA MEDICAL CORPORATION.
    Civ. 3188.
    Court of Civil Appeals of Alabama.
    May 12, 1982.
    Rehearing Denied June 9, 1982.

      M. U. Griffin, II of Griffin & Griffin, Huntsville, for appellant.
    James E. Davis, Jr. and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
   HOLMES, Judge.

This is an appeal from an order of the Madison County Circuit Court granting the defendant’s motion for a j. n. o. v.

Mr. Billy J. Walker, appellant herein and plaintiff below, brought action against Hu-mana Medical Corporation alleging that the defendant negligently or wantonly permitted the transfusion of incompatible blood to the plaintiff. The defendant answered with a general denial.

A jury trial of this action was commenced on September 15, 1981. At the conclusion of the plaintiff’s case in chief the defendant moved for a directed verdict on the ground that the plaintiff had failed to produce a scintilla of evidence in support of his wantonness claim. The trial court denied this motion.

At the close of the evidence the defendant renewed its motion for a directed verdict on the wantonness claim again contending that the plaintiff had failed to produce a scintilla of evidence in support of the claim. The trial court, though expressing doubt as to whether there was a scintilla of evidence supporting the wantonness claim, denied the motion and instructed the jury on both negligence and wantonness. On September 17, 1981, the jury returned a verdict in favor of the plaintiff awarding him $5,000 on his negligence claim and $7,000 on his wantonness claim.

On October 16, 1981, the defendant moved for a j. n. o. v. or, alternatively, for a new trial. As grounds for such motion the defendant alleged generally that the trial court erred in submitting the wantonness claim to the jury in that there was a complete lack of evidence in support of such claim.

After considering briefs and arguments in support of and in opposition to the motion, the trial court apparently determined that the wantonness count should not have gone to the jury because it entered an order setting aside the September 17 jury verdict to the extent of $7,000. The trial court made no ruling on the alternative motion for a new trial.

This appeal followed the trial court’s granting of the j. n. o. v. motion.

The pertinent facts giving rise to this action are largely undisputed. The plaintiff was admitted to Medical Center Hospital in Huntsville on May 28,1979. While in the hospital aortofemoral bypass surgery was performed. During the recovery process it was determined that the plaintiff should be given a blood transfusion.

A phlebotomist, a hospital employee responsible for taking blood samples, was sent to take blood from the plaintiff for the purpose of typing and cross-matching. When the phlebotomist arrived at the plaintiff’s room she mistakenly took a blood sample from a Mr. Ricketts, a patient in the room with the plaintiff. Mr. Ricketts’s blood was typed and cross-matched but was labeled as the blood of Billy J. Walker, the plaintiff.

Based upon the above, sample blood was ordered and the transfusion was started. A few minutes after the transfusion began the plaintiff’s wife observed that the plaintiff’s jaw was twisting and jerking. Shortly thereafter plaintiff’s entire body began jerking. While restraining the plaintiff, the wife called for help. A nurse soon appeared and discontinued the transfusion.

The plaintiff’s wife was informed that the plaintiff had experienced a reaction to the blood being given him. A hospital investigation subsequently revealed that the plaintiff had been given type A negative blood when he should have been given type O positive and that this mismatched blood caused the plaintiff’s reaction.

There is some conflict in the evidence as to the procedure followed by the phlebo-tomist in identifying the patient from whom she was to obtain a blood sample. The hospital investigator reported that the phlebotomist called the name of Mr. Walker but did not check the patient’s armband prior to obtaining the blood sample. The plaintiff’s wife testified, however, that the phlebotomist said nothing to either her or the plaintiff and, furthermore, that she did not call the patient from whom she drew the blood sample by any name nor did she ask the patient what his name was.

Through able counsel both the plaintiff and the defendant assert that the primary issue before this court is whether the trial court properly granted the defendant’s j. n. o. v. motion. Simply stated, the plaintiff contends that the facts as summarized above sufficiently support the jury award based upon wantonness. The defendant contends simply that there is no evidence to support a finding that the defendant’s agent in any way acted wantonly. For the reasons stated below, this court holds that the trial court improperly granted the j. n. o. v. motion.

Preliminarily, this court is of the opinion that the form of the jury verdict itself requires some comment. The learned and distinguished trial judge, on his own initiative, submitted separate forms to the jury on the plaintiff’s claims of negligence and wantonness. The forms were worded in such a way as to allow the jury to award damages for both negligence and wantonness. The jury returned the forms as follows:

We, the jury, find the issues in favor of the Plaintiff, Billy J. Walker, based on wantonness, and assess his damages at $7000.00.
We, the jury, find the issues in favor of the Plaintiff, Billy J. Walker, based on negligence and assess his damages at $5000.00.

Thereafter, as indicated above, the trial judge set aside the jury verdict to the extent of $7,000 apparently upon the basis of a lack of evidence to support the wantonness claim. As stated above, the primary issue urged upon this court by counsel for both plaintiff and defendant is whether the trial court erred in granting the j. n. o. v. motion. No issue is made regarding the apparent inconsistency of the verdicts. This court, however, would be remiss in not commenting, for the benefit of all interested parties, that negligence and wantonness cannot exist in the same action. Thompson v. White, 274 Ala. 413,149 So.2d 797 (1963), and cases cited therein.

We now address ourselves to the primary issue presented by the parties to this court.

Both a motion for a directed verdict and a motion for j. n. o. v. are to be judged by the scintilla of evidence standard. Casey v. Jones, 410 So.2d 5 (Ala.1981); Hanson v. Couch, 360 So.2d 942 (Ala.1978). That standard requires that the motion be denied if there is a “gleam, glimmer, or spark” of conflict in the evidence. Hanson, supra; Chesser v. Williams, 268 Ala. 57, 104 So.2d 918 (1958). After reviewing the record, this court is of the opinion that there is a “gleam, glimmer, or spark” of conflict in the evidence regarding the plaintiff’s wantonness claim. Therefore, the trial court erred in granting the j. n. o. v. motion.

The applicable legal principles are well settled. Wantonness has been most often defined by the Alabama courts as:

[T]he conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.

Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101, 104 (1965). The most crucial element of wantonness is knowledge which may be proven by circumstantial evidence. Roberts v. Brown, 384 So.2d 1047 (Ala.1980); Whaley v. Lawing, 352 So.2d 1090 (Ala.1977).

In this case there is no dispute that the phlebotomist had a duty to draw blood from the proper patient and that she breached that duty by drawing blood from the wrong person. In light of the above legal principles this court must determine the knowledge possessed by the phlebotomist when she breached the duty.

The record reveals that, at the time of this incident, the phlebotomist was twenty-two years old. She had obtained a B. S. degree in biology and had had one year of graduate study in the field of biology. Additionally, she had in excess of eighty hours of in-service training in the field of phlebotomy, two hours of which was devoted to positive patient identification. From the foregoing it is a reasonable inference that the phlebotomist was aware of the complications inherent in transfusing incompatible blood into a patient and that she was aware of the crucial role that correct patient identification serves in preventing the occurrence of such complications.

