text:
    Rebecca Ann HUDSON v. A. R. HUDSON.
    Civ. 2804.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied March 10, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-522.
    Maury D. Smith and William P. Cobb, II of Smith, Bowman, Thagard, Crook & Cul-pepper, Montgomery, and R. B. Jones, Birmingham, for appellant.
    Jim Beech of Tweedy, Jackson & Beech, Jasper, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married in 1964. Both have college degrees — he has a B.S. in Pharmacy and an M.D. degree; she has a B.S. in home economics and a Master’s in education. At the time of the divorce, the couple had been married sixteen years and had five minor children, now ages seven to twelve, born between 1969 and 1974. Prior to the birth of the first child, the wife was employed as a public school teacher and later a college instructor. The husband held various jobs in order to support himself and his wife throughout his college and medical school years. The husband’s father and several educational loans also contributed to the couple’s livelihood during those years. The early years of marriage were spent in Mississippi.

In 1970, the Hudsons moved to Jasper, Alabama, where the husband was employed by Jefferson Health Foundation for one year. For a few years he was associated in practice with other physicians. At the time of the divorce, the husband was employed by his own professional association. The wife has not been employed outside the home since the birth of the first child. She is presently a student at Birmingham School of Law.

The husband and wife are thirty-eight and thirty-seven years old, respectively. Both are in good health. Dr. Hudson is a highly successful family practitioner and self-taught allergy specialist. His professional association grossed more than half a million dollars in 1979, and his gross salary for that year was $216,000. The couple’s home in Jasper, including a barn, pool and tennis court, is located on eighty-seven acres. The heated area encompasses more than 10,000 square feet. The court-ordered appraisal valued the homeplace at $350,000.

The parties separated in August 1979 when the husband left the home. He filed for divorce in May 1980 alleging incompatibility of temperament and irretrievable breakdown of the marriage. Following trial ore tenus, a decree of divorce was entered on October 27,1980. That decree was set aside on November 19,1980, pursuant to a motion for reconsideration or new trial made by the husband. The trial court ordered appraisals of the couple’s property. Subsequently on February 9, 1981, the trial court entered a final amended decree superseding all prior decrees.

The wife moved for new trial, which motion was denied on April 7, 1981. She appeals.

The wife’s main contention on appeal is that the trial court abused its discretion throughout the final amended decree. She also contends that the trial court erred in admitting into evidence an appraisal submitted by the husband’s attorney without proper notice and service to the wife. Within that contention, she asserts that she was given no opportunity to controvert the appraisal or to cross-examine in regard to it.

We will first address the issue of abuse of discretion.

The pertinent portions of the decree are summarized as follows:

Property Division
Husband:
H. B. Bar Farm (one-half interest); Covington County, Mississippi, farm; Lake Tahoe property (one-fourth interest);
18th Street Realty (one-third interest); Jasper Family Clinic (one-half interest);
Stocks, bonds, etc:
Vivienda, Walker County Medical Center bonds, and Nuvene;
Motor Home; and
45% net proceeds from sale of home-place.
Wife:
Smith Lake houses (two);
Three automobiles;
Dunhill Pharmaceutical stock;
All home furnishings and furniture not specifically awarded to husband; and 55% net proceeds from sale of home-place.

The husband is responsible for all debts owed by the parties except for the mortgage on the two lake houses awarded to Mrs. Hudson. The vast majority of the realty is mortgaged.

Child Custody, Support and Visitation
Custody in both parties;
$3,750 per month support and maintenance for wife and children to decrease $300 per month per child as each one reaches majority;
Children to reside with mother with father’s visitation as follows: every other weekend, alternating holidays, two weeks of summer vacation, every other AEA week, Monday and Wednesday nights from 5:30 to 8:30 and as the parties mutually agree;
Wife allowed to live in homeplace until youngest child reaches majority or she remarries, husband to be responsible for mortgage, taxes, insurance, upkeep, repair, and mortgage insurance policy; and Husband to pay medical and dental care of children.

Under these provisions, the wife asserts that the trial court abused its discretion especially by depriving her of full title to the homeplace, by placing custody of the children in both parents and by the Monday-Wednesday-night visitation during the school year. She also contends that the amount for support and maintenance is insufficient. She points out that in the original decree, she was given $6,000 per month in alimony and child support and full title to the homeplace, medical insurance coverage for herself and a $250,000 life insurance policy on the husband with the wife as irrevocable beneficiary.

The decisions complained of were within the trial court’s discretion and will not be reversed except for palpable abuse. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980); Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980). A division of property does not have to be equal, but must be equitable and graduated according to the nature of the case. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980); Lindsey v. Lindsey, 361 So.2d 601 (Ala.Civ.App.1978); Pettis v. Pettis, 334 So.2d 913 (Ala. Civ.App.1976). We will not set out the evidence as to the value of the properties awarded each nor the amounts of the indebtedness thereon. It would serve no useful purpose in this case. We do make pertinent observations. By the wife’s own figures, she received more than one-third of the total appraised value of the marital property. We note that the husband is left with the major portion of the couple’s indebtedness. A large share of the income-producing property that he received is held jointly with third parties and is related to his medical career. Its primary value thus far has been as a tax shelter. The husband was ordered to pay all court costs including the costs of the court-ordered appraisals and an attorney’s fee for the wife of $17,-500. There is no evidence as to existence of any cash assets available from which gross alimony could be paid. Certain stock has been previously sold with a substantial sum deposited in the wife’s bank account.

We deem it sufficient to say that the judgment as to the award of alimony and child support and division of property is not so far from substantial support in the evidence as to be determined arbitrary and unjust and thus an abuse of discretion. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978). It hardly can be said that the provision for periodic alimony and child support in the amount of $3,750 per month with all the additional benefits to the wife and children at the expense of the husband is unreasonable. Such provision remains subject to change if such need develops in the case.

Appellant submits that the trial court erred in granting “joint custody” of the parties’ five children since there is no such legal term in this state. Though we do not find mention of that particular terminology in the trial court’s final amended decree, we hold that such a custody provision is not a palpable abuse of discretion. It is a relatively new concept, but is not unknown to the courts of this state. See Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975). Specific periods of visitation are also within the trial court’s discretion, Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980). We find no abuse.

The final issue is whether the trial court committed reversible, prejudicial error in its allowance or receipt of an appraisal submitted by the husband’s attorney without proper notice or service to the wife. We find that if the court erred in this respect, the error was without apparent substantial injury under Rule 61, A.R.C.P. See Poston v. Gaddis, 372 So.2d 1099 (Ala.1979). There was sufficient evidence to support the judgment without regard to such appraisal. There appears to be some question as to whether such matter was filed until after the judgment was rendered. We take note that the husband’s attorney reserved the right to present argument after receipt of the court-ordered appraisals and to offer evidence on the property mortgages. No objection to this reservation was made by the wife’s attorney, and in fact, the wife’s attorney could have entered the same reservation. We find no substantial injury to the wife.

The respective request of each of the parties for an award of attorney fees on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    TOWN OF CHEROKEE, a Municipal Corporation v. Will R. WEAVER.
    Civ. 2970.
    Court of Civil Appeals of Alabama.
    Feb. 3, 1982.
    Rehearing Denied Feb. 24, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-470.
    Gene M. Hamby, Jr., Sheffield, for appellant.
    John D. Clement, Jr., Tuscumbia, for ap-pellee.
   HOLMES, Judge.

This case arose from an attempt by the Town of Cherokee (appellant) to assess Will R. Weaver (appellee) for his proportionate share of the cost of constructing a sewer system.

This is the second time this attempted assessment has led to an appeal to this court. In Weaver v. Town of Cherokee, 397 So.2d 548 (Ala.Civ.App.1981), this court remanded the case to the trial court for a new trial due to Cherokee’s failure to comply with section 11-48-29, Code of Alabama 1975. On remand the trial court held that the assessment against Weaver was void. Cherokee appeals from this ruling. For the reasons stated below, we affirm the trial court.

The record reveals the following: In 1971, Cherokee enacted a local improvement ordinance providing for the construction of a sanitary sewer system within the town. Construction of the sewer system began in 1974. After the system was completed an assessment roll was prepared. The assessment roll contained the name of each property owner whose property was improved by the system, a description of the property and the fractional cost of the improvement to be assessed against each parcel of property. Weaver filed a written protest objecting to the amount of the assessment against his property. After considering the objection, the town commission met on August 2, 1977 and overruled the objection.

Weaver then appealed the commission’s action to the circuit court pursuant to section 11-48-36, Code of Alabama 1975. At the circuit court Weaver alleged, among other things, that the commission had failed to comply with section 11-48-29 which requires that the town governing body adopt an order or resolution determining the amount to be assessed against each landowner. The circuit court, however, rejected this contention and submitted the ease to the jury which returned a verdict for Cherokee.

Weaver then filed a motion for a judgment notwithstanding the verdict or in the alternative for a new trial. In support of this motion Weaver again alleged that the commission had failed to comply with section 11-48-29. The trial court, however, denied Weaver’s motion and Weaver instituted the first appeal to this court.

