author: HOLMES, Judge.

text:
    Laurie K. MACK v. James Sephus MACK.
    Civ. 2194.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.
    Rehearing Denied Oct. 22, 1980.

      C. Lynwood Smith, Jr. of Hornsby, Blankenship, Smith & Robinson, Huntsville, for appellant.
    Gary C. Huckaby of Smith, Huckaby & Graves, Huntsville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals, contending that the trial court abused its discretion in the award of periodic alimony and in the division of property. We find the trial court did commit reversible error in the award of periodic alimony and/or division of property-

viewing the record with the attendant presumptions afforded the trial court, the following is pertinently revealed: The parties were married approximately fourteen years. Three children were born of the marriage, all of whom were minors at the time of the divorce.

The husband’s father died in 1968, leaving the husband a substantial inheritance. The family’s gross income for the six years immediately preceding the divorce averaged slightly in excess of $47,000 per year. Although the parties disagree over terminology, the husband’s earned salary, on average, contributed approximately 23% toward this total while the “total cash received” from the inherited property contributed approximately 77%. Thus, even though the husband worked throughout most of the marriage, it is uncontroverted his inheritance was used to support the family’s very comfortable standard of living.

The wife did not work during the course of the marriage. However, before marrying the husband she did hold a job in which she did general office work. She ceased attending college on a regular basis when the couple married and has earned college credits which place her on the second semester sophomore level.

At trial, both parties gave testimony which tended to place blame of the marital breakdown on the other. The husband stated the wife spent money lavishly, dissipating the inheritance. He further complained that she failed to keep the family’s house in even a modest condition of cleanliness, describing the house as being “like a pigpen.”

The wife offered testimony which established the husband had committed adultery several times through the course of the marriage. She gained this knowledge due to a relationship the husband developed with a young woman who worked with him. The husband brought this young woman into the home on several occasions as a baby-sitter and something of a friendship developed between her and the family. Thereafter, this friendship broke off when the wife learned of the true nature of the relationship. Several months later, the husband moved out and took up residence with the young woman. The husband admitted to this affair and several others. He testified he intended to marry the young woman alluded to above.

The trial judge granted a divorce to the wife on the grounds of adultery and to the husband on the grounds of incompatibility. Under the decree of divorce, the wife is to receive $200 per month periodic alimony for a period of 121 months. The wife received custody of the three minor children and the husband is to pay $250 per month in child support for each child.

In effecting a division of property, the husband was awarded property held in his name which had a value of nearly $300,000. Of this, approximately $190,000 of the property is income producing. The wife was awarded property held in her name which was worth approximately $35,000. Some $13,000 of this property is income producing. The remainder consisted of two automobiles, two pistols, and the wife’s jewelry.

The judge also ordered that certain jointly held property be sold with all encumbrances to be paid from the proceeds of the sale. This property includes the family’s residence and those household furnishings not already awarded the husband. The decree is silent as to how the proceeds of the sale are to be disposed of after payment of costs and encumbrances. These proceeds should amount to approximately $90,000.

The wife appeals, contending the award of alimony and the division of property are so inadequate as to require reversal. Through able counsel, she argues the trial judge was led to such error due to his reluctance or refusal to consider the property inherited by the husband in fashioning the decree.

At the outset, we again quote the proposition that when a trial court renders a decree after an ore tenus hearing, the decree is presumed correct if supported by the evidence. Furthermore, the division of property and the amount of alimony are matters within the sound discretion of the trial court and we will not reverse unless there is a palpable abuse of that discretion. See, Marks v. Marks, Ala.Civ.App., 365 So.2d 1231 (1979); Malkove v. Malkove, Ala.Civ.App., 349 So.2d 52 (1977); 8 Ala. Digest Divorce Keys 286(2), (3), and (5). The exercise of this discretion, however, is judicial, not arbitrary, and is reviewable on appeal. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975).

Furthermore, each case must be decided on the basis of its own facts and circumstances. There are no fixed standards for determining either the amount of alimony or for dividing the parties property. Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975). That is to say, the division of property does not have to be equal but is to be equitable and graduated according to the nature of the case. Campbell v. Campbell, 51 Ala.App. 295, 285 So.2d 105 (1973).

While the source of the marital property may be considered, along with other circumstances and factors, it is not controlling. Mullins v. Mullins, Ala.Civ.App., 344 So.2d 511, cert. denied, 344 So.2d 515 (1977). In making ah equitable division of the property, there is no requirement that the trial court should attempt to put aside assets obtained in the past by inheritance or gift when these assets become the property of both spouses. Bouler v. Bouler, Ala.Civ.App., 366 So.2d 290 (1979); Campbell v. Campbell, supra. Thus, there is no error in ordering the sale and division of property owned by one party merely because that party inherited the property, provided the equities require such a step. Mullins v. Mullins, supra.

Consequently, the source of the property is merely one factor to be considered. Other factors to be considered are the future prospects of the parties, their ages, sex, health, station in life, how long they were married, and in appropriate cases, the conduct of the parties with reference to the cause of the divorce. Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, cert. quashed, 350 So.2d 1045 (1977). Also, where there are minor children to sustain and rear, the well-being of the children is an important consideration. Ray v. Ray, Ala.Civ.App., 379 So.2d 627 (1980); Bailey v. Bailey, Ala.Civ.App., 345 So.2d 304 (1977).

It is clear to this court that the distinguished trial judge placed heavy emphasis on the source of the property in fashioning his decree. Indeed, the record indicates he follows a general policy of not dividing property inherited by either of the parties. In explaining this policy, the trial judge said, “. . . I could conceive of a case that you could show to the court that would cause that policy to change. I would say that it would be difficult ....”

This is not the burden which the law of Alabama places upon a party to a divorce in a case such as this. Other factors, apparently overlooked but equally important, were the lack of marketable skills of the wife, the children’s need for care and support which encompasses a place to reside, the standard of living to which the wife had grown accustomed, and the fault of the husband in causing the divorce.

As indicated, the residence and furniture of the parties was to be sold. The decree is silent as the disposal of the proceeds of the sale. The husband received property worth roughly $300,000, the wife property worth approximately one-tenth that amount. Less than half the property the wife received was income producing.

The above, when considered with the amount of the award of periodic alimony, to this court, requires a finding of such an abuse of discretion as to require reversal.

The wife, who had become accustomed to a high standard of living during the marriage and had no marketable skills, was left with $200 per month periodic alimony. Said alimony was to terminate in 121 months. To this court, this is palpably insufficient. See, Shirley v. Shirley, supra.

What is more, the relative fault of the parties in causing the marital rift was apparently overlooked. If fault there be in the wife due to her spending habits and apathetic approach to household chores, it is certainly overcome by the husband’s admitted extramarital affairs. This is especially so in light of his bringing his paramour into the family home under the guise of friendship. See, Foreman v. Foreman, Ala.Civ.App., 379 So.2d 89 (1980); Robinson v. Robinson, Ala.Civ.App., 381 So.2d 637, writ denied, 381 So.2d 641 (La.1980).

We would add that we have not decided this case on authority of § 30-2-51, Code of Ala. 1975 (1979 Cum.Supp.), as amended by Acts 1979, No. 79-486, § 1. This statute became effective on July 27,1979, after the submission of the ease but before the decree was rendered. See, Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978).

However, even if we were to apply this statute the result would be the same, for it states that in a divorce case the judge may not take into account any property acquired by inheritance or gift, “unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.”

Here, there was uneontroverted evidence, in this instance, the parties had used the inherited property and the income produced therefrom to support their chosen style of living. Thus, the factors we have found relevant in deciding this case should have been considered by the trial judge. The failure to do so, in this instance, amounts to reversible error.

We would be remiss in not commenting that we decline to set what this court would consider to be a proper amount to be awarded in the division of property and/or the amount of any award of periodic alimony. These specifics are best determined by the learned trial judge in light of what we have heretofore stated.

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

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

ON REHEARING

In this court’s original opinion, we stated that the decree of divorce was silent as to how the proceeds from the sale of the parties’ homeplace were to be divided.

Able counsel for the husband, in his brief in support of rehearing points out to this court that the above is incorrect. Counsel is eminently correct. The trial court amended its decree to provide that the proceeds from the sale of the home were to be equally divided.

The paragraph in question should read as follows:

“The judge also ordered that certain jointly held property be sold with all encumbrances to be paid from the proceeds of the sale. This property includes the family’s residence and those household furnishings not already awarded the husband. The proceeds from the sale are to be equally divided. These proceeds should amount to approximately $90,000.”

We do not find the above in any other aspect alters what we have heretofore stated.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

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

      . The parties on this appeal make no point of the trial court’s action in this regard. This court therefore makes no particular comment regarding this aspect of the decree. We would be remiss in not stating that this aspect of the decree is unusual. See, Cooper v. Cooper, 57 Ala.App. 674, 331 So.2d 689, cert. denied, 331 So.2d 695 (1976).


source: Caselaw Access Project

license: Public Domain

text:
    Colin Raymond KELEHER v. Julia Stevens KELEHER.
    Civ. 2304.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1980.

      Norman J. Gale, Jr. and R. Edward Massey, of Clay, Massey & Street, Mobile, for appellant.
    Thomas M. Taul, III of Seale, Marsal & Seale, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

After a trial before the court, the parties were divorced with the custody of the two minor children being divided between the parents. The husband was awarded custody of Cindy, and Billy’s care and control went to the wife. The plaintiff (appellant, father, husband) was ordered to maintain hospitalization insurance upon the minor children, to be responsible for all of their major medical expenses, and to keep a life policy during their minority, with the minor children being its beneficiaries. The possession of the jointly owned home was granted to the wife until such time as Billy reached nineteen years or she remarries, at which time the home shall be sold and the equity divided, with the husband, in the meantime, to make the $200 per month house mortgage payments, the mortgage balance presently being around $29,000. Each party was awarded the particular vehicle which they were then driving. The husband was directed to pay all of the joint bills and debts incurred during the marriage; however, there was no evidence that any such indebtedness existed. The wife was awarded $14,000 as alimony in gross, with $4,000 thereof to be paid within thirty days and the balance to be paid at the rate of $200 per month; and, in addition, the plaintiff was ordered to pay the defendant $400 each month as child support and periodic alimony and to be responsible for Billy’s educational expense up to the amount of $1,750 per year. The wife was further awarded savings bonds with a face value of $900 and the proceeds in a savings investment account of $10,000. The plaintiff was directed to pay a $500 fee to his wife’s attorneys.