In the opinion of this court, the foregoing evidence and logical inferences therefrom sufficiently meet the scintilla standard. Stated differently, from the foregoing evidence the jury could have found that the phlebotomist failed to do her duty to draw blood from the proper person and that she failed to do this duty with the knowledge that such failure could lead to a reaction due to being transfused with incompatible blood and that such failure produced such a reaction.

The defendant contends that the knowledge necessary to impose liability for wantonness is not present in this case. In support of this contention the defendant cites, among others, Southern Bell Telephone & Telegraph Co. v. Miller, 192 Ala. 346, 68 So. 184 (1915). In that case the Alabama Supreme Court held that, even though Southern Bell had a duty to inspect its poles, because it had no knowledge that a pole which fell and caused injury was rotten, it was not liable for wanton conduct. Consequently, the wantonness count should not have been submitted to the jury. See also Whaley v. Lawing, supra. Based upon the foregoing authority the defendant contends that since there was no evidence that the defendant had any knowledge that the plaintiff was being given mismatched blood, the defendant cannot be liable for wantonness under the accepted definition of wantonness as set out above. Suffice it to say that we do not find such reasoning nor the authority supporting it persuasive in this case.

We do find persuasive, however, the opinion of our supreme court in Lewis v. Zell, supra. That case arose from an automobile collision. The evidence revealed that, at the scene of the accident, the defendant told the investigating officer that she “ran the red light.” The evidence further revealed that the intersection where the accident occurred was heavily traveled. The supreme court held that the foregoing evidence was sufficient to justify submitting the issue of wantonness to the jury. Summarizing its reasoning, the court stated that:

Under these circumstances, we think it is legitimate to infer that the defendant had knowledge of conditions which would make her conscious act of proceeding into the intersection against the red light likely to cause injury.

279 Ala. at 37, 181 So.2d at 105.

With some adaptation the foregoing language is applicable to this case. Specifically, we think that it is legitimate to infer from these circumstances that the phlebo-tomist had knowledge of conditions which would make her conscious act of drawing blood from a patient whom she had not identified likely to cause injury. Thus, the trial court erred in granting the j. n. o. v. motion.

The holding in this case and the holding in Lewis are not inconsistent with the holding in Southern Bell, which the defendant relies upon. The distinction between these two positions can be found in the knowledge of existing conditions possessed by the various defendants. In the Lewis case the condition that the defendant had knowledge of was that if she ran a red light at a busy intersection she would likely have a collision. In the instant case the condition that the phlebotomist had knowledge of was that if she failed to get a blood sample from the right person there would likely be injury due to being transfused with mismatched blood. Thus, because of the knowledge possessed by the defendant in Lewis and the defendant in the instant case, each of the foregoing defendants was aware that if they breached their duty injury would likely follow. On the other hand, the defendant in Southern Beil had no knowledge that if it failed to inspect the pole that injury would likely follow. Therefore, the defendant had no knowledge that would make it aware that if it breached its duty, injury would be the likely result.

This case is due to be reversed and remanded for disposition not inconsistent with the foregoing opinion.

REVERSED AND REMANDED.

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

ON REHEARING

The plaintiff who prevailed on appeal has filed with this court an application for rehearing. This court has carefully considered this application.

One of the “requests” of plaintiff is that this court specifically recognize that the jury verdict or verdicts fall within the “law of the case” rule as stated in Ross-Clayton Funeral Home, Inc. v. Turner, 358 So.2d 754 (Ala.Civ.App.1978). This court would only comment that we specifically noted in our original opinion that “[n]o issue is made regarding the apparent inconsistency of the verdicts.”

Other matters raised in plaintiff’s application for rehearing require no comment or it would be inappropriate for this court to comment.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J. Albert WINFIELD v. Bessie Bartlett WINFIELD.
    Civ. 3106.
    Court of Civil Appeals of Alabama.
    May 26, 1982.
    Rehearing Denied June 23, 1982.

      Calvin M. Whitesell and Roger S. Morrow, Montgomery, for appellant.
    John T. Kirk of Kirk & Manasco, Montgomery, for appellee.
   PER CURIAM.

This is a divorce case.

After an ore tenus hearing, the trial court divorced the parties, made a property division, awarded custody of the parties’ minor child to the wife and awarded alimony in gross to the wife and required the husband to pay child support.

The husband appeals, contending through able counsel that the trial court abused its discretion in ordering him to make payments totaling $750 per month for the support of his wife and child. The husband also contends that the trial court abused its discretion in the distribution of real and personal property. Finding no merit in either of these contentions, this court affirms.

The record reveals the following: The parties’ divorce of November 30,1981 ended a marriage of seventeen years duration. One child was bom of this union. At the time of trial he was sixteen years old.

The November 30 divorce decree awarded custody of the child to the wife and required the husband to pay $1,000 per month for the support and maintenance of his wife and child. Additionally, the husband was to maintain, with the son as beneficiary, all existing life and hospitalization insurance. The parties’ home and most of the personalty and utensils therein were awarded to the wife. Each party was allowed to retain the automobile customarily driven by them. Finally, the parties were allowed to retain the savings accounts in the names of the respective parties and any joint account was to be equally divided.

On December 2, 1981, the husband filed a motion to alter, amend or vacate the November 30 judgment. On December 16, 1981, the trial court entered an order partially amending the November 30 decree. As amended the decree required the husband to pay $500 per month as child support until the minor child became emancipated. Furthermore, the husband was to pay the wife the sum of $8,500 as alimony in gross. This sum was to be paid in thirty-four monthly installments of $250 each. The amended decree also made the wife liable for the home mortgage. Finally, the original decree was amended to give the husband sole and exclusive interest in a business known as A & B Auto Parts. Along with the business, the husband was awarded a certificate of deposit in the approximate amount of $32,000 which was pledged against loans to the business. All provisions of the November 30 decree that were not altered as above remained in full effect.

At the outset we note that the award and amount of alimony and child support and the division of property are matters within the sound discretion of the trial court. Makar v. Makar, 398 So.2d 717 (Ala.Civ.App.1981); Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980); Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). The trial court’s judgment will not be reversed absent plain and palpable abuse of discretion. Makar v. Makar, supra. In awarding alimony in gross or making a division of property the trial court’s discretion is to be guided by the length of the marriage; the source of their common property; the parties’ ages, sex and health; the parties’ future prospects; the parties’ standard of living during the marriage and their potential for maintaining or exceeding that standard after the divorce; and, in appropriate cases, the conduct of the parties. Makar v. Makar, supra. In awarding child support the trial court is to be guided by the needs of the child and the parent’s financial ability to satisfy those needs. Tubb v. Middlebrooks, 379 So.2d 1272 (Ala.Civ.App.1979), cert. denied, 379 So.2d 1274 (Ala.1980).

