author: SCRUGGS, Retired Circuit Judge.

text:
    Kenneth Leonard FOY, a minor, et al. v. James David VANN, Sr., d/b/a Vann Contracting Company.
    Civ. 1854.
    Court of Civil Appeals of Alabama.
    Oct. 31, 1979.
    Rehearing Denied Nov. 28, 1979.
    N. T. Braswell, III, Montgomery, for appellant, Kenneth Leonard Foy, a minor.
    Robert S. Hill, III, Montgomery, for Samuel Davis, III and Kenneth Dwayne Davis.
   SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case. Two questions are presented for our decision: first, whether the six year old appellant is a child of the deceased workman, and second, if he is, whether he is entitled to share in workmen’s compensation death benefits under the laws of Alabama. Both questions must be answered in the affirmative.

The contest here is actually between the appellant, who contends that he is an illegitimate child of Samuel Davis, Jr., and is entitled to recover workmen’s compensation benefits occasioned by Mr. Davis’s death, and the two legitimate children of Samuel Davis, Jr. The employer takes the position of a stakeholder who is disinterested in who recovers the benefits. At the outset, this court must express its appreciation to the attorneys for each set of claimants for excellent briefs which clearly, concisely, and amply set forth their respective contentions.

The judgment of the learned trial judge was in part as follows:

This cause, coming on to be heard on the complaint, answers thereto, and stipulation of the parties appearing in this cause, and oral proof heard in open Court, from all of which the Court finds that on November 21, 1977, Samuel Davis, Jr. (hereinafter referred to as “deceased”), was employed as a laborer by plaintiff, that this employment was subject to the Alabama Workmen’s Compensation Act; that on said date while working in Auburn, Lee County, Alabama, the said deceased sustained a fatal injury which was the result of an accident that arose out of and occurred in the course of his employment with plaintiff; that plaintiff had immediate and actual knowledge of said accident and provided deceased hospital and medical attention; that said deceased died in Montgomery County, Alabama, on December 7, 1977 as a direct and proximate cause of his injuries; that the average weekly earnings of deceased were $160.00 per week; that all hospital, medical, and funeral expenses have been paid by plaintiff; that at the time of his death, the defendant, Joann Warner Davis, was married to deceased but was not living with him nor was she supported by him; that said Joann Warner Davis, per counsel in open Court, disclaimed any death benefits; that during their marriage, two minor children were born to deceased and Joann Warner Davis, to-wit, Samuel Davis, III, age 9, and Kenneth DeWayne Davis, age 7; that said minors are living with their mother and that she is a fit and proper person to receive and disburse funds for their use and benefit.
The Court further finds that the minor defendant, Kenneth Leonard Foy, age 6, is the illegitimate son of deceased, who provided to some extent support for said child, along with normal paternal love, affection, and attention. The Court would be inclined to order one-third of the death benefits in this case to said minor, but solely because of the clear dictate of Code of Alabama 1975, Section 25-5-1, to-wit:
“(2) CHILD OR CHILDREN. Such terms include posthumous children and all other children entitled by law to inherit as children of the deceased; stepchildren who were members of the family of the deceased, at the time of the accident, and dependent upon him for support; a grandchild of the deceased employee, whose father is dead or is an invalid, and who was supported by and a member of the family of such deceased grandparent at the time of the accident.”
it is clear to the Court that as a matter of law an illegitimate child is not entitled to death benefits under the Alabama Workmen’s Compensation Act. This Court therefore finds that the two minor children, Samuel Davis, III and Kenneth De-Wayne Davis, are entitled to the Alabama Workmen’s Compensation death benefits and that said benefits are to be paid said minors weekly, except that all amounts that have accrued to date shall be paid to them in a lump sum.

I

The trial court heard the evidence regarding whether Kenneth Leonard Foy was the illegitimate son of the deceased. As this is a workmen’s compensation case, its holding constitutes a finding of fact which if supported by any evidence will not be disturbed on appeal. There is ample evidence to support such a finding.

II

This court is squarely faced with the question of whether an illegitimate child may presently recover for workmen’s compensation death benefits arising from a deceased father’s death in view of Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

For many years, death benefits under the Alabama Workmen’s Compensation Act have been limited to legitimate children of the deceased father. Such Act defines a “child or children” as follows:

Such terms include posthumous children and all other children entitled by law to inherit as children of the deceased . . . § 25-5-1(2), Code of Ala. 1975.

In 1963 the Supreme Court of Alabama expressly held that death benefits may not be paid to illegitimate children of a male employee. Hunt v. U. S. Steel Corp., 274 Ala. 328, 148 So.2d 618 (1963). Mr. Justice Lawson therein requoted the settled rule that the words “child” or “children” when used in a statute do not include illegitimate children “unless the context requires a different meaning.”

In Talley v. A & M Construction Co., 284 Ala. 371, 225 So.2d 359 (1969), cert. den., 397 U.S. 995, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970), our supreme court again held that bastard children of a deceased male employee could not recover such death benefits under the Act.

Thus, the Alabama law was clear, unambiguous, and well established prior to the Weber decision in 1972, which held that no valid distinction as to entitlement to workmen’s compensation benefits can be drawn between legitimate and illegitimate children since such a distinction violates the Equal Protection Clause of the fourteenth amendment.

Here, the legitimate children correctly state that illegitimates may inherit from their intestate father’s estate through three methods, namely:

(1) A child born out of wedlock may prove legitimation by the marriage of his parents plus a clear and unambiguous recognition of the child by the' father; or

(2) Such child may be legitimated by a written, attested, and filed instrument; or

(3) The child may prove that his paternity was judicially decided within two years of birth and during the life of the father. Everage v. Gibson, Ala., 372 So.2d 829 (1979). The only evidence in this ease indicated that there was no compliance with any of these methods whereby the appellant may inherit from his father, Samuel Davis, Jr., who died intestate.

The appellees further engraft to such proposition the holding of the Supreme Court of the United States that a statute is constitutional which provides that in order for an illegitimate child to inherit from his father by intestate succession the child must provide a court order declaring paternity, which determination must have been made during the life of the father. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Hence, the appellees say that in Alabama illegitimate children can presently recover such benefits if they could inherit and there is nothing wrong with that aspect of the Alabama Workmen’s Compensation Act now under attack.

In 2 Larson, Workmen’s Compensation Law § 62.22 (1976) after summarizing the law prior to 1972, Weber, supra, is minutely discussed and the following conclusions appear therein:

[S]ince the facts in Weber were at the extreme end of the spectrum of difficulty, involving a child that was both unacknowledged and posthumous, and since the statute was also at one extreme end, specifically covering posthumous children and acknowledged illegitimate children, it can safely be concluded that, if discrimination based on illegitimacy is ruled out in this case, it is ruled out under every kind of statute or set of facts.

The Supreme Court of the United States answered contentions similar to the present assertions as follows:

Respondents contend that our recent ruling in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), controls this case. In Labine, the Court upheld, against constitutional objections, Louisiana intestacy laws which had barred an acknowledged illegitimate child from sharing equally with legitimate children in her father’s estate. That decision reflected, in major part, the traditional deference to a State’s prerogative to regulate the disposition at death of property within its borders. Id., at 538, 91 S.Ct., at 1020. The Court has long afforded broad scope’ to state discretion in this area. Yet the substantial state interest in providing for “the stability of . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents,” Labine v. Vincent, 229 So.2d 449, 452 (La.App.1969), is absent in the case at hand. Weber, supra.

The Court of Civil Appeals of Texas ruled upon a statute similar to Alabama’s wherein the Texas Employees Insurance Association contested an illegitimate’s right to benefits emanating from a deceased father. The court held that such argument was not persuasive and bore too close a resemblance to the unsuccessful contentions raised in Weber, supra. Gonzalez v. Texas Employees Insurance Association, Tex.Civ.App., 509 S.W.2d 423 (1974).

It is the duty of courts to give a statute a construction that will sustain its constitutional validity if reasonably possible. Pruett v. Patton, 288 Ala. 710, 265 So.2d 130 (1972); Ala.Dig. Constitutional Law 48.

To paraphrase Justice Lawson’s words in Hunt, supra, the context now requires a different meaning. Weber would require that “child” and “children” as used in our statute include an illegitimate child or children in order to be constitutional. Wé hereby extend such meaning to such words in order to preserve a constitutional statute.

We are not unmindful of the effect of this decision.

Weber does not, however, solve the compensation law problem completely. There remains one nagging worry of a practical sort, which Weber did not have to concern itself with. The facts in Weber included an acceptance of the deceased’s paternity as established, in spite of the absence of legal acknowledgement. But in the world of everyday life rather than stipulated facts, establishment of paternity is notoriously difficult. And when the child is born posthumously the difficulty is multiplied, since the alleged father is not available to contradict the mother’s account. The danger of spurious claims against deceased workmen by unwed mothers looking for some added income cannot be ignored. Of course, if there is evidence of actual support of the mother by the decedent, or of the child’s living in the decedent’s household, the problem is lessened. But there will be causes in which there is no such evidence, and in which the deceased’s paternity may yet be a fact. Under Weber, if that paternity is legally established, this ends the matter; the illegitimate child cannot be subjected to added requirements of actual dependency and living in the household if the same requirements are not applied to legitimate children. All that can be said at this point is that Weber may have given, the courts in many states an unenviable added burden of determining legal paternity in compensation cases. Larson, supra.

