text:
    Joan K. GEE v. ALABAMA STATE TENURE COMMISSION, et al.
    Civ. 3136.
    Court of Civil Appeals of Alabama.
    May 26, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied, Sept. 24, 1982 Alabama Supreme Court 81-889.
    Kenneth L. Thomas of Massey, Means & Thomas, Montgomery, for appellant.
    Sa.m M. Phelps and J. Russell Gibson, III of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is a teacher tenure case.

Joan K. Gee was employed by the Tuscaloosa City Board of Education as a tenured teacher. On May 26, 1981 she was notified that the Board intended to cancel her contract.

The letter notifying Gee of the proposed cancellation of her contract set forth ten specific grounds for such cancellation. All of these grounds related to Gee’s failure to adequately plan, organize, and teach her class, and her failure to maintain proper discipline. Hearings were held before the Board on June 22, June 24, and July 6,1981.

After these hearings, the Board voted in closed session to terminate Gee’s contract. On July 7, 1981 she was notified in writing that her contract had been cancelled. This letter, however, did not state the specific grounds upon which the Board had based its decision.

Gee immediately appealed to the Alabama State Tenure Commission. The Commission affirmed the action of the Board. Gee then filed a petition for writ of mandamus in the Circuit Court of Tuscaloosa County. On December 22, 1981 the circuit court denied Gee’s petition. As a result Gee filed a timely appeal to this court on January 29, 1982.

The only issue raised in this appeal is whether the Commission correctly found that the Board had followed the procedure outlined in § 16-24-10(b), Code 1975, in cancelling Gee’s contract. Gee says that § 16-24-10(b) was not complied with because there were no findings of fact made by the Board. We disagree with her contention and affirm the trial court’s judgment.

Section 16-24-10(b), Code 1975, provides in part as follows:

Upon notice of appeal, the board shall cause to be made sufficient copies of the record of proceedings to provide a copy for each of the members of the commission and one for the teacher. The record shall consist of all notices given to the teacher, all papers filed with the board by the teacher in compliance with the provisions of this chapter, transcript of testimony and other evidence and the findings and decisions of the board. [Emphasis added.]

In the present case Gee argues that the record does not contain the Board’s findings and decisions. Moreover, Gee contends that under § 16-24-10(b) the Board must at least reveal its reasons for terminating a teacher’s contract. Without such findings being specifically set out, Gee says that the Commission was unable to determine whether the evidence sustained the termination of employment.

The necessity of a board of education to make findings of fact was addressed in Pratt v. Alabama State Tenure Commission, 394 So.2d 18 (Ala.Civ.App.1980), cert. denied, 394 So.2d 22 (Ala.1981). In that case we held that the Board did not have to make specific findings of fact to comply with § 16-24-10(b). In Pratt we found that the Board had complied with § 16-24-10(b) by notifying the teacher in writing of the proposed grounds for termination. Further the Board’s minutes and a letter to the teacher revealed that the Board had found that the charges against the teacher had been substantiated.

Gee argues that in this case the record does not reveal any minutes of the Board wherein the Board had voted to terminate the contract. As a result she states that the Board’s findings and decisions are not sufficiently documented as required by Pratt, supra.

Recently in the case of Pinion v. Alabama State Tenure Commission, 415 So.2d 1091 (Ala.Civ.App. March 24, 1982), we addressed this same issue. In that case we held that the Board had followed proper procedure by notifying the teacher in writing of the grounds for the proposed termination, by having a hearing where a complete transcript was taken, and by notifying the teacher in writing that after considering the evidence presented at the hearing, the Board had voted in favor of termination.

All of this was done in the present case. The Board held a full hearing as evidenced by the record in this case. The evidence in the record supports the grounds for termination as set forth in the letter notifying Gee of the proposed termination. Finally Gee was notified in writing that the Board after hearing the evidence had voted to terminate her contract.

In both Pratt, supra, and Pinion, supra, we stated that it would be preferable for a board of education to make specific findings of fact, and we certainly urge boards to do so. However, under the doctrine of these prior cases, we find that the requirements of the statute were sufficiently met so as to preclude reversal.

So long as the teacher is given written notice of the proposed grounds of termination, a full evidentiary hearing is held on these grounds, and the teacher is notified in writing that the Board, after considering the evidence, has voted to terminate the contract, the teacher’s right to due process has not been violated. In this case, the Board has followed these requirements.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Jeanette F. ROGERS v. ALABAMA STATE BOARD OF EDUCATION.
    Civ. 3213.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied, Sept. 24, 1982 Alabama Supreme Court 81-905.
    William J. Baxley and Charles A. Dauphin of Baxley, Beck & Dillard, Birmingham, for appellant.
    Charles S. Coody and Jeffery A. Foshee, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case under regulations of the Alabama State Board of Education pertaining to two-year postsecondary institutions.

Jeanette F. Rogers was employed full time as a secretarial instructor at Bessemer State Technical College (BSTC) in December 1976 under an oral contract. On March 19,1979, she was transferred to a federally-funded program at BSTC. She was employed under a written contract in the federally-funded program from October 1, 1979, through September 30, 1980. The contract specifically set out that the position was non-tenured, and that the contract period did not count towards tenure. Rogers was apparently paid a sum equivalent to that she would have received according to the pay scale of the State Board of Education. The teacher received notice of termination on May 26,1980, to be effective as of June 2, 1980. The reason for termination was a decrease in enrollment at BSTC and elimination of CETA funds from which she had been paid.

Rogers requested a hearing concerning her termination. Her motion for continuance was granted on June 25, 1980, and the local hearing committee heard the case on July 31, 1980. The committee upheld her termination. She appealed to the State appeals committee. That committee heard oral argument on December 22, 1980, and upheld the local committee’s decision on January 5,1981. Rogers petitioned for writ of mandamus in the Circuit Court of Jefferson County to compel the appeals committee to withdraw its decision and reverse the decision of the local committee. The case was transferred to Montgomery County Circuit Court where venue was proper against the State Board of Education. The court denied the petition, specifically finding that Rogers had not acquired tenure and that no prejudice resulted to her by the delay of the local committee in sending her written findings of fact. From the denial of her petition, she appeals.

Rogers’ contentions on appeal are that:

(1) She had attained tenure at the time of her termination, and
(2) She was denied due process by the local committee’s violation of department regulations.

The regulations involved herein read in pertinent part as follows:

August 20, 1974-
Any full-time, year-round institutional employee of a technical institute or college shall attain tenure provided:
2. The director or president has retained the employee in the budget as a full time, regular instructor for the fourth consecutive year; and
3. Only years consisting of employment from October 1 through September 30 shall count toward eligibility in establishing tenure.
The annual employment period shall be from October 1 through September 30 unless otherwise specified by written contract.
May 8, 1979-
1. C. Tenure. Continuing service status attained at an institution when a faculty member, who has served under contract at the same institution for three consecutive years, is reemployed by the institution for the fourth consecutive year....
XI. Repealer Clause
Any and all regulations or policies adopted by the State Board of Education which are in conflict with these regulations are hereby repealed.
XII. Effective Date
This regulation shall take effect when adopted by the State Board of Education. ... These regulations shall govern all proceedings brought after they take effect and, also all further proceedings in matters then pending.

The first issue for our consideration is whether Rogers had attained tenure at the time of her termination. That issue can be narrowed further to whether Rogers’ employment from December 1976 to September 30, 1977, under oral contract should count toward tenure under the 1974 and 1979 regulations. The 1974 regulations specifically set out that only years consisting of employment from October 1 through September 30 shall count toward tenure, and that an annual employment period is from October 1 through September 30 unless otherwise specified by written contract.

Rogers contends that the 1979 regulations repealed those portions of the 1974 regulations. However, our supreme court in Hulcher v. Taunton, 388 So.2d 1203 (Ala.1980) applied the 1974 regulations as to the included dates of a creditable year for tenure purposes. The court said that the 1974 resolution and the 1979 resolution contained the same basic tenure provision. It then applied the provisions of the 1974 resolutions as to the contract year for tenure purposes. The facts, especially the dates of employment, of Hulcher and this case are nearly identical. Though the principal issue was not the same in Hulcher, the same construction of the 1974-1979 resolution was necessary; i.e., when did eligibility for tenure begin? We, as did the trial court, consider that the decision in Hulcher is dis-positive of this case. Therefore, we affirm the judgment of the trial court that the period of employment of Mrs. Rogers, from December 1, 1976 to September 30, 1977, did not count toward tenure.

The second issue on appeal is whether Rogers’ due process rights were violated by failure of the local committee to comply with the regulations which set out that the committee’s findings of fact must be served on the teacher within five days. Rogers’ hearing was held July 31, 1980. She was furnished those findings November 21, 1980, approximately one month prior to her hearing before the State appeals committee.

The trial court determined that no prejudice resulted to Rogers from the delay. We agree. Rogers had ample opportunity to present her case, and did so both before the appeals committee and the trial court. We are of the opinion that the trial court correctly determined that “the procedures afforded Mrs. Rogers were more than adequate to prevent unreasonable, arbitrary or capricious termination of her employment.”

We observe that because the trial court found Hulcher to be dispositive of the issue of tenure, it did not consider a second aspect of tenure presented to it — that was, whether the last period of employment of Mrs. Rogers under a special written contract as a CETA employee was creditable for tenure. That contract specifically provided that it was not so creditable.

That issue, not having been decided below, is not now before us. For the reasons heretofore stated, we must affirm.

. AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . She was also under written contract for the period beginning September 1, 1979, through September 30, 1979.

      . Rogers did not receive the committee’s findings of fact within five days as required. She finally received them on November 21, 1980.


text:
    STATE of Alabama, DEPARTMENT OF REVENUE v. Tharpe FORRESTER, as Receiver for Trustee Life Insurance Company, etc. (In re STATE of Alabama, ex rel. Tharpe FORRESTER, Commissioner of Insurance v. TRUSTEE LIFE INSURANCE COMPANY, etc.)
    Civ. 3159.
    Court of Civil Appeals of Alabama.
    July 14, 1982.
    Rehearing Denied Aug. 25, 1982.

      Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr. and Ron Bowden, Asst. Attys. Gen., for appellant.
    Bill Bradley of Henslee & Bradley, Gadsden, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a domestic corporation franchise tax case.

In its final judgment the trial court recited the following findings which actually consist of the stipulation of facts made by the parties:

“1. Trustee Life Insurance Company is a corporation organized and incorporated under laws of the State of Alabama, having been incorporated in Etowah County, Alabama, on June 8, 1962.
“2. In January, 1975, this Receivership proceeding was filed in this Court under the provisions of Chapter 32 of Title 27, Code of Alabama 1975.
“3. By Order dated September 3,1976, and filed in the Office of the Clerk of the Circuit Court of Etowah County, Alabama, on September 3, 1976, this Court ordered liquidation of Trustee Life Insurance Company under the provisions of Chapter 32 of Title 27, Code of Alabama 1975. That since said Order of liquidation entered on September 3, 1976, the Receiver in this cause has been in the process of liquidating the said Trustee Life Insurance Company under the provisions of Chapter 32 of Title 27, Code of Alabama 1975, and, although the corporate entity named Trustee Life Insurance Company still exists and has not been dissolved, the said corporate entity named Trustee Life Insurance Company has existed only for the purposes of liquidation by the Receiver pursuant to Chapter 32 of Title 27, Code of Alabama 1975.
“4. By Order dated September 3,1976, this Court fixed January 10, 1977, as the last date upon which claims could be filed in this proceeding by parties claiming indebtedness owed by Trustee Life Insurance Company.
“5. Trustee Life Insurance Company, in Receivership, has paid no domestic corporation franchise tax and permit fee to the State of Alabama for the years 1977, 1978, 1979, 1980 and 1981.
“6. The claim filed by the Department of Revenue of the State of Alabama for domestic corporation franchise tax and permit fee for the years 1977, 1978 and 1979 was filed in this Receivership proceeding in April, 1979. In October, 1981, the Department of Revenue of the State of Alabama filed in this Receivership proceeding an amendment to its claim described in the next preceding sentence, so as to claim domestic, corporation franchise tax and permit fee allegedly owed by Trustee Life Insurance Company, in Receivership, for the years 1980 and 1981.
“7. If the Defendant, Trustee Life Insurance Company, legally owes the franchise tax and permit fee for the years. 1977,1978,1979,1980 and 1981 as claimed in the Claim, as amended, filed in this proceeding by the State of Alabama, Department of Revenue, said tax and permit fee for said years would be owed in the amounts stated in said Claim, as amended, filed by the Department of Revenue of the State of Alabama.
“8. The franchise tax on an Alabama domestic corporation is based upon the amount of subscribed and issued capital stock of the corporation. The total par value of subscribed shares of stock of Trustee Life Insurance Company outstanding during the period 1977 through 1981 is $524,762.00. The 1979 franchise tax return of Trustee Life Insurance Company shows a total par value of subscribed shares of Trustee Life Insurance Company to be $524,762.00, which represents a total number of shares subscribed of 524,762 shares with a par value of $1.00 per share.”

The trial court determined that the receiver of Trustee Life Insurance Company (Trustee Life) did not owe the domestic corporation franchise taxes for the five years in dispute. The circuit court stated that the rights and liabilities of Trustee Life and of its creditors, policyholders, stockholders, members, subscribers and all other interested persons were fixed as of September 3, 1976, the date of liquidation judgment. Such finding was based upon the provisions of § 27-32-26, Code 1975. The State of Alabama Department of Revenue (department) has appealed from the denial of their claim for such taxes.

The franchise tax on domestic corporations is based upon the amount of capital stock of the corporation and not upon the value of the corporate property. Article XII, § 229, Constitution of Alabama (1901); §§ 40-14-40 and -41.1, Code 1975. Alabama’s franchise tax upon Alabama corporations “is imposed upon corporate existence, not corporate activity or exerted corporate function.” State v. Bradley, 207 Ala. 677, 93 So. 595 (1922). In that case it was determined that the appointment of a receiver did not work a dissolution of the corporation and, although under receivership, the franchise tax was collectible.

The legislature, by means of § 40-14-56, Code 1975, has specifically provided as to franchise taxes as to corporations in receivership as follows:

“Whenever a corporation, either domestic or foreign, is in receivership or trusteeship, the provisions of this chapter shall apply to receiver or trustee thereof, and such receiver or trustee shall be liable for franchise taxes to the same extent as the corporation would be if there were no receivership or trusteeship. Such receiver or trustee shall make all reports herein required and shall be subject to all penalties as would be the corporation.”

The taxes here in controversy arose after the September 3, 1976 judgment ordering the liquidation of Trustee Life. The specific language of § 40-14-56 as to the liability of a corporate receiver for franchise taxes controls over the statutory provisions of § 27-32-26, which govern receivership debts in general.

Since corporate existence activates the imposition of franchise taxes upon a domestic corporation, the tax continues for as long as the corporation exists under our present laws. Trustee Life, although ailing, remains alive as a corporation. It still exists and is thus liable for the disputed franchise taxes which should have been considered as administrative expenses of the receiver, who should have paid them annually when due under the requirements of § 40-14-56.

The learned trial court erred in denying and disallowing the claim of the department for the franchise taxes for the five years under litigation. We must reverse the judgment appealed from and remand this case to the circuit court for the entry of a judgment consistent herewith.

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

REVERSED AND REMANDED.

All the Judges concur.


author: WRIGHT, Presiding Judge. BRADLEY, Judge HOLMES, Judge

text:
    In the Matter of Tonya GRAYSON, Sonya Grayson and Christopher Grayson, all children under eighteen years of age. Bobby GRAYSON v. STATE of Alabama DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 3243.
    Court of Civil Appeals of Alabama.
    July 28, 1982.
    Rehearing Denied Sept. 1, 1982.
    Charles J. Kettler, Jr., Luverne, for appellant.
    Alton L. Turner, Luverne, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case. On August 18, 1981, the Crenshaw County Juvenile Court ordered that temporary legal custody of the three minor children of Bobby Gray-son (the father) be continued in the Cren-shaw County Department of Pensions and Security (DPS). The order authorized DPS to place physical custody of the smallest child, Sonya, with Ann Gibson (the mother) and custody of the two older children, Tonya and Christopher, with Lena Cole (the paternal grandmother). On October 28, 1981, the father petitioned for a modification of the previous order seeking to have permanent legal and physical custody of all three children. DPS answered and petitioned for a modification to give DPS permanent legal and physical custody of all three children without visitation rights for either parent. By order of November 6, 1981, the Juvenile Court awarded permanent legal and physical custody of the children to DPS and terminated all parental rights of the father and mother. The order further authorized DPS to place the children for adoption or place their physical custody with any person or persons it sees fit, including the mother, father, or paternal grandmother. The father appealed de novo to the circuit court. On January 21, 1982, after an ore tenus hearing, the court affirmed the November 6 order in all pertinent respects. On February 22, 1982, the father moved for a new trial. The motion was denied by order of March 5, 1982. The father filed notice of appeal to this court on April 16,1982. DPS’s motion to dismiss the appeal as untimely was denied by this court.

The record before us reveals the following pertinent facts:

The mother and father were separated in June 1980 after approximately nine years of marriage. DPS became involved in that same month when they became aware of an altercation between the mother and father which resulted in jail sentences for both parents. After gaining custody of the children pursuant to an emergency pickup order, DPS petitioned for and received temporary legal custody of the children. The parents subsequently divorced and the mother remarried. Initially, physical custody of the three children was placed with foster parents. During this time the children were brought to the DPS office for visitation, with each parent visiting on alternate weeks. According to the work log and testimony of Jan Carter, a DPS worker in Crenshaw County, she had numerous contacts and conversations with the father. On these occasions the father seemed constantly more intent on discussing his ex-wife and his quarrels with her than on working toward a stable environment for his children. He consistently berated the mother in front of the children even after repeated requests by Carter to steer clear of that subject. The mother and her second husband secured numerous breach of peace warrants against the father for his constant harassment of them. The youngest child, Sonya, consistently requested to live with her mother. In August DPS allowed the mother to have physical custody of Sonya.

Upon hearing of this, the father requested custody of the two older children. After a hearing the Juvenile Court issued an order allowing DPS to place physical custody of Tonya and Christopher with their paternal grandmother. The father resided in the house with the paternal grandmother. The order provided that neither parent should have contact with the other parent or the child or children in the other parent’s custody for twelve months. DPS required the father to refrain from interfering with complete control over Tonya and Christopher by their grandmother. He was not to be allowed to care for the children or take them anywhere by himself. The children initially seemed to respond well to this situation, but both parents soon began to disregard the conditions of the custody order. The father took the children places without the grandmother and continued to harass his ex-wife. The grandmother arranged visits between the mother and Tonya and Christopher. The mother also contacted the father in violation of the court order. More peace warrants were issued against the father. At this point the mother’s second marriage began to break up. Upon learning of the mother’s separation, the father brought the petition to modify the August 18, 1981, order to gain legal custody of all three children, alleging that the mother could no longer provide a suitable home for Sonya.