Applying the foregoing standards to the facts of this case, we can find no abuse of discretion in the trial court’s award of child support and alimony in gross or the trial court’s division of property.

We will first consider the award of alimony in gross and the division of property.

As stated above, the parties had been married seventeen years. Though the wife brought very few assets into the marriage, because the husband’s former job required him to travel, she had maintained the home for the majority of the marriage. The parties involved in this action are apparently middle aged with no major health problems. The wife has been trained as a hair stylist but has not been employed in that field for the last eighteen years. At the time of the trial the wife was employed by her brother and was grossing $91 a week. On the other hand, the husband, for a majority of the marriage, was a very successful salesman for an automotive company and was well able to provide his family with a comfortable living. Since 1980 the husband has had his own auto parts business. Though the business lost money its first year of operation, by the second year it had begun to make a profit.

The wife, as indicated, was awarded the following: $8,500 as alimony in gross; the home and surrounding property worth approximately $94,000 and encumbered to the extent of $51,000 or $52,000; the majority of the home furnishings and utensils; a Lincoln Town Car that had been given to her by her brother; and a small savings account. In light of the length of the marriage, the wife’s age and limited vocational opportunities, and the standard of living to which she was accustomed, this court cannot hold that the trial court abused its discretion in the award of alimony in gross and the division of property.

Likewise, in light of the needs of a sixteen year old boy, we cannot hold that a child support award of $500 per month is an abuse of discretion.

Regarding the child support and alimony in gross, the husband contends that he does not have sufficient income to pay the $750 per month required of him by the foregoing awards. This court, however, is not persuaded that that is the case. The husband’s sole source of income is the auto parts business. Though the business lost money its first year of operation, during the first six months of 1981 the husband made a profit of $8,288. Based upon this figure the husband’s accountant projected that the husband’s gross income for the entire year of 1981 would be $16,577. This amount does not include the $200 per month that the husband receives through the sale of nuts and bolts and junk batteries. Additionally, the business pays for the gasoline used in the husband’s truck and for his hospitalization insurance.

The husband maintains, however, that due to economic conditions his business did not do as well the latter part of 1981 so his income would not be as great as the accountant projected. The record establishes, however, that the husband had previously been very successful as a salesman in an automotive business. This success would indicate that the husband has the knowledge and ability that would make the ultimate success of his business likely. This court has previously held that the ability to earn, as opposed to actual earnings, is a proper factor in determining the amount of child support to be awarded. Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1118 (Ala.1980). This would also be a proper consideration where, as here, the alimony in gross is to be paid in installments.

Due to the ore tenus hearing, this case came to this court clothed with a presumption of correctness. E.g., Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980). After carefully considering the record, we conclude that the husband has been unable to overcome that presumption.

The wife requests an attorney’s fee for representation on appeal. An attorney’s fee of $350 is awarded for that purpose.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    James HILBISH v. Diane HILBISH.
    Civ. 3005.
    Court of Civil Appeals of Alabama.
    June 2, 1982.

      Gary L. Blume, Tuscaloosa, for appellant.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves ARCP Rule 60(b) motions relative to a previous divorce judgment which also provided for child support.

Mrs. Hilbish’s divorce complaint sought child support for two of the parties’ children. Her averments in that regard were that Mr. Hilbish, the defendant, was employed by a construction company and was then able to pay the sum of $500 per month for support and maintenance. The summons and complaint were personally served upon the defendant on February 11, 1975. He did not appear and plead thereto, or otherwise defend, and the plaintiff filed an appropriate and timely motion and affidavit requesting a default judgment. The register did not enter the defendant’s default. The plaintiff’s deposition on oral examination contained only the following testimony relative to child support: “Defendant is a healthy, able-bodied man and is gainfully employed and is able to pay support and maintenance to the minor children born of our marriage.... ” The March 31, 1975, judgment of the circuit court, among other provisions, divorced the parties, granted custody of the two children to the plaintiff and ordered the defendant to pay $250 per month for their support and maintenance.

On April 11, 1980, the plaintiff filed a petition for rule nisi alleging the defendant’s failure to pay child support in accordance with the 1975 final judgment. In addition to a general denial of the plaintiff’s petition, the defendant filed two Rule 60(b) motions. His June 1980 motion contended that the 1975 final judgment was a nullity because neither an entry of default nor a judgment by default was ever made or entered by the register. His August 1981 alternate motion for relief from the child support provisions of the 1975 final judgment was based upon the averment that the divorce evidence of the plaintiff as to child support did not uphold the final judgment awarding such maintenance since it contained no testimony concerning the needs of the two minor children. The trial court overruled both of the defendant’s Rule 60(b) motions, and the two issues now argued on appeal are each concerned only with the respective contentions as raised in the two motions of the defendant.

Initially, we note that the only matter reviewable on this appeal is the order overruling the defendant’s motions and not the 1975 final judgment itself. A Rule 60(b) motion may not be utilized as a substitute for an appeal. Metropolitan Life Insurance Company v. Akins, 388 So.2d 999 (Ala.Civ.App.1980); Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976). Here, both of the raised issues were properly matters for an appeal of the 1975 final judgment and were not appropriate subjects for the Rule 60(b) motions. Brown v. Kingsberry Mortgage Co., 349 So.2d 564 (Ala.1977); Graham v. University Credit Union, 411 So.2d 144, 148 (Ala.Civ.App.1982) Marsh v. Marsh, supra.

As a general proposition, a judgment is not void where the trial court had jurisdiction over the parties and the subject matter. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978); Marsh v. Marsh, supra. Here the court had jurisdiction of the subject matter, the support of the two children, because of the averments of the complaint. Jurisdiction over the defendant was perfected by personal service of the summons and complaint upon him. The judgment not being void under that common test, it was necessary for the defendant to allege and prove a meritorious defense to the action. Frazier v. Malone, 387 So.2d 145, 150 (Ala.1980). Here, the defendant failed to make either the necessary allegations or the required proof in that respect.

Under ARCP Rule 55(b), the register could not have entered a judgment in this divorce action against the defendant, for only the court is thereby authorized to do so.

As to the failure of the register to enter a default as is required by Rule 55(a), it was a procedural irregularity, a formality that was not complied with. Graham v. University Credit Union, supra. The failure to perform that ministerial duty by the register in that respect cannot override the judicial function of the court itself in rendering and entering the 1975 final judgment. The defendant had not pleaded nor otherwise defended against the complaint which was personally served upon him. The plaintiff was entitled to a default judgment and we cannot fathom as to how the defendant was injured or damaged by that procedural omission of the register. Even if we were presently considering the merits as to this issue upon a timely direct appeal from the 1975 final judgment, the failure of the register to enter a default judgment under Rule 55(a) would have constituted error without injury under ARAP Rule 45 and ARCP 61.