The husband appeals and contends that “the trial court abused its discretion in its property distribution and awards of alimony and child support in favor of the wife.”

The parties' were married for twenty years. They separated in February 1979. The husband was employed as a professional engineer and enjoyed ten years seniority. His employer provides an employee retirement plan. The annual gross salary of the plaintiff was $38,100; with his net monthly salary being $1,938, plus an additional $170, which was available to him but which was voluntarily withheld from his earnings for savings bonds and savings investments. His testimony indicated that his personal expenses totaled $692 per month, excluding expenses for the minor children and house mortgage payments. We doubt, however, that such amount is fully inclusive or accurate, for we do not have the benefit of his financial statement which was before the trial court, but which was not introduced nor marked as an exhibit. Some of the tendencies of the evidence were that the plaintiff was very frugal with regard to expenditures on behalf of, or allowances to, his family, particularly to his wife.

Cindy, the seventeen year old daughter, attends a junior college in California. He sends to her $167 per month for her room and board. A nineteen year old daughter resides with him and attends Springhill College. Billy, who was eleven years of age, lives with the defendant.

The defendant has had almost two years of college. She is thirty-eight years of age. While she has not been employed since 1977, she is presently able to work.

The jointly owned home was worth approximately $56,000. The plaintiff had a savings account of $4,000, the savings investment plan of $10,000, the $900 in savings bond and he possessed a recreational vehicle. The defendant’s savings account consisted of $1,000, which was inherited from her grandfather. The automobile of each party undoubtedly will need to be replaced shortly.

Not counting the travel trailer and his automobile, the husband’s net worth was $33,400, consisting of his one-half equity in the home, the savings account, the investment account and savings bonds. As alimony in gross or as a division of property, he was ordered to presently pay a total of $14,900, consisting of $4,000 as alimony in gross, the investment account and savings bonds.

The husband’s monthly payments to the defendant, or on her behalf, or on behalf of Billy, total $846, constituted by the following:

(1) $400 - child support and periodic alimony,
(2) $200 - alimony in gross,
(3) $146 - average education expense for Billy,
(4) $100 - one-half of monthly house mortgage payment.

That portion of item (1) which is child support, and all of item (3), will legally terminate, at the latest, when Billy reaches nineteen years of age. Item (2) will cease after fifty monthly payments, and item (4) will not continue after the house is sold.

These awards allow an adequate, ample and reasonable length of time and opportunity for the defendant to make economic and life style adjustments, such as the renewing of her education, if she so desires, and the obtaining of suitable permanent employment. However, the alimony diminishes with time so as to possibly prevent unnecessary lifetime economic dependence solely upon an ex spouse. The amounts of the awards and their total scheme are not unreasonable.

In divorce cases, the division of the property of the parties need not be equal, but a division is required according to the nature of the case. Cobb v. Cobb, Ala.Civ.App., 352 So.2d 1384 (1977); Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, writ quashed, 350 So.2d 1045 (1977), appeal after remand, 361 So.2d 590 (1978); Nix v. Nix, Ala.Civ.App., 348 So.2d 802 (1977). Each of those cases also echoes the basic premise that, when a trial judge personally conducts the trial, his judgment is presumed to be correct upon appeal and will not be altered, if it is supported by legal evidence, unless it is unjust or palpably wrong. The division of property, the award of alimony and the amount of child support are interrelated, and, of necessity, are matters within the sound discretion of the trial judge. We do not find the judgment of the circuit court to be palpably wrong. There was no abuse of judicial discretion.

We affirm.

The wife has requested of this court that an award of an attorney’s fee be made to her attorney on appeal. This request is granted. The appellant shall pay to the attorneys of record for the appellee the sum of $500 to be applied upon their fee in this case in this court.

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

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Tyrone P. GRAY alias v. STATE.
    3 Div. 69.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.
    Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Sp. Asst. Atty. Gen., Montgomery, for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

With his consent, appellant was tried by the court without a jury on an indictment charging him in pertinent part as follows:

“Tyrone P. Gray, alias, Tyrone Gray, an agent of an association of persons, to-wit, the United Memorial National Bank, In Organization, did embezzle or fraudulently convert to his own use, money to about the amount of $65,000, which came into his possession by virtue of his agency.”

The court found him guilty, fixed his punishment at imprisonment for five years, but granted probation on terms that will hereinafter be stated.

Before the hearing commenced and any testimony was taken, defendant filed a plea of autrefois convict and a Motion to Dismiss based on Code of Alabama 1975, § 15-3-8, as follows:

“Any act or omission declared criminal and punishable in different ways by different provisions of law shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.”

The former conviction and the other punishment imposed that constitute the basis of the plea and the Motion to Dismiss were in a prosecution against this appellant in Gray v. State, Ala.Cr.App., 364 So.2d 694 (Nov. 21, 1978).

According to the plea of autrefois convict in this case, the indictment in the other case, on which it appears that defendant was convicted on February 14, 1978, was in pertinent part as follows:

“. . . did, wilfully and unlawfully, in connection with the offer, sale or purchase of a security, to-wit: capital stock issued by the United Memorial National Bank (hereinafter referred to as “said stock”), In Organization, directly or indirectly, (1) employ a device, scheme or artifice to defraud or (2) engage in an act, practice, or course of business which operated or would have operated as a fraud or deceit upon a person, as follows, to-wit: that said Tyrone P. Gray wilfully and unlawfully converted to his own personal use monies paid for the purchase of said stock by securities purchasers, to-wit: James V. Harris, Abe Boykins, Jr., Jason B. Overby, Arnold W. Kidd, Walter Berry, Ruth Barber, Ben Davis, and Joyce M. Blackburn, to-wit: $9750.”

It appears that the indictments in both cases were returned on the same day, October 17, 1977.

Trial of the instant case was commenced on April 5, 1978, approximately six weeks after appellant’s conviction in the other case.

The trial judge in the other case did not act as a trial judge in the instant case. The judge who sentenced defendant in the instant case was not the judge who tried the case and convicted defendant.

As shown by the opinion in Gray v. State, supra, the indictment in that case was for securities fraud under Code of Alabama 1975, § 8-6-17, which provides:

“It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:
“(1) employ any device, scheme or artifice to defraud;
“(3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.”

§ 8-6-18 prescribes the punishment upon conviction as “a fine of not more than $5,000.00 or imprisonment for not more than three years, or both.”

Almost immediately after commencement of the trial of the case now before us, the following occurred:

“THE COURT: All right, let the Record further show that the Court has overruled and denied the Motion to Dismiss the prosecution filed by the Defendant. The Court at this time is withholding ruling on the plea of autrefois convide

At the conclusion of the trial, which appears to have been within a few days of the commencement thereof on April 5,1978, the transcript shows the following:

“THE COURT: Have you all discussed what Mr. Collier had taken up with the Court that he required a transcript in the prior proceeding and wanted this Court to study that prior transcript against the evidence in this case before I rule.
“MS. DURANT: We discussed it yesterday.
“THE COURT: Does the State have any objection to that?
“MS. DURANT: No; not at all. It is my understanding that before you can render a ruling on his motion, you would first have to take a look at the Record.
“MR. COLLIER: Either that or call the Court Reporter to testify, one of the two.
“THE COURT: Well, I think we need to-The Defendant and the State want a conclusion in this matter as quickly as possible. So, if you will work with Judge Emmet’s Court Reporter . . .
“MR. COLLIER: He told me he would have it in less than a month. He said three to four weeks at the most.
“THE COURT: When the Court gets that, the Court will weigh that against the Court’s understanding-I may want to get you all to come back and as I go through that and have a conference with both of you at the same time. I would like to do that in short of having this Court Reporter to transcribe this proceeding. Try to avoid that. But the first order of business is get Mr. Wimberly’s transcript.
“MR. COLLIER: Now, I anticipate, if the Court overrules my plea of autre fois convict, filing, of course, a motion for a directed verdict and to exclude, and I think I have to wait until the Court’s ruling, technically to do that. But I just wanted to-if the Court and everyone would agree that we are not waiving anything to do so, that we might be able to go ahead and file that. Say file that in writing along with the facts and law briefs.
“THE COURT: That would be agreeable with me, with the understanding you are not waiving autre fois convict by filing and briefing your case on the merits. I do not see that the State would have any objection.
“MS. DURANT: Are you speaking of the appeal in 92?
“MR. COLLIER: No. In this case, I anticipate filing motions to exclude and for a directed verdict.
“THE COURT: He wants to start doing that when he is waiting for the Record in the other case.
“MR. COLLIER: That is the only thing. But I have to do it in such a way that I do not waive anything. And the only other matter I know, in doing a little further looking into the law yesterday after we got through, I realized the Court overruled my motion under 15284, or seven [The reference is doubtless to Tit. 15, Sec. 287, Code of Alabama Recompiled 1958, now § 15-3-8 Code of Alabama 1975], prior to trial. And I would like at this time to request that the Court reconsider that ruling and take that motion under advisement in connection with the autre fois convict plea.
“THE COURT: All right. I will do that. Thank y’all.”

Thereupon the transcript of the proceedings recites:

“THIS CONCLUDES ALL THE TESTIMONY AND PROCEEDINGS HAD IN THIS CAUSE.”

This is immediately followed by the certificate of the court reporter and then by the clerk’s record, the record proper.

The record proper discloses that on January 3, 1979, about six weeks after the opinion of this Court affirming the judgment of conviction and sentence in the other case (Gray v. State, supra), the trial court, with the judge who tried the instant case presiding, entered a judgment, which recites:

. [A]nd the defendant having filed a Motion to Dismiss Indictment, a Motion to Quash Indictment, a Motion For Preliminary Hearing, and a Plea of Autrefois Convict, and the said motions and pleas having been considered by the court, the court was of the opinion that the said Motion to Quash Indictment should be and the same was overruled, and the said Motion for Preliminary Hearing should be and the same was overruled, and the defendant being now in open court announces himself ready for trial. And after hearing the evidence the court is of the opinion that the defendant is guilty as charged in the indictment, and the court finds the defendant guilty and the case is continued to January 19, 1979, for sentencing before (a judge other than the judge who tried the case and convicted defendant).

