text:
    Betty SELLERS v. DOCTORS MEDICAL CENTER, d/b/a University Medical Center.
    Civ. 2785.
    Court of Civil Appeals of Alabama.
    July 22, 1981.

      William Prendergast, Montgomery, for appellant.
    Clifford W. Cleveland, Prattville, for ap-pellee.
   HOLMES, Judge.

Doctors Medical Center sued Betty Sellers claiming $4,961.11 in unpaid hospital bills. The trial court granted summary judgment in favor of the medical center.

Sellers appeals and we reverse.

The sole issue on appeal is whether the learned trial judge erred in granting the medical center’s motion for summary judgment.

The record shows that the medical center offered, in support of its motion, the pleadings, two sets of requests for admissions propounded by the medical center and answered by Sellers, and a variety of other documents purported to come from the medical center’s business records. The medical center did not offer any affidavits in support of its motion nor did it attempt to authenticate any of the documents offered as business records.

The party moving for summary judgment must clearly show that the other party could not prevail under any discernible set of circumstances and must show the absence of a genuine issue as to any material fact. Ragland v. Alabama Power Co., Ala., 366 So.2d 1097 (1978). The moving party must meet this burden by offering material in support of its motion which would be admissible in evidence. Morris v. Morris, Ala., 366 So.2d 676 (1978); Rule 56(e), ARCP.

In the instant case the documents offered by the medical center in support of its motion do not show that Sellers could not prevail under any discernible set of circumstances. Specifically, the documents purported to come from the medical center’s business records were not sworn to or properly authenticated. Those documents as offered would not be admissible in evidence. Salotti v. Seaboard Coast Line Railroad Co., 293 Ala. 1, 299 So.2d 695 (1974). Therefore, we find that the medical center has failed to properly support its motion as required by rule 56, ARCP, and that the trial court erred in granting summary judgment.

We also note that the case must be reversed for an additional reason. The medical center relies upon the requests for admissions and answers to show that it is entitled to summary judgment. However, those papers must be viewed in a light most favorable to the nonmoving party. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979).

When viewed in that light those papers raise a genuine issue of material fact. Specifically, the medical center in its complaint alleged that Sellers owed it $4,961.11. Sellers denies that she owed that amount and denied that the hospital charges were reasonable and necessary. The medical center in its requests for admissions asked Sellers to admit that she never registered any complaints with the medical center regarding the hospital charges. Sellers denied this allegation.

Sellers, in response to another request for an admission, denied that she agreed to pay $834 per month on the account. Stated differently, there was a genuine issue of material fact as to the amount due the medical center and as to the method of payment. See, Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Under rule 56, ARCP, summary judgment may not be granted when there is a genuine issue of material fact before the trial court. Vasko v. Jardine, 346 So.2d 962 (Ala.1977); Lanton v. Holly Realty Co., 56 Ala.App. 78, 319 So.2d 276 (1975); Rule 56, ARCP.

We finally note that the medical center through able counsel contends that summary judgment was proper in this case because Sellers failed to present any evidence in opposition to its motion. However, where the evidence in support of the motion for summary judgment does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. Vasko v. Jardine, supra.

The case is due to be reversed and remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Brenda Joyce DOWDLE v. Samuel Wesley DOWDLE.
    Civ. 2436.
    Court of Civil Appeals of Alabama.
    July 29, 1981.
    Clifford W. Hardy, Jr., Bessemer, for appellant.
    Ralph L. Armstrong, Bessemer, for appel-lee.
   HOLMES, Judge.

This is a child custody case.

The trial court divorced the parties on the ground of incompatibility and awarded custody of their two minor children to the father. The mother appeals from the custody award and we affirm.

There are two issues on appeal: (1) whether the trial court abused its discretion in awarding custody of the children to the father; and (2) whether certain of the court’s findings of fact are unsupported by the evidence.

The record in this case was prepared by the trial judge, pursuant to rule 10(d) of the Alabama Rules of Appellate Procedure. The record is not a paragon of clarity. However, the record and the briefs on appeal reveal the following:

The parties were married for approximately thirteen years. They have two daughters, Elaine, age seven, and Ashley, age six.

The mother in this case has had some emotional difficulties. She testified that she was treated by several psychiatrists in 1978 and 1979. At one time, she took large amounts of medication as treatment for her psychiatric problems. She also spent about a month in a hospital undergoing treatment for depression in 1979.

There is evidence in the record of some indiscretions on the mother’s part. We do not deem it necessary to discuss them in detail. Suffice it to say that the mother had a male friend from out of town who visited her several times in 1978 and 1979. In fact, he visited in the parties’ home on at least one occasion while the father was hospitalized.

The father in this case is employed as a pipefitter at U.S. Steel Corporation, where he has been employed for fifteen years. He is also a member of the Alabama National Guard. There is no evidence to suggest that he is not a fit and proper person to have custody of the two children.

I

As stated above, the first issue on appeal is whether the trial court abused its discretion in awarding custody of the children to the father.

Child custody is a matter addressed to the discretion of the divorce court. Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979). The exercise of that discretion will not be reversed except for abuse or plain error. Rohrer v. Rohrer, 373 So.2d 331 (Ala.Civ.App.1979).

As we have often stated, the supreme concern in a child custody dispute is the best interest of the child. Ashley v. Ashley, 383 So.2d 861 (Ala.Civ.App.1980). Although the sex and age of the child are matters to be considered in determining the best interest of the child, the weight to be given such facts in each case is for the discretion of the trial judge. Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.), cert. denied, 376 So.2d 1101 (Ala.1979).

Another factor to be considered is the emotional and mental health of the mother. See, Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977). It is not an abuse of discretion to award custody of a child to the father where the mother has a well established history of emotional difficulties. Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980).

The mother in this case has been treated by psychiatrists at least since 1978. She has taken large does of medication as treatment for her condition, and has even spent a month hospitalized for treatment of depression.

In view of the above, with particular emphasis on the mother’s history of mental and emotional difficulties, we cannot say that the trial court abused its discretion in awarding custody of the children to the father.

II

We note that the mother, through counsel, also alleges error on the part of the trial judge with regard to two of his findings of fact. The mother contends that the following findings are unsupported by the evidence: (1) that the mother intended to remove the children from Alabama; and (2) that such removal would not be in the best interest of the children.

The findings of the trial court are conclusive on appeal if there is any legal evidence or reasonable inference therefrom in support of those findings. LaPoint v. Barton, 57 Ala.App. 352, 328 So.2d 605 (1976). Both of the findings contested by the mother are supported by the evidence.

As stated above, the mother contends that the trial judge erred in finding the mother intended to remove the children from Alabama. We disagree. The record clearly reflects the mother’s testimony that she intended to return to South Carolina when the divorce decree became final, regardless of which party was given custody. Based on that testimony, the court could have concluded, as it apparently did, that the wife intended to take the children to South Carolina with her if she were awarded custody.

The mother also contends that the court erred in finding that removing the children from Alabama would not be in their best interest. As stated above, one factor to be considered in a child custody case is the emotional and mental health of the mother. Quinn, supra; Marr, supra. The evidence in this case shows that the mother has had emotional difficulties for at least several years. In addition, the mother had testified that she planned to leave Alabama when the divorce became final. Based on that evidence, the trial court could have concluded, as it apparently did, that the mother planned to leave Alabama and that it would not be in the best interest of her children to allow the mother to take them with her.

In discussing the second issue as presented by the mother, this court should not be understood as suggesting that even if the “findings” were unsupported by the evidence, reversal would be required.

As indicated, the evidence supports the trial court’s conclusion that the best interests of the children are served by awarding custody to the husband. Hence, this case is due to be affirmed.

AFFIRMED.

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

      . The “tender years” doctrine is no longer a controlling factor in the determination of custody. See, Devine v. Devine, 398 So.2d 697 (Ala.1981). However, as we read the Devine case, the “best interest” standard still applies.


text:
    Rosa Mae JULIAN v. Charles JULIAN.
    Civ. 2747.
    Court of Civil Appeals of Alabama.
    July 29, 1981.