The defendant argues that the holding in Weaver v. Travel Inn, Inc., 350 So.2d 444 (Ala.1977) rendered the 1975 divorce judgment void. In Weaver no judgment, in fact, had been either rendered or entered by either the clerk or the court. Here, a judgment was both rendered and entered by the court pursuant to Rule 55(bX2). That argument is foreclosed further by the Graham case, supra, where in discussing the Weaver case it was held, “We have, however, found no authority which supports Graham’s contention that the omission of an entry of default renders the default judgment entered by the court void. Therefore, in the instant case, we find the trial court did not err in denying the Rule 60(b) motion to set aside the default judgment.” Graham v. University Credit Union, supra, at 148.

As to the raised issue that the evidence was inadequate to support the award of child support in the 1975 judgment, that matter cannot be successfully raised by such a motion. A Rule 60(b) motion, which attacks the sufficiency of the trial evidence to support the initial judgment rendered by the trial court, will not lie to review and revise irregularities or insufficiencies of that character, appeal being the appropriate remedy. Brown v. Kingsberry Mortgage Co., supra; Marsh v. Marsh, supra. In Brown, it was stated, “Errors found in the testimony are reviewable by appeal, not by a Rule 60(b) motion (or Bill of Review).” Brown, supra at 568.

We affirm the judgment of the trial court in overruling the defendant’s Rule 60(b) motions.

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

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Randal Joseph KOLMAN v. STATE FARM INSURANCE COMPANY.
    Civ. 3077.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    J. Bernard Brannan, Jr., Montgomery, for appellant.
    William P. Sawyer, Montgomery, for ap-pellee.
   BRADLEY, Judge.

Defendant appeals from the grant of a new trial following a jury verdict in favor of defendant. We affirm the trial court’s actions.

This case arises out of an automobile accident occurring on September 1, 1980. Defendant, Randal Kolman, who was then seventeen years old, was working on his car in his own driveway that day. Defendant’s father had forbidden him to drive the car, since the car was no longer insured. In defiance of his father’s orders, defendant took his car and drove to a friend’s house, and was returning from that friend’s house when the accident occurred.

Defendant’s return trip took him down Camelia Drive, a straight residential street approximately one and one-half car lengths in width. The street has three stop signs placed at various intersections, one placed at an intersection immediately before a small hill of such height as to prevent a driver coming from defendant’s direction from seeing over its crest. Defendant stopped at the stop sign at the foot of the hill, and then proceeded over the hill.

Defendant testified at trial that as he topped the hill, he saw a car in the middle of the street approximately two houses away. Defendant thought the car was either backing out of a driveway or was stopped in the middle of the road. When defendant saw the car, he slammed on his brakes in an attempt to avoid a collision. Defendant’s car skidded sideways and hit the back end of the other car, knocking it up into the yard.

The other car involved in the accident belonged to Hal Moore. Moore testified that he was making a turn into his driveway when he saw that the sprinkler was in the way, and turned to pull up on the side of the street in front of his house. He stated that he did not see defendant’s car until it collided with his car.

The length of the skid marks made by defendant’s ear, as measured by the investigating officer at the scene, indicated that defendant was travelling at a speed of around sixty-five miles per hour. The posted limit in the residential section was twenty-five miles per hour.

State Farm Insurance Company, the ap-pellee in this case and Moore’s insurer, paid off the damages incurred by Moore. As subrogee of its insured, State Farm brought this negligence action against defendant and his father. The father was later dismissed from the action. Defendant asserted the defense of contributory negligence on the part of Moore. Trial was by jury, and at the close of the evidence the jury returned a general verdict in favor of defendant. The trial judge, on motion by State Farm, thereafter granted a new trial on the ground that the verdict was contrary to the great weight of the evidence. Defendant appeals from the grant of a new trial.

The only issue to be decided on this appeal is whether the trial judge erred in granting a new trial. In reviewing the grant of a new trial, the trial judge’s actions are cloaked with a presumption of correctness. The reviewing court will not reverse the grant of a new trial unless it finds that the great weight of the evidence plainly and palpably supports the verdict. Bethune v. City of Mountain Brook, 336 So.2d 148 (Ala.1976). Moreover, where the evidence is in conflict and on review the appellate court is not convinced that the evidence plainly and palpably shows the trial court to be in error, the grant of a new trial should not be disturbed. Hubbard Brothers Construction Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

From our review of the record we find that the great weight of the evidence does not support the verdict and that the evidence does not show the trial court to be plainly and palpably in error. Hence the grant of a new trial must be affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Patricia Ann Oden NAYLOR v. Lester ODEN and Carol Oden.
    Civ. 3096.
    Court of Civil Appeals of Alabama.
    June 2, 1982.

      Charles A. McGee and W. G. Hawkins, Fort Payne, for appellant.
    Terry Gillis of Kellett & Gillis, Fort Payne, for appellees.
   HOLMES, Judge.

The paternal uncle and his wife, by prior orders of the Circuit Court of DeKalb County, were awarded custody of their niece, now age seven. The mother of the child was given visitation privileges of three hours every other month at the home of the uncle and aunt.

Approximately three years after the last of the aforementioned orders the paternal uncle and aunt sought, by modification, to terminate the mother’s visitation. The mother counter-petitioned, requesting that she be awarded custody or that visitation be extended.

After an ore tenus hearing, the learned trial judge terminated the mother’s visitation privileges.

The mother appeals, primarily contending that the trial court erred in terminating visitation. We agree with the mother’s contention and reverse and remand.

We do not deem it necessary nor prudent to set out in detail the facts of the instant appeal. Also, we note at the outset the oft quoted presumption in matters pertaining to visitation, i.e., that the trial court has wide discretionary powers in the settlement of visitation rights. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980).

The record in pertinent part reveals the following:

The child has lived with the paternal uncle and aunt for the past four years. The uncle and aunt provide for all of the child’s material needs. The aunt and uncle love the child and refer to her as their own daughter. The child has her own bedroom in the home. The uncle and aunt help the child with her school work. The child has a good relationship with the teenage son of the uncle and aunt.

The mother of the child has remarried and lives in a house with her new husband. The mother has developed a good reputation in the community according to the mother’s landlord and the mother’s pastor. The mother’s eleven year old son lives with the mother. The mother occasionally babysits for other children in her home.

The mother has regularly exercised her visitation privileges. Except for the past year, the mother would come to the home of the aunt and uncle every two months to visit with her daughter. The mother would sometimes be accompanied by the child’s maternal grandmother. Often, the mother would bring the child a small gift.

The evidence at best of a detrimental nature regarding the issue of visitation is that the child would become upset immediately after the mother’s visits. The paternal aunt and uncle indicated the child would become fretful and would have trouble sleeping. Additionally, che aunt testified that during the past year, when the mother’s visits were less frequent, the child was less upset and adjusted better in school. The evidence indicates that the child for the past year has been attending a special education class for children with emotional problems.