In Weaver v. Town of Cherokee, supra, this court reversed the trial court and remanded the case to the trial court for a new trial. The basis for reversal was the commission’s failure to adopt an order or resolution determining the amount to be finally assessed against each landowner as required by section 11-48-29. In remanding the case to the trial court this court stated that Cherokee could introduce “additional evidence, if it has any, tending to show that this jurisdictional defect in its assessment proceedings does not, in fact, exist.” 397 So.2d at 553.

After remand, Cherokee made a motion in the trial court to show that the jurisdictional defect in its proceedings did not exist. In support of this motion Cherokee filed with the trial court its assessment rolls and an amendment to the minutes of the August 2, 1977 commission meeting. The amendment, which was formulated at the April 21, 1981 commission meeting, stated generally that it was the intention of the town commission at its meeting of August 2, 1977 to approve the assessments as set out in the assessment rolls. The amendment further stated that none of the affected property owners, including Mr. Weaver, had ever failed to understand that the commission had approved the assessments as set out in the assessment rolls.

On remand, the trial court considered the amended minutes and assessment rolls along with briefs by both parties and the opinion of this court in Weaver v. Town of Cherokee, supra, and concluded that Cherokee’s failure to comply with section 11-48-29 was a jurisdictional defect which rendered the whole proceeding void as against Will R. Weaver. The trial court also held that Cherokee could not amend its minutes with respect to Will R. Weaver to show that the jurisdictional defect did not exist and, furthermore, with respect to Mr. Weaver, Cherokee must “begin anew and retrace its steps.”

Cherokee, through able counsel, appeals from the above ruling by the trial court. Cherokee contends the trial court erred to reversal in three instances.

Initially, Cherokee contends that the trial court erred in holding that Cherokee could not amend its minutes with respect to Weaver. Cherokee next contends that the assessment rolls constitute substantial compliance with section 11-48-29 and the trial court committed reversible error by not so holding since the assessment rolls were in evidence before it. Finally, Cherokee contends that the trial court erred in holding that, with respect to Weaver, Cherokee must “begin anew and retrace its steps.”

As stated earlier, this court finds no merit in any of these contentions.

In support of its first contention Cherokee cites several opinions by our supreme court which hold that the governing body of a city may, when error has been committed, amend its minutes to make them speak the truth. Estes v. City of Gadsden, 266 Ala. 166, 94 So.2d 744 (1957); City of Guntersville v. Walls, 252 Ala. 66, 39 So.2d 567 (1949); Streater v. Town of Town Creek, 234 Ala. 132, 173 So. 853 (1937); Penton v. Brown-Crummer Investment Co., 222 Ala. 155, 131 So. 14 (1930). The amendment in the instant case, however, is not an amendment as contemplated in the above cited cases. Those cases contemplate an amendment which corrects the original minutes by setting forth what was actually said and done at the previous meeting. The amendment before us in this case does not set forth what actually happened at the August 2, 1977 meeting. At best the amendment is a mere recital of what the commission intended to do at the meeting. This amendment reveals only that on April 21,1981 Cherokee went through a formality attempting to do then what it had not done on August 2, 1977. See Estes v. City of Gadsden, supra.

From the foregoing it is apparent that Cherokee was unable to introduce any additional evidence to show that the minutes of the August 2, 1977 meeting did not contain a complete and accurate account of all that was said and done at the meeting. Minutes that are complete and accurate cannot be amended and the trial court properly so held.

Cherokee apparently contends, relying upon this court’s statement in Weaver v. Town of Cherokee, supra, that Cherokee could introduce additional evidence; that this court sanctioned Cherokee’s after-the-fact attempt to cure the jurisdictional defect. Suffice it to say that such was not the intention of this court. Such an interpretation would in effect nullify the procedure set out in the Municipal Public Improvement Acts for fixing the amount of assessments.

Cherokee’s second contention regarding substantial compliance with section 11-48-29 is also without merit. As this court stated in Weaver v. Town of Cherokee, supra, section 11-48-29 is jurisdictional. Where there is no assessment by the town governing body as required by section 11—48—29, the attempted assessment is incomplete and ineffectual. Anderson v. City of Vestavia Hills, 272 Ala. 128, 130 So.2d 341 (1961); Streater v. Town of Town Creek, supra. Section 11-48-29 requires that the municipal governing body, by resolution or order, fix the amount of the assessment against each lot or tract of land in the assessment rolls. Introducing the assessment rolls into evidence in the trial court does not constitute a resolution or order fixing the amount of the assessment. Section 11-48-29 was not complied with. Consequently, as the trial court properly held, the whole proceeding was void as against Weaver. Anderson, supra; Streater, supra.

Cherokee’s final contention is also without merit, but only because Cherokee misunderstands the trial court’s order. In Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301 (1913), our supreme court held that where irregularity had occurred in an assessment proceeding, the rehabilitation process need go back no further than the specific error. Pierce is the case cited by the trial court as authority for its order directing Cherokee to “begin anew and retrace its steps.” In light of Pierce, it is apparent that the trial court intended that Cherokee “begin anew and retrace its steps” only to the point in the assessment procedure where the error was committed. The trial court committed no error in so holding.

This case is due to be affirmed.

AFFIRMED.

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


text:
    William C. SMITH v. George CAPPS.
    Civ. 2875-X.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Rehearing Denied March 10, 1982.
    Certiorari Denied, May 28, 1982 Alabama Supreme Court 81-517.
    Dana E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellant.

      John L. Jernigan, III of Stokes, Jernigan & Stokes, Brewton, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In our review of this workmen’s compensation case, we cannot disturb a finding of fact by the trial court but must accept such findings as conclusive if any legal evidence is supportive thereof. Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981); Big “B” Discount Drugs, Inc. v. Parker, 401 So.2d 115 (Ala.Civ.App.1981).

Evidence was presented that Capps was Smith’s individual farm employee, and that Capps and his half-brother, Sorrells, were joint sub-contractors in cutting pulpwood for Smith’s pulpwood corporation. For cutting and hauling the pulpwood, they were paid by the cord. As to the farm work, Capps and Sorrells each worked for approximately twenty-five hours per week and, as compensation, were given the joint use of a house therefor, the reasonable rental value of the house being $200 per month. Capps, Sorrells and Sorrell’s family, which then consisted of his wife and seven children, resided in the Smith farmhouse.

Three of Capps’ fingers on his left hand were injured by farm machinery while he was engaged in feeding Smith’s cattle. As a result thereof his middle finger was amputated so that he lost more than one-half of its middle phalanx, and his ring finger was amputated at the tip of the middle phalanx. A laceration to his forefinger was sutured, and, evidently, he has no permanent disability connected with that finger. He had previously lost his little finger in a sawmill accident.

A physician testified that Capps could have grown a small tumor, called a neuro-ma, over nerve endings in the amputated fingers and that Capps could have pain upon touching the associated area over the neuroma.

Sorrells and Capps swore that he cannot grip or hold a chain saw, and that there is nothing which he can do as to cutting pulpwood. His fingers hurt on their ends. They are sore and hurt when he attempts to grip anything. He has been unsuccessful in his attempts to procure employment.

Capps is thirty-four years of age, never completed the first grade in school, has only done physical labor, and has full-scale, verbal and performance I.Q.’s in the fifties. This range of intelligence is classified as profoundly or severely retarded. He is very handicapped in communicating and possesses poor judgment skills. There was expert evidence that he was not mentally capable of doing anything other than manual labor and that the injuries which he received would incapacitate him more than a person who possesses a normal intellect. He was limited as to employment opportunities pri- or to the injury and the injury definitely added to that disability. His range of employment opportunities has been narrowed by his injury. The accident did not have any effect upon either his intelligence or his retardation.

The trial court ascertained that Capps’ injury decreased his earning capacity and caused him to suffer a fifty percent permanent partial disability to his body as a whole.

The only injury indicated in the evidence was to the three fingers. Pain apparently existed only in the ends of the two amputated fingers.

The employer argues that the trial court should have awarded benefits only according to the schedules for the partial amputation of Capps’ two fingers since there was no evidence that those amputations resulted in physical effects extending to other parts of his body. In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968) and in Dale Motels, Inc. v. Crittenden, 50 Ala. App. 251, 278 So.2d 370 (1973), the following summary of the law as stated in 156 A.L.R. 1344 was adopted:

The rule, however, is well established that where an employee has received a specific injury which spreads to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity with respect to the member, the employee is not limited to a recovery of the special allowance provided for in case of injury to a specific member or members, but may recover under the provisions of the act for compensation in case of disability. (Emphasis supplied.)

The first portion of that rule cannot apply to the present case for the injury did not spread to other parts of Capps’ body. However, under the evidence as to Capps’ lack of education, his retardation and work history and present lack of capabilities, the trial court could have legitimately concluded that the injury caused an abnormal and unusual incapacity, the second alternative contained in the rule. Thus, Capps was not limited in his recovery from Smith to the scheduled amount for the amputations of the two fingers, but he could recover compensation for a disability to the body as a whole. There is definite evidence, together with reasonable inferences therefrom, that would fully support a finding that the employee is now totally and permanently unemployable and that the injury produced such abnormal and unusual incapacities that he can no longer work or find employment in any field of endeavor.

