author: FAULKNER, Justice

text:
    OPINION OF THE JUSTICES.
    No. 300.
    Supreme Court of Alabama.
    Aug. 13, 1982.
   To the Members of the

House of Representatives

State Capitol

Montgomery, Alabama

Dear Representatives:

We are in receipt of House Resolution 13, sponsored by Representative Gafford, which reads as follows:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ALABAMA LEGISLATURE, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinion on the following constitutional questions which have arisen concerning the pending H.J.R. 9, which was introduced to propose a redesignation of the date for holding the election on the constitutional amendment proposed by Act No. 81-889, S. 32, First Special Session, 1981 (Acts, Special Session, 1981, p. 24, August 13, 1981), which provides for making appropriations and time frame therefor.
“The pertinent facts are:
“(a) The Legislature convened, in response to the Governor’s proclamation, in its First Special Session 1981 commencing August 4, 1981, and passed the said proposed constitutional amendment in said Act No. 81-889, supra. Section 2 of that act provides in pertinent part:
“ ‘Section 2. An election upon the proposed amendment is ordered to be held at the first statewide primary or general election after the expiration of three (3) months from the final adjournment of the session of the Legislature at which this bill is enacted. The election shall be held in accordance with the provisions of Section 284, as amended, and Section 285 of the Constitution of Alabama of 1901 and Title 17, Chapter 17, Code of Alabama of 1975.’
“(b) The Legislature convened, in response to the Governor’s proclamation, in its Second Special Session 1981 commencing September 29, 1981.
“(c) The Legislature convened, in response to the Governor’s proclamation, in its Third Special Session 1981 commencing November 3, 1981, at which Act No. 81-1190, H.J.R. 75, Third Special Session 1981 (Acts, Special Session, 1981, p.p. 523-524, approved December 4, 1981), which redesig-nated the election date for March 2, 1981 [sic], on certain constitutional amendments [not at issue here] passed during the First, Second and Third Special Session, 1981, and designated the election date for said Act No. 81-889, supra, as follows:
“ ‘... provided, however, the Constitutional Amendment proposed by Act No. 81-889, S. 32, 1981 First Special Session shall be placed on the September 1982 primary or the November 1982 general election ballot.’
“(c) [sic] On March 2,1982, a general election on certain constitutional amendments was held pursuant to the certification of those amendments by the Secretary of State on December 14, 1981, and the Governor’s proclamation on December 14, 1981, which did not include said Act No. 81-889, supra.
“(d) The Legislature convened in Regular Session, as provided by law, on January 12, 1982, during which it passed three resolutions relating to said Act No. 81-889, supra, and the election thereon. These include:
“(i) Act No. 82-414, H.J.R. 165,1982 Regular Session was passed by the House on March 23, 1982, and by the Senate on April 8, 1982, and provides in pertinent part:
“ ‘BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That the election date on the September 1982 primary or the November 1982 general election ballot, as designated by Act No. 81-1190, H.J.R. 75, Third Special Session 1981, is hereby rescinded and the said constitutional amendment proposed by Act No. 81-889 shall be on the ballot at the first primary or general election in 1984.’
“(ii) Act No. 82-270, H.J.R. 166, 1982 Regular Session, also was passed by the House on March 23,1982, and by the Senate on April 8, 1982, and provides in pertinent part:
“ ‘BE IT RESOLVED BY THE ALABAMA LEGISLATURE, BOTH HOUSES THEREOF CONCURRING, That the Secretary of State return to it forthwith for further consideration Act No. 81-889, S. 32 of the First Special Session 1981.
“ ‘BE IT RESOLVED FURTHER, That the election date on the September 1982 primary or the November 1982 general election ballot, as designated by Act No. 81-1190, H.J.R. 75, Third Special Session 1981, is hereby rescinded.’
“(iii) By letter, dated April 19, 1982, the Secretary of State, custodian of Act No. 81-889, supra, returned the said Act to the House of Representatives.
“(iv) Act No. 82-413, H.J.R. 386, 1982 Regular Session was passed in both the House and Senate on April 26, 1982, and provides in pertinent part:
“‘WHEREAS, the Alabama Legislature enacted H.J.R. 165, by passage in the Alabama House of Representatives on the 20th legislative day, March 23, 1982, and adoption in the Alabama Senate on the 26th legislative day, April 8,1982, and now finds it in its possession; and
“‘WHEREAS, said H.J.R. 165 resets the election date for Act No. 81-889, S. 32 of the First Special Session 1981, and rescinds the date therefor for the proposed constitutional amendment on budgetary matters; and
“ ‘WHEREAS, the said H.J.R. 165 stated in pertinent part that:
“ ‘ “BE IT FURTHER RESOLVED, That in accordance with Section 125 of the Constitution of 1901, this resolution relating to a proposed constitutional amendment and the election thereon, does not require the signature of the Governor and the original of same shall not be sent to him”; and
“ ‘WHEREAS, any purported executive veto of any order, vote or resolution on questions of, inter alia, “the bringing on of elections by the two houses and amending this Constitution” can be only a nullity and is without the constitutional authority of the Governor; now therefore,
“ ‘BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That we do, in accordance with Sections 125, 284 and 287, Constitution of Alabama 1901, return H.J.R. 165, 1982 Regular Session, to the Secretary of State and hereby direct that he assign an Act number to said H.J.R. 165, abide by the requirements prescribed and keep such document which relates to amending the Constitution and election date called therefor within the exclusive possession of his official capacity, so that the ballot shall be prepared and the date proclaimed as designated in H.J.R. 165, 1982 Regular Session.’ ”
“(e) On July 16,1982, without prior certification by the Secretary of State in meeting the requirements of Section 284, as amended by Amendment 24, of the Constitution of 1901, ‘that the election shall be held in all things in accordance with the law governing general elections,’ and as provided by Section 17-7-1, the Honorable Fob James, Governor, proclaimed ‘Tuesday, the 7th day of September 1982’ as the election date on said Act No. 81-889, and ordered advertising to commence in each county four successive weeks next preceding the election.
“(f) The Legislature convened, in response to the Governor’s proclamation, in its Third Special Session 1982 on August 9, 1982, and, H.J.R. 9 was introduced and is pending which provides in pertinent part:
“ ‘That the election date at the first primary or general election in 1984, as designated by Act No. 82-414, H.J.R. 165, 1982 Regular Session, and Act No. 82-413, H.J.R. 386,1982 Regular Session, are hereby rescinded and the said constitutional amendment proposed by Act No. 81-889, S. 32 of the First Special Session 1981 (Acts, 1981 Special Session, p. 24), shall be on the ballot at the first general election in 1984.’
“The questions are:
“1) Is proclaiming the September 7,1982, election on Act No. 81-889 within the valid competence of the Governor and a valid appointment within the meaning of Section 284 of the Constitution of 1901, as amended, requiring the Governor to proclaim such election ‘in such manner as the Legislature shall direct * * * and the election shall be held in all things in accordance with the law governing general elections?’
“2) Was the redesignation of the election date of said Act No. 81-889, supra, on ‘the ballot at the first primary or general election in 1984’ by said Act Nos. 82-414 and 82 — 413 within the competence of the Legislature and a valid appointment pursuant to said Section 284 of the Constitution of 1901, as amended?
“3) Does the proclaiming of September 7, 1982, as the election date on said Act No. 81-889 by the Governor contravene Section 42 of the Constitution and constitute an encroachment by the executive branch of the powers of the legislative branch of government and thereby render the results of such election null and void?
“4) Was March 2, 1982, the only valid appointment of an election on said Act No. 81-889?
“5) Is it within the competence of this Legislature at this 1982 Third Special Session, pursuant to Section 284 of the Constitution of 1901, as amended, to redesignate the appointment date on the election of Act No. 81-889 at the general election of 1984, and thereby rescind the earlier election dates even if the Governor has invalidly proclaimed September 7, 1982, for the election?”

In our judgment these five questions are but various ways of asking the question, “Can the legislature change the date of election for a proposed amendment to the Constitution by resolution?” This question has been answered in the affirmative in Opinion of the Justices, 275 Ala. 372, 155 So.2d 329 (1963):

“Your inquiry, ‘Is it within the competence and power of the Legislature at this session by resolution to change the date of holding the election on the constitutional amendment proposed in Act No. 91, H. 37, Second Special Session of 1963?’, is answered in the affirmative. Your resolution H.J.R. 86, proposing to change the date of holding the election on such constitutional amendment is, therefore, valid.
“The present Legislature is the same Legislature which passed Act No. 91 in its Special Session. We see no constitutional impediment in the same Legislature at this succeeding Regular Session changing the date for holding the election on the proposed amendment. Our answer would probably be in the negative if a different Legislature should pass the proposed resolution.
“The legislative process with respect to constitutional amendments is not the exercise of the power of the Legislature to make laws, but is merely to propose such amendments to the consideration and judgment of the electorate and such a proposition is ineffectual unless the requisite majority of the electorate affirmatively approves the proposition submitted. Moreover, the proposal and submission of such amendments may be made by resolution.
“The following authorities support this conclusion: Opinion of the Justices, 252 Ala. 205, 40 So.2d 623; Opinion of the Justices, 252 Ala. 89, 39 So.2d 665; Doody v. State, 233 Ala. 287, 171 So. 504; Opinion of the Justices, 227 Ala. 296, 149 So. 781; Jones v. McDade, 200 Ala. 230, 75 So. 988.”

