author: EMBRY, Justice.

text:
    James OTT, et al. v. Kenneth EVERETT, et al.
    No. 81-378.
    Supreme Court of Alabama.
    Oct. 1, 1982.

      G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellants.
    John Keith Givens of Buntin & Cobb, Dothan, for appellees.
    Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.
   EMBRY, Justice.

This is an appeal from an order dismissing that aspect of the action of James Ott, Wayne Johnson, and Charles L. Rogers, seeking money damages from Kenneth Everett as Mayor, and Matt Bullard, S. A. Cherry, John H. Glanton, Jr., and Raimon G. Thomas, as members of the Board of Commissioners of the City of Dothan, a municipal corporation. There remains pending that aspect of the action by which Ott and Johnson seek the writ of mandamus to compel the mayor and commissioners to issue them a lounge retail liquor license. The trial court entered a proper Rule 54(b), ARCP, order making its order of dismissal an appealable one. We affirm.

Damages are sought upon the basis that refusal to approve the application for the liquor license was arbitrary, capricious,'and wrongful. Briefs included that of the Alabama League of Municipalities, as amicus curiae. All the parties agree the case is one of first impression in Alabama.

The facts which form the basis of Rogers’s claim for money damages are of no importance to a resolution of the question we will answer in this opinion. The issues for review, which appellees and the amicus agree are correct are:

“1. Does a complaint alleging that a municipal corporation, through its commissioners, has wrongfully, arbitrarily, and capriciously denied an application for a lounge retail liquor license, and seeking monied damages if the trial court determines such denial to be wrongful, state a claim upon which relief can be granted?
“2. Are monied damages recoverable from a municipal corporation if the governing body of said municipality wrongfully denies an application for a privilege license, in this case a lounge retail liquor license?”

The contention of Ott and Johnson is that the almost universal basis asserted for the nonliability for damages of the municipality or other governing body for the wrongful failure or refusal to approve an application or to grant a permit or license is that such action is a governmental function as opposed to a corporate or proprietary one. They further contend the distinction has been abolished in Alabama as a viable requirement of an action seeking damages against counties and municipalities. Bradshaw v. Houston County, 384 So.2d 1 (Ala.1980), and the authorities mentioned therein, are cited in support of their contention.

On the other hand, appellees, and the amicus, contend the Alcoholic Beverage Control Licensing Code, found in § 28-3A— 1, et seq., Code 1975, is an exercise of the police power of the state for the public welfare,- health, peace and morals of the people. Section 28-3A-11 expressly provides that the governing authority of a municipality must give its consent and approval before a retail liquor license can be issued by the ABC Board if the premises sought to be licensed are located within a municipality. Further, that such requirement is within the legislature’s authority to regulate traffic in liquors which power is considerably broader than the state’s power to regulate a business not dealing in alcoholic beverages and a public officer exercising a quasi judicial function in granting or refusing to grant a permit or license may not be liable for damages absent a corrupt or malicious motive in the exercise of that function.

We are in agreement with the position taken by appellees and the amicus in this case. Appellants mistakenly fail to discern the distinction between those situations illustrated by Bradshaw; Cook v. St. Clair County, 384 So.2d 1 (Ala.1981), and Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), and our cases, and those of other jurisdictions, relating to the exercise of the police powers of the state when regulating liquor traffic, sale, or consumption.

In Jackson, § 11-47-190, Code 1975, was interpreted as the legislature had originally intended when it enacted it. In that case we also recognized “the authority of the legislature to enter the entire field and further recognize[d] its superior position to provide with proper legislation any limitations or protections it deemed necessary.”

Section 11-47-190 reads as follows:

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

For many years that section of the code was judicially misinterpreted, for the same section was held by this court to limit the liability of municipalities to injury suffered through “neglect, carelessness or unskillfulness.” To construe that language to include an action for damages for errors made in quasi judicial decisions would be to expand the words beyond their normal meaning. It does not permit an action to lie against a municipality for malicious prosecution. Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980). Until the legislature chooses to expand the liability of municipalities to include damages for wrongful decision making, this court will continue to limit such liability to only those injuries caused by “neglect, carelessness or unskillfulness.”

This court has held that the discretion of a licensing authority is broad regarding issuance or denial of a liquor license. Their discretion, however, is not irreversible if it is shown that the denial of that license is a result of arbitrary action on the part of the licensing authority. See Black v. Pike County Commission, 375 So.2d 255 (Ala.1979); Inn of Oxford, Inc. v. City of Oxford, 366 So.2d 690 (Ala.1978). However, the question of whether the mayor and the commissioners abused their discretion when refusing to approve the application is a pending matter to be decided by the trial court. That question, even if answered in the affirmative, would only affect the issuance of the license; it would not support a claim for money damages.

We emphasize that regulation of the liquor traffic is subject to the intrinsic police power of the state, a broad and plenary power. See Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978); Jefferson County v. Braswell, 407 So.2d 115 (Ala.1981); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 390 (1972). We think the rule stated by the Illinois Supreme Court in the case of People ex rel. Schreiner v. Courtney, 380 Ill. 171, 43 N.E.2d 982 (1942), accords with our view of a basic principle apt to this case: “The general rule of liability applying to judges applies alike to all officers exercising quasi judicial powers, and they are exempted from liability for error or mistake of judgment in exercising their duty in the absence of corrupt or malicious motives.” The principle was reiterated by the First District Appellate Court of Illinois in Paoli v. Mason, 325 Ill.App. 197, 59 N.E.2d 499 (1945). This rule is no less valid today than it was thirty-seven years ago. See, Tutwiler Drug Co. v. City of Birmingham, 418 So.2d 102 (Ala.1982).

We today hold that neither the City of Dothan, its mayor, nor the members of its Board of Commissioners are liable for damages on account of the exercise of their quasi judicial powers regarding approval or disapproval of an application for a retail liquor license, or the issuance or refusal to issue that license, and are exempt from liability for error or mistake of judgment in the exercise of the duty in that regard absent fraudulent, malicious, or corrupt intent.

“A license to engage in the sale of intoxicants is merely a privilege with no element of property right or vested interest of any kind. [Citations omitted] Selection of the beneficiaries of a mere privilege may be committed to the discretion of the body created for that purpose. State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294 (1912).”

Broughton v. Alabama Alcoholic Beverage Control Board, 348 So.2d 1059 (Ala.1977).

For the reasons assigned, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Nancy L. O’NEILL v. William W. O’NEILL.
    Civ. 2805.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    Rehearing Denied April 28, 1982.

      Charles W. Woodham of Halstead, Whid-don & Woodham, Abbeville, for appellant.
    J. Gorman Houston, Jr. of Houston & Martin, Eufaula, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Under the Uniform Reciprocal Enforcement of Support Act (URESA), Nancy L. O’Neill sought to enforce the periodic alimony provisions of a 1977 Georgia divorce judgment which approved an agreement in that respect between her and her then husband, William W. O’Neill. By their settlement contract they expressly reserved any right which either party might have under § 30-220 of the Georgia Code or similar laws of any other state to modify alimony.

Mrs. O’Neill commenced these URESA proceedings in South Carolina, where she presently resides, and the proper documents were duly forwarded to Alabama, the responding state, where Mr. O’Neill now lives. He filed an answer and counterclaim in the district court, juvenile division, where the case was pending. His pleadings stated that he was not paying alimony to his former wife because she is. continuously and openly living with her boyfriend in a meretricious relationship and Mr. O’Neill asked to be relieved from his alimony obligations on that account. Mrs. O’Neill personally filed in the district court her handwritten answer and her “counter counter claim” to his counterclaim and she denied such aver-ments. Since the case was at issue, it was set for trial by the court and more than thirty days’ notice of the trial date was given to her, but she did not appear for trial. No motion for a continuance or for a delay in the submission of the case until the ex-wife’s evidence could be procured by deposition, or otherwise, was made either by Mrs. O’Neill or on her behalf at any time. No reason appears in the record as to why she was absent at the trial. Mr. O’Neill’s evidence was heard orally by the trial court and the case was submitted for a final judgment.

The trial court’s judgment was styled “IN THE CIRCUIT COURT OF BARBOUR COUNTY,” but was signed as follows:

isl Wm. H. Robertson
WILLIAM H. ROBERTSON
DISTRICT JUDGE
BARBOUR COUNTY, ALA-
BAMA

That judgment expressly found that the court had jurisdiction over the parties, that Mrs. O’Neill is dwelling together continuously and openly in a meretricious relationship with a person of the opposite sex, and that, accordingly, Mr. O’Neill should be relieved from the obligation of paying future periodic alimony pursuant to the laws of both Georgia and Alabama. No posttrial motion was filed by Mrs. O’Neill, who immediately appealed.

She first contends that Judge Robertson, as a district judge, had no authority to enter the final judgment in the circuit court.

We deem the caption on the final judgment to be surplusage when it stated “circuit” court. The case was pending in the juvenile division of the district court where all of the pleadings were apparently filed; it was tried before the district judge; it had never been transferred to the circuit court; and it was signed and rendered by the district judge. It was a judgment of the juvenile court regardless of the erroneous court caption.

