author: EDWARD N. SCRUGGS, Retired Circuit Judge. EDWARD N. SCRUGGS, Retired Circuit Judge. HOLMES, Judge WRIGHT, Presiding Judge,

text:
    E. C. LACKS v. Willie Mae STRIBLING, et al.
    Civ. 2868.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    Rehearing Denied Sept. 30, 1981.

      Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellant.
    No brief filed for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Lacks appeals from a judgment rendered against him and in favor of Stribling which arose out of his sale of a subdivision lot to Mrs. Stribling and her husband.

In 1960 W. C. McDaniel subdivided certain property that he owned near Leesburg, Alabama, and placed on record a plat thereof, entitled “W. C. McDaniel Lakeshore Property” (original plat). A public auction of the subdivision lots was conducted in May 1960, where Lacks purchased some of the lots, including Lot 54. A few months thereafter, Lacks, McDaniel and other property owners were approached by officials of the Alabama State Highway Department— Mr. Hunt and Mr. Price — because backwater would inundate the existing roads to the subdivision. The original plat contained an access road fifty feet in width between Lot 54 and Lots 2 and 3. Mr. Hunt and Mr. Price sought to “kill” that road and to locate another road between Lot 50 and Lot 51 by shifting all lines of Lots 51 through 54 fifty feet to the north.

In their attempt to close the road between Lot 54 and Lots 2 and 3 and the opening of the new road, Mr. Price and Mr. Hunt required another employee of the highway department to prepare a plat (rearrangement plat), which was signed by Mr. McDaniel and the owners of Lots 51 through 54. The owners of Lots 2 and 3 were not contacted nor consulted about this matter, although access to their lots would be entirely eliminated if the originally platted road between them and Lot 54 was abolished, which is exactly what was attempted to be accomplished by the rearrangement plat. Lacks’ signature to the rearrangement plat was simply an accommodation to the state. The rearrangement plat was recorded in the probate office.

Lacks sold Lot 54 to Stribling and her husband, now deceased, in May 1973, for $1,500, its then reasonable value. In the joint deed to them, Lot 54 was described according to the original plat. Mrs. Stri-bling, through her husband’s will, became the owner of her husband’s one-half interest in Lot 54 upon his death. In the deed, Lacks agreed to forever warrant and defend the title to the property to the Stri-blings from every lawful claim. At the time of the sale Lacks provided the Stri-blings with a copy of the rearrangement plat and explained to them what had been done with reference to moving the road.

The owners of Lots 2 and 3 filed the original complaint in this case, in essence averring that the rearrangement plat was inefficacious to close the road between Lot 54 and Lots 2 and 3 as platted on the original plat. They sought an adjudication that that road was still open in order that they might have access to their property. By a judgment dated April 15, 1980, the trial court agreed with that position, holding that the procedure for closing a road in a recorded, platted subdivision had not been followed. § 35-2-51, Code (1975).

In her third party complaint against Lacks, Stribling sought a reformation of the deed. She also contended that he was guilty of fraud or misrepresentation, and, additionally, that “[I]f in fact the said road or right of way for a road is in existence then . . . Lacks ... is liable to her . . . for the loss of the land. . . . ”

On October 15, 1980, the trial court rendered a judgment reforming Lacks’ deed to Stribling so as to describe Lot 54 according to the rearrangement map and so as to exclude therefrom the fifty-foot right of way. The size of her lot at the front was, thereby, reduced to fifty feet instead of the original one hundred feet. Further judgment was rendered for Stribling and against Lacks for $3,000, as the reasonable value of the 50 X 255-foot strip of land lost from Lot 54. The following findings of fact were included therein:

That although Stribling’s deed describes the property conveyed as “lot 54 according to a plat recorded in Plat Book 5, page 22” the intent of Lacks and the understanding of Stribling was that the property conveyed was Lot 54 according to the rearrangement of the W. C. McDaniel Lakeshore Property, recorded in Plat Book 5 at page 31. This lot however was reduced in size by the reopening of the improperly closed road or street by order of this Court dated April 15, 1980, this road or street being a 50 foot strip evenly off the North side of Lot 54 according to Plat Book 5 at page 31 and constituting approximately forty per cent of the lot Stribling thought she purchased and that Lacks thought he sold to Stribling.

Lacks’ appeal is concerned only with the monetary judgment against him.

His first contention is that Stri-bling’s claim for fraud or misrepresentation is barred by the one year statute of limitations. However, we pretermit a decision on that issue since the trial court’s judgment could have been based entirely upon Lacks’ breach of the warranty contained in the deed, as to which the ten year statute would apply from the date of the accrual of her action. Lost Creek Coal & Mineral Land Co. v. Hendon, 215 Ala. 212, 110 So. 308 (1926).

Lacks argues that the measure of damages in this case is the difference between the actual value of Lot 54 at the time of sale and what it would have been had it been as represented.

The covenant in the deed to warrant and defend the title of the grantee and his successors against the lawful claims of all persons is in substance a covenant for possession and quiet enjoyment, and it is not broken so long as the grantee’s enjoyment and possession are not interfered with. Oliver v. Bush, 125 Ala. 534, 27 So. 923. “It operates in futuro, unless the true owner is in actual possession at the time the covenant is entered into, in which ease there is a breach eo instanti; it runs with the land, that is, it is intended for the benefit of the ultimate grantee in whose time it is broken, and there can be no breach except by an actual or constructive eviction.”

Chicago, Mobile Development Co. v. G. C. Coggin Co., 259 Ala. 152, 161, 66 So.2d 151, 157 (1953). Therefore, the proper time element in the damage formula is computed as of the date of eviction, not as of the time of sale. Here, the date of eviction was April 15, 1980, when the judgment was rendered declaring that the right of way for a road still existed between Lot 54 and Lots 2 and 3. Her action did not accrue until April 15, 1980.

The Striblings paid $1,500 for the lot in 1972 and improved it specifically by constructing or installing a septic system, lights and water. Without objection from Lacks, Stribling stated that in 1977 she offered to sell the lot for $3,500, but then she decided not to sell it. She testified that her lot as diminished by the street “wouldn’t be worth one dime. I would (only) have fifty feet left.” Lacks testified that the value of the lot is more now than at the time of the sale in 1972.

While the evidence is somewhat skimpy as to value, the judgment appealed from is presumed to be correct regarding the award, and we cannot substitute our opinion for that of the trial court unless that court’s judgment is palpably wrong, manifestly unjust or is without supporting evidence. Anderson v. Blue Star Ready Mix, Inc., 391 So.2d 127 (Ala.Civ.App.1980). The monetary judgment against Lacks is neither unjust nor palpably wrong and it is supported by some competent evidence.

The final contention of Lacks is that the trial court lacked authority to enter the October 15, 1980 judgment because the motion of Stribling upon which that judgment was predicated was untimely filed. In order to better comprehend this issue, some of the history of the proceedings in the trial court must be detailed.

A few days after hearing the last oral testimony, the trial court rendered a judgment dated July 2, 1980, which denied any relief sought by Stribling. That order was not filed until July 9, 1980. At a time which is not apparent, the register typed the following upon the case action summary, “7-2-80 Order of the Court.”

On August 8, 1980, Stribling filed a motion to alter, amend or vacate that judgment, or, in the alternative, for a new trial. By order dated August 13, 1980, the circuit court denied that motion, stating that the motion “comes too late.” However, by order dated August 20, 1980, the trial court set aside its August 13 order and set the original motion for hearing. Subsequently, on October 15, 1980, the court rendered judgment against Lacks.

Rule 59, A.R.C.P. provides that a motion for a new trial, or to alter, amend or vacate the judgment, “shall be served not later than thirty days after the entry of the judgment.” Among other methods authorized by Rule 58, a judge may render his order or judgment by executing a separate written document, as was done in this ease, and entry of the judgment must be made by the clerk or register. “Notation of a judgment or order on separately-maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order.” Rule 58(c), A.R.C.P.

Here, the judgment dated July 2 was filed on July 9, but the “order of the court” was noted upon the case action summary as of July 2. Thus, Lacks contends that the August 8 motion came too late, that the register’s action in typing the July 2 date on the case action summary constituted the entry of the judgment as of July 2, and, consequently, more than thirty days had expired between the judgment denying relief to Stribling and the filing of her August 8 motion. We do not agree.

In the first place, the words “Order of Court” are inadequate to be an entry of the judgment. That notation is so unspecific as to be a nullity insofar as entering a judgment is concerned. We cannot give more credence to a purely ministerial act of inadequately entering a judgment by a register than to the judicial act of rendering the same judgment by the trial court.