This opinion and others on the subject may be found by reference to the annotations to Code 1975, Constitution of 1901, Amendment 24 (Amendment of § 284).

In regard to the governor’s attempt to proclaim the election for September 7,1982, we point out that under the Constitution only the legislature has authority to fix the date for holding an election, Amendment 24, supra. Opinion of the Justices, 251 Ala. 78, 36 So.2d 499 (1948). The governor does not have authority to approve or disapprove acts or resolutions proposing constitutional amendments. Constitution of 1901, § 287.

Therefore, we are of the opinion that the legislature, by resolution, may validly and constitutionally redesignate the election date for the amendment proposed by Act No. 81-889.

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice

HUGH MADDOX RENEAU P. ALMON JANIE L. SHORES T. ERIC EMBRY SAM A. BEATTY Justices

FAULKNER, Justice

(dissenting).

I concur with the majority that the Legislature can change the date of election for a proposed amendment to the Constitution by resolution.

I dissent from the majority opinion, holding that the Legislature in changing the date of the election has constitutional authority to go beyond the general election of 1982. It is to be noted that the change in date here is the general election of 1984. In niy opinion, the legislature is without constitutional authority under Amendment 24, Constitution of Alabama, to set the election on the proposed amendment beyond the 1982 general election.

I interpret the words contained in Amendment 24 “to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed,” to mean that the election on the proposed amendment must be held, if at all, in the 1982 general election. The language “upon another day appointed by the legislature, not less than three months after the final adjournment” must be interpreted as permitting the Legislature to set a date before the next general election, next succeeding adjournment provided however, that date is at least three months after final adjournment. For example, if the Legislature’s final adjournment date is May 1, 1982, the Legislature could either set the date for election on any date after the expiration of three months from May 1, or it can set the date for the 1982 general election. However, the Legislature cannot set the date in the 1984 general election. To say it can is “murdering the King’s English” by not giving due regard to English grammar and sentence structure.

I also think that questions 1-4 should be answered. I would answer each in the negative.

Respectfully submitted,

JAMES H. FAULKNER

OSCAR W. ADAMS, Jr. Justices


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    The ALABAMA STATE TENURE COMMISSION and Velma C. Avery v. The BOARD OF EDUCATION OF JEFFERSON COUNTY, Alabama.
    Civ. 2640.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Rehearing Denied July 15, 1981.
    Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for appellant Alabama State Tenure Com’n.
    William M. Dawson, Birmingham, for appellant Velma C. Avery.
    Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellee.
   BRADLEY, Judge.

This is a teacher tenure case.

The facts are as follows. The Board of Education of Jefferson County completed construction of a new junior high school in the W. A. Berry High School district in 1979. The eighth grade would be moved from Berry to this new junior high school.

Mrs. Velma Avery taught eighth grade social studies at Berry. Avery was notified on August 30, 1979 by the Jefferson County Board of Education that she would be transferred to the new junior high school. Avery, a tenured teacher, demanded a hearing to contest the transfer pursuant to § 16-24-6, Code 1975. A hearing was had before the Board of Education on September 12, 1979 and the Board voted to affirm the transfer. Avery filed notice of appeal to the Alabama State Tenure Commission on September 17, 1979. The Tenure Commission heard evidence and issued an order on October 18, 1979 reversing the Jefferson County Board of Education. That order stated in part:

Upon consideration of the evidence presented, as well as briefs and oral argument of counsel for the Jefferson County Board of Education and the teacher, the Tenure Commission finds that the Board of Education failed to give timely notice of intention to transfer as required by Section 16-24-5, Code of Alabama 1975.
Therefore, the Tenure Commission hereby reverses the action of the Board for failure to give timely notice of transfer as required by Section 16-24-5.

The Board of Education filed a petition for writ of mandamus in Jefferson County Circuit Court on November 13, 1979. Avery’s motion to intervene was granted on December 14,1979. After hearing the matter the trial court entered an order on October 17, 1980 reversing the Tenure Commission. The trial court held:

This Court finds that all procedural requirements for the subject transfer were followed by the Board. There is no requirement that notice of intention to transfer be given by any particular time in Sec. 16-24-5 or elsewhere. It is apparent, also, to this Court that the transfer was for a valid administrative purpose, was not unjust and was not based upon personal or political reasons.
Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
ONE: The subject ruling of the Alabama State Tenure Commission is reversed and remanded and the Commission is ordered to affirm the subject transfer decision of the Board of Education of Jefferson County, Alabama with respect to the transfer of Velma C. Avery.

Avery’s motion for new trial was denied on December 2,1980. Thereafter the Commission and Avery appealed the decision to this court.

As provided in § 16-24-5, a tenured teacher may be transferred by the employing board for any “succeeding year.” The question then is whether Avery was transferred for the “succeeding year.” In order to answer the question we must know what the term “succeeding year” means; and, in the absence of a statutory definition, we must fashion one.

Webster’s Seventh Collegiate Dictionary (1976) defines the word “succeed” as meaning: “to follow after another in order.” Likewise, the term “succeeding term” has been defined to mean a regular term of court succeeding that at which the demand for a trial was made. Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902). Also the phrase “succeeding fiscal year” means the next complete fiscal year after a schedule of fares was fixed rather than the rest of the fiscal year in which the rates were established. Hurst v. City & County of San Francisco, 33 Cal.2d 298, 201 P.2d 805 (1949).

Based on these definitions we conclude that the term “succeeding year” should be defined as meaning the next school year after the one in which the teacher was transferred.

In the case at bar the evidence shows that classes began at the new school on August 27, 1979, three days before Avery was notified of her transfer to this school. Thus, it is apparent that the new school year, i.e. 1979-80 school year, was in progress when Avery was transferred. Therefore the transfer was for the current school year, i.e. 1979-80, and not for the “succeeding year,” which in this instance under the above definition would necessarily have been for the 1980-81 school year. We believe, and the evidence is supportive of such a belief, that the transfer was intended to be effective in the 1979-80 school year, but for this to be so, the transfer should have been made before the beginning of the 1979-80 school year. This was not done and, as a consequence, the purported transfer was invalid.

The judgment of the trial court is reversed and the cause is remanded for the reinstatement and affirmance of the order issued by the State Tenure Commission.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM.

text:
    Ex parte The BOARD OF EDUCATION OF JEFFERSON COUNTY, Alabama. (In re The ALABAMA STATE TENURE COMMISSION and Velma Avery v. The BOARD OF EDUCATION OF JEFFERSON COUNTY, Alabama).
    80-737.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for petitioners.
    Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for Alabama State Tenure Comn.
    William M. Dawson of Dawson, McCormick, Hughes & Sullivan, Birmingham, for Velma C. Avery.
   PER CURIAM.

Writ quashed as improvidently granted.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion, 418 So.2d 111. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Roy Dale STUTTS v. Janet Sue STUTTS.
    Civ. 2645.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    Rehearing Denied Sept. 30, 1981.

      Jerry Knight, Decatur, for appellant. James D. Whitmire and Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Janet Sue Stutts and Roy Dale Stutts were divorced May 8, 1980. The wife was awarded custody of the couple’s minor child. The decree also gave her exclusive use and possession of the parties’ home, and required that she maintain it. The husband was charged with making the mortgage payments. The wife’s use and possession of the home was limited by the final judgment in the following manner:

3. Upon the remarriage of the wife, the emancipation of the child, or the surrender of the possession of the property by the wife, the property shall then be sold. Should a sale become necessary, the parties shall be afforded ninety (90) days to effect a private sale of the house and lot. If a private sale cannot be effected within ninety (90) days, the parties may extend the time by agreement. If no agreement can be reached, the property shall then be sold by the Register after notice at public outcry. If the property is sold, the proceeds shall be applied to satisfy any encumbrance and to pay the expenses of sale, with the remainder then being distributed between the parties share and share alike.

No periodic alimony, as such, was awarded, but child support was set at $150 per month.

The home was subject to a first and second mortgage — the first held by Dollar Savings Bank and the second held by a Dr. Guice. The husband failed to make these payments as ordered for several months. The wife paid the back payments to Dollar Savings Bank to avoid threatened foreclosure proceedings. Subsequently, the wife filed a petition for modification of the divorce decree asking, in part, that the title to the home be vested in her absolutely, and that the husband be forced to reimburse her for the back payments made, catch up the mortgages and keep them current. The husband counterclaimed asking the court, in part, to relieve him of his obligation to make the mortgage payments since he was financially unable to do so.

The court modified its previous decree, vesting absolute title to the home in the wife and placing full responsibility for the mortgage payments upon her. The trial court also found the husband in arrears for child support in the sum of $1,104. In light of its decision awarding the house to the wife, the court forgave the husband’s ar-rearage, and also ordered the wife to hold him harmless as to any deficiency judgment that might arise from the repossession of a 1977 van that had been granted to the wife in the original decree. The court stated that “This is done in consideration of his loss of the home.”

The husband perfected this appeal contending that the trial court had no jurisdiction after the passage of thirty days from the entry of the original decree to modify that decree as to real estate which was the subject of a property division or regarding alimony in gross. This court agrees that that is a correct statement of the law in this state. See, Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980); Higginbotham v. Higginbotham, 367 So.2d 972 (Ala.Civ.App. 1979).

