text:
    Ella D. SCHAEFERS v. Daniel E. KINNEY and Cecilia Schaefers Kinney.
    80-522.
    Supreme Court of Alabama.
    Dec. 18, 1981.
    James F. Berry, Cullman, for appellant.
    Thomas A. Smith, Jr., Cullman, for appel-lees.
   BEATTY, Justice.

Plaintiff appeals from an adverse judgment by the Circuit Court of Cullman County establishing the true and correct boundary line between coterminous landowners. We affirm.

The action was initiated by the plaintiff’s complaint which asked the court to decree a judicial landline at points surveyed between the properties. To this the defendants answered by alleging that there were no surveyor’s markers dividing the land except those placed there by W. H. Owens who surveyed the property at the request of the defendants. Following an evidentiary hearing and a view of the designated area by the trial court, that court entered the following order:

“The history of the ownership of the land involved is traced back to two brothers, William Schaefers and Joseph Schae-fers. William owned land contiguous to but east and Joseph owned land touching but west of William. Over the years properties were given by both of the older men to their children and at this time neither William nor Joseph are with us.
“Ella D. Schaefers, the plaintiff here, is the wife of Willie Schaefers, the son of William Schaefers. The defendant, Cecilia S. Kinney is the daughter and one of the children of Joseph Scahefers, and of course the other defendant, Daniel E. Kinney, is the husband.
“The dispute here concerns an area from 9' to 11' that runs north and south between the parties’ property for about 600' and their common line touches an older gravel road that runs east and west.
“On observing the property line with the attorneys, the Court noted that on north and across the road there is a fence line in the appropriate location where the Court will locate the true line between these parties south of the road. The area in dispute is a wooded area and on the west side of it is a driveway to the defendants’ home, and then further south there is a continuing old road that has been utilized in more recent times to get to a power line. The attorneys and the judge walked along the line in question and went south to a common corner marked as plaintiff’s Exhibit 1 which is shown by a rock with an “X” on top, which is the recognized corner between the older Schaefers brothers’ property. The Court also observed the remnants of an old barbed wire fence and telltale markings on at least one tree of an old fence.
“The Court concludes from all the evidence that this is not the classic adverse possession nor prescription case but more of a problem of locating the true line as originally designated in survey notes and actual use. To further complicate the problem here, William Schaefers’ heirs sold the home place and large acreage to Arthur Apel some few years ago, and in surveying and locating Apel’s west line, and more particularly his northwest corner, which would be the general area of the south starting point of the line in question, that Apel corner which is now in place by an electric fence, has added to our problems here.
“Having now considered and reviewed all of the Court’s notes, exhibits introduced including defendants’ Exhibit B by a surveyor, Mr. Owens, the Court will now locate the true line between the parties.
“IT IS THEREFORE ORDERED AND ADJUDGED THAT:
“1. W. H. Owens, Surveyor, is appointed by the Court to locate the permanent line by metal markers properly identified at intervals of 100' on the line described by the Court, and Mr. Owens will file with the Court for the record and the parties his survey notes of the line, and will further file his cost bill with the Clerk.
“2. The Court locates the true line between the parties and describes that line as follows:
“Beginning at the northeast corner of the northeast quarter of the northwest quarter, Section 35, Township 10 South, Range 3 West, thence S-l° -02'E a distance of 595 feet.”

On appeal the defendants maintain that the court’s order is erroneous because it failed to establish the boundary line in accord with the defendants’ evidence of adverse possession. While there is some evidence of such adverse possession, a complete review of the record discloses contrary evidence, and we cannot from our review conclude that the trial court’s decree is plainly or palpably wrong. Indeed, the record supports the trial court’s order. See Campbell v. Carl, Ala., 395 So.2d 480 (1981); Rutland v. Georgia Kraft Co., Ala., 387 So.2d 836 (1980); Hagood v. Hensley, Ala., 371 So.2d 421 (1979).

Let the judgment be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Samuel T. DUMAS, Jr., d/b/a Samuel T. Dumas Construction Company v. SOUTHERN GUARANTY INSURANCE COMPANY.
    80-541.
    Supreme Court of Alabama.
    Dec. 18, 1981.

      Marc E. Bradley of Turner, Onderdonk, Bradley & Kimbrough, Chatom, for appellant.
    Bert S. Nettles and Kenneth 0. Simon of Nettles, Cox & Barker, Mobile, for appel-lees.
   SHORES, Justice.

On April 13, 1972, fire destroyed a warehouse building which Samuel T. Dumas (contractor/insured) was constructing for Dumas Brothers Manufacturing Company, Inc. (owner). Southern Guaranty Insurance Company (insurance company) had issued a contractor’s liability insurance policy providing coverage in the amount of $50,000.00 for Dumas’s operations.

After the fire, the owner brought a negligence action against the contractor in which compensation was sought for the damage done to the warehouse by the fire. The defense of this action was undertaken by the insurance company and ultimately, after trial, resulted in a jury verdict and judgment against Samuel T. Dumas on February 26, 1975, in the amount of $234,-000.00.

That case was appealed to this Court. The judgment in its full amount was affirmed against Dumas by this Court on April 2, 1976. Dumas v. Dumas Brothers Manufacturing Co., Inc., 295 Ala. 370, 330 So.2d 426 (1976).

Thereupon the insurance company paid into the United States District Court for the Southern District of Alabama the sum of $89,324.82 which was to be applied against the judgment and the costs, penalties, and interest relative thereto. However, Dumas is still liable to the owner for the amount of money by which the judgment exceeds coverage under the policy. Dumas’s excess liability under the judgment in the previous negligence action is approximately $184,000.00.

The action resulting in this appeal began in March, 1977, with the filing of a complaint by the owner against Dumas and the insurance company, in which the owner claimed damages from both defendants for: (a) negligent failure to settle the previous action relating to fire damage; and (b) the bad faith refusal of the insurance company to settle the fire damage claim.

On January 18,1979, Dumas filed a cross-claim against the insurance company, which sought damages for the negligent failure or refusal of the insurance company to settle the previous action for the fire damage to the manufacturing company’s warehouse and also damages for the insurance company’s bad faith refusal to settle that claim within the limits of liability coverage afforded by Dumas’s policy with the insurance company.

The insurance company’s answer to Dumas’s cross-claim was filed on August 23, 1979, and set up, as an affirmative defense, that the cross-claim was barred by the applicable tort statute of limitations. Additionally, on the same day, the insurance company moved for summary judgment, with supporting affidavit, on the same ground, i.e., that Dumas’s cross-claim was barred by the applicable tort statute of limitations.

The trial court granted the insurance company’s motion for summary judgment on March 31, 1981, expressly directing the entry of a final judgment in favor of the insurance company on Dumas’s cross-claim for damages. This appeal followed.

What statute of limitations applies to an action alleging the bad faith refusal to pay an insurance claim made by the insured against the insurance company? This is the sole issue presented by this appeal.

We hold that the one-year statute of limitations governing tort actions applies, and the action is barred. Ala. Code 1975, § 6-2-39(5). An action by an insured against its insurer alleging negligence or bad faith in settling a third party claim is a tort claim, not a contract action. Waters v. American Casualty Insurance Co., 261 Ala. 252, 73 So.2d 524 (1954). There, the Court noted that there exists a division among the jurisdictions as to whether the liability of an insurance company to its insured is based upon bad faith or negligence. The Court said:

“We hold that there may be liability under both rules .. . based either on negligence or bad faith.. . .
“This Court has long since taken the position that under certain circumstances, for the breach of a contract there may be either an action of assumpsit or one in tort. That means that when there is a contract expressed to exercise reasonable diligence in the performance of an act, or when there is a specific contract to do an act, á failure to exercise reasonable diligence on the one hand or to do the act on the other gives rise to an action of as-sumpsit. But when the contract is to exercise reasonable care to perform the act, a failure to exercise such reasonable care may be redressed by either assump-sit or in tort. [Citations omitted.] When the contract does not in terms require reasonable care in doing the act stipulated to be done, the law imposes a duty— but does not imply a contract—to exercise due care in doing the act; and, therefore, when negligence exists in doing that act an action in tort only is available because there is no express or implied contract which is breached.” [Emphasis added.]

261 Ala. at 258, 73 So.2d 525.

The Court held that a suit against the insured for failure to settle a claim is a tort claim, whether based upon alleged negligence or bad faith. Thus, the one-year statute of limitations controls.

The insured argues that even if his negligence claim is barred, the bad faith claim should be governed by the six-year statute of limitations applicable to trespass actions because of the intentional nature of the bad faith tort. The bad faith charged here, however, does not carry the required element of directness of injury to qualify it as a trespass. It cannot be said that the jury verdict in excess of the policy limits directly resulted from the company’s failure to settle. Additionally, we have said that the bad faith refusal to pay a claim is merely a species of fraud and, as such, the statutes of limitation applicable to fraud apply.