The next item in the record proper is the “JUDGMENT AND SENTENCE AND NOTICE OF APPEAL,” on January 22, 1979, with the judge to whom the case was assigned for sentencing presiding. The court pronounced and imposed a sentence “for a term of five years.” The judgment of sentence concludes:

“And the defendant applies for the benefit of probation and requests that he be given a suspended sentence and upon consideration of such request the court is of the opinion that the same should be granted. It is therefore considered and ordered by the court that the sentence of the law imposed upon the defendant in this cause be and the same is hereby suspended and the defendant was placed on probation for five years conditioned on future good behavior and further conditioned on the following: defendant will spend one year in the penitentiary; upon release from the penitentiary, defendant will obtain a full-time job; defendant will make restitution in an amount to be determined.
“And questions of law arising in this case for the decision of the court of criminal appeals, the defendant gives notice of appeal and requests a working appeal (emphasis supplied).”

The record proper further shows an order, based on defendant’s indigency, authorizing preparation and filing of transcript and appointing counsel on appeal, that “the defendant-appellant is incarcerated in Kil-by pending this appeal.”

The only issues between the parties on appeal are (1) as to the asserted action of the trial court in “overruling the appellant’s Plea of Autrefois Convict” and (2) in “overruling the Defendants’ Motion to Dismiss based upon a violation of Code of Alabama 1975, § 15-3-8.”

Although the parties on appeal assume, and in fact appellant concedes, that the trial court overruled defendant’s plea of autrefois convict, we fail to find any record thereof. Furthermore, we do not find any record of a ruling of the court on defendant’s request that the court reconsider its previous ruling on the motion grounded on Code of Alabama 1975, § 15-3-8. That we would be justified in proceeding in accordance with ari assumption that the trial court would not have rendered a judgment of conviction without having theretofore ruled adversely to defendant as to the particular items may at first view seem correct, but under all the surrounding circumstances of the instant case, such a procedure seems seriously questionable in the performance of the function of this Court to review the action of the trial court with correctness and fairness and justice to all concerned. If the trial court did, as the transcript of the evidence indicates that it would do and the parties agreed that it should do in order to arrive at a correct ruling, this Court should know that such was done and have either the benefit of the trial court’s view as to the relationship between the evidence in the other case and the evidence in the instant case or a summary at least of counsel as to the evidence in the other case, material and pertinent to the question of autrefois convict on the file in this case. True, it would seem that, as the transcript in the other case is available to this Court, it would be appropriate for this Court to search that transcript in connection with the determination of the issues presented by the parties on appeal, but neither party suggests that we do so.

It also seems that both parties on appeal proceed on the theory that the issues presented are so clearly resolvable in favor of their respective contentions that we do not need to consider the transcript of the evidence and proceedings in the other case, which incidentally is not in line with the views of the parties on the trial, wherein they agreed that the court could and should review and consider the transcript of such evidence and proceedings before rendering a decision herein. Our tentative view is that the issues on appeal are not as readily resolvable as either of the parties now indicates; that both were right, as was the trial court, in their consensus that the question of former jeopardy and related matters were serious and required an insight into the transcript of the proceedings and evidence in the other case.

Our concern is increased by reason of the actual sentence imposed and the conditions thereof. According to the record before us, defendant in the instant case was placed on probation, but he was required to serve one year of his sentence. In taking an appeal, he requested a “working appeal.” The record further shows that at the time of his appeal he was serving time in the penitentiary. Whether this was time on the other case or in the instant case, we are not told. According to the opinion in Gray v. State, supra, appellant was placed on probation for ten years, and, as required in the instant case, he was to “serve one year in the penitentiary” and make restitution for his conversion. When he commenced serving his sentence in the other case is not clear. The possibility that a substantial part of it had been served at the time of the sentence in this case and that by now he may have completed most of his combined sentences is not to be ignored. All of this suggests questions: (1) whether such results were contemplated by the trial court in fixing the punishment and the conditions thereof, (2) whether, in fixing the punishment and the conditions thereof, the trial court was acting with significant regard for the sentence in the other case, and (3) the possibility that the substance of the present controversy between the parties on appeal has largely become moot.

The record needs clarification both as to the judgment of conviction and as to the sentence. The cause should be remanded to the trial court for that purpose, with directions that the record, or an authenticated transcript of the proceedings, show with certainty what action, if any, was taken by the trial court as to the plea of autrefois convict and the mentioned “motion to dismiss,” and the intent of the trial court, if any, as to any relationship between the sentence and conditions thereof in this case and the sentence and conditions thereof in the other case. In proceeding to follow such directions, the trial court shall conduct such hearings, with notice to the parties, as it deems appropriate. If it deems that a resentencing is required in order to clarify the intent at the time of the sentence in the light of what it now considers as due regard for the results in the other case, it has jurisdiction and authority to resentence appellant by such permissible amelioration thereof as the trial court deems appropriate. It shall make a return to the remand in due course upon compliance with the directions hereof. Either party desiring to submit a brief, in the light of the return to the remand, may file a brief within fifteen days from the return, and each party may file a reply brief to the opposite party’s original brief, after remand, within ten days thereafter.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of this Court. The cause is remanded to the trial court with directions as stated in this opinion.

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex Parte: State of Alabama, Ex Rel. Attorney General. (Re: Tyrone P. GRAY, alias v. STATE of Alabama).
    79-678.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Tyrone P. GRAY, alias v. STATE.
    3 Div. 69.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
   AFTER RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

The Return to Remand filed in this Court on August 27, 1980, consists of the following order of the trial court:

“This case, having been appealed to the Alabama Court of Criminal Appeals and, as the result of said appeal, the Honorable Judges of said Court suspended the Judgment of conviction against the Defendant, Tyrone P. Gray, and remanded the case with directions to the Trial Court; and those directions from the Court of Criminal Appeals requested the Trial Court to clarify the record both as to the judgment of conviction, regarding a ruling on Defendant’s plea of autrefois convict, and as to the sentence imposed; the Trial Court having set this cause for a Hearing on August 25, 1980, with attorneys from the Defendant and the State of Alabama present; and as a result of said hearing upon reconsideration, the Court is of the opinion and it is hereby ORDERED ADJUDGED AND DECREED that:
“(a) the plea of autrefois convict in this case be and is hereby denied;
“(b) the penitentiary sentence imposed in this case is to run cóncurrent with the penitentiary sentence imposed in case
# CC-77-950, further the five (5) year penitentiary sentence which was suspended for a five (5) year probationary sentence in this case, is to run concurrently with the ten (10) year probationary sentence previously imposed on the Defendant in case number CC-77-950 and the one (1) year sentence to be served in the penitentiary as a condition of probation in this case should run concurrently with the one (1) year penitentiary sentence imposed on the Defendant in case number # CC-77-950.
DONE this 26th day of August, 1980.
(Sgd.) Joseph D. Phelps
Joseph D. Phelps,
Circuit Judge.”

As shown by the opinion of this Court, 389 So.2d 1163, in remanding the case to the Circuit Court of Montgomery County, it was provided that “Either party desiring to submit a brief, in the light of the return to the remand, may file a brief within fifteen days from the return, and each party may file a reply brief to the opposite party’s original brief, after remand, within ten days thereafter.” Neither party has thus far filed a brief, and on September 12,1980, the case on appeal was “Resubmitted After Return to Remand.”

Attention was also called in the opinion on original submission to the “possibility that the substance of the present controversy between the parties on appeal has largely become moot,” the implication of which was that there was a possibility that by complying with the directions contained in the remandment, it would be shown that the present controversy between the parties on appeal had largely become moot. The order of the trial court set forth in the Return to Remand states that all sentences in the instant case, whether suspended and probationary or not, were to run concurrently with correspondingly equal or more lengthy sentences in case No. CC-77-950, the one that is pleaded herein as autrefois convict, and thereby shows that the controversy between the parties on this appeal has largely become moot. As the appellant has filed no brief in the light of the Return to Remand and has apparently deemed it advisable not to prosecute this appeal further, it is our view that the appeal should be dismissed as moot and that an order should be entered accordingly.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional amendment no. 328); his opinion is hereby adopted as that of the Court.

APPEAL DISMISSED AS MOOT.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    R. B. COTTONREEDER v. STATE.
    8 Div. 321.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Ronald Edward Jackson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

The appellant was indicted and convicted for defrauding an innkeeper in violation of Ala.Code § 34-15-18 (1975). The trial court fixed his punishment at two years in the state penitentiary.

The crux of this appeal concerns the sufficiency of the State’s evidence. The State presented a single witness, Ms. Shelby Allred, the motel manager of the Decatur Inn, and at the conclusion of her testimony rested its case. The appellant made a timely motion to exclude the evidence on the ground the State failed to prove a prima facie case. Thus, we must decide whether Ms. Allred’s testimony, standing alone, is sufficient to establish the elements of the crime charged.

The following three code sections, which are quoted in their entirety, are pertinent to this case. The first, Ala.Code § 34-15-18 (1975), defines the offense and punishment:

“Any person who, by fraud or misrepresentation, or with the intent to deceive or defraud, obtains food or lodging or other accommodation from any hotel, boardinghouse or eating house and fails or refuses to pay for the same must, on conviction, be fined not more than $1,000.00 and may also be sentenced to hard labor for the county for not longer than 12 months, when the value of such food, lodging or other accommodation was $25.00 or less; but when such value is more than $25.00, then such person shall be punishable in the manner prescribed by law for punishing persons guilty of grand larceny.”