      Collier Carlton, Montgomery, for appellant.
    John M. Holloway, Jr., Montgomery, for appellee.
   HOLMES, Judge.

This is a child custody case.

The Department of Pensions and Security filed a petition for temporary custody of two minor children, Charles, Jr., and Archie Julian. The father of Charles filed a petition for modification of a prior divorce decree to obtain custody of that child. These petitions were consolidated for trial and the trial court, after an ore tenus hearing, awarded the department temporary custody of Archie and awarded the father custody of Charles, Jr.

The mother appeals and we affirm.

The mother first contends that the trial court erred in granting the father’s petition for modification.

At the outset, we note that the trial judge who hears the evidence ore tenus is in the best position to ascertain whether there has been a change in circumstances which requires a custodial change, and he will not be reversed on appeal save for plain and palpable error and abuse of discretion. Taylor v. Taylor, Ala.Civ.App., 387 So.2d 849 (1980).

In the instant case there is ample evidence to support the trial court’s decision with regard to the custody of the child, Charles. This evidence need not be set forth in detail. It is sufficient to note that the mother has, since the divorce, been twice admitted to Bryce Hospital with a diagnosis of “Schizophrenia, Paranoid Type.” With these facts in mind, we cannot say that the trial court was plainly wrong in finding that there had been a change in circumstances or that he abused his discretion by awarding custody of the child to the father.

The mother next contends that the trial court erred in sustaining objections to questions concerning the paternity of the child, Charles, Jr.

In stating his objection, counsel for the father pointed out that the issue of paternity had been judicially determined in the prior divorce proceeding. The record indicates that the divorce decree was before the trial court. Once there has been a judicial determination of paternity the parties are precluded from disputing the paternity of the child in subsequent proceedings. Stewart v. Stewart, Ala.Civ.App., 392 So.2d 1194 (1980), writ denied, Ala., 392 So.2d 1196 (1981). We find that the trial court did not err in sustaining counsel’s objections.

In any event, we find that any error in this regard would have been harmless for there is ample evidence to support a finding that the petitioner was the child’s father.

The mother finally contends that the trial court erred in finding Archie, the youngest child, to be a dependent child within the meaning of § 12-15-l(10)k., Code of Ala.1975.

That Code section defines a dependent child as one whose “parents .. . are unable to discharge their responsibilities to and for the child.”

In the instant case, there is evidence that the mother was involuntarily committed to Bryce Hospital. At the time of trial she had been released on a trial basis and her prognosis was listed as guarded. The Bryce staff psychiatrist recommended that she follow through with appointments at the Montgomery County Mental Health Center for medication and treatment. Stated differently, there was evidence from which the trial court could conclude that the mother had not yet recovered from her illness and that she was not yet fully capable of caring for her child.

We find no error in this regard.

In addition, we would note that the trial court awarded the department temporary custody and provided for visitation by the mother and for.a subsequent administrative review of its decision. It is clear that the trial court has created an atmosphere that protects the interests of all of the parties, including the child, and one that will enable the mother to work toward regaining custody of her child.

The case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Paul PHILLIPS v. James FOGG.
    Civ. 2869.
    Court of Civil Appeals of Alabama.
    July 29, 1981.

      William J. Baxley and Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Huey D. Mclnish and Alan C. Livingston of Lee & Mclnish, Dothan, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment declaring the rights of the parties to a lease of property used as a gasoline service station.

The facts show that James Fogg is the owner of property on which is located a gasoline service station. Fogg orally leased the property to Paul Phillips. Subsequently, Phillips decided that he wanted a written lease to the property so he engaged an attorney to prepare such a lease. The lease, in pertinent part, provides:

Term of lease. Said lease is to commence on or about the 11th day of October, 1977 and continue for a period of three years. Lessee agrees to pay the stated sum of $275.00 per month due by the 27th day of each month and each month thereafter as consideration and rental for said lease. In consideration of Lessee’s payment of the stated $275.00 per month for the initial three year term of this lease ending on November 1, 1980, Lessor hereby covenants and agrees and grants Lessee a first option to renew said lease for a first additional three year period commencing on or about November 1, 1980 and ending on November 1, 1983 for the stated sum of $275.00 per month. In consideration of Lessee’s payments of $275.00 per month for the first additional three year period from November 1, 1980, to November 1, 1983, Lessor hereby covenants, agrees and grants to Lessee the first option to renew said lease for a second additional three year period commencing November 1, 1983 and ending November 1, 1986 for the stated sum of $275.00 per month. [Emphasis added.]

At the end of the first term, Fogg informed Phillips that he did not want to lease the property for another term. Fogg said he intended to operate the station himself.

Fogg filed a declaratory judgment action to determine his rights under the lease. After an ore tenus hearing the trial court construed the lease phrase “Lessor hereby . . . grants Lessee a first option to renew said lease for a first additional three year period” to grant to Lessee a conditional option to renew for another term. Phillips appeals and contends here that the lease gave him an unconditional right to lease the premises for another three year term and that the trial court erred in holding that the lease granted him only a conditional right to lease for an additional term. We disagree.

The trial court found that the lease provision in question was ambiguous and admitted parol testimony to assist it in ascertaining the intention of the parties as to their use of the questioned term in the lease. Phillips contends that the phrase in question is not ambiguous and the trial court erred in admitting parol testimony to explain it.

It is the duty of the trial court to ascertain whether a contract is ambiguous in the light of its terms. Miles College v. Oliver, Ala., 382 So.2d 510 (1980). And, when the contract is found to be ambiguous, parol evidence is admissible to ascertain the true intent of the parties. Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975).

As noted the trial court determined the contract was ambiguous and admitted the testimony of the parties to explain their intentions in using the phrase in question.

The trial court found that the use of the term “first option to renew” in the lease agreement created such uncertainty as to the rights of Phillips to renew, /. e. did Phillips have a conditional or an unconditional right to renew the lease, that it was required to find the contract ambiguous. Upon so finding, the court then admitted parol testimony of the parties to assist it in determining the use intended by the parties of the phrase in question.

The record reveals that Fogg made it clear to Phillips that at the end of the original three year term should he (Fogg) wish to lease the premises again, Phillips would have the right of first refusal as to leasing the premises. Phillips denied that Fogg made any such statement about the renewal of the lease. Prior to the end of the original term, Fogg told Phillips that he would not lease the premises again, that he (Fogg) would operate the station himself.

We hold, therefore, that the trial court did not commit reversible error by admitting testimony of the parties that would tend to explain their intentions in using the phrase in question in their agreement.

After concluding that the phrase in question was ambiguous and then admitting pa-rol testimony of the parties to assist it in deciding what the phrase meant, the trial court held that the phrase meant that Phillips had a conditional right to renew the lease, i. e., he would have the right to renew if Fogg desired to lease the premises for another term. And, as stated by the trial court, had Fogg wished to give Phillips an unconditional right to renew he would not have used the word “first.”

The proper meaning to be accorded the use of the phrase in question in a lease agreement is one of first impression in this state but not in other jurisdictions. See Annot., 6 A.L.R.2d 820 (1949).

In Forma v. Moran, 273 App.Div. 818, 76 N.Y.S.2d 232 (1948), the New York appellate court had the following to say about the term “first option” as it is used in a lease:

The lease instrument provides, “It is further understood and agreed that the tenant shall have the first option to renew this lease for a further term at the expiration thereof, at a renewal to be then agreed upon.” The phrase, “first option to renew,” grants a conditional option, meaning that the tenant may renew if the landlord again leases the premises.

See also Landowners Co. v. Pendry, 151 Kan. 674, 100 P.2d 632 (1940).

The trial court said that its decision to hold the lease term to be conditional rather than unconditional was based on the testimony of Fogg and the fact that Phillips, by his attorney, drafted the lease agreement and used the term in question therein.

Factual findings made by the trial court sitting without a jury have the effect of a jury verdict and are accorded a presumption of correctness on appeal which will not be disturbed unless plainly erroneous or manifestly unjust. Johnson-Rast & Hays, Inc. v. Cole, supra. No such error is discerned here.