The first issue raised by the father on appeal is whether the failure to appoint a guardian ad litem on appeal to the circuit court is reversible error. We find that it is not. Rule 11, Alabama Rules of Juvenile Procedure (A.R. Juv. P.) provides:

“(G) The child has a right to be represented by counsel at all stages of the proceeding.
“(1) If any proceeding in which there is a reasonable likelihood that the child may be committed to an institution in which his freedom may be curtailed, and if counsel has not otherwise been retained, counsel shall be appointed for the child.
“(2) In all other proceedings, the court may appoint counsel in any case upon request or when it deems such appointment is in the interest of justice.” (Emphasis supplied.)

Clearly the instant case falls under the provisions of subsection (2) of Rule 11(G), A.R. Juv. P., and appointment of counsel for the minor children was not mandatory. The appeal to the circuit court was de novo. Therefore, appointment of a guardian ad litem was within the discretion of that court even though there had been an appointment in juvenile court.

The second issue is whether there is sufficient evidence in the record to support the order terminating the father’s parental rights.

In Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977), we set forth the legal principles which govern a case such as this as follows:

“Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).”

To remove custody from the natural parent there must be clear and convincing evidence that it would be against the best interests of the child to remain with the natural parent. Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981), cert. denied, 410 So.2d 426 (Ala.1982). The trial court’s judgment in cases of termination of parental rights is reviewed under the ore tenus rule. On appeal that judgment will be given every favorable presumption and will not be disturbed unless palpably wrong. Phillips v. Alabama Department of Pensions and Security, 394 So.2d 51 (Ala.Civ.App.1981).

We are of the opinion that the court’s order authorizing DPS to place the minor children with the father if it sees fit is inconsistent with the concurrent termination of his parental rights. Such an order permits DPS discretion to nullify the decree of the court. It indicates that the court was not “clearly convinced” by the evidence that the children’s best interests required termination of parental rights. The order gives the impression that the court is tired of the controversy and desires to shift responsibility to DPS. It cannot be permitted to do that. The judgment of the circuit court must, therefore, be reversed. We remand this case to the Crenshaw County Circuit Court to consider a less drastic measure for resolving the very difficult situation in which these children are involved. Though clearly a most difficult case due to the characters of the parents, the evidence does not appear to meet the high standard of “clear and convincing” as required by law. Hamilton v. State, 410 So.2d 64 (Ala.Civ.App.1982).

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY, J., concurs specially.

HOLMES, J., dissents.

BRADLEY, Judge

(concurring specially):

I concur in the conclusion that the judgment of the trial court is inconsistent in its terms. I suggest, however, that the inconsistency in the judgment goes further than mere speculation that the trial court was not “clearly convinced” by the evidence that the children’s best interests required termination of parental rights.

Section 12-15-71, Code 1975, provides:

“(a) If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child:
“(6) In appropriate cases, award permanent custody to the department of pensions and security or to a licensed child-placing agency with termination of parental rights and authorization to place for adoption, without appointing a legal custodian or guardian or guardian of the person, or award temporary custody to the same without appointing a legal custodian or guardian or guardian of the person.” (Emphasis ours.)

An award of permanent custody to the department of pensions and security, with termination of parental rights and the authorization to place the child for adoption, is the most severe disposition of a child custody situation that the court could make as far as the natural parent is concerned. Such an award of permanent custody, as opposed to an award of temporary custody, necessarily precludes the parent from later attempting to reestablish his or her visitation privileges, right to custody, or other parental rights with the child or children in question. See Glover v. Alabama Department of Pensions & Security, 401 So.2d 786 (Ala.Civ.App.1981).

The trial court in the present case may not award, on the one hand, permanent custody of the children to the department of pensions and security, along with the attendant termination of parental rights and authorization to place the children for adoption, and then turn around and give the department the discretion to “relocate” the children with the parents as it sees fit, which, foreseeably, could occur the very next day. Such an allowance is totally inconsistent with termination of parental rights and an award of permanent custody to the department.

I therefore agree that the trial court’s judgment must be reversed and the cause remanded so that the inconsistencies in its judgment can be reconciled.

HOLMES, Judge

(dissenting).

The opinion authored by our distinguished presiding judge apparently bases reversal of the trial court on a finding that the court’s order authorizing the Department of Pensions and Security to place the minor children with the father if it sees fit is inconsistent with its order terminating the father’s parental rights.

I do not believe this necessarily requires reversal although admittedly such action is somewhat unusual. The trial judge apparently found that he was “clearly convinced” that the father’s parental rights were due to be terminated at this time. However, the trial judge’s order apparently gives the Department of Pensions and Security discretion to award custody back to the natural father if, at some time in the future, he develops into a well suited parent.

The reversal of the trial judge’s order in this case might well deprive the Department of Pensions and Security of a valuable tool in providing for the welfare of children of this state. The trial court, as the hearer of evidence, is the best qualified authority to resolve situations such as this one. Its order in this case gives the Department of Pensions and Security discretion to find a good home for the children or grant custody to the father if at some time he proves himself worthy. It is my opinion that the judgment of the circuit court is not so framed as to require reversal, but may provide a means to accomplish what is in the best interest of the children.

      . By the date of the circuit court hearing, the mother had been divorced from her second husband.


text:
    Stacy STINNETT v. Dolores GILCHRIST.
    Civ. 3139.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    Dan W. McCoy, and William P. Burgess, Jr., Huntsville, for appellant.
    John Mark McDaniel, Huntsville, for ap-pellee.
   WRIGHT, Presiding Judge.

■ This is a child custody case involving a dispute between a parent and a non-parent. The cause arose under the following facts and circumstances:

Dolores Gilchrist petitioned for custody of her minor grandchildren, Charles, 10, Bobby, 7, and Mark, 4, on August 31, 1981. Custody at that time was in Mrs. Gilchrist’s son, Stacy Stinnett, the children’s natural father. He apparently was awarded custody of the children when he was divorced from their natural mother. The natural mother was not a party to this action, and the divorce decree is not of record. The action of the grandmother was precipitated by a letter to her from Charles, the oldest child. The letter related an incident in which Stinnett’s current wife, Stephanie, allegedly put Mark in a bath that was too hot and whipped him when he cried. Also, the letter contained a plea that the grandmother come to get the children.

Stinnett sought to quash service of the summons and complaint, and to change venue to Limestone County — the county of residence of both the father and the children. His motion was set for hearing October 14, 1981.

On October 7, 1981, Mrs. Gilchrist moved that the court grant her temporary custody of the children, alleging that the father might harm the children. This motion was granted the following day ex parte. The children were picked up in Limestone County on October 9, 1981, by the grandmother, with the aid of the Limestone County sheriff’s department. The father moved that the ex parte order be vacated and that a hearing be held in the matter October 14, the date set for his prior motions. No hearing was held on those issues.

A hearing on the merits of the grandmother’s petition was held October 29,1981. Testimony was taken ore tenus and the trial court interviewed the children in camera off the record at the request of the grandmother and with the consent of the father. The trial court continued temporary custody of the children in the grandmother and ordered the Department of Pensions and Security (DPS) to investigate the homes of the grandmother, the natural father and the natural mother for a nine-month period. DPS would then report to the trial court. If the report was favorable to them, the court said that the natural father or mother might move for a custody hearing at that time. Other portions of the order set out visiting rights, ordered the natural father not to interfere with Mr. or Mrs. Gilchrist and specifically reserved jurisdiction of the case. The father’s motion for rehearing was denied. He appeals.

Appellant contends that the trial court erred (1) in awarding custody to a non-parent where evidence of unfitness of the natural father was not clear, compelling and satisfactory; (2) by conducting the in camera interview with the minor children off the record; and (3) by allowing hearsay statements of the children into evidence. Appellee contends that the trial court’s order is not a final order and cannot support this appeal.

We will first address the issue of finality of the judgment. Although custody was placed in the grandmother only temporarily, we find this order to be a final judgment sufficient to support an appeal. We recognize that the trial court ordered a nine-month investigation and a report thereafter. The court, however, set no definite time for a final hearing as to permanent custody. In fact, the order places the burden of moving on the natural parents if the result of the investigation is favorable to either of them. This action of the court tends to finalize the order until a change in circumstances occurs. An important issue such as termination of parental custody, though denominated as temporary, must be reviewable. Porter v. Porter, 46 Ala.App. 22, 237 So.2d 507 (1970).

We now turn to the issues concerning the sufficiency of the evidence and the propriety of the in camera interview with the children. We find that these issues are intertwined. We are of the opinion that the in camera interview in the instant case was not erroneous. It was requested by the grandmother and consented to by the father. The record is devoid of any objection to the interview. The father contends that he was not cognizant of the fact that it would not be of record. It is apparent from the record that the trial judge and the children retired from the courtroom into the bailiff’s office wherein the interview occurred. Following the interview, the trial judge conferred with counsel outside the hearing of the parties and told them that the interview revealed in the children “a strong preference, based on fear for their own well-being, to stay with their grandmother.” This, and other, information was revealed in the record by a statement of the trial court in summary of the in camera interview, and the conference with counsel for both parties. The in camera proceeding comported with due process as defined recently by our supreme court in Ex parte Berryhill, 410 So.2d 416 (Ala.1982).