Even if the judgment be considered as a circuit court judgment it would have to be upheld. No objection was made in the trial court at any time as to the authority of the trial judge. Thus, all such objections in that connection were waived. We are required to conclusively presume that his selection or appointment was in all respects regular. The lack of authority of the judge to preside over the trial and to render the judgment cannot be raised for the first time upon this appeal. Roberts v. State, 126 Ala. 74, 28 So. 741 (1900); Haynes v. State, 40 Ala.App. 106,109 So.2d 738 (1959). Even if the judge’s blanket authority or authorization to try certain type cases in the circuit court was faulty, he was a de facto judge and his acts as such were valid and unimpeachable. Riley v. Bradley, 252 Ala. 282, 295, 41 So.2d 641, 652 (1949).

It is next suggested that the juvenile court was without jurisdiction over the subject matter, i.e. that it had no authority to entertain a counterclaim so as to terminate periodic alimony on the ground of cohabitation. That position would normally be true, but URESA itself discusses the duty of support in many sections. §§ 30-4-80, -81(6), -83, -84, -88, -91 and -94, Code 1975. The latter section provides that if the court of the responding state finds a duty to support, it may order the defendant to furnish support. The duty of support is the gist and brunt of the litigation in the responding state. The converse of § 30-4r-94 would also be true — if there is no duty of support, the responding state’s court would not be authorized to order the defendant to provide it.

Accordingly, as to the merits of the case, we look to the law and to the evidence in order to ascertain if there was a duty upon Mr. O’Neill to provide future periodic alimony to his ex-wife under the presented circumstances. The averments of the counterclaim tracked the Georgia cohabitation statute, which permits the modification of periodic payments of permanent alimony under the circumstances so averred. § 30-220, Ga.Code Ann. Under Alabama’s constitutional amendment number 390 and pursuant to § 30-2-55 of the Code of Alabama 1975, periodic alimony may be terminated when an alimony-receiving ex-spouse is “living openly or cohabiting with a member of the opposite sex.” Either state’s cohabitation statute is a defense to any duty to support an ex-spouse through the payment of periodic alimony. The evidence was adequate to bring into effect the provisions of the statutes of both states. An ore tenus trial having been conducted before the trial court, we cannot say that there was any palpable abuse in that court’s decision that Mr. O’Neill had no obligation to pay future periodic alimony to his ex-wife under the laws of both states. That finding by the trial court was equivalent to an express holding that there was no duty of support. Under URESA, § 30-4-83 of the Alabama code, duties of support arising under the law of Alabama were binding upon Mr. O’Neill, but, under Alabama’s cohabitation laws, he was excused from any future alimony liability, or duty of support, to his former wife because of her cohabitation as disclosed by the evidence and as determined by the trial court.

Mr. O’Neill’s counterclaim was germane to the question of the duty of support which was raised by the proceedings instituted by Mrs. O’Neill under URESA. The district court properly decided that issue.

Very conscientious counsel for Mrs. O’Neill on this appeal have filed an excellent brief on her behalf. We have dutifully reviewed the remainder of the issues raised, as to which we find no merit. We affirm.

Legitimate and hard questions and issues were raised in this appeal by Mrs. O’Neill’s attorneys. She has requested that an attorneys’ fee be awarded. We find no authority for the granting of such request. Section 30-2-54, Code 1975, has no application in the absence of a finding of contempt. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980). URESA contains no authority for the granting of attorneys’ fees on appeal. The appellant’s request for an award of attorneys’ fees is denied.

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 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Nancy L. O’NEILL. (Re Nancy L. O’NEILL v. William W. O’NEILL).
    81-662.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Charles W. Woodham of Halstead, Whid-don, Woodham & Hamil, Abbeville, for petitioner.
    J. Gorman Houston, Jr. of Houston & Martin, Eufaula, for respondent.
   MADDOX, Justice.

For a statement of the facts in this case see the opinion of the Court of Civil Appeals, O’Neill v. O’Neill, 420 So.2d 261 (1982).

This Court must determine whether the Court of Civil Appeals was correct under the terms of the Uniform Reciprocal Enforcement of Support Act in upholding the order of the district court modifying the divorce decree of another jurisdiction and terminating periodic alimony payments. We affirm.

I

In 1951, the Alabama legislature adopted, with only minor changes, the Uniform Reciprocal Enforcement of Support Act (hereinafter URESA). This act was designed to improve and extend the enforcement of duties of support and to make the support laws of adopting states uniform. See Code 1975, §§ 30-4-80 to -98 (1975). Basically, the civil proceedings authorized by the act are designed to provide a simplified, fair and convenient way to compel those who have a duty of support to fulfill their obligation without having to be extradited to another state.- Although URESA was amended in 1952 and 1958, ánd revised in 1968, the last changes made in the Alabama version of that act occurred in 1953. See generally Enforcement of Support, §§ 1-43, 9A Uniform Laws Annotated, 547-801 (1979).

The appellant, Nancy O’Neill, asserts that the lower court lacked authority to terminate appellee’s obligation to pay periodic alimony to her under a Georgia divorce decree for cohabitating with a member of the opposite sex. As authority, appellant cites § 30-4-93(b):

“Any order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.”

This provision did not appear in the uniform act as originally adopted in 1951, but was added to the provisions of the uniform act in 1952 and added to the Alabama version by the legislature in 1953. While this is the first time this Court has considered whether a URESA decree can modify a prior order, other jurisdictions adopting the uniform act have interpreted this provision as authorizing the responding state to grant a new order. See Howard v. Howard, 191 So.2d 528 (Miss.1966); see also Ainbender v. Ainbender, 344 A.2d 263 (Del.Super.Ct.1975); see generally Note, Uniform Reciprocal Enforcement of Support Act, 20 Washburn L.J. 409, 419 (1981). In Howard v. Howard, the Mississippi Supreme Court held:

“.. . [T]he original order of support rendered in the court of the initiating state is unaffected by the orders subsequently rendered in another state under the Uniform Act, except to the extent that payments made pursuant to one must be credited against payments accruing or accrued under the other for the same period or periods.”

191 So.2d at 531. Because § 30-4-93(b) was adopted by the legislature as a part of the uniform act, we find the interpretation of this provision by our counterparts in other states as persuasive authority for this Court here. Cf. Ex parte Huguley Water System, 282 Ala. 633, 638, 213 So.2d 799 (1968); Water Works Gas & Sewer Bd. of City of Oneonta, Inc. v. P. A. Buchanan Contracting Co., 294 Ala. 402, 405, 318 So.2d 267 (1975). Hence, the decree by the district court terminating periodic alimony payments to appellant constitutes a new order, though the original order granted by the Georgia court remains valid. See Murphy v. Murphy, 395 So.2d 1047, 1049 (Ala.Civ.App.1981).

The fact that the state of Georgia is not the “initiating state” here and South Carolina is, does not affect Alabama’s authority as “responding state” to grant a new order in a URESA proceeding. An “initiating state” can be “[a]ny state in which ... [a URESA proceeding] ... is commenced.” § 30-4-81(2). Therefore, we do not interpret URESA to require the “initiating state” to be the same state which issued the original support order. Such an interpretation would be too constricting in view of the fact this act is to be liberally construed to achieve its object. O’Hara v. Floyd, 47 Ala.App. 619, 621, 259 So.2d 673 (1972).

II

Counsel for Mr. O’Neill contends that a claim for support and a counterclaim seeking modification of an original divorce decree in a URESA proceeding can be treated by the district court as components of a single numbered action and tried together, citing Ashworth v. Ashworth, 371 So.2d 924 (Ala.Civ.App.1979). We agree; therefore, the decision of the Court of Civil Appeals is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Albert George McLENDON v. Jenette McLENDON.
    Civ. 3135.
    Court of Civil Appeals of Alabama.
    July 7, 1982.
    Rehearing Denied Aug. 4, 1982.
    Certiorari Denied, Oct. 22, 1982 Alabama Supreme Court 81-990.

      John M. Tyson of Tyson & Tyson, Mobile, for appellant.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellee.
   HOLMES, Judge.

This is an alimony modification case.

Pursuant to a provision in the divorce decree, the wife petitioned the trial court to fix the amount of alimony payments. After an ore tenus hearing, the trial court ordered the husband to pay the wife $350 per month as alimony. Upon motion by the husband and after an ore tenus hearing, the trial court subsequently reduced the amount to $200 per month. The husband appeals and this court affirms.

The parties to this action were divorced in 1979. The divorce decree, which was entered pursuant to an agreement between the parties, did not provide for the immediate payment of alimony. It did provide, however, the following:

6. That after the children finish college in the event the parties are unable to agree on a proper amount of alimony for the Plaintiff then a Reference shall be held at the request of either party to fix a proper amount of alimony to be paid by the Defendant to the Plaintiff.

In April, 1981, the wife instituted a proceeding against the husband seeking to hold him in contempt for failure to abide by certain provisions of the decree that are not pertinent to the issues presently before this court. The husband answered by denying that he was in contempt of the decree and filed a cross-motion seeking to hold the wife in contempt.

At some point after these motions were filed a hearing was held. During this hearing the wife apparently made an oral motion to fix alimony. The husband answered that the wife was not entitled to receive alimony and, furthermore, that he had agreed to the provision of the divorce decree providing for alimony only because he had been led by the wife’s attorney to believe that alimony payments were mandatory. The husband was unrepresented during the divorce proceeding.