Supportive of our conclusion that the trial court’s findings are correct is the fáct that Phillips had his attorney prepare the lease in question; thus any ambiguity in the contract must be attributed to Phillips. Ambiguous contracts are construed more strongly against the one who drew them than the one who did not participate in the drafting. International Harvester Co. v. Bostick’s International, Inc., Ala.Civ.App., 365 So.2d 84 (1978).

For the above reasons the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Caroline N. WILLIAMS v. Truman WILLIAMS.
    Civ. 2603.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.

      Ralph N. Hobbs and Roy Thrash, Jr. of Hobbs & Hain, Selma, for appellant.
    O. S. Burke, Jr. of Burke & Barnes, Marion, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial judge divorced the parties, awarded custody of their minor child to the husband, and awarded $10,000 as alimony in gross to the wife. The wife appeals and we affirm.

With the attendant presumptions afforded the trial court, the record reveals the following facts.

The parties were married in 1968. The wife was thirty-nine and the husband was fifty-five at the time of marriage. They have a son, Truman Williams, Jr., who was ten at the time of trial.

Prior to the marriage the wife lived with her mother in their jointly owned home in Mountain Brook. The wife was employed by Birmingham-Southern College as a private piano teacher. She also had income from a trust fund established by her aunt. At the time of the marriage the wife had debts of approximately $6,000.

The husband was a school teacher in Marion, Alabama. During the first year of their marriage the husband continued to teach and live in Marion and the wife continued to teach and live in Birmingham. They spent weekends together.

After the child was born, the family was still unable to establish a permanent home. Sometimes the parties were together, sometimes they were not. The wife and child apparently remained in Birmingham most of this time.

In 1972, the husband retired and moved to Birmingham to be with his family. However, in 1974 the wife sold her home in Birmingham and the family moved into a home in Marion that the husband had inherited.

After moving to Marion, the wife stored her belongings in the second floor of the husband’s home in such a manner as to render that portion of the house unusable. At the time of trial she had still not unpacked most of her boxes. She also apparently had no interest in keeping the rest of the house clean. The wife did almost no cooking and bought only “junk” foods when she went grocery shopping. In fact, the husband did the vast majority of the housekeeping, cooking, and washing clothes.

The husband has made efforts to get his son involved in such community activities as boy scouts, the church, and swimming. The wife would not participate in these activities.

She spent much of her time in bed, eating or reading. When the wife was not at home in bed, she was gone in her automobile, rarely telling her husband where she was going or when she would return. She evidently drove a good distance, however, as she ran up large bills on her gasoline credit cards.

Finally, in 1980, the husband filed for divorce. A court-appointed expert, Dr. Tom Vaughn, was retained to assist the court in making its determination of child custody. Dr. Vaughn is a child psychologist. Based on interviews with the husband, the wife and the son, and on psychological testing which he administered, Dr. Vaughn prepared a report to submit to the court. Dr. Vaughn found that both parties have adequate parenting skills and that both are capable of providing for the child’s physical and psychological needs.

The record reveals that the parties have not accumulated a great deal of wealth. In fact, the parties’ only major asset is the husband’s home in Marion.

The husband’s salary during the marriage was never more than $8,000 a year. He retired from teaching in 1972 and remained unemployed for four years. At the time of trial he owned mutual fund stock worth about $4,500 and certificates of deposit worth about $32,000.

The wife had unearned income of approximately $12,600 per year at the time of trial. She estimated that she could earn an additional $6,000 if she were teaching.

The wife, through able counsel, raises three issues on appeal: (1) whether the trial judge erred in awarding custody of the parties’ son to the husband; (2) whether the trial judge erred in awarding $10,000 as alimony in gross and whether he erred in failing to make a division of property; and (3) whether the trial court erred in awarding the wife only $5,000 in attorneys’ fees.

The wife argues on appeal that the trial judge erred in awarding custody of the parties’ son to the husband. The wife notes that the son expressed a desire to live with the wife. She also notes that Dr. Vaughn found that a “strong psychological bond” exists between the wife and son and that the wife is better able to respond emotionally to the child than is the husband. The wife argues that these facts require reversal of the custody award.

It is well-settled that when testimony is taken ore ten us, there is a presumption that the trial court’s ruling with regard to child custody is correct. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975). We cannot reverse such a trial judge after personally observing and hearing the evidence unless the judgment is so unsupported by the evidence that it constitutes an abuse of judicial discretion, and is therefore clearly and palpably wrong. Ashley v. Ashley, 383 So.2d 861 (Ala.Civ.App.1980).

In child custody cases especially, the perception of an attentive trial judge is of great importance. Fassina v. Fassina, 401 So.2d 113 (Ala.Civ.App.1981). The weight to be afforded to the evidence is a matter within the exclusive prerogative of the trial court. Fassina, supra.

While it is true, in the case before us, Dr. Vaughn found a strong psychological bond exists between the wife and son, he also found that awarding custody to the husband would not necessarily destroy that bond. He also found that the husband has adequate parenting skills and is capable of providing for the child.

The trial judge was in the position to hear and weigh the testimony in this case. An award of custody to the husband clearly is not unsupported by the testimony to the effect that the husband has adequate parenting skills and is capable of providing for the child.

With the evidence noted above in mind, we cannot say that the trial court abused its discretion in awarding custody to the husband.

The wife next contends that the trial court erred in granting her only $10,000 as alimony in gross and that the trial court erred in failing to make a division of property.

The trial judge has great discretion in awarding alimony in gross and in making a division of property. Weeks v. Weeks, 373 So.2d 848 (Ala.Civ.App.1979). An award of alimony in gross may compensate the wife for her inchoate marital rights and also represent a division of the fruits of the marriage where liquidation of the parties’ assets is not practicable. Hawkins v. Hawkins, 346 So.2d 967 (Ala.Civ.App.1977). And the award of alimony in gross should not “cripple” the husband by compelling him to sacrifice his property. Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966).

In the case before this court the only major asset owned by the parties is the husband’s home. The husband inherited that home from his father; it has been in his family for many years. In addition, the husband’s eighty year old sister lives in an apartment in the back of the home. In light of these facts, and further noting the award of custody to the husband, it would hardly be practicable to sell the home. The trial court awarded the wife alimony in gross rather than ordering a sale of the husband’s home and a division of the proceeds.

We now turn to the issue of whether the $10,000 award of alimony in gross was insufficient. In determining an award of alimony in gross the trial court should consider certain factors, such as: future prospects of the parties, age, health, station in life, and length of marriage. Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App.), writ quashed, 350 So.2d 1045 (Ala.1977).

The record in this case reveals that the husband never made more than $8,000 per year during the marriage and that he is now past retirement age. Although the husband does have stock and certificates of deposit worth about $37,000, his future prospects are limited by his age. We also note that the court’s awards of alimony in gross and attorneys’ fees will reduce the husband’s assets by $15,000.

The wife, on the other hand, has annual income of about $12,000 and could earn $6,000 more if she were teaching. She was only approximately fifty-two at the time of trial. There is no evidence in the record to suggest that she is unable to teach.

With the above in mind and with particular emphasis on the wife’s present income and her ability to increase her income, we cannot say that the trial court erred in its award of alimony in gross or that it erred in failing to make a division of property more favorable to the wife.

The last issue on appeal is whether the trial court erred in awarding the wife only $5,000 in attorneys’ fees.

An award of attorneys’ fees is within the sound discretion of the trial court and will not be reversed except for palpable abuse of discretion. Cozad v. Cozad, 372 So.2d 1322 (Ala.Civ.App.1979). One of the factors to be considered in awarding an attorney’s fee is the earning capacities of the parties. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977).

As stated above, neither of the parties in the case before us has accumulated great wealth. But, in terms of annual income and future prospects, the wife is better off financially than is the husband. Consequently, we cannot say that the trial judge erred in awarding the wife only $5,000 in attorneys’ fees.

This case is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Gerald Bruce MURPHY v. Linda Gayle Murphy QUINN.
    Civ. 2611.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    D. Lee Hodges, Birmingham, for appellant.
    William Dowsing Davis, III, Birmingham, for appellee.
   HOLMES, Judge.