A separate judgment may be signed by the trial judge, but it is not effective until he authorizes that it be filed with the clerk or register, even if the filing date is several days, weeks or even months later than the date reflected on the judgment. When a separate judgment is filed, the filing thereof constitutes the entry of the judgment and would take preference over an additional attempted entry thereof by the clerk or register by any other method of entering authorized by Rule 58(c). To hold as contended by Lacks would mean that, if adequate time differed between the date of the entry by the clerk on the case action summary and the date of the filing of the separate judgment, the clerk could effectively eliminate a motion for a new trial (if the difference was more than thirty days) or even an appeal (if the difference was more than forty-two days). Such a construction is contrary to the spirit of modern judicial philosophy. Rule 1(c), A.R.C.P.; Rule 1, A.R.A.P.

We determine that the judgment dated July 2 was entered when it was filed by the register on July 9, that such entry prevails and we are not governed in this matter by the actions of the register in placing the July 2 date and “Order of the Court” on the case action summary, and that the Stribling motion of August 8 was timely filed.

All of the contentions of Lacks’ most learned and competent counsel have been duly considered and we find no error therein.

We affirm.

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

AFFIRMED.

All the Judges concur.

On Application for Rehearing

EDWARD N. SCRUGGS, Retired Circuit Judge.

In his application for rehearing, Lacks raises two issues: (1) that the opinion affirming this case because of a breach of warranty was a new issue not raised in the trial court; and (2) he re-argues that the trial court lacked authority to enter the October 15, 1980, judgment since Stribling’s motion upon which that judgment was predicated was untimely filed. Since item number (2) was adequately discussed in the original opinion, we respond briefly only as to the first issue.

The words “breach of warranty” were not utilized in the third party complaint, but it did aver that Lacks executed a deed to Stribling, that Stribling had been served with a complaint which sought to compel her to open a road across land which she claimed by virtue of the deed from Lacks, and that Lacks should be liable to Stribling for the loss of the land if the road was opened. While the use of such generalities is not advised in breach of warranty claims, Alabama does have notice pleadings, and there was adequate notice under those aver-ments to award damages for the breach of the warranty contained in the deed.

The deed was introduced into evidence. The record indicates a breach of the warranty contained in the deed and Stribling clearly was greatly damaged from the loss of a large portion of her lot for the right of way. “[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Rule 54(c), A.R.C.P. The trial court could have based its judgment upon Lacks’ obvious breach of warranty as disclosed by the evidence even if the adequacy of the third party complaint in that respect were totally ignored.

If the breach of warranty issue is entirely eliminated, her fraud or misrepresentation claim against Lacks is not barred by § 6-2-3, Code of Alabama (1975). Neither Lacks nor Stribling had any concern about the road until the action in this case was filed against Stribling to open the road. Evidently Lacks seeks to place a higher responsibility upon Stribling to have made prior inquiry than he would impose upon himself. Under the circumstances of the case, the trial court could have ascertained that the earliest time that Stribling acquired such facts or knowledge as would provoke inquiry in the mind of a reasonably prudent person was when she was served with a copy of the original complaint regarding the road reopening. Thus, the trial court could have determined that the one year statute of limitations began to run at that time as to her fraud or misrepresentation claim. Her third party complaint against Lacks was filed thirty-four days later and is not barred by the limitations expressed in such Code section.

APPLICATION FOR REHEARING OVERRULED.

BRADLEY, J., concurs.

HOLMES, J., concurs specially.

WRIGHT, P. J., dissents.

HOLMES, Judge

(concurring specially).

I feel constrained to comment upon the dissent.

The dissent correctly states the law of Alabama. It incorrectly applies it to the instant case. Put another way, the dissent “misses the point.” The point is that the state of the record before this court does not reveal clearly what theory the case was tried upon. The record does reveal there was ample evidence presented, as indicated by Judge Scruggs, to support a recovery upon a theory of breach of warranty.

I strongly disagree that this court has for the first time raised the theory of breach of warranty.

WRIGHT, Presiding Judge,

dissenting.

In application for rehearing and brief in support thereof, appellant Lacks contends that the decision of this court affirming the judgment in favor of third party plaintiff Stribling upon the theory of breach of warranty contained in a warranty deed is not the theory upon which the case was tried and judgment entered below. Though I concurred in the decision of this court, upon review of the record and brief, I am persuaded that appellant is correct and our original decision was based upon a theory for recovery never pleaded, presented by the evidence of third party plaintiff nor defended against by appellant-defendant. The complaint is clearly founded upon false representation in the sale of real property. It was clearly defended upon the general issue and a plea of the running of the statute of limitations applicable to fraud. There is no indication in the pleadings, evidence or the judgment that any other cause of action was even considered, much less made an issue. There was no issue relative to breach of warranty presented on appeal by appellant (appellee did not favor the court with a brief originally nor has he appeared in opposition to the application for rehearing). There is no appearance of breach of warranty in the case until the opinion of this court.

Rule 54(c), A.R.C.P., was never intended to be so broad as to permit an appellate court to affirm a judgment upon a cause of action not pleaded, tried nor considered by the trial court merely because it appears from the record that some evidence presented might tend to sustain such action if it had been pleaded. Carden v. Penney, 362 So.2d 266 (Ala.Civ.App.1978). The introduction of the deed as evidence was not for the purpose of proving the warranty but merely to show the representation.

We have said many times that the court will not consider on appeal a theory of recovery presented here for the first time and never presented below. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979). It must follow that this court may not sua sponte raise a theory from the record to sustain a judgment entered after trial upon a different theory. To do so would violate the essentials of due process and fair play.

We recognize that upon rehearing the majority of the court, without withdrawing its original erroneous basis for affirmance, now sustains the judgment upon the primary issue originally presented by appellant, i.e., the defense of the statute of limitations fails. I agree that there is sufficient evidence in the record to support the judgment of the trial court upon the cause of action for fraud. I concur in the affirmance on rehearing upon that ground. However, I strongly dissent from the original decision and the failure to delete it from the record on rehearing. I would grant rehearing, withdraw our original opinion and enter a new decision upon rehearing.

It is not my intent to reflect upon the work of Judge Scruggs in writing the original opinion. As has been said, I participated in and approved it. I was in error. This court is deeply in debt to Judge Scruggs for his distinguished aid in maintaining the current status of the court for the last two years.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Ex parte E. C. LACKS. (Re E. C. LACKS v. Willie Mae STRIBLING, et al.)
    81-23.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Jean Phillips PONS v. Steven Dale PHILLIPS.
    Civ. 2768.
    Court of Civil Appeals of Alabama.
    Aug. 26, 1981.
    Rehearing Denied Sept. 30, 1981.

      Steven E. Haddock, Decatur, for appellant.
    James Francis, Decatur, for appellee.
   BRADLEY, Judge.

This is a child custody ease.

The parties to this proceeding were divorced on June 1, 1978 and custody of the two minor children was awarded to the mother. The father was ordered to pay |50.00 a week child support and he was given specific visitation privileges.

On September 26, 1980 the father filed a petition for modification of the divorce decree seeking custody of the two minor children mainly on the ground that he had great difficulty visiting and contacting the children since they were now living with their mother in Gainesville, Florida. The trial court had previously issued an order prohibiting the mother from removing the children from the jurisdiction of the court but the removal had taken place before the mother was served with the order. Upon the filing of the modification petition the trial court entered an ex parte order granting temporary custody of the children to the father.

Armed with this ex parte order, and be-' fore the mother had been served with a copy of it and a copy of the modification petition, the father went to Gainesville, Florida, met the school bus carrying his son, picked him up and returned with him to Decatur, Alabama. The father made no effort to take physical possession of the little girl. Upon learning that the father had taken the son to Alabama, the mother filed an answer to the modification petition and a counterclaim seeking to have custody of the two children restored to her.

After a hearing the trial court granted custody of the son to the father, granted custody of the daughter to the mother and decreed very specific visitation privileges for the mother and the father. The mother’s motion for new trial was denied and she appeals.

The determinative issue here is whether there has been a material change in circumstances since the divorce decree to justify changing custody of the son from the mother to the father. We find none and reverse.

The record shows that subsequent to the divorce the parties frequently failed to comply with the child support and visitation portions of the decree and this caused considerable animosity between them. The mother’s move to Florida, effectively preventing easy access to the children by the father, appeared to precipitate the father’s efforts to obtain custody of the children, especially the son.

The evidence tends to show that the father was of the opinion that the mother was without authority to take the children to Florida without first obtaining his approval. The mother testified that she told the father that she was taking the children to Florida some months before she did so, but that he laughed at her.

The mother testified that she moved to Florida for financial reasons, not to prevent the father from seeing his children, and since doing so, she has remarried and her new husband works two jobs to support the family. Because she is being supported by her new husband, the mother said she is able to devote her full time to caring for the children.