This case is reversed for the foregoing reasons and is hereby remanded to the trial court where the judgment in this case shall be amended so as to provide that the appellant, Kenneth Leonard Foy, shall share in such death benefits as contingently provided by portions of the judgment not heretofore copied herein in the event of a successful appeal by said minor.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code of Alabama 1975. His opinion is hereby adopted as that of the court. The judgment below is hereby reversed and remanded.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: PER CURIAM. BEATTY, Justice

license: Public Domain

text:
    Ex parte Samuel DAVIS, III and Kenneth DeWayne Davis. (Re Kenneth Leonard FOY, a minor, et al. v. James David VANN, Sr., d/b/a Vann Contracting Company).
    79-211.
    Supreme Court of Alabama.
    June 13, 1980.
    Robert S. Hill, III of Hill & Hill, Montgomery, for petitioners.
    N. T. Braswell, III of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for respondent.
   PER CURIAM.

The writ of certiorari to the Court of Civil Appeals, 386 So.2d 1141 is quashed as improvidently granted.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

FAULKNER, EMBRY and BEATTY, JJ., dissent.

BLOOD WORTH, J., not sitting.

BEATTY, Justice

(dissenting):

Our focus is upon the right of a dependent child born out of wedlock to recover workmen’s compensation benefits for the death of his natural father on an equal basis with the father’s dependent legitimate children. We should hold that the Alabama statute which denies illegitimates equal recovery rights unless certain statutory prerequisites for “legitimation” have been met violates the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). My reasons follow.

Samuel Davis, Jr. was fatally injured in a job-related accident during his employment with James David Vann, Sr., d/b/a Vann Contracting Company. Vann, as Davis’s employer, filed a bill in the nature of inter-pleader to determine who should receive workmen’s compensation benefits for the death of Mr. Davis. Davis’s two legitimate minor children each claimed a right to share in the death benefits, as did Kenneth Leonard Foy, a minor, who alleged that he was the illegitimate son of the deceased. Although the trial court found that Foy was in fact the illegitimate son of the deceased, “who provided to some extent support for said child, along with normal paternal love, affection, and attention',” the court denied death benefits to Foy because “as a matter of law an illegitimate child is not entitled to death benefits under the Alabama Workmen’s Compensation Act.” The Court of Civil Appeals upheld the lower court’s finding that Kenneth Leonard Foy was the illegitimate son of the deceased, but reversed the trial court’s ruling that Foy could not share in the death benefits with Mr. Davis’s legitimate children. It is the reasoning employed in the latter portion of the judgment of the Court of Civil Appeals that we should be concerned with on this occasion. The interpretation of the Court of Civil Appeals of the pertinent statute amounts to impermissible judicial legislation. Although I hasten to point out that the Court of Civil Appeals correctly determined the rights of the parties under the Workmen’s Compensation Act, I disagree with the specific holding that Code of 1975, § 25-5-1(2) may be interpreted in a manner consistent with the U. S. Constitution.

A deceased worker’s children under 18 years of age are conclusively presumed to be wholly dependent under Code of 1975, § 25-5-61(3); such children are therefore entitled to workmen’s compensation death benefits under Code of 1975, § 25-5-60. In order to be classified as a “child,” however, one must fit within the statutory definition of “child or children,” Code of 1975, § 25-5-1(2). That section provides in part that the terms “include posthumous children and all other children entitled by law to inherit as children of the deceased.” Code of 1975, § 25-5-1(2) (emphasis added.)

The first question presented for our review is whether the Court of Civil Appeals correctly determined, though implicitly, that the statutory definition of “children” can be extended to include all actual illegitimate children. I have concluded that the definition of “children” in § 25-5-1(2) may not be read to include all of the actual illegitimate children of a deceased male worker because of the express terms employed by the legislature; the plain meaning of the statute is that only those illegitimate children of a decedent who would be “entitled by law to inherit” as his children are to be regarded as “children” for the purposes of the Workmen’s Compensation Act. The construction placed upon the statute defining “children” by the Court of Civil Appeals would thus be permissible only if in every case an illegitimate child of a deceased male would be entitled by the law of this state to inherit from his father in the event of the father’s intestate death. Our recent decision in Everage v. Gibson, Ala., 372 So.2d 829 (1979), clearly demonstrates the incorrectness of such a proposition. Under Everage, only some children born out of wedlock necessarily inherit from an intestate father, for only in certain specific situations will an illegitimate child be entitled by law to a share of the estate of his intestate father:

(1) When the child has been legitimated by the marriage of the parents and has been clearly an unambiguously recognized by the father (See Code of 1975, § 26-11-1); or

(2) When the child has been legitimated by the father’s written, attested and filed declaration (See Code of 1975, § 26-11-2); or

(3) When the child’s paternity has been judicially determined (See Code of 1975, § 26-12-1 et seq.). 372 So.2d at 833.

Since only illegitimates who fall within one of the situations enunciated in Everage are “entitled by law” to inherit from their fathers, it is clear that the Court of Civil Appeals erred in implicitly ruling that “child” and “children” as used in our statute include every illegitimate child and all illegitimate children.

Having found that the Court of Civil Appeals extended too broad a meaning to the definition of “children” in § 25-5-1(2), I turn now to the question of the statute’s constitutionality. The issue is whether the Alabama statute, which in effect allows an illegitimate child of a deceased workman to recover workmen’s compensation death benefits only if the child has been “legitimated” by one of the processes set forth in Everage, is constitutional in view of the decision of the U. S. Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

In the Weber case, the Supreme Court considered the constitutional validity of a Louisiana statute which allowed dependent illegitimate children to share equally in workmen’s compensation death benefits with dependent legitimate children only if the illegitimates had been “acknowledged” by a process similar to that found in Code of 1975, § 26-11-2 (/. e., a written, attested, and filed declaration of paternity by the father). Testing the statute’s constitutionality under the Equal Protection Clause of the Fourteenth Amendment, the Court framed a dual standard which seems to be a hybrid of the “rational basis” and “compelling state interest” standards:

The essential inquiry in all the foregoing cases is, however, inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger? [406 U.S. at 173, 92 S.Ct. at 1405.]

Although the Supreme Court conceded the legitimacy of the state’s interest in regulating and protecting legitimate family relationships, the Court found that discrimination, via the Workmen’s Compensation statute, against dependent children born of illicit relationships did not promote the state’s interest:

Nor can it be thought here that persons will shun illicit relations because the offspring may not one day reap the benefit of workmen’s compensation. [406 U.S. at 173, 92 S.Ct. at 1405.]

I perceive no fundamental difference between the Louisiana statute held unconstitutional in Weber and our own statutory scheme, which allows the recovery of benefits by illegitimates only under certain circumstances. Both statutes impose significant legal conditions upon the right of illegitimate dependents to share workmen’s compensation benefits equally with legitimate dependents. Although the Alabama scheme, as opposed to Louisiana’s, very likely would enable more illegitimate children to recover workmen’s compensation, the difference in effect is one of degree rather than kind. Both compensation systems set up barriers in the path of illegitimates seeking compensation, barriers which the 'illegitimate child will frequently be incapable of overcoming. Under our statute, a child, through no fault of his own, may be deprived of a means of recovery for the death of his actual father simply because he is illegitimate and has not been “legitimated.” Under Weber, discrimination on this basis is constitutionally prohibited in the workmen’s compensation context. Although the state has a genuine interest in protecting the traditional family unit, § 25-5-1(2), by penalizing illegitimate children instead of their parents, does not serve the state’s valid concern. As Justice Powell aptly pointed out in Weber:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where — as in this case — the classification is justified by no legitimate state interest, compelling or otherwise. [406 U.S. at 175-76, 92 S.Ct. at 1406-07.]

Because the classification employed in § 25-5-1(2) does not promote any legitimate interest of the state, that provision is unconstitutional.

I do not, however, wish to be understood to conclude that statutory discrimination against illegitimates is always constitutionally impermissible. The constitutionality vel non of a statutory scheme which discriminates to some extent against a class of persons must be determined in each case on the basis of the relationship between the classification and the state interest sought to be served. Everage v. Gibson, for example, would remain a viable precedent because some discrimination against illegiti-mates is justifiable in the area of intestate succession; the limitations placed by our statutes upon the rights of illegitimates to inherit from their intestate fathers are not invalid, because of the state’s strong interest in providing for the orderly, certain, and final disposition of an intestate’s property at his death. Everage, supra; see Lalli v. Lalli, 435 U.S. 921, 98 S.Ct. 1482, 55 L.Ed.2d 514 (1978). No such purpose, however, is served by denying actual illegitimate children of a deceased workman the right to recover benefits for his death. The mandate of the Equal Protection Clause of the Fourteenth Amendment is violated by conditioning the right to recover workmen’s compensation benefits upon being entitled by law to inherit property from an intestate. For the purposes of intestate succession, some statutory discrimination is valid; for the purposes of workmen’s compensation, it is not.

For these reasons, I agree that the portion of the judgment of the Court of Civil Appeals upholding the trial court’s finding that Kenneth Leonard Foy was the illegitimate son of the deceased should be affirmed. That portion of the decision sustaining the constitutionality of Code of 1975, § 25-5-1(2), however, is clearly erroneous, for under the doctrine of separation of powers the Court of Civil Appeals, even for the most salutary of purposes, cannot furnish amendatory language for a clear expression of the legislature.

FAULKNER and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Frank BRITNELL et al. v. ALABAMA STATE BOARD OF EDUCATION et al.
    Civ. 2353.
    Court of Civil Appeals of Alabama.
    July 2, 1980.
    Rehearing Denied Aug. 6, 1980.
    Donald V. Watkins of Watkins, Carter & Daniel, and Solomon S. Seay, Jr. of Gray, Seay & Langford, Montgomery, for appellants.
    Charles S. Coody, Montgomery, for appel-lees.
   BRADLEY, Judge.