This is a child custody case.

The father filed a petition to modify the child custody provisions of a divorce decree. The trial court after an ore tenus hearing denied the father’s petition and ordered the mother to retain custody of the child.

The father appeals, contending the trial court abused its discretion by denying his petition for modification. We find no abuse and affirm.

The record in the instant case consists of a statement of evidence prepared pursuant to rule 10(d), A.R.A.P. This statement of evidence contains very few pertinent facts. The most that can be gleaned from the statement is that neither party is a model parent. Specifically, there is evidence that the mother has at least on one occasion attempted suicide and that the father has a criminal record.

When a party to a divorce seeks modification of the child custody provisions of the original decree, he must show a material change in circumstances which adversely affects the welfare of the child. The trial judge who hears the evidence ore tenus is in the best position to ascertain whether there has been a change in circumstances which requires a custodial change and he will not be reversed on appeal save for plain and palpable error and abuse of discretion. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980).

This court in determining whether there has been an abuse of discretion can only look to the record for the evidence and cannot consider evidence outside the record. The alleged abuse must be affirmatively demonstrated by the record before us. Mauldin v. Mauldin, 399 So.2d 858 (Ala.Civ.App.1981).

As indicated, the record in the instant case contains very little pertinent evidence. As stated above, the most that can be gleaned from it is that neither party is a model parent. With only this limited evidence before us, we cannot say that the trial judge abused his discretion in denying the father’s petition for custody. To do so would be to substitute our own judgment for that of the trial court. This the law will not allow. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The father also contends the trial judge abused his discretion by failing to give proper consideration to a report prepared by the Department of Pensions and Security. This report recommended that custody be awarded to the father.

The trial judge may receive oral and written reports from the Department of Pensions and Security and he may rely upon them to the extent of their probative value. See, Kelley v. State Dept. of Pensions & Security, 366 So.2d 736 (Ala.Civ.App.1979). But, the trial judge is not bound by any recommendation contained in such a report.

We find no abuse of discretion in this regard.

Finally, the father contends the trial judge was not qualified to try the instant case. We find nothing in the record to indicate that this issue was raised below. The issue of the trial judge’s qualifications cannot be raised for the first time on appeal. Wambles v. Coppage, 333 So.2d 829 (Ala.Civ.App.1976).

The case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Clarence H. SANDERS v. Joe B. BROADWATER, Administrator of the Alabama Alcoholic Beverage Control Board.
    Civ. 2724.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    Jack W. Smith of Smith & Smith, Do-than, for appellant.
    Byrd R. Latham of Patton, Latham, Legge & Cole, Athens, for appellee.
   WRIGHT, Presiding Judge.

Clarence Sanders was dismissed from his employment as store clerk with the Alabama Alcoholic Beverage Control Board (ABC). He appealed to the State Personnel Board (Board), which affirmed the dismissal. He then filed petition for writ of certio-rari in the Montgomery County Circuit Court. He appeals from the circuit court’s order affirming dismissal.

Section 36-26-27, Code 1975, authorizes an appointing authority — here the Administrator of the ABC — to dismiss an employee whenever he considers the good of the service will be served thereby, for reasons stated in writing and served on the employee. Sanders was notified of his dismissal by letter from the Administrator citing unsatisfactory attendance, unsatisfactory performance of duties and a bad attitude toward his supervisor as reasons for dismissal. An incident, wherein Sanders allegedly swore at his supervisor and called him a “dog,” was related in the letter. The dismissal was upheld by the Board and the circuit court. On appeal Sanders claims dismissal was not supported by the evidence and that the letter was insufficient to apprise him of the reasons for his dismissal.

On petition for writ of certiorari the circuit court was, as is this court, limited in its review of quasi judicial acts of administrative officers and boards, such as the State Personnel Board. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148 (1944); Phelps v. Public Service Commission, 46 Ala.App. 13, 237 So.2d 499 (1970). The limited function of that review is to determine whether the act in question (dismissal) was supported by any substantial evidence, or whether the findings and conclusions are contrary to the uncontradicted evidence, or whether there was an improper application of the findings viewed in a legal sense. Banker, supra; Phelps, supra. Stated differently for purposes of the instant case, if we find the actions of the ABC and the Board, in dismissing Sanders, supported by any evidence, we must affirm. The evidence reveals the following:

Sanders was hired in March 1978. Problems with absences began almost immediately. He was absent a total of some thirty days in his first three months of employment and on May 30, 1978, was notified of dismissal by letter. For some reason, he was later told to disregard the first notice of dismissal, was retained with probation extended and subsequently given a “satisfactory” rating by the Board. Upon transfer to another store, he failed to report for work unexplainedly for one week. The unusual number of absences continued and, as the testimony of Sanders’ own witness indicates, problems with efficiency at the store resulted. The evidence was that Sanders’ many absences placed an increased burden of work upon the store’s other employees, some of whom had to assume his duties though not trained therefor. Sanders’ supervisor stated that he was unable to prepare a work schedule effectively because “I never did know when he (Sanders) was going to be out.” Difficulty in running the already minimally-staffed store resulted. There was also testimony that Sanders did not perform his duties satisfactorily when present. Bookkeeping problems resulted from his tendency to throw away “tickets” used to record the store’s liquor sales.

The particular incident charged, of disrespect for his supervisor by name calling was shown to have occurred. The defense of mental incapacity at the time was apparently not convincing to the court. There was substantial and sufficient evidence to support the dismissal. The “satisfactory” rating given Sanders by a previous supervisor months prior to his dismissal is not determinative of grounds for dismissal. Thomas v. Ward, 225 F.2d 953 (D.C.Cir.); cert. denied, 350 U.S. 958, 76 S.Ct. 348, 100 L.Ed. 833 (1955). See, Hilyer v. Blackwell, 377 So.2d 1090 (Ala.Civ.App.), cert. denied, 377. So.2d 1092 (Ala.1979).

We find the other issue raised, that the charges listed in the letter of dismissal were so general as to prevent Sanders from preparing a defense, to be without merit. The case cited as supportive, County Board of Education of Clark County v. Oliver, 270 Ala. 107, 116 So.2d 566 (1959), fails to persuade us otherwise. The charges were sufficient in this instance to provide adequate opportunity for preparation of a defense. The defense prepared on behalf of Sanders was an excellent one and addressed squarely the deficiencies put forth by the Administrator.

This case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Arie C. STEEL v. Barbara Ann STEEL.
    Civ. 2748.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.

      John L. Sims, Hartselle, for appellant.
    Edwin D. Breland, Decatur, for appellee.
   WRIGHT, Presiding Judge.

The wife filed suit for divorce on the ground of incompatibility. The husband answered and crosscomplained. Hearing was set at a time when other cases were also to be heard. The court inquired if any of the pending matters could be settled. Counsel and parties then discussed settlement and apparently reached a consensus. They returned to the courtroom, orally advised that they had settled and gave the terms of the settlement. (This is argued in brief — there is no record of it except the statement in the judgment that the matter was submitted upon agreement and stipulations of the parties and deposition of the wife.) There is a written deposition of the wife taken before a commissioner on March 9,1981. That is the date of the hearing and the agreement allegedly made. The judgment was entered on March 10, 1981. It is lengthy and explicit, dividing property, real and personal, directing custody of two children and ordering payment of support. (It is so explicit that it clearly was derived from information not furnished either by the pleadings or the deposition.) We can but assume such information was made known to the court in some manner.

On March 19, the husband moved for a new trial, alleging that he did not enter into any agreement or stipulation as stated in the judgment and did not authorize his attorney to make any agreements, that he had not received a hearing on the merits nor had opportunity to refute the wife’s deposition, that the judgment was unfair. The motion was filed by new counsel. His affidavit was attached to the motion.

The court entered an order, dated March 23, setting aside its judgment for good cause shown and setting a new trial on the merits for March 30, 1981.

On March 27, the wife moved to set aside the order granting a new trial. On the same date, the court entered an order setting the motion for new trial down for hearing on April 1. There was no mention of the previous order setting aside the judgment and granting a new trial. Defendant’s motion for new trial was denied on April 1, 1981.