The second, Ala.Code § 34-15-19 (1975), describes some possible ways, but not the exclusive ways, prima facie evidence of § 34-15-18 may be established:

“Proof that food, lodging or other accommodation was obtained by false pretense or by false or fictitious show or pretense of any baggage or other property by such person obtaining such food, lodging or other accommodation, or that such person absconded or left the state without paying or offering to pay for such food, lodging or other accommodation, or that such person gave in payment, or in part payment, for such food, lodging or other accommodation any check or draft on which check or draft payment was refused on due presentation or that such person surreptitiously removed, or attempted to remove from such hotel, boardinghouse or eating house the baggage or other.property brought with him thereto without having paid, or offered to pay, for such food, lodging or other accommodation so furnished him shall be prima facie evidence of the fraud or misrepresentation, or intent to deceive or defraud, mentioned in section 34-15-18. No person shall be convicted under the provisions of section 34-15-18 where there has been an express agreement to delay payment for such food, lodging or other accommodation until a date after such person terminates his relation as a guest at such hotel, boardinghouse or eating house.”

The third, Ala.Code § 34-15-20 (1975), is the posting requirements of §§ 34-15-18 and 34-15-19:

“Every hotelkeeper and innkeeper in this state shall keep a copy of sections 34-15-18 and 34-15-19, printed in distinct type, posted in the lobby, public waiting room or in that portion of his hotel or inn most frequented by the guests thereof, and no conviction shall be had under the provisions of sections 34-15-18 and 34-15-19, until it shall have been made to appear that a copy of sections 34-15-18 and 34-15-19, was posted as above provided in the hotel or inn, the owner or keeper of which claims to have been defrauded at the time such food, lodging or other accommodations were obtained.”

Ms. Allred testified that when the appellant first registered at the Decatur Inn on June 10, 1978, he was advised that he was to pay his bill each day by 2:00 p. m. She said he complied with that rule for about ten days, but then started paying every other day until the latter part of June when he began skipping several days with his payments. Around the middle of July, he went to Ms. Allred and asked to pay his bill weekly due to the fact that it was interfering with his meetings. She agreed provided the bill “did not exceed around $200.00 within that week’s period.”

Ms. Allred testified that appellant paid his bill on August 7, but did not pay again until August 24 after being asked to pay several times. Ms. Allred stated that the August 24 payment was the last payment she received until the present criminal action was instituted on September 25. The appellant’s bill on that date was $1,033.99.

Ms. Allred stated that when the appellant made the August 24 payment he represented he would still pay on a weekly basis and that she relied upon his representations. Subsequent to August 24 and prior to filing charges, Ms. Allred discussed the appellant’s bill “several times with him.” Finally, after criminal charges were filed, the appellant made a partial payment on October 12 and paid the remainder on October 23. Ms. Allred noted that §§ 34-15-18 and 34-15-19 were posted in the motel rooms.

On cross-examination Ms. Allred testified that between June 10 and August 1 the appellant was “not much later than a day or two in paying his bill. Between August 7 and August 24, when the appellant and Ms. Allred discussed his bill, the appellant told her “he was having problems with his company, the Southern Christian Leadership Conference, sending him his check,” but that he would pay his bill.

After the August 24 payment, Ms. Allred stated that she closed out the appellant’s account on September 21 and padlocked his room subsequent to her talking to him for the last time about his bill. Appellant repeatedly told Ms. Allred he would pay his bill, but she said she “just quit believing he would” around the middle of September. Ms. Allred testified that at no time was the agreement changed which allowed the appellant to pay on a weekly basis.

Ms. Allred stated that she also talked with the appellant’s “firm,” the Southern Christian Leadership Conference, about his bill subsequent to July. She at no time asked the appellant to move out. She told him approximately one week before she filed charges that she wanted her money and did not want to file a complaint against him. “He promised me several times to pay it . . . He told me he would be in-every day he would call and say he would be in like so and so, that day or the next day, and he never did show up .. . It seems like I told him on the 21st ... I would have to file a warrant on him.”

On redirect examination Ms. Allred stated that after the September 21 conversation the appellant “still failed and refused to pay the bill.” She further stated that the appellant made appointments to pay the bill “almost daily,” but failed to show up.

On recross-examination Ms. Allred testified that the appellant did not “refuse” to pay his bill, that he simply “failed” to pay it and “failed” to keep his promise to pay it. She stated that the appellant would sometimes “show up,” but without any money.

“Q. But he came. Did he tell you he didn’t have the money? He told you he couldn’t pay you, didn’t he?
“A. He didn’t tell me anything. He just didn’t pay it.”

Based on the above testimony, the State’s case must either stand or fall. Viewing the evidence in the most favorable light to the State, as we are required, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), we find it insufficient to prove a prima facie case.

We have found a paucity of cases decided under the statute in question-only three to be exact: Ex parte King, 102 Ala. 182, 15 So. 524 (1894); Chauncey v. State, 130 Ala. 71, 30 So. 403 (1901), and Stallworth v. State, 157 Ala. 3, 48 So. 107 (1908). In Ex parte King, supra, the statute was declared constitutional:

“There is nothing in the point raised in the application, that the act, ‘For the protection of landlords, proprietors or keepers of hotels and boarding houses,’ ... is violative of sections 21 and 23 of Art. I of the constitution, which forbid imprisonment for debt, or the making of laws giving any special privileges or immunities. The act is in line with our other statutes against false pretenses, frauds, cheats, acts to injure, and the like. One who violates the act, is imprisoned not for the debt he owes the proprietor, and not to make him pay it, but to punish him for a wrong he has perpetrated, which is made a crime. And, this is no more of a special privilege to the hotel-keeper, than the statute against burglary from a store or a dwelling, is to the merchant who owns the store, or to the owner of the dwelling.” (Emphasis added.) 102 Ala. at 183, 184, 15 So. 524.

The constitutionality of the statute was again upheld in Chauncey, supra:

“The statute is not unconstitutional.
“The purpose of this statute is to punish such persons who by fraud induce the proprietor or keeper of a hotel or boarding house to furnish board or lodging, and fail or refuse to pay for the same... . ” 130 Ala. at 73, 30 So. 403.

It was also emphasized in Chauncey, supra, that the offense now codified in § 34-15-18 and the crime of false pretenses are not one and the same, but are merely analogous. “This statute is analogous in its essential features to the one making it a crime to obtain property by false pretenses . . . the two belonging to the same family, and are closely allied in nature, character, and purpose.” (Emphasis added.) 130 Ala. at 74, 30 So. 403.

Alabama, however, is not unique in recognizing the need for criminal legislation for the protection of the innkeeper or hotel owner against fraudulent guests. Indeed, every state in the union and the District of Columbia have enacted legislation to combat this evil. A complete addendum of those statutes is contained in the appendix to this opinion. It should be noted that much of the legislation directed toward those who defraud innkeepers had been enacted or revised recently. Some of the original such statutes have been repealed and replaced with theft of services statutes which pay special attention to hotel or lodging accommodations. All such statutes require an intent to defraud, and many statutes, like our own, include “prima facie” provisions specifying that proof of certain enumerated acts by the accused will raise a rebuttable presumption of fraudulent intent.

The validity of these statutes has been upheld, as against contentions that they violate the constitutional provisions of equal protection, or freedom from imprisonment for debt, or that they make the failure to pay a contractual debt a crime. 43 A C.J.S. Inns, Hotels, etc. § 12 (1978).

Turning our attention now to our statute in particular, which is worded in the disjunctive, it would be an easy matter to show that appellant “represented” to Ms. Allred that he would pay his bill on a weekly basis and then simply “failed” to pay as promised. Such action on his part, without more, would not amount to an offense under § 34-15-18. If such action were a crime, without a fraudulent intent, it would be unconstitutional in that it would punish persons by imprisonment for the mere failure to pay a debt.

It is obvious that the “misrepresentation” referred to in § 34-15-18 is a fraudulent misrepresentation. Justice Tyson wrote at length in Chauncey, supra, concerning misrepresentation:

“If misrepresentations are relied upon as the inducement for the furnishing by the proprietor of the board or lodgings, they must, of necessity, have been made before the board is furnished. If made after the board has been obtained, they could not have possibly induced the furnishing of it. Again, the misrepresentation must have been relied upon by the proprietor and have been the controlling inducement to his furnishing the board and lodging. In short, the proprietor must be shown to have been deceived to his injury. If he knew the representations were false, or if he believed they were false, or if he did not believe the statement or representation to be true, or if he believed the representation but if they had no influence upon his conduct, no deception was practiced. . . .
“Deception and injury are of the very essence of the crime....” (Emphasis added.) 130 Ala. at 73, 74, 30 So. 403.

Stated another way, for “misrepresentation” to constitute “fraud,” it must be a false statement of a material fact intentionally made to induce another party to act in reliance on the truth of the statement, Hale v. Hale, 57 Ill.App.3d 730, 15 Ill.Dec. 85, 90, 373 N.E.2d 431,436 (1978), and to rely to his detriment or injury. Neuhaus v. Kain, 557 S.W.2d 125, 136 (Tex.Civ.App.1977). “Fraud” cannot be predicated solely on the failure to perform a promise to do something in the future. Pelletier v. Pelletier, 29 Or.App. 717, 565 P.2d 388, 391 (1977). It is because the intent to defraud must be proven in order to convict an accused that prosecutions for defrauding innkeepers do not conflict with the constitutional prohibition of imprisonment for a civil debt. State v. Barbee, 187 N.C. 703, 122 S.E. 753 (1924). Thus, the central issue before us is whether there is evidence that appellant intended to defraud Ms. Allred.

Before proceeding further we should examine the facts in Chauncey, supra. In that case the defendant “made the terms” with the proprietor “to pay the bills for himself and his companion.” After a few days the proprietor asked the defendant to pay up. The defendant told the proprietor that he was going to organize a branch lodge of the “Knights of the Mystic Chain” and out of the initiation fees pay his bill. “[T]he defendant did not do as he had promised to do,” and the proprietor again asked him to pay up. The defendant then told the proprietor several times that the money was in the bank, but never paid his bill. Of crucial importance in Chauncey, however, and the fact which caused reversal of that defendant’s conviction, was the proprietor’s testimony that he did not believe the statements made by the defendant that he had the money with which to pay his board. Since the proprietor did not believe the defendant’s representation, “no deception was practiced.”