Finally, the insured argues that his cross-claim should relate back to the date the original complaint was filed, thus rendering it timely within the one-year statute of limitations. This is not the law. A cross-claim permitted under ARCP 13(g) must, like any other pleading, state a claim upon which relief may be granted, and

“[i]n the absence of a statute to the contrary, a demand pleaded by way of a setoff, counterclaim, or cross claim is regarded as an affirmative action in most jurisdictions and therefore, unlike a matter of pure defense, is subject to the operation of the statute of limitations, and is unavailable if barred.”

51 Am.Jur.2d Limitation of Actions, § 78 (1970).

This Court recognized the tort of bad faith refusal to settle a claim against an insurer in a third party context in Waters, supra, in 1954. It recently recognized the same tort absent the third party element. Both are tort actions, and both are governed by the one-year statute of limitations, both in the negligence claim and bad faith claim.

The trial court correctly held that the statute of limitations barred the insured’s claim. Its judgment is, therefore, affirmed.

AFFIRMED.

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


author: SHORES, .Justice.

text:
    SALVAGE ONE DEMOLITION COMPANY, INC., a corporation, v. Sam H. WALLACE, Jr., and United States Fidelity and Guaranty Company, a corporation.
    80-599.
    Supreme Court of Alabama.
    Dec. 18, 1981.
    Carl E. Chamblee, Birmingham, for appellant.
    William M. Acker, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellees.
   SHORES, .Justice.

The sole issue presented by this appeal is whether the trial court correctly dismissed the plaintiff/appellant’s complaint as being barred by res judicata.

We hold that dismissal was appropriate and affirm the judgment.

In 1980, Dr. Sam H. Wallace, Jr., commenced a civil action in Jefferson County seeking injunctive relief to halt the demolition of the Public Health Building in Birmingham. Defendants in that suit were the Board of Trustees of the University of Alabama and Wilborn Construction Company, a partnership to whom the University had awarded the demolition contract. Wil-born in turn assigned B & S Company, Inc., all of its rights under the contract with the University.

The trial court entered a temporary restraining order in that case on July 29,1980. Dr. Wallace posted a $5,000 bond with USF&G as surety in that action.

B & S Company, Inc., appeared in the action by filing a motion under Rule 65.1, Alabama Rules of Civil Procedure, in which it sought damages against Dr. Wallace, as principal, and USF&G, as surety. The motion of B & S was denied, and the relief sought by Dr. Wallace was denied. No appeal was taken from that judgment.

This action was commenced by Salvage One Demolition Company, Inc., against the same parties involved in the prior litigation. Salvage One alleges that B & S Company, Inc., assigned all of its interest in the demolition contract to it. Salvage One is, therefore, B & S’s assignee to the contract.

The same relief now sought by Salvage One in this suit was sought by B & S in the prior action. The parties are identical except that Salvage One appears in this action as the assignee of B & S. It seeks an identical amount of damages as those claimed by B & S in the prior litigation. Its claim is barred by res judicata. In Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978), we set out the elements of res judicata:

The elements of res judicata are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits. Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975). If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976).

364 So.2d at 1199.

Every element is present in this case and, as we held in AAA Equipment and Rental, Inc. v. Bailey, 384 So.2d 107 (Ala.1980):

The doctrine includes not only those who were actual parties but also all persons who are in privity with them, that is, having a mutual or successive relationship to the same rights.. . .

384 So.2d at 109. Salvage One is clearly in privity with B & S, its assignor.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Jerry RUSSELL, et al. v. BIRMINGHAM OXYGEN SERVICE, INC., et al.
    79-607.
    Supreme Court of Alabama.
    Dec. 23, 1981.

      James M. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellants.
    E. Dwight Fay,' Jr., Huntsville, and Charles H. Huey, Birmingham, for appel-lees.
   ON APPLICATION FOR REHEARING

TORBERT, Chief Justice.

The original opinion in this case is withdrawn and the following corrected opinion is substituted in its place.

Defendants Jerry Russell and James Edwards were partners in a home respiratory therapy business located in Madison County, Alabama, known as J&J Respiratory Service Company (J&J). Primarily, J&J rented respiratory equipment, oxygen equipment and oxygen. Approximately one-half of J&J’s business related to the service of providing oxygen to patients and the other half of J&J’s business related to the renting of other respiratory equipment such as IPPB (intermittent or immediate positive pressure breathing) machines.

Russell and Edwards d/b/a J&J sold the half of their business relating to the service of providing oxygen to their patients, to Birmingham Oxygen Service, Inc. (Birmingham Oxygen) in May of 1977. This transaction consisted of a series of three interrelating contracts. The first contract (purchase agreement) consisted of the sale of J&J’s oxygen business (including the equipment and names of patients) to Birmingham Oxygen for: (1) The payment of $3,260.38 so that Russell and Edwards could pay off a bank note in that amount and (2) a $1,220.96 credit against the amount J&J owed Birmingham Oxygen for previously purchased merchandise. The second contract (non-competition agreement) provided that Russell and Edwards would “not compete with the business of Birmingham Oxygen Service, Inc., for a period of ten years . . . . ” The second contract further provided that Russell and Edwards would exert “their ‘best efforts,’ to obtain patients for Birmingham Oxygen Service, Inc., in order to build the business and enable the said Birmingham Oxygen Service Inc., to recover the expense and cost of this purchase.” The third and final contract in this series gave Birmingham Oxygen a right of first refusal if J&J decided to sell the remainder of its business.

In June of 1977, J&J decided to sell the remainder of its business and Birmingham Oxygen desired to purchase the business. While the contract expressing the terms of this transaction' designated Russell as the sole owner of the remaining assets of J&J, testimony during the trial showed that the partnership still existed on the date of the contract; that Edwards could not make it to the meeting concerning the sale; and that the Russell as sole owner designation was simply for convenience. Edwards did receive one-half of the proceeds of the sale and did give his consent to the sale of the remaining assets of J&J. Russell and Barney Eller, the President of Birmingham Oxygen, were the only individuals signing the agreement. Birmingham Oxygen paid to Russell (one-half going to Edwards) approximately $11,200 for the respiratory business of J&J. This included J&J’s equipment, and accounts receivable. Russell also agreed not “to engage in or become interested, either directly or indirectly ■. . . in any corporation, partnership, sole proprietorship, association, or any business in competition with Birmingham Oxygen in the home care respiratory therapy field [in Madison County].” Edwards, however, did not sign any agreement relating to the second transaction. Russell testified that part of the “deal” was an offer of employment to him by Birmingham Oxygen. Birmingham Oxygen denies this.

Russell’s wife, Maggie Waddell Russell, and her brother started a business during the summer of 1977 known as Respiratory Rental Company. Respiratory Rental engaged in the business of providing oxygen services to its patients. Russell admitted that he did the majority of the work of Respiratory Rental. Sometime during the fall of 1977, Russell and Edwards created a partnership that rented hospital equipment, including respiratory equipment. This business was known as E&R Rental Company. It was undisputed that the combination of the services offered by Respiratory Rental and E&R Rental Company equated the services previously offered by J&J.

Birmingham Oxygen never engaged in the business of oxygen services or respiratory services purchased from J&J in Madison County. However, Birmingham Oxygen’s wholly owned subsidiary, Southeastern Medical, Inc. (Southeastern Medical), did engage in the business purchased from J&J.

On April 18, 1979, Birmingham Oxygen filed suit against Jerry Russell, Jerry Russell d/b/a J&J Respiratory Service Co., and Jerry Russell d/b/a Respiratory Services. The complaint was later amended to include as defendants James Edwards, Maggie Waddell Russell, Maggie and Jerry Russell d/b/a Respiratory Rental Co., and Jerry Russell and James Edwards d/b/a E&R Hospital Rental Company. Birmingham Oxygen sought damages for breach of contract and injunctive relief. On April 23, 1980, the trial court granted an injunction restraining Jerry Russell, James Edwards, and Maggie Russell from engaging in the respiratory therapy care business or competing with the plaintiffs for seven years. Defendants appeal.

Defendants argue initially that neither Birmingham Oxygen nor Southeastern Medical has standing to enforce the non-competition clause contained in the contracts entered into between Birmingham Oxygen and the defendants. Defendants contend that Birmingham Oxygen has no standing to enforce the contract because it is not now operating, nor has it ever operated, an oxygen and respiratory services business in Madison County. Therefore, defendants argue, they are not competing with Birmingham Oxygen.

Russell and Edwards contracted, in May of 1977, “not to compete with the business of Birmingham Oxygen Service, Inc., for a period of ten years from the date of this instrument.” The phrase “business of Birmingham Oxygen Service Inc.” was not defined in the contract. This clause, however, must deal with the oxygen service business since only this aspect of J&J was sold at this time. In any case, if the corporate entity of Birmingham Oxygen Service, Inc., does not operate an oxygen services business, Russell and Edwards cannot be in competition with it, for Russell and Edwards did not contract to refrain from operating altogether, just to refrain from competing with Birmingham Oxygen. This principle also applies to the non-competition clause associated with the sale of the respiratory services aspect of J&J. Therefore, Russell and Edwards did not breach their contract with Birmingham Oxygen.