On August 26, 1981, a hearing was held. Both parties were represented at the hearing. After the hearing the trial court entered an order requiring the husband to pay the wife $350 per month as alimony. The trial court also awarded the wife’s attorney $150 as an attorney’s fee.

Subsequent to the August 26 order, the husband filed a motion for j.n.o.v. or in the alternative for a new trial. As grounds for such motion the husband asserted generally that he had been misled by the wife’s attorney to believe that alimony payments were mandatory. The husband later amended his motion to state that he had had to resign his job with the Postal Service due to medical problems.

The trial court, after considering the amended motion along with arguments of counsel, chose to treat the motion as a motion to modify. A hearing on the motion to modify was held on December 16, 1981. After the hearing the trial court reduced the monthly alimony payments to $200 per month. The trial court again awarded the wife’s attorney $150 as an attorney’s fee. This appeal followed.

A lengthy review of the facts of this ease is not necessary. Suffice it to say that the parties in this case are middle aged and were divorced after twenty-four years of marriage. Two children were born of this marriage, both of whom are now adults.

At the time of the August 26 hearing, both of the parties were employed. The wife was employed with the United States Army Corps of Engineers as a clerk-stenographer. Her gross annual salary was $12,-423. Her net monthly pay was $719. Since the divorce the wife has enrolled in college and is pursuing a degree in personnel management. The wife has also borrowed money to purchase the husband’s equity in the marital home.

Until October, 1981, the husband was employed with the United States Postal Service. He also had spent in excess of twenty years in the Air Force and, consequently, received military retirement pay. His total income from both of these sources for the year 1980 was in excess of $30,000. In October, 1981, the husband quit his Postal Service job for medical reasons. The husband’s sole source of income at present is his military retirement pay. The husband nets approximately $820 per month from that source.

On appeal the husband raises three issues. The husband first contends that the trial court did not have jurisdiction to enter an award of periodic alimony. The husband next contends that if the court had jurisdiction to enter an award of periodic alimony, the court abused its discretion in requiring the husband to pay periodic alimony and also in awarding an attorney’s fee. The husband finally contends that the court erred in refusing to allow him to testify as to what transpired in the wife’s attorney’s office when the provisions of the divorce decree were agreed upon. Finding no merit in any of these contentions, this court affirms.

Regarding the first issue, the husband apparently contends that because no periodic alimony was awarded at the time of the divorce, the trial court thereby lost jurisdiction to award periodic alimony at a later time. The law in Alabama is that if a judgment of divorce is entered without a grant of alimony, the power to grant is lost unless the trial court reserves the right for future consideration. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980); Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). The provision of the divorce decree quoted above reveals that the trial court reserved the right to award periodic alimony at a later time. Since the trial court reserved this right it had jurisdiction to make an award of periodic alimony at a later date.

This court also holds that the trial court did not abuse its discretion in making an award of periodic alimony. The factors to be considered by the trial court in awarding periodic alimony have been stated on numerous occasions. E.g., Wikle v. Wikle, 390 So.2d 297 (Ala.Civ.App.1980); Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979). Among the factors to be considered are the financial circumstances of the parties, their future prospects, their standard of living during the marriage and the length of the marriage.

The record reveals that as of December, 1981, the incomes of the husband and wife were roughly equivalent with the husband receiving a net monthly income of approximately $820 and the wife receiving a net monthly income of approximately $719. From his income the husband must meet his everyday living expenses as well as maintain his life insurance program for the benefit of the wife. The husband apparently has no other major expenses. The wife, on the other hand, must pay $220 per month on a debt incurred by her to purchase the husband’s equity in the home. Additionally, the wife is attending college and must pay the expenses concomitant with attending college. The foregoing expenses are, of course, in addition to her everyday living expenses. We also note that for a number of years prior to the divorce the husband was receiving a salary from the Postal Service in addition to his military retirement. The husband’s total income for 1980 from both of these sources was in excess of $30,-000. Considering the present financial circumstances of the parties, their standard of living during the marriage, the twenty-four year length of the marriage, and the husband’s earning capacity, an award of $200 per month to the wife as periodic alimony is not such an abuse of discretion as to require reversal.

Likewise, we find no abuse of discretion in awarding an attorney’s fee to the wife’s attorney. The court’s ability to award alimony includes the ability to award attorneys’ fees. Hodson v. Hodson, 276 Ala. 227, 160 So .2d 637 (1964); Haynes v. Haynes, 360 So.2d 1016 (Ala.Civ.App.1978). Since the court retains the right to modify provisions for periodic alimony, the court also retains the right to award an attorney’s fee under the proper circumstances. Whittle v. Whittle, 272 Ala. 32, 128 So.2d 92 (1961). We find nothing improper about awarding an attorney’s fee in this case.

The final issue raised by the husband regards certain evidentiary rulings made by the trial court; specifically, the trial court’s failure to allow the husband to introduce evidence as to what transpired in the wife’s attorney’s office prior to his agreeing to the provisions of the divorce decree. The husband contends that this evidence should have been admitted as showing that he was induced to enter into the divorce agreement only after being given improper advice that alimony was necessary.

Essentially, the husband is attacking the final judgment of divorce on the basis of fraud. The divorce decree was rendered on October 31, 1979. The husband did not seek relief from the decree on the basis of fraud until August 26,1981 when he filed in open court his answer to the wife’s oral motion to fix alimony. A request for relief from a final judgment based upon fraud must be made within four months after the judgment is taken. Rule 60(b), ARCP. The request for relief before us in this case clearly came more than four months after the divorce was taken; consequently, the trial court did not err in refusing to allow the husband to introduce evidence regarding fraud. Such testimony would have been irrelevant.

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

This case is due to be affirmed.

AFFIRMED.

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


text:
    Sammy L. CRAWFORD v. RAY & PEARMAN LINCOLN MERCURY.
    Civ. 3296.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1982.
    Rehearing Denied Sept. 15, 1982.

      Fulton S. Hamilton of Simpson & Hamilton, Huntsville, for appellant.
    S. Dagnal Rowe of Cleary, Lee, Evans, Rowe & Bailey, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Mr. Crawford’s appeal to the circuit court from the district court’s civil judgment against him was dismissed and he duly appealed to this court. We affirm.

After a trial, the district court rendered its judgment by means of a separate written document dated October 20, 1981. It was in favor of Ray & Pearman Lincoln-Mercury, Inc. (Ray & Pearman) and against Mr. Crawford in the amount of $2,385.80. The date of the filing of the judgment with the clerk of the district court is not available; however, upon the case action summary, the following notation was made by the clerk: “10-20-81 Judgment entered in favor of Plaintiff and against Defendant in the amount of $2,385.80, plus court cost. (Judgment in file)”

According to the case action summary, copies of the judgment were distributed to the parties on October 22. Mr. Crawford’s notice of appeal from that judgment to the circuit court was filed on November 4. Ray & Pearman moved to dismiss the appeal as having been filed one day too late and such motion was granted by the circuit court.

Learned counsel for Mr. Crawford very promptly filed a motion that the circuit court reconsider its judgment of dismissal. That motion was based upon an affidavit of the deputy clerk of the district court who essentially stated therein that the district court’s judgment “was received, recorded on the civil action docket sheet located in the case file and distributed to the parties by my office on the same day, October 22, 1981.” However, the same deputy clerk gave another affidavit at the instance of Ray & Pearman whereby she stated that the first affidavit did not accurately reflect her testimony on several points, and she therein further swore as follows:

“It is correct that the general policy of my office is to enter judgments on the civil action docket sheet and distribute copies to the concerned parties as quickly as possible. However, it is not possible for me to state with any degree of certainty the exact date a written judgment is received from the judge by my office, and there is no indication placed in the file as to when the judgment is received by my office. There are occasionally instances when a judgment will not be entered and distributed on the same date it is received by my office from the judge.
“It is therefore not possible for me or anyone in my office to state that the judgment in Civil Action No. DV81-1177 was received from the judge’s secretary on October 22, 1981. The only information reflected on the civil action summary is that on October 20, 1981 judgment was entered in favor of the plaintiff and on October 22, 1981 copies of the judgment were distributed to the parties. Beyond that information, there is no evidence as to when the judgment was actually received by my office from Judge Lutz.”

The circuit court overruled Mr. Crawford’s motion to reconsider.

The judgment was rendered by the district court on October 20, 1981. When the separate judgment was delivered to the district clerk, the proper filing officer, it was then automatically filed regardless of whether or not it was dated and marked filed in writing, by stamp or otherwise by that court official. Covington Bros Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940); Ex parte State ex rel. Breitling, 221 Ala. 398, 128 So. 788 (1930); A.R.Civ.P., rule 5(e); 16 Ala. Digest, Pleading, Key No. 335. “Notation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order....” A.R.Civ.P., rule 58(c). A judgment must be rendered and entered before it is effective. Lacks v. Stribling, 406 So.2d 926 (Ala.Civ.App.), cert. denied, 406 So.2d 932 (Ala.1981). Here, the rendition date was October 20 and the only record or unconflicting evidence as to its entry is the October 20, 1981 notation upon the case action summary which has been previously copied herein. Because of the present state of the record and since the filing date of the judgment by the district court clerk is not of record, it will be presumed to have been filed with the district clerk on the date of its rendition by the district court. Because of such presumption of filing and because of the entry upon the case action summary of October 20, the date of the entry of the judgment was October 20, the same day that it was rendered. Thus, the time for the taking of an appeal from that district court judgment commenced running on October 20, 1981. The two day delay by the clerk in providing notice to the parties of the judgment does not affect the time to appeal. A.R.Civ.P., rule 77(d). The code, by section 12-12-70(a), provides that an appeal from a final judgment of the district court in a civil case is perfected by filing notice of appeal in the district court “within 14 days from the date of the judgment....” That means that the notice must be filed within fourteen days from the date of the entry of the judgment. The entry of the judgment was October 20 and the last day within which an appeal could be timely taken was November 3. The appeal of Mr. Crawford was not filed until November 4, which was one day too late.