Therefore, the trial court did not err in establishing a fifty percent permanent partial disability to Capps’ body as a whole. Such finding is in accord with the present predominating rule which is stated in 2 Larson, Workmen’s Compensation Law, § 58.23 as follows:

Although it is difficult to speak in terms of a majority rule on this point, because of significant differences in statutory background, it can be said that at one time the doctrine of exclusiveness of schedule allowances did dominate the field. But in recent years there has developed such a strong trend in the opposite direction that one might now, with equal justification, say that the field is dominated by the view that schedule allowances should not be deemed exclusive, whether the issue is treatment of a smaller member as a percentage loss of a larger, or treatment of any scheduled loss as a partial or total disability of the body as a whole.

The employer further contends that Capps’ average weekly wages should be computed upon, at the most, the sum of $25, being approximately one-half of the reasonable weekly rent of the farmhouse. The trial court determined that,

Due to the long hours worked by the Plaintiff and the difficulty in arriving at a fair, reasonable, and equitable wage for the Plaintiff for his farm work, it is the decision of the court that the Plaintiff’s average weekly wage for purposes of workmen’s compensation benefits shall be the minimum wage as of January 1,1980, which was $13.10 (sic) per hour times the average number of hours worked weekly on the Defendant’s farm or $77.50 per week.

In this case, just and fair results to both parties were produced by utilizing the minimum hourly wage as then established by Congress. The method of computation of Capps’ average weekly wages which was utilized by the circuit court did not constitute an abuse of that court’s judicial discretion. Willis v. Storey, 268 Ala. 205, 105 So.2d 128 (1958); Patterson v. Whitten, 57 Ala.App. 297, 328 So.2d 301 (1976); Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974).

Other issues raised by the employer shall not be discussed at length.

We construe the judgment of the trial court to be a determination that those particular injuries, without considering the pri- or loss of the little finger, proximately caused the disability as established by the trial court. Such a finding is not incompatible with the provisions of § 25-5-58 of the Code (1975) relating to the effect of pre-existing injuries.

The trial court did not abuse its discretion in taxing the employer with the costs of the two depositions which were introduced into evidence at the trial. § 12-21-143, Code (1975).

The judgment of the trial court substantially complied with § 25-5-88 of the Code. Republic Steel Corp. v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.), cert. denied, 370 So.2d 297 (Ala.1979). As to the appeal, we find no error and affirm.

Capps has cross-appealed and contends that he was an employee of Smith in the pulpwood work as well as on the farm and that his total wages from both jobs should be used in ascertaining his average weekly wages. The evidence was in dispute in that regard, and the trial court decided that issue against the employee. Since there was evidence which supported that holding of the trial court, we are not authorized to disturb its factual finding. Dennis v. Huff, 406 So.2d 412 (Ala.Civ.App.1981). We affirm as to the cross-appeal.

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

AFFIRMED.

All the Judges concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, INC., a corporation v. Roger A. DAY.
    Civ. 2947.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Rehearing Denied March 24, 1982.
    Certiorari Denied, May 21,1982 Alabama Supreme Court 81-551.
    B. F. Stokes, III, of Stokes & MeAtee, Mobile, for appellant.
    Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for ap-pellee.
   HOLMES, Judge.

Roger A. Day and John H. Brown were each involved in an automobile accident. State Farm, as subrogee of John H. Brown, sued Day alleging that Day’s negligence was the cause of the accident. Day failed to appear and contest State Farm’s claim. Consequently, a default judgment was entered in favor of State Farm.

State Farm then filed a garnishment against Allstate, the liability carrier of Day’s mother. Allstate resisted the garnishment. However, after various motions by both parties, judgment was ultimately rendered against Allstate by the district court.

Allstate then appealed the district court judgment to the circuit court. After an ore terms hearing the circuit court reversed the district court and held for Allstate.

After the denial of its motions for a new trial, State Farm appealed to this court. For the reasons stated below, we reverse the judgment of the circuit court.

A lengthy review of the facts of this case is not necessary. This action arose from an automobile collision involving three automobiles. The accident occurred as State Farm’s insured was chasing Day after Day had allegedly burglarized the home of a neighbor of State Farm’s insured.

At trial Allstate contended that it had no duty to provide coverage under this policy because the conduct which formed the basis of this claim (referring to the burglary) is against public policy. Thus, the sole issue before the trial court was whether Allstate was liable under its policy of insurance.

Only one witness testified at the hearing. Among other things, the trial court allowed the witness to testify that the automobiles of Day and State Farm’s insured were reportedly traveling at speeds of up to one hundred miles per hour. Allstate’s attorney, in his closing argument, seized upon this testimony and stressed that State Farm’s insured had been traveling at a high rate of speed and was not totally an innocent party to the accident.

After hearing the testimony of this one witness, the trial court rendered judgment for Allstate. The trial court gave no reason for its decision but did cite as authority Marcy v. Bjorklund, 291 Minn. 17, 189 N.W.2d 195 (1971), a case dealing solely with an issue of negligence in the operation of an automobile.

As noted earlier, the sole issue before the trial court was whether Allstate was liable, under these circumstances, to provide coverage. When we consider the testimony concerning the speed of the vehicles and the closing argument regarding the negligence of the parties involved along with the case the trial court cited as authority for its decision, it becomes apparent to this court that the trial court did not decide the issue of Allstate’s liability under its insurance policy. Instead, the trial court determined that State Farm’s insured was contributorily negligent. The trial court erred in making this determination.

Prior to this action, State Farm had brought a negligence action against Day. Day failed to appear and a default judgment was entered against him. The default judgment was determinative of any issue of negligence on the part of State Farm’s insured and Day. That determination was binding on the trial court. Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151 (5th Cir. 1974); McCalley v. Wilburn & Co., 77 Ala. 549 (1884), rev’d on other grounds, Halsey v. Murray, 112 Ala. 185, 20 So. 575 (1896). See Gibson v. Elba Exchange Bank, 266 Ala. 426, 96 So.2d 756 (1957); Womble v. Glenn, 256 Ala. 374, 54 So.2d 715 (1951); Ex parte Allen, 166 Ala. 111, 52 So. 44 (1910). Thus, the trial court was precluded from making a decision based upon any perceived negligence on the part of any of the parties before it.

In view of the above, this court has no alternative but to remand to the trial court for a determination based upon proper considerations.

This case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Jean H. MOBLEY v. Charles Ray MOBLEY.
    Civ. 2958.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Rehearing Denied March 31, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-577.
    William S. Halsey of Burnham, Klinefel-ter, Halsey & Love, Anniston, for appellant.
    Lewis H. Hamner, Roanoke, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The issues on appeal are whether the trial court abused its discretion as to custody of the minor children and the property division.

The Mobleys were married for almost twenty-five years and had five children, three of which were minors at the time of divorce. The husband and wife were both gainfully employed and contributed to the marriage. The family was, however, of modest means and the couple owned little property. The wife sued for divorce on the basis of incompatibility of temperament. The greatest factor contributing to the demise of the marriage was apparently connected with disagreements as to the rearing and discipline of the minor children.

In the final decree of divorce, the trial court divided the custody of the children, awarding Mrs. Mobley seventeen-year-old Terrell Douglas, and Mr. Mobley thirteen-year-old Tyler Michael and seven-year-old Terri Deandra. Each parent was awarded visitation as to the child or children in the custody of the other. The wife was awarded $150 per month in child support for the son in her care, and the husband was made responsible for medical, dental and drug expenses of said child.

The trial court divided the personal property between the husband and wife. The wife received all her personal effects, papers, clothing and jewelry, the 1967 station wagon, the freezer, the dining room furniture, one bedroom suite of her choice and one-half of the general household goods. The real property was ordered sold by the parties within ninety days of the decree and thereafter at public auction by the register of the circuit court. The net proceeds were to be divided equally between the parties. The husband was ordered to pay court costs and certain indebtedness of the parties. From that order, the wife appeals.

The wife contends that the trial court erred (1) in dividing custody of the three minor children between the parties; (2) in awarding custody of the youngest son and young daughter to the husband; and (3) in property division, both personal and real.

It would serve no useful purpose to discuss in detail the evidence presented relating to the issues presented upon appeal. However, in response to the issue of child custody, we comment that there was an unopposed in camera interview with the children. It is undenied that the father did much of the cooking and household chores and spent much time in recreational activities with the children. Though the granting of custody to the father of the younger children, including the girl, is a departure from the usual and historic, in view of the testimony it does not appear to be contrary to the best interest of the children. The assertion by the mother of the “tender years doctrine” is inappropriate in view of the recent case of Ex parte Devine, 398 So.2d 686 (Ala.1981).

The task of the trial court in determining custody questions is indeed an onerous one. Such determinations are clothed with a presumption of correctness following a hearing ore tenus. We cannot reverse unless there is palpable error or abuse of the trial court’s sound discretion. Lowery v. Lowery, 391 So.2d 120 (Ala.Civ.App.1980). We may not substitute our judgment for that of the trial court. Dismukes v. Dismukes, 376 So.2d 730 (Ala.Civ.App.1979). We find no error in the decision of the trial court as to custody.