From the evidence in the instant case, if fraud existed it must have occurred some time during a four week period-from August 24, when weekly credit was extended again, until around September 21, when Ms. Allred “just quit believing” he would pay. This is so because on August 24, when the appellant paid his bill Ms. Allred was evidently satisfied with the payment and agreed to continue a weekly pay arrangement. And per Chauncey, supra “no deception was practiced” after September 21 because Ms. Allred then had no expectation that appellant would ever pay. Therefore, any fraudulent misrepresentations had to occur between August 24 and September 21 and not before or after those dates.

It should be recognized that fraudulent intent need not be proven by direct substantive evidence, but can be inferred from the accused’s conduct and the circumstances of the case. 37 Am.Jur.2d Fraud and Deceit § 439 (1968); State v. Wagenius, 99 Idaho 273, 581 P.2d 319, 327 (1978). When, a material element of a crime is the fraudulent intent of the accused, both the State and the accused are allowed broad scope in introducing evidence with even the slightest tendency to establish or negate such intent, including evidence of similar fraud. Brooks v. Commonwealth, 220 Va. 405, 258 S.E.2d 504 (1979). It has been said that the fertility of man’s invention in devising new schemes of fraud is so great that courts have been reluctant to define it, reserving to themselves the liberty to deal with it in whatever form it may present itself. 37 Am.Jur.2d Fraud and Deceit § 1 (1968). Intent to defraud is a question of fact for the jury to be determined from all the facts and circumstances of the case. People v. Hedrick, 265 Cal.App.2d 392, 71 Cal.Rptr. 352 (1968). However, before a jury is permitted to find a verdict of guilty where fraudulent intent is an element of the crime, there must be in connection with the act dome attending circumstances which bespeak fraud, a situation where common experience finds a reliable correlation between the act and the corresponding intent. State v. Inscore, 592 S.W.2d 809 (Mo.1980). The State must prove more than the mere failure, refusal, or inability to pay in order to establish a fraudulent intent. Easterling v. State, Miss., 194 So. 289 (1940); Robinson v. State, 135 Miss. 774, 100 So. 377 (1924).

“Since such statutes are penal in nature, they are subject to strict construction, and will not be applied to persons, acts, or omissions not coming within their terms. A mere failure, refusal, or inability to pay does not constitute the offense contemplated by the statutes. Such a statute requires specific intention on the part of the wrongdoer, which cannot be inferred solely from the naked fact of nonpayment. The intention must exist at the time the board or other accommodation is obtained. A conviction cannot be had in the absence of fraud on the part of accused. Where false representations are relied on as the inducement for the furnishing of board, they must have been made before, rather than after, the board is obtained. . . . ” (Footnotes omitted.) 43 A C.J.S. Inns, Hotels, etc. § 12 (1978).

There was certainly no evidence tending to make out a prima facie presumption of fraud pursuant to Code § 34-15-18, supra. There is no contention on the part of the State (1) that accommodations were obtained by a false or fictitious show of baggage, (2) that appellant absconded or left the state without paying,' (3) that appellant gave a “bad check” in payment or (4) that he surreptitiously removed his baggage or attempted to do so.

The State never proved a misrepresentation by the appellant to Ms. Allred, and neither did the State prove that she relied upon a misrepresentation between August 24 and September 21. Ms. Allred testified that:

“After the 24th I received no payment and September 21st his bill was over a thousand dollars and I questioned him on his bill and he told me that he was expecting a check from his company to take care of it, which he was missing. He had not received it, and I suggested to him that he stop payment on it and have them to issue him another check where he would pay the bill. He said he contacted his company and they would issue him another check. After a week I had still not heard from him and he had not paid his bill and I had no other choice. I felt like I had no other choice but to file charges on him.” (Emphasis added.)

On September 21 Ms. Allred “quit believing” appellant would pay, and she padlocked his room with all his belongings inside. She apparently did not believe his explanation concerning the delayed Southern Christian Leadership Conference check because she denied further accommodations to him on that date and on September 25 she filed the instant charge against him. The evidence therefore shows only a failure to pay during the August 24-September 21 period.

At the end of the State’s case in chief, the defense moved to exclude the State’s evidence for failure to prove a pri-ma facie case. In testing the sufficiency of the evidence, we may only consider the evidence which was before the trial court at the time the motion was made, i. e. the testimony of Ms. Allred. Kent v. State, 367 So.2d 508 (Ala.Cr.App.1978), cert. denied, 367 So.2d 518 (Ala.1979). The evidence only shows that appellant promised to pay on each inquiry of Ms. Allred between August 24 and September 21, and on the latter date explained that a check from the Southern Christian Leadership Conference was missing. There is no showing by the State that during that period the appellant knew he had no check due him or coming to him from that organization. His explanation for the late payment was never disputed. There was no showing that the appellant knew when he repeatedly promised future payment that he had no means with which to pay. The record is void as to why he failed to pay other than his explanation to Ms. Allred concerning the Southern Christian Leadership Conference check. Therefore, in order to reach the conclusion that appellant had a fraudulent intent, a jury would have to resort to speculation and conjecture rather than rely upon the evidence. The State, therefore, failed to prove a prima facie case, and the appellant’s motion to exclude should have been granted. By mandate of the United States Supreme Court in such instances, the case must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

REVERSED AND RENDERED.

All the Judges concur.

APPENDIX

1. Alaska Stat. § 11.20.480 (1962).

2. Ariz.Rev.Stat. §§ 13-1801, 13-1802 (1978).

3. Ark.Stat.Ann. § 41.2204 (Acts 1975).

4. Cal.Penal Code § 537 (West 1979 amendment).

5. Colo.Rev.Stat. §§ 12-14-101, 12-44-102 (1973).

6. Conn.Gen.Stat. § 53a-119(7) (Revised 1979).

7. Del .Code Ann. tit. 11, §§ 841, 845 (1974).

8. D.C.Code § 22-1301(b)(l) (1973).

9. Pla.Stat.Ann. §§ 509.151, 509.161 (West 1972).

10. Ga.Code Ann. §§ 26-1807, 26-1812 (1977).

11. Haw.Rev.Stat. §§ 708-830, 708-831 (1976).

12. Idaho Code §§ 18-3107,18-3108 (1979).

13. Ill.Rev.Stat. ch. 71 ¶¶ 4a, 4b (1979).

14. Ind.Code § 35-17-5-6(1), (3) (1976).

15. Iowa Code §§ 714.1, 714.2 (1979).

16. Kan.Stat.Ann. §§ 36-206, 36-207 (1973).

17. Ky.Rev.Stat.Ann. § 514.060 (Baldwin 1975).

18. La.Rev.Stat.Ann. § 21:21(1) (West 1979).

19. Me.Rev.Stat.Ann. tit. 17-A, § 357 (1964).

Md.Code Ann. Art. 27, §§ 340, 342 (Supp.1979). to o

Mass.Ann.Laws ch. 140, § 12 (Mi-chie/Law.Co-op 1977).

Mich.Comp.Laws Ann. §§ 750.291, 750.292 (1968). to to

Minn.Stat. §§ 327.07, 327.08 (1978).

Miss.Code Ann. §§ 75-73-9, 75-73-11 (1972). S2

Mo.Rev.Stat. §§ 570.010(12), 570.020, 570.030 (1978). <N

Mont.Code Ann. § 45-6-305 (1979).

Neb.Rev.Stat. §§ 41-127, 41-127.01, 41-128 (1978).

Nev.Rev.Stat. § 205.445 (1957). to 00

N.H.Rev.Stat.Ann. §§ 353:7-353:10 (Supp.1979). to CO

N.J.Stat.Ann. § 2C:20-8 (1979). O CO

N.M.Stat.Ann. § 30-16-16 (1978). rH CO

N.Y.Penal Law § 165.15 (McKinney 1975). 03 CO

N.C.Gen.Stat. § 14-110 (1969). CO CO

N.D.Cent.Code §§ 12.1-23-03, 12.1 23-05 (1976). ^ CO

Ohio Rev.Code Ann. § 2913.41 (Page 1975). lO CO

Okla.Stat. tit. 21, § 1503 (1971). CO 05

Or.Rev.Stat. § 164.125 (1977). o CO

Pa.Cons.Stat.Ann. tit. 18, § 3926 (Pur-don Supp.1978). 00 CO

R.I.Gen.Laws § 11-18-26 (1956). CO CO

S.C.Code §§ 45-1-50,45-1-60, 45-1-70 (1976). o

S.D.Codified Laws §§ 22-1-2(41), 22-30A-8, 22-30A-17 (1979).

Tenn.Code Ann. § 62-707 (1976). 4^ to

Tex.Penal Code Ann. tit. 7, § 31.04 (Vernon 1974). CO

Utah Code Ann. § 76-6-409 (Amend. 1973). 4^ 4*-

Vt.Stat.Ann. tit. 13, § 2582 (1974). 4*. OX

Va.Code § 18.2-188 (Supp.1980). CO

Wash.Rev.Code § 19.48.110 (1979).

W.Va.Code § 61-3-40 (1977). 4^ OO

Wis.Stat. § 943.21 (1977). 4^ CO

Wyo.Stat. §§ 6-7-501, 6-7-502 (1977). o

      . Comment, Fraud on the Innkeeper: The Need for Legislative Reform, 16 U.Fla.L.Rev. 622, 625 (1964).

      . Ala.Code § 34-15-18 (1975) was specifically repealed by Alabama’s Title 13A Criminal Code which became effective on January 1, 1980, for crimes occurring on and subsequent to that date. Specific provisions for theft of hotel, motel, etc., services are provided however in Ala.Code § 13A-8-10 (1980). Ala.Code §§ 34-15-19, -20 (1975) were not repealed by the new criminal code.


author: ENGLAND, Justice.

text:
    Norma J. KERCE, Petitioner, v. The COCA-COLA COMPANY-FOODS DIVISION and General Accident Insurance Company, Respondents.
    No. 54420.
    Supreme Court of Florida.
    Oct. 30, 1980.
    Michael B. Murphy, J. Mason Wines and Craig M. Spanjers of Stanley, Wines, Roth, Williams & Smith, P. A., Auburndale, for petitioner.
    Robert E. Sheridan of Jesse F. Sparks, Orlando, for respondents.
   ENGLAND, Justice.

