text:
    Calvin and Nancy SEALY v. Dede DUNCAN, d/b/a Dede’s Home Rental Center.
    Civ. 3408.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.

      Bert P. Noojin of Noojin & McNair, Mobile, for appellants.
    Ian F. Gaston of Gaston & Gaston, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an appeal from an order of the trial court which granted a defendant’s A.R.Civ.P. rule 60(b) motion, set aside a final judgment and reinstated the case.

Here, there is no final judgment upon which to base the appeal as existed in Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978). Nor was the motion granted upon the ground that the original judgment was void for want of jurisdiction or authority so as to make the granting of the motion a final disposition of the case and therefore appeal-able as was decided in Littlefield v. Cupps, 371 So.2d 51 (Ala.Civ.App.1979). Consequently, this appeal is governed by the general rule that a judgment granting a rule 60(b) motion and ordering a new trial is purely interlocutory and is not appealable. Fisher v. Bush, 377 So.2d 968 (Ala.1979); Littlefield v. Cupps, supra; Nunn v. Stone, supra; Sullivan v. Speedway Oil Co., 352 So.2d 1383 (Ala.Civ.App.1977); 11 Wright & Miller, Federal Practice and Procedure § 2871, at 259. We have no alternative but to dismiss this appeal. Fisher v. Bush, supra; Sullivan v. Speedway Oil Co., supra.

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

APPEAL DISMISSED.

All the Judges concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    B.E. WILLIAMSON v. Carolyn Markham SHOULTS, as Executrix of the estate of Gladys C. Williamson, deceased; and Carolyn Markham Shoults, individually.
    Civ. 3482.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1982.

      Hartwell Davis, and Karl B. Benkwith, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    Edward B. Parker, II, of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order of the trial court granting summary judgment for appellee, Carolyn Markham Shoults, against appellant, B.E. Williamson. The case arose from the following facts:

Plaintiff (appellant) Williamson married Gladys C. Williamson in 1945. Both had been married once before, and both had children by previous marriages. Mrs. Williamson had four children by her previous marriage. Mr. Williamson had one. The couple remained married until Mrs. Williamson’s death January 4, 1981. Carolyn Markham Shoults, one of Mrs. Williamson’s children, was named executrix of her mother’s estate under the terms of the will. The will left everything to Mrs. Williamson’s children. The piece of real estate involved in this case is a house and lot located in Montgomery, Alabama, left to the defendant Shoults.

On April 13, 1960, more than twenty years before her death, Williamson loaned his wife $5,500, evidenced by a promissory note secured by a mortgage on the house and lot. The note provided for quarterly payments on the principal of $137.50. Interest at six percent on the remaining balance was due with each payment. The interest for the first quarter in the amount of $82.50 was withheld from the loan check.

When the first payment became due on July 13,1960, the couple had a brief discussion wherein, according to Mr. Williamson, his wife said she didn’t know whether she wanted to pay it or not. Mr. Williamson asked her to pay but did not pursue the matter any further, nor did he discuss the matter of the mortgage again until he filed this suit September 23,1981, several months after her death.

The suit began with a claim for collection of the note. Williamson subsequently advertised foreclosure of the mortgage. He also filed claims in the estate claiming homestead rights in the home where he and his wife resided. All these matters were subsequently consolidated in circuit court. There, after discovery, motions for summary judgments were filed by each side.

The trial court, after consideration of the pleadings, briefs, depositions, affidavits, exhibits, and argument of counsel, entered summary judgment for Mr. Williamson on four of five issues. Issue five related to the only disputed item and the only issue presently on appeal — the enforceability of the note and mortgage. On this issue the court granted summary judgment for Mrs. Shoults, stating that “equitable principles are controlling in determining this issue.” This order granted Mrs. Shoults’ motion for summary judgment, wherein she asserted as grounds for the granting of the motion that the equitable doctrine of laches applied. It is from this order granting that motion that Williamson appeals.

On appeal from granting of summary judgment, this court looks to the same factors which the trial court considered in ruling on the motion. Green v. Blue Cross-Blue Shield of Alabama, 358 So.2d 466 (Ala.Civ.App.1978). Therefore we must consider whether the trial court correctly applied the doctrine of laches to the facts of the present case. Bromberg v. First National Bank of Mobile, 235 Ala. 226, 178 So. 48 (1938).

Laches is a doctrine of equity. In speaking of the doctrine, Chief Justice Taney said in the case of McKnight v. Taylor, 42 U.S. (1 How.) 161, 168, 11 L.Ed. 86 (1843):

“We do not found our judgment upon the presumption of payment; for it is not merely on presumption of payment or in analogy to the statute of limitations that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith and reasonable diligence to call into action the powers of the court. In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice, when the original transactions have become obscure by the lapse of time and the evidence may be lost.”

The above quotation appeared in the opinion of the Alabama Supreme Court in the case of Salmon, Administrator v. Wynn, Administrator, 153 Ala. 538, 45 So. 133 (1907), and was repeated in that court’s opinion in Creel v. Baggett Transportation Co., 284 Ala. 47, 221 So.2d 683 (1969). The court in Creel also repeated other statements and quotations from Salmon Such as:

“The principle [principal] foundations of the doctrine are acquiescence and lapse of time. But other circumstances will be taken into consideration. Thus it is material circumstance that the claim is not made until after the death of him who could have explained the transaction. (Citations omitted.) It has been well said by Davis, J., in McQuiddy v. Ware, 20 Wall. (U.S.) 14, 19, 22 L.Ed. 311: ‘There is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances.’ In other words, it would seem that the question is addressed to the sound discretion of the chancellor in each case.”

It is the contention of the appellant, Williamson, that mere laches within the statute of limitation of the cause of action is not a bar. He contends that the action on the note and foreclosure of the mortgage were brought within the six-year statute of limitation from the maturity date of the note. He presents that maturity date as October 23,1975. The note is before us and we find its maturity date to be otherwise.

We have previously noted that the note and mortgage were executed on April 13, 1960, in the principal amount of $5,500. Payments of $137.50 were to be made quarterly thereafter with interest at six percent per annum payable on the remaining unpaid balance at each payment period. Thus, all payments matured at the end of ten years, or April 13, 1970. Though the note and mortgage contained an optional acceleration clause, our eases have historically considered such clause to be for the benefit of the creditor. Unless he exercises the option, the debt does not mature for the purpose of the statute of limitation until the last installment is due and unpaid. Summers v. Wright, 231 Ala. 372,165 So. 87 (1935). Therefore, the statute of limitation for a suit on the note of six years had run prior to the filing of the suit on September 23, 1981.

Though recovery on the note is barred by a statute of limitation, the running of such statute on the note does not prevent foreclosure of the mortgage given as security therefor. There is no statute of limitation on the foreclosure of a mortgage. It is only when the mortgage debt has been due after maturity for a time sufficient to raise a presumption that the same has been satisfied that mere delay will furnish a defense to foreclosure. That time is ordinarily twenty years. Barton v. Lumpkin, 277 Ala. 394,171 So.2d 101 (1965). § 35-10-20, Code of Alabama 1975.

The rule of prescription or presumption referred to is an absolute bar to foreclosure. However, the application of laches is not dependent upon the passage of such period of time. Laches, as we have previously defined it, is an equitable defense to be applied where from delay, loss of evidence, and death, any judgment would be conjectural and difficult to do justice. It is not necessary that the court be satisfied that the claim is unjust or has been satisfied. Laches may be applied even though the claim is not barred by the statute of limitations nor barred by the twenty-year rule of prescription. McCary v. Robinson, 272 Ala. 123, 130 So.2d 25 (1961); Ussery v. Darrow, 238 Ala. 67, 188 So. 885 (1939).

The court said in Snodgrass v. Snodgrass, 176 Ala. 276, 58 So. 201 (1912): “This court has applied this principle, even where the period of twenty years has not elapsed, but from other circumstances, such as the death of parties, etc., it is deemed inequitable to open up the transactions.” (Citations omitted.)

The trial court had presented to it in support of the answer of laches affidavits and exhibits showing the execution of the note and mortgage by the wife to the husband in April 1960. The husband admitted in his testimony that he and the wife lived together until her death in 1981. They carried on other transactions of buying and selling real estate together, the wife deeding to him certain property for which he assumed the mortgage thereon. The involved note and mortgage were upon rental property adjoining or near the home where the parties lived until the death of the wife. Presumably the rents were collected thereon. The only time the alleged indebtedness was ever mentioned was when the first payment came due and the wife told him she didn’t think she was going to pay it. It was never referred to again for over twenty years. She died and he learned for the first time that the wife had willed the property to her daughter. He then filed a claim against the estate, brought suit on the note and advertised foreclosure.

Considering the evidence before it as to such matters as the period of more than twenty years elapsing with no payment on or reference to the debt, the death of the wife, the confidential relationship between a husband and wife, other business dealings between them, contribution to the family expenses by the wife, occupancy of the property of the wife as a home, this court finds ample support for the exercise of the trial court’s discretion in the finding of laches.

Williamson contends in brief that the defense of laches is not available in an action to foreclose a mortgage. That contention is incorrect. Foreclosure of a mortgage is per se a matter of equity jurisdiction. Wilson v. Crocker, 267 Ala. 26, 99 So.2d 190 (1957).

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . However this court in following Summers appeared to be overruled by the supreme court on certiorari in the recent case of Ex parte Fletcher, [Ms. October 29, 1982] (Ala. 1982). That decision appears to hold that the creditor’s cause of action on a note with an acceleration clause arises at the first default whether or not the creditor waives default and fails to accelerate the date of maturity.


text:
    Marie A. HOBBS v. Thomas M. HOBBS.
    Civ. 3140.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.
    Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellant.

      Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The trial court granted a rule 60(b)(6), Alabama Rules of Civil Procedure, motion and modified a divorce judgment by altering the division of property contained therein.

The parties were divorced by a judgment dated May 28, 1980 after a January 1980 contested trial before the circuit court. That judgment made the following awards of real property to the wife: the home of the parties subject to its mortgage, twenty acres of land, and a lot in Gulf Shores.

The husband filed his motion on June 16, 1980 to reconsider the judgment on the grounds that it was contrary to the law and the evidence, that it was inequitable and unfair and that it was contrary to a statement which had been made by the trial court when the evidence was concluded as to the terms and provisions of the judgment that would subsequently be rendered. The trial court took that motion under advisement but never ruled thereon. Consequently, it was overruled by operation of rule 59.1, A.R.Civ.P. No appeal was taken from the original divorce judgment nor from the automatic overruling of that motion to reconsider.

On November 16, 1981 the husband filed a rule 60(b)(6) motion for relief from the May 1980 judgment on virtually the identical grounds which were contained in his June 1980 motion. No evidence was taken of and concerning the motion. The trial court granted the 1981 motion and modified the 1980 judgment as to the property adjudged to the wife. Thereby, she received only the right to exclusive possession of the home, but she was still awarded the lot in Gulf Shores. However, the husband was given the twenty acres which had been originally granted to the wife by the divorce judgment.

The wife appeals from the modification judgment and raises as the only issue herein the propriety of the trial court in granting the husband’s 60(b)(6) motion. The appeal is not taken from the granting of that motion but from the modification judgment. That is correct and proper appellate procedure, for the order granting the motion was interlocutory in nature and would not support an appeal. Fisher v. Bush, 377 So.2d 968 (Ala.1979); Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978); Sullivan v. Speedway Oil Co., 352 So.2d 1383 (Ala.Civ.App.1977). The modification judgment was a final judgment and, upon an appeal therefrom, this court may consider, as a proper issue for our decision, the validity of the granting of the 60(b)(6) motion. Nunn v. Stone, supra, footnote 2 at page 1214.

In this case there is no question or doubt but that the husband’s motion is clearly and exclusively based upon rule 60(b)(6).

The dispositive question is whether the effect of the husband’s motion was an effort to substitute rule 60(b)(6) for an appeal. Most learned and respected counsel for the husband contends that such is not the case here presented. We respectfully disagree and reverse.

Regarding any statement made by the trial court at the end of the trial being contrary to the actual judgment, a judgment may be rendered by the circuit court only as is provided by A.R.Civ.P. 58(a). Each of the rendition methods therein stated discloses that the judgment be in writing. An oral judgment relative to a division of property in a divorce case is unknown, unauthorized and ineffective in Alabama. The oral statement of the trial court had no lawful field of operation in dividing the property and, insofar as the record and motion here disclose, it is legally immaterial that the oral statement and the subsequent written final judgment might have differed. The May 1980 judgment prevailed over the remarks which were uttered from the trial bench in January 1980.

We deem the following excerpt from McSween v. McSween, 366 So.2d 293, 296 (Ala.Civ.App.1979) to be so pertinently applicable as to be dispositive of the issue in controversy:

“Furthermore, plaintiff’s proper remedy when the decree was rendered was appeal. To this court, the trial court’s action, in this instance, in dividing the property of the parties may well have been error. Put another way, the trial court may have abused its discretion in the division of property in the July, 1973, decree of divorce. However, such error did not make the decree void so as to render it vulnerable to collateral attack. The proper method to review a trial court’s abuse of discretion in a divorce proceeding is appeal. See Monroe v. Monroe, Ala.Civ.App., 356 So.2d 196 (1978). The law of Alabama does not entitle a party to relitigate issues which were raised or could have been raised in a prior suit. Anderson v. Moorer, 372 F.2d 747 (5th Cir.1967).
“In view of the above, plaintiff is not entitled to relief under Rule 60(b)(4).
“The remaining provision of Rule 60(b) is 60(b)(6). Again, the plaintiff is not entitled to relief under this provision.
“As our Presiding Judge Wright stated in [Gallups v. United States Steel Corp., 353 So.2d 1169 (Ala.Civ.App.1978) ], ‘Rule 60(b) is an extreme and powerful remedy and should be used only under extraordinary circumstances. It is not available to relieve from failure of a party to exercise the right of appeal.’ See Tichan-sky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974), cert, denied, 293 Ala. 775, 307 So.2d 24 (1975). In this instance, clearly appeal was available to the plaintiff. We therefore find the plaintiff is not entitled to relief under Rule 60(b)(6).”

In the husband’s motion it is averred that the original judgment was so unconscionable as to virtually strip the husband of all of his assets. That is the equivalent of averring, arguing and contending that the trial court abused its judicial discretion in rendering the original judgment as the property division. The husband could have reviewed that issue by taking an appeal within forty-two days of the entry of the final divorce judgment or within forty-two days of the overruling of his motion to reconsider. A.R.A.P. 4(a). Any argument or issue relative to the inequity of the property division was definitely available to the husband by means of an appeal and appeal was the proper method to review such a contention. McSween v. McSween, supra. The husband’s 60(b)(6) motion was not an available vehicle to relieve him from his failure to appeal. The issue presented by the motion concerned no new controversy, but it was known to exist from the date of the entry of the original divorce judgment.

We find that the husband was not entitled to relief under A.R.Civ.P. 60(b)(6) because of the absence of any reasonable lawful or equitable cause therefor, appeal having been his proper possible remedy. The trial court erred in granting the husband’s 60(b)(6) motion and in entering its January 4, 1982 judgment which modified the original judgment of May 28, 1980. This cause is reversed and the judgments of the circuit court which granted the husband’s November 16, 1981 motion and which, on January 4, 1982, modified the original judgment of May 28, 1980 are hereby set aside and the original final judgment of May 28, 1980 is hereby fully reinstated. Gordon v. Hal-stead, 283 Ala. 578, 219 So.2d 629 (1969); Ala.Code, § 12-22-70 (1975).

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 section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

REVERSED AND RENDERED.

All the Judges concur.


author: HOLMES, Judge.

text:
    John Larkin MUSGROVE v. Susan Diane Hawkins MUSGROVE.
    Civ. 3302.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.
    William J. Baxley and Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for appellant.
    Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.

      . See Hager v. Hager, 293 Ala. 47, 299 So.2d 740 (1974) for a thorough discussion of periodic alimony and alimony in gross.

   HOLMES, Judge.

This is an appeal from the trial court’s denial of a rule 60(b), A.R.Civ.P., motion seeking to set aside a trial court’s action modifying a prior divorce decree.

The husband appeals, and we affirm.

The parties were divorced in 1978. An agreement of the parties, which was incorporated into the divorce decree, provided in pertinent part:

“That the Husband agrees to pay to the Wife as alimony, the following sums: One Thousand Dollars ($1,000.00) in a lump sum upon the entry of a Final Decree of Divorce herein; the sum of Three Hundred Dollars ($300.00) per month for a period of twenty-four months from this date [November 9, 1978]; Five Hundred Dollars ($500.00) each December 1 in the years 1978, 1979, and 1980.”

There were other provisions concerning insurance, debts, a car and potential medical and educational benefits.

Thereafter in 1979, by mutual agreement between the husband and wife, the prior decree of divorce was modified by deleting the above quoted section, and providing in lieu thereof the following:

“That the Defendant [husband] shall pay to the Plaintiff [wife] as alimony a sum no less than three hundred dollars ($300.00) per month and no more than six hundred dollars ($600.00) per month until the death or remarriage of the Plaintiff, whichever shall occur first. The exact amount of alimony to be paid each month shall be determined by and between the Parties according to the economic status of the Plaintiff and her ability to meet her financial obligations.”

This modified agreement was incorporated into the divorce decree by court action.

As indicated, the husband through able counsel sought to set aside the “modification agreement.” The husband at trial and on appeal contends that the original decree provided only for alimony in gross and not for periodic alimony. With no award for periodic alimony, nor any reservation of the right to modify, the husband argues the court could not properly modify the decree.

Additionally, the husband contends the rule 60(b) motion should have been granted under 60(b)(5) since it is “no longer equitable,” or under 60(b)(6) since “other reasons” justify relief from the judgment of modification. This contention rests on the husband’s claim that he and his wife had a “side agreement” that the alimony provisions in the modification were only left “open-ended” to get tax deductions for the husband and his obligations under the modified agreement would “really” end in November, 1981.

I

The husband’s first contention is that the modification should have been set aside because the trial court had no power to grant periodic alimony in the modification.

It is a well settled principle that, if a judgment of divorce is entered without periodic alimony or reservation of future consideration, the power to grant alimony is lost. E.g., Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). Furthermore, alimony in gross cannot be modified. Ryan v. Ryan, 269 Ala. 541, 114 So.2d 392 (1959).

The husband argues that the payments to the wife in the initial decree were alimony in gross; the wife argues that they were, at least in part, periodic alimony. We need not make a specific determination in this case as to the character of the payments to the wife. However, for disposition of this appeal we will simply assume the payments were alimony in gross.

The prohibition against modifying alimony in gross assumes one party seeks it, and another party opposes it. In the instant case, both parties in a joint petition sought a modification which was then granted. The resulting question was raised by the trial judge during the 60(b) hearing: “[S]ince the rule is very clear that alimony periodic can only be awarded at the time of the divorce ... I want to know if the parties can later, by an agreement, put that [periodic alimony] in?”