The plaintiffs brought this suit for declaratory judgment to determine their rights under the Education Appropriations Act of 1977. The plaintiffs contend that they were unlawfully denied a $500 salary increase for the 1977-78 school year as mandated by Act No. 637, Acts of Alabama 1977, which provides in pertinent part:

(ii) In addition to local salary now received and all local increments due for the 1977-78 school year, all full-time employees of city and county boards of education and all full-time employees in the schools under their jurisdiction with the exception of those persons listed on the official Teachers’ Institute List shall receive a salary increase of not less than five hundred dollars ($500) per annum. All adult school bus drivers shall receive a salary increase of not less than five hundred dollars ($500) per annum and all student school bus drivers shall receive a salary increase of not less than three hundred dollars ($300) per annum and any county or city board of education failing to comply herewith shall not be entitled to share in the Minimum Program Fund.
(kk) Of the amount appropriated in Section 3, A, 16, (aa) to the State Board of Education for distribution of local boards the sum of three million eight hundred seventy-three thousand five hundred dollars ($3,873,500), is allocated for disbursement to local boards of education to provide and [sic] increase of five hundred dollars ($500) to each lunchroom worker in the public schools of the state. This salary increase shall be paid to all lunchroom personnel in addition to the local salary now received and any local salary increments due for the 1977-78 school year. [Emphasis added.]

Subsequent to the passage of the act, the Alabama State Board of Education adopted a resolution declaring the term “full-time employees” as used in paragraph (ii) to mean employees who work a minimum of six hours per day, and also resolved that only full-time lunchroom personnel would receive the $500 salary increase provided for in paragraph (kk). The plaintiffs, who are lunchroom and janitorial employees working five days per week but less than six hours per day, responded by filing this suit seeking the $500 salary increase. The trial court initially dismissed the cause and the plaintiffs appealed. Our supreme court reversed and remanded the trial court’s decision. Britnell v. Alabama State Board of Education, Ala., 374 So.2d 181 (1979). Upon remand, the trial court denied the plaintiffs’ requested relief on the salary question. This appeal followed.

The only issue presented by this appeal is whether the trial court erred in denying the plaintiffs’ claim of entitlement to a minimum $500 salary increase under Act No. 637, Acts of Alabama 1977.

As previously noted, the State Board of Education, subsequent to the passage of Act No. 637, adopted a resolution defining the term “full-time employees” as used in paragraph (ii) to mean those employees employed for six hours or more per day. The administrative definition of “full-time employees” apparently resulted from the failure of Act No. 637 to define the term. Nevertheless, the trial court found the administrative definition to be reasonable and adopted it.

While the administrative construction of a statute is not binding on a court, such construction is persuasive and is to be considered favorably. Moody v. Ingram, Ala., 361 So.2d 513 (1978). We find no fault with the trial court’s acceptance of the State Board of Education’s definition of “full-time employees” as set out in paragraph (ii) of Act No. 637. Thus the four janitorial or custodial employees would not be entitled to the full $500 salary increase because they were not “full-time employees” within the meaning of said Act. However a different result obtains as to the one lunchroom worker.

Paragraph (kk) provides that “each lunchroom worker in the public schools of the state” shall receive a $500 increase in salary. It is also provided in that same paragraph that $3,873,500 is appropriated for the specific purpose of funding the $500 salary increase for lunchroom workers and further provides that such salary increase shall be in addition to any other local salary supplements for the 1977-78 school year. By specifically providing in paragraph (kk) that “each lunchroom worker” in the state is to receive a $500 salary increase, we believe that the legislature clearly intended to create an exception to the requirement in paragraph (ii) that an employee be a full-time worker. Such an interpretation observes the rule of construction that special provisions in an act relating to specific subjects control general provisions in that same act relating to general subjects, and matters specially treated will be considered as exceptions to the general provisions. Herring v. Griffin, 211 Ala. 225, 100 So. 202 (1924); State v. Elliott, 246 Ala. 439, 21 So.2d 310 (1945); Green v. Fairfield City Board of Education, Ala.Civ.App., 365 So.2d 1217 (1978).

The term “full-time employees” used in paragraph (ii) is a general provision, for it applies to all employees in the state school system except teachers; whereas the reference to lunchroom workers jn paragraph (kk) is to a specific group of workers. The apparent legislative purpose was to except this class of workers from the over-all class of workers in the public school system who were required to be “full-time employees” in order to be eligible for the $500 salary increase. The apparent legislative intent should be given full effect. Thus, we conclude that the plaintiff who is employed as a lunchroom worker is entitled to the full $500 salary increase authorized by Act No. 637.

It is to be noted, however, that the State Board of Education also resolved that lunchroom workers had to be “full-time employees” as provided in paragraph (ii) in order to be eligible to receive the full $500 salary increase authorized by paragraph (kk). And, we said above that the administrative construction accorded a statute is entitled to favorable consideration by a court. Moody v. Ingram, supra. However, such a rule of construction will be ignored where it seems reasonably certain that the administrative interpretation is erroneous and a different construction is required by the statute. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So.2d 824 (1949). The specific language of paragraph (kk) requires a different construction than that placed on it by the State Board of Education and its interpretation of the statute will be laid aside.

That part of the trial court’s judgment holding that those plaintiffs who were janitorial and custodial workers and who did not work six hours or more per day and thus were not “full-time workers” as provided in paragraph (ii) of Act No. 637 is affirmed; that part of the trial court’s judgment holding that a lunchroom worker in the public schools of the state had to be a “full-time worker” as provided in paragraph (ii) in order to receive the $500 salary increase authorized by paragraph (kk) of said act is reversed and the cause remanded for entry of judgment not inconsistent with this opinion.

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

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


text:
    Charles W. FREDERICK and Jeanette Frederick v. James STRICKLAND.
    Civ. 2128.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      W. T. Johnson, Muscle Shoals, for appellants.
    James K. Davis of Fite, Davis & Fite, Hamilton, for appellee.
   BRADLEY, Judge.

Plaintiffs, Charles W. and Jeanette Frederick, appeal from the denial of their motion for new trial.

Plaintiffs contracted with the defendant, James Strickland, for the construction of a house. The contract price was to be $24,-600. After moving into the house, the plaintiffs brought this action to recover damages for alleged defects in the construction of the house.

At the trial plaintiff Jeanette Frederick testified that the difference in the value of the house as it was supposed to have been built according to the contract and the value as it was actually built was $17,000. Douglas Glaze, a carpenter, also testified as to the cost of repairing certain defects in the house. The total cost of these items came to $7,810.00. The defendant offered no contradictory evidence as to the estimate of damages. The jury returned a verdict of $1,200. The plaintiffs’ motion for a new trial was denied and this appeal followed.

Plaintiffs contend that because the defendant offered no evidence to contradict the testimony as to damages the jury was bound by the opinion evidence of value offered by plaintiffs.

The jury does not have an absolute right to disregard the testimony of competent witnesses and substitute its own conclusion for undisputed evidence. Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421 (1945). And where a jury verdict cannot be justified on any reasonable hypothesis presented by the evidence, it should be set aside. Farmers & Ginners Cotton Oil Co. v. Reliance Insurance Co., Ala., 341 So.2d 147 (1976).

Normally, the above stated rules would apply in the case at bar since the only direct testimony of damages was for either $17,000 or $7,810, and not for $1,200 as found by the jury. However, in the instant case the jury was allowed to inspect the house. Knowledge acquired by the jury during a view is proper evidence. Western Railway of Alabama v. Still, Ala., 352 So.2d 1092 (1977).

Furthermore, when the jury is permitted to view the premises, it is not bound by the estimate of damages given by witnesses. State v. Carter, 267 Ala. 347, 101 So.2d 550 (1958); Whitman v. Housing Authority of the City of Elba, 272 Ala. 245, 130 So.2d 362 (1961). Therefore we conclude that there was sufficient evidence to support the jury verdict of $1,200 and the denial of the motion for new trial based on inadequate damages is without error.

The remaining issue is whether the trial court erred in overruling the motion for new trial on the ground that a member of the trial jury failed to answer truthfully a question propounded during voir dire.

Paragraph four of the motion for new trial is as follows:

4. One of the members of the jury, Edward Box, failed to truthfully answer a question propounded to the jury venire by Plaintiffs’ attorney in that he failed to state that he was a construction contractor or worked for a contractor when he was in fact so employed, and as a result, sat as a biased and prejudiced juror, with a resulting influence on the amount of the jury’s verdict.

The assertions of paragraph four of the new trial motion are not supported by affidavits, testimony or exhibits. Plaintiffs contend, however, that they had no opportunity to offer testimony in support of the motion because the trial court overruled their motion without giving them a hearing. However, the record contains no request by plaintiffs for a hearing on their motion. Neither does the record reflect whether a hearing was or was not held by the trial court.

Rule 59(g), ARCP, provides in part that post-trial motions “shall not be ruled upon until the parties have had opportunity to be heard thereon.”

In Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975), the motion for new trial was granted without a hearing on the same day that it was filed. The opposing party contended that the court erred in granting the motion without holding a hearing on it. We held that in the absence of an objection to the failure to hold a hearing on the motion, the opposing party had waived any error that might have been committed by the trial court.

Likewise, in the case at bar, the movants failed to ask for a hearing on their motion and the motion remained pending for about ninety days, not just one day as in the Kilgore case. Obviously, they had ample opportunity to request a hearing on their motion. And we consider a reasonable interpretation of the pertinent portion of Rule 59(g) to be that a party have an opportunity to be heard. This means that if the court itself failsQto set the motion for hearing and a party wishes to be heard, then that party should request a hearing.