The record does not contain the information gleaned by the trial court in the in camera interview, but only a synopsis of it. Since the trial court properly received that information, and it is not before us on appeal, we must presume that such evidence sustains the judgment of the trial court. See Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722, cert. denied, 292 Ala. 714, 296 So.2d 725 (1974). We cannot disturb the trial court’s judgment on an insufficiency of the evidence theory. Bynum, supra.

Assuming arguendo that admission of hearsay evidence consisting of statements made by the children was error, we find it to be harmless error. Any error in this respect was cured by the in camera interview of the children by the trial court.

We recognize that child custody cases, especially of this nature, are heartbreaking to every party. Despite the presumption in favor of parental custody and the heavy burden placed on a third party seeking that custody, see Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981), cert. denied, 410 So.2d 426 (Ala.1982), this cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Thomas A. TALBERT. In re Doris B. TALBERT v. Thomas A. TALBERT.
    Civ. 3214.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    John W. Kelly, III and Stanley B. Sikes, Selma, for appellant.
    W. McLean Pitts and J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellee.
   WRIGHT, Presiding Judge.

This is a petition for writ of certiorari for review of, and an appeal from, a final order of the Circuit Court of Dallas County, Alabama, finding the petitioner-appellant, Thomas A. Talbert, in civil contempt for failure to pay certain sums required to be paid to the appellee, Doris B. Talbert, by final decree of divorce of the parties and orders entered by the court subsequent thereto.

The main issue on appeal is whether there was any legal evidence to support the trial court’s finding that appellant had the present ability to purge himself of a civil contempt.

The parties were divorced by the Circuit Court of Dallas County on August 30,1979. On March 25, 1980, Mrs. Talbert filed a petition alleging that Talbert had not complied with the terms and provisions of the final divorce decree requiring payment of certain sums of money. On April 27, 1981, the court found Talbert in contempt but suspended the order until May 7, 1981, at which time Talbert was to show cause why the order should not have been placed in effect and to advise the court as to what concrete steps had been taken to put Mr. Talbert’s construction corporation back on a sound footing. (The corporation had been suffering financially due to a general decline in the construction industry and poor management. The court felt that the only way to get Mrs. Talbert her money was to put the business back on its feet.)

The May 7, 1981, hearing apparently resulted in the judge’s satisfaction that the contempt order should not be placed in effect because he issued a modification of the divorce decree, reducing alimony and child support payments from $2,000 per month to $1,600 per month. However, the court ordered Talbert to pay a certain sum of money outstanding on a mortgage liability pursuant to the original divorce decree.

Mrs. Talbert filed a motion January 28, 1982, to enforce the court order of May 7, 1981. A hearing was held on February 23, 1982. The evidence established that Tal-bert had not fully complied with previous orders and owed thereunder over $14,000. Talbert introduced extensive evidence of his and his corporation’s financial condition and events occurring since the hearing in April of 1981. The record reveals that he had no material assets or source of income other than the corporation. The bank had obtained a judgment of nearly $300,000 against the corporation and had seized corporate property with a lease back agreement. An accountant had audited his personal and corporate accounts and was supervising disbursements. Since the last hearing in April 1981, Talbert had received salary from the corporation in the sum of $24,000, of which approximately one-half had been expended to the benefit of the former wife and children. There was evidence of income of the husband in prior years.

The law in Alabama is well settled that imprisonment for contempt should never be imposed by a judge where the failure to pay alimony, etc., is not from contumacy, but from inability to comply with the order. Pritchett v. State, Ala.Civ.App., 379 So.2d 616 (1980). Although one may be guilty of contempt, for failing to comply with a judgment for payment of alimony, imprisonment, as a means of coercing payment, may not be imposed if there is shown a present inability to pay. See Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. denied, 287 Ala. 737, 247 So.2d 128 (1971).

The facts, even as stated in the order of the court, indicate Talbert is without a present ability to purge the contempt found by the trial judge. The conclusion of the court that because of substantial income in years prior to failure to pay, Talbert should presently retain enough to purge a contempt, is not sufficient to support indefinite imprisonment.

We do not decide whether the evidence supports the finding of contempt. That finding was first made in May 1981, and no appeal was taken. We do hold that the evidence does not sufficiently support imprisonment until payment is made. The commitment to jail until contempt is purged must be set aside. We pretermit other claims of error.

This court is well aware of the feeling of frustration felt by a trial judge when his/her judgments are not complied with in domestic relations cases. This is especially so where there is a judgment based upon an agreement of the parties. We are equally aware that entering judgment and enforcing it are too often separate and unequal problems.

The order of commitment to jail is ordered set aside.

AFFIRMED IN PART: REVERSED IN PART AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

      . Although no formal written order was entered by the trial court, trial transcripts of that hearing and undisputed facts placed in the record at subsequent hearings by the court and both parties reveal the contents of that modification.


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    Nicholas C. PANAYIOTOU v. Cheryl PANAYIOTOU.
    Civ. 3224.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    Norton Brooker, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
    James D. Brooks and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   WRIGHT, Presiding Judge.

, This is a divorce case. The only material issue is whether the division of property and award of alimony in gross with attorney fees constituted an abuse of the discretion of the trial court.

We have carefully reviewed the evidence heard orally by the court. It discloses that the parties cohabited for some two months prior to their marriage. The marriage lasted an additional two months. The testimony of the parties as to contribution to the marriage and their financial circumstances was sharply in conflict. To relate such conflicts here would serve no precedential purpose.

This court has repeatedly said in divorce cases that the judgment of the trial court entered after oral hearing of the testimony will not be reversed on appeal unless found to be so arbitrary and unjust as to constitute an abuse of judicial discretion. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974); Goodwin v. Goodwin, 364 So.2d 678 (Ala.Civ.App.1978). We find no such abuse of discretion. Neither do we find prejudicial error in the charged violation of the best evidence rule. Having found no material error or abuse of discretion, the judgment is affirmed.

Appellee is granted a fee of $300.00 for use of her attorneys on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Gene C. BEITEL, Harold Bolton, and Gertrude R. Buskey v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY.
    Civ. 3232.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.

      Gregory B. Stein of Blacksher, Menefee & Stein, Mobile, for appellants.
    Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Gene C. Beitel, Harold Bolton and Gertrude R. Buskey are employed by the Board of School Commissioners of Mobile County as “instructional specialists.” Each of them has attained continuing service status or tenure under the Alabama teacher tenure law. §§ 16-24 — 1 to -38, Code 1975. Each of the teachers worked under a ten-month contract for the 1980-1981 school year. The Board changed the term of the contract to nine months for the 1981-1982 school year. The teachers signed the new contracts under protest and subsequently requested that the Board either (1) provide the teachers with revised contracts for a ten-month term or (2) allow the teachers a hearing before the Board pursuant to § 16-24-8, -9, Code 1975. The Board took no action on the request and the teachers appealed to the State Tenure Commission under § 16-24-37 of the Code. The Tenure Commission reversed the Board on the grounds that the Board changed a material provision of the teachers’ contracts without following the necessary procedure. See § 16-24-8, -9, -10, Code 1975.

The Board filed a petition for writ of mandamus pursuant to § 16-24-38 in the Circuit Court of Mobile County asking that the Tenure Commission be reversed. The Tenure Commission answered, and the teachers filed a motion for intervention under Rule 24, A.R.Civ.P. A proposed inter-venors’ answer and counterclaim was filed, the counterclaim requesting both declaratory and injunctive relief as well as back pay and attorneys’ fees pursuant to 42 U.S.C. §§ 1983-1988. The Board’s motion to strike or dismiss was granted. From that order, the teachers appeal.

Appellants contend that the trial court erred as a matter of law in refusing to allow their intervention. Appellee-Board contends that (1) the order is not appealable and (2) that the circuit court’s decision was correct.

We are of the opinion that the order is final as to the intervention and thus appealable. See Pruett v. Ralston Purina Co., 273 Ala. 594, 143 So.2d 309 (1962).

We recognize the right of a party to bring an action under 42 U.S.C. § 1983 in the Alabama Courts under authority of Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). However, we find no error in the denial of intervention to applicants in this case.

The proceeding pending in circuit court is not an original action but one of statutory review of administrative or quasi judicial findings and orders. It is not even a trial de novo. The jurisdiction of the circuit court in this matter is limited by § 16-24-38, Code 1975, to determining whether the proceedings before the Tenure Commission were according to the tenure act and whether the judgment of the Commission is unjust. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968); DeCarlo v. Tarrant City Board of Education, 52 Ala.App. 220, 291 So.2d 155 (1974). This court has said that such review is only upon the record before the Commission and no additional testimony may be taken. Lamar County Board of Education v. Steedley, 45 Ala.App. 672, 236 So.2d 337 (1970). As a matter of jurisdiction, the petition was properly denied.

In order to determine a right to intervene under Rule 24, it is necessary to consider the purpose and basis of the pending action together with the interest of the party or parties seeking to intervene. We have done so in this instance and find some interesting aspects and anomalies.

Rule 24, as it provides for intervention of right, is as follows:

“(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Aside from the aspect as to the form of the proceeding in which intervention is sought, there is present the question of whether the applicant’s interests are adequately represented by existing parties.