Furthermore, Southeastern Medical has no standing to enforce the contract entered into by Birmingham Oxygen and Russell and Edwards. A third person has no rights under a contract between others unless the contracting parties intend that the third person receive a direct benefit enforceable in court. See, Sly v. South Central Bell Telephone Co., 387 So.2d 137 (Ala.1980); Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977); Federal Mogul Corp. v. Universal Construction Co., 376 So.2d 716 (Ala.Civ.App.), cert. denied, 376 So.2d 726 (Ala.1979). Since it is apparent from the face of the contract that Southeastern Medical is not a third party beneficiary, Southeastern Medical has no standing to enforce it in court.

Appellees argue that it makes no difference whether Birmingham Oxygen or Southeastern Medical enforces the non-competition agreement, since Barney C. Eller wholly owns both corporations and it was him with whom Edwards and Russell dealt. This contention is without merit. A corporation is an entity created by compliance with statutory requirements. A corporation has the right to sue and be sued just like a natural person. Alabama Constitution, Article XII, § 240; Code 1975, § 10-2A-20(2). A corporation, just like an individual, must enforce its own rights and privileges.

Appellees next contend that Birmingham Oxygen assigned the contracts to Southeastern Medical. The evidence upon which they base this contention is testimony by Henry Turner, a former employee of Birmingham Oxygen, now employed by Southeastern Medical, that “Southeastern Medical succeeded] to the business of Birmingham Oxygen ... in Huntsville.”

Appellees are correct in their assertion that an assignment of a contract may be either oral or written and no magic words are necessary. However, this without more is not enough to constitute an assignment. There must be an affirmative showing of an intent to assign. Strickland & Co. v. Lesesne & Ladd, 160 Ala. 213, 49 So. 233 (1909). “The owner must do or say something which would indicate a transfer of his claim or right to another.” 160 Ala. at 217, 49 So. 233 (emphasis added). There is no suggestion in the record of an act or statement by Birmingham Oxygen evidencing an intention to assign the non-competition agreement to Southeastern Medical. Absent such evidence, there can be no finding of an assignment. See, Lowery v. Peterson, 75 Ala. 109 (1883); Andalusia Motor Co. v. Mullins, 28 Ala.App. 201, 183 So. 456, cert. denied, 236 Ala. 474,183 So. 460 (1938). The learned trial judge erroneously issued the injunction against the appellants.

Since we find dispositive the issue of whether either Birmingham Oxygen or Southeastern Medical may enforce the non-competition agreement with Russell and Edwards, we do not reach the other issues raised by appellants. Accordingly, the judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING OVERRULED AND OPINION CORRECTED.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte: Andrew WILSON. (In Re: Andrew WILSON v. The BIRMINGHAM POST COMPANY, a Corporation; The Birmingham News Company, a Corporation; Angus McEachran, Katharine Biele and James E. O’Beirne).
    No. 80-820.
    The Supreme Court of Alabama.
    December 18, 1981.

      Albert G. Lewis, III of Turner, Turner & Turner, Tuscaloosa, for petitioner.
    John H. Morrow and Lant B. Davis of Bradley, Arant, Rose & White, Birmingham, for The Birmingham Post Co.
    James C. Barton of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for The Birmingham News Co.
    David M. Olive of McMillan & Spratling, Birmingham, for amicus curiae Alabama Press Ass’n.
    Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for amicus curiae Alabama Trial Lawyers’ Ass’n.
   BEATTY, Justice.

Petition for a writ of mandamus directed to the Honorable J. C. Norton, Judge of the Circuit Court of Hale County. The writ is denied.

On November 10, 1980, plaintiff, a resident of Hale County, filed suit in the Circuit Court of Hale County against The Birmingham Post Company, The Birmingham News Company, Angus McEachran and Katharine Biele, seeking damages for the publication of an allegedly libelous article in the September 27, 1980 edition of The Birmingham Post-Herald. Both news companies are domestic corporations having their principal place of business in Jefferson County. Both individual defendants are residents of Jefferson County. Defendants filed a motion for transfer of venue to Jefferson County. Thereafter, plaintiff amended his complaint to add James E. O’Beirne, a resident of Hale County, as a party defendant. O’Beirne had been identified in an affidavit attached to the petition for change of venue as the distributor in Hale County of that issue of The Post-Herald containing the allegedly libelous matter. On August 3, 1981, the trial court granted defendants’ motion to transfer venue and plaintiff filed this petition for writ of mandamus.

The only question presented by this petition is the propriety of the trial court’s order transferring venue from Hale to Jefferson County. It is undisputed that the individual defendants are not residents of Hale County and have never done business therein. Jurisdiction over the individual defendants, therefore, is dependent upon whether venue properly lies in Hale County as concerns the corporate defendants. Petitioner is basing his entitlement to relief upon three grounds:

(1) The injury complained of occurred in Hale County, the county of plaintiff’s residence; thus, he says, Venue is proper under Code of 1975, § 6-3-7.

(2) The two corporate defendants do business by agent in Hale County and are, he says, amenable to suit therein under the provisions of Code of 1975, § 6-3-7.

(3) The addition of a Hale County resident as a party defendant after the filing of the complaint and the motion for transfer of venue, but prior to an order transferring venue, cures any otherwise improper venue. We cannot agree with any of these grounds.

I.

Code of 1975, § 6-3-7, provides that an action against a domestic corporation for personal injuries may be commenced in the county where the injury occurred. Petitioner claims that the injury to his reputation occurred in Hale County, the county in which he resides. In Age-Herald Publishing Company v. Huddleston, 207 Ala. 40, 92 So. 193 (1921), however, we held that “in an action for libel against a newspaper the injury — the breach of duty — occurs, within the meaning and application of the venue statute, at the place where the newspaper is primarily published, and not in other places where it is secondarily published, that is merely circulated.” Id. at 45, 92 So. at 198. Thus, although the libelous damage may accrue in separate counties, the injury happens in only one county, the county of original publication. The evidence in the present case reveals that The Post-Herald is printed and published in Jefferson County. The trial court did not err, therefore, in finding that, the injury occurred in that county alone.

II.

Petitioner argues that regardless of whether the injury occurred in Jefferson County, the action must be commenced in Hale County, the county of plaintiff’s residence, because the two domestic corporations do “business by agent” in Hale County. Code of 1975, § 6-3-7. The burden of proving agency rests with the plaintiff, the petitioner in the instant case. City Stores Co. v. Williams, 287 Ala. 385, 252 So.2d 45 (1971). Petitioner attempted to show that James E. O’Beirne, the distributor of The News and The Post-Herald in Hale County, is an agent of the two corporate defendants in that county. However, the trial court found after reviewing the affidavits and depositions submitted in this action that O’Beirne is an independent contractor, not an agent, servant or employee of the defendants.

When a party seeks review by writ of mandamus of an order transferring venue, we determine whether judgment or discretion of the lower court has been abused and exercised in an arbitrary and capricious manner. Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). The question of agency is one of fact. Sherrill v. Frank-Morris Pontiac-Buick-GMC, Inc., Ala., 366 So.2d 251 (1978). We have reviewed the evidence in this case and find that it amply supports the trial court’s finding of fact. That court did not abuse its discretion in resolving the question of agency in favor of the defendants.

There can be no agency relationship absent a right of control by the principal over his agent. Wood Chevrolet Co. v. Bank of the Southeast, Ala., 352 So.2d 1350 (1977). It is apparent from an examination of the “carrier bond and agreement” in this case that the corporate defendants exercise no right of control nor reserve such right over O’Beirne who buys newspapers from The Birmingham News wholesale and resells them retail, setting his own prices, method of distribution and manner of collection. The agreement states that O’Beirne is an independent contractor and does not restrict him in any way from distributing competing newspapers. Other than remitting the wholesale cost of the newspapers he buys and making any necessary complaints about the availability or changes in the number of newspapers he wishes to buy, O’Beirne has no contact or regular dealings with either news company.

Petitioner also alleges that the defendant corporations “do business” in Hale County through Archie Ford, a circulation or district manager for the news companies who collects accounts receivable from O’Beirne in Hale County, and on occasion has direct contact with customers within that district concerning complaints about delivery service. In addition, both companies hold privilege licenses and own vending machines in Hale County. The trial court did not err in finding that these minimal indicia of presence in Hale County are insufficient to establish that the corporations do “business by agent” in that county for purposes of venue. Petitioner did not meet the burden necessary to sustain the allegation of agency in Hale County.

III.