We find, however, that the original order as to present and future use and disposition of the home was not a vested division of it. It was a continuation of the ownership subject to the conditions imposed upon the parties. There was no division due until after the happening of stated events. The obligation of the husband was to maintain support and mortgage payments. This obligation may be considered as child support and/or alimony. In either event, failure or inability of payment was cause for modification. The granting to the wife of the husband’s interest in the home to satisfy past-due support or alimony and to substitute for such future obligations was permissible. There had been no prior divesting or vesting of title by the court, merely direction of use with conditions and ultimate disposal of the interests of the parties without further court aid. Because of failure of conditions, modification and vesting of title became necessary to provide a home and support for the wife and child. We consider what we said in Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356 (1973), to be dispositive here.

We find the husband’s contention that the wife failed to show a substantial or material change of circumstances warranting modification unpersuasive. The trial court found sufficient change to modify its original decree. Such was in its wide discretion and will not be reversed except for palpable error and abuse of discretion. Murphree v. Murphree, 366 So.2d 1132 (Ala. Civ.App.1979).

In light of the foregoing, this cause is due to be affirmed.

In response to the request of the appellee, the court hereby awards the sum of $500 to appellee as a reasonable attorney’s fee for the services of her attorney on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The wife pointed out that this sum is equal to six months of mortgage payments and one month of child support and was referred to in the modification judgment as child support.


text:
    Ex parte Roy Dale STUTTS. (In re Roy Dale STUTTS v. Janet Sue STUTTS).
    81-20.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    Jerry Knight, Decatur, for petitioner.
    James D. Whitmire and Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for respondent.
   PER CURIAM.

Certiorari was granted because of an alleged conflict between this case and Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1977). We agree that a conflict does exist between Monroe and the present case, as well as other cases. However, it is our opinion that the case of McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978), contains the correct reasoning, and to the extent Monroe is in conflict with McGugin and the other cases consistent therewith, it should not be followed.

The judgment of the Court of Civil Appeals, 418 So.2d 113, is therefore affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: HOLMES, Judge.

text:
    Patricia Evans KIRKLEY v. Billy Joe KIRKLEY.
    Civ. 2642.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Rehearing Denied Oct. 7, 1981.

      Maury Smith and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, for appellant.
    J. Pelham Ferrell of Ferrell & Davenport, Phenix City, for appellee.
   HOLMES, Judge.

This is a divorce case. The wife appeals, contending the trial court erred to reversal in the division of property. We find no error requiring reversal and affirm.

The parties were divorced after six years of marriage. Both had been married previously. No children were born of the marriage, although the husband had three children and the wife had one child from their prior marriages. The wife, at the time of the marriage, owned a car valued at $800 and furniture worth approximately $6,000. She did not work outside the home during the marriage.

The husband owned several pieces of commercial real estate and was part owner of a construction company. At the time of this marriage, the husband owned a house worth $195,000 which he had shared with his first wife. Pursuant to the decree rendered in his first divorce, the husband received all right and title to the house and, as required by the decree, he purchased another home for his first wife. Subsequently, the former wife left the newly purchased home and moved into a condominium. The husband sold the house he had bought for her after their divorce without paying her up to $10,000 of the proceeds from such sale as required by the first divorce decree.

After entering into the instant marriage, the husband and wife lived for a short while in the original house owned by the husband. Thereafter, they sold that home and, with some of the proceeds, built a new house. Title to the new house was in the husband’s name. The wife helped design the new house, but made no financial contribution.

After a series of disputes, the parties separated and each commenced an action for divorce. Evidence indicates there was fault on both the husband and the wife causing the breakdown of the marriage. After a trial on the merits, a divorce decree was issued on the grounds of incompatibility and irretrievable breakdown.

The wife was awarded all personal property she brought into the marriage, a Cadillac, one-half the furniture acquired during the marriage, all jewelry purchased by or given to her, and one-half of all other personalty not mentioned in the decree. She was awarded periodic alimony in the sum of $700 per month for thirty-six months; thereafter, she would receive $800 per month until January, 1989. The decree further ordered the house built during the marriage to be sold within nine months and gave the wife the right to occupy the house in the interim. From the proceeds of the sale of the house, the husband’s first wife was to receive $95,000. The present wife would receive one-half of the remainder or $15,000, whichever is greater.

The wife, through able counsel, contends the trial court erred in ordering $95,000 from the sale of the residence be paid to a former spouse who is not a party to the divorce proceeding. If the trial court had excluded the former spouse in determining the distribution of the property, the wife argues she would have been compensated for her substantial dower and homestead interests in the house by way of an equitable distribution of the proceeds.

A trial court’s decision on the division of property will not be set aside or reversed unless it is determined to be an arbitrary and unjust settlement beyond the bounds of the judge’s wide discretion. Cox v. Cox, 395 So.2d 1027 (Ala.Civ.App.1981). Factors which the court may properly consider in determining the most equitable division of property are the length of the marriage; source of the property; age, sex, and health of the parties; the standard of living during the marriage and each person’s ability to maintain that standard after divorce; and, in certain cases, the fault of the parties. Nolen v. Nolen, 398 So.2d 712 (Ala.Civ. App. 1981).

In this instance, after six years of marriage, the wife is 40 and the husband is 48. She is in good health, and he is in fairly poor health. All property, with the exception of the wife’s car and furniture, was paid for by the husband. The wife is trained as a secretary and statistician and is willing to work. Furthermore, there is some evidence that the wife contributed in large measure to the breakdown of the marriage. In any event, at best from the wife’s standpoint both parties could well have been found to have contributed to the breakdown of the marriage. Therefore, fault need not necessarily be considered. Nolen v. Nolen, supra.

The court need not award property equally, but is empowered to make the most equitable distribution of the property. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App. 1978). Each case must be examined in light of its particular circumstances to determine what constitutes a fair and equitable settlement. Rose v. Rose, 395 So.2d 1038 (Ala. Civ.App.1981). Since the wife is capable of finding good employment, the marriage was of reasonably short duration, she will receive periodic alimony, and a substantial amount of personalty, the trial court did not abuse its discretion in the award to the wife.

The wife, as indicated, presents in an excellent brief several cogent reasons why the trial court’s action in awarding property to the former spouse, not a party to the divorce, is reversible error.

This court specifically does not condone the trial court’s action in awarding property to a former spouse who is not a party to the divorce. Further, we should not be understood as finding that the trial court’s action was proper. What we do find is that in view of the adequacy of the award to the wife, she cannot predicate error in the trial court’s action.

Put another way, the trial court acted within its discretion when determining the distribution of the property between the husband and wife. Therefore, the action in awarding property to a prior spouse, even if such action be error, did not, in this instance, inure to the benefit of the wife.

In view of the above, any error committed by the trial court is harmless error as it relates to the wife. Rule 45, A.R.A.P.

In light of the foregoing facts, the wife’s request for attorney’s fees is denied.

In view of the above, this cause is due to be affirmed.

AFFIRMED.

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

      . While it is not apparent from the record, it appears that the trial court took this action because of the husband’s failure to fully comply with the previous decree of divorce.


author:
FAULKNER, Justice.
      BEATTY, Justice

text:
    Ex parte Patricia Evans KIRKLEY. In re Patricia Evans KIRKLEY v. Billy Joe KIRKLEY.
    81-81.
    Supreme Court of Alabama.
    July 16, 1982.

      Maury Smith, David R. Boyd and William P. Cobb, II, of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for petitioner.
    J. Pelham Ferrell of Ferrell & Davenport, Phenix City, for respondent.
   FAULKNER, Justice.

This is a divorce case. The wife appeals, contending that the Court of Civil Appeals erred in upholding the trial court’s division of property. We reverse.

The facts are set out in the Court of Appeals’ opinion, dated September 9, 1981.

Patricia Kirkley contends that the Court of Civil Appeals erred in upholding the trial judge’s order to pay $95,000 from the sale of the principal residence of Patricia and Billy Kirkley to Mr. Kirkley’s former spouse, who was not a party to the divorce proceeding. The wife argues that Nell Kirkley, the former spouse, should be excluded from the distribution so that the property can be divided between the parties in a manner consistent with Patricia Kirk-ley’s interest in the property.

It is well recognized that the award of alimony and the division of property are matters within the broad discretion of the trial judge and will not be reversed absent a showing of palpable abuse of that discretion. E.g., Adams v. Adams, 412 So.2d 819, 820 (Ala.Civ.App.1982); McLain v. McLain, 409 So.2d 852, 853 (Ala.Civ.App.1982). We do not rule on whether the trial judge abused his discretion with respect to the proportional division of property between Patricia and Billy Kirkley, but we hold, as a matter of law, that the award to the former wife was error.

The first divorce decree vested the title to the first house solely in Mr. Kirkley, and any agreement made prior to the final decree would have been merged into the decree.

“It would be not only inequitable, but also unconscionable to allow the appellant to produce an agreement and assert legal rights thereunder where that agreement predated the divorce decree and where that agreement altered the legal effect of the divorce decree in such material respects. In light of the comprehensive and final character of the divorce decree, we are of the opinion that the contractual obligations contained in the 1972 agreement which are inconsistent with the property settlement obligations contained in the divorce decree should have been preserved in the latter instrument.”