It is unfortunately true that divorce may, to varying degrees, adversely affect the emotional tranquility of children from broken homes. It is, however, not at all clear in the instant case that the sole cause of the child’s fretfulness and nightmares were the mother’s minimal hours of visitation. Fortunately, the evidence reflects the child’s emotional well-being has greatly improved since she entered the special education class.

As indicated, the trial court has much discretion in determining visitation rights of divorced parents. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (Ala.1967). However, under the facts of the instant case, the absolute termination of the mother’s visitation rights cannot be sustained. The trial court abused its discretion in determining that, due to the child’s emotional condition, the mother was to be denied any access to visit her child. In view of the fact that the mother loves her child and desires to continue to exercise visitation, and that the evidence does not support a finding that the mother’s visitation should be terminated, we find the trial court erred to reversal in terminating visitation.

We are also mindful of the Alabama Supreme Court’s recent decision addressing the rights of natural parents in Ex parte Shuttleworth, 410 So.2d 896 (Ala.1982). While not a visitation case, it appears that the reasoning in Shuttleworth is applicable to the instant action. Specifically, in matters of visitation, as in custody determinations, between parents and non-parents, where the parents are deemed fit and proper persons, the natural parents should have reasonable rights of visitation. This in no way is meant to disparage the love and affection which the paternal aunt and uncle have given the child. However, Shuttleworth clearly stands for the proposition that the rights of natural parents, in visitation disputes as much as custody disputes, should be treated with great deference.

Accordingly, we remand to the honorable trial court for a proper determination of the mother’s visitation rights.

While the mother’s brief before this court does not address the specific question of whether the trial court erred in failing to award the mother primary custody, we find no error regarding the trial court’s judgment on this aspect of the decree. See Wood v. Wood, 333 So.2d 826 (Ala.Civ.App.1976).

This case is due to be reversed and remanded for entry of an order not inconsistent with the foregoing.

REVERSED AND REMANDED.

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


text:
    Rayford J. MARTIN v. Brenda MARTIN.
    Civ. 3132.
    Court of Civil Appeals of Alabama.
    June 9, 1982.

      Allen W. Howell, Montgomery, for appellant.
    J. Tilden Dillard, Decatur, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment confirming the sale of a home for division.

Rayford and Brenda Martin were divorced on January 18, 1978. The wife was awarded possession of the marital home until such time that she remarried, lost custody of her child, or the child reached age nineteen. Upon the occurrence of one of these events, the home was to be sold and the proceeds were to be divided between the parties.

On October 17, 1980 the husband petitioned to have the house sold because the wife had remarried. The circuit court entered an order allowing a private sale of the home. At this sale the husband and wife were the only bidders. The husband was highest bidder, offering $33,000 for the property. The husband, however, could not raise enough money to complete the sale, and as a result the court set aside the sale. Since the husband failed to raise the money to pay his bid, the court ruled that he could not bid in the subsequent sale.

A second sale was held on June 12, 1981. At that sale the wife made the highest bid on the property. Her bid was $15,600. The husband filed an objection to this sale in the circuit court on June 17,1981. At the same time, the husband’s brother-in-law, Charles Beddingfield, deposited $16,600 with the court to purchase the property. Later Bed-dingfield added $3,400 to this amount to make his total bid $20,000.

After a hearing on the merits, the trial court confirmed the sale to the wife on September 22, 1981. The husband filed a motion for new trial, which was deemed denied after the passage of ninety days. The husband then filed a timely appeal with this court.

The only issue is whether the trial court erred in failing to set aside the sale. We find no error and affirm the judgment.

The court in confirming the sale noted that the wife’s bid was less than the fair market value of the property, but that it was not so low as to warrant setting aside the sale. The husband contends that the court erred based on the fact that his brother-in-law was willing to pay $20,000 for the property and based on the fact that the wife had previously bid $32,500 on the property.

None of the parties involved in this sale are strangers. The husband went to Bed-dingfield after the sale to the wife and asked him to bid on the property. The wife, also, was certainly interested in the outcome of the sale.

In Spence v. Spence, 239 Ala. 480, 195 So. 717 (1940), the standard for reviewing judicial sales when the purchaser is not a stranger was set forth. The court in Spence held that such a sale should be confirmed if the price bid is measurably adequate or not greatly less than the property’s market value. The court held that even though someone offered a much larger bid later, the sale should not be set aside if the original bid meets the standard.

The overriding objective in these cases is to sell the property so as to realize the best price possible with regard to fairness and the rights of all the parties. Copeland v. Giles, 271 Ala. 302, 123 So.2d 147 (1960). Certainly the wife’s bid in the present case was lower than the market value of the property. The question, however, is whether her bid was so inadequate as to warrant ordering a new sale.

Under the ore tenus rule we must presume that the trial court’s conclusions are correct, and we will not disturb these findings unless they are palpably wrong. Sieben v. Torrey, 252 Ala. 675, 42 So.2d 621 (1949). Furthermore, courts must not render judicial sales unstable by setting them aside too freely. Marshall v. Howze, 387 So.2d 808 (Ala.1980).

In the present case the sale was advertised in the paper several times. The wife was high bidder at the sale. It was not until after the sale that Beddingfield came forward to make an offer for the home. Although Beddingfield’s offer was substantially more than the wife’s bid, we cannot find that the wife’s bid was so inadequate as to require reversal. See Sanford v. Sanford, 355 So.2d 365 (Ala.1978).

The parties’ requests for attorneys’ fees for this appeal are denied.

AFFIRMED.

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


text:
    Elizabeth O’Neil HINDS v. Joseph Miller HINDS, Jr.
    Civ. 3142.
    Court of Civil Appeals of Alabama.
    June 9, 1982.

      Ralph H. Ford and John O. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
    Joe M. Berry and James T. Baxter, III of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals, contending the trial court erred in its award of periodic alimony, alimony in gross, division of property, and in its failure to award attorney’s fee. Additionally, the wife, through able counsel, contends that the trial court erred concerning certain “evidentiary” matters.

After careful review of the record and after careful consideration of the presumptions accorded the learned judge’s decree, this court affirms in part and reverses and remands in part.

The record in pertinent part reveals the following: The parties to this action had been married for twenty-four years. Three children were born of this union. At the time of the divorce all but one of the children had reached the age of majority.

At the time of the divorce, the husband was forty-four years old and was apparently in good health. He had a bachelor’s degree in economics and a master’s degree in banking and finance. The record indicates that the husband has been in banking for most of his professional life. He presently serves as president of the First Alabama Bank of Huntsville.