The anomaly of the request for intervention is found in an examination of the how and by whom the “action” was begun. The applicants began this action by seeking a hearing before the Board of School Commissioners. They did so under the provisions and protection of the tenure law of the state. Upon failure of the Board to provide a hearing, applicants appealed to the Tenure Commission — again as provided by law. They were heard through counsel and received a favorable ruling from the Board. During these proceedings, applicants were the moving parties — the “action” was theirs — they won.

The scene now shifts. As permitted by law, the Board having lost, now seeks review of the judgment of the Commission. By its very nature mandamus, the authorized form of review, is directed not to the successful parties but to the judicial officers or body rendering the judgment complained of. Such procedure is well known in the law. The effect is not to dismiss the parties but to charge error to the ruling body. Thus the petition for mandamus was filed against the Tenure Commission.

If the teachers (applicants) had lost their action before the Commission they would have been able to seek the same method of review against the Commission in circuit court.

Thus, it is to be seen that those now seeking to intervene are already parties— and winners at that. They initiated and prosecuted the case to a favorable judgment. They are at liberty to assist the Commission in defending its judgment before the circuit court. It is a fact that counsel representing the Commission are also counsel for applicants in intervention and previously before the Commission. Applicants’ interests are adequately represented.

The final anomaly of applicants’ petition to intervene is that they charge violation of their constitutional rights of due process. They make such charge while prosecuting their rights under state statute and achieving success in doing so. They complain of state denial of due process while involved in the process of receiving it. The effect of the petition is to refute and disclaim the state-given process and remedies which successfully brought them to this point.

Applicants’ claim of denial' of due process is based upon the refusal of the Board to grant them a hearing. In anticipation of such refusal, the state has specifically provided in § 16-24-37 the remedy being presently pursued by applicants in this case. How, then, has due process been denied?

We recognize that it is generally the rule that exhaustion of state remedies is not a prerequisite to suit under 42 U.S.C. § 1983. Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 214 (1975). We perceive no reason why a § 1983 action could not have been brought before proceeding under the state tenure act. Such action could have been brought in either state or federal court as an original action. Such action was brought in the case of Smith v. Birmingham Board of Education, 403 So.2d 226 (Ala.1981). However, it is our opinion that such suit is contrary to the nature of the present proceeding, does not involve the same issues and seeks different relief. It approaches mootness because the basic relief sought (reversal of cancellation) had been achieved at the time of filing the petition to intervene.

For reasons stated, we affirm the denial of intervention and remand for hearing on the merits of the petition for mandamus.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.

HOLMES, Judge

(concurring in the result).

I concur in the result only.

Clearly, the trial court’s denial of appellants’ motion for intervention was reviewable by this court. See Pruett v. Ralston Co., 273 Ala. 594, 143 So.2d 309 (1963). The denial or granting of a motion to intervene is within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. Walker County Department of Pensions and Security v. Mason, 373 So.2d 863 (Ala.Civ.App.1979). I find no evidence in the record of such abuse as to require reversal and, therefore, would affirm.


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    Carolyn WELBORN v. JIMMY JOHNSON FORD, INC., and The First National Bank of Florence.
    Civ. 3235.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.

      Roger H. Bedford, Jr. of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    Robert L. Gonce of Gonce, Young, Howard & Westbrook, Florence, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil action for the conversion of an automobile because of its alleged wrongful repossession.

The vehicle was purchased by Mrs. Wel-born (the buyer), with the buyer executing a security agreement thereon. That instrument provided that the buyer would insure the car against certain losses and that, if she failed to procure or continue that insurance, the entire amount owing would become due and payable at the option of the secured party. It further authorized the secured party to exercise its rights of enforcement under the Uniform Commercial Code in the event of a default and it granted permission to the secured party to enter upon the buyer’s premises in order to take possession of the automobile. That contract contained an acceleration clause and also provided that, “Secured party may, at its sole option, waive or remedy any default without waiving the default remedied and without waiving any other prior or subsequent default.”

The combined note and security agreement was transferred, without recourse, by the seller to the First National Bank of Florence (the bank). Without any breach of the peace, or without provocation thereof, the bank repossessed the vehicle by self-help on August 27, 1979, pursuant to § 7-9-503, Code 1975, which provides in applicable part, as follows:

“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed in action.”

At the time of such repossession, the buyer agreed that she was at least delinquent as to the installment due in August 1979 and, additionally, she, admittedly, had allowed the insurance required by the security agreement to lapse on May 16, 1979, for nonpayment of its premium. Accordingly, the bank’s repossession of the vehicle was legal and proper under the terms of the contract and under the U.C.C. Reno v. General Motors Acceptance Corp., 378 So.2d 1103 (Ala.1979); Hale v. Ford Motor Credit Co., 374 So.2d 849, 853 (Ala.1979); Crabtree v. Ford Motor Credit Co., 413 So.2d 1161 (Ala.Civ.App.1982). Here, the buyer was not innocent and cannot claim the benefit of the doctrine of equitable estoppel because of her dereliction of duty and inadvertence in failing to continue the required insurance as well as in failing to timely pay, or procure the timely payment of, the August installment. Auto-Plaza, Inc. v. Central Bank of Alabama, 394 So.2d 6 (Ala.1980); Hale v. Ford Motor Credit Co., supra.

We have carefully reviewed the pleadings, affidavits, security agreement, depositions, admissions and answers to interrogatories, which show that there is no genuine issue as to any material fact and that the seller and the bank are each entitled to a judgment as a matter of law as to the alleged conversion of the automobile. The trial court did not err in granting a summary judgment in favor of each defendant. We must affirm.

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.

AFFIRMED.

All the Judges concur.


text:
    Louise C. THOMPSON v. James W. THOMPSON.
    Civ. 3258.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.
    George M. Higginbotham, Bessemer, for appellant.
    J. Howard McEniry, Jr. of McEniry, McEniry & McEniry, Bessemer, for appel-lee.
   WRIGHT, Presiding Judge.

This is a case involving application of Rule 59.1, A.R.Civ.P.

The parties were divorced October 2, 1981. Appellant moved for new trial on October 30,1981. A hearing on the motion was set for November 13,1981. The record contains an entry on the case action summary sheet as follows: “1-15-82 — Case passed to be reset due to injury of counsel for plaintiff. Ralph D. Cook-Judge.”

There is no explanation on the record as to why the setting for November 13, 1981, was not held. Neither is there explanation as to why there was no subsequent entry until January 15, 1982. It is apparently agreed in brief that a hearing on the motion was to be held on that date, but was passed because of the injury to plaintiff’s attorney and was to be reset at some future time. It was not reset and the ninety days allowed for a ruling by Rule 59.1 expired without such ruling.

On March 26, 1982, almost five months after the date of filing of the Rule 59 motion, an order was entered denying the motion. In that order, the trial court found that defendant’s consent to the continuance of the motion on January 15, 1982, was not a consent to extend the period of ninety days. Therefore, the motion was deemed denied on the ninetieth day by the terms of Rule 59.1. The notice of appeal from such denial was filed on April 22, 1982. Such filing was much later than forty-two days from the denial of the motion for new trial by operation of Rule 59.1. Rule 4(a)(3), A.R.A.P. Personnel Board for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App.1977).

Therefore, this court is without jurisdiction of this appeal. The motion for dismissal is granted.

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    William Gerald NESMITH, Jr. v. Brenda Joyce NESMITH.
    Civ. 3283.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.

      Walter E. Duffey, Huntsville, for appellant.
    Gary L. Aldridge of Aldridge & Haddock, Decatur, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife sought a divorce from the husband. After an ore tenus hearing the trial court denied the parties a divorce. Thereafter, within thirty days, the wife filed a Rule 59, A.R.Civ.P., motion to alter, amend, or vacate the court decree, or in the alternative, motion for a new trial. The trial court, in response to the motion, took additional testimony at a hearing on the motion. The divorce was then granted on grounds of irretrievable breakdown of the marriage. Custody of the parties’ two minor children was awarded to the wife.

The husband, through able counsel, appeals and pertinently contends the trial court erred in allowing additional testimony at the hearing on the rule 59 motion, and in entrusting permanent custody of the minor children to the wife.

The dispositive issues on appeal are whether the trial court abused its discretion in taking the aforesaid actions. We find no such abuse as to require reversal, and affirm.

We do not deem it necessary nor prudent to set out in detail the pertinent facts.

I

Rule 59 states:

“On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” (Emphasis supplied.)

Clearly, in this instance, under the language of the rule itself, the trial court's admission of additional evidence was within its discretion. “Rule 59(a) ARCP provides the court may open the judgment, take additional testimony and enter a new judgment. Such action is clearly discretionary. Rayford v. Rayford, 390 So.2d 636, 637 (Ala.Civ.App.1980). See also, Trauner v. Lowrey, 369 So.2d 531 (Ala.1979); Dale County Department of Pensions and Security v. Robles, 368 So.2d 39 (Ala.Civ.App.1979).

We particularly note that the divorce was granted on grounds of irretrievable breakdown of the marriage. There was ample testimony during the original hearing to support a divorce decree on those grounds even though the trial court did not initially grant the divorce.

II

After an ore tenus hearing, the trial court awarded custody of the two minor children to the mother. The father as indicated appeals, contending the trial court abused its discretion in granting custody to the wife since the wife has admitted committing adultery, and there was no finding of marital misconduct on the father’s part.

The moral unfitness of a parent sufficient to deprive her of custody must be such as to have a direct bearing upon the welfare of her child. A parent will not be denied custody for every act of indiscretion or immorality. Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214 (1975). The award of custody of the children is a matter within the discretion of the trial court and will not be set aside unless it is so contrary and unsupported by the evidence as to appear clearly adverse to the best interest and welfare of the child. E.g., Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981).