Landis v. Neal, 374 So.2d 275, 281 (Ala. 1979). Therefore, a pre-existing agreement cannot alter the legal effect of the divorce decree. Id.

Likewise, the husband and former wife could not modify the divorce decree simply by agreement after it was entered.

“A final judgment is a terminal decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself. All matters should be decided; damages should be assessed with specificity, leaving the parties with nothing to determine on their own. Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976). Accordingly, parties to a divorce decree may not change or modify the decree merely by an agreement between themselves. Mullis v. Caldwell, 50 Ala.App. 508, 280 So.2d 558 (1973).” (Emphasis added.)

Holland v. Holland, 406 So.2d 877, 879 (Ala. 1981).

After a lapse of thirty days from the date of a divorce decree a court cannot modify a property settlement provision except to correct clerical errors. E.g., Small v. Small, 412 So.2d 283, 285 (Ala.Civ.App. 1982); Monroe v. Monroe, 356 So.2d 196, 199 (Ala.Civ.App.1978); McEntire v. McEntire, 345 So.2d 316, 319 (Ala.Civ.App.1977). Therefore, since no modification was made within thirty days of entry of the final decree, the original property settlement must stand as entered.

The former wife has no claim to the property. The title to the marital home of Mr. Kirkley and his first wife was transferred to Mr. Kirkley by the divorce decree. Since the first wife had no right or title to the first house, it is obvious that she could not have any right or title to proceeds from the house which was later built by Billy and Patricia Kirkley.

If Mr. Kirkley owed the former wife money under the terms of the initial divorce decree, she had the remedy of filing a contempt suit against him. The matter before the Court, however, is to adjudicate a property settlement between Billy and Patricia Kirkley, not to determine his compliance with the divorce decree dissolving his former marriage.

As stated previously, we do not rule on whether or not the trial judge abused his discretion in regard to the division of property between Mr. Kirkley and his second wife. The trial judge must, however, consider the total proceeds.from the sale of Billy and Patricia Kirkley’s marital residence in determining the property settlement.

Another assertion, presented by the appellee, is that ah appellate court cannot review the inadequacy of a judgment in cases where no motion for new trial is made. Although the above assertion is correct with respect to a case tried to a jury, the authority to review is not dependent on a motion for a new trial in a case in which the trial judge was the trier of the facts. Securitronics of America, Inc. v. Bruno’s, Inc., 414 So.2d 950 (Ala.1982). The present case was tried before the trial judge, without a jury.

REVERSED AND REMANDED.

JONES, EMBRY and ADAMS, JJ., concur.

BEATTY, J., dissents, with whom AL-MON, J., concurs.

MADDOX and SHORES, JJ., not sitting.

TORBERT, C. J., recuses.

BEATTY, Justice

(dissenting):

The court’s opinion reverses on an issue never contested at the trial level. The appellant not only failed to move for a new trial but also failed to object to the evidence relating to the claim of the former wife, and failed to move to exclude that evidence. Therefore, the appellant has failed to preserve this issue for our review. An issue not raised in the trial court cannot be raised for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala. 1979). The case cited by the majority, Sec-uritronics of America, Inc. v. Bruno’s, Inc., 414 So.2d 950 (Ala.1982), holds only that a motion for a new trial is not a prerequisite for appellate review on the issue of sufficiency of the evidence where the case was tried to a judge, not a jury. This rule does not authorize review of an issue never raised at all in the trial court.

Unless there is a showing that the property award to the appellant was inadequate, the trial judge’s error was harmless in relation to the appellant, as noted by Judge Holmes. It may be that the trial court made the award to the first wife out of what was left to the husband after dividing the entire estate. Had the appellant made a timely objection to the evidence of the former wife’s claim, the trial court might have clarified the basis of its decision. In the absence of such an objection, we should not assume the trial court’s ruling to be erroneous.

Accordingly, I would quash the writ of certiorari as improvidently granted.

ALMON, J., concurs.


text:
    Patricia Evans KIRKLEY v. Billy Joe KIRKLEY.
    Civ. 2642.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1982.
   HOLMES, Judge.

The prior opinion of this court has been reversed and remanded by the supreme court, 418 So.2d 118. On remand to this court, and in compliance with the supreme court’s opinion of July 16,1982, this cause is now reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Jan B. FULLER v. Edward H. FULLER.
    Civ. 2832.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Rehearing Denied Dec. 29, 1981.

      Writ quashed, Ala., 418 So.2d 125.
    William N. Clark of Redden, Mills & Clark, Birmingham, for appellant.
    Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals the portions of the decree relating to child support, alimony, property division and attorneys’ fees.

The parties were married for eighteen years and have two children — a daughter, age fifteen, and a son, age ten. The husband and wife are college graduates. Following the husband’s tour of duty in the Air Force, the couple bought a home in Cull-man, Alabama, Mr. Fuller’s hometown. Mr. Fuller worked for his grandfather. When his grandfather died, the husband inherited a great deal of rental property and the grandfather’s residence which is located on a city block in Cullman. The Fullers spent $75,000 remodeling that residence, sold their home and moved to the deceased grandfather’s home. In 1977, after having lived there five years, the couple sold that house and moved to Ridgway, Colorado. There they lived in a mobile home situated on fifty-four acres. The parties owned and operated a service station on an adjoining lot.

The husband entered into numerous business ventures during the marriage, all apparently unsuccessful. He testified that income from these endeavors was negligible. On the contrary, his gross income from rental property ranged up to $36,000 per year. Mrs. Fuller wasn’t employed during the marriage until the family moved to Colorado. There she pumped gas and kept the books for the business. She was eventually forced to work in a candy factory in nearby Montrose, Colorado, to earn money for groceries and clothing for the children.

The Fullers disagreed on many issues, but Mrs. Fuller left Colorado in July 1979 when her husband insisted she sign a bank note to borrow money to pay the balance owed on the service station. She testified that she told Mr. Fuller if she signed the note she was returning to Alabama and wanted a divorce. Approximately one month after she signed the note, Mrs. Fuller sent the children to visit her parents in Birmingham, Alabama. One week later she flew to Birmingham also, and has remained there with the children since that time. Mrs. Fuller is now gainfully employed in Birmingham, and nets between $550 and $625 per month. She testified that essentials cost her $927 per month, and that her son will soon have an operation, to partially correct a birth defect, which will cost $750.

Mr. Fuller inherited rental property valued at $200,000 from his grandfather in addition to the Cullman home sold in 1977 for $145,000. He owns rental property valued at $220,000 that he purchased during the marriage. Also, Mr. Fuller is trustee and sole beneficiary of a trust valued at $178,200. Mr. and Mrs. Fuller jointly own the Colorado property which encompasses the residence and the business. The majority of the Fullers’ property is encumbered.

The trial court awarded custody of the children to Mrs. Fuller, and ordered the husband to pay $200 per child per month as child support. The court ordered an assignment of rents from two unencumbered pieces of property as security for the support payments, and ordered that the property not be sold or encumbered during the children’s minority. No provision was made for medical insurance or life insurance.

The trial court “confirmed” title to Mr. Fuller’s separate property in him. The Colorado property was ordered sold, such sale to take place in 120 days and the net proceeds divided between the parties. The husband was ordered to pay all outstanding joint debts and assume responsibility for all mortgages. Each party was awarded part of the furniture and furnishings, and their personal belongings. No periodic alimony was awarded, but the trial court specifically retained jurisdiction to do so at a future time. On the wife’s motion to alter or amend the decree or for new trial, the trial court amended the decree to allow 365 days to sell the Colorado property. The court also ordered that the proceeds from the sale of a portion of the Colorado acreage and the Cullman home be paid one-half to each party when due. The wife appeals.

On appeal, the wife contends that, (1) the provisions for the children were so erroneous as to constitute an abuse of discretion; (2) the reservation of alimony and division of property were unjust and palpably wrong; (3) she should have been awarded part of the Cullman property and the trial court should have considered the trust estate in its property division; (4) the award of attorney’s fees was so insufficient in light, of actual expenses as to constitute error.

We note that this case is subject to the ore tenus rule and its attendant presumption of correctness. Skipper v. Skipper, 380 So.2d 921 (Ala.Civ.App.1980). We find the trial court’s decree in this case to be so unfair to the wife in its overall effect as to overcome that ponderous burden. It shows both palpable error and abuse of discretion.

Child support depends on the needs of the child and the ability of the parent to pay. Spears v. Spears,. 382 So.2d 572 (Ala.Civ.App.1980). Considering the property held by the husband, the amount of child support in light of the lack of provisions for medical expenses and life insurance would constitute an abuse of discretion in a normal case. The extenuating circumstance of the son’s birth defect in this case makes that abuse gross. That defect requires immediate medical attention and will likely require future correction. Such a burden should not be shouldered by the mother in its entirety. We direct that the trial court order that the husband be responsible for medical insurance coverage for the children as well as any medical expenses in excess thereof. Additionally, we direct the children be made the irrevocable beneficiaries of the father’s life insurance policies until their majority.