At such a hearing the facts may be presented by affidavits, or the court, in the exercise of its discretion, may receive oral testimony or depositions. Rule 43(e), ARCP.

In the case at bar the movants did not attach affidavits or other exhibits to the new trial motion, nor did they request that they be permitted to offer oral testimony or depositions in support of paragraph four. In fact they did not even request a hearing on their motion. Based on this state of the record we are unable to say that the trial court erred in this aspect of its ruling on the motion for new trial.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Willie Leon WILLIAMS v. Elizabeth R. WILLIAMS (Bell).
    Civ. 2192-A.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    David Barnes, Birmingham, and W. Troy Massey, Montgomery, for appellant.
    Samuel A. Rumore, Jr. and Nina Miglion-ico, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Ex-husband brings certiorari from an order holding him in contempt for failure to make child support payments and ordering him to pay arrearages of $18,715. We affirm.

The record reveals that the parties were divorced in 1972. The divorce decree required the husband to pay the wife child support of $300 per month.

The wife filed a petition for Rule Nisi in November 1979, alleging that the husband was in arrearage of child support in the amount of $21,250.

The husband answered and defended on the grounds that he had substantially complied with the divorce decree and that he had been denied reasonable rights of visitation. In addition, the husband filed a coun-terpetition for Rule Nisi alleging, among other things, that the wife secreted the minor child out of the state. In his coun-terpetition the husband sought custody of the minor child.

On motion by the husband, the trial court consolidated the two actions for trial. During the hearing the court determined that the husband’s petition was in fact one for modification of the original order of custody. The judge announced he would not permit testimony at that time for change of custody. The effect was to continue the modification hearing to another time.

I

The husband contends that the trial court erred in separating the issues for trial without giving prior notice.

At the outset, we note that the proper remedy for review of a judgment for contempt is by certiorari if the party is not in jail. Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.1979), cert. denied, 376 So.2d 1099 (Ala.1979). This ease came to this court by certiorari. Review by certiorari is limited to questions of law. The weight and sufficiency of the evidence is not reviewable. We will affirm the trial court’s judgment if there is any evidence to support it. Wilson, supra.

In this instance, the error of which the husband first complains is not before this court on certiorari and we will not consider it. See, Rohrer v. Rohrer, 373 So.2d 331 (Ala.Civ.App.1979).

In any event, as we read the act of the court there was merely a continuance of the hearing upon the petition for custody. Whether that was error is not ripe for appeal.

II

The husband next contends that the trial court erred in admitting into evidence unverified copies of court records, which purported to be a record of money the wife received from the husband through a reciprocal non-support action.

The documents were subpoenaed from the district attorney. The wife stated they represented sums she had received and credited to alimony due from defendant. The records benefited defendant in that respect. We find no injury in their admission. Slay v. McKean Paint & Hardware Store, Inc., 55 Ala.App. 487, 317 So.2d 326 (1975); Rule 45, ARAP.

III

The husband next contends the trial court erred in refusing to allow into evidence testimony concerning the wife’s relationship with one McCurdy. He contends this evidence would have supported his defense that the wife secreted herself and the minor child by moving out of state with McCurdy, thus making it impossible for him to comply with the divorce decree.

There was no provision in the divorce decree prohibiting the wife from taking the child out of state. There was substantial evidence that the child was not secreted, but visited with defendant during the period in question. Thus, the husband was fully liable for arrearages regardless of where the child resided. Clark v. Clark, 46 Ala.App. 432, 243 So.2d 517 (1970).

From the evidence presented, the court was fully warranted in finding defendant in contempt for failing to comply with the prior judgment for payment of child support. The evidence supports a finding that he was employed at a substantial salary as an attorney for a U.’ S. Government agency with annual salary increases, and willfully refused to comply.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    TOOMEY EQUIPMENT COMPANY, INC. v. COMMERCIAL CREDIT EQUIPMENT CORPORATION, McCullagh Leasing, Inc.
    Civ. 2197.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      Norman J. Gale, Jr. of Clay, Massey & Street, Mobile, for appellant.
    James W. Tarlton, III of Hamilton, Butler, Riddick, Tarlton & Allen, Mobile, for appellees.
   HOLMES, Judge.

This is a case involving the Uniform Commercial Code, §§ 7-1-101, et seq., Code of Ala.1975.

Commercial Credit Equipment Corporation (CCEC) sued Toomey Equipment Company (Toomey), alleging a breach of contract. The trial court granted CCEC’s motion for summary judgment and Toomey appeals. We reverse and remand.

The threshold issue on appeal is whether art. 9 of the Uniform Commercial Code (UCC) applies to the transaction between CCEC and Toomey. If art. 9 is applicable, we must also decide whether there remained a genuine issue of material fact concerning CCEC’s alleged failure to use reasonable care in preserving Toomey’s rights against a prior party.

The record reveals the following: Too-mey sold one N. B. Bohannon certain farming equipment under a “purchase security agreement” containing a promissory note. The agreement, which was on a printed form apparently provided by CCEC, obligated Mr. Bohannon to make yearly payments for the years 1975 through 1978. Under the agreement, Toomey retained a security interest in the equipment.

The writing also contained a provision wherein Toomey simultaneously sold or assigned the agreement to CCEC for value re'ceived. As a consequence of this transfer, Mr. Bohannon was to make all payments directly to CCEC.

Under the assignment, Toomey agreed to the following:

If CCEC should repossess or come into the possession of any property described in said Agreement we will purchase such property immediately upon demand in its then condition and location, and will pay CCEC therefor the unpaid balance owing on said Agreement, or that portion of the unpaid balance owing on said Agreement applicable to such property, plus any costs or expenses, including attorney’s fees, incurred by CCEC in connection therewith. If we fail or refuse to purchase said property, then CCEC may sell the same at public or private sale, with or without notice to us, and we will pay CCEC the difference between the net amount realized from such sale and the purchase price provided for above. We agree that CCEC may audit our books and records relating to agreements sold to CCEC and that CCEC may, without notice to us and without releasing our liability hereunder grant extensions of time of payment of said Agreement and release any rights thereunder, and we waive presentment and demand for payment, protest or notice of protest. We shall have no authority without CCEC’s prior written consent to accept collections, repossess or consent to the return of said Agreement.

Mr. Bohannon subsequently died before final payment was made and a default ensued. CCEC then repossessed the equipment.

Pursuant to the above quoted recourse agreement CCEC demanded that Toomey repurchase the equipment. Toomey refused to do so. CCEC then sold the property and, after giving Toomey credit for the amount received, brought suit against Toomey seeking to recover the deficiency.

Toomey responded by moving for summary judgment. In support of this motion, Floyd Toomey, the company’s president, filed an affidavit stating that CCEC did not demand repurchase nor authorize any steps by Toomey against Mr. Bohannon’s estate until more than six months after Bohan-non’s death. Mr. Toomey contended that the non-claims statute was allowed to run as a result of this failure to give notice and that Toomey was therefore left with no recourse against Mr. Bohannon’s “very solvent” estate.

CCEC also moved for summary judgment and filed the affidavit of its regional manager, J. L. Stewart. In this affidavit, Mr. Stewart stated that Toomey knew of Mr. Bohannon’s death.

As indicated, we must first decide whether art. 9 of the UCC applies to Toomey’s assignment or sale of the agreement to CCEC so that we may properly determine the rights and responsibilities of the parties.

On appeal, Toomey argues that art. 9, which covers secured transactions, governs the transfer at hand. It is Toomey’s further contention that by failing to give notice of Mr. Bohannon’s death, CCEC violated § 7-9-207(1), which reads:

A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed. (Emphasis supplied.)

CCEC, through able and distinguished counsel who has favored this court with an excellent brief, puts forth several arguments in support of the trial court’s action.

CCEC first argues that the UCC simply does not apply to the transaction and relies upon pre-code Alabama cases which, in effect, would treat Toomey as a surety under the facts at bar and relieve CCEC of any duty to give notice of the buyer’s default. See, Lightsey v. First National Bank of Birmingham, 273 Ala. 416, 142 So.2d 681 (1962); State v. McElroy, 220 Ala. 452, 125 So. 903 (1930).

CCEC argues alternatively that if the UCC does apply, art. 3, which deals with negotiable instruments, and not art. 9, governs.

Finally, CCEC puts forth two theories which would exonerate it from any possible liability even if art. 9 does govern. It first argues that § 7-9-207(1) does not replace the above referenced pre-code law. Next, pointing to that part of § 7-9-207(1) which allows the parties some freedom to negotiate, CCEC argues Toomey waived any right to notice when it entered into the assignment agreement.

Addressing these issues, we first conclude that art. 9 governs the instant transaction. Section 7 — 9-102(l)(a) extends application of this article to “any transaction (regardless of its form) which is intended to create a security interest in personal property . including . . . chattel paper, accounts or contract rights, . . . .” Furthermore, § 7-9-102(l)(b) extends coverage to “any sale of accounts, contract rights or chattel paper.”

The official comment to § 7-9-102 provides:

An assignment of accounts, contract rights or chattel paper as security for an obligation is covered by subsection (l)(a). Commercial financing on the basis of accounts, contract rights and chattel paper is often so conducted that the distinction between a security transfer and a sale is blurred, and a sale of such property is therefore covered by subsection (l)(b) whether intended for security or not, . . . . The buyer then is treated as a secured party, and his interest as a security interest. .

It is clear to this court that the transaction at hand, whether it be classified as assignment or sale, is contemplated by § 7-9-102. Therefore, the article is to be applied if the parties and the property transferred meet the definitional requirements put forth elsewhere.