Petitioner’s final argument for relief is that even if venue in Hale County is not otherwise proper, the addition by amendment of O’Beime, a Hale County resident, as a party defendant cures any defect. Thus, if venue is proper in Hale County as to defendant O’Beirne, it is also proper as to the other defendants under the ancillary venue provisions of Rule 82, ARCP. We note, however, that O’Beirne was not added as a party defendant until after the filing of defendants’ motion for change of venue. Rule 82(d), ARCP, states that “[w]hen an action is filed laying venue in the wrong county, the court, on timely motion, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.” (Emphasis added.) The Committee Comments provide that this applies “only where the original venue was not proper.”

The original venue in the present case was improper. The defendants are not subject to suit in Hale County because the injury did not occur there nor are defendants doing business by agent in that county. We held in Ex parte Maness, Ala., 386 So.2d 429 (1980), that a “transfer is not authorized under the rules unless venue was incorrect at the outset of the suit.” Id. at 430. It follows, then, that Rule 82(d) is just as clear in reverse. That is, if venue is not appropriate when suit is filed, the case “shall” be transferred. Petitioner’s attempt to cure the improper venue did not serve to defeat the trial court’s mandate to transfer the action pursuant to Rule 82(d) from Hale to Jefferson County.

The writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, Ala., 382 So.2d 1127 (1980). The petitioner’s right to relief must be clear and there must be no other adequate remedy. 'Id. Neither of these prerequisites appears here. Accordingly, the petition for writ of mandamus must be, and is, denied.

WRIT DENIED.

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


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    ALABAMA DAIRY COMMISSION and Associated Milk Producers, Inc. v. BAKER & SONS DAIRY, INC., et al. and ALABAMA DAIRY COMMISSION and Associated Milk Producers, Inc. v. HALL BROTHERS DAIRY FARMS, et al.
    Civ. 2783, Civ. 2783-X.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 19, 1981.
    Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett and Robert M. Alton, Jr. of Alton & Leavell, Montgomery, for appellant.
    Oakley Melton, Jr. of Melton & Espy and Curtis H. Springer, Montgomery, for appel-lee.
   BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Montgomery County invalidating parts of Order R-14 and Regulation 110-4 and all of Order R-17 and Regulation 110-15 of the Alabama Dairy Commission (ADC), often referred to as the “buttermilk regulations,” on the ground that they were violative of the due process clauses of the United States and Alabama Constitutions. We affirm.

The orders and regulations invalidated by the trial court required those milk distributors who manufactured buttermilk by using milk powder rather than fluid milk to pay to the producer the difference between the cost of the milk powder and the equivalent portion of the producer’s surplus milk at the Class I price. Milk producers are paid a Class I price for that portion of their milk sold for consumption as fluid milk. A lower Class II price is paid for milk that is used for other purposes, such as in the making of cheese, sour cream, cottage cheese, yogurt, etc.

The appellees-distributors contend here that the orders and regulations in question deprive them of their property without due process of law by requiring them to make compensatory payments to the milk producers for surplus milk they never actually use in making buttermilk, and they say that the requirements of these orders and regulations are no different than what was required of them by Order 2-76, which was held unconstitutional in Delview Meadow Gold v. Alabama Dairy Commission, Ala., 383 So.2d 511 (1979), cert. denied,-U.S. -, 101 S.Ct. 385, 66 L.Ed.2d 237 (1980).

Order 2-76, adopted by the ADC in 1976, required milk distributors who received surplus milk (Class II milk) from the farmer-producer and who also made and distributed buttermilk made from milk powder to pay to the producers the Class I price for an equivalent portion of such surplus milk just as though the distributor had used the surplus milk rather than the milk powder.

The trial court said that the ADC orders and regulations involved here, i.e. Orders R-14 and R-17 and Regulations 110-4 and 110-15, require, as did Order 2-76, compensatory payments to be made to the producers by those distributors who use milk powder rather than fluid milk in the manufacture of buttermilk. The court then held on the authority of Delview that the orders and regulations in question were violative of the due process clauses of the United States and Alabama Constitutions.

In Delview the supreme court said:

A state may not act to deprive any person of his property without due process of law. U.S.Const. amend. XIV; Ala. Const, art. 1 § 6. ADC Order 2-76, however, deprives distributors of their property, money, in a manner that is arbitrary and unreasonable. The distributors’ money is taken by the ADC to be paid to producers for milk presently or subsequently received but never used in making the buttermilk. Although the money taken is designed as “compensatory payments” such payments are effectively a tax or penalty for the benefit of the producers on the distributors for their use of milk powder. Other courts have recognized that payments labeled compensatory may be more accurately described as penalties on milk distributors. See, Kass v. Brannan, 196 F.2d 791 (2d Cir. 1951). The ADC by this penalty arbitrarily and unreasonably discriminates against a legitimate production process.
In Appeal of Arcadia Dairy Farms, Inc., 289 N.C. 456, 223 S.E.2d 323 (1976), the Supreme Court of North Carolina in considering the North Carolina Milk Commission’s amendment to Milk Marketing Order No. 2, requiring distributors reconstituting milk for Class I sales to pay to producers selling milk to other distributors in the market area an amount equal to the difference between the Class I and normal Class II prices, stated:
“To interpret GS 106-266.8 [the amendment] as conferring upon the Commission power to require a distributor of ‘reconstituted’ milk to make such payments for the benefit of producers, with whom it has no dealings, would also give rise to serious doubt as to whether such exaction would be a violation of Article I, § 19, of the Constitution of North Carolina, which provides, ‘No person shall be * * * in any manner deprived of his * * * property, but by the law of the land.’ ”
The ADC lacked authority under Title 22, § 223(1), Code of Alabama (Recomp. 1958) (as amended) to promulgate an order that in effect requires distributors to pay the premium Class I price for milk not used in a premium product. See Code 1975, §§ 2-13-50 and 51. The distributors will have to pay the Class I price for milk whenever they make buttermilk from milk powder irrespective of whether they do so for greater profit, convenience, because no fresh milk is available, or only sporadically. The milk that they are required to purchase for premium prices, even though it is not used in making buttermilk, is actually milk which is produced in excess of what is needed for fluid milk consumption and thus should come under the lower minimum price, Class II price. Whether the ADC computes the amount of milk for which the distributors pay the Class I price, the fluid milk price, on the basis of any one of the three methods allowed by the statute, Order 2-76 is still arbitrary and unreasonable and thus violates the due process provisions of the Constitution of the United States and the Constitution of Alabama 1901.

In the case at bar, the distributors are required by the orders and regulations in question to pay the Class I price for surplus milk whenever they make buttermilk from milk powder; thus the distributor is required to pay the premium Class I price for milk not used in a premium product. Such a requirement is unreasonable and arbitrary and thereby violates the due process provisions of the Constitution of the United States and the Constitution of Alabama 1901.

Appellants also contend that the trial court erred in failing to require appellees to make their compensatory buttermilk payments into a court-approved escrow fund or to post a supersedeas bond pending a final determination of the validity of the orders and regulations in question.

Section 2-13-63, Code 1975, provides in part as follows:

The court shall have the power to suspend or stay execution of the ruling, order, regulation or other action in question pending final hearing only upon execution of a bond payable to the commission in such amount as the court deems reasonably sufficient to compensate the commission for any loss or penalty which might be occasioned by such stay or suspension.

This Code section permits but does not require the circuit court to suspend the operation of the order or regulation prior to a final determination as to its validity. It merely authorizes the court to suspend the effectiveness of the order or regulation provided the party attacking its validity executes a bond payable to the ADC.

In the case at bar the trial court did not suspend the effectiveness of the orders and regulations in question, nor did it require that all monies due the producers by virtue of the orders and regulations in question be paid into an escrow fund until such time as the litigation was finally determined, and we have not been convinced that such failure has injuriously affected the rights of the appellants. Rule 45, ARAP. Our conclusion is fortified, we believe, by the trial court’s finding that the orders and regulations in question are unconstitutional and also by the supreme court’s conclusion that Order 2-76, the immediate predecessor of the orders and regulations in question, was unconstitutional.

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

AFFIRMED.

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

On Rehearing

BRADLEY, Judge.

In their application for rehearing, appellants make several contentions, among which is the contention that this court failed to consider their motion to strike the affidavit filed by appellees on June 24,1981 and thereby considered extra-record evidence relating to a cited case.

The motion to strike was granted but no mention of such action was made in the opinion of the court. For the record, the motion to strike the affidavit has been granted.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: HOLMES, Judge.

text:
    Earline S. NELSON v. Millard NELSON.
    Civ. 2624.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Rehearing Denied Oct. 7, 1981.
    Jerry Knight, Decatur, for appellant.
    Robert Straub, Decatur, for appellee.
   HOLMES, Judge.

This is an appeal from the denial of certain post-judgment motions for relief from a divorce decree.

The trial judge entered a decree divorcing the parties on August 4, 1980. The decree incorporated a separation agreement entered into by the parties which provided for the division of the parties’ property.