The husband contends that his separate property should not be considered under § 30-2-51, Code (1975). We find from the evidence, however, that his property, or the income therefrom, had regularly been used for the common benefit of the parties during their marriage, and therefore is due to be considered as marital assets. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980). It is undisputed that the husband’s various business ventures generated little or no income and that the wife did not work prior to the parties’ move to Colorado. Despite these facts, the couple apparently lived well during the majority of their married years. Income from some source was available for living purposes, and the single positive source of such income was the rental property in Cullman, Alabama. The testimony of the wife was that income from the property was used by the family.

The proportion or share of property given to each spouse does not have to be equal, but it must be equitable and graduated according to the nature of the case. Parker v. Parker, 392 So.2d 229 (Ala.Civ. App.1980); Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980). An equity court has power to use any reasonable means to effect a just property settlement between the parties. Furlow v. Furlow, 386 So.2d 747 (Ala.Civ.App.), cert. denied, 386 So.2d 749 (Ala.1980).

As we interpret the evidence, the total estate of the parties, including property inherited by the husband, purchased during the marriage, in trust to the husband, owned jointly or notes receivable, is as follows:

Commercial rental property in Cullman,
Alabama $598,000
Jointly-owned property in Colorado 214,000
Property in Florida 12,000
Receivable in payments over 15 years from sale of property in Colorado 80,000
Balance receivable from sale of home in Cullman, Alabama 10,000
$914,000
Less:
Mortgage owed on some of Cullman property —186,000
Mortgage owed on Colorado property - 85,000
Net Value $643,000

The trial court gave to the husband all of the Cullman property and the Florida property with a net total value of $424,000. The husband also was given one-half the net proceeds from the ordered sale of the Colorado property. Such sale is calculated to produce the net sum of approximately $120,000 — $60,000 to each. He retains one-half of the receivable from the previous sale of the Colorado property, or $40,000, plus interest for fifteen years and one-half of the remaining payments due from the sale of the home in Cullman. There are two payments remaining of $5,000 each, plus interest. The summation is that the husband would retain property valued at $529,-000.

The wife would receive one-half the net receipts from the Colorado property, or $60,000, one-half of the balance due from the previous sale of Colorado property and the home in Cullman, or $45,000, for a total of $105,000. In weighing the total decree, the scales drop heavily in favor of the husband.

Mrs. Fuller was married to her husband for eighteen years. This is basically a no-fault divorce with little, if any, wrongdoing. She is forty years old and has only recently entered a job market that is new and foreign to her. She deserves more for the time spent in this marriage. We find the ordered property division inequitable and unjust to the wife. We reverse the order of the trial court as to property division and direct that the wife, in audition to one-half of the net receipts from the sale of the unsold Colorado property, also be given all of the unpaid balance due from the Colorado property previously sold and all of the unpaid balance due from the sale of the home in Cullman. All of such installments shall be ordered paid to the wife as they become due. The trial court is further directed to order the title to the property in Florida vested in the wife. This award will result in a reduction of the present value of the estate of the husband from $529,000 to $467,000, and an increase to the wife from a present value of $105,000 to $162,000. This award recognizes that some $80,000 due in semi-annual installments from the previous sale of Colorado property is payable with, interest over a period of fifteen years.

We affirm the trial court as to its reservation of periodic alimony. This is within the discretion of the trial court and under the husband’s circumstances a reservation seems proper until such time as his future plans are more stable.

The final issue on appeal concerns the inadequacy of attorneys’ fees which were awarded to the wife in the amount of $1,000. Testimony at trial was that the appraisal fee for the Cullman property was $3,500. We find that such appraisal was a vital and necessary part of the preparation of the wife’s case for trial of the issue of a property division. The expense of such an appraisal incurred by her attorneys is properly for consideration in determining attorneys’ fees. Cooper v. Cooper, 57 Ala.Civ. App. 674, 331 So.2d 689, 698 (1976). We therefore reverse the $1,000 award and direct the trial court to award $4,500 to the wife as reasonable attorneys’ fees. We affirm the decree below in all respects not contrary to this opinion. Judgment below is affirmed in part, reversed in part, and remanded so that the trial court may enter the appropriate orders as directed herein.

We deny further attorneys’ fees to the wife on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM. TORBERT, Chief Justice

text:
    Ex parte Edward H. FULLER. In re Jan B. FULLER v. Edward H. FULLER.
    81-347.
    Supreme Court of Alabama.
    July 30, 1982.
    Stephen R. Arnold of Durward & Arnold, Birmingham, for petitioner.
    William N. Clark of Redden, Mills & Clark, Birmingham, for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

FAULKNER, JONES, SHORES, EM-BRY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I dissent. The issue before this Court is whether the Court of Civil Appeals erred in reversing a decision of the trial court. The trial court determined that certain real property that Edward H. Fuller inherited should not be considered by the court in determining the amount of allowance to be awarded Fuller’s wife pursuant to a divorce decree. It is apparent the trial court relied on Code 1975, § 30-2-51 (Supp.1981), in making this determination. That section provides:

“If either spouse has no separate estate or if it be insufficient for the maintenance of such spouse, the judge, upon granting a divorce, at his discretion, may order to such spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family; provided, however, that the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.”

The meaning of the statute is clear. Inherited property is not to be considered in an allowance to a spouse unless the trial judge finds the property or the income therefrom was used for the common benefit of the parties during their marriage. Inherent in the trial court’s order was a finding that the property was not used for the common benefit of the parties.

This Court has long held that in an ore tenus case, every presumption must be indulged in favor of the trial court and its findings will not be disturbed unless they are palpably wrong. Ford v. Alabama By-Products, 392 So.2d 217 (Ala.1980). Furthermore, the appellate court has held that the division of property and the amount of alimony are matters within the sound discretion of the trial court and will not be reversed unless there is a palpable abuse of that discretion. Marks v. Marks, 365 So.2d 1231 (Ala.Civ.App.1979).

The language of the statute clearly leaves the determination of whether inherited property will be considered in making an allowance within the discretion of the trial court. Once a party proves certain property was inherited, the burden is on the spouse to prove that property was used for the common benefit of the parties during their marriage. Inherent in the trial court’s order is a finding that Jan Fuller failed to meet this burden of proof.

The appellate court reversed the trial court by determining the inherited property was used for the common benefit of the parties during their marriage. Apparently, the only basis for this determination was that the couple apparently lived well during their marriage even though the husband’s business ventures were unsuccessful and the wife did not work prior to moving to Colorado. The Court reasoned that the couple must have used the rent from the property for support. This finding is not sufficient to show that the trial court abused its discretion or committed plain and palpable error.

ALMON and BEATTY, JJ., concur.


text:
    Audrie Sayers Fowler BLANKENSHIP v. Kenneth James OGLE and Fannie G. Ogle.
    Civ. 2978.
    Court of Civil Appeals of Alabama.
    April 14, 1982.
    Rehearing Denied May 12, 1982.
    Certiorari Denied, Aug. 20, 1982 Alabama Supreme Court 81-712.

      C. W. McKay, Jr. of McKay & Campbell, Sylacauga, for appellant.
    E. Paul Jones, Alexander City, for appel-lees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a fraudulent concealment case.

By a count in their complaint, the Ogles contended that, when they purchased a house and lot from Mrs. Blankenship, she failed to disclose to them that the residence’s sewage system was inadequate, that she was under a duty to disclose that information but that she fraudulently withheld such facts from the Ogles.

The jury trial evidence revealed the following facts as viewed in their most favorable light to the Ogles’ cause. When Mrs. Blankenship purchased the lot from Hud-gins, Mrs. Hudgins remarked that the lot was too small for a house and septic system. The lot contained 9,000 square feet. Mrs. Blankenship may have delayed construction upon her house for a day or so while she unsuccessfully sought to purchase additional land footage from the Hudgins. She then contacted the county health department’s environmentalist, who, along with a most competent septic system installer, decided that the system could be installed. While the house was still under construction, but before the field line and septic tank were completed by simply covering with earth, that health department official approved the system as installed after he first inspected it. The contractor who constructed the dwelling also checked the plumbing and its connected disposal system and found no defects.

Mrs. Blankenship moved into her new home where she resided for the next two and one-half years. She testified, and there is no counter evidence, that she never had any trouble with the sewage disposal system during the period when she lived there.

Since she was moving to another county, Mrs. Blankenship listed her house and lot for sale with a real estate agent who showed the property to the Ogles. When they inspected the house, the Ogles made no inquiry about the septic system. Mrs. Blankenship and the Ogles never met nor had any conversation until the house sale was being closed in an attorney’s office. At that time no question was asked about the septic system and it was not mentioned by anyone.

Within the next week the Ogles moved into their newly purchased home and everything worked normally, the septic system included. Three months later, trouble developed in the septic disposal system and it continued thereafter. At times it would overflow inside the house and sewage would percolate to the surface in the back yard.

The trial court submitted to the jury two of the Ogles’ counts for relief, warranty and fraudulent concealment. Proper motions for a directed verdict had been filed on behalf of Mrs. Blankenship at the conclusion of the Ogles’ evidence and also when all of the trial evidence had been presented, and those motions were overruled by the trial court. The jury returned a $10,000 general verdict for the Ogles. Mrs. Blankenship filed a very specific motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court held that it erred in submitting the warranty count to the jury, but it declined to set aside the verdict as to the fraudulent concealment count “even though the court probably would have decided it differently.” A timely appeal was effected by Mrs. Blankenship.