Although we have found no cases directly on point, we look for guidance to child support cases which raised a similar question. In a divorce case the question was raised whether a court could enforce a provision in a divorce decree which required support payments for an adult child. Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980). In answering, this court wrote:

“The law in Alabama is clear that a court does not have the power in the absence of an agreement, to order a parent to support an adult child.. . .
“The parties by requesting their agreement [which includes support for an adult child] be made a part of the judgment submit that agreement to the equity consideration of the court. The court may accept the agreement... . [Emphasis added.]”

Ralls v. Ralls, supra, at 859.

In a similar case this court held: “In Alabama an equity court can not sua sponte require a parent to support his adult child.... But, a decree which is based on an agreement providing for support ... by one of the parents after the children reach their majority can be enforced and modified.” Scott v. Scott, 401 So.2d 92 (Ala.Civ. App.1981).

The reasoning in these two cases— that what a court may not do on its own, it may sometimes do at the request of all the parties — is certainly applicable to the instant case. Here it is clear that both parties sought the modification, and both acted upon it without objection for over two years. In light of Scott and Ralls, the trial court acted properly in granting the petition for modification whether the initial decree awarded alimony in gross or periodic alimony. As such, the trial court did not err in denying the 60(b) motion based upon the husband’s first contention.

II

The husband next argues that the “sham problem” warrants an order setting aside the modification.

The husband claims the wife “unequivocally” agreed that regardless of the terms in the modification alimony would stop in 1981. The wife, however, testified they only discussed it.

In a 60(b) case the trial court has wide discretion in determining whether to grant or deny the 60(b) motion, and will not be reversed on appeal absent an abuse of this discretion. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). Where there is a conflict in testimony about the essential facts it is not palpable error for the trier of facts to deny a 60(b) motion. Beasley v. Beasley, 339 So.2d 86 (Ala.Civ.App.1976). In light of the conflicting testimony, we cannot say the trial judge committed error in the instant case.

Furthermore, there are policy concerns at stake which the able trial judge noted during the hearing.

“The public policy problem of those who would for their own reasons come into court . . . for their own personal gain, come in and petition the court and get a sanctified agreement for a tax break without meaning [to abide by it] ... I am just wondering if public policy on its face would not say that that should have some effect upon the trial judge’s determination ... . ”

Such concern by the trial judge is well taken. If there was a “side agreement” as the husband alleges, it was merely one aspect of a scheme in which the husband was not only an equal partner, but apparently concocted himself. The alleged “side agreement” in derogation of the modification’s terms was made so the husband’s payments would qualify for tax deductions to benefit the husband. Put another way, if there was a “sham” as the husband argues, it was a sham in which he was an active participant.

The court has previously noted that “[t]he equitable principle of ‘clean hands’ or that of ‘he who seeks equity must do equity’ is still appropriately viable.... [and] may be applied by the court in cases seeking reduction of alimony.... ” Adams v. Ad ams, 368 So.2d 552, 553 (Ala.Civ.App.1979). Equitable principles may be considered in the exercise of a trial court’s discretion in ruling on a 60(b) motion. Sullivan v. Speedway Oil Co., 352 So.2d 1383 (Ala.Civ.App.1977).

In the instant case, the husband did not come into court with “clean hands,” and if the trial judge denied the 60(b) motion out of concern for public policy, he was not in error.

Finally, we look at our decision in Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974), in which there are some striking similarities. In Tichansky, the trial court’s denial of the husband’s 60(b) motion to set aside an alimony provision was upheld. Like the husband in the instant case, the husband in Tichansky based his claim in part on 60(b)(6). The court in Tichansky considered such factors as the husband signed the agreement voluntarily, had suggested the amount at issue himself, was warned by his wife’s attorney that the amount was excessive, and was a college graduate who had read the agreement before signing it. Tichansky v. Tichansky, supra.

In the instant case, testimony indicated the modification was the husband’s idea, that he was cautioned more than once by his wife’s attorney about the modification agreement’s binding nature, and that he willingly signed it. “The broad power granted by Rule 60(b)(6) is not for the purpose of relieving a party from free, calculated and deliberate choices which he has made.” Tichansky v. Tichansky, supra, 307 So.2d at 23.

We would note also that the 60(b) motion is as stated by the husband a 60(b)(5) and 60(b)(6) motion. Accepting such to be the case without specifically finding such, the motion was timely made. A 60(b)(5) and 60(b)(6) motion, under the language of the rule, must be made in a “reasonable time.” The motion was made shortly after the husband alleges he found out the wife did not intend to release him from the alimony obligations, to wit, approximately six to eight months. Under the circumstances, such time was not unreasonable.

We affirm the trial judge’s action in denying the husband’s 60(b) motion.

AFFIRMED.

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


text:
    Carolyn C. SMITH v. Martin B. SMITH.
    Civ. 3324.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.

      Edward B. McDermott and Constance S. Aune of McDermott, Deas & Boone, Mobile, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties and awarded certain assets to each party.

The trial court specifically provided that the wife pay to the husband “as alimony in gross the sum of $18,000. to be paid on or before Dec. 1, 1982 and said sum represents the [husband’s] equity in the homeplace.”

The wife, through able counsel, appeals contending that the trial court erred in requiring her to pay the $18,000 as indicated above. We find no error and affirm.

The facts pertaining to the “homeplace” are, to say the least, somewhat unusual.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is revealed:

The husband’s mother had owned the house for many years and had lived there with the husband, her son, for approximately twenty years. The year before the house was sold, the husband’s mother suffered a fall which left her non compos mentis. As a result, the husband’s sister was appointed as her mother’s guardian.

The sister decided to sell the house and sent notices out that the property was for sale and that bids would be taken on the house. The husband and wife were not married at this time, but they had been dating for approximately one year.

The wife and her father borrowed $14,000 and paid the purchase price for the house. However, the deed was executed conveying the property to the husband. Four days later, the husband transferred the property by warranty deed to the wife and her father.

After the house was purchased, but before they were married, the husband moved into the house and began preparing it for occupancy. Soon after moving in, the husband suffered a heart attack and the wife and her three children from a previous marriage joined the husband.

A year after the wife and her children had moved in, she in 1975 married the husband. They have been living continuously in the house from that time up until the time of the divorce in 1982.

Since the acquisition of the house, the wife had paid the payments on the house note as they came due. There was also testimony that she had made other repairs on the house from money she had borrowed and from income tax refunds and insurance proceeds from damage done to the house after a hurricane. The taxes on the house are assessed in the wife’s name and she has paid them out of her funds.

The wife is currently employed as a clerk/typist for the State of Alabama at the rate of $407 biweekly gross income. In addition, she receives $500 a month child support from her first husband.

The husband in this case is employed in the real estate business and has a real estate broker’s license. He testified that, although the amount of his income is unclear, he had contributed anywhere from $9,000 to $15,000 to “running the household” in 1981.

There was testimony that the husband repaired the house so that it was in livable condition before the wife and her children moved in and that he has performed considerable work on it since then. The husband testified that he installed central air conditioning and ceramic tile in the house and that he painted inside and out, and that he repaired the sewer lines and plumbing. In addition, the husband spent $1,500, apparently given to him as a gift by his sister, on repairing or replacing the roof. There was also $3,700 from a commission due the husband that was spent by the wife on the house.

The husband testified that he transferred the deed to his wife and her father because he was worried about his health and he did not want to incur any debts in his name. He also stated that he had no other place to live.

Testimony was adduced placing the value of the house at around $80,000. The unpaid balance on the mortgage was $8,800 at the time of the trial. The only other property in the marriage besides their individual automobiles consisted of cemetery plots to which the husband made no claim.

While the trial court designated the award to the husband as alimony in gross, we find the award to perhaps be more properly characterized as a division of property. So viewing we find no error and affirm.

A division of property in a divorce is a matter within the sound discretion of the trial court, and need not be equal, but it must be equitable. Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980); 8 Ala. Digest, Divorce, Key No. 286(5).

Considering all the facts of this case, we find it equitable to include the house in the property division. It is evident from the record that, although the wife and her father paid the purchase price, both parties contributed substantially to the upkeep and improvements on the home. Furthermore, we find the rather unusual situation surrounding the purchase of the home to substantiate the trial court’s action.

Even if the award is considered as alimony in gross, under the facts and circumstances we find no error.

Alabama Code § 30-2-51 (1982 Supp.) allows the trial court to order an allowance to be paid to one spouse from the estate of the other spouse if the first spouse has no separate estate.

Under the above referenced statute, if any of the property from that estate was acquired prior to the marriage, the trial court cannot take that property into consideration in making the allowance unless the trial court finds that the property was used regularly for the common benefit of the parties during their marriage.

There is no dispute in the instant case that the house was used for the parties’ common benefit and it is evident from a reading of the entire record that the husband has virtually no separate estate sufficient to maintain himself. We refer to the husband’s testimony regarding his income, his apparent inability to borrow money, his desire to have no assets listed in his name because of his health, and the logical inferences therefrom.

The awarding of alimony, along with division of property, is a matter within the sound discretion of the trial court and will not be reversed on appeal except for palpable abuse. Dennis v. Dennis, 383 So.2d 187 (Ala.Civ.App.1980); Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979).

In view of all of the above, we find no error and affirm the trial court’s award to the husband regardless of the characterization of the award.