This case arises out of an order of the Industrial Relations Commission, affirming an order of the Judge of Industrial Claims which took into account the seasonal nature of a claimant’s pre-injury employment in determining her diminution of wage earning capacity for permanent partial disability benefits under section 440.-15(3)(u), Florida Statutes (1974 Supp.). The issue is whether “average weekly wage” as prescribed in section 440.14, Florida Statutes (1974 Supp.), without seasonal adjustment, is the proper measure of wage earning capacity before the injury.

Norma Kerce sustained a compensable accident during the course of her employment with the Coca-Cola Company-Foods Division. At the time of the accident, she worked only eight months out of the year. When Kerce sought compensation for permanent partial disability resulting from a nonscheduled injury, the parties stipulated to an average weekly wage of $105.26 even though, at the time of the injury, she had only been at work one day following her usual four month lay off. The Judge of Industrial Claims found that Kerce had sustained a 25 percent diminution of wage earning capacity, but in so doing he took into account the seasonal nature of her pre-injury employment.

In approaching the issue posed here we are guided by the “most favorable remedy” doctrine, which provides that “where the Act is susceptible of disparate interpretations, the court will adopt the construction which is most favorable to the employee.” Henderson v. Sol Walker & Co., 138 So.2d 323, 327 (Fla.1962).

The critical component in the formula for determining the duration of compensation for Kerce’s permanent partial disability under section 440.15(3)(u), Florida Statutes (1974 Supp.)-“diminution of wage earning capacity’-presumptively represents the difference between the injured employee’s wage earning capacity before and after the injury. Wage earning capacity before the injury is measured solely by the employee’s average weekly wage as prescribed in section 440.14, Florida Statutes (1974 Supp.). Other factors, such as the seasonal nature of the pre-injury employment, should not be taken into account. Coca-Cola asserts, however, that the average weekly wage is not an accurate measure of a seasonal worker’s true earning capacity and that it should be properly taken into account in determining the employee’s wage earning capacity before the injury. Coca-Cola cites to Ball v. Mann, 75 So.2d 758 (Fla.1954), and to Walker v. Electronic Products & Engineering Co., 248 So.2d 161 (Fla.1971), for the proposition that loss of wage earning capacity is determined by factors other than the injured employee’s average weekly wage, and that no single factor is conclusive. Our decisions in Ball and Walker, however, both dealt with wage earning capacity after an injury. These cases are irrelevant here. While pre-injury wage earning capacity is capable of objective measurement by the formula for computing the average weekly wage under section 440.14, any assessment of post-injury wage earning capacity must always be a prediction about the indefinite future and it is not only proper, but necessary that the judge take into account all relevant factors. See Harris v. Lenk, 224 So.2d 283 (Fla.1969).

Coca-Cola’s position is entirely without statutory support, and we are not empowered to create a new seasonal employment formula for the computation of pre-injury wage earning capacity. Indeed, section 440.14(3), Florida Statutes (1974 Supp.)-the only reference in the act to seasonal employment-infers that the legislature did not intend that the seasonal nature of an injured employee’s work should have an adverse effect on the computation of average weekly wage.

We hold that the judge and Commission departed from the essential requirements of law when they held, for the purposes of section 440.15(3)(u), Florida. Statutes (1974 Supp.), that the seasonal nature of Kerce’s pre-injury employment could be taken into account in calculating Kerce’s wage earning capacity before her injury. The Commission’s order is quashed, and this proceeding is remanded to the deputy commissioner for the entry of an order consistent with this opinion.

It is so ordered.

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

      . The statutory and decisional law pertaining on the date that an accident has occurred must prevail in a workmen’s compensation case. Simmons v. City of Coral Gables, 186 So.2d 493 (Fla.1966). In 1979, however, the legislature abolished permanent partial disability as provided for in section 440.15(3)(u), Florida Statutes (1974 Supp.), and replaced it with the concept of “wage-loss”. See generally Ch. 440, Fla.Stat. (1979).

      . This case does not involve seasonal, agricultural labor, referred to in section 440.02(1 )(c)2, Florida Statutes (1974 Supp.).

      . See also Farrens Tree Surgeons v. Winkles, 334 So.2d 569 (Fla.1976); Thomas Smith Farms, Inc. v. Alday, 182 So.2d 405 (Fla.1966).

      . See Fort v. Hood’s Dairy, Inc., 143 So.2d 13 (Fla.1962); Southern Bell Tel. & Tel. v. Bell, 116 So.2d 617 (Fla.1959). See also A. Larson, 2 The Law of Workmen’s Compensation § 57.00 (1976 & Supp. 1980).

      . See Board of County Comm’rs v. Alman, 156 So.2d 850, 851 (Fla.1963) (“Considering the purpose and theory of the [Workmen’s Compensation] Act . . . the average weekly wage at the time of the injury is to be regarded as representative of the pre-injury wage earning capacity of a claimant.. . . ”).


author: OVERTON, Justice.

text:
    PENSACOLA INTERSTATE FAIR, INC., and United States Fidelity & Guaranty Company, Petitioners, v. John POPOVICH, Nadio and Livio Christiani, Goodings Million Dollar Midway, Inc., and Reserve Insurance Company, Respondents. GULF POWER COMPANY, Petitioner, v. Nadio and Livio CHRISTIANI et al., Respondents.
    Nos. 55579, 55600.
    Supreme Court of Florida.
    Oct. 30, 1980.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for Pensacola Interstate Fair, Inc., and United States Fidelity & Guaranty Co.
    Miles Davis of Beggs & Lane, Pensacola, for petitioners.
    Charles R. Timmel of the Law Offices of Charles R. Timmel, Fort Walton Beach, for Christiani, Goodings Million Dollar Midway, Inc., and Reserve Ins. Co., respondents.
   OVERTON, Justice.

These causes are before the Court upon petition for writ of certiorari to review the decision of the First District Court of Appeal in Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978). The district court held that a judgment defendant has a right of appeal from an alleged error in judgment which exonerated codefendants of liability to the plaintiffs under the contribution among joint tort-feasors statutory provision, section 768.31, Florida Statutes (1975).

The opinion of the district court directly conflicts with North Shore Hospital v. Martin, 344 So.2d 256 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 677 (Fla.1977). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, and approve the decision in Christiani.

The factual situation and chronology of legal proceedings are as follows. Popovich was a concessionaire with Goodings Million Dollar Midway, who had in turn contracted with Pensacola Interstate Fair, Inc., to provide a portion of the amusements and concessions for Pensacola’s annual fair. Good-ings entered into a subcontract with Nadio and Livio Christiani (hereinafter called Christiani) to provide a ride named the “Pirate’s Den,” which was subsequently set up on the fairgrounds in close proximity to high voltage transmission lines which crossed the property at a height of thirty feet. These transmission lines were owned by Gulf Power Company and were subject to sagging, rising, and swaying as a function of power surges, temperature, and wind, causing shifts up to several feet.

Mr. and Mrs. Popovich resided in a travel trailer which was situated on the fairgrounds several hundred feet from the midway. Electrical service to this trailer was furnished by Goodings’ electrical power generators. Popovich alleged that the transmission lines came in contact with flagpoles on the “Pirate’s Den” ride, and the current was transmitted from the poles to the ride structure through the grounding wires of Goodings’ generator and back through the power line serving the Popo-vich trailer, at which point Mrs. Popovich was electrocuted. The action by Popovich for the wrongful death of his wife was brought against Gulf Power Company, Pensacola Interstate Fair, Inc., Goodings Million Dollar Midway, and Christiani.

The trial court entered summary judgment in favor of Pensacola Interstate Fair, Inc., on the grounds that it was not liable as a landlord for injuries to the wife of a subtenant.

At trial, the court granted a directed verdict in favor of the defendant Gulf Power Company and entered a judgment accordingly. The evidence reflected three possible electrical faults which could have caused the electrocution of Mrs. Popovich, only one of which could have resulted from the action of Gulf Power company by its employees’ manually overriding a circuit breaker. The apparent grounds for granting the directed verdict were that there was no showing that the overriding of a circuit breaker was the actual cause of the electrical fault and, further, there was no evidence that the conduct of the power company in overriding the circuit breaker was either negligent or outside of accepted industry standards.

The trial resulted in verdicts for Popovich against the two remaining defendants, Christiani and Goodings Million Dollar Midway. The judgments against these defendants were subsequently settled while appeals were pending. Christiani and Good-ings appealed both the summary final judgment entered in favor of their codefendant Pensacola Interstate Fair, Inc., and the judgment entered as a result of the directed verdict in favor of the codefendant Gulf Power Company.

On appeal, the district court held that (1) the contribution among joint tort-feasors act, section 768.31, was applicable; (2) Christiani and Goodings may appeal alleged errors in judgments which exonerated the codefendants Pensacola Interstate Fair, Inc., and Gulf Power Company; and (3) the trial court erred in granting the summary judgment for Pensacola Interstate Fair and the directed verdict for Gulf Power Company since there were issues of fact concerning the alleged negligence of each of those codefendants which should have been submitted to a jury. The applicability of the contribution among joint tort-feasors act is not in issue on this appeal. Further, we decline to reevaluate and review the holding by the district court that there were issues of fact concerning the alleged negligence which should have been submitted to the jury.

The critical policy-making issue for our determination relates solely to the right of a judgment defendant aggrieved by the exoneration of another codefendant to timely appeal from the appropriate judgment. Other jurisdictions are divided on this issue, although in some instances the denial of this right of appeal is based upon the wording of the specific contribution statute. We choose to follow the view that allows a judgment defendant the right of an appeal from a judgment which adversely affects his or her right against exonerated defendants. This is clearly the fairer and more logical result. To find otherwise places these defendants in a disfavored class and denies the opportunity to recoup their losses from the person or entity actually responsible. We agree with the logic and reasoning of the in-depth opinion written by Judge Robert Smith in Christiani v. Popovich and adopt it as the opinion of this Court. We disapprove the conflicting opinion of the Third District Court of Appeal in North Shore Hospital.