The father stated that he had remarried several days before the hearing in this matter and that his new wife worked on the same shift at the same plant with him; that during the time that he and his new wife worked, his mother looked after the little boy.

The evidence is without dispute that both parents love the children and want to be their custodians. Also, there is no significant evidence that the parents are unfit to be the children’s custodians.

The area of the evidence that is in dispute relates to the visitation of the children with the father. The father complained that the mother would not let him visit the children nor would she allow the children to talk to him on the telephone. The father admitted that on occasions when he was denied visitation he was behind in child support payments. It was also undisputed that the father had been permitted to have the children visit in his home on two separate occasions for a total of twenty-one days within six months of the filing of the modification petition. The mother stated that on most occasions when the father requested visitation, it was allowed. She did say, however, that one time he appeared at her home in Gainesville, without prior notice, seeking visitation and she refused. She also admitted that she told her former husband on one occasion that he could not visit the children and that she would not come back to court in Alabama, but she said these statements were made right after the father had come to Florida and obtained possession of the son without her knowledge and, as a result, she was emotionally upset.

As always in child custody matters, the welfare and best interests of the child are of paramount consideration for the court. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980). And the party seeking a modification of a child custody decree must show a material change in circumstances since the last custody decree that adversely affects the welfare of the child. Taylor v. Taylor, supra. Moreover, the party seeking modification has the burden of proof. Cheatham v. Cheatham, 344 So.2d 525 (Ala.Civ.App.1977).

It is axiomatic that where the trial court hears the evidence ore tenus, its decree will not be reversed except for plain and palpable abuse of discretion. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976).

Reviewing the evidence in the light of the above enumerated principles of law, we see a mother who has had custody of her two children for most of their natural lives — the children were five years old and three years old at the time of the hearing. She was a fit mother who loved and cared for her children. The oldest child, the son, was attending kindergarten and doing well. The daughter was well and happy except for a chronic ear problem that required attention.

Although the mother’s family was of modest means, there is no evidence that the children lacked the necessaries of life and there is no evidence that they lacked the love and affection of the mother and stepfather. By the same token there is no evidence that the father does not love his children. So, where is the change in circumstances since the last custody decree that has so adversely affected the welfare and best interests of the son as to warrant a change in his custody?

As best we can discern from the pleadings and proof, the real bone of contention of the father is the fact that the mother moved to Gainesville, Florida, a distance of some five hundreds miles, and thus made it more difficult for him to visit with his children.

To begin, it should be noted that when the mother took the children to Florida to live there were no court orders preventing her from doing so and, in the absence of such orders, she had a right to take the children to Florida. Cheatham v. Cheatham, supra.

If Mrs. Pons had a right to take the children to Florida and she is a fit mother to care for the children — and the trial court obviously thought she was because it left the custody of the three year old daughter with the mother — what facts show a material change in circumstances so as to authorize a change in custody of the five year old son from the mother to the father? We are unable to find any such facts.

Should it be contended that the mother had refused visitation and telephone contact with the children, the evidence shows very few instances when this was done, and then it was precipitated by the attitude of the parents toward visitation and child support, i.e. the parents were giving vent to their feelings toward each other in this manner. The children were the pawns in the parents’ personal battle. And, as we said in Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977), the parents’ dispute over visitation and child support can be and should be solved by the parents. Visitation disputes should not be settled by changing custody of children from one parent to another absent other viable reasons. The trial court is well able to require adherence to its visitation orders by other means.

For the above noted reasons we find that the father failed to carry the burden of proof required for modification of a child custody decree and, as a consequence, that the trial court erred in awarding custody of the five year old son to the father. Also, it is the finding of this court that the reduction in child support from $50.00 a week to $25.00 a week due to the award of custody of the son to the father should be set aside and the child support award of $50.00 per week as set out in the divorce decree be reinstated. All other aspects of the decree are affirmed.

The case is remanded to the trial court for entry of judgment awarding custody of the son to the mother and awarding the mother $50.00 per week child support.

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

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


author: EMBRY, Justice.

text:
    Ex parte Steven Dale PHILLIPS. (Re Jean Phillips PONS v. Steven Dale PHILLIPS).
    81-24.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    Yukiko ERBE v. George L. EADY.
    Civ. 2852.
    Court of Civil Appeals of Alabama.
    Aug. 26, 1981.
    Rehearing Denied Sept. 23, 1981.
    Larry C. Weaver and John C. Eyster of Eyster, Eyster, Key & Tubb, Decatur, for appellant.
    Ralph E. Slate, Decatur, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment construing a California divorce decree.

Yukiko Eady (now Yukiko Erbe) and George Eady were married in Japan. At that time he was a member of the United States Air Force. Mr. Eady remained in the Air Force until 1969, at which time he retired. The parties continued to live together as man and wife until May 1974 when they separated. Mr. Eady petitioned a California court for a divorce and on October 18, 1974 an interlocutory judgment dissolving the marriage was handed down. This judgment was made final on January 8, 1975.

The pertinent parts of the judgment are as follows:

The court also orders that petitioner [Mr. Eady] shall pay to respondent [Mrs. Erbe], as and for spousal support, the sum of $1.00 per month, commencing September 1, 1974, and continuing monthly thereafter until respondent dies or remarries or until further order of this court or until respondent remarries, whichever shall first occur, but in no event beyond September 1, 1984. Respondent waives any and all rights to spousal support from and after that date.
The court also orders that petitioner shall pay to respondent an amount equal to forty-one and one-half (41.5%) percent of his gross monthly military retirement payable on or before the first day of each month, commencing September 1, 1974. This amount presently is in the amount of $178.03 per month.
The court also orders that the community property of the parties is distributed as follows:
To the petitioner as petitioner’s sole and separate property:
1. House and lot located at 4170 Polaris Avenue, Vandenberg Village, Lom-poc, California;
2. The household furniture, furnishings and appliances located in the home at 4170 Polaris Avenue;
3. The aircraft maintenance tools and other tools; and
4. The 1972 Toyota automobile, California license No. 064FKV, subject to the encumbrance thereon.
To the respondent as respondent’s sole and separate property:
1. The Singer sewing machine, two knitting machines, television-stereo console and a Japanese wall clock, subject to the encumbrance on the Singer sewing machine; and
2. The 1968 Ford Thunderbird automobile, California license No. WQH888.

On September 1, 1974 and each month thereafter until June 1975, Mr. Eady sent Mrs. Eady three checks: one check was for one dollar per month spousal support, another check was for an amount equal to forty-one and one-half percent of Mr. Eady’s gross monthly military retirement payment, and the other check was for $72.00 which was the monthly payment required by a promissory note executed by Mr. Eady in favor of Mrs. Eady. No checks were received from Mr. Eady after June 1975.

Mr. Eady remarried on March 31, 1975 and presently resides in Lawrence County, Alabama. Mrs. Eady remarried on May 31, 1975 and lives in California.

On February 6, 1980 Mrs. Erbe filed an action in Morgan County, Alabama which was subsequently transferred to Lawrence County, Alabama, seeking to enforce the military retirement payment provision of the California decree. In July 1980 Mrs. Erbe filed a motion for summary judgment with accompanying affidavits and certified copies of the California decree. This motion was denied. After denial of the motion Mr. Eady filed a motion in opposition to the request for summary judgment. Mrs. Erbe then requested the trial court to reconsider her motion for summary judgment. This motion was also denied. Mr. Eady then answered the complaint and filed a counterclaim asking the court to treat the military retirement provision of the California judgment as periodic alimony and find that such payments were terminated by Mrs. Eady’s remarriage on May 31, 1975.

After an ore tenus hearing the trial court rendered a judgment holding that the California judgment was entitled to full faith and credit but that the military retirement benefits received by Mr. Eady were not treated by the California court as community property but as periodic alimony and thus the payments legally ceased upon the remarriage of Mrs. Eady. Mrs. Erbe appeals from that decree.

The dispositive issue here is whether the military retirement benefits provision of the California decree is to be construed as a division of community property or as an award of periodic alimony. If the retirement benefits are community property and are subject to division, the trial court erred in not awarding Mrs. Erbe the amount that was in arrears. If the retirement benefits can be classified as periodic alimony—as the trial court so found—and such payments ceased upon Mrs. Erbe’s remarriage, the trial court correctly held that Mr. Eady was not in arrears in such payments.