We note that the husband did not favor this court with a brief. However, we have carefully searched the record for a proper perspective of the facts. Needless to say, adequate briefs from both parties are an aid to appellate courts. We thank the wife for the excellent brief filed on her behalf.

The appellant requests an attorney’s fee for representation on appeal. Such request is denied.

AFFIRMED.

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


text:
    Gail Maitland NULL v. Clyde William NULL, Jr.
    Civ. 3352.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.
    J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for appellant.
    Harry H. Perdue, Jr., Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil contempt proceeding.

The parties were divorced in 1979. In 1980, the trial court approved a supplemental contract whereby they agreed in paragraph 1 that the husband would convey the residence to the wife. She assumed full and total responsibility for a mortgage against that real estate, and she further promised to pay to the husband $1,700. Paragraph 4 of that subsequent agreement provided:

“4. Gail Maitland Null agrees to assume the following bills incurred by the parties hereto, and to pay the same from the proceeds of the sale of the premises referred to in Paragraph 1 hereof, and said bills in an amount not to exceed Five Thousand and no/100 ($5,000.00) Dollars, to-wit:
(a) Sears, Roebuck & Company
(b) Bank Americard
(c) Rollins Exterminators
(d) U.S. Naval Credit Union.”

In a stipulation in the present litigation, along with the above matters, the following facts which are pertinent to the present issue were agreed to by the respective attorneys and submitted to the trial court for consideration in reaching a decision in the ease:

“In October, 1980, the residence referred to in Paragraph 4 of the above agreement was sold. The purchase price was Eighty-eight Thousand ($88,000.00) Dollars and the net proceeds to Mrs. Null totaled One Thousand Four Hundred Twenty-one and 14/100 ($1,421.14) Dollars. That sum was applied to a loan Mrs. Null had obtained in order to pay Mr. Null certain other sums called for under another paragraph of that above referenced supplemental agreement.
“Thereafter, Mr. Null filed his Petition for Contempt. In that pleading, he set forth that he had made payments totaling Four Thousand Six Hundred ($4,600.00) Dollars on the four outstanding bills, leaving a total amount owed of Two Thousand Five Hundred ($2,500.00) Dollars. Mr. Null asked that Mrs. Null be held in contempt for ‘failing to reimburse him for all amounts which he has paid on the above bills. ... [I]t was stipulated that there was no claim that Mrs. Null’s actions were contumacious, malicious, or in any other manner contemptuous.’ ”

The learned trial court rendered a judgment upon the stipulated facts adjudging the wife to be in contempt of court for her failure to pay those creditors as listed in paragraph 4 of the agreement. Further, a judgment was rendered by the court in favor of the husband and against the wife for $5,000 and the wife was granted thirty days from the date of the judgment within which to purge herself of the contempt of court by paying $5,000 to the husband.

The wife has appealed and contends that contempt proceedings were inappropriate to enforce the provisions of paragraph 4 against her.

While the proper remedy to review a contempt order is through an extraordinary writ, we opt to treat the wife’s appeal as a petition for a writ of certiorari. Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.), cert. denied, 406 So.2d 943 (Ala.1981).

If the wife’s obligation thereunder was only a debt, contempt proceedings could not be utilized to enforce payment. However, if that responsibility constituted alimony which was to be paid to the husband by the wife, the trial court was authorized to force payment thereof through its contempt powers, if she was in contempt. Thompson v. Thompson, 282 Ala. 248, 210 So.2d 808 (1968); Thomas v. Thomas, supra; Ex parte Parker, 334 So.2d 911 (Ala.Civ.App.1976).

Under the supplemental agreement, the husband transferred his interest in the home to her and, in turn, the wife agreed to assume the mortgage debt, to pay $1,700 to him and she obligated herself, as therein specified and limited, to pay the debts listed in paragraph 4. After considering the entire 1980 agreement of the parties and its relationship to her responsibilities created by paragraph 4, the duty imposed upon her by that particular paragraph was “either a simple business transaction, or, at most, a property settlement... . Either view of the evidence compels us to say that a debt ex contractu was involved, the payment of which could not be coerced by a contempt citation.” (Citations omitted.) Ex parte Parker, supra. Since paragraph 4 did not provide for the payment of alimony to the husband but was simply an agreement for her to pay the specified debts as therein provided, the trial court erred in adjudging the wife to be in contempt of court, contempt being the wrong vehicle to enforce the payment of a debt under each of the cases previously cited herein.

The judgment of the trial court is reversed and the cause is remanded.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    O. Guthrie JEFFCOAT, Jr. v. Linda R. JEFFCOAT.
    Civ. 3364.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.

      David B. Byrne, Jr. of Robison & Belser, Montgomery, for appellant.
    Richard H. Dorrough of Turner, Wilson, Christian & Dorrough, Montgomery, for ap-pellee.
   HOLMES, Judge.

This is a divorce case. The husband appeals from the denial by the Circuit Court of Montgomery County of his petition to modify alimony payments pursuant to a divorce decree.

The parties were divorced in May of 1980. At that time, the separation agreement drawn up by the two parties was incorporated into the divorce decree. In pertinent part the separation agreement provided that the wife would have custody of the two children; that the husband would pay $375 per month as child support until the children reach majority and $400 per month in alimony until the death or remarriage of the wife; and the husband and wife would maintain their joint title to the home and ten acres adjacent to the house but that the wife would live in the house and enjoy the use of the one acre of land immediately adjacent to the house. In addition, the husband also agreed to make the monthly mortgage payments on the home, plus homeowner’s insurance for a total of approximately $500 to $525 per month. The husband also agreed to make car payments and insurance payments on the automobile in the wife’s possession. There were additional agreements as to other real and personal property and payment of debts.

The wife has previously filed two contempt citations against the husband. Following the second contempt citation, the court ordered the home and ten acres sold with part of the proceeds used to purchase another home for the wife and children, and the remaining proceeds divided between the wife and held in trust for the two children. This transaction relieved the husband of paying $500 to $525 per month in mortgage and insurance as the wife assumed responsibility for mortgage and insurance on the new residence.

In April of 1982, the husband filed a petition for modification and averred there was a material change in circumstances in that he had experienced a decrease in income while the wife had obtained training and employment. The husband asked for relief from making further alimony payments and from making payments on the wife’s car. He did not ask for any change in the child support provisions.

The trial court, after an ore tenus hearing, entered an order acknowledging “some changes in the circumstances of the parties,” but denied the petition for modification as “there is not such a material and substantial change in circumstances to justify such a modification.” From this order, the husband through able counsel appeals, and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in finding there was not such a material and substantial change in circumstances to justify a modification.

At the onset we note our well-established rule on appeal that where the trial judge hears the evidence ore tenus his judgment will be presumed correct. E.g., Roberts v. Roberts, 395 So.2d 1035 (Ala.Civ.App.1981), 2A Ala. Digest, Appeal & Error, Key Nos. 931(1), 1008.1(6). The modification of a prior decree for alimony, based upon changed circumstances of the parties, is a matter largely within the sound discretion of the trial court and the exercise of that discretion will be disturbed on appeal only if, after reviewing the evidence, this court finds such an abuse of discretion as to make the judgment plainly and palpably wrong. E.g., Roberts v. Roberts, supra; Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979). Furthermore, the burden of proving a material change in circumstances sufficient to warrant a modification of a previous decree relating to periodic alimony is on the petitioner. E.g., Jenkins v. Jenkins, 406 So.2d 976 (Ala.Civ.App.1981); Matthews v. Matthews, 404 So.2d 692 (Ala.Civ.App.1981). When, as in this case, a provision for periodic alimony is based upon the agreement of the parties, that provision should not be modified without close scrutiny, especially where so short a time, here two years, separates the decree and the hearing for modification. Roberts v. Roberts, supra; Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1243 (Ala.1979).

Although the husband, in an excellent brief, submits numerous contentions of a material change in circumstances, the heart of the matter is his allegations that he has suffered a 50% to 60% decrease in income, and is facing both personal bankruptcy and the bankruptcy of his construction company. Our careful review of the record, viewed with the attendant presumptions, reveals the following:

At the time of the initial settlement, the husband anticipated a yearly income of approximately $86,000. Since then he has suffered business reversals in both his engineering company and his construction company. Testimony by his attorney, hired to handle bankruptcy proceedings, indicated bankruptcy filings were being prepared for the construction company and the husband personally, but they were hoping to save the engineering company.

Notwithstanding these business reversals, the husband testified on direct that his “actual income now is $25,000 a year.... If you put my rentals to it, it runs it up around $30,000.

While we recognize the husband has had a marked decrease in. his income, and that he is currently indebted including a debt to the Internal Revenue Service, we cannot, in light of the presumption favoring the trial court’s judgment, say a denial of his petition is an abuse of discretion. We cannot reverse unless the trial court’s decision is “palpably wrong.” Roberts v. Roberts, supra.

“When an appellate court dutifully considers the trial evidence and is uncertain therefrom as to whether alimony should, or should not, have been modified, the party having the burden of persuasion has failed to overcome the presumption of correctness; for, under such circumstances, it is not easily perceptible, or plain, or obvious, etc., that the trial court was erroneous in rendering the judgment ... . ”

Snow v. Snow, 393 So.2d 1020, 1022 (Ala.Civ.App.1981).

The husband, according to his own testimony, still has an income of $30,000, and presumably can still pay both his alimony and child support obligations. As such, it was not palpably wrong for the trial court to deny the husband’s petition.