We conclude these requirements are met, first noting that the property transferred to CCEC by Toomey was chattel paper as it consists of a writing which evidences “both a monetary obligation and a security interest in specific goods.” § 7-9-105(l)(b).

Furthermore, it is clear that chattel paper can serve as collateral, § 7-9-105(l)(c); that CCEC is a secured party, whether it has a security interest in the chattel paper or is one to whom chattel paper has been sold, § 7 — 9—105(i)(i); and, that Toomey is a debtor of CCEC either as one who owes “other performance” or as a seller of chattel paper. § 7-9-105(l)(d).

Thus, in John Deere Co. v. Neal, Tex. Civ. App., 544 S.W.2d 514 (1976), where the vendor of farming equipment assigned an installment contract-security agreement such as the one at bar to the manufacturer, the Texas Court of Civil Appeals held art. 9 applied to the transaction in determining the rights and liabilities of the parties involved.

Another illustration of the above reasoning is found in Norton v. National Bank of Commerce, 240 Ark. 131, 398 S.W.2d 538 (1966). There, an automobile dealer sold chattel paper to a bank containing a provision that if the vendee of the car defaulted the dealer would repurchase the automobile for the amount then due thereon. Holding that the obligation to purchase the automobile made the dealer the debtor of the bank as one who owes “other performance of the obligation secured”, § 7-9-105(l)(d), the court applied the provisions of art. 9.

In reaching this conclusion the court in Norton relied on the Official Comment to § 7-9-105, which provides in pertinent part:

A dealer sells a tractor to a farmer on conditional sales contract. The conditional sales contract is a “security agreement”, the farmer is the “debtor”, the dealer is the “secured party” and the tractor is the type of “collateral” defined in Section 7-9-109 as “equipment”. But now the dealer transfers the contract to his bank, either by outright sale or to secure a loan. Since the conditional sales contract is a security agreement relating to specific equipment the conditional sales contract is now the type of collateral called “chattel paper”. In this transaction between the dealer and his bank, the bank is the “secured party”, the dealer is the “debtor”, and the farmer is the “account debtor”. (Emphasis supplied.)

Suffice it to say that on the strength of the above cited cases and comment, it is clear to this court that Toomey is correct in contending art. 9 governs this transaction.

As indicated, CCEC also argues that art. 3 is applicable if the UCC is to control.

We cannot agree. In so ruling we see no need to decide whether the writing in question is a negotiable instrument. We instead turn to § 7-3-103 of art. 3 which clearly states “the provisions of this article are subject to the provisions of the article on . secured transactions (article 9).” (Emphasis supplied.)

Thus, even though we are not holding a conflict between the two articles does in fact exist, it. has been held that where a conflict does arise, art. 3, being general, becomes subject to art. 9. Jefferson v. Mitchell Select Furniture Co., 56 Ala.App. 259, 321 So.2d 216 (1975).

In accord is John Deere Co. v. Neal, supra, where the court addressed contentions similar to those of CCEC and specifically concluded that the rights and liabilities of the vendee of goods and the assignee of chattel paper were governed by art. 9. We see nothing in the case at bar, where the dispute is between the assignor/seller and the as’signee/buyer of chattel paper, which calls for a different rule. See, Majors Furniture Mart, Inc. v. Castle Credit Corp., 602 F.2d 538 (3rd Cir. 1979).

Neither do we find convincing CCEC’s argument that § 7-9-207 does not affect pre-code law as it might have applied to this case.

Under § 7-1-103, prior existing law supplements the various code sections “unless displaced by the particular provisions of this title.” It is clear from this that if the particular code provisions do displace prior law, the code prevails.

Suffice it to say that this is such a case. Under Alabama’s prior law, the creditor apparently owed no duty to the surety and was not liable if its negligence impaired the right of the surety to collect. Section 7-9-207 clearly imposes such duties, and it therefore prevails in this case.

Thus, under § 7-9-207(1), the question ultimately becomes whether, under these facts, the giving of notice within six months of the death of the vendee was required to discharge CCEC’s duty of reasonable care and was also a necessary step in preserving Toomey’s right against Mr. Bohannon’s estate. If it was, and if Toomey did not waive the right to such notice, then a genuine issue of material fact remained to be resolved, and summary judgment was not proper. See, Rule 56(e), ARCP; First National Bank v. Culberson, Ala., 342 So.2d 347 (1977).

In deciding this issue, we note that under the assignment or sale of the chattel paper, payments were to be made directly to CCEC. Toomey was to have no further dealings with Mr. Bohannon and could only learn of a default when CCEC notified it thereof and demanded repurchase. Toomey was then obligated to pay CCEC the outstanding indebtedness. CCEC thus enjoyed all the benefits afforded a secured party by the UCC and few of the risks as the burden of proceeding against the defaulting vendee for ultimate recovery was placed upon Too-mey, not CCEC.

We thus conclude that under these facts, where CCEC indisputably had knowledge of Mr. Bohannon’s death, the simple giving of notice that the defaulting debtor had died so that Toomey could act to preserve its rights would be necessary to fulfill the mandate of § 7-9-207(1). See, Congress Financial Corp. v. Sterling Coin-Op Machinery Corp., 456 F.2d 451 (3rd Cir. 1972).

Finally, we do not read the above quoted provision of the agreement dealing with Toomey’s right to receive notice as either applying to these particular facts or as constituting a waiver if it does apply.

Assuming without deciding that the provision could be read as an attempted waiver, we note that § 7-1-102(3) expressly prohibits any agreement wherein one party disclaims its obligations of reasonableness and care. That section reads:

The effect of provisions of this title may be varied by agreement, except as otherwise provided in this title and except that the obligations of good faith, diligence, reasonableness and care prescribed by this title may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.

Thus, if we were to give the agreement the construction urged by CCEC, its provisions would not permissibly undertake to define a standard of reasonable care, but would constitute an “exculpation from liability for lack of reasonable care in performing a duty which may in fact have been undertaken. Such an exculpation is prohibited by § 1-102(3).” [§ 7-1-102(3) in Alabama.] Congress Financial Corp., supra, 456 F.2d at 455.

In summation, the affidavits of the parties put in issue the giving of notice by CCEC of the death of Mr. Bohannon. This was clearly a material fact. Thus, summary judgment was not appropriate.

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    ABEX CORPORATION, a corporation v. Larry COLEMAN.
    Civ. 2218.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      William A. Robinson and R. Michael Leonard of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    Philip C. Henry and John H. Lavette, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation suit.

On February 3, 1976 the plaintiff was operating an overhead crane as an employee of the defendant when the crane separated from its supporting structure and' collapsed. The crane was attached to the roof of the defendant’s plant and the plaintiff fell to the floor of the plant when the crane collapsed. The plaintiff was taken to the hospital where he was treated and released. Later, on February 9, 1976, the plaintiff was admitted to the hospital for treatment of a back injury suffered in the fall, and to run some tests. It was at this time that Dr. Stanley Graham, a neurosurgeon, first examined the plaintiff. Following the plaintiff’s release on February 13, 1976, Dr. Graham continued to see the plaintiff on an outpatient basis for four months.

On June 1, 1976 Dr. Graham referred plaintiff to Dr. Clayton Davie for examination and evaluation. Dr. Davie determined that although the plaintiff had suffered an acute severe muscular sprain to the back, there was no evidence of permanent disability from a neurosurgical viewpoint and the plaintiff could return to work.

Subsequently, on June 4, 1976, the defendant requested that the plaintiff return to work. The plaintiff informed the defendant that he was still unable to work. The defendant then terminated the workmen’s compensation benefits being paid plaintiff.

The plaintiff was later examined by Dr. Charles Herlihy, a psychiatrist, and Dr. Rosecrans, a clinical psychologist. Both Dr. Herlihy and Dr. Rosecrans determined that the plaintiff was suffering from an emotional or mental injury.

The plaintiff filed a petition for compensation on December 22, 1976 contending that he continued to be disabled after June 4, 1976 and that he was entitled to compensation benefits for permanent partial disability caused by mental and emotional problems resulting from the accident. After hearing the evidence ore tenus, the trial court awarded the plaintiff compensation benefits for twenty-five percent impairment to earning capacity. The defendant has appealed.

The first issue raised on appeal is whether the plaintiff has suffered an injury which is compensable under the workmen’s compensation law of Alabama.

The testimony at trial was uncontradict-ed that the plaintiff suffered from some type of mental injury. Dr. Herlihy saw the plaintiff on several occasions from May 1977 until May 1978. Dr. Herlihy’s diagnosis was that the plaintiff was suffering from a “depressive illness” or “depressive reaction” which was precipitated by the accident. The plaintiff’s injury was also described by Dr. Herlihy as “psychogenic mus-culoskeletal reaction.” This disorder occurs when a psychic disturbance within a person causes physical pain. The individual experiences anxiety which translates into physical-muscular tension. An example of this disorder would be a tension headache. As a result of this disorder the plaintiff has pain in his back from the accident despite the fact that he suffers from no apparent physical disability. The plaintiff is unable to sit or stand for long periods of time, has pain going down the back of his leg, and is unable to exercise. The plaintiff also has problems sleeping, has nightmares about the accident, and is unable to do physical labor that he was capable of performing before the accident. Dr. Herlihy also testified that he would categorize the mental injury suffered by the plaintiff as moderate to severe and that in his opinion the plaintiff was forty percent to sixty percent psy-chiatrically disabled.