Under California law, military retirement benefits must be considered as community property to the extent they are earned during the marriage. In re Marriage of Stenquist, 21 Cal.3d 779, 582 P.2d 96, 148 Cal.Rptr. 9 (1978); In re Marriage of Fithian, 10 Cal.3d 592, 517 P.2d 449, 111 Cal.Rptr. 369 (1974); Cal.Civ.Code § 164 (West). The California court awarded Mrs. Erbe forty-one and one-half percent of Mr. Eady’s monthly military retirement benefits. Mr. Eady served in the Air Force for two hundred sixty-one months and the parties were married for two hundred seventeen months; in other words they were married during eighty-three percent of the time that he served in the Air Force. Thus, eighty-three percent of the retirement benefits were earned during the marriage and one-half of this amount was awarded to Mrs. Erbe.

Appellee says, however, that the trial court construed the California-judgment to mean that the provision for the wife to receive a part of the husband’s military retirement benefits was a part of the periodic alimony award and was not a part of the community property award. The Alabama trial court did so interpret the California judgment.

By considering the form of the California decree to help it decide whether the retirement benefits were community property or spousal support, i.e. that the paragraph relating to retirement benefits was located right after the spousal support paragraph and was not listed in the paragraph specifically providing for the disposition of the other community property, the trial court obviously concluded that the California decree was uncertain and, as such, needed interpretation.

If there is uncertainty in a judgment the court must construe it so as to express the intent of the trial judge, which intent can be derived from the provisions of the judgment. Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978).

Notwithstanding the form of the California decree, the law of California requires military retirement benefits to be awarded as community property where vested, and the benefits were vested in the case at bar. Therefore, the trial court was bound to treat the retirement benefits provision as an award of community property. Furthermore, there is nothing in the California decree to suggest that the retirement benefits provision should be treated other than as an award of community property.

The spousal support provision, which preceded the retirement benefits provision, clearly spelled out how much Mrs. Erbe was to receive each month and for how long she was to receive it. Nothing remained to be said about spousal support.

The succeeding paragraph to the retirement benefits provision spelled out how certain other community property was to be divided, and there was no indication that this paragraph was dealing with all of the parties’ community property to the exclusion of the military retirement benefits.

The award of a portion of Mr. Eady’s military retirement benefits to Mrs. Erbe was a division of a part of the parties’ community property and such award is entitled to enforcement in this state.

After judgment was rendered in the Alabama trial court but before the matter was submitted to this court for decision, the United States Supreme Court, in the case of McCarty v. McCarty, - U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), held that California could not treat military retirement benefits as community property. Mr. Eady says that even if we conclude that the Alabama trial court erred in not treating his retirement benefits as community property, we are now precluded from so holding and thus from enforcing the California decree. We disagree.

A careful reading of the McCarty decision fails to reveal an intent on the part of the court to have its decision enforced retrospectively. Consequently, the effect of McCarty on the present litigation will be decided on the basis of the ruling case law of Alabama.

It has been established that where rights to property have become vested, subsequent decisions of the court overruling former decisions establishing those rights will not be given retroactive effect. Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532 (1890); 10 A.L.R.3d 1371.

In the case at bar Mrs. Erbe’s property rights in Mr. Eady’s military retirement benefits vested when the California court finally awarded those benefits to her in 1975. Hence, the McCarty case would have no effect on that portion of Mr. Eady’s retirement benefits due Mrs. Erbe at the time this ease was heard in the Alabama trial court.

REVERSED AND REMANDED;

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

      . The result of the instant appeal would be the same if decided on the basis of the ruling case law of California. See In re Marriage of Brown, 15 Cal.3d 838, 544 P.2d 561, 126 Cal.Rptr. 633, (1976).


author: SHORES, Justice.

text:
    Ex parte George EADY. (Re Yukiko ERBE v. George L. EADY).
    81-3.
    Supreme Court of Alabama.
    Dec. 18, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    William Larry THOMAS v. Ethel Jeanette THOMAS.
    Civ. 2723.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Rehearing Denied Sept. 30, 1981.

      Desmond B. Toler, Mobile, for appellant.
    Claude D. Boone of McDermott, Deas and Boone, Mobile, for appellee.
   WRIGHT, Presiding Judge.

The Circuit Court of Mobile County found the husband to be in contempt for failure to comply with the provisions of the divorce decree. The husband appeals to this court.

The husband and wife were divorced on March 30, 1980, and the decree ordered the husband to (1) pay $40 a week as child support; (2) make the first and second mortgage payments on the homeplace for twelve months or until the wife was able to return to work; and (3) pay all debts incurred by the parties during the marriage.

Seeking relief from the mortgage payments, the husband filed a motion to modify and clarify the decree on June 24, 1980. The motion was denied. Subsequently, the wife filed a petition for rule nisi averring that the husband was in arrears in child support payments and in arrears to such an extent in the mortgage payments that the wife had been notified of pending foreclosure proceedings and was in jeopardy of losing the homeplace.

By order of November 17, 1980, the court found the husband to be in contempt but suspended a thirty-day sentence to the Mobile County Jail on condition that the husband purge himself of the contempt by obeying all orders of the court.

By affidavit filed December 8, 1980, the husband stated his desire and intention to comply with all orders of the court when he had the financial ability to do so. He averred, however, that he did not have the financial means to comply with the court’s order. The court issued an order for his arrest, but on February 2, 1981, issued an order giving the husband an additional 30 days to comply with previous orders. On March 4, 1981, the husband filed a motion to stay the order of February 2, 1981, again alleging his inability to pay the amounts ordered. On March 10, 1981, the court again ordered the husband to jail until he purged himself of contempt. On the same day the court stayed the order conditioned on the filing of a $10,500 supersedeas bond on or before March 12,1981. The husband’s failure to do so resulted in the issuance of a writ for his arrest on March 13, 1981.

The issue on appeal is whether the trial court erred in holding the husband in contempt.

Although the appropriate method of review of a contempt order is by way of an extraordinary writ, Fillingim v. Fillingim, 388 So.2d 1010 (Ala.Civ.App.1980), this court will treat the husband’s appeal as a petition for certiorari and consider his arguments accordingly. Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.), cert. denied, 376 So.2d 1099 (Ala.1979); Reeder v. Reeder, 356 So.2d 202 (Ala.Civ.App.1978).

The power to punish for contempt is inherent in all courts of record at common law including courts of equity. Ex parte Stephenson, 34 Ala.App. 1, 40 So.2d 713 (1947), aff’d, 252 Ala. 316, 40 So.2d 716 (1949); Ex parte Dickens, 162 Ala. 272, 50 So. 218 (1909). This power cannot be taken away or abridged as it is essential to the due administration of justice. Robertson v. State, 20 Ala.App. 514, 104 So. 561 (1924). In Ex parte Stephenson, supra, the court held such power exists additionally by virtue of statute.

Attachment for contempt has been a common method of enforcing orders or decrees for alimony and when the husband has the means to comply but willfully and contemptuously refuses to do so, no good reason exists why he may not be compelled to do so by attachment. Ryan v. Ryan, 267 Ala. 677, 104 So.2d 700 (1958); Webb v. Webb, 140 Ala. 262, 37 So. 96 (1904); Gwin v. Gwin, 55 Ala.App. 601, 318 So.2d 299 (1975). It has been held that the duty of the husband to provide maintenance for his wife is much more binding than a mere contractual obligation and the duty is not only to her, but also to the public lest she become a charge upon it. Murray v. Murray, 84 Ala. 363, 4 So. 239 (1888). The object of the contempt proceeding, however, is not to punish the husband but to coerce him to pay the alimony as decreed by the court. It is founded on the unwillingness of the party to obey and there must be something wrong beyond the mere failure to pay. Robertson v. State, supra.

Counsel for both parties place some emphasis on Section 20 of the Alabama Constitution which provides that “no person shall be imprisoned for debt.” This section means only that judgments for money are not enforceable by contempt proceedings. Smith v. Smith, 380 So.2d 897 (Ala.Civ.App.1980). That alimony is not a debt within the meaning of Section 20 is well settled. Smith v. Smith, supra; Ex parte Stephenson, supra; Murray v. Murray, supra. It is the element of sustenance and support which excludes alimony from the meaning of the word “debt.” Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968); Ex parte Parker, 334 So.2d 911 (Ala.Civ.App.1976). This principle, however, answers only the threshold question whether contempt is an available tool to coerce payment of alimony.

In the case before us, if the husband’s duty to make the mortgage payments is construed as a debt, then imprisonment for contempt cannot be used to coerce payment. If this duty is characterized as alimony, then the court is permitted in the first instance to consider the use of its contempt power to coerce payment. Because of the contingent nature of the payments, we hold them to be in the nature of alimony. McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978). Such a finding merely makes Section 20 of the constitution inapplicable.