The ore tenus rule with its presumption of correctness also governs the trial court’s division of property. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980). We find no error or abuse in this aspect of the instant case.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    JUNEMAN ELECTRIC, INC. v. Fred CROSS.
    Civ. 3003.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Rehearing Denied March 31, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-560.

      Ernest W. Weir and Selena Mae Cason, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., and Samuel Maples of Corretti & Newsom, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal from the granting of a summary judgment in favor of Fred Cross, appellee, allowing him as an employee of Juneman Electric, Inc. to recover the amount due him pursuant to § 12-16-8, Code 1975. Juneman Electric appeals, asserting that the trial court erred in finding that Cross was a full-time employee within the meaning of the pertinent statute and that the statute was constitutional.

Fred Cross, a construction electrician, is a member of Local Union 136, International Brotherhood of Electrical Workers (the Union). The Union operates under a collective bargaining agreement negotiated between the Union and the National Electrical Contractors Association (NECA), of which Juneman Electric is a member. Under the terms of that agreement, the Union assigns its members to employers of the NECA who are in need of employees for particular construction jobs. Grievances against the employer must be lodged following the procedure outlined by the collective bargaining agreement.

Pursuant to the referral service specified in the agreement, Cross was referred to and was initially employed by Juneman Electric in November of 1967. Cross worked regular forty hour weeks with Juneman Electric continuously up until 1973, when he was laid off for approximately two months. At the end of that time Cross resumed employment with Juneman Electric until 1975, when he was laid off for approximately nine months. Cross rejoined Juneman Electric in 1976 and worked regularly and continuously until January 1981.

In April of 1978 Cross was summoned for jury duty in the Jefferson County Circuit Court for the week of April 10 through 13. At that time he was regularly employed at Juneman Electric. Approximately one to two weeks before he was required to serve as juror, Cross notified his employer of the summons. On the morning of April 10, Cross reported to work for a short time before he was to report for jury duty. During the next three days, however, he was unable to report for work by reason of his jury service.

When his term of jury duty was up, Cross reported back to work at Juneman Electric. He presented his jury pay slip to his employer, requesting that, pursuant to § 12-16-8, Code 1975, the employer pay him the difference between what he had received as a juror and what his usual compensation would have been for those days he was unable to report to work. Juneman Electric paid Cross his usual compensation for the day of April 10,1978, but refused to pay Cross any compensation for the remaining three days during which he served as juror. It is undisputed that the amount of compensation claimed by Cross is $236.00.

Cross thereafter filed suit against June-man Electric in the circuit court to recover the difference between the amount received while serving as juror and the amount of his usual compensation. The complaint was later amended to seek a declaratory judgment declaring the rights of the parties under § 12-16-8, Code 1975. Juneman Electric filed an answer, asserting the unconstitutionality of the statute and various other defenses. Alabama Attorney General Charles Graddick was added to the suit since the defenses raised by Juneman Electric attacked the constitutionality of state law.

The parties, according to the trial court’s judgment, submitted the case to the court on cross-motions for summary judgment. On September 1, 1981 the court granted summary judgment in favor of Cross and against Juneman Electric, finding that § 12-16-8, Code 1975, was constitutional; that Cross was a full-time employee under the statute at the time in question; and that Cross was entitled to recover the amount of $236.00 as the difference between the amount of compensation he received as juror and his usual compensation. Juneman Electric brings this appeal, alleging (1) that § 12-16-8, Code 1975, is unconstitutional, and (2) that the granting of a summary judgment in favor of Cross was error.

Section 12-16-8, Code 1975, provides in pertinent part:

(a) Upon receiving a summons to report for jury duty, any employee shall on the next day he is engaged in his employment exhibit the summons to his immediate superior, and the employee shall thereupon be excused from his employment for the day or days required of him in serving as a juror in any court created by the constitutions of the United States or of the state of Alabama or the laws of the United States or of the state of Alabama.
(b) Notwithstanding the excused absence provided in subsection (a) of this section, any full-time employee shall be entitled to his usual compensation received from such employment less the fee or compensation he received for serving as such juror.

Appellant first contends that § 12-16-8, Code 1975, violates the “clear expression” requirement of Ala.Const. art. IV, § 45. In general, if the title of a bill is so misleading that the average person reading the title would not be informed of the purpose of the legislation, then the act falls below constitutional standards. Opinion of the Justices, 294 Ala. 555, 319 So.2d 682 (1975). The purpose behind this rule is to assure that the public and the legislators are informed of the contents of the bill. Id. However, this rule must be applied liberally so as not to cripple legislation. Opinion of the Justices, 294 Ala. 571, 319 So.2d 699 (1975).

Section 12-16-8 is entitled “Excusing of employees for jury service; compensation to which employees entitled during jury service; issuance to jurors of statement showing fee or compensation for jury service.” We cannot find that the title of the Act is so misleading that it fails to inform the reader of the Act’s purpose. The intent behind the enactment of § 12-16-8 is to insure that those individuals rendering service to the state as jurors are adequately compensated for their participation. Gadsden Times Publishing Corp. v. Dean, 49 Ala.App. 45, 268 So.2d 829 (1972), rev’d on other grounds, 412 U.S. 543, 93 S.Ct. 2264, 37 L.Ed.2d 137 (1973). Clearly, the statements contained in the title indicate that the subject of the Act involves compensation to an employer’s regular workers for their service as jurors. We would note additionally that even if the Act originally did not conform to the “clear expression” requirement of § 45, any irregularities in legislative procedure surrounding the Act are cured when the provision is incorporated into a code and that code is adopted by the legislature. Fuller v. Associates Commercial Corp., 389 So.2d 506 (Ala.1980). Appellant’s first contention is without merit.

Appellant next argues that § 12-16-8 is unconstitutional in that it violates the due process and impairment of contract provisions of the Alabama constitution. Appellant relies primarily on the case of White v. Associated Industries of Alabama, Inc., 373 So.2d 616 (Ala.1979), in which the Supreme Court of Alabama held unconstitutional the private employer’s assessment of § 31-2-13, Code 1975, requiring employers of military reserve members to pay these employees their regular compensation during the time they were absent on guard duty. The supreme court found § 31-2-13 to be in violation of the due process clause of the Alabama constitution in that the statute singled out an arbitrary group, military reserve members, to receive double pay, and another arbitrary group, private employers, to bear the burden of compensation. The court found that this scheme was not reasonably adapted to the “beneficial end” of encouraging reserve participation. The Act was also struck down because it interfered with possible contractual provisions concerning reserve duty contained in many employment contracts.

Appellant argues that the same rationale should apply to § 12-16-8, necessitating a finding that the Act is unconstitutional. We disagree. In determining whether due process guaranties have been denied, the legislation in question must be tested against the public purpose sought to be served, and there must be a legitimate relationship between the public purpose and the legislation passed to further that purpose. Mount Royal Towers, Inc. v. Alabama Board of Health, 388 So.2d 1209 (Ala.1980). Equality of right is a fundamental concept of due process as well as of equal protection, and legislation must not create arbitrary classifications in attempting to achieve its goal. Opinion of the Justices, 252 Ala. 527, 41 So.2d 775 (1949).

We find that § 12-10-8, unlike the statute involved in the White case, does not violate the due process clause of the Alabama constitution. Appellant’s reliance on that case is misplaced. As pointed out in White, the jury pay statute (§ 12-16-8) differs from the military reserve pay statute in several respects. The jury pay statute imposes a less onerous burden on the employer than the reserve pay statute. Jury duty is mandatory, but sporadic; it is unlikely to involve many employees at one time, even in labor-intensive businesses. The length of time required for jury duty is ordinarily much shorter than the term of duty for military reserve members. Briefly, the rationale of White is inapplicable to the present situation; the imposition of the obligation on employers of full-time workers is reasonable, given the reasonable relationship between absence from work for jury duty and the legitimate end of maintaining the efficient functioning of our jury system.

Appellant argues, however, that to single out employers as a class to shoulder the responsibility and full-time employees as a class on which to bestow the benefit, is arbitrary and unreasonable. Again, we disagree. As pointed out in the Attorney General’s brief, several reasons exist for selecting the category of full-time employees and their employers to achieve the purpose of the legislation:

1.Full-time employees stand to lose the most in compensation. The likelihood of lengthy jury service accentuates the problem, and imposes a more [onerous] burden on full-time employees, especially the longer the duty required of a person.
2. Any classification less than full-time would be impossible to define and to regulate.
3. The legislature sought to remedy the plight of those employees who rely upon their jobs as their sole means of support, especially those with family obligations etc. who would otherwise be forced to forego their usual compensation and receive the minimal statutory expense allowance.
4. The legislature sought to reduce the disparity between the daily fee or the expense and the amount which a day is worth in earning capacity.
5. The legislature sought to relieve hardship jury service imposes upon many who serve as jurors, thereby diminishing the representative character of jurors when one is excused for jury duty. The duty is mandatory unless excused for hardship, and conceivably jury service could be reduced to retired employees or those employed by large corporations who might voluntarily pay compensation to employees while serving on juries.
6. Jury service involves a smaller number of employees and involves a lesser burden on employers than other types of mandatory compensation.