Dr. Herlihy referred the plaintiff to Dr. Rosecrans for the purpose of obtaining a personality profile to aid in his clinical diagnosis. Dr. Rosecrans gave the plaintiff several standard tests used in psychological evaluations including the Minnesota Multi-phasic Personality Inventory, the Rorschach Ink Blot Test, and Rector Adult Intelligence Test. Dr. Rosecrans diagnosed the plaintiff’s injury as “anxiety neurotic” which he testified was causally related to the accident. Both Dr. Herlihy and Dr. Rosecrans stated that the emotional or mental injury the plaintiff suffered would impair his working ability and his acceptability to employers. The evidence clearly shows that the plaintiff has suffered a mental injury which is a direct result of a physical injury incurred while in the employ of the defendant.

Therefore the question becomes whether the mental injury suffered by the plaintiff is compensable. In Fruehauf Corp. v. Prater, Ala.Civ.App., 360 So.2d 999, cert. den., Ala., 360 So.2d 1003 (1978), we held that if it is established by legal evidence that an employee has suffered a physical injury or trauma in the line and scope of his employment and he develops a neurosis as a proximate result of such injury or trauma which neurosis causes or contributes to an occupational or physical disability, such disability is compensable. The defendant argues that Fruehauf should be limited to its facts and to do otherwise would be to unduly expand the workmen’s compensation law. Furthermore, this court’s position concerning compensation for psychic injuries and diseases was stated in Fruehauf as follows:

We recognize the possible difficulty of establishing the existence of or the precipitating cause of any neurosis or psychic disorder. We recognize that there is a distinct possibility of attempted malingering in the absence of objective symptoms. We believe, however, that the difficulty of proof may be overcome by use of expert medical testimony and/or objective evidence. We also believe that malingering will be minimized by the vigilance of a discerning trial judge.

Applying the principles laid down in Fruehauf to the facts in the case at bar, we conclude that the plaintiff has established that the precipitating cause of his psychic disorder was the back injury he suffered while employed by the defendant. Therefore the plaintiff’s injury is compensable.

The next issue for our consideration is whether the plaintiff has suffered an impairment of his earning capacity as a proximate result of this mental disorder.

Alabama law recognizes the rule that where post-injury earnings equal or exceed pre-injury earnings, there exists a presumption that the claimant’s earning ability has not been reduced. Florence Enameling Co. v. Jones, Ala.Civ.App., 361 So.2d 564, cert. den., Ala., 361 So.2d 567 (1978). However, this presumption may be rebutted by (1) independent evidence which demonstrates incapacity, or (2) evidence which tends to indicate that the post-injury earnings are an unreliable basis for estimating earning capacity. Florence Enameling Co. v. Jones, supra.

We have held that the factors which indicate the unreliability of post-injury earnings include:

[A]n increase in general wage levels since the time of the claimant’s accident; claimant’s own greater maturity; receipt of additional training by claimant; longer hours worked by claimant after the accident; payment of wages disproportionate to the claimant’s ability to perform work-related tasks because of sympathy for the claimant; and the temporary and unpredictable character of post-injury earnings received by the claimant.

Florence Enameling Co. v. Jones, supra.

The evidence is uncontradicted that the plaintiff’s present earnings exceed his pre-injury earnings. However, the trial court found that the presumption had been rebutted. The court found that the plaintiff had an employability limitation in the geographical area of thirty to thirty-five percent; that his present job is the only one he could find; that his present employment is with a small business; that he has a personal friendship with the foreman; that promotions and earnings with his present employer could be construed to be the result of special treatment due to his friendship with the foreman and other employees. The findings of the court, as enumerated above, made in support of its conclusion that the presumption had been rebutted, are sufficient to satisfy the rule set out in Florence Enameling Co. v. Jones, supra. However, the trial court also found that the mental record established as a result of the plaintiff’s accident would be a deterrent to future employment. Prospective employers often examine a future employee’s medical history.

In reviewing judgments in workmen’s compensation cases, this court will not look to the weight of the evidence as to any fact found by the trial court, but simply to see if there is any evidence to support the findings of the trier of fact. American Tennis Courts, Inc. v. Hinton, Ala.Civ.App., 378 So.2d 235 (1979). In the case at bar the trial court found that the plaintiff rebutted the presumption that post-injury earnings are commensurate with ability to earn with sufficient legal evidence. We are in agreement and affirm the decision of the trial court.

AFFIRMED.

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


text:
    PRINCE FURNITURE COMPANY v. Robert STANFIELD.
    Civ. 2225.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      Bryce U. Graham, Tuscumbia, for appellant.
    William J. Underwood, Tuscumbia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The plaintiff in substance averred in his complaint that, on or about April 14, 1979, without the permission of the plaintiff or his wife and in their absence, the defendant’s agents entered unlawfully into the plaintiff’s household and stripped the house of various articles allegedly belonging to the defendant; that the defendant’s agents willfully and wantonly destroyed articles in the house when they were removing furniture and flooring of the house; that, somehow and in some way, four hundred dollars in cash disappeared during such removal; and that the defendant’s agents destroyed the plaintiff’s goods. The plaintiff also asked for damages for the illegal trespass into his dwelling and for damages because of the willful and wanton acts of the agents. The defendant did not attack the complaint, but filed an answer generally denying each of the plaintiff’s allegations. The answer did not contain any affirmative pleas. A jury trial resulted in a verdict, and ensuing judgment of the court, for the plaintiff, whose damages were assessed at $3,000. The defendant’s motion for a new trial was overruled by the court.

The defendant appeals and contends that the complaint was insufficient, that the evidence was inadequate, and that the court erred in overruling its motion for a new trial which raised the inadequacy of the evidence, complained that the jury was prejudiced, stated that the court erred in evidentiary rulings, and asserted that the judge’s oral charge was patently unlawful, illegal and misleading.

We have minutely studied the three hundred forty-three pages of the transcript, and, if the defendant raised in the circuit court the defense of failure of the complaint to state a claim upon which relief could have been granted, such objection has eluded our search. Nevertheless, we are of the opinion that the complaint avers valid claims against the defendant. Under ARCP Rule 8, we now have notice pleading in simple, concise and direct averments. Precision and niceties are generally no longer necessary since no technical forms of pleading are required. The complaint gave to the defendant adequate notice of the plaintiff’s claims even if it failed to be a paragon of clarity. Motions to dismiss or for a more definite statement were not filed on the defendant’s behalf.

Only tendencies of the evidence favoring the verdict will be briefly summarized. State Farm Mutual Automobile Insurance Co. v. Boyer, Ala., 357 So.2d 958 (1978).

Within the line and scope of their employment, two of the defendant’s employees were ordered by another of the defendant’s employees, who was charged with such responsibilities, to proceed to the plaintiff’s home and repossess certain items of furniture and six rugs of vinyl floor covering upon which the defendant had a conditional sales contract with the plaintiff being in default. The two employees entered the plaintiff’s home without his permission or knowledge and removed the furniture. No one was at home when they arrived. The agents opened the unlocked front door. The plaintiff’s mother, who lived nearby, observed their entry and twice asked them not to do anything in the absence of the plaintiff.

The two employees telephoned the defendant’s place of business and, when the mother again remonstrated against the removal of the rugs, they stated that they had to do their job. They had been instructed via telephone to take the rugs, which, at the time, were installed wall-to-wall under the baseboards, with quarter round molding in place. The floor covering was glued and tacked to the floor and became a permanent fixture. The plaintiff had installed the rugs in the three rooms and a hall, expending three and one-half days in this work.

When removing the rugs, the employees destroyed some quarter round, loosened from the wall and split some of the baseboard, tore the rugs into pieces or strips (leaving some of it still glued and/or tacked to the floor), folded the pieces of the rugs to remove them, broke a vase or statue and a picture frame glass, pulled the kitchen sink from the wall, thereby breaking the wooden sink cabinet, broke sheetrock in the den, and loosened the joints in an antique table. The $400 was missing, with the employees being the only persons in the house in the interim.

A short while after the defendant’s employees left, the plaintiff and his family returned home, whereupon his mother immediately informed him of who had entered the house in his absence. Before the two employees arrived at the defendant’s place of business, the plaintiff called the defendant’s president about the repossessions and expressly complained of the missing $400. He also notified law enforcement officials, who made an investigation. The district attorney advised him to employ counsel, hence this suit.

There was evidence as to the value of some items. The day before the repossession, the plaintiff had sold his house for $9,000, the reasonable value thereof, but he and his family still resided therein. In its damaged condition, the house was reasonably worth $7,000. The plaintiff settled the damage with the house purchaser for $2,000. The purchaser testified that she had already expended over $2,700 in repairs and in replacement of the floor covering. The plaintiff had a right of possession sufficient to support an action in trespass. Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961).

In view of all of the evidence and reasonable inferences therefrom, a jury question was presented, and the trial judge properly submitted the case to the jury for their decision. A jury’s verdict is presumed to be correct; and the trial judge’s refusal to grant a new trial adds verity to the propriety of the verdict and thereby strengthens the presumption in its favor. 2A, Ala.Dig., Appeal & Error 930(1). After allowing all reasonable presumptions in favor of the correctness of the verdict, we cannot say that the verdict was clearly wrong.

The motion for a new trial averred that the verdict against the defendant was returned because of prejudice and influence by people, information and matters outside of the evidence and trial of the case. The sole evidence in support of this ground of its motion consisted of the testimony of the twelve jurors which sought to impeach the verdict. The only argument in brief is a bare reiteration of the ground stated in the motion for a new trial. The plaintiff’s attorney objected to all questions propounded to the jurors concerning the reason for the verdict and pertaining to their deliberations.

A due regard for the proper and orderly administration of the law, a proper regard for the solemnity of verdicts of jurors, as well as a sound public policy forbid that members of a jury, after they have made their deliverances in court, should be allowed to impeach their verdicts.

Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641 (1932).

We, therefore, cannot consider the testimony of the twelve jurors, which leaves the averments as to this ground in the defendant’s new trial motion without any proof or argument supporting it.

The broad ground in defendant’s motion for a new trial without any specificity complaining of the actions of the circuit court in sustaining the plaintiff’s objections to the defendant’s questions and in overruling the defendant’s objections as to the plaintiff’s questions is too general. No pertinent argument is contained in the brief of appellant. Under these circumstances, we find no error as to any evidentiary ruling by the trial judge.

The last contention of the defendant is that the lower court erred in charging the jury in certain instances and in failing to charge as to certain propositions of law. At the conclusion of the judge’s charge to the jury, the trial judge asked if either side had any exceptions to the charge and counsel for the defendant stated, “No, sir, we haven’t.” The defendant did not request the giving of any charge in writing, or otherwise, and did not object to any portion of the oral charge of the court. Rule 51, ARCP, provides in part:

No party may assign as error . the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.

See also Great Northern Land & Cattle, Inc. v. Firestone Tire & Rubber Co., Ala.Civ. App., 337 So.2d 1323 (1976). Here, there was no attempt to comply with the requirements of the rule.

The judgment of the circuit court is affirmed.

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

AFFIRMED.

All the judges concur.


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    Belinda Rae WARREN v. Dennis Ray WARREN.
    Civ. 2243.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      John B. Terry, Bessemer, and Douglas P. Corretti of Corretti, Newsom & Rogers, Birmingham, for appellant.
    William N. Clark of Redden, Mills & Clark, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals contending the trial court abused its discretion in awarding custody of the parties’ two children to the husband, in the division of property, and in failing to award periodic alimony.

We affirm the award of custody and division of property and reverse for failing to award periodic alimony or reserve the right to award alimony in the future.

Viewing the record with the attendant presumptions, the following facts are revealed: The parties have been married for eleven years and have two daughters, ages two and four. Other than a house, two automobiles, a travel trailer, twelve purebred dogs, and the usual household furnishings, the parties have no significant property-

The husband is thirty-six years old and is employed earning approximately $40,000 a year. He admitted having engaged in an adulterous relationship and admitted that this relationship continued and existed at the time of trial. The husband testified he intends to marry the woman involved in the adulterous relationship.

The wife is thirty-three years old. She has a history of psychiatric problems. In early 1972 she was under the care of a psychiatrist who found her “to have excessive superficial neurotic tendencies and a possible underlying schizophrenic reaction.” During that same year she was hospitalized for treatment of severe depression. This treatment included electro-convulsive therapy and medication. She was hospitalized again in January of 1979 for treatment of a drug overdose. The overdose occurred after an argument with her husband and resulted from the ingestion of approximately thirty Ativan tablets.

The wife has a high school education and during the marriage has only been employed sporadically. Immediately prior to the divorce the wife was engaged in the business of raising and selling purebred dogs. In the five months prior to the divorce she sold a number of the dogs for approximately $1,100. She is currently employed as manager of a dog kennel. In exchange for her services she receives room and board. The owners of the kennel told her that they might make her a partner in the business. She took the job with that expectation. She testified that her employers did not make a profit from the business and that she did not expect to be able to make a living from it.

At the time of trial the parties were separated. The wife had moved to Missouri to manage the aforementioned dog kennel, while the husband remained at the home-place with the children. The husband cared for the children. There is evidence that in large measure he has cared for the children since their births. He has fed them and has regularly bathed them and prepared them for bed.

Immediately prior to the divorce the husband was in possession of the household furnishings and an automobile. The wife had in her possession an automobile, the aforementioned travel trailer, her clothing, and various household furnishings, appliances, and utensils.

At the time of trial the wife had approximately $125 and owed the kennel owners approximately $1,200.

After an ore tenus hearing the trial court awarded custody of the children to the husband, ordered the sale of the house with the proceeds to be divided equally between the parties, and awarded each the personal property in his or her possession. The personal property awarded the wife included an automobile and the travel trailer. The husband was ordered to pay the outstanding indebtedness on these two items. The wife was awarded $1,200 as alimony in gross. There was no award of periodic alimony to the wife.

The wife first contends the trial court abused its discretion in awarding custody of the two children to the husband. At the outset, we note that in all cases involving the custody of children the best interest and welfare of the children is the predominant consideration. Gandy v. Gandy, Ala.Civ.App., 370 So.2d 1016, writ denied, Ala., 370 So.2d 1019 (1979); Keele v. Keele, Ala.Civ.App., 347 So.2d 1360 (1977). The wife contends the tender years doctrine precludes an award of custody to the husband. The age and sex of the child are factors to be considered by the trial court in determining the children’s best interests. The fact that children are of tender years does not, in and of itself, preclude awarding custody to the husband. Jenkins v. Jenkins, Ala.Civ.App., 376 So.2d 1099, cert. denied, Ala., 376 So.2d 1101 (1979); Clift v. Clift, Ala.Civ.App., 346 So.2d 429, cert. denied, Ala., 346 So.2d 439 (1977). She further contends the husband’s adultery should bar custody. Again, the misconduct of either spouse is only one factor to be considered in determining the children’s best interests. Cozad v. Cozad, Ala.Civ.App., 372 So.2d 1322 (1979); Mason v. Mason, 276 Ala. 265, 160 So.2d 881 (1964).

In view of the facts as indicated above with particular emphasis on the wife’s history of psychiatric problems, we cannot say that the trial court so abused its discretion as to require reversal. To do so would substitute our judgment for that of the trial judge. This the law will not permit. Sutton v. Sutton, Ala.Civ.App., 359 So.2d 392 (1978).

The wife contends the trial court abused its discretion in the division of property. The division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Ray v. Ray, Ala.Civ.App., 379 So.2d 627; 8 Ala. Digest Divorce Key 286(5). With the facts set forth above in mind, we cannot say the trial court abused its discretion. The division of property is affirmed.

Finally, the wife contends the trial court abused its discretion in failing to award her periodic alimony. An award of periodic alimony is a matter within the judicial discretion of the trial court. An exercise of that discretion will not be reversed except for palpable abuse. White v. White, Ala.Civ.App., 374 So.2d 335, writ denied, Ala., 374 So.2d 337 (1979); 8 Ala. Digest Divorce Keys 286(2), (3) and (5).

While there are no fixed standards for determining whether periodic alimony is to be granted, there are factors the trial court should consider. These include the future prospects of the parties, their ages, sex, health, station in life, and how long they were married. Kabaci v. Kabaci, Ala. Civ.App., 373 So.2d 1144 (1979); Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, writ quashed, Ala., 350 So.2d 1045 (1977); White v. White, supra. These same factors should also be considered in determining the amount and duration of the award.

As indicated above, the wife has no separate estate. While she has a high school education and has worked in the past, her employment record is meager and sporadic. Her present employment at the kennel is for room and board, and while her employers have indicated the possibility of a partnership, that prospect is not altogether certain. Her ability to earn money from the sale of purebred dogs has been demonstrated, but her ability to earn a livelihood from that activity has not.

Considering the husband’s earning capacity, the uncertainty of the wife’s future prospects and her history of psychiatric problems, we find that the learned and distinguished trial judge did abuse his discretion in failing to award the wife some amount of periodic alimony, or in failing to reserve the right to award alimony in the future. We reverse the decree only insofar as it relates to the wife’s periodic alimony. Additionally, in this instance we find that the trial court is in a better position to determine the specifics regarding periodic alimony.

This case is due to be affirmed in part, reversed in part, and remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


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    John HOSKINS v. James C. NICHOLS and Anna Louise Nichols.
    Civ. 2247.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      L. Dan Turberville, Birmingham, for appellant.
    James L. O'Kelley, Birmingham, for ap-pellees.
   BRADLEY, Judge.

This is an adoption case.

The record on appeal does not contain a transcript of testimony. The facts that will be hereinafter recited have been gleaned from the pleadings, affidavits, exhibits, reports by the Department of Pensions and Security, and the trial court’s interlocutory and final judgments.

The child involved in the adoption proceedings was born on August 9, 1978 to Mary Jane Askew Long. The baby will be referred to as “Baby Boy Askew.” Mary Jane was married to J. D. Long at the time of the birth, although she had filed a petition for divorce. The Longs had been separated for three years. J. D. Long was serving a prison sentence in Nashville, Tennessee during their separation.

Mary Jane and John Hoskins lived together in Fairview, Tennessee from June 1977 to July 1978. Sometime during the latter part of July 1978 Mary Jane left Hoskins and moved to Birmingham, Alabama. Shortly after arriving in Birmingham she became acquainted with the appel-lees, James and Anna Louise Nichols, who wished to adopt her unborn baby.

Baby Boy Askew was born in Birmingham on August 9, 1978 and the Nicholses filed their petition for adoption in the Probate Court of Jefferson County on August 18, 1978 with the written consent of the natural mother.

The petition stated that the name and address of the child’s natural father were unknown and that his consent was not required. The sworn statement of consent by Mary Jane which was also filed with the court stated that she was the natural mother and consented to the adoption. Also filed with the court was the baby’s birth certificate naming the mother but leaving blank the name of the father.

Mary Jane filed an affidavit with the court stating that on the date of the child’s birth she was unmarried and did not know the identity of the child’s father.

On August 18, 1978 the probate court set October 17,1978 as the date for hearing the adoption petition. The court then referred the matter to the Department of Pensions and Security of the State of Alabama for an investigation and report.