The wife was forty-six years old at the time of the divorce and also was apparently in good health. The wife is college educated with a degree in education. During the early years of the marriage she taught school while the husband finished his education. For the majority of the time of this marriage, the wife has not worked outside the home. At the time of the divorce the wife was working at a women’s apparel shop for minimum wage.

The husband initiated this divorce action, alleging in his complaint that there was an incompatibility of temperament and an irretrievable breakdown of the marital relationship. The husband’s testimony revealed that financial problems that he and his wife had experienced led to this divorce action. The husband specified that the reason they had experienced such problems was the wife’s overspending and he offered evidence tending to support this.

Subsequent to the husband’s complaint, the wife filed a counter-complaint for divorce. As a reason for the divorce the wife alleged that the husband had committed adultery since the marriage of the parties. At trial the wife introduced evidence tending to support this allegation.

In a pretrial order of May 28, 1981, the trial court, pursuant to rule 53, ARCP, appointed a master to report to the court upon such matters as the assets, liabilities, income, personal property, real property, and equitable interests of the parties. According to the master, the husband’s total income for 1979 was $70,014. The husband disputes this finding to the extent of approximately $8,000. For 1980 the master found that the husband’s total income was $84,040. The husband disputes this finding to the extent of approximately $11,000. The husband’s projected income for 1981 was $86,231. For 1979 the master found that the wife’s total income was $932; for 1980 the master found that her total income was $2,227; for 1981 the wife’s income was projected to be $5,676. The findings regarding the wife’s income were not disputed at trial.

The parties entered this marriage with very few assets. Consequently, most of the parties’ assets were acquired during the marriage and, since the wife did not work outside the home, most of the assets were acquired by the husband. After deducting the value of a farm that was sold by the husband after the master’s report was compiled, the total value of the couple’s estate, according to the master, was $620,325. Included within the estate was $2,267 in cash; securities owned by the husband and valued at $22,429; two jointly owned automobiles with a combined value of $10,000; furniture and personal property jointly owned by the parties and valued at $105,000; a jointly owned residence valued at $131,500; a one-tenth undivided interest in an apartment complex owned by the husband and valued at $303,461; the husband’s profit-sharing plan valued at $42,976, and the cash surrender value of the husband’s life insurance which, at the time of the divorce was $2,692. The husband did not dispute any of these valuations except the value placed upon his one-tenth interest in the apartment complex. At trial the husband introduced evidence that the one-tenth interest was more properly valued at $120,000 to $150,000.

Adjusting for the sale of the farm, the master found the parties’ total debts plus accrued interest to be $160,211. Included within this total debt was a $49,748 home mortgage for which both the husband and wife were liable, an $82,830 debt representing principal and interest on a loan taken out by the husband to purchase the one-tenth interest in the apartment complex, and a $7,153 debt representing principal and interest on two loans taken out by the husband apparently for the purpose of meeting miscellaneous expenses. Also included within the total debt were charge account bills, lawyer’s fees, medical expenses, and insurance payments. The total amount owing for the foregoing services and expenses was $20,480.

After considering the evidence heard ore tenus along with the exhibits admitted into evidence, the trial judge concluded that the parties should be divorced for incompatibility of temperament.

In pertinent part the divorce decree provided that the wife should have custody of the minor child. The husband was required to pay $450 per month as child support until the child reached majority or was otherwise emancipated. The husband was also required to provide the minor child with medical insurance until she reached majority or was otherwise emancipated. Additionally, the husband was required to keep in force and effect a minimum of $75,000 of insurance on his life for the use and benefit of all the children born of this marriage. This insurance must be maintained until the minor child reaches the age of nineteen.

The trial judge provided for the wife as follows: As alimony in gross, the wife was awarded $15,000. The trial judge stated in the decree that he had purposely increased this award in order to provide funds for the payment of the wife’s attorney’s fees.

As periodic alimony, the husband was required to pay $750 per month through November 1, 1985 and $350 per month from November 15, 1985 to November 1, 1989. So long as the husband was obligated to pay periodic alimony he was required to keep in force and effect with the wife as beneficiary $50,000 worth of insurance on his life.

The trial judge divided the property as follows: The wife was awarded the parties’ residence and the responsibility for the residence mortgage. The wife was also allowed to retain the majority of the household goods and furnishings. The household goods the husband received consisted mainly of furnishings that had been in his family and those that had been given to him. Each party was awarded an automobile. The remainder of the assets were awarded to the husband.

Additionally, the husband was required to pay the outstanding balances on such items as charge accounts, automobile insurance and medical bills. The husband was also responsible for the debts other than the mortgage that had been incurred by him. The parties were required to pay their own attorney’s fees.

As stated earlier, the wife contends on appeal that the trial judge erred in his award of periodic alimony and alimony in gross, in his division of property, and in his failure to award attorney’s fees.

Considering the award of periodic alimony in light of the other provisions of the divorce decree, this court finds the amount of periodic alimony to be inadequate. In making such an award the learned trial judge abused his discretion.

In considering the issues raised by the wife this court must be mindful that the award and amount of periodic alimony and alimony in gross, the division of property, and the allowance of attorneys’ fees are all matters within the sound discretion of the trial judge who will not be reversed absent a plain and palpable abuse of that discretion. Fitts v. Fitts, 283 Ala. 369, 217 So.2d 81 (1968); Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980).

The exercise of this discretion, however, is judicial and not arbitrary and is reviewable on appeal. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

Though each case must be decided based upon its own facts and circumstances, there are certain factors that the trial judge should consider in exercising his discretion. Among these factors are the following: the financial circumstances of the parties; the length of the marriage; the source of their common property; the parties’ ages, sex and health; the parties’ future prospects; the parties’ standard of living during the marriage and their potential for maintaining or exceeding that standard after the divorce; and, where appropriate, the fault of the parties. Makar v. Makar, 398 So.2d 717 (Ala.Civ.App.1981); Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979).

I

As stated above, the circumstances of this case viewed in light of the foregoing factors reveal that the learned trial judge abused his discretion in the award of periodic alimony. The present and future prospects of the parties to this marriage are grossly disparate. The husband is relatively young, healthy, and well educated and has a very good job as president of a bank. From a financial standpoint, his future looks very bright. There is every indication that he will be able to continue to enjoy a high standard of living after the divorce.

The wife’s future, however, is not as bright. Though she had obtained a teacher’s certificate and had taught school during the early years of the marriage, for most of this twenty-four year marriage the wife had chosen to remain at home and maintain the household. During the time the wife was working as a homemaker her teacher’s certificate expired and the testimony indicated that it would be difficult and time consuming to get it renewed. For the last few years the wife has worked at a women’s clothing shop for minimum wage. Though she is healthy and well educated she apparently has no readily marketable skills. Thus there is little prospect that the wife will find a more lucrative position in the near future. Additionally, it is highly unlikely that she will ever find a position that will allow her to maintain the standard of living she was accustomed to during her marriage.