We find these reasons to be cogent justification for the statute’s methods.

We also do not find that § 12-16-8 violates the prohibition against impairment of contract obligations contained in the Alabama constitution. The police power of the state enters into every contract, but the exercise of that power must be for an end which is in fact public, and the means must be reasonably adapted to the end to be achieved. Garrett v. Colbert County Board of Education, 255 Ala. 86, 50 So.2d 275 (1950). As stated above, we think the payment of compensation by the employer to employees on jury duty is a legitimate exercise of state police power as a means of achieving the beneficial purpose of assuring the efficient functioning of the jury system.

In addition to the foregoing arguments, we would note that a challenge to the constitutionality of § 12-16-8 on the basis of the fourteenth amendment due process clause has already been rejected by the United States Supreme Court in Dean v. Gadsden Times Publishing Corp., 412 U.S. 543, 93 S.Ct. 2264, 37 L.Ed.2d 137 (1973).

For the foregoing reasons we must uphold the constitutionality of § 12-16-8, Code 1975. That portion of the trial court’s judgment is affirmed.

Appellant also contends in brief that the trial court’s granting of a summary judgment in favor of appellee was improper because there existed a genuine issue of material fact as to whether Cross was a full-time employee of appellant. It is undisputed, however, that the parties submitted the cause to the trial court on cross-motions for summary judgment. In its judgment the trial court said that the submission was by agreement. Without deciding whether the submission was by agreement, we note that both motions stated that there was no genuine issue of fact and that each party was entitled to a judgment as a matter of law. Having so stated its position on the factual situation before the trial court, we do not follow, nor can we accept, appellant’s contention here that there existed a genuine issue of material fact as to whether Cross was a “full-time employee” of Juneman Electric. Notwithstanding our conclusion on the effect of the cross-motions for summary judgment, we have carefully examined the affidavits filed in support of those motions and find no dispute in the facts set out in those motions. Consequently, we conclude, as did the trial court, that the issue is whether, as a matter of law, Cross was a full-time employee within the meaning of § 12-16-8(b), Code 1975. See Watts Construction Co. v. Cullman County, 382 So.2d 520 (Ala.1980).

In determining the legislative intent behind a statute, this court will give words and phrases the same meaning they ordinarily have in everyday usage. Fuller v. Associates Commercial Corp., 389 So.2d 506 (Ala.1980). We have not been cited to, nor can we find in our own research, any authority defining the term “full-time employee” within the meaning of § 12-16-8(b), Code 1975. Webster’s Third New International Dictionary (1966) defines “full time” as “the amount of time considered the normal or standard amount for working during a given period (as a day, week or month).” The Alabama courts have construed the term “full-time” employment as used in insurance contracts, stating that “[i]mplicit in the term ‘full time’ employment is the idea that the employee be available for his customary duties as the exigencies of his employment might demand.” White v. Massachusetts Mutual Life Insurance Co., 275 Ala. 581, 157 So.2d 6 (1963).

Appellee has cited us to several cases from other jurisdictions defining the term “full time” in the context of workmen’s compensation and unemployment compensation statutes. These constructions of the term tend to define “full time” in terms of the number of working hours which constitute the standard full workday or week in the particular industry or community. See Cote v. Bachelder-Worcester Co., 85 N.H. 444, 160 A. 101 (1932). See generally, 17A Words and Phrases, “Full Time” (1958).

We recognize that the definitions stated above are not conclusive as to the definition of the term “full-time employee” within the meaning of § 12-16-8(b), Code 1975. However, based on the facts of this case we find that Cross was a full-time employee of Juneman Electric, bringing him within the meaning of the statute. It is undisputed that Cross worked for Juneman Electric continuously for several years, with only minor layoffs in between. According to the testimony of Mr. Reimann, the president of the company, the normal workweek at his construction company was a forty hour week, at eight hours per day. Cross normally worked a standard eight hour day, forty hour week at Juneman Electric. We hold, therefore, that Cross worked “full time” for Juneman Electric, despite the company’s contention that Cross’s involvement with the Union necessitates a different result. Cross is therefore entitled to recover the amount of $236.00 from his employer, Juneman Electric, pursuant to § 12-16-8, Code 1975.

AFFIRMED.

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


text:
    Roger S. COLLINS v. Sylvia F. COLLINS.
    Civ. 3013.
    Court of Civil Appeals of Alabama.
    March 12, 1982.
    S. Mark Jordan, Enterprise, for appellant.
    Judy A. Newcomb, Dothan, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The trial court denied the plaintiff’s motion to terminate the periodic alimony of his former wife. The plaintiff appeals and contends that the circuit court was palpably wrong. We affirm.

After a contested trial, a divorce judgment was rendered in December 1978, which, among other provisions, ordered the husband to pay to the wife as periodic alimony the sum of $500 per month for twenty-four months, after which period of time the monthly payments were automatically reduced to $200.

In January 1981, the plaintiff sought to terminate such periodic alimony because of a change of circumstances, his averments in that regard being that the defendant is presently employed and that the plaintiff has remarried and additionally supports his mother.

As the only witness at the trial, the plaintiff testified that while his 61-year-old mother is not drawing any disability payments, she is unable to work at her prior job. He moved her from Mississippi to New Mexico, where he is presently stationed. Voluntary support for his mother of $300 each month is provided by the plaintiff.

He has remarried and his present wife has part-time employment and is completing her college degree in theology. Her salary is not ascertainable from the evidence.

The ex-wife, the defendant, presently lives in El Paso, Texas, where her family resides. He stated that the defendant is now employed, but her answer to interrogatories denied such fact. The parties were husband and wife for over six years. They had no children.

In October 1978 the plaintiff’s gross earnings were $1,713 per month and had increased to about $2,200 monthly by the time of the September 1981 ore tenus trial before the same trial judge who rendered the original divorce judgment.

When the circuit court refused to terminate the periodic alimony award, the plaintiff appealed.

The case of Morrow v. Morrow, 351 So.2d 923 (Ala.Civ.App.1977) is largely dispositive of the instant matter. There, the husband requested alimony be eliminated or decreased and this court stated, “Suffice it to say that in this instance where the husband’s present gross income is in excess of $20,000 per year; the amount of alimony is approximately $200 per month; and the agreement of the parties incorporated in the decree has been in effect for approximately two years, we find no abuse by the trial court in refusing to modify.” Morrow v. Morrow, supra, at 924.

Here, we find insufficient changes in the circumstances of the parties to presently justify the termination of the former wife’s periodic alimony. The trial court did not abuse its discretion in that regard; thus, we must affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Doiley SUIT v. HUDSON METALS, INC.
    Civ. 3038.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    Rehearing Denied April 7, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-595.
    Miles T. Powell, Decatur, for appellant.
    Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Doiley Suit was employed by Hudson Metals, Inc., in April 1974 as a “core maker,” a job which required some heavy lifting and “rolling” the core machine. Following a work-related injury in 1978, the employee’s duties were lightened and he was instructed by his superiors not to lift heavy objects unaided. Suit was also given some supervisory power in the core department. On July 23, 1980, Suit was injured on the job while unloading a “skid.” He reported his injury to his supervisor, and the company office manager made him an appointment with Dr. Hunter Daniel, to whom the company generally sent injured workers. Suit was treated by Dr. Daniel and, on July 31, returned to work. He was paid workmen’s compensation for July 28-30, 1980.

On August 11, 1980, shortly before quitting time (2:30 P.M.), the employee again injured his back, this time while attempting to lift a heavy cast iron core box onto a core machine without assistance. He told a co-employee that he hurt his back, but did not report the injury to his supervisor. Instead, he simply went home. From this point, the testimony is sharply disputed. Suit testified that he talked to a supervisor (not his, however) on the Citizen’s Band radio the following day and told him about the back injury at work and that he would not be at work for that reason. He also said he asked the man to tell his supervisor. A co-employee testified that he heard the C.B. conversation. The supervisor, however, said that he did not remember such a conversation and that he would remember it if it took place.

Additionally, Suit’s wife testified that she called the Hudson Metals office on August 12 from a relative’s phone to report that her husband would be absent from work because of the back injury. The office manager denied that she received such a call. Appellant’s supervisor and the company president both denied having any knowledge of the August 11 back injury. There was evidence that a Dr. Sparks from Decatur called the Hudson Metals office on September 8, 1980, said he was treating Suit for a back injury and inquired whether workmen’s compensation would apply. He was told that it would not.

The employee was earning $220 per week at the time of the injury in dispute. He is thirty-nine years old, married and has seven children, five of whom reside with him. At the time of trial, he weighed 295 pounds and was only five feet seven inches tall. Suit is only semi-literate, having completed but six grades of school, and has only worked at jobs requiring manual labor. He has no special skills.