The first issue charges error in entering judgment without agreement or testimony.

There is no basis for this charge because there is no record of what did occur, except the court’s judgment stating there was agreement in open court and deposition was properly taken before a commissioner without objection of record. In the absence of a record, this court must assume events transpired as stated by the judgment. Stephens v. Central of Georgia R. Co., 367 So.2d 192 (Ala.1978); Smith v. York, 278 Ala. 508, 179 So.2d 87 (1965).

The other issue is whether there was error in failing to hold a hearing on the motion for new trial as provided by Rule 59, A.R.C.P.

Again we become embroiled in the absence of a record. However, it is conceded in argument that there was no hearing allowed on April 1 on the motion for new trial. The trial judge merely notified counsel that he was denying the motion. Rule 59(g) requires that a post trial motion not be ruled on until the parties have had an opportunity to be heard thereon. Rule 6(d) provides that notice of the hearing on such motion must be served not later than five days before the time set for hearing. Both rules were violated in this case. For such error the ruling on the motion for new trial must be set aside and the cause remanded for proceedings in accordance with the Rules of Civil Procedure.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: SCRUGGS, Retired Circuit Judge.

text:
    Laurie K. MACK v. James Sephus MACK.
    Civ. 2686.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellant.
    Gary C. Huckaby of Smith, Huckaby & Graves, Huntsville, for appellee.
   SCRUGGS, Retired Circuit Judge.

The issue involves the judicial discretion of the trial court in the award of periodic alimony and in the division of property as to divorce litigation. We affirm.

The wife, who has again appealed, was successful in her first appeal of this case. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980). Therein the trial court’s original judgment was reversed and remanded for that court to reconsider and redetermine periodic alimony and the division of property. No additional evidence was presented to the trial court after the first appeal; hence, the facts and law as were established and set forth in this court’s opinion in the first Mack case are still applicable and appropriate and will not be recopied herein.

After remand the trial court amended its original judgment in the following respects: (a) alimony was increased from $200 per month for one hundred twenty-one months, but it terminated upon her death or remarriage, to “$400 per month until her death, remarriage, or the further orders of the court;” (b) the wife was awarded the home of the parties in its entirety, subject to the outstanding mortgage thereon, which the wife was ordered to assume and pay. The previous evidence was that the home was worth about $80,000 and that, in January 1979, approximately $26,000 was due on its mortgage, payable by $215.60 monthly installments; and (c) the wife was further granted the household furniture and furnishings which were not acquired from the husband’s family, her part being appraised at $12,000.

By the original divorce judgment, items awarded to the wife in (b) and (c) above had been ordered sold and the net proceeds divided equally between the parties.

The critical problem is whether the trial court again abused its discretion as contended by the wife’s most learned, respected and competent counsel.

Where the trial court orally hears the evidence, the award of property and alimony in its judgment is presumed to be correct, and we may not reverse unless there is a palpable abuse of that court’s discretion. Mack v. Mack, supra. “ ‘Palpable’ means ‘[ejasily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.’ ” Snow v. Snow, 393 So.2d 1020 (Ala.Civ.App.1981). There exists no palpable abuse of trial court discretion when the collective minds of an appellate court are uncertain and waver in balance as to whether the award of alimony and/or the division of property by the trial court was fair and equitable according to the nature of the case after a due consideration of all of the appropriate factors. Here, we are left in that state of uncertainty and it is not now easily perceptible, plain or obvious that the trial court was in error in rendering the latest judgment. Therefore, since we are not authorized to substitute our judgment for that of the trial court, we are required to affirm. There was no palpable abuse of discretion by the trial court.

The circuit court granted the husband’s motion that the record on this appeal be supplemented by adding to the record all proceedings occurring up to February 10, 1981, when the judgment appealed from was rendered and entered. The wife has moved that the supplemental record be stricken. We overrule her motion; however, since nothing appearing in that supplemental record is concerned with either periodic alimony or a just division of the property, that record had no effect, either pro or con, upon our decision on this appeal.

The wife’s request for attorney’s fee on 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.

AFFIRMED.

All the Judges concur.


text:
    V. Diane MORGAN v. Judge George BLACK et al.
    Civ. 2689.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.
    Judy A. Newcomb, Dothan, for appellant.
    No brief for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a habeas corpus case concerning the validity of a juvenile court judgment and the custody of two minor children.

On April 18, 1980, the paternal grandmother instituted dependent children proceedings in the juvenile court. The mother of the children, on October 24, 1980, filed these proceedings in the circuit court contending for their custody and seeking that a writ of habeas corpus, directed to the judge of the juvenile court and to the grandmother, should be issued for various alleged reasons, including the following:

(a) The issuance of the initial complaint was done by the juvenile judge without proceeding through an intake officer.

(b) The juvenile court did not hold a hearing within 72 hours of the filing of the dependency petition or complaint.

(c) The Department of Pensions and Security was not notified when the dependency petition was filed.

(d) The placement of the children violated § 12-15-61, Code (1975).

(e) The grandmother was not exercising control of the children.

(f) The juvenile court had not acted upon motions of the mother nor had it rendered a final judgment in the case.

The defendant’s answers were several in nature, but included a response that the juvenile judge rendered a final judgment on December 5, 1980, which was adverse to the mother, and that the remedy of the mother was by appeal, not by habeas corpus.

Even if we accept as true the alleged violations of the code and/or various rules, the matters complained of were procedural violations of such a nature that they did not render the final judgment of the juvenile court to be void. All such issues could and should have been raised by appeal not by habeas corpus. In that regard, we are not apprised by the record as to whether or not an appeal was taken by the mother from the final judgment of the juvenile court to the circuit court. Habeas corpus may not be utilized as a substitute for an appeal. 11 Ala.Digest, Habeas Corpus key 4.

The circuit court entered its judgment on December 30,1980, after an ore tenus hearing on December 11, 1980.

At the conclusion of that hearing, the trial court aptly called attention to the fact that these particular proceedings had a dual nature since they, first, attacked the judgment of the juvenile court and, second, sought custody of the children. The court stated that it would then rule only on the procedural aspects concerning the validity of the juvenile judgment, but that, as to the child custody aspect, the case would be continued to a later date for a full evidentiary hearing thereon. Accordingly, the December 30 judgment denied the petition for a writ of habeas corpus, ordered that the December 5 judgment of the juvenile court “remain in full force and effect pending a final hearing on the merits of this cause” (emphasis supplied), and required the Department of Pensions and Security to make an immediate investigation of the homes of the mother, father and grandmother, and that they make an immediate report to the trial court.

Therefore, the judgment in this case is not final, and it will not support this appeal, which must be dismissed. Goza v. Everett, 365 So.2d 658 (Ala.1978); A.R.C.P., rule 54(b).

It is only out of deference to learned counsel for the mother, and in order to possibly prevent another appeal on those issues, that we responded by dicta to her contentions pertaining to that aspect of the case decided by the circuit court concerning the validity of the judgment of the juvenile court.

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

APPEAL DISMISSED.

All the Judges concur.


text:
    Atha L. HOWELL v. ALABAMA STATE TENURE COMMISSION; Paul R. Hubbert, Ex Officio Chairman, Alabama State Tenure Commission; et al.
    Civ. 2717.
    Court of Civil Appeals of Alabama.
    Aug. 19, 1981.

      Gary E. Atchison, Montgomery, for appellant.
    Mary Hurm Mantiply of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   BRADLEY, Judge.

This is a teacher tenure case.

The Board of School Commissioners of Mobile County notified Atha Lee Howell, a tenured teacher, of the proposed cancellation of her teaching contract for the remainder of the 1979-80 school year. This notice followed a recommendation of the teacher’s principal, the superintendent, and the Central Appeals Committee that Howell’s contract be terminated due to her insubordination in refusing to attend a fall enrichment program.

A hearing took place on February 13, 1980 before the School Board to consider the charge. After due consideration, the School Board decided in favor of cancelling Howell’s contract on the ground of insubordination.