Viewing the record with the attendant presumptions, we find evidence that the wife is a good, loving mother and provided for the needs of her daughters; and that the mother and her youngest daughter are particularly close.

The case is due to be affirmed.

AFFIRMED.

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


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    In the Matter of Barbara Jean DUNSON, Mentally Ill v. Elizabeth CHRISTIAN.
    Civ. 3329.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1982.

      Mercería L. Ludgood, Mobile, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an involuntary commitment order rendered May 19, 1982, by the Mobile County Probate Court against Barbara Jean Dunson. The cause arose under the following pertinent facts:

On April 21, 1982, Elizabeth Christian, appellant’s mother, petitioned for involuntary commitment of appellant, Barbara Jean Dunson. A guardian ad litem was appointed for appellant, and petitioner was represented by a court-appointed attorney. After a hearing on May 11, 1982, the probate court found “probable cause” for appellant to be confined to the Mobile Mental Health Center In-Patient Unit for diagnosis, treatment and evaluation until a final hearing on the merits. Following the final hearing on May 19, 1982, the probate court in its order stated that:

“It appearing to the Court from the evidence adduced on the 19th day of May, 1982, that it is clear, unequivocal and convincing that Barbara Jean Dunson is mentally ill and poses a real and present threat of substantial harm to herself and others; that the danger has been evidenced by recent overt acts of the individual; that there is treatment available for the illness diagnosed and that commitment to Searcy Hospital, Mt. Vernon, Alabama, is the least restrictive alternative necessary and available for treatment of the person’s illness;
“It is therefore, ordered, adjudged and decreed by the Court that Barbara Jean Dunson, be and is hereby committed to Searcy Hospital, Mt. Vernon, Alabama, for safekeeping and for treatment of her mental illness.”

From that order Ms. Dunson appeals through her guardian ad litem.

The evidence before the probate court revealed the following:

Appellant is twenty-seven years old and the mother of two children. Prior to the probable cause hearing, appellant resided with her mother, Elizabeth Christian, petitioner herein. Appellant’s father, brother, two sisters, and two children also resided in the house. Apparently her only income consists of welfare payments. A clinical psychologist testified that on the basis of his observations of appellant and evaluation of certain tests, it was his opinion that appellant was currently mentally ill. He diagnosed her condition as schizophrenia, paranoid type, chronic, with acute exacerbation. The psychologist testified that appellant poses a danger to herself and to others, is belligerent and resistive to treatment. It was his opinion that the least restrictive treatment would be hospitalization on an involuntary basis. Such treatment is available at Searcy State Hospital at Mt. Vernon.

Petitioner testified that within the six months prior to the hearing appellant had threatened her with a kitchen knife and also had used an unreasonable amount of force in whipping her young daughter with an extension cord. Petitioner further stated that appellant suffered from hallucinations and would not keep herself or her children clean.

Appellant denied that the kitchen knife incident had occurred. She admitted to whipping her daughter, but denied the use of an extension cord. She stated that none of her family liked her and that they were trying to turn her little girl against her. She explained that the instant petition was begun by her mother in an effort to protect her brother. Appellant alleged that her brother had attacked her on the sofa and she had pressed charges against him.

Section 22-52-10, Code (1981 Supp.) provides:

“(a) If at the final hearing upon a petition seeking to commit a person to the custody of the state department of mental health or such other public facility as the court may order, the probate judge, on the basis of clear, unequivocal and convincing evidence, shall find:
(1) That the person sought to be committed is mentally ill; and
(2) That as a consequence of the mental illness the person poses a real and present threat of substantial harm to himself or to others; and
(3) That the threat of substantial harm has been evidenced by a recent overt act; and
(4) That treatment is available for the person’s mental illness or that confinement is necessary to prevent the person from causing substantial harm to himself or to others; and
(5) That commitment is the least restrictive alternative necessary and available....
“(b) If any such element be unproved, the probate judge shall deny the petition and discharge the subject of the petition sine die.” (Emphasis supplied.)

The wording of the probate court’s order strictly complies with the requirements of the Code provision. The issue on appeal is whether the evidence in the record supports a finding that such evidence is “clear, unequivocal and convincing.”

The requirement that the evidence be “unequivocal,” if viewed in strict definition, is indeed a high burden of proof for involuntary commitment in Alabama. See, In the Matter of Cartee, 410 So.2d 905 (Ala.Civ.App.1982). However, the term “unequivocal” cannot be reasonably construed in this statute to mean undisputed or without conflict. The adversary context in which involuntary commitment cases arise necessarily envisions the possibility of disputed facts and conflicting evidence.

In the instant case the facts are in dispute. Appellant denies petitioner’s allegations concerning a recent overt act. She also denies that she is mentally ill. The judge personally heard all of the evidence. With his opportunity to view the witnesses and assess their credibility, the judge was in the best position to resolve disputed testimony. The ore tenus rule applies. We are not authorized to disturb the factual findings contained in the final judgment of the probate court unless clearly and palpably wrong. Walker v. Dancer, 386 So.2d 475 (Ala.Civ.App.1980).

There is evidence in the record before us which, if believed, could be deemed “unequivocal” proof of all of the required findings under § 22-52-10, Code (1981 Supp.). We cannot say, therefore, that the findings of the probate court are plainly and palpably wrong.

This case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Pauline J. (Bell) JAMES v. L. G. BELL.
    Civ. 2797.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.

      Nicholas S. Hare, Jr., of Hare & Hare, Monroeville, for appellant.
    Edward T. Hines of Garretts, Thompson & Hines, Brewton and Coxwell & Coxwell, Monroeville, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant seeking to establish an interest in certain real property. The plaintiff additionally sought $2,600 in damages. The circuit court denied the plaintiff’s claims and she appeals. We affirm.

The record in pertinent part reveals the following: The plaintiff and defendant were married in 1960. In 1975, the defendant-husband acquired title by warranty deed to the subject real estate. The deed listed the defendant-husband as the sole grantee.

In 1976, the subject property was conveyed to third parties. The conveying deed in part is as follows:

“We, L. G. Bell [defendant] and wife, Pauline J. Bell [plaintiff], Goodway, Alabama, (herein referred to as Grantors) do grant, bargain, sell and convey unto Dan-nylu James and Daniel Bryan Quimby, Goodway, Alabama, subject to the reservation of a life estate in Grantors therein

Thereafter, in 1978, the plaintiff and defendant were divorced. In 1979, the plaintiff filed the action giving rise to the instant appeal. The lawsuit contained four counts. COUNT I claimed that the deed in question reserved a life estate in the plaintiff. The trial court granted summary judgment in regard to COUNT I in favor of defendant, finding in effect that as a matter of law under the undisputed facts no such interest was created.

After an ore tenus hearing, the trial court found in favor of the defendant on the remaining counts. These counts in essence alleged an agreement between the parties to the effect that the plaintiff was to have an interest in the property.

To this court there are two dispositive issues. (1) Did the deed create an interest in the subject property, after divorce, in the wife? (2) Does the evidence support the trial court’s finding that no agreement existed?

I

The first issue presents to this court a question of first impression in Alabama: How does divorce affect the reservation of a life estate in favor of the husband and wife in property owned solely by the husband?

It is undisputed that the husband intended to create a life estate at the time the property was conveyed. The provision reserving the life estate reads, “... subject to the reservation of a life estate in Grantors therein .. . ”. The grantors are named in the deed as L. G. Bell and wife, Pauline J. Bell. The wife had no vested interest in the property at the time the life estate was reserved. The question then arises, what interest did the creation of the life estate reserve for the wife?

The wife contends that the reservation created an undivided one-half interest in the life estate, and therefore, the trial court erred in denying summary judgment in favor of the wife on COUNT I and/or erred in granting the husband summary judgment on the same count.

We do not agree with this contention and affirm as to COUNT I for the following reasons:

An understanding of reservations and how they operate is necessary in determining the extent of the wife’s interest in the property in question. Once the extent of her interest is determined, the question then becomes one of how this interest was affected by the subsequent divorce.

Generally, a reservation is the creation in behalf of the grantor of a new right issuing out of the property granted. The grantor cannot reserve anything greater than what he was able to convey. That is, the grantor can reserve only a lesser included interest in what he previously owned. 52 A.L.R.3d 753. There is no question that husband was able to reserve a life estate in the instant case. However, it is a well settled rule that a reservation cannot be made in favor of a stranger to the title. Jackson v. Snodgrass, 140 Ala. 365, 37 So. 246 (1904); 26 C.J.S. Deeds § 138(c).

Here, the wife had no vested interest in the property at the time of conveyance, only inchoate interests, such as dower and possibly homestead. Are these inchoate interests sufficient to acquaint the wife with the title? Put another way, is the wife, under these facts, in effect a stranger to the title? It is important to keep in mind that a reservation creates a new interest that was not present before the conveyance. If, however, an interest existed before the conveyance, such as an easement, and a third party or stranger to the title had rights in it, that interest could be reserved in favor of the stranger. This is riot the situation here. The interest involved in the instant case was clearly an interest that did not exist before the conveyance and reservation. Keeping the ábove in mind, it follows that appellant could not obtain any greater interest in the title than that which she had to start with, i.e., inchoate dower and possibly homestead. This is important because property cannot be conveyed by reservation unless words of conveyance are clearly used. 26 C.J.S. Deeds § 140(3). In the instant case, the provision reserving the life estate did not convey the estate to plaintiff. It could only reserve some kind of interest.