We are required to presume that the jury’s verdict was rendered on the fraudulent concealment count of the complaint. Ex parte Nix, 401 So.2d 64 (Ala.1981).

The primary issue for our decision is whether the trial court should have either directed a verdict, or granted the post-trial motion, for Mrs. Blankenship as to the claim of fraudulent concealment. As a matter of law we reverse and remand.

We are required to follow the latest most applicable supreme court case upon a particular legal issue. That case is clearly Harrell v. Dodson, 398 So.2d 272 (Ala.1981). There the Dodsons sold a fifty year old house to the Harrells, who later claimed fraudulent-concealment by the Dodsons of the fact that the house was settling and moving. This resulted in wall cracks, bulging paneling, warped doors and frames and unlevel floors. The supreme court therein summarized the facts and law pertaining to the sellers as to fraudulent concealment as follows:

Regarding the Dodsons’ knowledge of the condition of the house, there was evidence that Mr. Dodson had, on occasion, leveled the floors, patched mortar cracks and replaced bricks in the exterior brick work. Fifteen to seventeen months before selling the house, Mr. Dodson had hung new wallpaper over an area where cracks in the plaster had previously been filled.
Respecting the issue of fraudulent concealment under Code 1975, §§ 6-5-102 and 6-5-104, one charged with that act or acts, must either be under an obligation to communicate either by virtue of the existence of a confidential relationship, or from the particular circumstances of the case, or must knowingly conceal a material fact with intent to deceive.... As a matter of law, one can only be liable for concealing facts of which one has knowledge. Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936).
Examining the record regarding the sellers, we find that Mr. Dodson testified that he had made several repairs over a period of years, including jacking up floors and repairing cracked plaster. Although this might conceivably be evidence of sellers’ knowledge of some past settling of the fifty year old house, sellers owed no duty of disclosure to the purchasers. The purchasers were allowed to, and did, fully inspect the house. The purchasers asked no questions nor had any communications with the sellers regarding the condition of the house. The evidence that the sellers made certain repairs on the house, the most recent of which was made over a year before the house was sold, does not, without more, give rise to a reasonable inference that the sellers intentionally concealed a material fact for the purpose of continuing a false impression or suppressing inquiry, and thereby effecting a sale. Ray v. Montgomery, supra [399 So.2d 230]; Cashion v. Ahmadi, Ala., 345 So.2d 268 (1977). We conclude that a verdict was properly directed on the issue of fraudulent concealment as to all defendants.

398 So.2d at 274, 276-277.

The Harrell decision is here controlling, especially since the facts here are even weaker than in that case as to liability. If Mr. Dodson owed no duty of disclosure to the purchasers, Mrs. Blankenship, likewise, owed no such duty to the Ogles. Additionally, there is an absence of any evidence that she had any knowledge of any defect. The Ogles inspected the house. They made no inquiry about, nor had any communication concerning, the septic system with anyone. The facts in the case do not, without more, give rise to any reasonable inference that Mrs. Blankenship intentionally concealed a material fact from the Ogles for the purpose of continuing a false impression or suppressing inquiry by them.

Accordingly, we hold that, initially, a verdict should have been directed for Mrs. Blankenship on the fraudulent concealment issue and, subsequently, that her post-trial motion should have been granted as to that count in the complaint.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    Bonnie Louise WIMBS v. EL BISCUIT VILLAGE, INC.
    Civ. 3059.
    Court of Civil Appeals of Alabama.
    April 21, 1982.
    Rehearing Denied May 19, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-743.
    Kenneth B. Taylor, Jr. of Legal Services Corp. of Alabama, Russellville, for appellant.
    Mary Anne Westbrook of Gonce, Young, Howard & Westbrook, Florence, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case.

On February 20, 1980, Bonnie Wimbs brought an action against her employer, El Biscuit Village, Inc., to recover benefits under Alabama’s Workmen’s Compensation Act.

After an ore terms hearing the trial court concluded that the employee had suffered a compensable injury and awarded benefits accordingly. The court further concluded that the employee was not entitled to recover medical expenses. The employee appeals from that portion of the trial court’s order regarding medical expenses. Finding no reversible error in the action taken by the trial court, we affirm.

The record reveals the following pertinent facts: The employee began working at El Biscuit as a general restaurant helper in September, 1979. Her duties there required her, among other things, to empty the garbage. On or about October 25, 1979, the employee injured her back while lifting a garbage can in order to empty it. Shortly thereafter the employee left her place of employment without reporting the injury to her employers.

The employee’s back injury led to at least two extended hospital stays, one beginning the day after the injury and the other in September of 1980. In addition to her hospital stays, the employee also made several visits to doctors’ offices. None of the foregoing treatment was performed by doctors designated by the employer.

The employee testified that she contacted her employer by telephone the day after the injury and informed the employer of the injury. The employer, however, testified that employee told her only that she had a bladder infection and kidney problem. The employer further testified that she was not aware that employee had suffered any work-related injury until someone from the hospital called her on November 16, 1979, and informed her that employee was claiming her injury occurred at work.

A hearing regarding employee’s claim was held on April 8, 1981. After considering the evidence, the trial court concluded that the employee’s back injury was the result of an accident which arose out of and in the course of her employment. The court then found that the employee suffered a temporary total disability of six weeks and awarded benefits accordingly.

As stated above, the trial court also held that the employee was not entitled to recover medical expenses in this case. The trial court based this holding upon its finding that the employer did not receive proper notice of the injury as required by section 25-5-78, Code of Alabama 1975, and its finding that the employee sought her own medical treatment and did not give the employer an opportunity to furnish medical treatment as provided by Alabama’s Workmen’s Compensation Act.

On appeal the employee, through able counsel, contends that the trial court erred in refusing to find the employer liable for medical expenses incurred by the employee. Finding no merit in this contention, this court affirms the trial court’s decision.

Appellate review of a workmen’s compensation judgment is very limited. If there is any legal evidence to support the finding of fact by the trial judge and if the correct law was applied to such facts we must affirm. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). As indicated above, there is evidence to support the trial court’s findings regarding notice of the injury and procurement of medical services. Consequently, this court is bound by that finding. The only remaining issue is whether the correct law was applied.

In United States v. Bear Brothers, Inc., 355 So.2d 1133, 1138 (Ala.Civ.App.1978), this court held that “the employer is not liable for the costs of medical or surgical treatment obtained by the employee without justification or notice to the employer.... ” The employee contends, however, that Bear Brothers should not be controlling in this case because it was decided pursuant to title 26, section 293, Code of Alabama 1940 (Recomp.1958) (Supp.1973). The employee bases this contention upon the significant differences between section 293 and its successor statute, section 25-5-77, Code of Alabama 1975. Admittedly, section 25-5-77 is significantly different from section 293; however, such differences do not affect the holding in Bear Brothers because in Price Ceiling, Inc. v. Ray, 394 So.2d 58 (Ala.Civ. App.1981), which was decided under section 25-5-77, this court reached the same conclusion that was reached in Bear Brothers.

In Price Ceiling, this court stated the following:

Section 25-5-77, Code of Alabama 1975 provides, .. . that an employer has the right to select the doctor who is to treat the employee and absent such selection, authorization, or consent, the employer is not liable for any expenses incurred by the employee.

394 So.2d at 62. In the case before us the employer did not select, authorize or consent to any of the physicians used by the employee. Consequently, the employer is not liable for the medical expenses incurred by the employee and the trial court did not err in so holding.

In light of the above, issues raised regarding the notice requirements of section 25-5-78 are pretermitted.

The trial court’s actions, in this instance, being authorized by section 25-5-77, this case is due to be affirmed.

AFFIRMED.

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


text:
    Dewey Strib HOOD v. ALABAMA STATE TENURE COMMISSION.
    Civ. 3028.
    Court of Civil Appeals of .Alabama.
    April 28, 1982.
    Rehearing Denied May 26, 1982.
    Certiorari Denied, Aug. 20, 1982. Alabama Supreme Court 81-757.

      William M. Dawson and Carolyn L. Williams of Dawson, Quenelle & McClusky, Birmingham, for appellant.
    Phillip A. Laird of Elliott, Laird & Wiley, Jasper, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

On May 14, 1980, Dewey Hood (teacher-appellant) was notified that the Walker County Board of Education intended to transfer him from Oakman High School to Parrish Elementary School. At the teacher’s request, a hearing regarding his proposed transfer was held before the Board of Education. Following the hearing the Board voted to approve the transfer.

The teacher, as provided by section 16-24-7, Code of Alabama 1975, appealed the Board’s decision to the Alabama State Tenure Commission. The Tenure Commission, after considering the record of the proceedings before the Board as well as briefs and arguments of counsel, affirmed the Board’s decision to transfer the teacher.

Pursuant to section 16-24-38, Code of Alabama 1975, the teacher filed a petition for mandamus with the Circuit Court of Walker County. The trial court held that the Board’s action in transferring the teacher was in accord with the Teacher Tenure Act; that the action was not unjust; and, finally, that the decision of the Tenure Commission was correct and that the reason given for the transfer served a reasonable administrative function.

The teacher appeals from the decision of the trial court. Finding no error, this court affirms.