On August 28, 1980, the wife filed a rule 59(e), A.R.C.P., motion to vacate, alter, or amend the decree and a rule 60(b), A.R.C.P., motion for relief from the decree. The wife alleged in the motions that: (1) she was not capable of transacting a separation agreement at the time it was entered due to her emotional instability and her subservient role in the marital relationship; (2) the husband misrepresented the value of his Amoco stock to her when they were negotiating the agreement; (3) she was subject to duress or undue influence during the period of time when the agreement was reached; and (4) the division of property set out in the agreement is inequitable.

The trial court ordered a trial of the factual issues raised in the motions. After an ore tenus hearing, the trial court denied the motions and the wife, through able counsel, appeals. We affirm the order of the trial court.

The record, viewed with the attendant presumption accorded the trial court, reveals the following pertinent facts:

The parties first married in 1969. They had no children born of this marriage. They divorced in 1977, but remarried in less than a month. At the time of the 1977 divorce, the attorney representing both the husband and wife drew up a separation agreement. The Amoco stock was specifically given to the husband in this first agreement. In the summer of 1980 they agreed to a second divorce and entered into a new separation agreement which is the subject of this appeal.

The husband was in his late, forties at the time of trial. He has been working for Amoco Chemical since the early 1970’s earning approximately $19,000 a year.

Amoco apparently has several stock purchase plans for its employees. The company matches a certain amount of the employee’s investment. By the time of the divorce, the husband had contributed approximately $13,000 to this stock plan. The market value of this stock at the time of trial was approximately $27,000.

Prior to the parties’ marriage the husband owned a home. After the marriage he sold his home and built a new home for the parties with the $17,500 he received from the sale of his previous home and a loan of $15,000. At the time of trial, the marital home was worth approximately $49,000 with a mortgage of less than $8,000.

The husband also owned a vacant lot which he sold after the parties married. He and the wife later bought a rental house valued at $15,000 and a vacant lot worth slightly less than $12,000. There is no mortgage on either of these properties.

The wife was fifty-one years old at the time of trial. She worked as a nurse’s aide before the parties married, but quit her job shortly after the marriage. She owned no major assets at the time of the marriage. She never finished high school, but did obtain a G.E.D.

During the marriage, the parties began selling plants in their home. The wife was responsible for much of the work connected with the business, including caring for them, selling them, ordering supplies, and keeping the books.

The wife also kept records of all the parties’ household expenses, paid the bills and accounted for all the money during the marriage. She deposited the husband’s paycheck weekly into their joint account. The wife kept the checkbook and the passbook to the savings account. She had a key to the safety deposit box in which the Amoco stock reports and other financial records were kept.

The parties apparently had differences of opinion regarding the family finances and the plant business. Although the wife was primarily responsible for keeping the parties’ financial records and running the plant business during the day, it appears that the husband was less than satisfied with his wife’s handling of these matters. For her part, the wife disliked the long hours and inconvenience of running a plant business out of their home.

The parties often had arguments, many of which lasted most of the night. One evening in mid-July, after the parties had been arguing, the wife left. After she had been gone almost two weeks, the husband told her that if she would not come home, then he wanted her to meet him at the office of an attorney friend of theirs, which she did.

The parties talked with the lawyer for about an hour and a half. While discussing the parties’ financial conditions they had some disagreements. After the parties reached agreement, the lawyer drew up the necessary papers, which the parties signed almost a week later.

According to the parties’ agreement, the .wife is to receive a property settlement of $20,000 to be paid at the rate of $200 per month for 100 months. She agreed to convey to the husband her interest in the parties’ real property and he is to be responsible for paying all mortgages and debts thereon.

The trial court granted the divorce on August 4, 1980, and incorporated the parties’ agreement in the decree. On August 28, 1980, the wife filed her post-judgment motions seeking relief from the decree.

There are two issues on appeal: (1) whether the trial court erred to reversal in denying the wife’s rule 59(e) motion to alter, amend or vacate the decree, and (2) whether the trial judge erred to reversal in denying the wife’s rule 60(b) motion for relief from the decree. However, the wife argues several factual grounds as the basis of the alleged error on the trial judge’s part in denying both motions.

We first address the issue of whether the trial court erred to reversal in denying the wife’s rule 59(e) motion. We note at the outset that our scope of review in an appeal from the denial of a rule 59(e) motion is whether there was a manifest abuse of discretion. Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977).

The essence of the wife’s motion is that she was unaware of the market value of the Amoco stock since the husband said he had put at most $13,000 into the stock plan. The wife testified at trial that she knew her husband contributed part of his income to the stock plan. She had seen, though not understood, the most recent stock report which had been put in the parties’ safety deposit box.

At trial, the wife testified that the husband told their attorney in her presence that he had about $6,000 in the Amoco stock plan. The husband claimed he told the attorney in front of the wife he had about $13,000 in the plan. The husband further testified he was never asked the actual value of the Amoco stock at the time the property agreement was being discussed. He also indicated the wife was more familiar than he with all the parties’ financial arrangements.

A property agreement may be vacated, altered, or amended if one party procures the agreement by fraud or conceals assets. Denton v. Sanford, 383 So.2d 847 (Ala.Civ.App.1980). The issue of fraud is a factual question to be determined by the trial court. Blalock v. Blalock, 51 Ala.App. 686, 288 So.2d 747 (1974). Therefore, the ore tenus rule requires us to view such findings with a presumption of correctness. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ. App.1980); 8 Ala.Digest, Divorce key 184(4).

Our review of the record reveals that there is evidence to support the conclusion that the trial court did not so abuse its discretion as to require reversal in finding the husband did not conceal or fraudulently misrepresent the actual value of the Amoco stock.

There was evidence that the wife was aware the husband participated in the stock plan, although she was unsure of the total amount he had contributed. The husband did, however, tell the wife and their attorney how much of his earnings he had invested. The wife had the stock report in her possession the day she met with the husband and their attorney to discuss the property settlement. Her difficulty in understanding the stock report does not equate with “concealment” on the part of the husband. The wife’s knowledge of the existence of the stock and her access to the stock report support the trial court’s judgment that no fraud was committed.

Through able counsel in brief the wife further contends that the rule 59(e) motion should have been granted because of the inequity of the agreement itself. Husband and wife had divorced and remarried one another only three years before this divorce action. The wife had participated in drafting the 1977 separation agreement, and there is evidence that she had input into the terms of this current agreement. Property agreements between husband and wife need not be equal, but must only be equitable according to the circumstances of the ease. Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980).

It does not appear, as a matter of law, that the evidence here supports a conclusion such as that in Kohn v. Kohn, 52 Ala.App. 636, 296 So.2d 725, cert. denied, 292 Ala. 725, 296 So.2d 730 (1974), where an agreement not acted upon by the court was set aside because it was inequitable. The wife in the instant action voluntarily signed the separation agreement. She was familiar with the family and business finances, and her prior divorce from the husband gave her an understanding of the ramifications of the current agreement. We further note that the marriage being dissolved is of short duration; that the marriage from the inception was “stormy”; and further, that the wife by the terms of the agreement received approximately 20% of the marital assets.

We find no merit in any of the remaining contentions raised by the wife in support of her motion to vacate, alter, or amend the decree. The trial court did not manifestly abuse its discretion in finding the wife’s apparent emotional instability did not justify an order granting her rule 59(e) motion. A number of physicians, family members, and friends testified the wife was hypertense, suffering from menopausal depression, and fatigue at the time of the divorce. This is far less serious, however, than the non compos mentis which courts have accepted as a ground to set aside or modify a decree. McLaughlin v. McLaughlin, 53 Ala.App. 545, 302 So.2d 233 (1974).

We particularly note that, since the wife was somewhat experienced in divorce proceedings and had a good understanding of the parties’ financial affairs, the lack of separate counsel for her, in this instance, was not grounds for vacating or altering the decree. See Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20, cert. denied, 293 Ala. 775, 307 So.2d 24 (1974).

In light of the above, we cannot hold the trial court erred in denying either the rule 59(e) motion to vacate, alter, or amend the judgment or the rule 60(b) motion for relief from the decree. To do so would be to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

All contentions of the wife having been considered, the order of the trial court is therefore and accordingly affirmed.

The wife’s request for attorney’s fee is denied.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Ex parte Earline S. NELSON. (Re: Earline S. NELSON v. Millard NELSON).
    81-63.
    Supreme Court of Alabama.
    Jan. 8, 1982.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: SCRUGGS, Retired Circuit Judge.

text:
    Percy McGraw PITTS, III v. Corinne SUTTER, f/k/a Corinne Sutter Pitts.
    Civ. 2505-X.
    Court of Civil Appeals of Alabama.
    Sept. 23, 1981.
    Rehearing Denied Oct. 21, 1981.

      Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
    Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, and Corinne Sutter, pro se, for appellee.
   SCRUGGS, Retired Circuit Judge.

This appeal by Percy Pitts, the father, involves Uniform Child Custody Jurisdiction Act proceedings which were filed in the Circuit Court of Mobile County by the mother to enforce a Massachusetts court judgment, which granted to her the custody of the minor child of the parties, Chris.