The court in White v. City of Marion, 139 Iowa 479, 117 N.W. 254, 257 (1908), clearly states the rule to be followed in the instant case:

“Such a reservation as is here found does not amount to a conveyance of a life estate to the wife, nor to a transfer of a life estate to husband and wife jointly. It reserved to the grantor, out of the thing granted, a life estate during his life and the life of his wife. All that the wife reserved was a life estate in what she theretofore had, which was an inchoate right of dower and, perhaps, a homestead. As she had no other title, and as the reservation conveyed nothing to her, she, by the reservation, got nothing more than a life estate in what she had. The life estate in the real property was manifestly reserved to the husband, and should be valued accordingly. There is no departure from these rules in any of the eases. The reservation may, and doubtless should, be treated as an exception of a life estate from the grant, and perhaps of the widow’s inchoate right of dower during her natural life, but it did not operate to convey the title to husband and wife jointly. [Citations omitted.]”

The above reasoning is supported in other jurisdictions. See Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908); Butler v. Gosling, 130 Cal. 422, 62 P. 596 (1900); Ogle v. Barker, 224 Ind. 489, 68 N.E.2d 550 (1946); Meador v. Ward, 303 Mo. 176, 260 S.W. 106 (1924); Lemon v. Lemon, 273 Mo. 484, 201 S.W. 103 (1918); Logan’s Admr. v. Caldwell, 23 Mo. 372 (1856); Eysaman v. Eysaman, 24 Hun. 430 (N.Y.1881); Jackson ex dem. Wood v. Swart, 20 Johns 85 (N.Y.1822); Leidig v. Hoopes, 288 P.2d 402 (Okl.1955); Gorham v. Daniels, 23 Vt. 600 (1851); Beverlin v. Casto, 62 W.Va. 158, 57 S.E. 411 (1907).

In view of the above the most reserved to the wife would have been a life estate in her inchoate right to dower, etc. This being so it is clear that such an estate is now terminated by divorce. § 43-5-4, Code of Ala.1975.

This court is cognizant of cases from some jurisdictions which appear to support the wife’s position. However, we note such cases appear to be significantly distinguishable from the instant appeal. In some of such cases the courts appear to rely heavily on the intent of the grantor. This intent was usually manifested in something more than just the wording of the deed. Here, the only apparent, appropriate expression of intent was the deed itself.

Further, in cases cited by able counsel for the wife, in support of her position, it is noted that the grantors (husband and wife) retained possession until the death of the one grantor who owned the fee. Here, as shown above, the parties were separated; not by death, but divorce.

To summarize, under the facts of the instant case, we believe that the attempted reservation in favor of the wife was ineffectual, inasmuch as a reservation cannot create an estate greater than that already in existence. The most that could have been reserved to the wife was a life estate in her inchoate right to dower, etc., and clearly this estate was destroyed by operation of law upon the granting of the divorce. § 43-5-4, Code of Ala.1975. Hence, the trial court did not err in granting summary judgment in favor of her husband.

II

Plaintiff-wife contends the trial court erred in finding that no agreement, enforceable in equity, was made between the parties to reserve and create a life estate for both of them. Such a finding, plaintiff argues in brief, is contrary to the great weight of competent evidence. We find such a contention unsupported by the record, and affirm as to COUNT II.

At the onset, we note the well settled legal principle that findings by a trial court sitting ore tenus are entitled to a presumption of correctness which can be overturned only if plainly or palpably erroneous. E.g., Kwick Set Components, Inc. v. Davidson Industries, 411 So.2d 134 (Ala.1982). And, “this rule is especially applicable in cases in which the trial court makes its findings of fact after hearing conflicting evidence . .. ”. Gulledge v. Frosty Land Foods Int’l, Inc., 414 So.2d 60, 63 (Ala.1982).

Furthermore, the scope of review in a case heard ore tenus is extremely narrow, and every presumption will be indulged in favor of the trial court’s judgment. U-Totem of Alabama, Inc. v. Board of Adjustment, 412 So.2d 787 (Ala.Civ.App.1982).

In this case, husband and wife both testified, producing conflicting evidence over whether such an agreement was made. The husband testified that he did not intend to reserve any interest in the property for his wife that would survive a divorce, and that the reservation clause was a product of the draftsman. He denies discussing with his wife an agreement to reserve a life estate for her.

That the trial court resolved the conflict in favor of the husband is not reversible error since it is neither palpably wrong and without supporting evidence nor manifestly unjust. See, e.g., Silverman v. Charmac, Inc., 414 So.2d 892 (Ala.1982); Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027 (Ala.1980).

Our review of the record convinces us that the trial court had before it sufficient evidence to find no agreement was made between the parties to reserve and create a life estate for both of them. We therefore affirm as to COUNT II.

Both counsel for appellant and appellee have filed with this court excellent briefs for which we are grateful.

AFFIRMED.

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


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    Tommy GORMAN, d/b/a Gorman Construction Company v. Charles Densby LOWERY.
    Civ. 3161.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.
    Tim Reynolds of Reynolds & Williams, Troy, for appellant.
    No Brief for appellee.
   WRIGHT, Presiding Judge.

This appeal is taken from the order denying a motion to vacate the summary judgment granted to defendant Charles Densby Lowery against plaintiff Tommy Gorman in a suit on an oral construction contract.

Sometime in July or August of 1980, Tommy Gorman and Charles Densby Lowery discussed the construction of certain additions and improvements to Lowery’s residence. After several discussions, they agreed upon a price of $14,500. Gorman estimated that the job would require about six weeks, and work began on or about October 15, 1980. No written contract was ever entered into by the parties, and at no time during the construction did plaintiff have a general contractor’s license from the state of Alabama.

Construction continued under the original agreement until January 1981, when Gor-man informed Lowery that he had no more money to buy materials and that the job was running more than expected. At that point, Lowery agreed to buy materials and pay Gorman and his help by the hour. On January 15, 1981, after several disagreements concerning the quality of Gorman’s work, Lowery told Gorman not to return to the job site. At that time, Lowery had paid Gorman or his workers a total of $10,909.30 for labor and materials. Construction of the addition and improvements, including the reworking of some of Gorman’s work, was completed by Padgett Construction Company at a cost of $13,000.

On March 20,1981, Gorman filed his original complaint against Lowery seeking $10,-000 for work and labor. Lowery filed an answer generally denying the allegations in Gorman’s complaint and further alleging that any agreement between Lowery and Gorman was null, void, illegal and unenforceable as against public policy and in violation of § 34-8-2, Code of Alabama 1975. That statute requires that general contractors in Alabama be licensed. Lowery moved for summary judgment based on the same argument. Lowery also filed a counterclaim against Gorman for breach of contract and damages of $13,000.

On October 23, 1981, Gorman filed an affidavit in opposition to the motion for summary judgment in which he denied that the total cost of the job exceeded $20,000 and claimed that the actual cost of the job totaled $17,936.23. The affidavit was supported by various receipts and checks for materials and labor. Gorman amended his complaint to reflect this new estimate of the actual cost of the job and to claim $8,693.73, with interest and costs. The judge thereafter entered an order granting summary judgment for Lowery and against Gorman.

On January 5, 1982, Gorman’s motion to vacate the summary judgment was denied without hearing. This appeal is taken from that order.

A motion for summary judgment is properly granted when “the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e), A.R.Civ.P.; Sexton v. Liberty National Life Insurance Co., 405 So.2d 18 (Ala.1981). Thus, on appeal, there are basically two considerations: (1) is there any genuine issue of material fact underlying the adjudication; and (2) was the substantive law correctly applied? 6 J. Moore, Moore’s Federal Practice ¶ 56.27 (2d ed. 1976). In Alabama this test is applied in conjunction with the “scintilla evidence” rule, so that if there is a scintilla of evidence supporting the position of a party, summary judgment cannot be granted against that party. Rule 56, A.R.Civ.P., Committee Comment; Gross v. Republic Steel Corp., 400 So.2d 383 (Ala.1981).

In this case, summary judgment was granted based on plaintiff’s alleged violation of § 34-8-2, Code 1975, which requires that a “general contractor” doing business in Alabama be licensed. “General contractor” is defined in § 34-8-1, Code 1975 as “one who, for a fixed price, commission, fee or wage, undertakes to construct or superintend the construction of any building, highway, sewer, grading or any improvement or structure where the cost of the undertaking is $20,000 or more.” According to Tucker v. Walker, 293 Ala. 589, 592, 308 So.2d 245, 247 (1975), in order for the defendant to be granted summary judgment in such a case it must be shown: (1) that plaintiff was not licensed; (2) that the contracted work was of a type covered by the statute; and (3) that the cost of the work was $20,000 or more. Plaintiff Gor-man admits that he was not licensed. Section 34-8-7, Code 1975 specifically exempts from the provisions of the chapter “the construction of any residence or private dwelling.” Both the plaintiffs complaint and the defendant’s counterclaim allege that the work was to be done on defendant’s “residence.” Plaintiff’s deposition states the contract was for residential construction. Thus, there appears to be a rather significant issue of fact which is stated to be in favor of plaintiff. Thus defendant’s defense of the statute is an issue of fact which is in conflict. The trial judge erred in granting summary judgment for the defendant. The order denying the motion to vacate the summary judgment is therefore reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


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    Ozell D. WESLEY v. William O. BRANDON.
    Civ. 3257.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.