The husband also contends that the fact the wife, who was unemployed at the time of divorce, received additional training and is now employed constitutes a material change. While true that the wife’s financial status is a factor to be considered in a modification hearing, Matthews v. Matthews, supra, we cannot say the trial court abused its discretion in apparently finding the wife’s improved condition did not constitute a sufficient material change.

The wife’s employment at the time of the trial was for thirty-two hours a week, and was probationary. Her gross pay was $440 a month. Her house payments, including insurance, are approximately $423 a month — an expense formerly borne by the husband. In addition, her child care expenses while she works cost her approximately $225 per month. The wife’s attempt to better her situation, as commendable as it is, has not made her financially independent of the alimony payments. In fact, she testified that even with the alimony she is barely making ends meet.

Again, as indicated, in light of the fact the husband still has an income of $30,000, the sharp decrease in his income has not rendered him unable to meet his alimony obligation, and therefore does not mandate a modification. Cf. Shirley v. Shirley, 397 So.2d 156 (Ala.Civ.App.1981). For this court to reverse would require us to substitute our judgment for that of the trial court. This we are not permitted to do. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

We therefore find no abuse of discretion, and affirm.

AFFIRMED.

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


author: PER CURIAM.

text:
    Billy J. WALKER v. HUMANA MEDICAL CORPORATION.
    Civ. 3437.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.

      M.U. Griffin of Griffin & Griffin, Huntsville, for appellant.
    James E. Davis, Jr. and H. Harold Stephens for Lanier, Shaver & Herring, Huntsville, for appellee.
   PER CURIAM.

The plaintiff sued the defendant for negligently or wantonly injuring the plaintiff. The plaintiff recovered a judgment against the defendant. Thereafter, the trial court granted the defendant’s motion for judgment notwithstanding the verdict. The plaintiff appealed the trial court’s action to this court. This court reversed the trial court’s granting of defendant’s motion for j.n.o.v.

Specifically, this court stated: “This case is due to be reversed and remanded for disposition not inconsistent with the foregoing opinion.” For a more complete understanding of the case and this court’s action interested persons should consult Walker v. Humana Medical Corporation, 415 So.2d 1107 (Ala.Civ.App.1982).

Upon remand to the trial court the learned trial judge, apparently on his own motion, entered the following order:

“Pursuant to the opinion of the Alabama Court of Civil Appeals entered on May 12, 1982 (Rehearing denied June 9, 1982), and its directions contained therein, the Court hereby sets aside its Order entered on January 6, 1982, granting defendant’s Motion for Judgment Notwithstanding the Verdict.
“The prior judgment of this Court awarding Five Thousand and No/100 ($5,000.00) Dollars to the plaintiff based upon negligence is hereby set aside and held for naught in accordance with the opinion of the Alabama Court of Civil Appeals entered on May 12,1982 (rehearing denied June 9, 1982).
“It further appearing that the jury verdicts of September 17,1981, for both negligence and wantonness are inconsistent and cannot co-exist under the same action, the Court hereby enters judgment in accordance with the jury verdict based upon wantonness and assess damages against the defendant at Seven Thousand and No/100 ($7,000.00) Dollars.”

The plaintiff now appeals the trial court’s latest action and we again reverse and remand for entry of a judgment as directed.

After an appellate court, in appropriate cases, has directed entry of a judgment, the only function of the trial court is to enter and implement the appropriate judgment. Hames v. Irwin, 256 Ala. 319, 54 So.2d 293 (1951); Lyon v. Foscue, 60 Ala. 468 11871); 5 Am.Jur.2d, Appeal & Error § 991; 5B C.J.S. Appeal & Error § 1978.

While this court’s mandate in Walker v. Humana Medical Corporation, supra, may not be a paragon of clarity, by virtue of this appeal we have an opportunity to be more precise.

Our mandate in Walker v. Humana Medical Corporation, supra, under the facts and issues presented by that appeal required the trial court to enter an order setting aside the trial court’s order granting the defendant’s motion for j.n.o.v. and enter a judgment as stated by the jury’s verdict, to wit, a judgment awarding plaintiff $5,000 on his negligence claim and $7,000 on his wanton claim.

The trial court is directed to enter such order.

The case is reversed and remanded for entry by the trial court of an order as above directed.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Kathy HALE, Ricky Fincher, Carey Holloway, Eddy Ware, and Howard McCain, Jr. v. RANDOLPH COUNTY COMMISSION; Harry Murphy, as member of the Randolph County Commission; Calvin Shipp, as member of the Randolph County Commission; Jim Tom Willingham, as member of the Randolph County Commission; Fred McCain, as member of the Randolph County Commission.
    Civ. 3305-X.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.
    S. Sanford Holliday, Wedowee, for appellants.
    John A. Tinney, Roanoke, for appellees.
   BRADLEY, Judge.

The issue in the instant case can be stated in a simple and direct fashion: can the Randolph County Commission, in the face of a statute authorizing overtime pay for deputy sheriffs, limit the number of overtime hours worked to emergency situations? We conclude that the answer is in the negative.

On May 28,1981 the Alabama legislature passed Act No. 81-868, which provides in pertinent part:

“Section 1. Any non-elected law enforcement officer in the service of a county who is assigned to duty for more than eight hours during any one day or for more than forty hours during any calendar week shall be paid time and one-half for such excess hours worked; or he shall be given time and one-half compensatory leave. In all such cases, it shall be at the sole option of the law enforcement officer whether he shall receive overtime pay or compensatory leave.
“Section 2. Any such law enforcement officer who works overtime during any calendar month shall on the last day of such month file in writing a statement as to his election to accept overtime pay or compensatory leave. In the event such law enforcement officer elects to receive overtime pay, such pay shall be included with his compensation for the next succeeding pay period. If he elects to receive compensatory leave, such leave may be taken at any time during the calendar year in which it is earned, except during times of emergency.”

Thereafter, on July 27, 1981, the Randolph County Commission adopted the following resolution:

“On motion as made by Calvin Shipp that overtime hours for the Sheriffs Deputies for June and July 1981 would be paid, but beginning August 1, 1981 the Sheriff’s Office would limit the overtime hours to zero, would establish a working schedule to keep the office covered without having to exceed the 40 hour work week, except in emergency cases where a murder, rape, or other such emergency exists. At that time, the overtime hours would be approved by the commission. On motion as made by Calvin Shipp and duly seconded by Jim T. Willingham, the Chairman placed the motion before the Court for a vote. All members, being present, and voting ‘Aye,’ the Chairman declared the motion carried.”

The Randolph County Sheriff, in submitting his budget request for the fiscal year 1981-82, included an amount for overtime. This amount, however, was deleted when the commission adopted the annual budget. After the deputies each worked overtime for the months of September, October, November, and December of 1981 and January, February, and March of 1982 at the sheriff’s request, claims were submitted to and denied by the commission. The deputies brought an action in the Randolph County Circuit Court seeking to recover for the overtime hours in question. The court, in an order dated April 23, 1982, awarded the deputies overtime pay for the months worked in 1981-82 but held that the county commission had the authority to limit overtime hours to actual emergencies in the future. The deputies have appealed to this court from that portion of the order which limits their future overtime.

As a general proposition, it is axiomatic that “[a] person claiming fees or costs must point to the definite law authorizing it; the law will not be extended beyond its letter; the law may impose duties upon public officers without providing compensation therefor.” Mobile County v. Williams, 180 Ala. 639, 61 So. 963 (1913). Courts have also held that a deputy sheriff or other public official is not entitled to claim overtime in the absence of a statute or contract authorizing it. See Rusk v. Whitmire, 91 Nev. 689, 541 P.2d 1097 (1975); Donohue v. Police Commissioner, 267 Md. 612, 298 A.2d 437 (1973); City of Homestead v. DeWitt, 126 So.2d 582 (Fla.App.1961).

In the instant case Act No. 81-868 authorizes overtime pay or compensatory leave for deputy sheriffs who work “more than eight hours during any one day or for more than forty hours during any calendar week ... . ” The deputy sheriffs argue that the language of Act No. 81-868 is mandatory, i.e., any overtime work done by them at the direction of the sheriff must be compensated for either by compensatory time off or in cash. The Randolph County Commission, on the other hand, takes the position that the statute does not mandate that deputy sheriffs must be paid for an unlimited amount of overtime work. Hence, it can disallow overtime pay completely or pay for overtime worked only in certain enumerated emergency type situations.

Statutes dealing with the salaries of public officials are generally held to be mandatory. Navarro County v. Howard, 61 Tex.Civ.App. 335, 129 S.W. 857 (1910). We conclude that Act No. 81-868 is mandatory in the sense that a deputy sheriff may now be compensated for overtime work; whereas before he or she could not be so compensated.

We also conclude from the context of Act No. 81-868 that whether a deputy sheriff works overtime is a decision for the sheriff, the chief executive officer of that department of county government. See Daniels v. Hanson, 115 N.H. 445, 342 A.2d 644 (1975).

In the instant case not only did the county commission usurp and intrude upon the authority of the sheriff by attempting to say when a deputy sheriff may engage in overtime work and for what purposes, but also it refused to appropriate any money to the sheriff’s office for overtime pay for sheriff’s deputies as requested by the sheriff in the budget he submitted to the commission. The commission defends its action by citing the Budget Control Act, which, in effect, gives the county governing bodies the authority to review requests for funds from the various county agencies and to appropriate funds for their operation. The Budget Control Act does not give the county commission blanket authority to refuse to pay salaries mandated by the legislature. In Shelby County Commission v. Smith, 372 So.2d 1092 (Ala.1979), the supreme court said that the Shelby County Commission could not use the Budget Control Act as a shield to ward off its legal responsibilities to pay legally valid claims by simply omitting them from the budget. In the cited case the legislature had provided that the salaries of Shelby County deputy sheriffs would be equal to those paid state troopers. In other words, a definite salary had been specified for Shelby County deputy sheriffs by the legislature and thus the county was required to pay that salary. It had no discretion in the matter. It was required to appropriate funds for the payment of this mandated salary.