For the reasons expressed, we approve the opinion of the district court and deny the petition for writ of certiorari.

It is so ordered.

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

      . However, Christiani was followed in Zuckerman & Vernon Corp. v. Motchkavitz, 370 So.2d 1170 (Fla. 4th DCA 1979), and South Puerto Rico Sugar Co. v. Tem-Coie, Inc., 370 So.2d 1170 (Fla. 4th DCA 1979). Accord, Sol Walker & Co. v. Seaboard Coast Line Railroad Co., 362 So.2d 45 (Fla. 2d DCA 1978).

      . See Christiani N. Popovich, 363 So.2d 2, 8-9 (Fla. 1st DCA 1978); 8 Stet.L.Rev. 401 (1979).


author: ALDERMAN, Justice.

text:
    Louie L. WAINWRIGHT and Florida Parole and Probation Commission, Appellants, v. Larry Edward TURNER, James Benner Bailey, Jr., William G. Brooker, Richard Lee Rieser, Howard Gene Kilgore, and John Michael Haddon, Appellees.
    No. 58572.
    Supreme Court of Florida.
    Oct. 30, 1980.
    Michael H. Davidson, General Counsel for the Florida Parole and Probation Commission, Tallahassee, for appellants.
    Richard A. Belz and Thomas A. Daniel of the Florida Institutional Legal Services, Inc., Gainesville, for appellees.
   ALDERMAN, Justice.

The issue to be resolved in this appeal is whether the open public meetings law, section 286.011, Florida Statutes (1977), applies to parole revocations meetings of the Parole and Probation Commission. Construing article IV, section 8, and article II, section 3, Florida Constitution (1968), the First District Court of Appeal held that it did. We agree and affirm the decision of the district court.

In defense of its failure to comply with section 286.011, the Commission contends that under article IV, section 8(c), parole revocation is a function of the executive branch and is akin to the pardon power, which historically and constitutionally is a matter of executive grace, to be exercised on occasions and in a manner determined by the executive, free of legislative or judicial control. The Commission concedes that section 8(c), which provides that a parole and probation commission “may be created by law,” is not self-executing. It contends, however, that despite the fact that it was created by law, in dispensing paroles, it partakes of the executive’s immunity from legislative control.

The district court, in a well-reasoned and articulate opinion written by Judge Robert Smith, rejected the Commission’s arguments and correctly decided this case based upon the historical and constitutional distinction between the executive’s pardon power and its parole power. Accordingly, the decision of the district court is affirmed, and this case is remanded for further proceedings.

It is so ordered.

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

      . We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

      . Turner v. Wainwright, 379 So.2d 148 (Fla. 1st DCA 1980).


author: HOBSON, Acting Chief Judge.

text:
    Ralph TENNANT, Appellant, v. Wilfred David VAZQUEZ and Varsity Enterprises, Inc., d/b/a Bowen Travel Service, Appellees. Gordon SHIRAH, Appellant, v. Wilfred David VAZQUEZ and Varsity Enterprises, Inc., d/b/a Bowen Travel Service, Appellees.
    Nos. 79-1711, 79-1712.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1980.
    Rehearing Denied Nov. 4, 1980.
    John R. Parkhill, Tampa, for appellants.
    William J. Terry of Himes, Terry & Ket-chey, P.A., Tampa, for appellees.
   HOBSON, Acting Chief Judge.

In these consolidated appeals, appellants Tennant and Shirah appeal the final judgment rendered in a libel action in favor of appellees. The judgment assessed damages as follows:

1. That the Plaintiff WILFRED DAVID VAZQUEZ recover from the Defendants RALPH TENNANT and GORDON SHIRAH the sum of $30,000.00 (compensatory);
2. That the Plaintiff VARSITY ENTERPRISES, INC. recover from the Defendants RALPH TENNANT and GORDON SHIRAH the sum of $30,000.00 (compensatory);
3. That the Plaintiffs WILFRED DAVID VAZQUEZ and VARSITY ENTERPRISES, INC. recover from RALPH TENNANT the sum of $25,000.00 (punitive);
4. That the Plaintiffs WILFRED
DAVID VAZQUEZ and VARSITY ENTERPRISES, INC. recover from the Defendant GORDON SHIRAH the sum of $25,000.00 . (punitive).

We have carefully considered the several points raised on appeal and conclude that the question of damages awarded Varsity Enterprises, Inc. (Varsity) is the only point on which the record shows reversible error.

The only evidence presented to support Varsity’s claim for compensatory damages was that Varsity’s gross commissions decreased subsequent to the libel by appellants. Varsity was required to show its loss of profits with a reasonable degree of certainty, based on proof of income and expenses for a reasonable period of time before the libel occurred. In American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452, 453 (Fla. 5th DCA 1980), the court reiterated the rule:

Here, plaintiffs damages necessarily were the result of lost profits. These must be shown with a reasonable degree of certainty, based on proof of income and expenses for a reasonable period of time prior to the breach. New Amsterdam Casualty Co. v. Utility Mfg. Co., 122 Fla. 718, 166 So. 856 (1935). In this case plaintiff testified only as to annual gross incomes, omitting evidence as to the amount of operating expenses, even though it was clear that such expenses existed. This omission requires reversal of the compensatory damage award. Florida Ventilated Awning Co. v. Dickson, 67 So.2d 215 (Fla.1953).

Punitive damages may not be awarded unless supported by an award of compensatory damages, either actual or nominal. In American Motorcycle Institute it is stated:

The punitive damage award for fraud is fatally defective because it is unsupported by an award of compensatory damages, either actual or nominal. An action for punitive damages cannot be maintained independently of an action for compensatory damages. McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221 (1943). These compensatory damages for the underlying breach of duty may be nominal as well as actual. Elyria-Lorain Broad. Co. v. National Com. Indus., Inc., 300 So.2d 716 (Fla. 1st DCA 1974); cert. dismissed, National Com. Indus., Inc. v. Elyria-Lorain Broad. Co., 337 So.2d 809 (Fla.1976).

380 So.2d at 453.

There is no evidence in the record of Varsity’s expenses as against its gross profits which do appear in the record. This lack of evidence necessitates the reversal of Varsity’s compensatory damage award. There being no compensatory damages legally proved for Varsity, the punitive damages must also fall. In view of the fact that the final judgment awards punitive damages to Vazquez and Varsity from each appellant, it is not possible to determine by reference to the judgment just what portion was awarded to Vazquez individually.

The portion of the final judgment which awards Vazquez compensatory damages against appellants is affirmed. The award of compensatory damages to Varsity against appellants is reversed. Punitive damages awarded to both Vazquez and Varsity against each appellant are reversed. We remand this cause for a new trial on damages only in order to determine what, if any, compensatory damages should be awarded Varsity and the amount of punitive damages to be awarded Vazquez. If Varsity proves compensatory damages, then the amount of punitive damages to be awarded Varsity shall be determined.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

GRIMES and DANAHY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Brian Q. DORRY, Appellant, v. STATE of Florida, Appellee.
    No. 79-599.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Dec. 3, 1980.

      Warner S. Olds of Olds & Titome, P. A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged by information with aggravated battery and was found guilty thereof by a jury. Following his adjudication of guilt and sentence of two and one-half years in prison and a similar term of probation thereafter, appellant filed this timely appeal. We reverse and remand.

The first point raised by appellant is that the trial court improperly excluded testimony of previous specific acts of violence committed by the victim. The excluded testimony occurred on cross-examination of the State’s first witness, who was the victim. At that time self-defense had not become an issue in the trial. We find the trial court properly excluded the testimony. In Williams v. State, 238 So.2d 137, 139 (Fla. 1st DCA 1970), cert. denied, 241 So.2d 397 (Fla.1970), it was held:

Point V of appellant was that it was error not to permit the defense to show the vicious nature of the deceased and quarrelsome, violent and dangerous proclivities as evidenced by other and prior altercations. We cannot agree with the defendant on this point. Such evidence is admissible where the plea of self-defense is interposed, but until the defendant shows some evidence that he acted in self-defense, such is improper.

See also, Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971), cert. denied, 255 So.2d 682 (Fla.1971); Campos v. State, 366 So.2d 782 (Fla. 3d DCA 1978).

Appellant’s second point is that the trial court improperly excluded the testimony of Officer Joseph Grahn, who was prepared to testify to the victim’s reputation for violence. He argues that although the witness’ name was not included on appellant’s witness list, appellee was not prejudiced thereby. He further contends that the trial court failed to make any determination of whether appellee would be prejudiced by the failure to provide it with prior notice of the testifying witness.

There were actually two inquiries made by the trial court when appellant announced the officer as his next witness. After a bench conference the jury was excused and appellant’s counsel informed the trial court that he had just spoken to the witness for the first time. Appellee then argued it would be prejudiced if the witness were allowed to testify. The trial court, relying upon the statement of defense counsel that he had just spoken to the witness for the first time, said:

I think newly discovered evidence has always been considered an exception to the rule, even where a trial court has ruled in a murder. And so, I am going to permit the testimony within the Banks[ ] case. I am going to permit the State to have ten minutes.
Court will be in recess for ten minutes. The witness will be available for the State.

After the recess the assistant state attorney asked the trial court to put Officer Grahn on the witness stand outside the jury’s presence to establish that the law partner of defense counsel knew of the witness two months prior to the trial. Defense counsel, who represented that he was asked by his partner to try the ease one day before the trial, then called the witness to the stand and proffered the officer’s testimony. Officer Grahn, outside the jury’s presence, testified that the victim, Joe Gibbs, had a reputation for being a violent type person. Officer Grahn also related two specific instances of violence involving Gibbs, including one in which Gibbs attempted to knee the officer in the groin. On cross-examination he corroborated the fact that he had discussed Gibbs’ reputation during a telephone conversation with defense counsel’s law partner two months before the trial and that he was served with a subpoena for the trial on the previous day by the partnership’s office. After further argument the trial court reversed its earlier decision and did not permit the witness to testify, saying:

And you asked me to make an exception to the discovery rule with respect to listing witnesses. If it were genuine surprise, then I would make an exception to the rules. But, it is not.