The inherent power of courts to enforce decrees through contempt proceedings is essential to the due administration of justice. It ought never be resorted to, however, except when founded on the unwillingness of the party to obey, since it is only the contempt, the disobedience, upon which the power rests. Robertson v. State, supra. If at the contempt hearing it is shown that the failure to pay the decreed alimony installments is not from mere contumacy, but from want of means, then there is no contempt. Ex parte Stephenson, supra; Webb v. Webb, supra. It is the law of this state as enunciated by our courts, that lack of ability to pay alimony or support is a complete defense to a contempt proceeding for failure to pay. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980); Pritchett v. State, 379 So.2d 616 (Ala.Civ.App.1980); Parmer v. Parmer, 373 So.2d 846 (Ala.Civ.App.1979).

The scope of review in contempt cases is limited to questions of law and does not extend to the weight and sufficiency of the evidence but only to the question whether any evidence supports the trial court’s decree. Wilson v. Freeman, supra; Brady v. Brady, 358 So.2d 744 (Ala.Civ.App.), cert. denied, 358 So.2d 748 (Ala.1978); Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970). When the accused, however, puts forth evidence of his inability to pay, the burden of proof is on the complainant to prove he can pay beyond a reasonable doubt. Sewell v. Butler, 375 So.2d 800 (Ala.Civ.App.1979); Ex parte Gunnels, 25 Ala.App. 577, 151 So. 605 (1933).

In the case before us, the husband has offered proof of his inability to pay and thus it was incumbent upon the wife to prove that he did possess the means to comply with the court’s order. This she failed to do. Consistent with our limited scope of review, we find no evidence to support the trial court’s order of contempt, as there is nothing in the record to prove that the husband’s failure to pay was founded upon anything other than his financial inability to do so.

We therefore find the trial court’s judgment holding the husband to be in contempt is in error and due to be reversed.

The wife’s request that she be awarded an attorney’s fee on appeal is denied.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . The court held that contempt proceedings for delinquency in payment of alimony are to be processed under Tit. 7, § 328, Code (1940) providing for enforcement of decrees by attachment. This section has been effectively superseded by Rule 70, A. R. C. P.


text:
    Ex parte Ethel Jeanette THOMAS. William Larry THOMAS v. Ethel Jeanette THOMAS.
    81-30.
    Supreme Court of Alabama.
    Nov. 20, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge.

text:
    Gwendolyn Allen PENNINGTON v. Joey L. YARBROUGH and Sidney Yarbrough.
    Civ. 2757.
    Court of Civil Appeals of Alabama.
    Oct. 14, 1981.

      William J. Underwood and James L. Hunt, Tuscumbia, for appellant.
    J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for appel-lees.
   HOLMES, Judge.

This appeal arose from an automobile collision. The action was tried before a jury in the Circuit Court of Franklin County. The jury returned a verdict in plaintiff’s favor in the amount of $250. The plaintiff appeals from the resulting judgment and we affirm.

On September 7, 1979, the automobile in which the plaintiff, Gwendolyn Allen Pennington, was a passenger was struck in the rear by an automobile driven by the defendant, Joey Yarbrough. As a result of this collision, the plaintiff brought this action. The plaintiff alleged that as a proximate result of the defendant’s negligence, she was caused to suffer great pain and agony, to incur medical expenses and to incur expenses for automobile repair. She asked the jury to award her $50,000 as compensation for such injuries and expenses.

The action was tried before a jury which returned in the plaintiff’s favor but awarded her only $250. The plaintiff subsequently made a motion for a new trial which was denied. She then appealed to this court.

The plaintiff, through able counsel, presents to this court three issues. Initially, the plaintiff contends the trial court committed error in empaneling the jury. The record reveals that the plaintiff discovered, during voir dire, that juror twenty-four was acquainted with the defendant and his parents. The plaintiff’s attorney, in his brief and by personal affidavit, contends that, at the conclusion of voir dire, the trial judge informed both attorneys that juror twenty-four would be dismissed due to illness. The trial judge then conferred with the juror and apparently ascertained that she was not ill because she was allowed to remain on the venire. The jury was then struck and juror twenty-four became a part of it. When the plaintiff’s attorney realized that he had mistakenly assumed that juror twenty-four had been dismissed, he contends in his affidavit that he then objected to the presence of juror twenty-four and asked that a new jury be struck. The trial court refused. ■

Unfortunately, neither the trial judge’s statement to the attorneys regarding dismissal of juror twenty-four, nor his conversation with the juror, nor the plaintiff’s objection to the empaneling of juror twenty-four was preserved in the record. Appellate courts are bound by the record. When, as here, the record does not disclose the facts upon which error is predicated, such grounds for error cannot be considered on appeal, Zills v. Brown, 382 So.2d 528 (Ala.1980); Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979); Gilmore v. Lee, 282 Ala. 182, 210 So.2d 415 (1968).

Though not necessary to the decision, this court is of the opinion that, even had the above proceedings occurred and been properly included in the record, no error was committed in empaneling the jury. The plaintiff, on voir dire, established only that the juror was acquainted with the defendant and his parents. Previous decisions from our supreme court have indicated that acquaintanceship with a party alone was not sufficient to disqualify a jur- or. Engineers of the South, Inc. v. Goodwin, 366 So.2d 673 (Ala.1978); Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961). The test to be applied is whether the juror, due to the acquaintanceship, would be prejudiced to such an extent that he could not carry out his duty in a fair and impartial manner. Grandquest, supra; Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942). In the case before us the plaintiff’s attorney failed to elicit any response from juror twenty-four that would indicate that the juror’s acquaintanceship with a party would render her incapable of reaching a fair and impartial verdict.

The plaintiff next contends that the trial court’s jury instructions regarding the payment of Medicaid benefits were in error. This contention is without merit for two reasons. First, before a party may allege as error the improper giving of an instruction by a trial judge, the party must object to the giving of the instruction, and state his grounds for the objection. Rule 51, A.R.C.P.; Windsor v. General Motors Acceptance Corp., 295 Ala. 80, 323 So.2d 350 (1975). The plaintiff’s attorney made no objection to the instructions in question; therefore, he cannot now allege that the giving of the instruction was error.

Secondly, the record reveals that the attorneys agreed that the trial court would charge the jury that, if they found the defendant liable, they should exclude from the award any expenses covered by Medicaid. Agreements made in open court are binding. Rule 47, A.R.A.P.; Jones v. Gladney, 339 So.2d 1019 (Ala.1976). Thus, the plaintiff cannot now complain about jury instructions submitted by the trial court pursuant to the above agreement reached in open court.

The plaintiff also contends that the trial court erred in failing to instruct the jury to disregard the answer of a witness concerning Medicaid benefits after the plaintiff had objected and the trial court had sustained the objection. We note, however, that the plaintiff did not request the trial court to make such an instruction. Such a request and a ruling by the trial court are necessary to place the trial court in error. See State Farm Mutual Automobile Insurance Co. v. Barrow, 46 Ala.App. 392, 243 So.2d 376 (1971).

Finally, the plaintiff contends that the verdict was so grossly inadequate as to shock the conscience of the court. Initially, we note that a jury verdict should not be disturbed unless it is so grossly inadequate as to indicate passion, prejudice, corruption or mistake. City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980). The verdict of the jury is vested with a strong presumption of correctness. Watts v. Pettway, 49 Ala.App. 324, 272 So.2d 251 (1972). This is especially true in the area of assessment of damages for personal injury, including pain and suffering. Mack v. Garrison, 51 Ala.App. 453, 286 So.2d 857 (1973). In such cases the determination of the jury should be pet aside only where, after consideration of all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust, and the jury has abused its discretion. Grayson v. Alexander, 347 So.2d 108 (Ala.Civ.App.1977). We find no abuse of discretion in the case before us.

There is a great deal of conflict in the evidence regarding the damages suffered by the plaintiff in this case. For instance, there is conflict as to the amount of damage the plaintiff’s car suffered; there is conflict as to the force of the impact; and there is conflict as to the plaintiff’s physical condition immediately after the accident. Where there is conflicting evidence, the appellate court should not substitute its judgment for that of the jury. Ray E. Loper Lumber Co. v. Windham, 291 Ala. 428, 282 So.2d 256 (1973).

The plaintiff contends specifically that the jury verdict is erroneous because it did not compensate her for special damages, i.e., medical expenses amounting to $676. We would again call attention to the agreement between the attorneys regarding a jury' instruction as to Medicaid payments and the jury instruction that was submitted pursuant to the agreement. Consequently, pursuant to the evidence and the jury instructions, the jury could have concluded that some or all of the plaintiff’s special damages were covered by Medicaid and thus not properly included in the award.

Based upon the facts before this court, we conclude that the verdict in this case was not so inadequate as to shock the conscience of the court.

This case is due to be affirmed.

AFFIRMED.