Thereafter, Howell appealed the decision of the School Board to the Alabama State Tenure Commission. The Commission affirmed the School Board’s action on March 20, 1980. Howell then petitioned the Mobile County Circuit Court for a writ of mandamus which was denied. Howell thereafter appealed to this court.

The record reveals the following facts. Howell worked as a tenured teacher at W. H. Council School. Howell’s principal, Al-eñe Howard, periodically evaluated Howell’s teaching performance. On the basis of these evaluations, the principal recommended Howell for an enrichment program. The principal felt Howell needed improvement in classroom management and in controlling the behavior of students. The enrichment program was designed to accomplish this.

On August 27, 1979 Howell received a letter from the principal directing her to attend the fall enrichment program. Howell refused to attend and, for this reason, the principal recommended Howell’s termination to the superintendent’s office on October 3, 1979.

On October 26, 1979 Howell received notice that the Division of Personnel had received a recommendation from the principal to cancel Howell’s employment contract. This letter notified Howell that the Central Appeals Committee, as constituted in the revised Continuous Improvement and Evaluation Plan for Teaching Personnel (a procedural safeguard set up in Mobile County to allow teachers to contest performance evaluations such as the one made of Howell) would meet to consider the recommendation.

The Central Appeals Committee met on November 5, 1979 and voted to uphold the principal’s recommendation to terminate Howell’s teaching contract based on insubordination in that she refused to attend the fall enrichment program. Howell was present at this hearing.

On November 8,1979 the Superintendent of Education of Mobile County upheld the recommendation of the principal and the Central Appeals Committee.

On January 16, 1980 Howell received notice from the School Board that a hearing would be held to consider the cancellation of her contract. On February 13, 1980 said hearing was held. At that time much testimony was taken including Howell’s. Howell’s testimony included the following:

Q. When you received notification in the time period that Dr. Gilliard is talking about on August 27th asking you to go for further enrichment in the fall, did you file a grievance then?
A. No, I did not.
Q. When this letter came to you asking that you go to enrichment in the fall, what, if anything, did you do?
A. I didn’t go.
Q. All right. And when the letter came to you from Dr. Martin saying that you had not gone to the fall enrichment and you were recommended for termination, did you get a copy of that letter?
A. Yes.
Q. And that was October 3, 1979. Mrs. Howell, no one doubts the fact that you are an extremely articulate person. No one doubts the fact of the unpleasantness of this hearing. But what gave you the thought that you could disregard your superior’s order to attend a fall enrichment program when you were being fully paid and you signed a contract as marked in exhibit saying that you would go into in-service activities upon assignment. What made you feel that you didn’t have to abide by that order?
A. At the beginning, I’ll go back to the summer, after having tried to follow the grievance procedure, I felt that that should have held true for the fall also, and I had no — I didn’t think that I was being insubordinate and I — because I had reasons to question the validity of the principal’s recommendation based on her incompetency—
Q. All right. You felt all along, correct me if I’m wrong, that your principal was incompetent, is that correct?
A. It was obvious.

The School Board thereafter voted to cancel Howell’s contract.

The determinative issue before this court is whether the decision of the circuit court to affirm the Tenure Commission’s decision was supported by the evidence. We find that it was and affirm.

Section 16-24-8, Code 1975, provides the grounds for cancellation of tenured teacher contracts and is as follows:

Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but cancellation may not be made for political or personal reasons. [Emphasis added.]

This court dealt with the meaning of insubordination in Ellenburg v. Hartselle City Board of Education, Ala.Civ.App., 349 So.2d 605 (1977) when we stated:

“Insubordination imports wilfull [sic] disregard of express or implied directions or such a defiant attitude as to be the equivalent thereto.” 21A Words and Phrases, Insubordination 554. [Footnote 2]

See also Heath v. Alabama State Tenure Commission, Ala.Civ.App., 401 So.2d 68 (1981).

We note that the rule of review in teacher tenure cases is a determination of whether there was sufficient evidence to support the Tenure Commission’s decision in terminating a tenured teacher’s contract. A decision of the Tenure Commission which is supported by sufficient evidence, will not be reversed on appeal unless it is against the preponderance of the evidence and overwhelming weight of the evidence. Sumter County Board of Education v. Alabama State Tenure Commission, Ala., 352 So.2d 1137 (1977); Wright v. Marsh, Ala.Civ.App., 378 So.2d 739, cert. denied, Ala., 378 So.2d 742 (1979).

We have reviewed the evidence in this case and have concluded that there was sufficient evidence to support the Tenure Commission and the circuit court in the respective decisions rendered.

AFFIRMED.

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


author: BOOKOUT, Judge.

text:
    Jerome Vincent BERARD, v. STATE.
    3 Div. 25.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    On Return to Remand June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      John L. Capell, III, of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Murder in the first degree wherein two or more human beings are intentionally killed; sentence: death by electrocution. Section 13-11-2(10), Code of Ala.1975.

The State’s evidence proved beyond any reasonable doubt that in the early morning hours of April 15, 1978, eighteen-year-old Jerome Vincent Berard unlawfully, intentionally, and with malice aforethought killed Jeffery D. Smith and John D. Thompson, ages fourteen and sixteen respectively, by shooting them with a .45 caliber pistol at the Skatehaven roller skating rink in Montgomery. Both victims were employed by Skatehaven on the night in question, and Jeffery Smith was the appellant’s best friend.

The appellant had been employed at Ska-tehaven, but had quit two months prior to this incident. According to Mr. Nick Stra-tas, the owner of Skatehaven, “his words were that he was not going to work any longer. That we had worked him too hard and he desired to quit.” On the afternoon of April 14, the appellant told a friend, Tonya Bird, that he planned to rob Nick Stratas and “kill him if possible." He told another friend, Kelly Turner, that “he was going to flatten Nick Stratas’ car tire, wait till he was changing it and knock him out from behind and take his money.”

By the appellant’s own confession, he loaded a .45 pistol at his house, placed it down in his belt, and walked to the Pizza Hut to have a coke. Later, as the appellant was walking up the highway, a female friend drove by and saw him. From the confession:

“[S]he picked me up, you know, rode up the Atlanta Highway and we were talking and she let me out back of the rink. I went down around back and waited until everybody was gone and I went and knocked on the glass doors and Jeff and them came from there, came over and opened the door and he let me into the place and they were in there cleaning up. I went over to play a few games of pinball and was fixing to close up. I started to walk out the door and I pulled up the slide on the .45 and just started shooting them.”

After the appellant emptied the gun into both victims, he placed two more live rounds in the pistol and fired two more shots, one into each victim. He stated that they were moaning and groaning, and he wanted to put them out of their misery. Smith and Thompson suffered five gunshot wounds each.

The appellant offered no explanation for his murderous actions. “I shot my best friend for no reason at all .... I never killed no one in my life, I don’t know why I did it .... Jeff never did nothing to nobody, I just shot him dead .... I just kept shooting, shooting and shooting.” He stated that he next grabbed the keys to Thompson’s car, jumped in the car, and was about to leave when he realized things did not “seem right.” He went back inside, “popped open the cash drawer and kicked in some doors, to make it look like it was a robbery or something.” He then drove the car away, “ditched it,” and walked home.

I

The appellant maintains that the trial court erred in excusing four jurors for cause contrary to the guidelines set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree.

In the case sub judice only those prospective jurors were excluded who indicated they would not return the death penalty under any circumstances regardless of the evidence. On no less than four occasions during the qualification of the venire did the trial court instruct the prospective jurors concerning their views on capital punishment:

(1) “The question that is being presented to you now is this: If you have a moral belief which says that you do not believe in capital punishment, if you believe that capital punishment should not be inflicted under any circumstances, if you simply do not believe in capital punishment, you should stand at this time.”
(2) “If the fact that you do not believe in the death penalty would keep you from finding the Defendant guilty regardless of the evidence, please stand .... ”
(3) “If the fact that you do not believe in the death penalty would keep you from finding the Defendant guilty regardless of the evidence, please remain standing.”
(4) “Now, do you feel like that since you do not believe in capital punishment, regardless of what the evidence would be, do you feel like you could render a verdict of guilty? ....
“If you feel that you could not, just raise your right hand .... ”

In addition, it was carefully explained that under Alabama’s capital felony statute the only punishment which the jury could impose would be death if the appellant was found guilty.