In the case at bar the legislature has not ordered the Randolph County Commission to pay a specific amount of money to the deputy sheriffs as was the case in Shelby County Commission v. Smith, supra. But the legislature has authorized the commission to pay for overtime work by deputy sheriffs when it is performed at the direction of the sheriff. Such pay for overtime work must, however, come from the funds appropriated by the county governing body for the operation of the sheriff’s office. For example, an overall amount of money would be appropriated for the operation of the sheriff’s office. Such an appropriation v/ould cover such expenses as gasoline, oil, repairs on sheriff’s office vehicles, office supplies, equipment purchases, etc. Also included in this overall appropriation would be sums mandated by the legislature to be paid, such as salaries.

In the instant case the Randolph County Commission refused to appropriate any money for the payment of overtime work by deputy sheriffs. The Randolph County Commission cannot, by refusing to appropriate any money for the payment of overtime work, prevent the deputy sheriffs from receiving pay for such work. The legislature has authorized payment for overtime work and it must be paid for out of those discretionary funds appropriated to the sheriff’s office. Such discretionary funds include moneys for gasoline, equipment purchases, supplies, etc. This means, of course, that the amount of money that can be paid for overtime work is limited to the overall appropriation for the entire operation of the sheriff’s office. In this posture the sheriff is held to a reasonable exercise of discretion in the amount of overtime work his department will incur, just as he must decide about office expenses, use of gasoline, and the purchase of equipment.

To say that the deputy sheriffs must be paid for all of the overtime that they are directed by the sheriff to work would be to approve an open-ended appropriation for this purpose. We do not perceive such an interpretation to be the law. By the same token we do not believe the commission can circumvent the law by refusing to appropriate any money for overtime pay. To say that it can, would be to say that the commission could refuse to appropriate any money for gasoline, office supplies, or equipment. Such authority could effectively be used to seriously curtail, if not stop, law enforcement efforts by the sheriff. We cannot find that the legislature had any such intention when it enacted the Budget Control Act.

We conclude, therefore, that the legislature has conferred the authority on the Randolph County Commission to appropriate an overall amount of money for the operation of the sheriff’s office. Such appropriation will include mandated sums as well as discretionary sums. Such appropriation should include a sum of money for the payment of overtime work by deputy sheriffs just as it provides for the payment of gasoline, oil, office expenses, equipment purchases, etc. The failure to include a specific appropriation for the payment of overtime work cannot prevent the payment for such work. The only limitation will be the overall appropriation to the sheriff’s office.

The judgment of the trial court is reversed and the cause is remanded for entry of judgment consistent with this opinion.

The Randolph County Commission has filed notice of cross-appeal on the issue of overtime pay awarded to the deputies. Since this issue is not raised in its brief, we are unable to consider it.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    Billy R. JORDAN, George W. Hauer, Sharon G. Davis, Bruce Hammonds and Peggy Timothy v. MALLARD EXPLORATION, INC.
    Civ. 3351.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.

      James E. Hart, Jr., Brewton, for plaintiffs-appellants.
    George M. Walker of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for defendant-appellee.
   BRADLEY, Judge.

This is an appeal from the granting of a motion for summary judgment in favor of appellee, Mallard Exploration, Inc.

The original plaintiffs in this action — Billy R. Jordan, George W. Hauer, Sharon G. Davis, Bruce Hammonds, and Calvett Pet-tis — filed a complaint on December 3, 1980 against Mallard Exploration, Inc., alleging that the company had breached a permanent employment contract. A jury demand accompanied the complaint. In essence, the employees alleged that they had been promised permanent employment with Mallard Exploration, Inc., that they had given up other gainful employment to come to work for the company at its Big Escambia Creek treatment facility, and that they were dismissed without cause. The employees sought $10,000 in damages. Subsequently, Peggy Timothy was added as a plaintiff and Calvett Pettis was dismissed. Mallard answered by denying that the employees had been wrongfully terminated and filed a motion for summary judgment. In an order dated December 21, 1981, the court granted Mallard’s motion for summary judgment, finding that no permanent employment relationship existed between the plaintiffs and Mallard and that even if there had been such a relationship, the plaintiffs were properly terminated because the company had ceased to do business in Alabama by June 1, 1979. Following a denial of their motion for rehearing, the employees have appealed to this court.

The facts in the instant appeal can be stated in a straightforward fashion: Mallard Exploration, Inc., a Texas corporation, was engaged in the business of exploring for and producing oil and natural gas. The company came to Escambia County in the 1970s where it subsequently established the Big Escambia Creek treatment facility to process impurities out of gas. Mallard operated the plant in conjunction with Exxon and various individuals but retained control over the day-to-day operations of the facility, including the hiring, firing, and supervising of all employees. Each of the employees who is an appellant in this case was hired by plant manager, N.W. Mitchell, and each continued to work for Mallard from the time of his hiring until the company ceased operations in Alabama on June 1, 1979. Each of the employees, with the exception of Sharon G. Davis, gave up other gainful employment to come to work for Mallard. On June 1,1979 Mallard transferred its interest in the facility to Exxon, retaining only a three percent interest in the profits. The company subsequently sold this interest to Grace Petroleum retroactively as of January 15,1980. By July 14, 1980 Mallard Exploration was dissolved as a corporation, and its assets were distributed to its shareholders.

The main thrust of the employees’ argument in this court consists of the contention that Mallard’s motion for summary judgment was improperly granted because they were promised permanent employment by plant manager, N.W. Mitchell. They further argue that they gave valuable consideration for their contracts when they left other employment to come to work for Mallard. They claim that Mitchell had the authority to offer permanent employment with the company and that their contracts were wrongfully terminated. Mallard answers these arguments by saying that Mitchell was not authorized to offer permanent employment with the company and that even if he had been given authority, the company had ceased to do business in Alabama by June 1, 1979.

Alabama case law has long recognized the existence of permanent employment contracts. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). In National Union Life Insurance Co. v. Ingram, 275 Ala. 310, 154 So.2d 666 (1963), our supreme court stated that two elements must be present before a contract of permanent employment will be found to exist. First, the employee must show that he has given some valuable consideration to the employer. Second, “where the promisor is a corporation, in the absence of ratification or estop-pel, it must appear that the individual or individuals who acted on behalf of the corporation had actual, as opposed to implied, authority to bind the corporation.” National Union Life Insurance Co. v. Ingram, supra (citations omitted). It is also clear from Alabama decisions that when the employer knows that the employee relinquished other gainful employment to take the job, adequate consideration is present. Scott v. Lane, 409 So.2d 791 (Ala.1982); Alabama Mills, Inc. v. Smith, supra. Once a contract of permanent employment has been formed, it “will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the work satisfactorily.” Alabama Mills, Inc. v. Smith, supra.

In granting Mallard’s motion for summary judgment and finding that the plaintiffs were not permanent employees, the trial court stated:

“Here there is a sufficient dispute of fact respecting the promise and the relinquishment with respect to all plaintiffs except Sharon Davis, but the evidence respecting actual authority fails.”

The trial court also concluded that Mallard’s termination of the employees was proper, stating that “even presuming that plaintiffs were permanent employees, the defendant did all that it was required to do under the law by retaining them as long as it had work available.”

In reviewing the granting of a motion for summary judgment under rule 56, Alabama Rules of Civil Procedure, an appellate court must view the evidence in light of the scintilla rule which demands that where there is the smallest particle of evidence in favor of the nonmoving party, summary judgment is inappropriate, and the issue must be submitted to the jury. Ex parte Bagby Elevator & Electric Co., 383 So.2d 173 (Ala.1980). The moving party bears the burden of proving that no genuine material issues of fact exist and that he is entitled to a judgment as a matter of law. Kutack v. Winn-Dixie Louisiana, Inc., 411 So.2d 137 (Ala.1982). Applying this standard to the trial court’s decision, we find that its decision to grant the motion for summary judgment was appropriate and must be upheld.

The depositions and interrogatories indicate, as the trial court found, that there was considerable dispute as to whether a valid promise of permanent employment had ever been made. The employees claim that Mitchell, the plant manager, represented to them that they would have a job with Mallard for life and that they all, with the exception of Sharon G. Davis, left other employment in reliance on his promises. Mallard answers by saying that Mitchell lacked the authority to hire employees on a permanent basis. While the record indicates that Mitchell had complete control over hiring and firing and the setting of salaries, our supreme court has said that a foreman, in the absence of a clear showing of such authority, ordinarily lacks the power to offer contracts of permanent employment. Alabama Mills, Inc. v. Smith, supra. Even assuming, however, that a promise of permanent employment was made and that Mitchell had the authority to make such a promise, the record before us indicates in a clear and uncontradicted fashion that Mallard had ceased to do business in Alabama by June 1,1979. At that time the company terminated all of its employees in the state and turned over operations of the facility to Exxon. During prior negotiations Exxon had informed Mallard that any Mallard employees who were retained would have to meet Exxon’s standards. Moreover, when Mallard sold its interest to Grace Petroleum, profits were transferred retroactively to Grace. As the decision of Alabama Mills, Inc. v. Smith, supra, indicates, a contract of permanent employment will last only as long as the employer has work for the employee to do. Since Mallard had terminated its Escambia County operations by June 1, 1979 and was, in fact, shortly to be dissolved as a corporation, it had no work for the employees, and they were lawfully terminated.