The trial court found that Suit had five percent permanent partial disability to his body as a whole. Compensation was denied, however, because Suit failed to properly notify his employer of his injury pursuant to § 25-5-78, Code (1975). The trial court also determined that there was no clear evidence presented on the loss of ability to earn which is the basis of a compensation award. From the judgment of the trial court, the employee appeals.

The issues on appeal involve notice and the loss of the ability to earn.

Notice is governed by § 25-5-78 which reads in pertinent part:

Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article and article 2 of this chapter.. . .

In this state, it has been the rule that actual notice is equivalent to statutory notice. See, Price Ceiling, Inc., v. Ray, 394 So.2d 58 (Ala.Civ.App.1981). The trial court in this ease, however, rejected the evidence in favor of actual notice, finding that there was not sufficient notice to comply with the statute and warrant workmen’s compensation benefits.

The proper mode of review in a workmen’s compensation case is by writ of certiorari. Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.), cert. den., 387 So.2d 206 (Ala.1980). A review of the weight or preponderance of the evidence or whether the finding of fact by the trial court was correct is not properly before this court. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1967). We may only inquire as to whether there was any legal evidence to support the trial court’s finding. Bolden v. M. Lowenstein & Sons, Inc., 392 So.2d 1207 (Ala.Civ.App.1981). Findings of the trial court on conflicting testimony are conclusive. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976), cert. denied, 342 So.2d 924 (Ala.1977).

The trial court resolved the heavily disputed testimony regarding notice against the employee. After that resolution, the trial court properly applied the law to those facts. We find no error as there was legal evidence to support the court below.

We pretermit the issue raised as to evidence concerning the loss of ability to earn since the trial court properly found a lack of statutory notice.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Mary Catherine CLARKE v. Forrest Gray CLARKE.
    Civ. 3108.
    Court of Civil Appeals of Alabama.
    April 28, 1982.

      William H. Harris of Harris & Molloy, Mobile, for appellant.
    Lee B. Williams, Grove Hill, for appellee.
   , EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The wife’s complaint, among other relief, sought a divorce, periodic alimony and “a fair and equitable property settlement of the property acquired” by the parties during their marriage. As to the present issues, the final judgment divorced the parties for incompatibility of temperament and ordered the husband to pay to the wife $52 each week as alimony. Their home and the two rural acres upon which it is situated was ordered sold, with the net proceeds realized therefrom to be divided equally among the parties after first paying the mortgage indebtedness against it and the expenses of the sale. The wife appealed and raises three issues for our decision.

She first says that the amount of alimony which was awarded to her was inadequate.

The contested trial was conducted before the trial court. In viewing the evidence there produced in accordance with the attendant presumption of correctness which attaches to that court’s ruling, we find the following facts as being pertinent to this issue: The parties were married in 1960 and separated in April 1981. They had one child who has reached his majority.

The husband has high blood pressure.

The wife’s physician testified that she was then physically able to work but that she suffers from a nervous disorder which he characterized as “anxiety-depressive reaction,” which in his judgment resulted from her marital problems. While he could give no opinion as to her probable future emotional condition, the doctor stated that psychotherapy, drug therapy and the end of their marital discord through a divorce should improve her condition. While the physician had not treated the wife for the preceding eight months, he stated that she could presently work in employment which involved neither production work nor mental stress.

When the parties married the wife was a licensed practical nurse, but she did not maintain that license after their son was born. She next did production work for nine years. In 1979 and 1980 she performed some home nursing of ill patients on a part-time basis. In August 1981, the trial date, the wife was unemployed and received food stamps of $70 per month.

The husband is a maintenance man—mechanic. His take-home pay, including a credit union deduction, varies from $274 to $294 per week. The divorce judgment ordered him to pay notes and open accounts totaling around $5,200. His bank account at trial time was small.

The amount awarded as periodic alimony rested within the sound discretion of the trial court, and we are not allowed to disturb that decision unless there was a plain and palpable abuse of judicial discretion. Kennedy v. Kennedy, 410 So.2d 100 (Ala.Civ.App.1982); Mack v. Mack, 402 So.2d 1038 (Ala.Civ.App.1981). It is not distinctly obvious that the alimony awarded to the wife was inadequate. We have carefully considered all of the pertinent trial evidence in view of the presumption that the trial court was correct in its alimony award, and we are not persuaded that the trial court abused its discretion in that respect. To here raise the amount of the weekly award would be an unauthorized substitution of our judgment for that of the trial court.

The wife next contends that the circuit court abused its discretion in ordering the sale of their jointly owned home without there being evidence of the necessity of a sale and, to support that contention, she cites Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. denied (appellee’s) 287 Ala. 740, 249 So.2d 860, cert. denied (appellant’s) 287 Ala. 740, 249 So.2d 861 (1971).

In 1967 the wife’s mother conveyed the two acres of land to the parties jointly. They constructed a house on that lot that same year. The evidence as to its present market value varied from $28,000 to $40,-000. The payoff of the house mortgage was $9,300 in August 1981. This two acre tract was ordered sold by the court.

The issue as raised by the wife was decided contrary to her argument in Gwin v. Gwin, 55 Ala.App. 597, 318 So.2d 296 (1975), where it was stated:

Appellant also says that there was no proof that an equitable partition could not have been made between the joint owners and cites our case of Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. den. (appellee’s) 287 Ala. 740, 249 So.2d 860, cert. den. (appellant’s) 287 Ala. 740, 249 So.2d 861. In the Prosch case, the property in question consisted of 365 acres of farmland and we did hold that there must be proof that partition in kind could not be made prior to the execution of a property sale. We think it rather obvious that when the evidence shows that the property ordered to be sold for division is a dwelling house on a city lot, proof exists that an equitable partition could not be made.

It is not unreasonable to hold that where the evidence shows that the property ordered to be sold for a division is a house and two acre tract in a rural area, that evidence alone constitutes the requisite proof that an equitable partition could not be made.

Additionally, the Prosch case itself clearly states that where a house and lot is involved in a divorce action and the parties have sought the assistance of the trial court in effecting a property settlement, the trial court may order its sale in adjusting the equities of the parties since that kind and nature of property clearly could not be divided.

Here, the sale, as ordered, was one reasonable means which could be utilized in order to effect a just property settlement as requested by the wife in her complaint. Again, we find no abuse of the trial court’s judicial discretion.

Lastly, the wife complains that the trial court should have partitioned eighteen acres of land but did not mention that property in the final judgment.

The wife’s mother, in 1975, conveyed a remainder interest in the eighteen acres jointly to the parties. The husband, with the wife’s assistance, subsequently cleared, fenced and placed it in permanent pasture. In the deed the grantor reserved a life estate in that property for herself and for the grantor’s husband. That pasture land was estimated by the husband to be worth between $700 and $800 per acre.

Each party still retains the same right, title, claim or interest which they received through the 1975 deed. “When the trial judge did not alter ownership, that, in and of itself, disposed of the issue. In a divorce action, there is no requirement that the joint ownership of property by the parties be abolished and that title be vested in only one spouse.” Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980). Since their joint remainder interest was left undisturbed and since two others own life estates in the eighteen acres, we cannot say that no present division thereof was not an equitable and just solution at this time.

We find no error and affirm. The wife’s request for the award of an attorney’s fee upon this appeal is denied.

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

AFFIRMED.

All the Judges concur.


text:
    Albert H. ABERCROMBIE v. HUNTER’S R & O CAFE, INC.
    Civ. 3037.
    Court of Civil Appeals of Alabama.
    May 12, 1982.
    William W. Smith of Hogan, Smith & Alspaugh, Birmingham, for appellant.

      Max Hudson of London, Yancey, Clark & Allen, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Albert Abercrombie was employed by Hunter’s R & O Cafe, Inc. and also served as president of the corporation. On January 20, 1978 Abercrombie was working at the cash register when the events which led to this appeal occurred.

The evidence indicated that January 20 was a very cold day and that ice and snow had accumulated on the street and sidewalk in front of the cafe. One of the cafe’s regular customers, while paying his bill, told Abercrombie that he might need some help backing his car away from the curb. Abercrombie told the customer that he would watch the customer through the window.

The customer proceeded to his car which was parked in an angled parking space right in front of the cafe. The customer could not get enough traction on the ice to back his car out on the street. Abercrom-bie, upon seeing the customer’s inability to back up, left the cash register and went out onto the sidewalk to help the customer.

Upon reaching the sidewalk, Abercrombie took hold of the parking meter in front of the customer’s car with one hand and began pushing the car with his other hand. When the car began moving backwards, Aber-crombie slipped and fell. As a result of this fall, Abercrombie broke his leg near the hip. He spent almost a year in the hospital and due to complications has a permanent partial disability.

On December 12, 1978 Abercrombie filed a petition for workmen’s compensation. The case was tried on June 22, 1981. On October 15, 1981 the trial court entered its judgment. The trial court found that this accident did not arise out of and in the course of Abercrombie’s employment. As a result Abercrombie has filed a timely appeal to this court.

Abercrombie has raised two issues on appeal. The first issue is whether the trial court’s decree is sufficient to support the judgment. The second issue is whether the trial court correctly found that this accident did not arise out of and in the course of employment.