An appeal is not a matter of vested right but it exists by the grace of either a statute or of a supreme court rule. An appeal must be perfected pursuant to the time and manner therein prescribed, and, if such requirements are not complied with, the appeal must be dismissed. Moutry v. State, 359 So.2d 388 (Ala.Civ.App.1978). Since the appeal from the district court’s civil judgment was not timely taken, the circuit court properly dismissed Mr. Crawford’s appeal to that court. Because the evidence was inadequate to support his motion to reconsider, the circuit court also correctly overruled that motion.

We must affirm.

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 section 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:
    Theresa Ann Sims MEDLIN v. Gary Junior SIMS.
    Civ. 3195.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    Rehearing Denied Sept. 29, 1982.
    William W. Tally, Scottsboro, for appellant.
    Ronald A. Drummond and Stephen M. Kennamer, Scottsboro, for appellee.
   BRADLEY, Judge.

This is a child custody case.

The parties to this proceeding were divorced in January 1981. The mother was awarded custody of the two minor children, ages two and four. The father was given visitation privileges, and the mother posted a bond to assure that his privileges would be honored. Subsequently, the father filed a petition for modification based on material change in circumstances. In seeking custody of the children, he alleged that the mother did not properly care for them, that she did not spend sufficient time with them, and that she frequently left them with a babysitter or in a day care center. He also claimed that her behavior was erratic and that she had abused the children. After a hearing, the father was awarded custody.

In a child custody modification action, the moving party has the burden of proving a material change in circumstances which adversely affects the best interests and welfare of the child. The trial court which hears the evidence ore tenus is in the best position to ascertain whether there has been a change in circumstances which requires a custodial change, and it will not be reversed on appeal except for plain and palpable abuse of discretion. Murphy v. Quinn, 402 So.2d 1033 (Ala.Civ.App.1981).

The trial court in its custody order noted that the mother had cohabited with a man whom she later married. He further expressed concern that this marriage had not lasted for a sufficient length of time to determine whether it would work out and whether her new husband would be compatible with the children.

In reviewing the record, we find that there is evidence, although sometimes contradictory in nature, to support a finding that the mother would leave the children during the evenings and on weekends. There is also evidence, although again contradictory, to support a conclusion that the mother had severely disciplined her four-year-old daughter on several occasions and that such acts followed a pattern which had begun during her marriage to the children’s father.

By the mother’s own testimony and other evidence on the record, she had cohabited with her present husband during a period of time before his divorce had become final. In Junkin v. Junkin, 332 So.2d 392 (Ala.Civ.App.1976), we stated:

“The evidence in this case is sufficient for the court to find that the mother places her entertainment and social pursuits ahead of her regard for the child. The question is not the presence or absence of sexual activity in her social life; rather, the trial court must determine whether the emphasis on social life, promiscuous or chaste, detracts from a stable, worthwhile home environment for the child.”

We believe this rationale applies with equal force to the evidence in the case at bar. Moreover, we are well aware of the requirement that a material change in circumstances must be shown to warrant a change in the custody of a child. The trial court found that the burden had been met by the father, and we are not prepared to say that the court is plainly wrong.

AFFIRMED.

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


text:
    Carlton S. PETTY v. Willie J. STRICKLAND. Carlton S. PETTY v. Renzer STRICKLAND.
    Civ. 3004, Civ. 3004-A.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1982.

      L. Merrill Shirley, Elba, for appellant.
    No brief for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal involves the vacating of two consent judgments which dismissed separate civil actions. The cases have been consolidated for the purposes of appeal.

By separate civil actions, Mr. and Mrs. Strickland each sued the defendant, Mr. Petty, for injuries or damages proximately arising out of the negligent or wanton driving of the defendant’s motor vehicle. On the trial date, the attorneys representing each party by a joint written motion requested that the trial court dismiss each of the cases with prejudice, “the same being settled between the parties.” Accordingly, on August 17, 1981, the circuit court entered a judgment in each case dismissing it with prejudice.

Fourteen days later each plaintiff filed a separate motion, which we construe to fall under rule 59(e), A.R.Civ.P., to reinstate each case for a jury trial. One of the grounds of each motion was that, when the August 17 judgments were entered, the plaintiffs were not fully aware of the contents of any release which they would be required to sign as part of the settlement and that, after carefully reviewing the release, they did not feel that they could execute it in all good conscience.

After hearing Mr. Strickland testify, the trial court, on September 23, 1981, in “the interest of merit and substance” ordered that the August 17 separate judgments dismissing the two cases be vacated and that the two civil actions be restored to the jury docket for disposition. The defendant timely appealed both cases. We affirm.

The trial court heard the evidence offered at the motion hearing. Under the “ore tenus” rule, the September 23 judgments are presumed to be correct on appeal and may not be disturbed by us if there was legally supportive evidence thereof, unless the decision of the trial court was palpably wrong. Grigsby v. Liles, 274 Ala. 67, 147 So.2d 846 (1962); Nero v. Material Sales Co., Inc., 340 So.2d 454 (Ala.Civ.App.1976). In substance, it was admitted by the Strick-lands’ motions that, as a part of the settlement, they were each required to execute a release. It is a fair and reasonable inference from the evidence, since it is what was actually done, that the check for the settlement proceeds and the release were to be prepared at a later time or date and forwarded to the Stricklands’ attorney, who, in turn, would present them to his clients. The thorn in the flesh of this case is that the aspect of the settlement as to the provisions to be incorporated in the release required the actual or implied agreement of the parties, which agreement had to be effected after the judgments of dismissal had already been entered. Mr. Strickland testified as to their dissatisfaction with the provisions of the release in no uncertain terms. The fact that no subsequent agreement was reached as to the contents of the release was adequate proof which sustained, supported and upheld the actions of the trial court in vacating the dismissal judgments.

“We are of opinion and hold that a court of general jurisdiction has power, in the exercise of a sound discretion, to vacate a consent judgment on motion duly made within thirty days after the judgment is rendered, and that when reviewed, the action of court in granting or denying the motion will not be disturbed except for abuse of discretion.”

Grigsby v. Liles, supra, 274 Ala. at 72, 147 So.2d at 851. We have expended much time and effort in the research of Alabama cases whereby the trial court was reversed on appeal as to its ruling in either granting or denying a timely motion to set aside a consent judgment. Insofar as we can ascertain, such a reversal has only occurred twice. In Senn v. Joseph, 106 Ala. 454, 17 So. 543 (1895), the supreme court ascertained that the circuit court erred in refusing to set aside the judgment rendered upon the written agreement of counsel because the settlement was made by an attorney without the authority of his client. The other case was a decision of the court of appeals in Grigsby v. Liles, 41 Ala.App. 627, 147 So.2d 836 (1961), but the supreme court reversed the court of appeals in Grigsby v. Liles, supra, and, after remand, the court of appeals ascertained no abuse of discretion on behalf of the trial judge and affirmed the trial court.

During the thirty day period after the entry of a judgment, a trial court has a great judicial discretion which it may exercise over its final judgments. No abuse of discretion here occurred. The fact that a trial court could have lawfully reached a contrary result does not, in and of itself, mean that it abused its discretion in rendering its judgment. The trial court was not clearly and palpably wrong in this case. We are required by the foregoing rules of review to affirm the September 23, 1981 judgment of the circuit court as to both cases.

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 section 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.


text:
    ALPHA COAL COMPANY, INC. v. NATIONAL CEMENT COMPANY.
    Civ. 3177.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1982.

      John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
    John D. Clements and William F. Murray, Jr. of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   HOLMES, Judge.

This is a breach of contract case.

Plaintiff, Alpha Coal Company, brought an action against defendant, National Cement Company, for breach of contract. The ease was submitted to a jury which determined the issues in favor of the plaintiff and awarded it damages. Subsequent to the jury verdict the plaintiff made a motion for a new trial on the basis of the inadequacy of the damages. The motion was denied and the plaintiff appeals to this court. We reverse.

On February 2, 1977, Alpha Coal Company entered into a contract with National Cement Company whereby, for a period of three years, Alpha was to furnish National with the coal it required to fuel its operation. The contract set out the approximate daily tonnage of coal that National would require, as well as the mine from which the coal was to be delivered and the specifications the coal must meet. The price term of the contract was as follows:

“Price to be $29.50, delivered Ragland, per net ton of 2,000 pounds as received based on National’s scale weight. Escalation of price to be based on direct pass-through of increase in price of fuel and explosives and increase in UMW royalty, if any, to be reviewed quarterly.”