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

      . The plaintiff owned the car that was struck from the rear.


text:
    Julius N. NORRIS, Jr. v. Jean D. NORRIS.
    Civ. 2820.
    Court of Civil Appeals of Alabama.
    Oct. 14, 1981.

      C. Knox McLaney, Montgomery, for appellant.
    James W. Garrett, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced by judgment of May 10, 1977. The court reserved control and disposition of property jointly owned by the parties. In response to a petition to modify accompanied by an agreement of the parties, the court, on April 14, 1978, modified the original judgment by incorporating the agreement. A part of that agreement was that the defendant-husband would immediately make minor repairs to the property and place it on the market for sale, the net proceeds from the sale to be equally divided between the parties.

On October 20, 1980, the petition of the wife to enforce the agreed judgment of April 14, 1978, determine unpaid alimony and child support and hold defendant in contempt was heard by the court. Judgment was entered finding defendant in contempt, determining arrearages in alimony and support, reiterating the sale of the property and directing the manner and conditions thereof and distribution of the funds therefrom.

On January 21, 1981, defendant, having failed to perform as ordered by the judgments of April, 1978, and October, 1980, filed a petition requesting the court to order plaintiff to accept from defendant an appraised value of her interest in the property and convey it to him. Plaintiff filed answer and cross-petition, stating that defendant remained in contempt for failure to comply with previous orders of the court and had again failed to comply with the order of October 20, 1980, and had failed to pay support due since that time. Plaintiff sought a further finding of coritempt and dismissal of defendant’s petition.

The court heard the matter orally and entered an order dismissing defendant’s petition. Defendant appeals, presenting as the only issue, “whether the October 20, 1980, ruling of the court constituted a final decree.”

We have some difficulty in understanding from the record how the stated issue on appeal is relevant. We divine from the brief argument of defendant in brief that his point is that the dismissal of his petition was because the trial court concluded that its decree of October 20, 1980, as to disposal of the joint property, was final and not subject to modification. If such is defendant’s conclusion, he may be correct; however, there is little if anything in the record to support it. We have read the testimony heard by the court upon the petition. There is indicated that plaintiff’s counsel filed a memorandum brief in support of her request for dismissal and sought a ruling thereon prior to the taking of testimony. The memorandum is not before us. The court refused to rule at that point and proceeded with testimony.

The testimony indicated that defendant had not complied with the previous orders and now wished to purchase plaintiff’s interest with money recently inherited. At the conclusion of testimony, the judge commented that the parties had been given ample opportunity to dispose of the home and had made no headway. He stated uncertainty as to what his order would be as a result of the hearing, but he anticipated it would call for severe action. His ruling was one of dismissal of defendant’s petition.

In view of the testimony, the aver-ments of plaintiff’s motion to dismiss, the record of defendant’s previous defalcations and contemptuous conduct, and the absence of indication of any other reason, we conclude that the dismissal likely came from a finding of lack of standing or unclean hands. Adams v. Adams, 368 So.2d 552 (Ala.Civ.App.1979); Daniel v. Haggins, 286 Ala. 409, 240 So.2d 660 (1970).

However, the order of dismissal of the petition could have been upon the merits after hearing ore tenus. In any case, we consider the trial court was not in error in its order and we affirm.

We perceive no purpose in writing to the issue presented by defendant in the absence of indication in the record that it was raised in the court below. We do comment that the judgment of April 14, 1978, was a final determination of the interest of the parties in the property and not modifiable. It was therefore a final judgment under Rule 54(a), A.R.C.P. The portions of that judgment as to the sale of the property and method of procedure were also final and would have supported an appeal. However, these were only directory as means of enforcement and were subject to modification upon change of circumstances at the discretion of the court. In equity cases there can be more than one final judgment from which an appeal may be taken. Chadwick v. Town of Hammondville, 270 Ala. 618, 120 So.2d 899 (1960). However, there may remain thereafter other matters in which the equities have not been settled or proceedings necessary to enforce the judgment previously entered. A court has inherent power to issue such orders or process as necessary to render its judgment effective. Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1978).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charles SANDERS and Patsy Sanders v. The DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 2821.
    Court of Civil Appeals of Alabama.
    Oct. 14, 1981.
    Charles C. Carter of Araguel, Sanders & Carter, Columbus, Ga., for appellants.
    Charles A. Graddick, Atty. Gen. and Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

The Department of Pensions and Security refused to give its consent to an adoption sought by Mr. and Mrs. Sanders. An ore tenus hearing was held regarding this refusal.

The Probate Court of Russell County found the Department of Pensions and Security had not acted arbitrarily or unreasonably in withholding its consent. The Sanderses appeal and this court affirms.

At the outset we note that it is not necessary or prudent to set out in any detail the facts surrounding the instant appeal. The following will suffice.

The child whose adoption was sought is in the permanent custody of the Department of Pensions and Security. The parental rights of the child’s parents had been previously terminated. Mrs. Sanders, the appellant, is the maternal grandmother of the child.

Both parties to this appeal concede that, pertinently, prior to the adoption of the child the Department of Pensions and Security’s consent thereto is required. § 26-10-3, Code of Ala. 1975.

As indicated, the Department refused to give consent. Therefore, the question under appropriate Alabama law becomes whether the withholding of consent by the Department was unreasonable or arbitrary.

The following is dispositive of this appeal:

In State Department of Pensions and Security v. Whitney, 359 So.2d 810, 812 (Ala.Civ.App.1978), this court quoted Matter of Roberts, 349 So.2d 1170 (Ala.Civ.App.1977), as follows:

“Whether the consent of the D.P.S. is being withheld unreasonably or arbitrarily is a question of fact. The burden of proof is on the party asserting that the consent of D.P.S. is being withheld arbitrarily or unreasonably. And, the probate court must decide, after a hearing, whether D.P.S. is, in fact, arbitrarily withholding its consent to the adoption. See Straszewicz v. Gallman, Ala.Civ.App., 342 So.2d 1322 (1977).
“Summarizing, the consent required of the D.P.S. is jurisdictional, so that on its refusal to grant such consent, the court is without power to issue an adoption order unless the agency’s action is found to be arbitrary and unreasonable. . . . ”

In Whitney, supra, this court further said:

A finding by a probate court based on the examination of witnesses ore tenus is presumed to be correct and will not be disturbed on appeal unless such finding is plainly or palpably erroneous. However, the burden of proving that DPS arbitrarily and unreasonably refused to consent to an adoption is on the party who is so contending. After a careful review of the facts in the instant case we conclude that the Whitneys failed to sustain the burden of proving that DPS arbitrarily and unreasonably refused to consent to the adoption by them of Tony Roberts

Suffice it to say there is more than ample evidence to support the probate court’s conclusion that the Department of Pensions and Security did not arbitrarily and unreasonably refuse to consent to the adoption of the child by the Sanderses.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Gregory Q. THORSEN v. Barbara THORSEN.
    Civ. 2855.
    Court of Civil Appeals of Alabama.
    Oct. 14, 1981.

      W. Donald Bolton, Jr., of Foster, Brackin & Bolton, Foley, for appellant.
    Taylor D. Wilkins, Jr., of Wilkins, Bank-ester & Biles, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

This case involves an amendment of a final judgment of divorce under Rule 60(a), A.R.C.P. The issue is whether such amendment may be made nunc pro tunc by the court upon motion by a party without notice to the other party more than two years after judgment.

The record discloses the following: The parties were divorced on July 5, 1978. The judgment recites that the court had “heard the contents of the petition, agreement of parties and answer and waiver of defendant and testimony.. . . ” There were no provisions as to custody of three minor children, their support, alimony, property division, etc., recited in the judgment. All of such provisions were set out in an agreement filed in the case on June 29, 1978. That agreement was signed and acknowledged before a notary public by each party. The judgment failed to recite the incorporation of the agreement.

However, defendant-appellant, on January 16, 1979, filed a petition to modify the decree of July 5, 1978. He alleged that such decree had incorporated therein terms of the agreement of the parties. Defendant then sought modification of certain terms of the agreement relating to periodic alimony, child support, property division and cash settlement. He further sought construction of certain alleged ambiguous provisions. He further indicated that the agreement had been substantially executed by the parties.

Plaintiff answered defendant’s petition to modify with admission that the agreement was a part of the original decree and cross-petitioned for relief and modification thereof.

Defendant filed an amended petition to modify on May 1, 1979. Plaintiff filed a petition for contempt for failure of defendant to comply with the terms of the divorce decree (agreement).

On August 9, 1979, all of the petitions were heard by the court and judgment entered thereon denying defendant’s petition to modify, and granting those of plaintiff. Defendant was found to be delinquent in alimony, child support and other matters. He was directed to perform other and different obligations in relation to the children and was ordered to pay an attorney fee to plaintiff. There appears no appeal from that decree.