The divorce decree required the husband to pay $750 per month as periodic alimony for the four years from 1981 to 1985. For four years thereafter the husband must pay the wife $350 per month as periodic alimony. The wife’s net pay from her minimum wage job was $400. Thus during the four years from 1981 to 1985 the wife would have $1,150 per month available to her to meet expenses. From this amount the wife must pay the residence mortgage of $550 per month. This leaves her but $600 per month from which she must maintain a $131,500 home and surrounding property including a swimming pool, pay utility bills, buy groceries and clothing, maintain the car and meet medical expenses. We also note that in actuality the wife would have less than $1,150 per month because she must pay taxes upon the alimony payments she receives from her husband.

The husband, on the other hand, testified that after mandatory deductions his salary as president of the First Alabama Bank of Huntsville was $1,800 bi-weekly or $3,600 a month. In- addition to his salary as bank president the husband receives dividend income and also has access to profit sharing funds. The husband’s projected dividend income for 1981 was $1,164. Regarding the profit sharing plan, the master found that, in 1979, $8,016 was contributed to the plan; in 1980, $9,591 was contributed to the plan; and, in 1981, $14,792 was the projected contribution to the plan. These contributions are invested and earn interest and are available for distribution two years after contribution. The master found that the total value of the profit sharing plan was $42,976. Additionally, the husband received a cash bonus of $3,000 in both 1979 and 1980 and such a bonus was also projected for 1981. Finally, the husband is covered by insurance through his employer’s group plan and does not have to spend his own funds for such coverage.

In summary, the husband is in a much better financial position than the wife and there is every indication that the husband’s earning ability will continue to increase in the coming years. Thus, in the opinion of this court the husband is in a better position to pay the $550 per month home mortgage. In reaching this decision we acknowledge that we are aware that the husband is already responsible for repayment of the funds borrowed to purchase the one-tenth interest in the apartment complex as well as the repayment of two miscellaneous loans and payment on certain accounts payable. We are also aware, however, that the husband’s obligation to pay $450 as child support will expire in May, 1983.

By requiring the husband to assume the home mortgage the periodic alimony award to the wife will more nearly serve its intended purpose which is to provide for the current and continuous support of the wife. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980).

Put another way, upon remand the trial court should order that the husband be required to pay the home mortgage. The payment of the mortgage may be accomplished by making the monthly payments or as otherwise directed by the trial court.

With the foregoing adjustments, this court finds no abuse of discretion in the trial court’s award of alimony in gross and division of property.

A review of the divorce decree and the trial transcript reveals that the trial judge attempted to make a property division and an award of alimony in gross that would not only be roughly equal in value but would also reflect the needs and expertise of the parties. To the wife, who had only a minimum wage job and no immediate prospects for a better job, the trial judge awarded the residence, the majority of the furnishings within the residence and an automobile. Additionally, the wife received $15,000 as alimony in gross though we recognize that part of this amount was for attorney’s fees. To the husband, who had a good job and was an experienced businessman, the trial judge specifically awarded him some home furnishings which apparently had a special value for the husband and the decree allowed him to retain his one-tenth interest in the apartment complex, his interest in the profit sharing plan, the securities, and an automobile.

A property division must be equitable and graduated according to the nature of the particular case. Mack v. Mack, supra. A review of the record reveals nothing within the nature of this case that would lead this court to conclude that the above property division was inequitable.

Regarding the division of property, the wife contends that the trial judge erred in valuing the one-tenth interest in the apartment complex at $120,000 rather than accepting the $303,461 valuation placed upon the interest by the master. Her contention appears to be that had the court accepted the master’s valuation, it would have become apparent that the wife’s share of the estate was inequitable. Suffice it to say that even had the trial court erred in not accepting the master’s valuation, that in itself would not necessarily require this court to conclude that the property division was inequitable.

This court, likewise, finds no merit in the wife’s contention regarding “failure” to award attorney’s fees. The trial judge specifically noted in the divorce decree that he had intentionally increased the award of alimony in gross to cover attorney’s fees. Though this court should not be understood as condoning this method of providing for attorney’s fees, under the circumstances of this case we cannot hold that the trial judge abused his discretion in providing for attorney’s fees in this manner.

II

As noted earlier, the wife also contends that the trial court erred to reversal in certain evidentiary matters involving the disclosure of settlement offers to the trial judge and the invocation of the privilege against self incrimination by the husband and another witness when being questioned about possible acts of adultery. This court finds no merit in either of these contentions.

It is well-settled that offers of compromise are not proper evidence. See generally, C. Gamble, McElroy’s Alabama Evidence § 188 (3d ed. 1977). The wife contends that the trial judge breached this principle by requiring disclosure of the respective party’s settlement offer prior to the conclusion of this action. We find no merit in this contention for three reasons. First, the record does not reflect any instance where the trial judge compelled disclosure of settlement offers nor does it reflect that any settlement offers were disclosed. Appellate courts are bound by the record and generally will not consider matters outside the record. American Benefit Life Insurance Co. v. Ussery, 373 So.2d 824 (Ala.1979). Furthermore, an assertion in a party’s brief cannot be taken to supplement the record. Mauldin v. Mount Hebron United Methodist Church, 289 Ala. 493, 268 So.2d 770 (1972). Second, even if the trial court did require the disclosure of settlement offers, the record does not reveal that there was any objection to such disclosure. A party who fails to object to a matter at trial may not raise such matter for the first time on appeal. Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979). Finally, the trial judge in his order responding to the wife’s motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial, stated that though some informal discussion of settlement offers occurred between himself and counsel for the respective parties prior to the conclusion of the trial, any disclosure of settlement offers was voluntarily made and at no time did the court compel such disclosure.

Finally, this court holds that the trial judge did not err in allowing the husband and his alleged paramour to invoke the privilege against self-incrimination when being questioned about possible acts of adultery. In the opinion of this court, Vail v. Vail, 360 So.2d 985 (Ala.Civ.App.1977), rev’d on other grounds, 360 So.2d 992 (Ala.1978), controls this issue. In holding that a husband could invoke the privilege against self-incrimination when being questioned about possible acts of adultery, this court, in Vail, stated that individuals have the right to invoke the privilege “where the answer might tend to incriminate them in future criminal proceedings.” 360 So.2d at 990. Though the adultery statute has been amended since Vail was decided to require proof of both sexual intercourse and cohabitation, Ala.Code § 13A-13-2 (1977), an admission by either the husband or his alleged paramour that they had, on more than one occasion, engaged in sexual intercourse might tend to incriminate them in the event of criminal prosecution for adultery.

In the final analysis, it is the prerogative of the trial judge to initially determine whether an answer to a question would implicate the witness in future criminal prosecution. Ex parte Blakey, 240 Ala. 517, 199 So. 857 (1941). The trial judge obviously determined that an answer to the questions being asked of them would implicate the witnesses. We cannot hold the trial judge erred in so holding.