Alpha made deliveries to National through August 29, 1977. On September 21, 1977, National sent a letter to Alpha cancelling the contract. The reason for the cancellation, as stated in the letter, was the failure of the coal being delivered by Alpha to comply with the specifications and economic terms of the contract.

On September 5, 1978, Alpha instituted this action for breach of contract against National. The complaint alleged that National had breached the contract on September 21, 1977, by failing to purchase coal from Alpha as required by the contract. Alpha demanded judgment against the defendant in the amount of $250,000. National answered by generally denying that it had breached the contract and affirmatively contended that Alpha had breached the contract.

The case was tried before a jury on December 11 and 12, 1981. After considering the evidence, the jury found the issues in favor of the plaintiff, Alpha, and assessed plaintiff’s damages at $4,875. Plaintiff appealed to this court following the denial of its motion for a new trial.

The basic issue that this court must decide on appeal is whether the learned trial judge erred in not granting plaintiff’s motion for a new trial. The plaintiff contends that the trial court erred in not granting a new trial because (1) the damage award was contrary to the evidence in the case and (2) the damage award was not responsive to the issues tried and the instructions given.

Because National does not appeal from the jury’s determination that it breached the contract, the only evidence that is pertinent to the issues present is the evidence concerning the damage that Alpha suffered because of National’s breach. This evidence can be briefly summarized as follows: As stated earlier, at the time the contract was entered into National was to pay Alpha $29.50 per ton for the coal delivered to it. The cost to Alpha for procuring the coal and delivering it to National was $28.00 per ton. Thus, Alpha made a profit of $1.50 per ton.

At some point after the parties entered into this contract fuel costs and UMW royalties increased. Consequently, the price Alpha paid for procuring and delivering the coal increased to $30.00 per ton. In April, 1977, with the consent of National’s representatives, Alpha increased the price National was to pay for the coal delivered to it to $31.50 per ton. Again, Alpha was making a profit of $1.50 per ton.

In August, 1977, the cost to Alpha for procuring and delivering the coal increased to $32 per ton. The record does not specifically reveal the reason for the cost increase though the increase did come at a time of unrest in the coal industry and the increase was apparently due to demands made by the miners. Without the consent of National’s representatives, Alpha increased the price National was to pay to $33.50 per ton. National paid the increased price under protest until the shipments ceased on August 29, 1977.

Alpha contends that the foregoing evidence establishes that it was the intention of the parties to this contract that Alpha receive a profit of $1.50 per ton of coal that it delivered to National. Alpha introduced evidence that, from September, 1977, until February, 1980, when the contract was to expire, National received approximately 102,163 tons of coal. According to Alpha, at a profit per ton of $1.50, this would mean that Alpha lost in excess of $150,000 of profit due to National’s breach.

National, through able counsel, contends however that the foregoing evidence did not establish that Alpha was to make a profit of $1.50 per ton. National stresses that at no place does the contract guarantee Alpha a profit of any amount and that the parties did not intend to guarantee Alpha a profit. National further contends that, because no one from National agreed to the August, 1977, price increase to $33.50, Alpha could not collect that amount under the terms of the contract and, consequently, Alpha would have been operating at a loss.

The trial court instructed the jury that if they determined that the plaintiff was entitled to a recovery, the plaintiff was only entitled to recover such profits as the plaintiff would have made had the defendant not cancelled the contract. Presumably, with these instructions in mind, the jury returned a verdict for the plaintiff and awarded damages of $4,875. Handwritten on the jury verdict was the following: “250 tons per day September 8, 1977 through September 21, 1977. 13 days 6% interest.”

It is firmly established in this state that on appeal, all favorable presumptions are afforded the correctness of jury verdicts and that such verdicts will not be disturbed unless clearly divergent from the evidence and the law. Baswell v. Wilks, 57 Ala.App. 98, 326 So.2d 292 (1976). This presumption is further strengthened where the trial court refuses to grant a new trial. Birmingham Southern R. Co. v. Ball, 271 Ala. 563, 126 So.2d 206 (1961). It is also firmly established that the jury must return a verdict that is supported by the evidence and is responsive to the issues and instructions. Posey v. Myers, 370 So.2d 986 (Ala.1979); Booth v. S. and H. Laboratories, Inc., 39 Ala.App. 615, 105 So.2d 879 (1958).

Considering both of these principles, this court concludes that the verdict returned by the jury in the instant case is erroneous and that the trial court erred in refusing to grant a new trial.

As indicated above, the plaintiff contends that the damage award conferred by the jury was contrary to the evidence. The verdict must be supported by the evidence and the judge’s instructions on the law. The jury is not free to return an arbitrary or improper verdict based on their personal feelings concerning the merits or contentions of one party or the other. Their reasoning must be based on the judge’s instructions on the law and applied to the evidence presented. The jury is not free to disregard the judge’s instructions to them. Booth v. S. and H. Laboratories, Inc., supra.

Our review of the record leads to the conclusion that the jury disregarded the judge’s instructions concerning the computation of damages. They were instructed to determine the damages caused by the breach of contract based on the profits plaintiff would have made had the breach not occurred. The judge charged the jury as follows:

“The law, I feel, only requires that the plaintiff, if you feel that the plaintiff is entitled to recover, that he is only entitled to recover such profits as he would have made had the defendant not can-celled the contract. You base that strictly on the evidence that you heard during the course of this trial.”

If the jury had believed the evidence regarding damages most favorable to the plaintiff, they could have found that the plaintiff would have earned so much on the ton. If, however, the jury had believed the evidence regarding damages more favorable to the defendant, they could have returned only nominal damages at best. Instead, the jury returned with the damages assessed at $4,875. And while it may be surplusage, the fact remains that the jury wrote on the verdict that they based their figure on the period from September 8, 1977 through September 21, 1977, a period of time that was not in contention by either party. It is clear from the above that the jury disregarded the evidence and the instructions presented to them.

This situation is very similar to a line of cases best represented by In re Farmers and Ginners Cotton Oil Co. v. Reliance Insurance Co., 341 So.2d 147 (Ala.1976); Maxwell Planting Co. v. A. P. Loveman and Co., 212 Ala. 228, 102 So. 45 (1924).

In Maxwell Planting, the distinguishing feature from the instant case is the fact that a trial judge heard the case without a jury. However, the principle of law set forth in the opinion applies with equal, if not greater, force to a jury verdict. The disputed issue concerned the price that was to be paid for cotton on call in a contract for sale. Both parties presented conflicting evidence pertaining to the price. The trial court refused to accept either party’s contention and awarded a sum that neither had contended. The supreme court, in reversing the trial court’s judgment, stated that the evidence and legal principles involved “demand a finding of the basis of value in keeping with the contention of one side or the other. There seems to be no substantial ground for a third position in the matter.” 212 Ala. at 232, 102 So. at 48.

Farmers and Ginners Cotton Oil Co. also held that where a jury verdict cannot be justified on any reasonable construction of the evidence, it should be set aside.

In view of the above, the jury verdict cannot stand and the trial court’s denial of the motion for new trial should be reversed. In view of the above, other issues present are pretermitted.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Dennis DAIS v. STATE of Alabama, ex rel. Mamie DAVIS.
    Civ. 3301.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1982.

      George J. Moore of Moore & Layden, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is a paternity case.

This court notes at the outset that only the clerk’s record is before this court.

In October of 1980, the appellant was determined by the Juvenile Division of the 13th Judicial Circuit to be the father of a minor child. The minor child was born in 1973. This action of the circuit court was apparently taken after the appellant admitted that he was the father. In May of 1981, the appellant was found to be in contempt for failure to pay “child support.” The appellant, again apparently, purged himself of contempt by paying some of the required child support.

In September of 1981, the appellant filed what is designated a “Motion for Rehearing.” Therein it was alleged that certain constitutional guarantees of appellant were violated. Additionally, it was alleged that the original paternity petition was time barred.

The trial court denied the September, 1981, “Motion for Rehearing” and appellant, through able counsel, appeals. The contentions on appeal are the same as alleged in the September, 1981, petition.

As indicated, the record before this court consists only of the clerk’s record. Quite frankly, in view of what this court has before it, we cannot tell what transpired in the trial court regarding the alleged errors. There is, simply stated, no evidence upon which to predicate the alleged errors.

This court is unable to consider that which the record does not proffer. See 2 Ala. Digest, Appeal & Error, Key 712.

We cannot assume error; the burden is on appellant to show error in the record. 2A Ala. Digest, Appeal & Error, Key 901. An appellate court cannot presume the existence of facts as to which the record is silent and make it a ground for reversal. Fancher v. Fancher, 262 Ala. 489, 80 So.2d 248 (1955).

In view of the above, this court has no alternative but to affirm.

AFFIRMED.

All the Judges concur.


text:
    Julius Dale BLANKENSHIP v. Peggy Ann BLANKENSHIP.
    Civ. 3326.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1982.

      George K. Elbrecht, Monroeville, for appellant.
    Windell C. Owens, Monroeville, for appel-lee.
   HOLMES, Judge.

The Circuit Court of Monroe County found appellant-husband to be in contempt for failure to comply with the provisions of the divorce decree. The husband by writ of certiorari appeals to this court and we affirm.

The husband and wife were divorced on September 3, 1980. At that time an agreement was incorporated into the decree which stipulated that the husband would convey the home to the wife and make payments on the second mortgage on the home; that he would pay $600 per month in support and alimony plus $200 a month for each of the two then minor children.