For the foregoing reasons we find that there is no genuine issue of material fact in the instant case and that Mallard was entitled to a judgment as a matter of law. Thus, the trial court properly granted Mallard’s motion for summary judgment.

AFFIRMED.

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


text:
    BANKHEAD FOREST INDUSTRIES, INC. v. Eunice T. LOVETT.
    Civ. 3421.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.
    Luke E. Alexander of Guin, Bouldin & Alexander, Russellville, for appellant.
    W.H. Rogers, Moulton, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. Employee, Eunice Lovett, was injured on the job when a stack of lumber fell on her feet, causing nerve damage. Suit was filed against her employer, Bankhead Forest Industries, Inc., and trial was had ore tenus. The evidence at trial tended to show that employee, fifty-seven years of age with a sixth-grade education and no sales experience or business equipment experience, had suffered a tarsal tunnel syndrome in both feet. Tarsal tunnel syndrome is a condition caused by a compression of the nerves. Employee testified she is in much pain and is unable to do even minor chores around the house. Her husband testified in her support to the same effect. The attending physician subjectively estimated fifteen percent disability to the left foot based on employee’s complaints of pain. The trial court found employee totally and permanently disabled, entitling her to receive workmen’s compensation benefits based on such total permanent disability as required by § 25-5-57(4) Code of Alabama 1975. Employer’s motion for new trial was denied. It is from the denial of the new trial motion this appeal lies.

Employer raises the issue on appeal as to whether there was any reasonable evidence presented to the trial court that would form the court’s basis for a finding of permanent and total disability and loss of earning ability. As its first point on this issue, employer asserts no reasonable evidence was presented to the trial court to support its finding because there was no testimony of any physical impairment other than the employee’s own testimony wherein she complained of pain and the attending physician’s subjective disability rating based on the employee’s complaints. A trial court may make a finding of permanent total disability or a percentage of disability without even expert medical testimony. Stewart v. Busby, 51 Ala. App. 242, 284 So.2d 269 (1979). Furthermore, judgment in a worker’s compensation proceeding will not be disturbed upon review by certiorari if there is any legal evidence to support the trial court’s findings, Bolden v. M. Lowenstein & Sons, Inc., 392 So.2d 1207 (Ala.Civ.App.1981). We also note that the weight of the evidence before the trial court is not before this court on appeal in a workman’s compensation case. Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453 (1964). There is no dispute that the only evidence before the court was employee’s own testimony and the attending physician’s subjective testimony based on employee’s complaints of pain. We do not weigh that evidence, but we do find that evidence to be legal and supportive of the trial court’s findings. Mobile Paint Co. v. Crowley, 673, 56 Ala.App. 674, 325 So.2d 182 (1975).

The test for permanent total disability is not absolute helplessness or entire physical disability but inability to perform one’s trade or inability to obtain gainful employment. City of Muscle Shoals v. Davis, 406 So.2d 919 (Ala.Civ.App.), cert. denied, 406 So.2d 923 (Ala.1981); Health-Tex, Inc. v. West, 401 So.2d 88 (Ala.Civ.App.), cert. denied, 401 So.2d 90 (Ala.1981). Employer asserts that because employee had no “trade” as the term is commonly used, and because the only evidence presented to the court concerning employee’s employability was her statement that “nobody can’t apply for a job with their foot in a chair,” the requirements for permanent total disability were not met. Again, we do not weigh the evidence. Horton v. DeLoach, supra. There is evidence that because of pain, employee is unable to seek gainful employment. This supports the trial court’s findings. Mobile Paint Co. v. Crowley, supra.

Lastly, employer claims under the authority of a Florida appellate court decision (Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 [Fla.App.1981]), that employee has the burden of presenting experts or doctors to say she is unable to work or that she is not retrainable. Again, we reiterate that in this state a trial court may make a finding of permanent total disability or a percentage of disability without medical testimony, Stewart v. Busby, supra, and as previously mentioned we find there is legal evidence on the record to support the trial court. Mobile Paint Co. v. Crowley, supra.

No other matters being raised on appeal, this case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Employer claims the test is conjunctive. The above cited decisions all use the word “or.”


text:
    Shirley Mae COOPER v. Samuel Edward COOPER.
    Civ. 3430.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.
    Patrick H. Graves, Jr. of Smith, Huckaby & Graves, Huntsville, for appellant.
    M.H. Lanier and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Wife claims on appeal that the trial court’s division of property, award of alimony in gross, and award of right to claim children as dependents for tax purposes were in error. Trial was heard ore tenus.

The matters complained of on appeal are matters of judicial discretion and will not be reversed unless the trial court’s findings are so unsupported by the evidence as to be clearly unjust and palpably wrong. Panayiotou v. Panayiotou, 419 So.2d 242 (Ala.Civ.App.1982). In addition, the trial court’s findings are presumed correct if supported by the evidence. Dennis v. Dennis, 383 So.2d 187 (Ala.Civ.App.1980). After a review of the record, we find no such abuse of discretion with regard to any of the matters on appeal. See Ala. Digest, Appeal & Error, Key No. 931(1).

Briefly, we note wife complains under the authorities of Boyd v. Boyd, 394 So.2d 33 (Ala.Civ.App.1980); Marshall v. Marshall, 392 So.2d 226 (Ala.Civ.App.1980), and Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244 (1945), that the alimony in gross should be increased because it was less than one-third of the marital estate. We do not find that the law requires the award to be at least one-third to one-half of the marital estate as wife asserts. Such a division need only be equitable according to the circumstances of each case. Willis v. Willis, 401 So.2d 110 (Ala.Civ.App.1981). We cannot say the circumstances of this case make the award inequitable.

This case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    Julia RUSSELL v. Jon Milton GRIFFIN and Allstate Insurance Company.
    Civ. 3485.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1982.

      J.H. Fernandez, of Allen & Fernandez, Mobile, for appellant.
    Fred W. Killion, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   BRADLEY, Judge.

The appeal is concerned with whether an insured can collect from its insurer under the uninsured motorist provision of an insurance policy and, at the same time, collect from the same insurer under the medical payments provision of the same policy.

Julia Russell filed suit against J.M. Griffin and Allstate Insurance Company as a result of an automobile collision. The claim against Allstate was based on uninsured motorist coverage in its policy of insurance issued to Russell. Allstate admitted coverage and alleged that its limit of liability was $20,000. Allstate then cross-claimed against Griffin on the uninsured motorist coverage and also sought to be subrogated against Griffin for $7,169.54 previously paid to Russell pursuant to the medical payments provision of the policy.

Several efforts were made by plaintiff to have all references to medical payments made by Allstate removed from the pleadings. Plaintiff also attempted to prevent the admission of evidence relating to the medical payments and the reference to the limits of liability under the uninsured motorist provision. Over plaintiff’s objection, the court instructed the jury that the medical payments made to plaintiff were not to be considered in arriving at the amount of damages to be assessed against defendant Griffin, that plaintiff’s recovery was limited to $20,000 — the amount of uninsured motorist coverage — and that plaintiff’s recovery against Griffin and thus Allstate would be limited to her damages excluding medical expenses. The jury returned a verdict for the plaintiff and against the defendant Griffin in the amount of $5,000. The jury also returned a verdict for plaintiff against Allstate for $5,000. The jury then found for Allstate and against Griffin on Allstate’s cross-claim for $12,169.54. After her motion for a new trial based on the admission of evidence and jury charges relating to the medical expenses was overruled, plaintiff appeals to this court.

The facts show that plaintiff and defendant Griffin were involved in an automobile collision and plaintiff was injured. Her medical expenses, for which she was reimbursed by Allstate under the medical payments provision of its automobile liability policy, amounted to $7,169.54. The policy in question provided for uninsured motorist coverage with a limit of $20,000, and the policy also provided for medical payments to the insured as a result of injuries resulting from an automobile accident. Both provisions required separate premiums. The medical payments provision further authorized the insurer to be subrogated to any payments made on behalf of the insured.

The substance of plaintiff’s argument here results in her contention that she is entitled to recover actual damages against the uninsured motorist which should have included her medical expenses. The trial court therefore erred by admitting evidence that Allstate had paid her medical expenses and by instructing the jury to disregard any medical expenses incurred by plaintiff in arriving at a verdict against Griffin. The basis for plaintiff’s contention is that she is entitled to recover whatever the proof might show her damages to be from the uninsured motorist and also to recover whatever her damages might be from her uninsured motorist insurer up to the limit of its policy of insurance. By admitting evidence that she had been paid for her medical expenses and by instructing the jury not to consider such expenses in arriving at its verdict against Griffin and Allstate, she has been denied the right to recover all of her damages.

Allstate replies that it is subrogated to the extent of any medical payments made on behalf of plaintiff up to the limit set out in its insurance policy, and to allow the jury to consider the payment by insurer of medical expenses to the insured could result in a double payment of medical expenses to the insured. According to Allstate, this would be unconscionable and thus prejudicial error.