In response to the court’s instructions, thirteen prospective jurors stood. Each jur- or was questioned individually to make sure he understood the instructions and to ascertain his individual convictions regarding the death penalty. Of the thirteen who had originally stood, only four stated unequivocally that they “could not pronounce guilt under those circumstances.” Those four were challenged for cause. The remaining nine were not. We hold as a matter of law that the challenges were proper. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Witherspoon, supra. See also: Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971).

II

The appellant contends that the trial court erred to reversal in allowing color photographs and photographic slides of the victims to be shown to the jury and in admitting into evidence the shirts of the two victims showing blood stains and bullet holes. Appellant argues that such evidence was repetitious and that its cumulative effect was to inflame the jury. A brief discussion of that evidence is appropriate.

Through the testimony of five police officers and a state toxicologist, thirty-nine photographs were admitted into evidence. Approximately thirty of those photographs were of the two victims. A slide presentation of approximately ten slides by the state toxicologist and approximately thirty slides by one of the police officers was also made before the jury. The presentation utilized by the toxicologist was to facilitate his testimony explaining the victims’ cause of death. The presentation made by the police officer was to expedite his testimony explaining the appellant’s movements at the time he committed the offense. At least nine of those slides were of the scene and the two bodies. The slides were not admitted as exhibits, but were marked for the record. The two shirts, one belonging to each victim, were introduced to prove the number of wounds and to establish the approximate distance of the pistol at the time of discharge.

Beginning with the shirts, the supreme court in Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972), stated:

“It is a long established rule of this State that demonstrative evidence, such as clothing worn by deceased at the time of the killing, is admissible if it tends to shed light on any material inquiry, even though such evidence is only cumulative of other evidence and tends to inflame the jury. Barbour v. State, 262 Ala. 297, 78 So.2d 328; Ray v. State, 253 Ala. 329, 45 So.2d 4. The rule regarding admissibility was set forth with clarity in Rollings v. State, 160 Ala. 82, 86-88, 49 So. 329, 331 as follows:
“ ‘The clothing of deceased, as well as that of the accaused, ... (sic) are usually held admissible on trials of homicide. There are only a very few cases in which they have been excluded, when offered as evidence for the inspection of the jury, if tending to elucidate the transactions, to identify any of the parties, to connect the accused with the crime, or to show the character of the wound, motive or intent of the killing, or degree of the crime— whether the killing was in self-defense or not. If such objects tend to corroborate or disprove, illustrate or elucidate, any other evidence, they are admissible * * *. “ ‘The wearing apparel of deceased, showing the location of the bullets, the character and nature of the wound, the blood stains, etc., were properly admissible under the rules stated above, and it is no reason to exclude them that these matters might be shown by other evidence, or that these objects might prejudice the jurors. * * *’ (Emphasis supplied.)”

In the instant case the victim’s clothing clearly tended to show the character, location, and nature of the fatal wounds. Thus, the shirts were properly admitted into evidence. Jones v. State, Ala.Cr.App., 362 So.2d 1303 (1978); Gould v. State, Ala.Cr.App., 332 So.2d 402 (1976).

With respect to the photographs and slide presentations of the victims, we find no merit in appellant’s argument. As is stated in Gamble, McElroy’s Alabama Evidence, § 207.01(2), (3d ed. 1977):

“The basic question to be asked in deciding the admissibility of a photograph of a victim, just as with any other demonstrative evidence, is whether it has a reasonable tendency to prove or disprove some material fact in issue. This decision is left largely to the sound discretion of the trial judge .... ”

The trial judge’s discretion is not re viewable except for gross abuse. McKee v. State, 253 Ala. 235, 44 So.2d 781 (1949); Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974). We have carefully examined the photographs which were admitted and have considered the impact of the slide presentation. We find no abuse of discretion in this case. Lewis v. State, Ala.Cr.App., 339 So.2d 1035 (1976), cert. denied, Ala., 339 So.2d 1038.

III

The appellant contends that the trial court admitted his taped and signed confession, taken on April 16 at 1:31 p. m., in violation of his Fifth and Fourteenth Amendment rights against seif-inerimination. We have carefully examined appellant’s confession and the surrounding circumstances at the time it was made and are unable to agree with appellant.

Prior to his interrogation, appellant was properly advised of his Miranda rights and signed a waiver form. He signed the waiver form without hesitation and only after he had read it himself. The predicate of voluntariness was clearly established. Before the jury heard evidence of the confession, which included the Miranda warnings and voluntariness predicate, the trial judge on voir dire made a preliminary determination of the voluntariness of appellant’s confession. See: Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

After appellant’s taped confession was transcribed, he was given an opportunity to read and sign it. He initialed each page. During the time he was interrogated, the appellant did not ask for an attorney, nor did he indicate in any manner that he did not want to talk to the officers. Two officers were present throughout the questioning. The actual questioning was done by one officer; the other officer merely being present as a witness. In the confession itself, the appellant stated that he understood his rights and that he understood he did not have to answer any questions he did not want to answer.

Approximately two-thirds of the way through the interrogation, the questioning officer informed the appellant of the results of the ballistics test which indicated the appellant’s gun fired the fatal bullets. He further informed appellant that he had statements from appellant’s friends to whom he had previously made incriminating statements. The appellant was not misled or misinformed in any way. It was during this time that he confessed to the murders.

A full transcription of that exchange would serve no purpose; however, taking excerpts from the statements made by the questioning officer to the appellant, we note the following:

“I’m going to shoot straight with you, And I want you to shoot straight with me ....
“And I think it’s time that you [and] me kind of settle down here and had a man to man discussion about the true facts as happened .... You’re in a lot of trouble .... Now you have killed your best friend, son. And it’s time you told somebody. If you don’t you are going to go slam crazy. We’re going to find you hanging out of a tree or something, son.
“Now let’s lay it on the line right here, right now and get this stuff over with and try to get you some help because I, like you said, I do believe you need a psychiatrist. I think you need some help. But you can’t get it son, fighting it .... [Yjou’re going to have to get right with yourself and get right with your God and get right with this whole outfit here .... I want you to tell me exactly what happened.

In context, the statement that the appellant would be found “hanging out of a tree or something” was not a threat that the officers would do him harm. Clearly, it was only a statement to the effect that if the appellant kept his guilt bottled up inside him it was likely he would go crazy and do himself harm. Thus, taken in full context, the officer was merely urging appellant to clear his conscience and his mind by telling what happened to his best friend.

It cannot be disputed that the questioning officer wanted the appellant to confess his guilt. However, at the evidentiary hearing outside the presence of the jury, the trial court held that “the constitutional rights of the defendant were honored. No coercion was used, no threat or force of any threat was used, and the statement is admissible.” Prom the facts before us, we cannot say as a matter of law that the trial court’s ruling was erroneous.

Even though the appellant was eighteen years of age at the time of the offense and subsequent confession, we have applied the factors set out in West v. United States, 399 F.2d 467 (5th Cir. 1968) which pertain to confessions by a juvenile and are convinced appellant’s confession was understandingly and voluntarily made. We hold, therefore, that under the totality of the circumstances the admission of appellant’s confession was proper. A confession of guilt by its nature is prejudicial, and its voluntariness is subject to utmost scrutiny especially in death penalty cases. The question we must always decide is whether the methods employed to obtain the confession were viola-tive of constitutional safeguards and guarantees. We find no such violation here.

IV

On motion of appellant’s counsel, the trial court issued an order on May 4, 1978, committing appellant to the state mental hospital in Tuscaloosa for evaluation pursuant to §§ 15-16-20-21, Code of Ala.1975. On June 20 he was found to be competent to stand trial by the forensic evaluation board of that hospital and was returned to Montgomery for that purpose.

