author: PER CURIAM. BEATTY, Justice TORBERT, Chief Justice

text:
    Ex parte Harry J. COUGHLIN, Jr. (Re: Harry J. COUGHLIN, Jr. v. STATE of Alabama; Board of Equalization of Jefferson County).
    83-381-M.
    Supreme Court of Alabama.
    June 22, 1984.
    Rehearing Denied Aug. 24, 1984.

      Harry J. Coughlin, Jr., pro se.
    J. Patton Meadows, Asst. Dist. Atty., Bessemer, for respondent.
   PER CURIAM.

This is an ad valorem tax appeal taken pursuant to Code of 1975, §§ 40-3-24 and -25. Harry J. Coughlin, Jr., petitions this Court seeking relief from the dismissal of his appeal. We affirm.

The facts made the basis of this suit are that land owned by petitioner Harry J. Coughlin, Jr., was reappraised by the State of Alabama through the Jefferson County Board of Equalization. As a result of the reappraisal, the property value increased from an old market value of $1,870 to a new market value of $13,320. Coughlin was informed on February 16, 1983, of the board’s decision on the assessment and of the taxes owed, from which he appealed to the Circuit Court of Jefferson County, Bessemer Division. This case turns on whether in filing his notice of appeal on March 15, 1983, the petitioner complied with the requirements of Code of 1975, § 40-3-25. Respondent, Board of Equalization, filed a motion to dismiss the appeal based on Coughlin’s failure to comply, and, following a hearing on the motion, the appeal was dismissed.

Coughlin filed notice of appeal to this Court pursuant to § 40-3-25. The case was transferred to the Court of Civil Appeals. See, Kimberly-Clark Corp. v. Eagerton, 433 So.2d 452 (Ala.1983). On November 16, 1983, 455 So.2d 17, the Court of Civil Appeals affirmed the trial court’s dismissal.

Before we consider the merits, we must first address the jurisdictional question raised by this petition, since there may be some doubt as to whether or not petitioner invoked this Court’s jurisdiction. The following dates are pertinent to this discussion:

November 16, 1983 Court of Civil Appeals affirmed dismissal of appeal and issued opinion.
November 18 Coughlin filed application for rehearing.
December 9 Court of Civil Appeals issued substituted pages for pages two and three of original opinion.
December 14 Application for rehearing denied without opinion.
December 16 Coughlin filed second application for rehearing. No action was taken.
January 3, 1984 Coughlin petitioned this Court for relief.

The Board of Equalization contends that this Court is without jurisdiction and would have us dismiss the writ for Cough-lin’s failure to timely file his petition.

The petitioner argues in support of finding jurisdiction that the changes made by the Court of Civil Appeals, when it issued substituted pages for pages two and three of the original opinion, were substantial changes. Thus, he maintains, there should have been a response by that court to the application for rehearing filed on December 14, and that, therefore, his petition to this Court was timely.

Rule 40, Alabama Rules of Appellate Procedure, reads in pertinent part:

“No second application for rehearing will be considered unless the rehearing reversed or substantially modified the original opinion of the court.”

In applying Rule 40 to the present facts, we conclude that the petitioner was correct. When the Court of Civil Appeals issued substituted pages for pages two and three of its opinion released November 16, the changes were substantial. Although technically these changes were not made in response to his application for rehearing, they were made after petitioner’s application was filed and prior to the overruling of this application without opinion. It appears likely that the needed changes were brought to light by petitioner’s application and, in finding these changes substantial, clearly we have adhered to the spirit of Rule 40.

The Board of Equalization contends that the changes referred to were merely corrections of typographical errors and consisted of the insertion of the word “double” in two places. We cannot agree, because we find that this seemingly minor change does in fact have an impact on the reasoning. The opinion by the Court of Civil Appeals turned on whether or not petitioner had complied with § 40-3-25, which reads in pertinent part:

“All appeals from the rulings of the board of equalization fixing value of property shall be taken within 30 days after the final decision of said board fixing the assessed valuation as provided in this chapter. The taxpayer shall file notice of said appeal with the secretary of the board of equalization and with clerk of the circuit court and shall file bond to be filed with and approved by the clerk of the circuit court, conditioned to pay all costs.... When an appeal is taken, the taxpayer shall pay the taxes due as fixed for assessment for the preceding tax year before the same becomes delinquent; and, upon failure to do so, the court upon motion ex mero motu must dismiss the appeal, unless at the time of taking the appeal the taxpayer has executed a supersedeas bond with sufficient sureties to be approved by the clerk of the circuit court in double the amount of taxes_” (Emphasis added.)

The opinion stated:

“At the time Coughlin filed notice of appeal from the Board’s final decision, he had not paid the taxes due and he did not file a supersedeas bond in double the amount of taxes due. The failure by Coughlin to comply with section 40-3-25, Code 1975, mandated a dismissal of his appeal by the circuit court....”