In Employers National Insurance Co. v. Parker, 286 Ala. 42, 236 So.2d 699 (1970), a case involving the interpretation of the uninsured motorist and medical payments provisions of an automobile liability insurance policy, the supreme court said:

“The insurer’s final assignment of error is in that portion of the trial court’s decree which held that medical payment made to the insured under the ‘Expenses for Medical Services’ coverage of the policy ‘has no effect upon the uninsured motorist coverage.’ The argument is made that the insurer will be compelled to pay the insured twice for the same expenses, since medical expenses would be included in the recovery under the uninsured motorist coverage.
“However, the insurer candidly and quite commendably admits in brief:
“ ‘ * * * All the cases that we have found relate to situations where either a statute or an express clause of the policy provides that medical payments once paid under the medical payment provision may be thus deducted in considering the uninsured motorist provision. These cases are shown in the annotation of 24 A.L.R.3d at page 1356, et seq. There does not appear to be any provision in Policy 213003 which contains such an express provision. * * ’
“Our research has disclosed only one case factually on all fours with the case at bar on this issue, Sims v. National Casualty Company, 171 So.2d 399 (Fla.App.1965). In that case it was held that the insurer was not entitled to credit its medical payments against its uninsured motorist liability. The court stated:
“ ‘The two coverages of the policy which were involved here were separate and independent. For example, if the third party tort feasor had been insured or otherwise solvent and had paid the damages (including medical expenses) owed by him to the plaintiffs, that would not have relieved the plaintiffs’ insurer of its obligation to pay plaintiffs’ medical expenses. * * ’
“We find this reasoning compelling, particularly so in view of the fact that the declarations of the policy (in the case at bar) list separate premiums for medical payments and uninsured motorist coverage of $3.00 and $2.00 respectively. Having promised, in the event of accident, to provide medical payments coverage for a consideration of $3.00 and having promised to provide uninsured motorist coverage for an independent consideration of $2.00 and having failed to insert in its policy any provision relating its respective obligations under these two independent covenants, Employers cannot now be heard to complain if it is held to both promises.”

In the case at bar the insurance policy in question does not contain a provision for offsetting or deducting payments made to an insured under the medical payments provision from any payments to be made to the insured under the uninsured motorist provision, as mentioned in Parker. It is submitted that the type of express provision required by Parker would be like that policy provision set out in Sheehan v. Liberty Mutual Fire Insurance Co., 288 Ala. 137, 258 So.2d 719 (1972).

Allstate contends that the subrogation clause in the medical payments provision has the same effect on a double recovery as would a setoff provision noted in Parker. However, as stated in Parker, a specific provision allowing an offset of medical payments against a recovery under the uninsured motorist provision is necessary to prevent a so-called double recovery in the instant case. Consequently, we do not find that the general subrogation clause in the policy in question satisfies the requirements of Parker.

In the absence of such a provision in the insurance policy in question, plaintiff is entitled to recover all of her damages, including medical expenses, from the uninsured tort-feasor, Griffin, and thus against Allstate under the uninsured motorist provision of its policy up to the policy limit. Hence permitting evidence that the medical expenses had been paid by the insurer under the medical payments provision of its policy and instructing the jury not to include the medical expenses previously paid in its damages verdict against Griffin and Allstate constituted reversible error on the part of the trial court.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

HOLMES, J., concurs.

WRIGHT, P.J., concurs specially.

WRIGHT, Presiding Judge,

concurring specially:

I concur only because I believe the decision in Parker requires it.


text:
    Jesse MITCHELL v. STATE.
    3 Div. 594.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      Paul M. Harden, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Jesse Mitchell, was indicted by the Grand Jury of Escambia County for the possession of marijuana. He entered a plea of not guilty, duly and legally waived trial by jury, and was tried before the Judge of the Circuit Court, found guilty of unlawful possession of marijuana, and sentenced to the county jail for a period of one year under the misdemeanor statute for possession of marijuana for personal use only. The appellant was granted unsupervised probation for one year. Appellant appeals to this Court.

The appellant was represented by counsel of his choice at all proceedings in the trial court, and is so represented in this Court.

The appellant contends in his brief that the trial court erred to appellant’s prejudice when it overruled his motion to suppress the evidence in this case as it was secured by the search of defendant’s person, or the search of personal property allegedly belonging to defendant, namely, a vinyl shaving kit, on the grounds that the search was illegal, and was made in violation of defendant’s rights under the Fourth and Fourteenth Amendments of the United States Constitution, and in violation of defendant’s rights under the Laws and Constitution of the State of Alabama.

State’s evidence tended to prove that on January 31, 1980 Paul S. Webb, an Officer of Alabama Department of Conservation, was on duty at the T.R. Miller Wildlife Management Area in Escambia County, at about 6:50 A.M., when he observed a jeep containing four men drive up to the headquarters; that the quail season was in, and two of the men got out of the jeep and got permits to hunt quail; that Officer Webb noticed they had no quail dogs with them; that the hunting of quail without quail dogs caused Officer Webb to allow the jeep a three-minute head start, and Webb followed it; that it had rained hard the day before, and Webb had no trouble following the jeep, and found it stopped about one and three-quarter miles north of headquarters, and about fifty feet inside the Management Area; that Webb saw the appellant walking away from the jeep with a package in his hand, and he placed the package on the ground, and he appeared to pull some weeds over it, looked up and saw Officer Webb, at which time the appellant returned to the jeep, and got in on the passenger side; that then Officer Webb pulled up behind the jeep, got out of his vehicle, and asked the appellant for his driver’s license; that the appellant had no driver’s license; that Officer Webb went to the place where the appellant had placed the package on the ground, and found a brown plastic shaving kit, unzipped it, and found a chrome plated stacked barrel derringer, and two packages containing marijuana; that the place where the brown plastic shaving kit was found by Officer Webb was clear-cut, and the ground was almost as clear as the carpet in the courtroom; that Officer Webb saw nothing else around except the object he had seen the appellant place there; that Officer Webb asked appellant if it was his shaving kit, and that the appellant made no comment at all.

The appellant offered no evidence in support of his motion, nor did he testify at the trial.

The issue raised on this appeal is whether or not, under the facts shown in this record, the appellant’s rights against unreasonable search and seizure under the Fourth and Fourteenth Amendment of the Constitution of the United States, and the Laws and Constitution of the State of Alabama, have been violated. These constitutional rights are for the protection to persons who have a legitimate expectation of privacy from governmental invasion in the area searched. Collier v. State, Ala.Cr.App., 413 So.2d 396; Ex Parte Collier, Ala., 413 So.2d 403; United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. Under the undisputed evidence in this case the appellant, by placing the plastic shaving kit bag on the ground in the open woods on the reservation, and leaving it there, abandoned it. The search and seizure of abandoned property does not give rise to violation of constitutional rights. The appellant could have no legitimate expectancy of privacy when he left the kit in the open woods. We find no error in the court’s overruling appellant’s motion to suppress the evidence in this case. Jackson v. State, 45 Ala.App. 621, 235 So.2d 382; Hayes v. State, 44 Ala.App. 539, 215 So.2d 604; Skipper v. State, Ala.Cr.App., 387 So. 2d 261; Certiorari Denied, Ala., 387 So.2d 268; Brown v. State, 48 Ala.App. 84, 261 So.2d 914; United States v. Salvucci, supra.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    L.C. PEEPLES, Regional Supervisor of Department of Professional Regulation; Nancy Kelley Wittenberg, Secretary of the Department of Professional Regulation; and State of Florida, Department of Professional Regulation, Petitioners, v. Barton B. PILCHER, Respondent.
    No. 61202.
    Supreme Court of Florida.
    Sept. 23, 1982.
    Rehearing Denied Jan. 17, 1983.
    Salvatore A. Carpino, Asst. Gen. Counsel, Dept, of Professional Regulation, Tallahassee, for petitioners.
    Benjamin T. Shuman, Orlando, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fifth District, Pilcher v. Peeples, 402 So.2d 1290 (Fla. 5th DCA 1981), which directly conflicts with a decision of another district court of appeal on the same question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The question presented is, at what stage of proceedings to revoke or suspend a real estate license, is the licensee entitled under section 120.60(6), Florida Statutes (1979), to demonstrate his innocence, and, to whom? The district court held that the licensee was entitled to an informal conference at which he would be afforded the opportunity to demonstrate compliance with licensing requirements. The court also held that this informal conference must be held before the board embarks on a determination of probable cause.

Section 120.60(6) was changed effective July 1, 1981. Chapter 81-180, Laws of Florida. Pursuant to that change, a licensee is entitled to a hearing sometime prior to the entry of a final agency order, but the requirement for the informal conference was dropped. We agree with the fifth district court’s ruling in Bruner v. Board of Real Estate, 409 So.2d 146 (Fla. 5th DCA 1982), that this statutory change was procedural in nature and applies retroactively in this case. The right to a hearing before a final administrative order is rendered is substantive in nature, but the timing of when and before whom that hearing must occur is procedural.

Respondent contends that the title to chapter 81-180 is defective — that it does not meet the standard imposed by article III, section 6, Florida Constitution (1968). The title reads as follows:

An act relating to the Administrative Procedure Act; adding s. 120.52(14)(f), Florida Statutes; excluding certain law enforcement policies and procedures from the definition of “rule”; amending s. 120.60(6), Florida Statutes, revising the notice requirements with respect to the revocation, suspension, annulment or withdrawal of any license subject to the act; providing an effective date.

(Emphasis supplied.)

The test to be applied is whether the title sufficed to give notice of the subject of the statute so as reasonably to lead interested persons to inquire into the body of the act. Webster v. North Orange Memorial Hospital Tax District, 187 So.2d 37 (Fla.1966). The title meets this test and is sufficient.

The decision of the district court of appeal is quashed and the cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD and EHRLICH, JJ., concur.