The wife requests an attorney’s fee for representation on appeal. In view of the additional periodic alimony available to the wife this request is denied.

This case is due to be affirmed in part, reversed in part, and remanded for entry of an order not inconsistent with the foregoing opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    MADISON HIGHLANDS DEVELOPMENT CO. v DEAN AND SON PLUMBING CO., INC.
    Civ. 3165.
    Court of Civil Appeals of Alabama.
    June 9, 1982.
    H. E. Miller, Jr., Nashville, Tenn., for appellant.
    L. H. Little, Jr. of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

Dean and Son Plumbing Company, Inc. (Dean) instituted suit against Madison Highlands Development Company (MHDC), H. E. Miller, and Union National Bank to recover a lien judgment for $1,000. The complaint contained counts for breach of contract; work, labor and materials furnished; open account; and account stated. MHDC counterclaimed for damages in the amount of $1,500. The case was tried to the court sitting without a jury. The trial court entered judgment for Dean in the amount of $1029.10 against MHDC and awarded a judgment lien therefor. MHDC was denied relief on the counterclaim. MHDC’s motion to alter judgment was denied and MHDC appeals to this court.

The record reveals that the case arose out of the following circumstances:

On October 11, 1979, Dean and MHDC entered into a written contract whereby Dean would provide specified plumbing services for a total price of $8,500. The contract allowed for a specific payment schedule. Furthermore, it contained the following clause: “Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders.” Subsequent to October 11, 1979, Dean commenced additional work for a grocery store which was part of the MHDC property. Miller, as president of MHDC, verbally authorized the work for Hall, the prospective tenant. Miller testified that although MHDC paid Dean $659.68 in connection with the extra work, such payment was merely an accommodation and made only because Hall was not then available to advance the funds. Miller testified that he expected reimbursement from Hall and that Dean was to look to Hall for the balance of the payments. Dean, however, added the cost of the extra work to MHDC’s account. Dean testified that the additional work was done at Miller’s request. Dean, therefore, looked to MHDC for payment. The payment of $659.68 on the extra work reinforced Dean’s belief that MHDC would accept responsibility for the extra work.

Dean billed MHDC periodically, but the billing was not consistent with the terms of the contract. The “final bill” was dated June 4, 1980, and showed a balance of $1,000. A bill dated June 18, 1980, showed an extra $29.10 due for materials. Dean testified that the last work performed on the MHDC property was in November 1980. On February 25, 1981, Dean filed a lien on the MHDC property and commenced the instant suit via a four-count complaint.

The first issue raised on appeal is whether the trial court erred in awarding a lien against MHDC’s property for the amount of the judgment. MHDC contends that suit to enforce the lien was not brought within statutory time limits. We agree.

To secure enforcement of a lien, the mechanic or materialman must file notice of his lien claim within six months after last work performed or material furnished and commence suit within six months after the maturity of the entire indebtedness. Howell v. Hallett Manufacturing Co., 278 Ala. 316, 178 So.2d 94 (1965).

Section 35-11-215, Code (1975) provides:

The lien declared in this division shall be deemed lost unless the statement .. . shall be filed by every original contractor within six months ... after the last item of work or labor has been performed....

Dean contends that work performed on the MHDC property in November 1980 was within six months of the filing of the lien and commencement of the suit for its enforcement was therefore timely. It is well settled, however, that a mechanic’s lien is not perfected until every requirement of the statute is met. Hartford Accident and Indemnity Company v. American Country Clubs, Inc., 353 So.2d 1147 (Ala.1977).

Section 35-11-221, Code (1975) provides:

Any action for the enforcement of the lien declared in this division must be commenced within six months after the maturity of the entire indebtedness secured thereby, except as otherwise provided in this division. (Emphasis supplied.)

Maturity of the debt has been defined as the date such debt accured so as to be due and payable. Starek v. TKW, Inc., 410 So.2d 35 (Ala.1982). Although Dean claims to have performed work on the property as late as November 1980, the record clearly reveals that the final bill for the work was issued in June 1980. The full balance was therefore due and payable more than six months before suit was commenced on February 25, 1981. Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 So.2d 678 (1963). The filing of the suit to enforce the lien was untimely and the trial court erred in granting the lien.

Alabama law, however, allows the entry of a personal judgment against the contracting owner even though the materi-alman cannot establish a lien. Henderson v. Moore-Handley, Inc., 349 So.2d 1165 (Ala.Civ.App.), cert. denied, 349 So.2d 1170 (Ala.1977). The second issue to be considered on appeal is whether there is sufficient evidence to show that MHDC is indebted to Dean. The record reveals that Miller, as president of MHDC, had the authority to enter into contracts on behalf of his corporation. It is undisputed that a portion of the costs of the extra work was paid by a check issued on MHDC’s account. The question whether MHDC or its tenant, Hall, was to pay for the extra work was for the trier of fact as evidence on that question was conflicting. A reviewing court must indulge all reasonable presumptions in favor of the trial court’s finding when the evidence is heard ore tenus. Hartford Accident and Indemnity Company v. American Country Clubs, Inc., supra. Such finding will not be set aside on appeal unless, after allowing all reasonable inferences in favor of its correctness, the record contains such a preponderance of evidence against it that this court must find it palpably wrong and unjust. Sunshine Homes v. Hogan, 408 So.2d 149 (Ala.Civ.App.1981).

Whether the extra work is viewed as part of the original contract or as a separate oral agreement between the parties need not be decided. The second count of Dean’s complaint was for work, labor and materials. We find the evidence supports the trial court’s determination that MHDC was indebted to Dean for the amount of the judgment.

The fourth issue raised concerns the discrepancy between the amount prayed for in the complaint ($1,000) and the amount awarded in the final judgment ($1,029.10). Under Rule 54(c) A.R.C.P.:

[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

In the instant case there was evidence, albeit disputed, that extensions supplied by Dean and valued at $29.10 were not replaced by MHDC. We cannot say, in view of the ore tenus rule, that the inclusion of that amount in the judgment was error.

The final issue on appeal is whether the trial court erred in denying relief to MHDC on its counterclaim. MHDC contends that Dean workers left debris in the restrooms and as a result MHDC expended $1,500 to clean and repaint them. In addition, MHDC claims to have incurred expenses in finishing work on the grocery store. The evidence on both claims is disputed by the testimony of Mr. Dean. Again, when evidence is heard ore tenus, this court will not substitute its judgment for that of the trial court on the effect of conflicting evidence in regard to a pivotal question of fact. Howell v. Hallett Manufacturing Co., supra. We find no error in the denial of relief to MHDC on the counterclaim.

The judgment of the trial court is hereby affirmed except that the award of the lien on the property of MHDC be deleted therefrom.

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

BRADLEY and HOLMES, JJ., concur.

      . Mr. Hall eventually reneged on his lease agreement with MHDC.