Abercrombie argues that in this case the trial court’s judgment did not contain a sufficient statement of the law and facts as required by § 25-5-58, Code 1975. We have stated on several occasions that the trial court has a duty to make sufficiently detailed findings of fact so that the appellate court can determine whether the facts support the judgment. However, we have also stated that substantial compliance with this requirement is sufficient. Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.), cert. denied, 387 So.2d 206 (Ala.1980). In the present case we find that the trial court substantially complied with § 25-5-88 and, hence, no reversible error.

As his second issue Abercrombie contends that the trial court erred in finding as a fact that his accident did not arise out of and in the course of his employment. We also disagree with this contention.

At the outset we note that our scope of review in workmen’s compensation cases is limited to questions of law and an examination of the evidence to determine whether there is any legal evidence to support the trial court’s findings. Weatherly v. Republic Steel Corp., 391 So.2d 662 (Ala.Civ.App.1980). If there is any legal evidence, or reasonable inferences to be gleaned therefrom, to support the trial court’s findings of fact, its judgment must be upheld. Thomas v. Gulf States Paper Corp., 276 Ala. 660, 166 So.2d 104 (1964).

Abercrombie argues that in this case his actions in aiding a regular customer of the cafe were in the furtherance of his employer’s business, i.e. promoting good customer relations. As a result he argues that his actions in aiding the customer arose out of and in the course of his employer’s business. The cafe, on the other hand, argues Aber-crombie voluntarily undertook to assist the customer and that such act was beyond the scope of his employment. The trial court found as a fact that Abercrombie voluntarily assisted the customer.

In Ex parte Terry, 211 Ala. 418, 100 So. 768 (1924), it was stated that an injury may arise out of employment even though the employer’s action was not strictly within the line of duty, and the injury was not an anticipated risk of service if employee’s action reasonably related to the service he was employed to render and was done in good faith in furtherance of employer’s business. Also, where there is a benefit accruing to the employer, compensation may be awarded. Lauderdale County Cooperative, Inc. v. Shook, 376 So.2d 199 (Ala.Civ.App.), cert. denied, 376 So.2d 202 (Ala.1979).

Other jurisdictions also allow recovery in situations where some benefit is conferred on the employer by the employee’s acts. See Gagne v. Oreck, 266 Minn. 1, 122 N.W.2d 589 (1963). See Lewis v. Kentucky Central Life Insurance Co., 20 N.C.App. 247, 201 S.E.2d 228 (1973).

In the case at bar, however, the trial court found as a fact that Abercrombie’s act of assistance to his customer was a voluntary one and thus outside the scope of his employment. There is evidence or inferences therefrom upon which the court could reasonably conclude that Abercrombie was acting merely as a Good Samaritan on the occasion in question rather than acting in the line and scope of his authority.

The evidence shows that a customer, upon leaving the cafe, remarked that he might need some help in backing his vehicle out into the street. Abercrombie observed the customer’s car’s back wheels spinning and the car not moving from its parking space. Without further request from the customer, Abercrombie and two other customers went outside and pushed the vehicle into the street. Abercrombie was injured while pushing the vehicle.

The trial court could reasonably conclude from this evidence that Abercrombie was acting voluntarily as a good citizen rather than attempting to generate goodwill for the cafe. Consequently, its finding that Abercrombie was acting voluntarily and outside the scope of his employment must be upheld.

AFFIRMED.

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


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    Norman K. KELLEY v. Judy L. KELLEY.
    Civ. 3076.
    Court of Civil Appeals of Alabama.
    May 12, 1982.

      Claude D. Boone of McDermott, Deas & Boone, Mobile, for appellant.
    Bob Sherling, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

By a postdivorce motion, the plaintiff-mother sought an increase in child support from the defendant-father. The trial court granted that relief and the defendant appeals.

The 1972 divorce judgment apparently ordered the defendant to pay $35 per week for the support of the two children of the parties, a daughter who was then four years of age and a seven month old son. In November, 1979, the parties filed a joint motion to reduce the child support to $17.50 per week since the daughter was then living with the defendant. The court rendered a judgment consistent with their joint motion.

The plaintiff’s present motion was originally filed in May, 1981. As last amended, it sought, among other relief, the increase in child support. She averred, in pertinent part, that the children were then thirteen and nine years of age, that the circumstances had changed due to their cost of living and the defendant’s income both having materially increased. After a contested ore tenus trial, the trial court’s judgment of November, 1981, ordered the defendant to pay $70 per week as child support.

The testimony of the plaintiff was that the reason for the November, 1979, reduction in child support to $17.50 per week was because she and her then husband were having domestic troubles and were subsequently divorced. Their problems occasioned the daughter’s residing with the defendant from August, 1979, until June, 1980, when he voluntarily agreed to, and did, resume paying $35 per week as child support. Her evidence was that the two children could not be supported for $35 per week because of a ten year change of circumstances with a consequent increase in the cost of living. The plaintiff’s take home pay as a secretary was approximately $220 per week.

The defendant was questioned as to his hourly rate of pay as of the approximate time of the divorce. His attorney objected to the question on the ground that the date of the last modification as to child support was in November, 1979, and that the court could not go behind that order. The objection was overruled. The defendant then answered that his earnings were between five and six dollars an hour when the divorce judgment was rendered and that he is presently being paid eleven dollars per hour. He testified that “I’ve just had a pay raise in the last month or two to get it up to this. Before then it was substantially less.” His 1981 gross earnings to the trial date were estimated to be $23,000. Without considering overtime, his straight time weekly take home pay was from $200 to $220.

The defendant’s first contention is that the trial court erred in failing to restrict the evidence to those changes in circumstances which had occurred only since the November, 1979, judgment, citing Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), affirmed, Ex parte Boley, 392 So.2d 840 (Ala.1981). In that case this court stated as follows:

[T]he period within which the changed circumstances must have occurred extends back to the decree awarding child support or to the last decree modifying child support. Otherwise, a situation could occur, as did occur in the instant case, where the request for modification was denied because there were insufficient changed circumstances during the short period since the last modification petition was denied, whereas if the court could have considered those circumstances that had occurred since the child support award was made, it is likely that a different result would have been reached. The welfare of the children cannot be properly served without consideration of the totality of circumstances since they last received an order for support. The primary consideration is the need of the children. If the needs of the children and the ability of the father to respond to those needs have materially changed since the last award fixing the amount of support, the trial court should be able to consider those changes in fashioning its decree.

392 So.2d at 840. In affirming this court’s opinion, the supreme court stated:

In cases involving child support, the Court is not bound by any strict rules of pleading or procedure, Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212 (1948), and the paramount consideration is the welfare of the children. Meadows v. Hulsey, 246 Ala. 261, 20 So.2d 526 (1945). While the party seeking to modify child support payments must show that there has been a material change in circumstances since the last decree awarding child support, Frazier v. Frazier, 342 So.2d 1320 (Ala. Civ.App.1977); Lee v. Lee, 337 So.2d 372 (Ala.Civ.App.1976); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975), a petition to modify untimely filed in the interim should not, as a matter of law, foreclose a trial judge from considering all factors and changes occurring since the amount of child support was last fixed. To hold otherwise would deprive the children of divorced fathers, in some instances, of additional child support that the father is able to pay and of which the children have need.

392 So.2d at 842.

In November, 1979, the defendant was under a court order to provide child support payments of $35 per week for two children, but one of the children had recently commenced living with him and he was presumably providing for that child’s total support. As a result, the parties agreed to reduce the amount of support to $17.50 each week. For two children the support payments had been $35 per week and for one child it was cut in half. No change in the legal custody of the daughter was made in 1979. When the daughter returned to reside with the plaintiff in June, 1980, the defendant agreed to pay, and did resume his payments of, $35 per week with no court order to that effect. From a practical standpoint, no actual change in the rate of support per child was occasioned by the November, 1979, judgment, which rate constantly remained the same, $17.50 per week per child in the plaintiff’s custody. The amount of child support per child under the plaintiff’s care, custody and control remained constant and unchanged since the 1972 divorce judgment.

To hold that, under those conditions, any evidence of any change in circumstances must be limited to the preceding two year period, from the November, 1979, judgment to the November, 1981, trial date, would violate the meaning and the spirit of the holdings in the Boley case, supra. It is inferred or implied in that case that if no material alterations in a support judgment have subsequently been rendered by the court, any change in circumstances dating from the rendition of that support judgment may be considered. Any judgment which is rendered after a support order and which later judgment does not materially affect or change that support order would not bar change in circumstance evidence going back to the date of such support order. Here, the 1979 judgment made no material change in the 1972 judgment in actual support which the defendant was required to pay per child. The trial court did not err in admitting into evidence the defendant’s testimony of his earnings as of the time when the divorce was rendered.