The original opinion clearly demonstrated petitioner's failure to comply with § 40-3-25, where on page two it stated:

“In support of his notice of appeal, Coughlin tendered to the clerk of the circuit court a cash bond in the amount of $218.98, which was equal to the amount of taxes due.”

Later, on page three, it stated:

“Coughlin attempted to post a cash bond in the amount of taxes due....”

Petitioner would have been in compliance with the statute, however, according to the changes made in the opinion on page two, “which was equal to double the amount of taxes due,” and on page three, “in double the amount of taxes due.” Thus, the changes would be substantial with respect to whether or not petitioner had complied with this part of the statute. In our view, the petitioner’s application for rehearing filed on December 14 should have prompted a response; thus petitioner is properly before this Court.

Having established jurisdiction, we now address the merits. In affirming the judgment of the Court of Civil Appeals, we wish to make it clear that if the only point of contention was whether a cash bond tendered in double the amount of taxes due would suffice to perfect an appeal under § 40-3-25, we would have no question that it would suffice. However, in this case there was a stipulation added to the petitioner’s offer to tender the cash bond. The record shows that testimony presented during the hearing on the motion to dismiss was clearly in dispute as to the events that took place in the circuit court clerk’s office on March 15, 1983.

Petitioner arid Mrs. Betty L. Coughlin, petitioner’s mother, testified at the hearing that, although petitioner first insisted that his cash bond be placed in an interest bearing account with the interest payable to him, he later offered to withdraw this stipulation. They contend that Coughlin offered to tender the cash bond without restrictions and that the clerk refused to accept it under any circumstances.

Testimony by the circuit clerk, assistant circuit clerk, and circuit court bailiff directly contradicted petitioner’s claims, thus creating a factual dispute. They stated that Coughlin insisted that his money be placed in an interest bearing account with interest payable to him, and that the clerk refused to accept the cash bond under those circumstances. They contend that following a discussion Coughlin left the office, with no further attempt to tender the cash bond.

There was further dispute on petitioner’s claim that the clerk insisted on a surety bond from petitioner. Again, petitioner and Mrs. Coughlin stated that the clerk refused the cash bond and insisted on a surety bond. The clerk, assistant clerk, and bailiff testified that petitioner was told that no surety bond was required, that a cash bond would be acceptable, but not with the stipulations set out by petitioner.

In an ore terms proceeding, a trial court has wide discretion, and there is a strong presumption of correctness in its findings. These findings will not be disturbed on appeal unless they are unsupported by the evidence or found to be clearly erroneous and against the great weight of the evidence. Stallworth v. First National Bank of Mobile, 432 So.2d 1222 (Ala.1983); Davis v. Thomaston, 420 So.2d 82 (Ala.1982); Shepherd Realty Co., Inc. v. Winn-Dixie Montgomery, Inc., 418 So.2d 871 (Ala.1982). The record in this case supports the trial court’s findings that petitioner failed to comply with § 40-3-25 in perfecting his appeal. Accordingly, the Court of Civil Appeals was correct when it ruled that Coughlin’s failure to perfect his appeal by either paying the taxes due or filing a supersedeas bond (either by cash or surety bond) ⅛ compliance with § 40-3-25 mandated a dismissal of his appeal.

For the reasons stated, the judgment of the Court of Civil Appeals is due to be, and it is hereby, affirmed.

AFFIRMED.

MADDOX, JONES, ALMON, EMBRY and ADAMS, JJ., concur.

FAULKNER, SHORES and BEATTY, JJ., concur in part and dissent in part.

TORBERT, C.J., dissents.

BEATTY, Justice

(concurring in part; dissenting in part):

I concur in that part of the majority opinion which discusses the merits of the case. I dissent, however, as to that part which deals with jurisdiction.

The respondent forcefully argues, and I agree, that this Court is without jurisdiction to review this petition. The majority lists those dates which are pertinent to this discussion, and it is clear that Coughlin’s petition was filed more than 14 days after the Court of Civil Appeals had overruled an application for rehearing of its decision. Rule 39, Alabama Rules of Appellate Procedure, reads in pertinent part:

“(a) Decisions of the courts of appeals may be reviewed by the supreme court upon petition for writ of certiorari only after the court of appeals has overruled an application for rehearing on the point, issue or decision complained of....
“(b) The petition for certiorari, with an accompanying brief, shall be filed with the clerk of the supreme court pursuant to Rule 25(a), within H days (two weeks) after the decision of the court of appeals on the application for rehearing.”

Rule 2(b) and (c), A.R.A.P., amended in 1981, make it absolutely clear that the timely filing of a petition for certiorari is a jurisdictional matter. These sections read in pertinent part:

“(b) In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, ... the supreme court may not extend the time for filing a petition for certiorari to the courts of appeals as provided in Rule 39(b) ....
“Amended eff. May 18, 1981; July 15, 1981.
“(c) A petition for certiorari to the courts of appeals shall be dismissed if the petition for certiorari was not timely filed to invoke the jurisdiction of the supreme court.
“Amended eff. May 18, 1981.”