The report filed by the Department stated that according to the birth certificate, the natural mother was Mary Jane Askew and that no father was listed; no information was available regarding the father of the child; and the home conditions of the Nicholses were favorable.

On October 17, 1978 the probate court entered an interlocutory decree finding the child was suitable for adoption by the Nich-olses. The court further ordered that the petition for adoption be conditionally granted and, unless just cause was shown to the contrary, the decree would be made final in six months.

In January 1979 the appellant, John Hos-kins, who claims to be the child’s natural father, learned through the Blount County Department of Pensions and Security of the pending proceedings in the Jefferson County Probate Court. On April 12, 1979 he filed a petition in the probate court averring that he is the natural father of the child; that he and the child’s mother were not married; that he has at all times acknowledged the child as his own; that Mary Jane knew the identity of the father but falsely swore she did not know; that he was not notified of the adoption proceedings, and he requests the court to set the interlocutory order aside and hold a new hearing.

The appellant’s petition was heard on April 24, 1979. At this time John Hoskins did not appear personally, but appeared through his attorney. On that same day, after consideration of all the evidence, the court found that more than six months had elapsed since the granting of the interlocutory decree; that the child had resided in the home of the Nicholses for six months; that the representatives of the Department of Pensions and Security had visited the child and the home and made a report; and that no valid cause exists why the child should not be legally adopted. Based on these findings, the court entered a final decree of adoption.

An appeal was filed with the Circuit Court of Jefferson County. After hearing the testimony ore tenus without a court reporter present, the circuit court affirmed the final order of adoption. This appeal followed.

In the absence of a transcript of testimony in the record, a decree reciting that it is based on the pleadings, proofs and testimony will not be disturbed. Davis v. Davis, 278 Ala. 328, 178 So.2d 154 (1965). And it will be presumed that the evidence was sufficient to support the decree or judgment where all the evidence is not in the record. Davis v. Davis, supra. In the absence of the evidence upon which it is based, the trial court’s decree must be upheld unless it appears that the court was without jurisdiction. Davis v. Davis, supra.

Hoskins argues that the trial court, was without jurisdiction because the required consent for the adoption had not been given as required by law.

Section 26-10-3, Alabama Code 1975, provides:

In case of illegitimacy, the consent of the mother alone shall suffice, except where paternity has been established.

It is undisputed that the child was illegitimate, that the mother consented to the adoption, and that paternity had not been established. Based on this evidence, it cannot be disputed that the trial court had jurisdiction to grant the adoption petition of the Nicholses.

Hoskins’ next contention is that a fraud was perpetrated upon the court when: (1) the Nicholses failed to notify the probate court of the names of both of the child’s parents; (2) the Nicholses failed to notify the court that the natural mother was living with a man at the time the child was conceived; and (3) the natural mother signed a sworn affidavit to the effect that she was not married at the time the child was born.

As for the first allegation of fraud, Hoskins argues that the Nicholses violated § 26-10-1 of the Alabama Code 1975 which requires that a petition of adoption shall contain:

[T]he name or names and place or places of residence of such father and mother, unless proven to be unknown to the petitioner; .

The Nicholses stated in their petition for adoption that the name and address of the child’s father was unknown. There is nothing in the record to indicate that they knew otherwise. The mother of the child stated in an affidavit that she did not know the identity of the child’s father. We conclude therefore that the name and address of the child’s father was unknown to the Nichols-es. Hence there was compliance with § 26-10-1.

The remaining allegations of fraud asserted by Hoskins are that the Nicholses failed to notify the court that the natural mother was living with a man at the time the child was conceived and that the natural mother signed an affidavit stating she was not married at the time the child was born, although she was, in fact, legally married to J. D. Long.

There is nothing in the record to indicate that the Nicholses knew that Hos-kins was living with Mary Jane at the time the child was conceived. Furthermore, there is certainly no statutory requirement that such a disclosure, even if known, be made. Therefore we hold that the petitioners did not perpetrate a fraud upon the court in this instance.

Hoskins concludes by arguing that he was denied due process and equal protection of the law in that he was not given notice of the adoption proceedings and was not given an opportunity to be heard.

There is nothing in the record that eyen remotely suggests that the trial court erroneously failed to notify Hoskins of the pendency of the adoption proceedings. In her affidavit, the mother stated that she did not know who had fathered the child. And, the Nicholses alleged in their adoption petition that they did not know the name or whereabouts of the child’s father, and the record does not dispute this assertion. Thus, we conclude that the trial court did not err in failing to notify Hoskins of the pendency of the adoption petition.

Although we have concluded that the record fails to support Hoskins’ contention that he should have been notified of the adoption proceedings, we would point out that Hoskins was allowed to intervene in the adoption proceedings and to attempt to show that he was the natural father of the child. And the trial court conducted a hearing on his motion even though he did not personally appear. Thus the record clearly shows that Hoskins did have an opportunity to prove his parentage.

The judgment of the trial court is affirmed.

AFFIRMED.

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


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    Charles L. WILSON v. CROSBY LUMBER COMPANY.
    Civ. 2268.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      Warren L. Finch and Ann E. Taylor of Finch, Shoemake & Taylor, Mobile, for appellant.
    James H. Crosby of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   WRIGHT, Presiding Judge.

The Circuit Court of Baldwin County dismissed with prejudice the plaintiff’s complaint for failure to comply with a prior order compelling discovery. After the time for appeal had lapsed, the plaintiff filed, and the trial court denied, a Rule 60(b), ARCP motion for relief from the order of dismissal. Plaintiff appeals and defendant moves to strike portions of the plaintiff’s brief and dismiss the appeal. The defendant’s motions are denied. The trial court’s denial of the 60(b) motion is affirmed.

MOTIONS

The defendant’s first motion is to “Strike Portions of Appellant’s Brief.” The defendant points out numerous instances where the plaintiff has alleged facts, made statements and referred to documents in his brief which are not supported by the record. In addition, the certificate of service contained in plaintiff’s brief states that defendant was served by mail on May 22, 1980. Defendant’s counsel’s affidavit and a copy of a letter purportedly from plaintiff’s counsel indicate that the brief was not mailed until May 26, 1980. Also, as pointed out by the defendant, the plaintiff does not make any reference in his brief to the record as required by Rule 28, ARAP.

The defendant’s second motion is to dismiss the instant appeal on grounds that the plaintiff has failed to make references in his brief to the record and that plaintiff’s certificate of service is incorrect.

The dismissal of an appeal for failure to comply substantially with the Rules of Appellate Procedure is discretionary. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (1977).

We read the record in our cases. We thereby become immediately aware if a party’s brief or oral argument refers to matters extraneous to that record. We consider such occurrences in the light of whether there is a clear intent to mislead the court or whether it appears counsel is merely caught up in the zeal of his advocacy. If the first is believed to have occurred, we may exercise our discretion via sanctions. If we believe the latter, we may excuse it. In any event, matters outside the record will not be considered. In this instance we opt for leniency, particularly in view of the absence of indicated prejudice to defendant. We note that defendant’s brief was timely filed and is excellent. Defendant was clearly not prejudiced by the incorrect certificate of service. Although absence of reference to the record makes plaintiff’s brief more difficult to verify, in this case we do not consider it sufficient reason to strike the plaintiff’s brief or dismiss the appeal. We do not consider our decision to be precedential. Each case will be determined on its own circumstances. We do not condone such departure from the appellate rules.

MERITS

The record before us is meager and reveals that the defendant filed interrogatories and requested production of documents on January 4 and March 29, 1979. On May 17 defendant moved to compel response. The court granted the motion to compel on June 18 and set the date for compliance as June 20.

On September 9 the defendant moved to dismiss the complaint for failure to comply with the June 18 order. The court dismissed the action on October 4.

Plaintiff’s motion to set aside the dismissal was denied on October 31. No appeal was taken from the dismissal of the plaintiff’s action.

On January 24, 1980, the plaintiff filed a Rule 60(b), ARCP motion for relief from the order of dismissal. The Rule 60(b) motion was denied. Plaintiff appeals.

We note that the denial of a 60(b) motion does not present for review the correctness of the judgment sought to be set aside. It is limited to deciding the correctness of the order denying Rule 60(b) relief. Raine v. First Western Bank, 862 So.2d 846 (Ala. 1978).

In order to obtain relief under 60(b), the movant must allege and prove one of the grounds set out under the rules. Raine, supra. Whether to grant relief on the grounds of mistake, inadvertence or excusable neglect is a matter within the discretion of the trial court. The trial court’s determination to deny the relief will not be reversed on appeal absent abuse of its discretion. Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala. 1978); 2A Ala. Dig., Appeal & Error, Key No. 982(1).

In this instance the plaintiff alleges that the order of discovery was complied with to such extent that dismissal was improper. He insists that the interrogatories were, in fact, answered and hand delivered to defendant’s counsel on September 10, 1979, the date set for trial. He further alleges that the reason the answers to interrogatories were not filed and made part of the record was because of mistake or excusable neglect on the part of plaintiff’s counsel or the circuit clerk’s office.

In addition, the plaintiff alleges that the requests for production of documents were unanswered because defendant’s counsel agreed to obtain the information via deposition of the plaintiff’s medical witness.

There is nothing in the record to support any of the allegations put forth. If there were affidavits or testimony in support of the 60(b) motion, they are not before us. Allegata non probata are worthless. We must assume in the absence of a record that the facts support the judgment of the trial court. Summerlin v. Bowden, 353 So.2d 1175 (Ala.Civ.App. 1978); King v. Smith, 288 Ala. 215, 259 So.2d 244 (1972).

We cannot say the trial court abused its discretion as to require reversal in denying the Rule 60(b) motion. Maddox, supra.

This case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.