The husband has made the alimony and support payments, but ceased making the mortgage payments. As a result, foreclosure proceedings were held on March 3, 1981, and the wife was informed it will require $40,100 to redeem the house from foreclosure.

The wife via contempt proceedings sought an order requiring the husband to pay the obligation or otherwise make arrangements to “save” the house.

After an ore tenus hearing, the trial court held the divorce decree’s provision that the husband pay the second mortgage was “related to and was part of a provision for the sustenance, maintenance and support of the wife,” and that the husband was in contempt for his failure to make adequate mortgage payments in accordance with the divorce decree. The order further provided that the husband could purge himself of contempt by paying $300 a month to the wife to be applied toward redeeming the home from foreclosure.

The husband appeals, contending the trial court’s finding of contempt for his nonpayment on the mortgage according to the terms of the decree was error. Specifically, the husband contends he does not have the means to pay the required $300.

The dispositive issue on appeal is whether there was any evidence to support the trial court’s determination that the husband had the means to make the required payment. We find there was such evidence and affirm.

We note at the onset that the court’s contempt power is a common method of enforcing decrees for alimony and support. E.g., Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.), cert. denied, 406 So.2d 943 (Ala.1981). And the scope of review in contempt cases does not extend to the weight and sufficiency of the evidence but only to the question of whether any evidence supports the trial court’s decree. Thomas v. Thomas, supra.

As a threshold matter, the husband through able counsel argues that payment of the mortgage was payment on a debt, not payment for the maintenance and support of his ex-wife and children. He relies on Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968), to support his contention that he cannot be held in contempt for failure to pay a “debt” as opposed to “alimony” since section 20 of the Alabama Constitution provides “no person shall be imprisoned for debt.” In Thompson v. Thompson, supra, at 814, the supreme court held that the husband could not be held in contempt for his failure to comply with the divorce decree when payments were “solely to the payment of a debt as distinguished from payment for sustenance or support of his former wife.” But the “debt” in the Thompson case was the wife’s personal obligation incurred from a joint business venture and the payments were not made for necessities. Thompson v. Thompson, supra. The debt at issue in Thompson was clearly a business debt, and not domestic in nature.

In the instant case, the payment at issue is not a business debt, but more in the order of “sustenance and support.” See Thompson v. Thompson, supra.

More on point is this court’s holding in Thomas v. Thomas, supra. In Thomas, the husband was held in contempt when his failure to make the mortgage payments in accordance with the divorce decree led to pending foreclosure proceedings. In Thomas, we held the mortgage payments on the wife’s residence were “in the nature of alimony,” not “debt.” Therefore, the court was permitted to use its contempt power to coerce payment. Thomas v. Thomas, supra. Put another way, there is evidence to support the trial court’s conclusion in the instant case that the mortgage payments were for support of the wife and home, and therefore no error.

As indicated, the primary issue on this appeal is whether there is any evidence to support the trial court’s finding of contempt. As previously stated, the scope of review in contempt cases is limited to questions of law and does not extend to the weight and sufficiency of the evidence but only to the question of whether there is any evidence to support the trial court’s decree. Thomas v. Thomas, supra.

On the question of ability to pay, inability to comply, “if proven to the court’s satisfaction, will avoid a finding of contempt.” (Emphasis supplied.) Cooper v. Cooper, 401 So.2d 99, 101 (Ala.Civ.App.1981).

In the instant case, appellant has a gross income of $4,000 a month with a take-home income of $2,553. He is currently making alimony payments in the amount of $600 a month, plus $200 a month in child support payments (one child having reached majority). The trial court has ordered him to pay $300 a month to purge himself of the contempt. Such monthly payments of $1,100 still leave the husband a disposable monthly income of $1,453, thereby providing the husband with the ability to pay.

This court acknowledges the husband’s indebtedness to the bank of in excess of $90,000. But appellant was making no payment on this debt at the time of trial because, by his own testimony, “it would be a futile effort.” We also acknowledge the appellant owes between $35,000 and $40,000 in back taxes. But at the time 'of the trial, the exact amount of that debt was undetermined, and no plans or provisions to pay it were presented at trial.

In view of the above, the trial court may have concluded that the husband had the means at this time to purge himself of the finding of contempt. Stated differently, the trial court could have properly determined that the aforesaid debts did not affect the husband’s ability to make the necessary payments to the wife. This is so because, by his own admission, he was not paying anything on these debts.

In view of the above, the case is due to be affirmed.

AFFIRMED.

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


text:
    Elijah BARNES and Christiana Barnes v. W. H. BARNHART and Houston Barnhart.
    Civ. 3266.
    Court of Civil Appeals of Alabama.
    Sept. 22, 1982.
    Lewis B. Hickman, Jr., and J. Bernard Brannan, Jr., Montgomery, for appellants.
    Edward B. Raymon of Raymon, Nathan-son & Raymon, Tuskegee, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a conversion case. After a nonju-ry trial before the court, a monetary judgment was rendered for the plaintiffs. The defendants’ counterclaim was denied. The defendants, the Barneses, appeal. We affirm.

In viewing the record with the attendant presumptions accorded to the trial court’s action, the following is revealed. On May 17, 1979 the Barneses entered into a handwritten real estate sales agreement with Mr. W. H. Barnhart to purchase forty-two acres of land upon which was situated a home, store building, barn, and possibly other structures. That agreement provided that “Seller will not warrant nothing [sic] but everything will be working,” and it was further stated that “Seller needs 60 days to move out. Store will be available at time of closing.” The next day the parties signed a typewritten contract which had been prepared by a real estate agent. It listed in an exhibit thereto certain items of personal property which were to remain on the real estate and it stated, “DEBRIS AND ANY PARTS OF CARS, EVERYTHING WILL BE CLEARED FROM PROPERTY WHEN IT IS SOLD.” The typed agreement contained a provision that “This sale shall be [consummated] within 60 days.”

The closing of the real estate transaction occurred on August 1, 1979. Prior to that date the plaintiffs, W. H. Barnhart and his son Houston Barnhart, had removed from the forty-two acres approximately one hundred and fifty junk cars and other items belonging to them. It was impossible to move the personal property on the day of the land closing. They were still in the process of moving their items, other than those listed in the agreement which were to remain on the farm, when Mr. Barnes on September 28, 1979 changed the lock on the gate and informed Mr. W. H. Barnhart not to remove any more of the property. Various items had been moved by W. H. Barn-hart during the entire week prior to September 28.

Mr. Barnes testified that, as to time, neither side pushed the other. He knew that Mr. W. H. Barnhart desired to remove items that were still upon the property and that Mr. Barnhart was engaged in so doing when he stopped him from coming back.

After September 28, nothing else was taken from the farm by the Barnharts. Before instituting the conversion suit, the Barnharts’ attorney requested that the Barneses allow the Barnharts to remove the rest of their property from the farm, but that demand was denied by the Barneses. On September 28 items of personalty belonging to the plaintiffs still remained on the property, and, at the time of the trial, some of it was still there but some items were no longer located thereon.

Each of the issues raised by the Barneses on appeal will be separately discussed.

I.

The defendants contend that the evidence was inadequate to prove a wrongful possession by them of the plaintiffs’ property.

“In order for there to be a conversion it must appear that a wrongful taking, detention or an illegal assumption of ownership or use of another’s property has taken place. Ott v. Fox, 362 So.2d 836 (Ala.1978). Where the original taker acquires possession of the property rightfully and has neither asserted legal title to it nor exercised dominion over it inconsistent with the rights of the owner, ordinarily a demand and refusal to deliver the property are necessary. Shriner v. Meyer, 171 Ala. 112, 55 So. 156 (1911); Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968).
“Assuming there was no wrongful taking (the tractor being in Southeastern’s possession for repair or return), the conversion could have arisen by the exercise of dominion over the tractor by Southeastern in exclusion or defiance of Tarpley’s right to possession. Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855; cert. denied, 286 Ala. 741, 237 So.2d 861 (1970). In that event no demand would be necessary.
“The evidence regarding the confrontation between Tarpley and Southeastern at the time the ‘350’ was returned is revealing. That evidence, particularly Tarpley’s testimony that Southeastern ‘took my cat (tractor),’ did not return it or his money and ‘run me off’ at a time when the jury found he had a right to possession, was sufficient for the jury to infer exercise of dominion by Southeastern over the ‘350’ in exclusion or defiance of Tarpley’s rights. If, after allowing all reasonable presumptions and inferences as to its correctness, it is not clear that the verdict is erroneous or unjust, we cannot reverse a case on the grounds of insufficiency of the evidence to support the verdict. Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975).”

Southeastern Machinery & Equipment Co. v. Tarpley, 398 So.2d 700 (Ala.Civ.App.), cert. denied, 398 So.2d 703 (Ala.1981).

Here, the defendants obtained the rightful possession of the personal property of the plaintiffs when the defendants bought and lawfully gained possession of the land upon which that personal property was situated. Prior to suit, a demand was made upon the defendants for the plaintiffs’ property and the demand was refused. That constituted supportive proof of a wrongful detention, which occurs when, after demand and refusal and without just cause or legal excuse, one person wilfully withholds it from the rightful owner who was then entitled to its immediate possession.