      John F. Proctor and Tommy Armstrong, Scottsboro, for appellant.
    Jack Livingston of Livingston, Porter & Paulk, Scottsboro, for appellee.
   HOLMES, Judge.

Ozell D. Wesley, appellant, through able counsel, raises several issues on appeal related to a judicial sale of a house and lot owned jointly by her and her ex-husband, appellee, William 0. Brandon.

In her initial complaint, filed April 18, 1979, Mrs. Wesley sought a sale for partition of the house and lot, and asked the trial court to determine the amount Mr. Brandon owed in back child support and alimony based on a 1974 divorce settlement. In addition, she asked that a lien be placed upon Mr. Brandon’s share of the sale proceeds for that amount. She also sought an accounting for the rental proceeds Mr. Brandon received from the house, and to impress a lien upon his share of the sale proceeds for that amount.

In a November 1981 order, the trial court ordered the house sold; ordered the clerk to deduct alimony arrearages of $4,400 plus interest from Mr. Brandon’s share; to deduct $750 plus interest from defendant’s share for attorney’s fees; ordered the clerk to determine the mortgage balance existing on the house and pay same from the proceeds, and ordered the clerk to determine a reasonable attorney’s fee for services by Mrs. Wesley’s attorney, and report same to court. In addition, the trial court ordered $1,500 deducted from Mrs. Wesley’s share and paid to Mr. Brandon.

The sale as ordered was conducted on January 19, 1982. The husband was the only bidder and the purchase price was $4,150.

Both Mrs. Wesley and Mr. Brandon filed separate motions for rehearing which apparently were overruled by operation of law.

The sale of the house was never confirmed or rejected by the trial court.

Mrs. Wesley appeals, contending the judicial sale was unfairly conducted; that the court erred in refusing to specifically determine the arrearage in child support payments; that the court erred in granting appellee $1,500 which consisted of relief not prayed for in the pleadings; that the court erred in ordering a disputed mortgage paid partially from her funds since it was a debt of appellee, and that the court erred in failing to give appellant her portion of the rent.

The dispositive issue on appeal is whether the order by the trial court to sell the house is a final judgment sufficient to support an appeal. We find, in this instance, it is not a final judgment, and have no alternative but to dismiss the appeal.

It is a well-settled point of law that an appeal lies only from a final judgment which determines issues before the court and ascertains and declares rights of the parties involved. E.g., Taylor v. Taylor, 398 So.2d 267 (Ala.1981). Appellant’s claim that the judicial sale was unfairly conducted is premature in light of the fact that no confirmation of the sale has been entered by the trial court. The decree of confirmation, under the instant facts, is the final decree in judicial proceedings for the sale of lands. Pettit v. Gibson, 201 Ala. 177, 77 So. 703 (1917); cited in Taylor v. Taylor, supra. We note that where the appeal challenges the order for sale itself, a different result may lie. See, Taylor v. Taylor, supra, and cases cited therein.

The question of finality of the order may be phrased as a question of “something more for the court to do.” Sexton v. Sexton, 280 Ala. 479, 481, 195 So.2d 531, 533 (1967). Here, there is clearly something more for the court to do in that any judicial sale made, whether by public auction or at private sale, must be confirmed by the court. Copeland v. Giles, 271 Ala. 302, 123 So.2d.147 (1960).

The Alabama Supreme Court set forth the test of finality in Alabama Public Service Commission v. Redwing, Inc., 281 Ala. 111, 116, 199 So.2d 653, 657 (1967), as:

“However, under the doctrines of our cases the test of finality of a judgment to support an appeal is not whether the cause remains in fieri awaiting further proceedings to entitle the parties to their acquired rights, but whether the judgment ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated are necessarily involved. If these rights are ascertained, the decree is final and will support an appeal. (Citations omitted.)”

Since a sale on a suit to sell land is not binding until confirmed by the trial court, Henry v. White, 224 Ala. 427, 140 So. 391 (1932), the above test has not been met. Absent confirmation, the rights of the parties have not been ascertained and declared by the trial court because the sale is not binding on the parties.

Furthermore, we note that language in at least one case indicates the time and place to first object to the fairness of the proceedings is at a confirmation hearing. See, Parker v. Clayton, 248 Ala. 632, 29 So.2d 139 (1947).

An order which does not contain the essentials of a final judgment necessary to support an appeal must be dismissed. Campbell v. Water Works and Gas Board of Town of Red Bay, 290 Ala. 131, 274 So.2d 313 (1973). In the instant case, as seen from the above, some essential elements of a final judgment are left in question by the trial court’s order. Clearly, since the trial court may decline to confirm the sale, that matter is unsettled. Furthermore, there appears to be questions concerning the mortgage that are unsolved. Additionally, we note the trial court’s actions concerning arrearages in child support are apparently either unsettled or unclear.

We note for interested parties that it is the policy of this court whenever possible to decide appeals on their merits. However, appeals can not be permitted to be presented in a piecemeal manner. There is judicial policy against splitting up an appeal and bringing it piecemeal by successive appeals taken from the same decision. 4 Am.Jur.2d Appeal and Error § 48 (1962). In the instant case, a decision on the part of appellant’s claims while dismissing the challenge to the judicial sale could result in two separate appeals concerning an essentially interwoven matter.

In Vacalis v. Lowry, 279 Ala. 264, 184 So.2d 345 (1966), the Alabama Supreme Court followed the rationale of the policy against piecemeal appeals in dismissing an appeal where the order appealed from left the subject of litigation open to another suit.

In reiterating the rule that piecemeal appeals should be avoided where claims are legally interrelated and in substance involve the same transaction, the Florida Supreme Court noted that “when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appeala-ble if dismissed with finality at trial .... ” Mendez v. West Flagler Family Association, Inc., 303 So.2d 1, 5 (Fla.1974), on remand, 315 So.2d 7 (Fla.Dist.Ct.App.1975). In the instant case, it is neither obvious that Mrs. Wesley’s other claims are separate and distinct nor is it clear whether they were all dismissed with finality at trial.

Furthermore, rule 54(b), Alabama Rules of Civil Procedure, provides that where more than one claim for relief is presented in an action, the court may direct the entry of a final judgment as to one or more but fewer than all the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination, any order, however designated, which adjudicates fewer than all the claims shall not terminate the action as to any of the claims. Where more than one claim for relief is presented in an action, an order entered upon less than all claims is not a final, appealable order unless the judge makes express determination that there is no just reason for delay. Goza v. Everett, 365 So.2d 658 (Ala.1978). In the instant case, Mrs. Wesley clearly presented more than one claim for relief, and the order entered did not either dispose of all the claims, nor comply with rule 54(b). See, Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975); Maroney v. Liberty Loan Corporation, 57 Ala.App. 189, 326 So.2d 752 (1976). We therefore decline to hear appellant's other claims.

We would be remiss in not commenting that this case has been “pending” for some time. Unfortunately, this court’s action contributes to the continued pendency of the matter. We would hope that the appropriate orders would be entered by the learned trial judge as soon as possible. It would be this court’s further hope that all issues raised by the pleadings and proof would be specifically decided, including the issue of any arrearages, if there be any, of child support.

In view of the above, the instant appeal is not such a final order as will support an appeal and is therefore due to be dismissed.

APPEAL DISMISSED.

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


text:
    C. L. SWEET v. Teresa Turner FOUST, et al.
    Civ. 3422.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1982.

      J. E. Sawyer, Jr. of Rowe, Rowe & Sawyer, Enterprise, for appellant.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from a verdict and judgment in favor of plaintiff-appellant, Sweet, awarding damages in the amount of $1,000.

Plaintiff’s action alleged negligent and wanton injury arising from an automobile collision. Personal and property damage was claimed. No proper proof of property damage was made. The only proof of personal injury was for extended massage and adjustment treatment to plaintiffs back by a chiropractor. Some $1,800 was charged for such treatment. Though the charges were stipulated reasonable, there was lengthy examination of witnesses as to the necessity for them. The jury returned a verdict for $1,000.

Plaintiff contends that failure to award the total of such charges, together with an amount for pain and suffering, was erroneous and required reversal upon post-trial motion. We disagree.

Proof of an amount expended for medical treatment must include the element of reasonableness of the charge for the service and the necessity of the treatment. Each element is one of fact for the jury. The testimony in this case indicated that examination by medical doctors of plaintiff failed to disclose vertebral misalignment or injury. The chiropractor found otherwise and stated that repeated adjustments were necessary — as many as seventy-five times. Thus the jury was presented the factual determination of the degree of injury and the treatment necessary. The jury is not bound to award medical expenses merely because they were incurred. Union Springs Telephone Co. v. Green, 47 Ala.App. 427, 255 So.2d 896 (1971).

When damages awarded are challenged on grounds of inadequacy, we will reverse only where, after a consideration of all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. This standard has been followed in a long line of cases starting with Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1891). The presumption in favor of the correctness of the jury verdict is strengthened when the trial court refuses to grant a new trial. Grayson v. Alexander, 347 So.2d 108 (Ala.Civ.App.1977). We find no error in the judgment.

There is no merit in plaintiff’s claim of error in refusing his written charge. Rule 51, A.R.Civ.P. states that, “No party may assign as error the giving or failing to give a written instruction, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.” Appellant failed to follow the rule, leaving nothing for review. See Moody v. Stanfield, 292 Ala. 185, 291 So.2d 301 (1974).

Therefore, this case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.