Further references to the Uniform Child Custody Jurisdiction Act shall be either as UCCJA or the uniform act, and Alabama’s version, which is essentially a carbon copy of the uniform act, shall be referred to as the act. 9 U.L.A. 116 (Master ed. 1979); 1980 Ala. Acts, No. 80-92.

The parties were divorced'in 1971 by the Circuit Court of Mobile County (the Alabama court) and, in 1972, that court granted custody of the son to the father. Thereafter, numerous proceedings have been filed and hearings have been held concerning Chris and his relationship with his parents, most of such matters having been initiated by the mother whereby she primarily sought to enforce her visitation rights with her son. Because of the long and torturous legal .history of their bitter litigation, the record and written exhibits exceed eight inches in height. Only highlights thereof in capsule form shall here appear, although the entire record has been read, reviewed and studied, with the pertinent parts thereof being considered by this court.

In 1972 the mother moved to California and she still resides there. By agreement of the parties, Chris was flown from Alabama to California in December 1973 for a maternal visit, during which the mother instituted custody proceedings through the California court, which, on June 8, 1974, declined to exercise jurisdiction. She then promptly returned the child to the father in Alabama, where additional litigation was had. On November 26, 1974 the Alabama court entered a judgment concerning her visitation rights with the child and expressly restrained and enjoined the parties from filing any other motion for custody in any other court in Alabama, or in any other state, without the express permission of the Alabama court.

In January 1976 the father, his present wife, and Chris moved to Michigan where the father was employed. The mother testified that she had no knowledge of her son’s whereabouts until 1977, when she located him and filed a petition in a Michigan court for visitation with Chris. That trial court remanded the matter back to the Alabama court, but she filed no proceedings there. The mother appealed, and, pending an appellate decision, the father, child and stepmother moved to Massachusetts on October 11, 1977. For two months before moving to Massachusetts, the husband and child visited the paternal grandparents in Mobile. The Court of Appeals of Michigan dismissed the mother’s appeal since neither the mother, father nor child then resided in Michigan.

A hearing was held in Mobile upon a petition which had been filed by the father while he still resided in Michigan, and, on October 26, 1977, the Alabama court rendered its judgment allowing the mother to show cause as to why she should not be held in direct contempt of the injunction contained in the November 26, 1974 order; and, pending her showing such cause, the court suspended all of her visitation rights. The father had flown from Massachusetts to Mobile to attend the hearing.

When they moved to Massachusetts, an apartment was rented for the family. The father was employed as an engineer. He obtained a Massachusetts driver’s license, registered his car with the Commonwealth, and enrolled Chris in school there.

Just before Christmas in 1977, the father was personally served by a Massachusetts sheriff with copies of custody proceedings which the wife had filed in Massachusetts. He immediately employed legal counsel. Included in papers served upon him was an order to allow temporary visitation between the mother and son. On December 21,1977 the Massachusetts court entered an order prohibiting the father from removing Chris from the Commonwealth. The parties, Chris and the respective attorneys appeared before the Massachusetts court and a temporary court order resulted whereby the mother was granted the right to have the boy visit with her for one week. On January 3, 1978 the father filed a motion to vacate the restraining order forbidding him to remove Chris from the Commonwealth and this motion was not granted. At the-end of - such visitation period, she promptly returned Chris to his father. The next day, January 5, 1978, the father placed Chris on a plane, and the boy was flown to Alabama. The father testified, “I sent my son off and then we packed up everything we had and left” on January 6, when they also returned to Mobile.

A few days after they arrived in Alabama, the father was personally served with a contempt summons for violating the Massachusetts court order not to remove Chris from Massachusetts and with a Massachusetts writ of habeas corpus to return to Massachusetts and produce Chris before the court there. He did not comply with either. In January 1978 he was informed by his Massachusetts attorney that Chris’s temporary custody had been granted to the mother.

The father and son’s location then apparently became unknown to the mother and to the Massachusetts court, and, according to her evidence, a final hearing was delayed on that account until in January 1980 when he resurfaced and, at his direction, his Massachusetts attorney filed various motions to set aside the December 1977 order forbidding him from removing Chris from the Commonwealth. During the entire penden-cy of the proceedings, including the eviden-tiary trial on the merits in May 1980, he continued to litigate the Massachusetts case through his counsel.

On June 30,1980 the Massachusetts court rendered its final judgment which, among other matters, granted sole legal and physical custody of Chris to the mother. No appeal was taken from that judgment. Among other findings incorporated into the judgment were the following:

“7. On October 11, 1977, Percy, his wife and Chris moved to Beverly, in this Commonwealth.
“9. The instant Complaint was filed in this Court on December 21, 1977, and Percy appeared generally, filing an answer.
“10. On or about December 21, 1977, Percy resided in Beverly; he was employed within the Commonwealth; he held a valid Massachusetts automobile driver’s license; he had an automobile duly registered in the Commonwealth.
“11. At the time of commencement of this action, the child, Chris, resided in Beverly, in this Commonwealth, and was enrolled in the Beverly Public Schools.
“12. On December 21,1977, this Court entered an order forbidding Percy restraining him from removing the child from the Commonwealth (Pleading 4).
“13. On January 3,1978, Percy filed a Motion to Vacate the Temporary Order of December 21, 1977, restraining him from removing the child from the Commonwealth (Pleading 17). This Motion was not allowed.
“14. On or about January 5,1978, Percy, in violation of a duly entered order (see 12 above) forbidding him to remove Chris from the Commonwealth, did so remove himself and the child.
“16. A Complaint for Contempt was filed by Corinne against Percy (Pleading 23) alleging Percy had violated the order of the Court by removing the child from the Commonwealth and was duly served on Percy. He did not respond.
“22. At the commencement of this action, no other action for custody of Chris had been commenced in any other jurisdiction.
“23. On April 8, 1980, this Court denied Percy’s motion to dismiss this action on the ground of forum non conveniens and lack of jurisdiction (Sullivan, J.)
“24. On May 13, 1980, this Court denied Percy’s motion to dismiss the action on the ground of forum non [conviens] (Sullivan, J.), (Pleading 59).
“32. That Percy has not provided for the best welfare of the child. (Gelles transcript pp. 46/47, Plaintiff’s Exhibit 7).
“36. That Corinne is the proper and fit parent to have the legal and physical custody of Michael Christian Pitts.
“38. That Corinne is better able to provide for Chris’ present and future needs.
“39. Prior to the instant action, there has never been a full hearing upon the merits of the custody of the minor child of the parties.”

On July 2, 1980 the mother filed in the Alabama court a complaint asking for the custody of the boy through the enforcement of the June 30 Massachusetts judgment.

The father’s answer to her complaint consisted of the following: (1) the averments of the complaint were denied; (2) the hypothesis upon which the Massachusetts judgment was rendered was alleged to be incorrect insofar as it pertained to a lack of evidentiary hearings in the Alabama court; (3) there have been no changes in the circumstances or conditions which would justify a change in custody; and (4) it would be to the best interest of the minor child that his custody remain with the father. By later amendment, the father added the following additional answers: (5) the Alabama court should decline to enforce the Massachusetts judgment because a proceeding was pending in the Alabama court concerning the custody of the child at the time she filed her petition in Massachusetts and (6) jurisdiction should be declined because the mother had contemptuously disobeyed the orders of the Alabama court. The father also included in his amended answer a counterclaim seeking a modification of the Massachusetts judgment in the event that judgment was ascertained* to be valid and enforceable.

On August 20, 1980, during the trial of the case, the court verbally struck the counterclaim.

At the conclusion of the evidence and at the father’s request, the trial court privately interviewed Chris in the judge’s chambers outside the presence of the court reporter, and the record is silent as to the contents of that discussion between the judge and the boy.

The circuit court rendered its judgment on August 22, 1980 which granted the mother’s petition for enforcement of the Massachusetts custody judgment, but the Alabama court stayed the execution of the judgment pending an appeal. The mother was granted the right to have Chris visit with her for eight hours on alternate Saturdays, pending a final decision by an appellate court. The trial court awarded judgment for the sum of $1,500 against the father and in favor of the mother’s attorneys of record as attorney’s fees.

THE FATHER’S APPEAL

The father appeals and states that the two primary issues for review are (I) whether the trial court erred in enforcing the Massachusetts custody judgment and (II) whether the trial court erred in striking the father’s counterclaim.

I

The act created new rules, a totally new concept in Alabama, governing interstate child custody matters, and those type cases can no longer proceed to a valid conclusion by ignoring the act and abiding by contra old precedents. At the outset, we note that section 27 of the act expressly repealed all laws, or parts of laws, in conflict with that legislation.

In section 1 the act’s laudable purposes are stated, among which are the following:

“(a) The general purposes of this act are to:
“(1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
“(5) deter abductions and other unilateral removals of children undertaken to obtain custody awards;
“(6) avoid re-litigation of custody decisions of other states in this state insofar as feasible;
“(7) facilitate the enforcement of custody decrees of other states;
“(b) This act shall be construed to promote the general purposes stated in this section.”