Additionally, under the reasoning in the Tarpley case, the trial court could have ascertained from the evidence that an illegal assumption of ownership or use of the plaintiffs’ property occurred. Some of such indicative evidence was the changing of the lock on the gate, the prohibition against returning and removing any of their personal property and the fact that some of the property which was located there on September 28 was absent at trial time.

Thus, the trial court did not err as to this issue.

II.

The plaintiff Houston Barnhart testified that he was familiar with the property described in the complaint, that he owned particular items thereof, and that his father owned the remainder. That evidence was adequate proof of ownership, which was not controverted by the evidence at the trial.

III.

Houston Barnhart further swore that he was familiar with the value of the itemized property, that he knew “what stuff costs.” He outlined his business and personal experience in buying and selling certain types of personal property which was of the same kind and character as was the vast majority of the property in controversy. He stated the cost and age of many items. Without objection, he rendered his opinion as to the value of each item. After having failed to object to his giving his opinion as to values before the trial court, the defendants may not now raise this question for the first time before this court. Simmons Machinery Co. v. M & M Brokerage, Inc., 409 So.2d 743, 752 (Ala.1982).

In any event, had there been a timely objection raising the issues, the evidence was sufficient to qualify the witness to give his opinion as to the value of his and of his father’s personal property.

The trial court heard the witnesses testify. Therefore, the findings of the trial court are presumed to be correct and we are required to review the evidence in a light most favorable to the prevailing party. On review, this court may not reverse unless the trial court’s holding was either palpably wrong, or was without supporting evidence, or was manifestly unjust. Anderson v. Blue Star Ready Mix, Inc., 391 So.2d 127 (Ala.Civ.App.1980). Here, the evidence was supportive of the conversion count of the plaintiffs’ complaint. The trial court’s judgment was not palpably wrong. Neither was it unjust.

Consequently, we are required to affirm as to the monetary judgment for the plaintiffs, for we find no error regarding any issue raised thereto.

IV.

The defendants claimed fraudulent concealment on behalf of Mr. W. H. Barn-hart as to a leak in the roof of the house involved in the sale. Mrs. Barnhart testified that, while the roof had leaked one time, it had been repaired by them and did not leak at the time of the sale. Mr. Barnes swore that, while he was an expert in construction, he did not examine the roof prior to the sale of the house to them. There is no evidence that the Barneses made any inquiry of Mr. W. H. Barnhart about the roof, that the seller knew of any current defect therein, or that he made any misrepresentation in its regard. The trial court could have found from the evidence that there was no warranty as to the roof, that the roof did not leak when the house was sold to the Barneses and that there was no fraudulent concealment involved. Harrell v. Dodson, 398 So.2d 272 (Ala.1981); Blankenship v. Ogle, [Ms. 1982] 418 So.2d 126 (Ala.Civ.App.1982).

The ore tenus rule and the previously stated rule of review likewise apply as to the action of the trial court in denying recovery to the defendants under their counterclaim. The evidence supports the holding of the trial court which is neither wrong nor unjust. The decision of the trial court as to the counterclaim 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 section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Arlee CROCKER, d/b/a Crocker Realty Company, Arlee Crocker, individually, and James G. DeLoach v. Hovey REED.
    Civ. 2933-X.
    Court of Civil Appeals of Alabama.
    Sept. 29, 1982.

      James G. Lee and John E. Moeller, Jr., of Lee, Barrett & Mullins, Tuscaloosa, for appellant.
    J. Paul Whitehurst and Walter Henley, Northport, for appellee.
   BRADLEY, Judge.

This case involves the breach of the implied warranty of habitability in the sale of a new home.

On August 29,1977 Hovey Reed contracted to buy a new home from Arlee Crocker, d/b/a Crocker Realty Company, and James G. DeLoach for $40,200. The house was built by A. C. Whitley pursuant to a written contract between Crocker and Whitley.

Shortly after Reed moved into his home, he noticed cracks in the walls and other evidence of settling of the house. Reed notified defendants and requested that repairs be made. Crocker contacted the builder, Whitley, about the problem. Whitley undertook to make the necessary repairs.

Even after repairs were made, Reed continued to have problems. The evidence showed that cracks appeared in the mortar around the bricks. The porch sank. Reed also had a problem with water collecting in his carport.

In 1979 Reed attempted to sell the house. He found a buyer and entered into a sales contract. The buyer was apprised of the defects in the home. Defendants refused to extend any warranties to the buyer. As a result, the buyer rescinded the contract.

On March 5, 1980 Reed filed the present action against defendants. Defendants filed a third-party action against A. C. Whitley. Prior to trial Whitley agreed to purchase the house from Reed for $49,000. Reed then entered into a release with Whitley. Whitley was then dismissed from the suit.

A jury trial was held on May 20, 1981. The defendants filed motions for a directed verdict which were denied. The jury returned a verdict in favor of Reed and assessed damages against defendants as $9,000. Defendants later filed motions for j. n. o. v. and new trial which were denied. As a result, defendants have appealed to this court and Reed cross-appealed. Subsequent to oral argument, Reed made a motion, pursuant to Alabama Rules of Appellate Procedure, rule 42, to have his cross-appeal dismissed. This motion is granted.

The sole issue on appeal is whether the trial court erred in refusing to direct a verdict for defendants at the close of plaintiff’s evidence.

Defendants contend that there is no evidence to support the jury’s verdict and, therefore, their motion for directed verdict should have been granted. Jury verdicts are presumed correct and will not be disturbed on appeal unless clearly wrong or unjust. Floyd v. Headland National Bank, 406 So.2d 424 (Ala.Civ.App.1981). Moreover, where there is some evidence to support a jury’s verdict, the motion for a directed verdict is properly denied. Turner v. Peoples Bank, 378 So.2d 706 (Ala.1979). In the present case we find not only that there is some evidence to support the jury’s verdict, but we find also that the verdict is not clearly wrong or unjust.

Defendants argue that Reed was fully compensated when he sold the house to Whitley for $49,000. The evidence adduced at trial showed that the fair market value of the property without defects at the time of the sale to Whitley was $49,000. Therefore, defendants argue that Reed fully recovered any damages which he may have suffered.

The measure of damages in a suit for the breach of warranty of habitability is the difference in the reasonable market value of the house in its condition at the time it was purchased and the reasonable market value of the house as it would have been had the house been constructed substantially according to the contract or warranty. Hubbard Brothers Construction Co. v. Brackner, 390 So.2d 648 (Ala.Civ.App.1980). In the present case Reed purchased this home for $40,000. There is testimony to indicate that the house was worth only $12,-000 in its defective condition at the time of purchase. From this evidence the jury could set damages at $28,000.

At the time of the sale to Whitley, the testimony indicates that the home was worth $25,000 in its defective condition. As a result the jury was instructed that $24,000 of $49,000 Whitley paid for the home was damages for breach of warranty. The jury was instructed to subtract $24,000 from any damages they assessed. Figuring that Reed showed damages of $28,000, the jury upon subtracting the $24,000 could assess damages for $4,000.

Further, the jury was instructed that they could award interest at the rate of six percent from the time that Reed was entitled to recover damages. The jury could have concluded that Reed was entitled to damages at the time he purchased the house. As we have stated, the evidence indicates that Reed had damages of $28,000 at the time of the purchase. The jury could have assessed interest at six percent on this $28,000. Interest on this amount from 1977 until the time of the sale in 1981 would amount to approximately $6,000. This would bring Reed’s total damages to approximately $34,000. Taking into account the credit for $24,000, the jury could certainly have assessed damages at $9,000.

Defendants, however, argue that once Reed accepted the $24,000 from Whitley as part of his damages, Reed could not then recover interest on this amount. At one time the rule in Alabama was that where interest was recoverable other than under contract, the right to such interest was not a distinct claim and could be recovered only with the principal. This rule, however, was rejected in the recent case of Thomas v. Liberty National Life Insurance Co., 368 So.2d 254 (Ala.1979). Therefore, Reed was entitled to recover interest on the total amount of his damages without regard to the fact that he recovered part of the principal amount of his damages prior to trial.

Looking at the evidence, we cannot find that the jury’s verdict is so contrary to the evidence as to require reversal. As a result, the judgment is affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.


author: DeCARLO, Judge.

text:
    Sandra Faye WITCHER v. STATE.
    3 Div. 486.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   ON REHEARING

DeCARLO, Judge.

Appellant was indicted for illegal possession of, or fraudulent use of a credit card, pursuant to § 13A-9-14, Code of Alabama 1975, as amended. After a jury trial she was found guilty and sentenced to fifteen years.

Appellant’s brief was due on February 19, 1982, but it was not filed until March 30, 1982, five and one-half weeks late. Based on A.R.A.P. 45B, this court affirmed appellant’s conviction without opinion, 418 So.2d 983. Rule 45B, effective January 1, 1982, provides the following:

“In all cases appealed to the Court of Criminal Appeals, except those in which the death penalty has been imposed, the Court of Criminal Appeals shall consider only questions or issues presented in briefs on appeal.”

Appellant’s brief in support of her application for rehearing was timely filed, and in an effort to afford appellant a review on the merits of her case, we have determined to issue an opinion on rehearing. We emphasize, however, that henceforward the words “briefs on appeal” as used in Rule 45B, shall be deemed to mean “timely-filed briefs.”