The record reveals the following pertinent facts: The teacher in this action is a tenured teacher who is certified to teach physical education and political science at the secondary level. The teacher had been employed for ten years by the Walker County school system primarily as a physical education teacher and coach. On November 21, 1979, the teacher sent a letter to the county school superintendent stating that he wished to resign his coaching duties but still retain his teaching duties at Oak-man High School.

The teacher’s resignation of his coaching position became effective on February 8, 1980. On March 3, 1980, a new coach was hired to fill the vacancy created by the teacher’s resignation. The new coach was hired in the dual role of coach and physical education teacher. Thus, during the remainder of the 1979-80 school year both the teacher and the new coach served as physical education teachers.

Near the end of the school year, the teacher was notified of his proposed transfer. In a letter from the school superintendent dated June 6, 1980, the teacher was informed that the reason for his transfer was the surplus of physical education teachers at Oakman High School.

As is set out above, the teacher elected to contest his transfer. While pursuing the remedies provided by the Teacher Tenure Act, the 1980-81 school year began and the teacher reported to his elementary school assignment. There the teacher found that he was scheduled to teach physical education to grades one through eight.

Further pertinent facts will be discussed as they relate to the specific contentions of the parties.

In Alabama State Tenure Commission v. Board of School Commissioners, 378 So.2d 1142, 1145 (Ala.Civ.App.1979), this court noted:

[U]pon review by mandamus the circuit court may not reverse the Commission’s decision unless it has failed to comply with the Tenure Act’s procedural requirements or unless its judgment is so contrary to the preponderance and weight of the evidence as to be unjust.. ..

The teacher, on appeal, contends that the trial court erred in concluding that the action taken by the Tenure Commission was in accord with the requirements of the Teacher Tenure Act. The teacher also contends that the trial court erred in concluding that the action taken by the Tenure Commission was not unjust. This court will address both of these contentions.

With regard to the first issue raised by the teacher, suffice it to say that there is no evidence that the procedural requirements of the Tenure Act were not complied with. As required by section 16-24-5, Code of Alabama 1975, written notice of transfer was given the teacher. Additionally, the teacher suffered no loss of status; the teacher’s contract apparently was not violated by the transfer; and, according to the teacher’s own testimony, the transfer was not for political or personal reasons, all of which are prohibited by section 16-24-5. Furthermore, the teacher took advantage of the entire review process as provided by the Tenure Act.

The teacher apparently contends that the transfer violates the Tenure Act because he is now required to teach at the primary level while he is certified to teach at the secondary level. In this regard we note that the transfer in no way affected the teacher’s continuing service status. Clark v. Beverly, 257 Ala. 484, 59 So.2d 810 (1952). Additionally, as indicated above, review is limited to the requirements of the Tenure Act. The Tenure Act contains no provision either prohibiting or authorizing transfers outside of a teacher’s area of certification. Since the Tenure Act contains no such provision, the transfer cannot be said to violate the Tenure Act.

In light of the above, this court finds no merit in the teacher’s first contention.

This court likewise finds no merit in the teacher’s second contention regarding the justice of the transfer. In Tenure Commission v. Anniston City Board of Education, 57 Ala.App. 198, 326 So.2d 760, 763 (1976), this court held that a teacher could be transferred only with reason and, furthermore, that “the stated reason must be shown by the evidence to serve a reasonable administrative function.” If the evidence is insufficient to sustain the reason given, the transfer will be found to be unjust.

In this case the stated reason for the transfer was the surplus of physical education teachers at Oakman High School. This reason was sufficiently supported by the evidence. For example, the superintendent testified essentially that, after the new coach was hired, if the teacher had stayed at Oakman to teach physical education there would have been two people doing the job of one. According to the superintendent, the system could not afford this. The new coach also testified that Oakman was overloaded with teachers at the end of the 1979-80 school year. Finally, the teacher himself acknowledged that there were too many physical education teachers at Oakman.

Though acknowledging that there were too many physical education teachers at Oakman, the teacher contends that alternatives other than transferring him were available to alleviate the problem. Among the suggested alternatives were allowing the teacher to remain at Oakman but teach in an area other than physical education; or allowing the teacher to remain at Oakman as a physical education teacher while giving the new coach some other classroom assignment; or allowing the teacher to remain at Oakman and assign the new coach to classroom duties at another school in the system.

When questioned about these alternatives at the hearing both the superintendent and the principal indicated that there would be administrative difficulties in implementing any of the teacher’s suggestions. First of all the evidence established that Oakman was already fully staffed with tenured teachers in social studies, a general area within which both the teacher and the new coach were certified to teach. Due to the foregoing, it would be difficult to place either the teacher or the new coach in a certified area other than physical education. Though the principal did indicate that it would have been possible to create a new social studies class, it would have been very small and would have required disrupting student schedules after the completion of the first semester, which, in the opinion of the principal, would have been unwise. Likewise, the superintendent testified that it would have been unwise to place the new coach at a school other than Oakman where he was to coach because the new coach would then not have the opportunity to adequately interact with the students.

In the opinion of this court, the foregoing evidence supports the trial court’s conclusion that the facts of this case support the reason given for the transfer and that the transfer served a reasonable administrative function. The transfer is, therefore, not unjust.

Our conclusion is not changed because a tenured teacher was transferred in order to accommodate a nontenured teacher, for this court, in DeCarlo v. Tarrant City Board of Education, 52 Ala.App. 220, 291 So.2d 155 (1974), held that the Tenure Act did not require a board of education to give preference in making transfers to tenured teachers over nontenured teachers.

This case is due to be affirmed.

AFFIRMED.

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


text:
    William BAKER v. Lynda Jean BAKER.
    Civ. 3130.
    Court of Civil Appeals of Alabama.
    June 30, 1982.
    Rehearing Denied Aug. 4, 1982.

      Robert E. Gibney of Kilborn & Gibney, Mobile, for appellant.
    Edward R. Tibbetts, Mobile, for appellee.
   HOLMES, Judge.

This is an appeal from an order of the Circuit Court of Mobile County awarding custody of two minor children to their mother.

The parties to this action were divorced in 1979. The divorce decree awarded temporary custody of the parties’ two children to the maternal grandmother. The trial court reserved until a later time any decision regarding permanent custody of the children. The father was required to pay the grandmother $225 per month as child support.

In August, 1981, both parents filed a petition for change of custody. The husband had also earlier filed a petition to modify child support payments. An ore tenus hearing on these issues was held on September 23, 1981. The trial court thereafter awarded permanent custody of the children to the mother and awarded the father reasonable visitation rights. The trial court further ordered the father to pay the $225 per month to the mother as child support. Additionally, the mother was awarded a judgment against the father in the amount of $1,242 which represents the child support arrearage.

The father appeals to this court from the foregoing order. He primarily contends that the trial court abused its discretion in awarding custody of the children to the mother. The father also contends that the trial court erred in refusing to reduce the amount of child support payments he was required to make. This court affirms.

Viewing the record with the attendant presumptions, the following is pertinently revealed: The children who are the subject to this custody action are both males who, at the time of the custody hearing were eight and four years old. Though the grandmother had temporary legal custody of the children, for the majority of the time since the divorce the children have been in the actual custody of the mother. The record further reveals that the father was aware of this de facto change in custody and that he did object to it though he took no legal action to change the situation.

Viewing the overall circumstances of the parties, both parents appear to be fit to receive custody of the children. Both the father and mother are young and in good health. Both are employed, the mother by a bank and the father by an insurance company. Though the father has been continuously employed since the divorce he has allowed an arrearage in his child support payments to develop.

Both the father and mother have remarried since the divorce. The father is presently living with his new wife and baby in a residential neighborhood. The two children have a good relationship with their father and his new family.

The mother, though married, is presently living in an apartment complex away from her new husband. Both the mother and her husband testified that this separation was due solely to some problems with the husband’s daughter by a previous marriage and when these problems are resolved the mother will again reside in a home with her husband. The testimony further revealed that the children are on good terms with the mother’s husband.

The children appear to have become adjusted to the circumstances in which they find themselves. The record indicates that the children get along well with each other, with their parents and grandparents, and with their step-parents. Additionally, the testimony revealed that the eldest child, who was in the second grade at the time of the hearing, was doing well in school.

It is well settled that an award of custody is a matter within the sound discretion of the trial court and the trial court's decision will not be reversed on appeal absent abuse of discretion. Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979); Dasinger v. Dasinger, 369 So.2d 813 (Ala. Civ.App.1979). In exercising its discretion the trial court must be guided by the children’s best interests. Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.1977), cert. denied, 355 So.2d 722 (Ala.1978). The Alabama Supreme Court in Ex parte Devine, 398 So.2d 686 (Ala.1981), set out some factors to be considered by the trial court in awarding custody. These factors include the sex and age of the children, the characteristics and needs of each child, the respective home environments of the parties, the characteristics of those seeking custody, the capacity and interest of each parent to provide for the varying needs of the children, the interpersonal relationship between each child and each parent, the interpersonal relationship between the children and the effect on the children of disrupting or continuing an existing custodial status. 398 So.2d at 696-97.

As stated earlier, both parents are undoubtedly fit to receive custody of the children. The record indicates that, at the time of the hearing, the father perhaps offered a more stable home environment. We should note, however, that the problem with the mother’s home environment was apparently due solely to her husband’s daughter’s inability to accept her and this problem does not directly affect the children.