The only occasions for courts to exercise jurisdiction in interstate child custody controversies are set forth in the act. The two primary jurisdiction provisions are contained in section 3 as follows:

“(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(1) this state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to. live in this state, or
“(2) it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;”

In the definitions in section 2, “home state” is defined to mean “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months.”

Section 3(a)(2) does not require that a child’s only significant connection be with a particular state in order for jurisdiction of a court of that state to attach. The requirement is that the child have a significant connection with that state. Hofer v. Agner, 373 So.2d 48 (Fla.Dist.Ct.App.1979).

The act encourages continuing jurisdiction by a court which entered an original custody judgment unless that court presently is without jurisdiction under Section 3 or has declined to assume jurisdiction. State ex rel. Butler v. Morgan, 34 Or.App. 393, 578 P.2d 814 (1978); Brown v. District Court, 192 Colo. 93, 557 P.2d 384 (1976).

With regard to continuing jurisdiction, the following commissioner’s notes to Section 14 are pertinent:

“Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law. Courts in other states have in the past often assumed jurisdiction to modify the out-of-state decree themselves without regard to the preexisting jurisdiction of the other state. See People ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). In order to achieve greater stability of custody arrangements and avoid forum shopping, subsection (a) declares that other states will defer to the continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section 3. The fact that the court had previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere.. ..
“For example, if custody was awarded to the father in state 1 where he continued to live with the children for two years and thereafter his wife kept the children in state 2 for 6V2 months (3% months, beyond her visitation privileges) with or without permission of the husband, state 1 has preferred jurisdiction to modify the decree despite the fact that state 2 has in the meantime become the “home state” of the child. If, however, the father also moved away from state 1, that state loses modification jurisdiction interstate, whether or not its jurisdiction continues under local law.” [Citations omitted. Emphasis added.]

In December 1977, as between Alabama, Michigan and Massachusetts, the latter was the only state to have jurisdiction under the uniform act. The child and both parents had not been residents of Alabama for more than two years; therefore Alabama not only lost home state status but modification jurisdiction had also shifted elsewhere. Michigan achieved home state status, but it had declined to exercise jurisdiction. When the father and child moved to Massachusetts, that commonwealth then became the only state to properly exercise jurisdiction. Its jurisdiction was based upon the significant connection portion of section 3 and upon the existence of the necessary facts which authorized jurisdiction to modify the Alabama judgment under section 14.

Nevertheless, the father contends that Massachusetts was prohibited from exercising jurisdiction because the October 26, 1977 judgment of the Alabama court allowed the mother to show cause as to why she should not be punished for a contempt of court, and she had not shown such cause. Section 6 provides that a court shall not exercise its jurisdiction under the UCCJA “if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state.” That proviso, however, is not here applicable, for the judgment permitting her to show cause was not then a proceeding in which custody determination was one of the issues. Sections 2(2) and 2(3).

The father complains that, from the findings of the Massachusetts court, that court wrongfully ascertained that there had never been a full evidentiary hearing as to Chris’s custody. That is not an essential finding as to jurisdiction; and, even if we assume such finding to be totally wrong, such erroneous conclusion could not affect the validity of the jurisdiction of the Massachusetts court on collateral attack. His attorney could have furnished any or all of the previous Alabama proceedings to the Massachusetts court.

It'is his further contention that the mother did not come into court with clean hands which fact precluded the trial court from granting the relief sought. The unclean hands rule appears in section 8, and the only possible pertinent portion of that section is in 8(b) that, if the petitioner has violated any other provisions of a custody decree of another state, the court may decline to exercise its jurisdiction if it is just and proper under the circumstances. That portion of the UCCJA is discretionary with the trial court of the forum state and the Alabama court did not abuse its discretion in that regard, even if 8(b) were construed to here apply to the mother. However, its applicability as to the father’s conduct in the prohibited removal of the child from Massachusetts is definite and certain.

Additionally, the father complains that the Massachusetts judgment was rendered more than two years after the father and child left Massachusetts. Their leaving was contrary to the ne exeat order of the Massachusetts court and he did not comply thereafter with that court’s habeas corpus proceedings. After the father’s whereabouts became known once more, the Massachusetts court overruled many of his motions and á final evidentiary hearing was held. The father participated fully in all proceedings through his attorney. He cannot be rewarded now for his actions contrary to the orders of the court. There was evidence before the trial court that such actions caused the delay in the proceedings. Jurisdiction existed at the time the mother filed her custody petition, which is the critical date, not some subsequent time. Rexford v. Rexford, 631 P.2d 475 (Alaska, 1980).

While we have responded to most, if not all, of the father’s contentions, matters such as those numbered (2), (3) and (4) in the father’s answer are issues that could not be re-litigated in the Alabama enforcement proceedings. The Massachusetts judgment is conclusive as to all issues of law and fact decided and as to the custody determination made until it is lawfully modified. Section 12.

The Massachusetts judgment was valid. The factual circumstances as determined by the Massachusetts court meet the jurisdictional standards of the act. The courts of Alabama are required by the act not only to recognize, but also to enforce, valid custody modification judgments of another state in like manner as if it was a custody judgment which had been rendered by a court in Alabama. Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App.1981); Sections 13 and 15 of the act.

II

Proceedings to enforce a sister state’s judgment do not open up the inquiry to petitions for modification. To grant recognition to a sister state’s judgment in one paragraph and then to modify that foreign judgment in the next paragraph on the ground, or pretext, of changed conditions is contrary to the purpose of the uniform act. Formerly, that practice was not uncommon. It constituted one of the troublesome roots of the problem and was one reason that the uniform act was needed and necessary. “The only valid objection in the enforcing state is a claim that the decree is not entitled to recognition.” Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L.R. 1207, 1286 (1969).

In Wyatt v. Falhsing, supra, the following was stated by this court:

“A prompt hearing should be held as to whether the Act requires that the sister state’s custody judgment be recognized and enforced. The party seeking to enforce the judgment of another state normally would meet their initial burden of proof at that limited hearing by the introduction into evidence of a properly authenticated copy of the judgment relied upon. At such hearing, the parent contesting the foreign judgment would have the right to specifically plead in defense thereto and to present evidence as to the nonexistence of jurisdiction of the sister state rendering the judgment. They could also plead and prove whether other just cause exists under the Act for not recognizing the judgment such as those stated in Section 8; or whether the sister state’s judgment was punitive. Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975); or whether there was a lack of notice of the sister state’s proceedings as is required by' Section 4. Wenz v. Schwartze, 598 P.2d 1086 (Mont.1979). The above examples are not intended to be exclusive, for there may be other valid grounds of contest at that first hearing.
“Ordinarily, at such initial and limited hearing, the circumstances of the child or children is not then an issue before the court and evidence pertaining thereto is not admissible. [Citation omitted.] Should the trial court determine after such hearing that such a judgment must be recognized, the court would then enforce the other state’s judgment without further proceedings.
“If the local court decides that the Act does not authorize the recognition of the judgment, and if modification proceedings are then pending in the trial court, a further or additional hearing would be held to determine whether, in the trial court’s judicial discretion, jurisdiction over such modification proceedings should then be exercised. If jurisdiction is exercised, the modification proceeding would be heard on its merits, and evidence concerning the child’s best welfare would be admissible and duly considered by the trial court prior to its final judgment thereon.” [Footnote omitted.]

That decision is dispositive of the issue regarding the dismissal of the father’s counterclaim. Since the Alabama court determined that the commonwealth’s judgment should be recognized, it was due to enforce it without further proceedings.

The learned trial court was correct in its decision to enforce the Massachusetts judgment. We therefore affirm the circuit court’s judgment insofar as the appeal'of the father is concerned.

THE MOTHER’S CROSS-APPEAL

The mother’s cross-appeal raises two issues: (A) that the circuit court, after ordering the enforcement of the Massachusetts judgment, erroneously stayed its enforcement order, and (B) the awarded attorneys’ fee was inadequately low.

A

The circuit court, without a written motion by the father, stayed the enforcement of its judgment of August 22,1980. ■ We do not approve the procedure utilized in effecting the stay.

In stay proceedings in enforcement matters in UCCJA cases, the procedure to be therein followed is identical to, and does not vary from, the general law of Alabama governing stays on appeals in custody cases. The party desiring a stay should file a written motion seeking such relief. However, any stay pending appeal of a custody order, or of an enforcement judgment, should be very sparingly granted only after allowing all parties an opportunity to be heard and only after cautiously exercising judicial discretion. An appeal by an unsuccessful party from an adverse child custody judgment does not supersede that judgment. The act does not provide for a stay on appeal, and Alabama’s general law regarding stays must not be so abused as to contravene the spirit of the UCCJA in this type case. A stay should be granted on appeal as to a successful UCCJA enforcement proceeding only if it would have been granted had the case been one concerning solely intra-state custody. The fact that the winning party in the trial court is a non-resident is a totally insufficient ground upon which to grant a stay of enforcement of a sister state’s custody judgment, for all such parties in all such cases would probably be non-residents. Adequate protection can be provided by other methods in the vast majority of cases. For example, the trial court could require such a non-resident to post a proper bond to secure the prompt return of the child in the event the trial court’s enforcement judgment is reversed upon appeal.