Taken in the light most favorable to the State, the evidence proved that appellant, while an employee of Mini-Maid, a housekeeping service in Montgomery, cleaned the apartment of Janet Lynn Reilly on January 20, 1981. Appellant did not show up for work after that date. Subsequently, Ms. Reilly received bills for charges made on her Mastercharge credit card in Uniontown, Alabama and Houston, Texas. She did not make the charges or authorize anyone else to use her credit card. Ms. Reilly stated that she knew the card in question was on the desk in her apartment the day Mini-Maid came to clean because she had just received a new card to replace her expired card. She remembered leaving the expired card on her desk.

Appellant took the stand and admitted cleaning Ms. Reilly’s apartment, and being in Houston, Texas during January of 1981. She also admitted that she had been previously convicted of forgery. She denied taking or using Ms. Reilly’s credit card.

Montgomery Police Officer E.V. Spivey testified that on May 13, 1981, he stopped a vehicle being driven by appellant because the car had no tag or brake lights. He subsequently arrested appellant for driving under the influence, impounded the vehicle and inventoried its contents. In the glove compartment Spivey found a Mastercharge card bearing the name of Janet Lynn Reilly-

Corporal L.M. Mears of the Montgomery Police Department said that after informing appellant of her Miranda rights he took an oral statement from her in which she admitted that she knew the credit card was in the vehicle.

I

Appellant argues that it is no crime to possess an expired credit card because the instrument has no value, and for that reason, her motion to exclude the State’s evidence should have been granted.

Section 13A — 9-14, supra, provides the following:

“(a) A person commits the crime of illegal possession of a credit card or debit card if, knowing that he does not have the consent of the owner, he takes, exercises control over or otherwise uses such card.
“(b) A person commits the crime of fraudulent use of a credit card or debit card if he uses, attempts to use or allows to be used, a credit card or debit card for the purpose of obtaining property, services or anything else of value with knowledge that:
“(1) The card is stolen; or
“(2) The card has been revoked or can-celled; or
“(3) For any reason his use of the card is unauthorized by either the issuer or the person to whom the credit card or debit card is issued.
“The mere use by the original issuee of a credit card or debit card which has expired is not within the provisions of subdivision (b)(3) of this section.
“(c) ‘Credit card’ means any instrument, writing or other evidence, whether known as a credit card, credit plate, charge plate or by any other name, which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer.
“(d) ‘Debit card’ means any instrument or writing or other evidence known by any name issued with or without fee by an issuer for the use of a depositor in obtaining money, goods, services or anything else of value, payment of which is made against funds previously deposited in an account with the issuer.”

The emphasized portion of the statute indicates that the legislature intended to exclude from criminal liability the use, by the original issuee, of an expired card. That is not to say, of course, that the use of an expired card by an unauthorized person is also excluded. On the contrary, the definition of “Credit card” set out in § 13A — 9-14(c) indicates that if the instrument “purports to evidence an undertaking to pay for property or services delivered or rendered” it is subject to the proscription of the statute.

In this regard, the State called Mr. Larry Meredith, a bank card security officer for Birmingham Trust National Bank, in rebuttal. Meredith testified that charges made on expired credit cards issued to cardholders in good standing are valid transactions and are routinely paid by the bank. He stated that the two charges in question here were, in fact, paid by the bank.

Under these circumstances, appellant’s contention that the expired credit card had no value was specifically disproved by the State’s evidence.

II

Appellant also argues that the war-rantless search of her vehicle was illegal, and evidence of what it turned up should have been suppressed.

The law is clear that an inventory search of an impounded vehicle is constitutionally permissible in the absence of a warrant. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Wilkinson v. State, 374 So.2d 396 (Ala.Cr.App.), cert. denied, 374 So.2d 400 (Ala.1979).

There is no error in the record; therefore, the judgment of the Montgomery Circuit Court is affirmed and the application for rehearing is overruled.

AFFIRMED: APPLICATION OVERRULED.

All the Judges concur.


author: BARRON, Judge.

text:
    Donald COOK v. STATE.
    6 Div. 638.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Oct. 22, 1982 Alabama Supreme Court 81-960.

      William H. Manasco, Carbon Hill, for appellant.
    Charles A. Graddick, Atty. Gen. and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Donald Cook was convicted by a Walker County Circuit Court jury of assault in the third degree. The trial court entered a judgment of conviction and sentenced Cook to 12 months’ hard labor. Hence this appeal.

During the pre-dawn hours of October 4, 1980, two officers of the Carbon Hill Police Department, John Mark Tirey and Larry Cagle, followed appellant’s car to his residence. Immediately prior thereto the officers had stopped appellant, and he had abruptly left the scene in his vehicle upon being requested by one of the officers “to step out of the car.” The evidence is conflicting as to whether the blue light on the officers’ patrol car was operating during the pursuit of appellant to his residence.

The officers testified that they arrived at appellant’s residence in time to see four people leave appellant’s car and go into the house, and saw appellant return to the front porch with “a long gun” in his hand. They further testified that they heard two shotgun blasts fired from the front porch. Officer Cagle was hit by one of the shots, and Officer Tirey fired two shots at appellant, who was on the front porch.

Police reinforcements arrived and, by the use of a loudspeaker system, the occupants of the residence were told to come out of the house. Three people, not including appellant, came out of the house, and a search of the house and the adjoining area failed to locate appellant.

Later that same morning, “somewhere after 9:00,” an arrest warrant was issued for appellant. Appellant was located at someone else’s residence “in the back bedroom closet” sitting on the floor, and was arrested.

I

Appellant contends that the State failed to prove venue and that, therefore, the trial court erred to reversal in denying appellant’s motion for a directed verdict at the conclusion of the State’s case. We disagree, finding that venue was sufficiently established by the testimony of Officer Tir-ey in describing appellant’s residence and the incident which occurred there:

“Q. Is this particular area located in Walker County?
“A. Yes sir, it is.”

II

Next, appellant contends that the trial court erred in denying his motion for a mistrial on the grounds that improper impeachment of a defense witness was permitted, over objection, relative to a prior conviction involving moral turpitude.

Generally, on cross-examining a witness about a prior conviction, only inquiries about the designation of the crime, the time and place of conviction, and the punishment are proper. Favor v. State, 389 So.2d 556 (Ala.Crim.App.1980), and the authorities therein cited.

A review of the record reveals that two questions on cross-examination of that nature were propounded to witness Steve Cook, and neither question exceeded the permissible limits.

Appellant further complains that the State improperly used the word “convictions,” erroneously indicating more than one conviction, as follows:

“MR. GUSTIN [Prosecutor]: Judge, I have a right to go into this man’s prior felony convictions to show the jury how much credit they can put in his testimony.”

The remark occurred in a colloquy among the trial court, appellant’s attorney, and the prosecutor after appellant’s objection to one of the prosecutor’s questions, which we have determined was within the permissible limits.

Immediately after the prosecutor’s remark, appellant pointed out the fact of only one conviction. In addition, during the colloquy, the trial court gave the following instruction to the jury:

“COURT: Ladies and gentlemen of the jury, the fact that a witness may have been convicted of a crime involving moral turpitude or a felony would not help us in arriving at a verdict in this case.
“The only conceivable purpose in allowing these facts, if they be facts, would be as to their bearing on the witness’s credibility as a witness and none of the details of such a transaction are admissible for your consideration whatsoever. If it be a fact, then the fact itself is the only thing that would be appropriate for us to consider under any circumstances and that’s solely for the purpose of whatever bearing you might think that it would have on his credibility and you will not consider anything else for any other reason.
“All right, gentlemen.”

It is clear that the jury understood that only one prior conviction was involved.

After inquiring of the witness about a specific prior offense, the prosecutor asked whether the witness liked “these police involved.” The witness replied: “No sir, not really. I don’t like coming to court.”

It is obvious from the question and from the answer of the witness that the reference was to the police involved in the case at bar, and not the prior conviction case.

We hold that the trial court’s denial of the motion for a mistrial was proper.

Ill

Appellant urges that the trial court erred in the oral jury charge when it charged that a defense witness had been impeached. The applicable portion of the charge is:

“If you find from the evidence in this case that any witness has been impeached or successfully impeached, that doesn’t mean that you must necessarily disregard that witness’s testimony in whole or in part for there may be other evidence in the case that tends to support or corroborate that testimony or some part of the testimony, but as I have told you, you will be the sole and exclusive judges of what you believe and what you don’t believe. And I charge you in this connection that one of the witnesses was impeached by proving that he had been convicted of a crime involving moral turpitude.”

No objections were made by appellant to the trial court’s oral charge. The record reveals the following statement by appellant’s attorney immediately following the oral charge: “No exceptions, Your Honor.”

Therefore, nothing is preserved for review on this issue. Where no exceptions or objections are made to the trial court’s oral charge, this court cannot review the issue of an asserted error in the jury instructions. Storie v. State, 390 So.2d 1179, writ denied, 390 So.2d 1184 (Ala.Crim.App.1980); Hewitt v. State, 389 So.2d 157 (Ala.Crim.App.1980); Langley v. State, 383 So.2d 868, writ denied, 383 So.2d 873 (Ala.Crim.App.1980).

In view of the above, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.