Additionally, “[w]hen a trial is without a jury, an error in admission of evidence does not authorize a reversal, if the judgment is sustained by other legal evidence. (Citations omitted.)” Newman Bros., Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977), cert. denied, 354 So.2d 1142 (Ala.1978). Thus, even if the trial court erred in admitting the disputed evidence, a reversal would not be in order for there was other adequate evidence of a material change in circumstances which occurred since the 1979 judgment so as to justify the present award of child support. Instead of the one child in 1979, the defendant in 1981 had the physical and legal custody of both children. The youngsters had aged two years in that interval with corresponding increased needs and with an inflated economy continuing during the period. The defendant stated that he had received a substantial raise shortly before the trial. The trial court, without an abuse of discretion, could have rendered its 1981 judgment solely upon that evidence. We, therefore, are required to affirm as to that issue as raised by the defendant.

The plaintiff did not make in any manner a request for the allowance of an attorney’s fee and the record is totally silent in that respect. The trial court ordered the defendant to pay $350 to the plaintiff’s attorney as a reasonable attorney’s fee. The defendant raises the allowance of such fee as an issue upon his appeal. Because of the absence of any request for an attorney’s fee and since that issue was not tried by either express or implied consent of the parties, the learned trial court erred in making an award of an attorney’s fee and this case must be reversed and remanded on that ground. Lacy v. Lacy, 403 So.2d 251 (Ala.Civ.App.1981).

The plaintiff is hereby allowed, and the defendant shall pay to her, an attorney’s fee of $350 on this appeal.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the Judges concur.


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    Donna Milner WOLF v. Michael SMITH and Ann Smith.
    Civ. 3117.
    Court of Civil Appeals of Alabama.
    May 12, 1982.

      Charles W. Allen, Birmingham, for appellant.
    Sam R. Shannon, Jr., and Joseph L. Boo-haker, Birmingham, for appellees.
   HOLMES, Judge.

This is an adoption case.

Appellees, Michael and Ann Smith, on April 21,1981, filed with the Probate Court of Shelby County a petition for the adoption of James Zachary Milner. Along with the petition for adoption appellees filed a consent to adopt signed by Donna R. Milner, the child’s natural mother and appellant in this action.

Subsequent to the above proceedings the appellant changed her mind regarding the desirability of allowing the adoption of her child. On July 3, 1981, the appellant filed with the Probate Court of Shelby County a petition to set aside the consent to adoption and a petition to dismiss the petition for adoption.

A hearing before the probate judge was held on August 17 and 18. On December 18, 1981, the probate judge entered the following order:

1. That the petition to dismiss the petition to set aside the adoption and separately and severally the petition to set aside the consent to adoption are each separately and severally denied.

The appellant appeals from the December 18 order denying the aforementioned motions. The appellees, the persons attempting to adopt, have filed with this court a motion to dismiss the appeal.

The motion to dismiss the appeal is bottomed upon the premise that the probate court’s December 18 order is not such a final order as would support an appeal. We agree and dismiss the appeal.

Unless otherwise provided by law, appeals lie only from final orders or judgments. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). See Davis v. Turner, 55 Ala.App. 366, 315 So.2d 602 (1975); Ala. Code § 12-22-20 (1975). Section 26-10-4 •sets out the requirements for the issuance of a final order of adoption. It provides, in pertinent part, the following:

[I]f the court is satisfied that the natural parents have just cause for desiring to be relieved of the care, support and guardianship of said child, or have abandoned the child, or are morally unfit to retain its custody, that the petitioning foster parent or parents is or are financially able and morally fit to have the care, supervision and training of such child, that such child is suitable for adoption in a private family home and that such change of name and guardianship is for the best interest of such child, it shall make an interlocutory order setting forth the facts and declaring that from the date of the final order of adoption in such case, if such final order be afterwards entered as provided in this section, such child, to all legal intents and purposes, will be the child of the petitioner or petitioners and that its name may be thereby changed.... [S]uch final order of adoption shall not be granted until the child shall have lived for six months in the home of the petitioner subsequent to the issuance of the interlocutory order. . . . (Emphasis supplied.)

Section 26-10-4 clearly requires that an interlocutory order be entered before there can be a final order of adoption. In this case, as in Davis v. Turner, supra, it is apparent that the requirements of section 26-10-4 were not met. The order in this case that is appealed from does not even rise to the level of an interlocutory order as contemplated by section 26-10-4. The order of December 18, 1981 is nothing more than it purports to be — an order denying the appellant’s petitions to set aside her consent and to dismiss the petition for adoption.

This court in Davis v. Turner, supra, stated that an interlocutory order of adoption is not appealable to this court. Since even an interlocutory order pursuant to section 26-10-4 is not appealable, clearly the instant order is not appealable.

In closing we note that appellant’s reliance upon Ex parte Sullivan, 407 So.2d 559 (Ala.1981), is misplaced. Admittedly the facts and issues before the court in Sullivan are similar to the underlying facts and issues of the present case. In Sullivan, however, the appeal was from a final order of adoption. As stated above, there is no final order in the present case.

In view of the above this court has no alternative but to grant appellees’ motion to dismiss the appeal.

APPEAL DISMISSED.

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


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    Donald Ray CHAMBERS v. DIRECTOR OF the DEPARTMENT OF PUBLIC SAFETY OF ALABAMA.
    Civ. 3148.
    Court of Civil Appeals of Alabama.
    May 12, 1982.

      Gregory D. Cotton of Hanes & Hanes, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

This is a driver’s license suspension case.

On July 21, 1981 the Director of the Department of Public Safety sent appellant, Donald Ray Chambers, a written notice informing him that his driver’s license had been suspended for a period of sixty days, effective on August 5, 1981. The reason given on the notice of suspension was that appellant was an “Habitual Violator.” Included on the notice form was a statement informing appellant of his right to a presus-pension hearing, made available upon written request.

The presuspension administrative hearing was held on August 14,1981. At the end of the proceeding the hearing officer recommended that the sixty day suspension be put into effect for the full time. That recommendation was approved by the chief hearing officer on August 24, 1981, and at that time a notice and order of suspension was issued.

Appellant appealed the decision of the Director to the Circuit Court of Shelby County pursuant to § 32-5A-195(q), Code 1975. The circuit court’s review of the case was apparently based upon a notice of appeal, an answer with exhibits attached, and briefs. The circuit court entered an order on December 8,1981. The court stated that at the trial of the matter no evidence was presented, but that “the action taken by the Director was .. . according to law.”

Appellant filed a motion for new trial on December 11, 1981. The motion was denied. Appellant brings this appeal from that order.

Appellant makes three arguments on appeal: (1). that there was no evidence presented to the trial court which would authorize the suspension of his driver’s license; (2) that the suspension of his driver’s license was based upon uncertified copies of traffic convictions obtained by the Director from other states; and (3) that a suspension of his driver’s license prior to an administrative hearing violated his due process rights.

Appellant’s contention is that the trial court’s decision is not based on any evidence. We agree. The Director’s answer contains as exhibits copies of notices of conviction of traffic offenses in other states. However, no offer of these exhibits into evidence was made at the hearing. Moreover, the trial court’s judgment provides that “no evidence was presented.”

Section 32-5A-195(q), Code 1975, provides in pertinent part:

Any person denied a license or whose license has been cancelled, suspended or revoked by the director of public safety . . . shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court, circuit court or court of like jurisdiction in the county wherein such person resides, . . . and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 30 days’ written notice to the director of public safety, and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this section. [Emphasis ours.]

The proceeding authorized by § 32-5A-195(q) is a de novo hearing, i.e. the trial court is empowered to have a hearing, to take testimony, to receive evidence, and to make a finding of its own. Ex parte State, ex rel. Sullivan, 262 Ala. 188, 78 So.2d 322 (1955). In the case at bar the trial court did not enter an independent order of suspension but merely affirmed the order of the Director. Further, it did so without any proof that petitioner’s driver’s license should be suspended. In this it erred. For this error the judgment is reversed.

Appellant next says that the trial court erred in basing its action on uncertified copies of traffic convictions from other states. In view of our disposition of the first issue, we pretermit a consideration of this argument.

Appellant’s final contention is that § 32-5A-195, Code 1975, authorizing an order of suspension by the Director prior to a hearing on the matter, is violative of his constitutional right to due process.

Section 32-5A-195(7) provides:

Upon suspending the license of any person as hereinbefore in this section authorized, the director of public safety shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing as early as practicable, not to exceed 30 days after receipt of such request .... Upon such hearing the director of public safety or his duly authorized agent shall either rescind its order of suspension or, good cause appearing therefor, may continue, modify or extend the suspension of such licensee or revoke such license.

The requirement of due process of law means notice, a hearing according to that notice, and a judgment entered pursuant to such notice and hearing. Cooper v. Watts, 280 Ala. 236, 191 So.2d 519 (1966). In driver’s license suspension eases, a driver is provided with notice that his license is to be suspended as of a certain date. Contained in that notice is a statement informing the driver that he is entitled to a presuspension hearing within thirty days following a written request for such hearing. If the driver requests such a hearing, an order of suspension is not issued until after the hearing takes place and until it has been determined that the driver is not entitled to keep his license.

This procedure was followed in appellant’s case. He was given notice of the suspension order, and was given a hearing after it was requested. The sixty day period of suspension did not commence until after the Director had determined, from a review of the evidence, that suspension was proper. We find that this procedure satisfies the constitutional requirement of due process of law.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

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