In Field v. Field, 382 So.2d 1132 (Ala.Civ.App.1980), it was decided that, where a trial court denies a stay of judgment request pending an appeal in a child custody case, the party seeking the stay is then required to file a motion for a stay of judgment in this court if they desire to pursue the matter. Since no such motion was filed in this court in the Field case, we did not consider the denial of the stay when we decided the appeal. The contrary would also be true; that is, if the trial court grants a stay on appeal in such a case, the party aggrieved by the stay order must file a motion in this court to dissolve the trial eoiirts stay order. No such motion was filed in this court in the instant case. Therefore, we will not consider her complaint in that regard on this appeal; but, since the judgment of the trial court is affirmed which enforces the Massachusetts custody judgment, the order of the trial court granting a stay of judgment is hereby dissolved, the father is hereby directed to immediately transfer the custody and possession of Chris to the mother, or to her authorized representative, and the trial court shall hereafter make such orders as may be necessary to effect such immediate transfer of Chris’s custody to the mother consonant with the Massachusetts judgment.

B

As to attorney’s fees, one of the mother’s attorneys testified that, since the Massachusetts final judgment, he expended two hundred ten hours upon this litigation and that his charges to the mother were at the out-of-state rate of $100.00 per hour, plus expenses, with a minimum daily fee of $1,000.00.

The elements material for consideration in establishing attorney’s fees are enumerated in Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266 (1957), which also stated that the allowance of attorney’s fees rests within the discretion of the trial court, who may call to his aid his own judgment of the value and fix the fee accordingly, the statements of expert witnesses being advisory only. In a case of this nature, the trial court’s discretion applies not only as to what amount constitutes a reasonable fee, but also as to whether the party to be taxed with the other party’s fee should be taxed with all or with just a portion of that fee.

Under these circumstances, we will not substitute our opinion for that of the trial judge. We do not say that the attorneys are not due to be paid the total of their fees as contended, but we cannot hold that, under the circumstances, the trial court abused its discretion in requiring the father to pay only $1,500 upon the mother’s attorney’s fees. There was not such an abuse of discretion that we must reverse in that regard.

The judgment of the trial court is affirmed insofar as the mother’s cross-appeal is concerned.

MOTIONS

The mother’s motion as filed in this court on November 10, 1980 to correct the contents of the record by striking therefrom certain proceedings, father’s exhibit D, and her further motion as filed herein on May 29, 1981 to add to or supplement the record, are both denied. A.R.A.P. rule 10(f).

The record in this case is voluminous. The briefs and oral argument of each party were superior and clearly represented much research, thought, study and expertise.

The mother has requested that this court award attorneys’ fees to her attorneys as to this appeal, which request is hereby granted. The father shall pay to the mother’s attorneys of record on this appeal the sum of $1,500 to be applied upon their fee for here representing the mother. The father’s request for an attorney’s fee upon appeal is denied.

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

STAY OF EXECUTION DISSOLVED.

AFFIRMED.

All the Judges concur.

      . Since the validity of that provision in that judgment is not before us, by our silence we do not condone its use nor do we imply its constitutionality or legality, or the contrary.

      . Since no party raises an issue as to the legal effect of such a verbal order, we opt not to rule upon whether such procedure complies with A.R.C.P. rule 58.

      . We pretermit deciding this case upon the basis that the trial court thus had evidence before it which is not available in the record. Mayhan v. Mayhan, 395 So.2d 1022 (Ala.Civ.App.1981).


text:
    Ex parte Percy McGraw PITTS, III. (Re: Percy McGraw PITTS, III v. Corinne SUTTER, etc.).
    81-135.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    Frank M. WILSON v. Virginia H. WILSON.
    Civ. 2764.
    Court of Civil Appeals of Alabama.
    Oct. 21, 1981.
    Rehearing Denied Nov. 25, 1981.

      W. L. Chenault of Chenault, Chenault & Hammond, Decatur, for appellant.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
   BRADLEY, Judge.

This is a child custody case.

On June 26, 1980 the parties to this suit, Virginia H. Wilson, appellee, and Frank M. Wilson, appellant, obtained a divorce from the Morgan County Circuit Court. The divorce decree provided for a division of property between the parties, and granted permanent care, custody and control of the parties’ three minor children to the mother. The father was required to pay the sum of $270.00 every other week as child support, and was granted visitation privileges.

On November 4, 1980 the father filed a motion to modify the prior divorce decree, alleging that the parties’ fifteen year old daughter, Cynthia, had changed her residence to the residence of the father of her own volition. The petition requested the court to allow for Cynthia’s permanent change of residence, and to transfer custody of the two minor sons from the mother to the father. ’ The court entered a judgment on the motion, effective April 21, 1981, denying the father’s petition for modification on the ground that there was no material change in circumstances to justify such a modification, and finding the father in contempt for failure to pay child support and for harassing and threatening the mother. The decree also awarded the mother’s attorney a fee of $1,000.00.

The father filed a notice of appeal on April 21, 1981, and at the same time filed an application to fix a supersedeas bond. The bond was fixed in the amount of $7,500.00. On that same date the judge withdrew the decree fixing the bond, and entered a substitute decree, finding that:

[T]he judgment with reference to the custody, visitation and support of children is not subject to being superseded pending appeal. [Citation omitted.] The Court is also of the opinion that the provisions of the judgment relative to the personal belongings of the child, Cynthia Lynn Wilson, communications between the parties, and award of attorney’s fees are so closely interwoven with child custody, child support, and the best interest of the children, that there is no authority for superseding those portions of said judgment.

A supersedeas bond was allowed for that portion of the decree concerning the division of household furnishings. The father thereafter filed an application for a stay of judgment, which was also denied. The father appeals.

The appeal raises three issues to be decided by this court: (1) whether the trial court erred in refusing to admit evidence of the wife’s pre-divorce misconduct; (2) whether the trial court’s decree is contrary to the best interests of the children; and (3) whether the trial court erred in holding that an award of attorney’s fees could not be superseded on appeal.

Appellant’s first contention is that the trial court erred in refusing to hear evidence concerning the wife’s predivorce misconduct. Appellant sought unsuccessfully to introduce testimony at trial of the mother’s immoral conduct prior to the divorce as a ground on which to justify modification of the custody decree. Although facts disclosed to the court and considered by it in fashioning the original custody decree cannot be “rehashed” in a subsequent modification proceeding, facts existing at the time of the original divorce decree but not disclosed at that time may be considered by the court in a subsequent modification proceeding, even though these facts do not relate to a change of circumstances subsequent to the original divorce decree. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965); Roberson v. Roberson, 370 So.2d 1008 (Ala.Civ.App.1979).

The provisions of the original divorce decree were, in the present case, based upon the stipulations and agreement of the parties. Apparently, no testimony concerning the child custody issue was offered. Under such circumstances, facts relating to the parties’ pre-divorce conduct should be considered by the trial court in a modification proceeding. See Anonymous v. Anonymous, supra. The trial court’s refusal to admit any evidence concerning the parties’ prior conduct is clearly error. Accordingly, the trial court’s decree must be reversed.

Appellant next says that the trial court’s decree is contrary to the best interests of the children. In light of our decision on the first issue, we pretermit discussion of this contention, pending resolution of the above issue on remand.

The third allegation of error concerns the trial court’s denial of appellant’s application for a supersedeas bond pending resolution of the case on appeal. Appellant contends that the trial court erred in refusing to grant the application with regard to the award of attorney’s fees. We agree that the trial court erred in refusing to permit appellant to post a supersedeas bond on the ground that an attorney’s fee award cannot be superseded. It is clear that an award of attorney’s fees falls within that category of judgments which can be superseded on appeal. Hughes v. Hughes, 362 So.2d 910 (Ala.Civ.App.1978). Thus, the trial court’s order refusing the supersedeas bond request because the court was without authority to supersede an attorney’s fee award is erroneous. We must point out, however, that appellant has failed to follow the proper procedure for review of the denial of his application. When the trial court has denied an application for a supersedeas bond, the next step is for the moving party to file a motion for such relief with the appellate court in which the appeal is pending. Field v. Field, 382 So.2d 1132 (Ala.Civ.App.1980); Rule 8(b); A.R.A.P. No application for a supersedeas bond was filed in this court.

The trial court’s judgment is reversed for the refusal of the court to admit certain evidence, and the cause is remanded for a new trial.

Appellee’s motion for the award of an attorney’s fee on appeal is denied.

REVERSED AND REMANDED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


author: JONES, Justice.

text:
    Ex parte Virginia H. WILSON. Re Frank M. WILSON v. Virginia H. WILSON.
    81-238.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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