During the course of the trial, there was considerable testimony concerning the appellant’s mental condition. Both expert and lay witnesses testified on behalf of the State and the defense as to the appellant’s sanity at the time of the commission of the crime. Without setting out the testimony of each witness, it is sufficient to say there was a conflict in the evidence. We find, however, that the testimony of the witnesses for the appellant did not constitute a “preponderance of the evidence” that the appellant was legally insane at the time of the commission of the crime. In order to overcome the presumption of sanity, the appellant must prove by a preponderance of the evidence that he was in fact insane when the crime was committed. Christian v. State, Ala., 351 So.2d 623 (1977); Woods v. State, Ala.Cr.App., 364 So.2d 1178 (1978), cert. denied, Ala., 364 So.2d 1186. The determination against appellant of that issue was clearly within the province of the jury and was fully supported by the State’s evidence.

V

Several questions are raised concerning the trial court’s order after the sentencing hearing was conducted. For the sake of clarity, we set forth the pertinent parts of the court order sentencing the appellant to death.

“This Court, having conducted a hearing pursuant to law to determine whether or not the Court will sentence the above defendant to death or to life imprisonment without parole; and the Court having considered the evidence presented at the trial and said sentence hearing; the Court makes the following findings of fact:
“The Court first considers the aggravating circumstances:
“(a) The homicides committed were brutal,
“(b) That no evidence has been presented negating the testimony that the defendant went to the scene of the crime with the intent to commit a robbery and, if necessary, a murder,
“(c) There is an absence of any provocation.
“The Court considers the mitigating circumstances:
“(a) There is no criminal record,
“(b) There is evidence of some emotional instability, however not to the extent to excuse or justify the present criminal conduct,
“(c) The defendant is of a young age.
“(d) The Court finds that while there is some emotional instability, there is evidence that the defendant did then and now does appreciate the consequence of his conduct.
“As an aside, the Court wishes to comment upon the high professional skill displayed by defense counsel in this most difficult cause.
“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.”

The trial court based the death sentence on three aggravating circumstances, none of which is to be found in the capital felony statute. Section 13-11-6, Code of Ala.1975, lists the only aggravating circumstances that may be considered by a court in fixing the death penalty. Had the trial judge merely used that code section as a check list in making his findings, a new sentencing hearing would in all probability have been unnecessary. A basic rule of review is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation. This is especially true in death penalty cases. Ex parte Clements, Ala., 370 So.2d 723 (1979); Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). Penal statutes are to reach no further in meaning than their words. Clements, supra; Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). As this court held in Keller v. State, Ala.Cr.App., 380 So.2d 926 [1979], “An inclination to gradually broaden the scope of aggravating circumstances beyond the strict wording of the statute will eventually lead to an unconstitutional application of the capital felony statute.”

A discussion of the supposed aggravating circumstances listed by the trial judge is therefore necessary:

(1) That the homicides were “brutal” fails to conform to § 13-11-6(8) which requires a finding that the crime was “especially heinous, atrocious or cruel.” (Emphasis supplied.) The crime was in fact brutal, but the statute requires more. We have no doubt that had the trial judge applied the wording of subsection (8) he could have supported a proper finding thereunder by the fact that the appellant, after firing all the bullets into the two boys, reloaded the weapon and went back and shot each one again. We upheld a similar circumstance in Morrison v. State, Ala.Cr.App., 398 So.2d 730 [1979; after remandment, Ms. November 20, 1979]. The trial judge made a proper finding of fact in that case setting out the reason for his decision.

(2) As to circumstance (b), we assume the trial judge was attempting to invoke § 13-11-6(4) by finding that no evidence was presented to negate the fact that the appellant went to the scene of the crime “with the intent to commit a robbery and, if necessary, a murder.” However, to come within that section of the statute, the trial judge would have had to find that the capital felony was in fact committed during the course of a robbery, attempted robbery, or in flight therefrom.

The evidence reveals that the day before the crime appellant stated an intent to rob and possibly kill Nick Stratas. When he arrived at Skatehaven, Stratas was not there. He neither robbed nor killed Stra-tas. There is no evidence in the record of an actual robbery. In the appellant’s confession, he stated that after the murders he went back to the scene to make it appear as if a robbery had taken place; that, for the obvious purpose of shifting suspicion away from himself. Additionally, the trial court’s finding that there “was no evidence” to refute the robbery was inaccurate. The State’s own evidence (the confession) was contrary to that finding by the trial judge. In any event the evidence must show more than that the appellant had robbery on his mind. The statute requires positive evidence that any actual or attempted robbery was committed in order to support a finding pursuant to subsection (4), supra. The trial judge did not find that there was a robbery, only that no evidence was produced to negate the appellant’s intent. Therefore, the trial court’s finding does not constitute a valid aggravating circumstance within the wording of the statute.

(3) An absence of provocation is likewise not an aggravating circumstance listed in the capital felony section. Such a finding has no more legal effect than a finding that the crime was “unnecessary” which was rejected in Colley v. State, Ala.Cr.App., 405 So.2d 374 (1979).

As to the mitigating circumstances, the trial court’s findings (a) and (c) thereunder are contained in § 13-11-7(1), (7), and are thus proper. However, the appellant urges that the trial court could have found as mitigating circumstances those contained in subsections (2) and (6). Section 13-11-7(2) reads as follows:

“The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.”

Section 13-11-7(6), in pertinent part, likewise reads:

“The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.”

The appellant further maintains that it was error for the trial court to have commented in subsections (b) and (d) of its findings that the extent of his emotional instability did not “excuse or justify the present criminal conduct,” and that he “did then and now does appreciate the consequence of his conduct.” We disagree.

Both of the above subsections of the statute are concerned with the degree of the accused’s mental disability: “extreme mental or emotional disturbance” in (2) and “capacity ... substantially impaired” in (6). The trial court’s findings in subsections (b) and (d) were tantamount to a holding that the degree of disability necessary to support those mitigating circumstances was lacking. The trial court’s findings on those points were supported by the evidence, thus distinguishing this case from Lewis v. State, Ala. Cr.App., 380 So.2d 970 (1979). Again, however, the safer practice would have been for the trial judge to simply follow the verbiage of the statute in negating aggravating circumstances rather than devising his own tests.

We have carefully searched the record for any error prejudicial to the appellant pursuant to §§ 12-22-240, -241, Code of Ala. 1975, and the “plain error rule,” Rule 45A, Alabama Rules of Appellate Procedure. After due consideration of the record, briefs, and arguments, we find no reversible error. We conclude that the appellant received a fair trial, and the conviction should be affirmed. However, due to deficiencies in the sentencing order discussed above, this cause must be remanded with directions that a new sentencing hearing be held. As the trial judge who conducted the original hearing is no longer holding that office, the hearing must necessarily be conducted by another circuit judge. Such a procedure will necessitate the trial judge reviewing the entire evidence presented at the trial before holding the hearing or making his findings. The appellant and his counsel must be present and be afforded an opportunity to present any matter in mitigation pursuant to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Cook v. State, Ala., 369 So.2d 1251 (1979). In answer to the instant remand, a full court reporter’s transcript of such proceedings must be made and forwarded to this court along with the trial court’s order which must include findings of fact as well as aggravating and mitigating circumstances, pursuant to § 13 — 11—4 et seq., Code of Ala.1975.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS. '

All the Judges concur.

ON RETURN TO REMAND

PER CURIAM.

Reversed and remanded on authority of Beck v. State, 396 So.2d 645 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur.

      . Although the slides were not formally admitted, the fact that they were used in connection with the giving of testimony made them evidence in the case. Murrell v. State, Ala.Cr. App., 377 So.2d 1102 (1979); Smith v. State, Ala.Cr.App., 344 So.2d 1239, cert. denied, Ala., 344 So.2d 1243 (1977); Kabase v. State, 31 Ala.App. 77, 12 So.2d 758 (1943).

      . Pursuant to Alabama law at the time of the offense (and confession), appellant was eighteen years old and was not a “child” within the legal meaning of that word, § 12-15-1(3), Code of Ala.1975. The special provision of § 12-15-67 therefore would not apply. Ex parte State (In re Bracewell v. State), Ala., 401 So.2d 123 [1979].