There is no further entry in the record of the case until February 11, 1981, when plaintiff filed her motion to amend the original divorce decree to incorporate therein the agreement of the parties. The court complied with the motion on February 18, 1981, apparently without notice to defendant. Defendant moved to vacate the amended decree on April 23, 1981. That motion was denied after hearing on May 6, 1981. Defendant appealed.

It is not evident to this court why, after de facto recognition for two and one-half years by the parties and the court that the agreement was a part of the judgment of divorce, it was deemed necessary to make that recognition de jure. For whatever reason it was done, necessary or not, we affirm the action of the trial court. Rule 60(a), A.R.C.P. permits errors arising in judgments from oversight or omission to be “corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979); Perry v. Perry, 54 Ala.App. 296, 307 So.2d 540 (1975).

In any event, we consider that defendant has previously recognized the agreement as a part of the judgment by his own pleadings and acceptance of its construction and enforcement by the court. He is thus estopped from contending to the contrary. Allegans contraria non est au-diendus — one who contradicts himself is not to be heard.

Appellee’s motion for attorney’s fee on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    William K. NICROSI; Harold B. Nicrosi; and William V. Lyerly, etc., et al. v. CITY OF MONTGOMERY, Alabama.
    Civ. 2762.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.
    Albert W. Copeland of Copeland, Franco, Screws & Gill, Montgomery, for appellants.
    J. Bernard Brannan, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

Pursuant to a resolution passed by the City Council of the City of Montgomery, condemnation proceedings were begun in the Probate Court for Montgomery County, Alabama, by the City of Montgomery against the property of William K. and Harold Nicrosi. The purpose of the proceeding was to secure an easement over .388 acres, more or less, for the construction of a concrete-lined drainage channel to help provide adequate surface water drainage in the southeast section of Montgomery known as the Camp Creek Tributary drainage basin. An award was made to the Nicrosis of $5,050 in probate court. The Nicrosis appealed to circuit court. The court granted the right to condemn and a jury trial on the issue of damages resulted in an award of $ 5,870. From judgment entered on the verdict the Nicrosis appealed to this court.

The first issue presented is whether the trial court erred in granting the City of Montgomery the right to condemn the property in question.

The Nicrosis contend that the primary purpose of the condemnation is for the benefit of private real estate developers and the incidental benefit to be received by the public is not sufficient to permit the use of eminent domain by the municipality. The essential facts are not disputed. Through testimony of experts the record reveals it is generally conceded that the only feasible direction for growth in Montgomery is eastward because of flood plains which bound the city on three sides. As development began in the area north of the Nicrosi property, the flow of surface water increased. Existing drainage is not sufficient to handle the additional development, and the most efficient placement of an improved drainage facility would encompass a portion of the Nicrosi property. It is undisputed that the private developers have agreed to reimburse the City for all costs associated with the condemnation. Although the Nicrosis argue that new drainage is sought merely to permit future development, there is evidence in the record to support a finding by the trial court that such measures are needed to alleviate an existing problem.

Private property may not be condemned unless it is subjected to a recognized public use, affording benefits which are not vague, indefinite or restrictive. Gralapp v. Mississippi Power Company, 280 Ala. 368, 194 So.2d 527 (1967); Harvey v. Warren, 212 Ala. 415, 102 So. 899 (1925). “Public use,” however, as used in the law of eminent domain, should be given an elastic or liberal meaning. Brammer v. Housing Authority of Birmingham District, 239 Ala. 280, 195 So. 256 (1940). Furthermore, where a legislature has declared a use or purpose to be a public one, its judgment should be respected by the courts. Alabama Power Company v. Gulf Power Company, 283 F. 606 (M.D.Ala.1922). The legislature of this state has made explicit provision for the authority of municipalities to construct and maintain sewers and drains. Section 11-50-50, Code (1975) provides:

All cities and towns may make all needful provisions for the drainage of such city or town, may construct . . . surface drains, aqueducts and canals and may build and construct underground sewers through private or public property...”

Section 11-50-51 provides:

Cities and towns may acquire, whenever necessary, the requisite rights and easements by condemnation in the manner prescribed by the Constitution and laws of Alabama for the condemnation of lands for public use.

Therefore, cities have express authority to make all needful drainage improvements. City of Birmingham v. City of Fairfield, 375 So.2d 438 (Ala.1979); Hendrix v. Creel, 292 Ala. 541, 297 So.2d 364 (1974); Fricke v. City of Guntersville, 251 Ala. 63, 36 So.2d 321 (1948).

The Nicrosis assert that, although not conclusive, the agreement whereby private developers are to reimburse the City for all costs of condemnation is strong evidence that the primary purpose is to benefit those paying for it. That the expenses incident to condemnation and the award itself are to be paid by private parties is immaterial when the property thus being acquired by the City is to be used for a public benefit, and such an arrangement is not inconsistent with the Constitution or laws of Alabama. See Alabama Power Company v. Gulf Power Company, supra.

On appeal, the right to condemn is to be determined by the court. Gamble v. State, 289 Ala. 131, 266 So.2d 286 (1972); Southern Electric Generating Company v. Leibacher, 269 Ala. 9, 110 So.2d 308 (1959). Furthermore, in condemnation cases, the conclusion of the trier of fact is entitled to great weight. State v. Central of Georgia R.R., 293 Ala. 675, 309 So.2d 452 (1975). We cannot say that the trial court abused its discretion in allowing condemnation of the Nicrosi property.

The second issue presented is whether the trial court erred in granting the City’s motion in limine to exclude evidence of the reimbursement agreement in proceedings before a jury on the issue of compensation.

In Southern Electric Generating Company v. Leibacher, supra, the court held that evidence of the company’s size, ownership, financial worth and money set aside for obtaining the property was entirely irrelevant to the amount of just compensation. The court also found it highly prejudicial for members of the jury to be informed that someone other than the condemning party would have to pay the verdict.

The granting of the motion in limine by the trial court was not improper.

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    George GARRISON, Jr. v. Julie Garrison KESEK.
    Civ. 2791.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      Walter E. Duffey, Huntsville, for appellant.
    James D. Walker, Albertville, for appel-lee.
   HOLMES, Judge.

This is a child custody modification case.

The parties were divorced in California in 1977. Custody of the parties’ eight year old minor child was awarded to the mother.

After the divorce, the father moved to Albertville, Alabama, where he lives with his seventy year old mother.

The mother remarried and, at the time of trial, lived with her new husband in Columbus, Mississippi.

This is the third time the father has requested a modification of custody. After the father’s second petition for modification in January, 1980, the Circuit Court of Marshall County ordered that the principal care, custody, and control of the child should remain in the mother. The court also ordered that the father was to have visitation during Christmas, on alternate weekends, and for one month during the summer.

The father again petitioned for modification of custody in December, 1980. After a hearing at which both parties presented witnesses, the trial court issued a new order which is the subject of this appeal.

The trial court reaffirmed its prior order allowing custody of the child to remain in the mother. The order made new provisions for visitation should the mother happen to move a great distance away from Albertville.

The father appeals contending the trial court abused its discretion in failing to award him custody of the child.

We find no abuse of discretion and affirm.

Viewed with the attendant presumptions, the record reveals that the parties’ eight year old daughter lives with her mother and stepfather. The child frequently visits her father and, at trial, expressed a preference to live with him permanently. The mother testified that her new husband, an Air Force sergeant, had been transferred to Alaska. The mother intended to move to Alaska with the child.

After the ore terms hearing, the trial court ordered that the support, care, custody and control of the child should remain in the mother. The father was given the right to have the child visit with him for ten weeks during the summer after the mother moved to Alaska.

We note at the outset that custody and visitation rights are matters addressed to the discretion of the trial court. Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979). The trial court’s decision after an ore ten us hearing will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Hallford v. Hallford, 390 So.2d 295 (Ala.Civ.App.1980). The prevailing consideration for the court in child custody cases is the welfare and best interest of the child. Lowery v. Lowery, 391 So.2d 120 (Ala.Civ.App.1980).

The parties’ eight year old daughter testified that she wanted to live with her father. The father argues the weight of the child’s testimony should have tipped the scales in favor of giving custody to the father.

We find the trial court did not abuse its discretion by ordering that custody remain in the mother notwithstanding the child’s preference to live with the father. The trial court is not bound by the child’s expressed preference. Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.), cert. denied, 370 So.2d 1019 (Ala.1979). While the wishes of a child of sufficient judgment may be considered in awarding custody, they are not a controlling factor. Snellings v. Snellings, 272 Ala. 254, 130 So.2d 363 (1961).