The trial court’s ultimate decision was made without the inquiry required by Richardson v. State, 246 So.2d 771 (Fla. 1971). Most importantly the trial court made no determination of prejudice occasioned appellee by the discovery violation. Cooper v. State, 377 So.2d 1153 (Fla.1979); Smith v. State, 372 So.2d 86 (Fla.1979); Adams v. State, 366 So.2d 1236 (Fla. 2d DCA 1979); Fasenmyer v. State, 383 So.2d 706 (Fla. 1st DCA 1980). Absent that determination the record provides no basis for the sanction imposed; namely, exclusion of the witness’ testimony. The trial court’s sole consideration was the fact that the law firm representing appellant knew of the witness two months prior to trial. It was incumbent upon the trial court to then determine if the discovery violation hindered or prevented appellee’s proper preparation for trial and, only if a finding of prejudice was made, fix a just sanction authorized by Florida Rule of Criminal Procedure 3.220(j). Wilcox v. State, 367 So.2d 1020 (Fla.1979); Flynn v. State, 351 So.2d 377 (Fla. 4th DCA 1977). Accordingly, we reverse and remand for a new trial.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.

      . Fla.R.Crim.P. 3.220(b)(3) states, in part:
      Within seven days after receipt by defense counsel of the list of names and addresses furnished by the prosecutor pursuant to Section (a)(l)(i) of this Rule the defense counsel shall furnish to the prosecutor a written list of all witnesses whom the defense counsel expects to call as witnesses at the trial or hearing.

      . Banks v. State, 351 So.2d 1071, 1072 (Fla. 4th DCA 1977), cert. denied, 354 So.2d 986 (Fla. 1977), held:
      Reputation testimony is one way to prove character and it is the decedent’s character that is actually sought to be proven by reputation testimony in order to shed light on his conduct at the time of the incident involved. There is no question that the trial court was correct, if it allowed the witness to testify, in permitting testimony as to reputation of the victim on the issue of the victim’s conduct at the time of the incident in question.


author: FRANK D. UPCHURCH, Jr., Judge. COBB, Judge,

text:
    Winnifred A. COWAN, Appellant, v. Alvin E. COWAN, Appellee.
    No. 79-961/T4-526.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    Rehearing Denied Nov. 7, 1980.
    Howard S. Reiss, Orlando, and Edna L. Caruso, West Palm Beach, for appellant.
    D. Arthur Yergey, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant-wife, Winnifred A. Cowan, appeals from a final judgment of dissolution of her marriage to appellee-husband, Alvin Cowan.

A. Appellant first contends that the court erred in not awarding husband’s interest in the marital home to her as lump sum alimony or as a special equity. We agree.

After approximately thirty-seven years of marriage, husband petitioned for dissolution of the marriage. The court awarded appellant $270.00 per week permanent periodic alimony and also her attorney’s fees. There was also a division of personal property which is not questioned.

At the time of the dissolution, husband was sixty years old and wife was fifty-eight. Appellee retired in 1971 as a brigadier general in the Army and has a doctorate in physics and mathematics. Appellant holds a Bachelor of Arts degree in business administration acquired in the early 1940s but she has not worked since 1944. Husband has a gross annual income of $71,-340.00; $2,695.20 per month military retirement and $3,250.00 per month from his present employment.

The distinction between a “special equity” in property and property awarded as “lump sum” alimony was recently reviewed extensively in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The court stated that the term “special equity” was created to describe a vested interest in property brought into the marriage or acquired during the marriage because of the contribution of services or funds over and above normal marital duties. While wife had contributed approximately $40,000.00 over the term of the marriage from sources outside of the marital relationship, most was commingled in a joint account and was used for living expenses. In granting lump sum alimony, the trial court should be guided by all relevant circumstances to ensure “equity and justice between the parties.” § 61.08, Fla.Stat. (1979); Canakaris.

A comparison of the relative financial circumstances of the parties reflects that after the judgment appellant was left with one-half of the house (now sold and the proceeds held in escrow pending outcome of this appeal), an automobile and $1,170.00 per month alimony. If husband should die, appellant’s alimony would die with him and the only income she could expect would be an entitlement to social security.

On the other hand, after the judgment husband has one-half of the house, a car, an airplane and $4,775.20 per month income ($2,695.20 military retirement and $3,250.00 salary less $1,170.00 alimony). If appellant should die, his income is increased because the alimony obligation terminates. While the record does not reflect what the present value of an annuity would be equivalent to husband’s military retirement his entitlement is a substantial asset. See Bradley v. Bradley, 385 So.2d 101 (Fla. 5th DCA 1980).

During the marriage, wife had devoted all of her time and efforts to maintaining the home and raising their children. She dutifully relocated their home as her husband’s military career demanded. While the parties lived within their income, no attempt was made to accumulate savings or to acquire investments. When wife expressed concern over their lack of savings, husband advised that they would be taken care of by the Army. The record reflects that appellant will lose, because of the dissolution, all right to survivor’s benefits which, if married to General Cowan at his death, would amount to $1,482.00 per month.

It is not foreseeable that Mrs. Cowan will be able to make any substantial contribution to her own support. Her business degree has little value in the market place. She has had to have abdominal surgery and anticipates further surgery.

The judgment appealed stops somewhat short of “equity and justice” between the parties. Canakaris. “A lump sum allowance of permanent alimony is not ‘fit, equitable and just’ unless the husband is in a position to make payment of the sum so granted over and above the requirements attendant upon the maintenance of his business or employment . . . . ” Yandell v. Yandell, 39 So.2d 554 (Fla.1949), cited in Canakaris at 1201. Here, General Cowan’s business or employment will not be affected to any extent by an award of his equity in the house to his wife. There are no other funds or assets from which a lump sum award could be made. Therefore, we conclude that the trial judge abused his discretion in failing to award to wife husband’s equity in the marital home.

B. The second question raised by wife is whether the trial court erred in awarding wife $270.00 per week alimony.

The primary elements to be considered are the needs of one spouse for funds and the ability of the other spouse to provide them. Canakaris. Criteria to establish need include the parties’ earning ability, age, health, education, duration of the marriage, the standard of living enjoyed during its course and the value of the parties’ estates. Id. A spouse’s ability to pay may be determined not only from net income, but also from net worth, past earnings and the value of the parties’ capital assets. Firestone v. Firestone, 263 So.2d 223 (Fla.1972). While the question of how much permanent alimony to award rests within the broad discretionary authority of the trial judge, his determination is subject to reversal where an incorrect legal rule is applied. Canakaris.

The disparity between appellant’s income and appellee’s is acute, especially when the standard of living established during the marriage is considered. See Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla.3d DCA 1977). While this court should not substitute its judgment for that of the trial court, Shaw v. Shaw, 334 So.2d 13 (Fla.1976), it is necessary to determine if an incorrect rule or standard has been applied. Apparently the trial court did not adequately consider the earning ability of the parties. Wife must subsist on $270.00 per week. On the other hand, husband has approximately $1,100.00 per week (after payment of alimony). While wife will undoubtedly be able to increase her income by prudent investment of the lump sum award of husband’s equity in the home, there remains a considerable difference. As stated in Canakaris:

We recognize that a trial court need not equalize the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from prosperity to misfortune, and in viewing the totality of the circumstances, one spouse should not be ‘short-changed.’

Id. at 1204. We must therefore remand this cause to the trial court for reconsideration of the permanent alimony award to determine wife’s future earning prospects, the advisability of some rehabilitative award to enable wife to become gainfully employed and the income which wife can reasonably expect to generate from the lump sum award thereby reducing the disparity between the positions of husband and wife.

As to the other points raised on appeal, we find no error and affirm. We reverse the trial court’s denial of lump sum alimony in the husband’s equity in the marital home and remand for reconsideration by the court the question of other alimony.

AFFIRMED in part, REVERSED and REMANDED in part.

SCHWARTZ, ALAN R., Associate Judge, concurs.

COBB, J., concurring in part, dissenting in part with opinion.

COBB, Judge,

concurring in part, dissenting in part.

I concur with the majority opinion in regard to an award to the appellant of the entire proceeds of the escrow fund from the sale of the joint home as lump sum alimony. I dissent in regard to the reversal of the periodic alimony award. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Firestone v. Firestone, 263 So.2d 223 (Fla.1972).


author: CAMPBELL, Judge.

text:
    Robert N. McQUEEN, Appellant, v. Lucinda B. STRATTON, Appellee.
    No. 80-175.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1980.
    Rehearing Denied Nov. 12, 1980.
    Britt Whitaker, Tampa, and Chris W. Al-tenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellant.
    Charles L. Carlton of Carlton & Carlton, P. A., Lakeland, and Gary A. Kahle of Olmsted, Schwarz, Kahle & Casanueva, Port Charlotte, for appellee.
   CAMPBELL, Judge.

McQueen appeals a final judgment of paternity, alleging that the Human Leukocyte Antigen (HLA) test should not have been admitted into evidence as the primary means of proving paternity. He also appeals the award of $650 per month future child support and past child support from the date of birth in the same monthly amount, a total arrearage of $40,300. We reject McQueen’s arguments.

This court held in Simons v. Jorg, 384 So.2d 1362 (Fla.2d DCA 1980), that a putative father can be compelled to submit to HLA testing if the mother has shown good cause. The trial court in the instant case followed Simons v. Jorg, supra, and determined that Lucinda Stratton had shown good cause. As to the admissibility of the test results at trial, we adopt the opinion of our sister court in Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980).

Regarding the award of past child support, appellant has failed to show that the trial court has abused its discretion. Appellant presented no evidence at trial which would prevent an award of past child support. See § 742.041, Fla.Stat. (1979).

Appellant has also failed to demonstrate that the trial court abused its discretion in awarding $650 per month future child support payments. The only evidence presented on the needs of the child was the testimony of the mother. This testimony supports the trial court’s order and was not contradicted by McQueen. The ability of the husband to pay the amount awarded is also supported by the record as it reveals his assets to be in excess of $800,000.

For the above stated reasons, we affirm the judgment of the trial court.

HOBSON, Acting C. J., and DANAHY, J., concur.