It is also important to note that, for whatever reason, the mother has had primary custody of the children for approximately two years. The children have adjusted to this situation and apparently accept it. Furthermore, due to the father’s liberal visitation rights, the children will still be present in the father’s home on numerous occasions.

Viewing the facts as a whole and considering what is in the best interest of the children, this court cannot conclude that the trial court so abused its discretion as to require reversal. To do so would substitute our judgment for that of the trial court. This we cannot do. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980).

This court also finds that the trial court did not err to reversal in failing to adjust the child support payments the father was required to make. Modification of child support provisions are appropriate only upon a showing of a material change in the circumstances of the parties. Inman v. Inman, 370 So.2d 1037 (Ala.Civ.App. 1979).

A review of the record reveals no material change in the circumstances of the parties. There is no evidence of any change in the circumstances of the mother and the children. The only change in the circumstances of the father that the record reveals is his three job changes since the 1979 divorce. There is evidence that one of those jobs did not pay as well as a previous job. The father’s testimony indicated, however, that at all times he was making adequate money and, furthermore, the father’s testimony indicated that he will earn more at his present job than any job he has had since the divorce.

This change in the father’s circumstances is not sufficiently material to warrant a modification of the child support provisions.

Finally, in brief the father raises two issues regarding the arrearage assessment which require some brief comment. First the father contends that the trial court erred in assessing the amount of the arrearage because it failed to give him credit for payment of increased school tuition expenses. Suffice it to say that the trial court committed no error in not granting him credit for such payments because the divorce decree required the father to pay tuition expenses.

The father also contends that, because the arrearage accrued while the children were in the legal custody of the grandmother, the trial court erred in making the arrearage payable to the mother. In considering this issue we must be mindful that we are dealing with child support payments. As the name indicates, these payments are for the support and benefit of the children and not for the support and benefit of the mother or the grandmother. See Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980); Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980). Since the payments are for the benefit of the children and since the children have been in the actual custody of the mother for approximately two years, this court cannot conclude that the trial court erred in making the arrearage payable to the mother.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Brenda Hogan JENKINS v. Charles Thomas JENKINS, Jr.
    Civ. 3049.
    Court of Civil Appeals of Alabama.
    July 7, 1982.
    Rehearing Denied Aug. 11, 1982.

      Marion F. Walker, Birmingham, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

The wife appeals from the provisions of a divorce decree modification requiring her to pay $125 per month for child support and denying her request for an attorney’s fee.

The parties were divorced in March 1979. The husband was awarded custody of the minor girl child, but his request for child support was denied. The decree provided for visitation rights for the wife with the cost of transportation to be paid by the husband. On appeal to this court, the original decree was affirmed. Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.), cert. denied, 376 So.2d 1101 (Ala.1979).

On May 28, 1981, the wife filed a petition to modify the original decree. She requested: (1) an increase in summer visitation from thirty to sixty days; (2) a requirement that the husband post a bond to prevent his removing the child from Alabama; and (3) an award of an attorney’s fee. The husband filed a cross petition to modify those provisions of the original decree which: (1) required the husband to bear the costs of transportation for the child’s visitation with the wife; and (2) restricted the husband’s right to remove the child from the state of Alabama. In an amendment to the cross petition, the husband requested child support from the wife. The wife’s motion to strike portions of the husband’s cross petition was denied. In a memorandum opinion, the trial court granted the wife’s request for extended visitation and modified the decree to require the husband to obtain prior approval of the court before removing the child from the state. The wife’s request for an attorney’s fee was denied. The husband was awarded $125 per month for child support.

The first issue raised by the wife on appeal is whether the trial court had jurisdiction to order child support payments under a cross petition for modification when the divorce decree granted custody to the husband but made no provision for child support.

The wife contends that absent a prior provision for child support, the husband’s request for support payments could not be granted upon a cross petition to modify the original decree as there was nothing to modify in terms of child support. She relies on this court’s decision in Armstrong v. Sparks, 360 So.2d 1012 (Ala.Civ.App.1978), which held:

However, the doctrine of changed circumstances is relevant in child support cases only where the complaining party seeks a modification of an earlier award of support or requests that a decree incorporating a prior agreement dispensing with the obligation to provide support (or establishing the amount of support payable) be altered.

In Armstrong, the wife’s petition for modification requesting child support was dismissed in the lower court for failure to show a material change in circumstances. On appeal this court reversed and remanded, holding that absent a prior provision for child support, a material change in circumstances was not relevant. The issue of support had never been previously considered by the court, nor was there any adoption by the court of an agreement between the parties concerning support payments.

In this case, however, the issue of child support was adjudicated in the original divorce proceedings. In denying the husband’s request for child support (by not awarding the same to him) the court, in effect ruled that on the existing facts child support would be zero.

As we noted in Armstrong, supra, 71 A.L. R.2d 1370, § 14 states in pertinent part:

Where a divorce decree provides for the custody or support of a minor child of the parties, it is generally held that the original order is res judicata on the existing state of facts, so that there must be a substantial change of circumstances before the court will amend the order for custody or support. . . .
If, however, the original decree makes no provision for the custody or support of a child of the marriage and the court did not adjudicate rights concerning the child, the doctrine of res judicata does not apply.... (Emphasis supplied.)

The denial of the husband’s request in the original proceeding was an adjudication of the issue of child support. Therefore, the issue was properly raised below in the husband’s cross petition for modification and the trial court had jurisdiction over the matter.

The second issue raised by the wife on appeal is whether the trial court erred to reversal in denouncing the “primary duty” doctrine and ordering the wife to assist in the support of her child.

Initially, we note that a modification of a prior decree as to child support will be made only upon proof of changed circumstances, and the burden of proof rests on the one seeking the modification. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981).

The record before us reveals the following pertinent facts:

Both parties have realized an increase in income since the time of the divorce. The husband’s has increased from a net income for the year 1979 of approximately $9,000 to a net monthly income of $1,093. The wife’s present net monthly income is $952, representing an increase of approximately $70 per week over her salary at the time of the divorce. The husband testified that the expenses of raising and caring for his daughter have greatly increased since the time of the divorce. As she has matured, his daughter’s activities have increased to include skating and piano lessons. After-school care is now more expensive. The costs of her clothing have increased. She now requires braces on her teeth. Furthermore, the general effects of inflation have caused an increase in all of the expenses which the husband incurs in earing for his child.

We hold that the evidence supported a finding of changed circumstances sufficient to warrant a modification.

The standard for setting child support is the needs of the child as compared with the ability of the parent to respond to that need. Ex parte Boley, 392 So.2d 840 (Ala.1981). In the instant case the evidence shows that the wife has funds from which to pay support for her child.

In considering the needs of the child, the husband testified that he is presently “capable” of providing for his daughter’s basic needs. He stated, however, and the record so shows, that the child would be directly benefited by contributing support from her mother. The wife contends that the primary legal and moral duty to support minor children rests on the father and absent proof that the father is incapable of providing that support, a mother cannot be compelled to contribute. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975). The trial court, in a memorandum opinion, confronted the issue directly and stated that the “primary duty” doctrine is not an immutable rule of the common law and blind adherence to such a doctrine is violative of the State and Federal Constitutions.

We will not address the broad issue whether the primary duty doctrine is unconstitutional. Our supreme court has repeatedly upheld the doctrine, Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854 (1966), and it is not the prerogative of this court to overturn authority of our supreme court. Furthermore, the absence of briefing from the father on appeal makes us reluctant to consider an issue of such importance in this case.

Our decisions, however, which have held that the mother can be compelled to contribute to the support of her child have been cited with approval by the supreme court. Board of Trustees of the Policemen’s and Firemen's Retirement Fund v. Cardwell, 400 So.2d 402 (Ala.1981) (citing Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976)). We do not hesitate, therefore, in holding that where the father has custody as in the instant case, a showing of a lack of total supportive ability, is not necessary in order to compel the mother to contribute to her child’s support.

The issue of child support should not be viewed as a contest between the parents. The concern of the court must be the best interests of the child whose welfare is at stake. If strict interpretation of our statements in previous cases might lead to a denial of contribution of needed child support by a non-custodial mother financially able, we refute such interpretation. Such strict adherence does not serve the best interests of the child.

In view of the ore tenus rule, an order modifying the child support provisions of a divorce decree will not be reversed on appeal unless it is such an abuse of discretion as to be plainly and palpably wrong. Shirley v. Shirley, 397 So.2d 156 (Ala.Civ. App.1981). We find no abuse of discretion in the award of support payments to the husband.

The wife contends that the trial court erred in refusing to award her an attorney’s fee. The allowance of attorney’s fees rests in the sound discretion of the trial court. Johnson v. Johnson, 396 So.2d 697 (Ala.Civ.App.), cert. denied, 396 So.2d 699 (Ala.1981). We find no abuse of discretion in the trial court’s denial of an attorney’s fee.

The wife’s request for an attorney’s fee on this appeal is likewise denied.

The case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . See, Inman v. Inman, 370 So.2d 1037 (Ala. Civ.App.1979).

      . In Tubb v. Middlebrooks, 379 So.2d 1272 (Ala.Civ.App. 1979), cert. denied, 379 So.2d 1274 (Ala. 1980), this court reversed an award of child support from the wife “not because of the absence of a legal duty upon the mother to contribute to the support of her children, but because of the absence of evidence as to either income or estate from which to pay.”