We note that the father apparently argues the trial court erroneously applied the tender years doctrine contra to the recent decision of Devine v. Devine, 398 So.2d 686 (Ala.1981). In view of the above, we find no basis for such a contention.

Put another way, the evidence reveals the child is well adjusted, excels in school, and enjoys a good homelife with her mother. The mother cares for her daughter and wants to retain custody of the child. The child has lived with the mother for the past eighteen months. With these facts in mind, this court certainly cannot say the trial court erred to reversal in refusing to change the primary custody to the father.

The mother has requested a fee for representation on appeal. A fee of $500 is hereby awarded.

This case is due to be affirmed.

AFFIRMED.

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


text:
    James Russell BROTHERS v. Patricia Ann Brothers VICKERS.
    Civ. 2824.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      John F. Porter, III of Livingston, Porter & Paulk, Scottsboro, for appellant.
    John F. Proctor of Thomas & Proctor, Scottsboro, for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced by order of the Circuit Court of Jackson County on November 2, 1979. The final decree incorporated an agreement of the parties which provided for division of property, custody of the three minor children, and child support. Neither party appealed.

On September 26, 1980, the wife petitioned for a modification of the decree and the husband counterclaimed for certain modifications which he sought. The trial court, after an ore tenus hearing, denied the husband’s requests. He brought this appeal alleging as follows: (1) The trial court erred in failing to award child support to the husband, who had custody of the parties’ minor son; (2) The trial court abused its discretion in failing to require the wife to furnish the husband with the residence telephone number of the parties’ two minor daughters who resided with the wife; and (3) The trial court erred in holding that property sought to be recovered by the husband was not subject to the terms of the separation agreement since it had already passed to the possession of the wife. We find no error or abuse of discretion and affirm.

The record viewed with the attendant presumption reveals the following facts:

The parties were married approximately twenty-two and one-half years and of four children born of the union, three were still minors at the time of the divorce. The wife filed for a divorce on the grounds of incompatibility. Pending the hearing on the original proceeding, the husband moved out of the parties’ residence. In August 1979 the wife moved out of the residence and took with her certain personal and household items now the subject of dispute. The parties signed a separation agreement in October 1979, which was later incorporated into the final decree of divorce. The agreement provided, among other things, that the husband would have custody of the parties’ son and pay $300 per month as child support to the wife who would have custody of the parties’ two minor daughters. The husband was to have sole title to the farm and house which had been the residence of the parties, on condition that he pay the wife $12,000 for her interest with $3,000 upon execution of the agreement and $1,000 quarterly until the balance was paid. The wife was to receive certain enumerated items from the homeplace, leaving the remainder of its contents for the husband. The final decree of divorce was issued on November 2, 1979.

In September 1980, the wife, alleging a material change in circumstances, petitioned for a modification of the decree. She asked the court to require the husband’s child support payments be paid into court and to require him to pay the entire balance due on her $12,000 interest in the homeplace. In addition, she wanted the husband to stop harassing her and the daughters. The husband counterclaimed requesting that the wife be made to pay child support to him for the benefit of the son in his custody. He also wanted the wife to furnish him with the daughters’ telephone number as the wife had changed to an unlisted number. In defense of the wife’s claim for past-due payments involving the homeplace, the husband alleged his willingness to comply as soon as the wife returned the items taken from the home prior to the signing of the agreement. The court’s denial of the husband’s requests on his counterclaim and his motion for a new trial precipitated this appeal.

The first issue presented is whether the trial court erred in failing to award child support to the husband for the benefit of the son in his custody. The husband contends in his brief that the equal protection clause of the fourteenth amendment dictates that when a mother and father have substantially equal financial positions, they should be required to contribute on an equal basis for the support of minor children in the other parent’s custody. He relies, by analogy, on the opinions in Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.), cert. denied, 374 So.2d 898 (Ala.1979), in regard to alimony, and Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.), cert. denied, 376 So.2d 1101 (Ala.1979), concerning child custody.

If the husband is in some way alleging the unconstitutionality of the child support provisions in the original decree, he raises the issue too late. The agreement and provisions he now challenges as contrary to law were merged into and became a part of the judgment of divorce on November 2, 1979. Marino v. Marino, 381 So.2d 89 (Ala.Civ.App.1980). The husband is legally barred, therefore, from challenging the validity of the decree and the provisions of the agreement incorporated therein, by his failure to timely appeal. John ston v. Johnston, 374 So.2d 357 (Ala.Civ.App.1979). Furthermore, the agreement complained of was not only signed by both parties, but incorporated into the decree at their request. The husband is now es-topped from challenging its validity. McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965); Johnston, supra.

If it is the husband’s contention that the trial court acted unconstitutionally in failing to award child support to him on the basis of a material change in circumstances, then the applicability of his equal protection argument need not be reached. Before the trial court considers how and by what standards a modification of child support will be determined, it must first find that a material change in circumstances exists.

In requesting a modification of the decree for child support, the husband has the burden of proving that there has been a material change in circumstances. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981). The former decree is conclusive of the interests of the child and the parents’ rights so long as there has been no material change from their status at the time of the decree. Ex parte Boley, 392 So.2d 840 (Ala.1981). Modification of a prior decree for child support is a matter within the discretion of the trial court. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). A decree rendered upon an ore tenus hearing is presumed to be correct and will not be set aside unless it is unsupported by any credible evidence and is plainly and palpably wrong. Moore v. Moore, 396 So.2d 1074 (Ala.Civ.App.1981); Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980).

The record before us reveals that both parties have remarried and although the wife’s income has increased modestly due to some property left to her on the death of her mother, the husband offered no proof that his income had decreased to any material degree since the time of the original decree. The parties’ son, in the custody of the husband, has apparently encountered no greater financial needs than those incident to increased school activities as he has gotten older. Furthermore, since the time of the decree, the husband’s child support obligation has decreased by one half as the older of the two daughters in the wife’s custody has reached her majority. On these facts the trial court could have found that there was not a material change in circumstances. We therefore find no abuse of discretion in the refusal to modify the child support provisions of the original decree.

The second issue presented is whether the trial court abused its discretion in failing to require the wife to furnish the husband with her residence telephone number. The husband asserts that the wife’s unlisted telephone number amounts to a violation of his rights of visitation and communication with his children.

In reviewing an order of a trial court in a case heard ore tenus, we will not substitute our judgment for that of the trial court. We will reverse only where the evidence shows the order to have been plainly and palpably wrong and unjust. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). The trial court has broad discretion in its judgment concerning visitation rights for the non-custodial parent. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980). Furthermore, when exercising that discretion the trial court’s primary consideration must be the best interest and welfare of the child. Allen, supra; Green v. Green, 47 Ala.App. 171, 252 So.2d 97 (1971).

The wife testified for the record that on numerous occasions she returned home from work to find her daughters crying and upset because of telephone conversations with their father. She further testified that the husband encouraged the daughters to call him when their mother was absent. Although the husband urges that the wife should not be allowed to refuse him her unlisted telephone number without a showing that his calls resulted in substantial harm to the daughters, the record before us is replete with illustrations of the parties’ ill feelings toward each other. The attempt by both parties to solicit the aid of the children in their squabbles is equally apparent. The husband admits that the wife did furnish him with an emergency number by which he could get in touch with his daughters.

In determining the visitation rights of a divorced parent, each case must be decided on the particular facts and personalities involved. The trial court’s opportunity for personal observation of the litigants and witnesses accounts for the presumption of correctness which we accord its decrees. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967). We are unable to say, therefore, that the trial court abused its discretion in failing to require the wife to divulge the unlisted telephone number.

The third issue presented is whether the trial court erred in not requiring the wife to return property which she took from the residence prior to the signing of the separation agreement.

The division of marital property is left to the sound discretion of the trial court. Makar v. Makar, 398 So.2d 717 (Ala.Civ.App.1981). The court may adopt or reject such parts of a separation agreement of the parties as it may deem proper. Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980); Baumler v. Baumler, 368 So.2d 864 (Ala.Civ.App.1979). In adopting it, the court’s construction of the agreement is to be given great weight. See Marino, supra; Johnston, supra. In the case before us, the husband, in effect, requested the trial court to construe the agreement so as to include in the husband’s share those items taken by the wife prior to the agreement.

The record reveals that the wife testified to a verbal agreement between the parties in regard to the property in question. There was further evidence from which the trial court could have determined that at the time of the agreement, the husband knew, or should have known, the contents of the residence and the absence of the items here in issue. In either event we cannot say that the trial court, which heard the testimony and viewed the witnesses, erred in its construction of the decree and agreement incorporated therein.

The wife’s request for attorney’s fee on appeal is granted in the amount of $500.

Finding no error or abuse of discretion, this cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.