In applying these rules to the present case, there is no question that this Court is without jurisdiction to review Mr. Cough-lin’s request.

Petitioner maintains, and the majority agrees, that he is properly before this Court. Coughlin argued that the original opinion of the Court of Civil Appeals was substantially changed by the substituted pages prior to the overruling of his application for rehearing.

We cannot agree that the changes complained of were substantial, and, contrary to the majority’s holding; they in no way affected the results or rationale of the November 16 decision. Further, the changes in no way affected the finality of the December 14, 1983, action by the Court of Civil Appeals overruling petitioner’s application for rehearing. The last sentence of Rule 40, A.R.A.P., is clear, and, since petitioner’s application for rehearing was overruled without opinion on December 14, the action taken by Coughlin on December 16 did nothing to toll the running of the 14-day period. Thus, his appeal was filed too late to invoke the jurisdiction of this Court.

FAULKNER and SHORES, JJ., concur.

TORBERT, Chief Justice

(dissenting).

I agree with Justice Beatty that this Court is without jurisdiction to grant the petition for certiorari in this case. I write specially to point out a procedural problem inherent in the result of the majority opinion.

This case involves two petitions: one for writ of certiorari and the other for writ of mandamus. Coughlin alleged that the Court of Civil Appeals substantially modified its opinion after he had filed an application for rehearing. He filed a second application for rehearing under A.R.A.P. Rule 40. The Court of Civil Appeals took no action on the second application, and Coughlin filed a petition for writ of mandamus to compel the Court of Civil Appeals to rule on the second application. Coughlin has also requested this Court to decide the merits of his case in his separate petition for writ of certiorari.

The majority finds that the original opinion of the Court of Civil Appeals was substantially changed. Having made this determination, the majority should remand the case to the Court of Civil Appeals, ordering that court to consider the pending second application for rehearing. This Court should not consider the merits until the second application is acted upon by that court. One is not entitled under our rules to file a petition for certiorari in this Court while he has a pending application for rehearing in the Court of Civil Appeals. Because the majority holding effectively condones circumvention of the rehearing procedure and improperly places simultaneous jurisdiction over a case in two courts, cf. Foster v. Greer and Sons, Inc., 446 So.2d 605, 610 (Ala.1984), I must dissent.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Mattie WATKINS v. MONTGOMERY DAYS INN and William Heatherly, Commissioner of the Alabama Department of Industrial Relations.
    Civ. 4116.
    Court of Civil Appeals of Alabama.
    May 16, 1984.
    Rehearing Denied June 20, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1109.
    Lawrence F. Gardella of Legal Services Corporation of Alabama, Montgomery, for appellant.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for ap-pellees.
   WRIGHT, Presiding Judge.

This is an appeal from a denial of unemployment compensation benefits to claimant, Mattie Watkins.

Claimant was employed as a cook by Montgomery Days Inn for approximately six months, during which time she usually worked a shift from 10:00 P.M. to 6:00 A.M. five nights a week. On December 15, 1982, Judy Martin, manager of Days Inn, called claimant and asked her to work Saturday and Sunday from 2:00 P.M. until 10:00 P.M. to cover for another cook. On Saturday, December 18, 1982, claimant reported to work. About twenty minutes later another cook, Linda Smith, reported to work to fill the 2:00 P.M. to 10:00 P.M. shift. Since only one cook was needed, Ms. Smith phoned the manager at home and was told to tell claimant to return home until time for the 10:00 P.M. shift to begin. Claimant then telephoned the manager at home. The substance of that conversation was squarely in dispute at trial.

Claimant insists that she did not quit just because she called to complain about the schedule mix-up. The manager denies that claimant was discharged in the course of that conversation. The manager contends that claimant’s use of profanity, statement that she was not coming back and suggestion of what the manager could do with her job, combined with claimant’s failure to show up for the 10:00 P.M. shift that night, led her to believe claimant had quit her job. Claimant testified she did not quit but that she believed herself fired because, after not returning to work on Saturday or Sunday, she called the desk on Monday and someone told her she had been discharged. On Monday, the manager noted on claimant’s file that she had been terminated but denied instructing anyone that claimant had been discharged.

Claimant applied to the Alabama Department of Industrial Relations (DIR) for unemployment compensation benefits. DIR denied her request after a determination that she had voluntarily quit work without good cause related to work pursuant to § 25-4-78(2), Code of Alabama 1975.

Having exhausted DIR’s administrative remedies, claimant filed suit in the Circuit Court of Montgomery County. After a trial de novo the court determined that claimant was ineligible for any benefits. Following the trial court’s denial of claimant’s post trial motions, claimant appealed to this court.

At the outset we note that the ore tenus rule applies in the case at bar. When an unemployment compensation case is heard orally before a trial court sitting without a jury, the court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Steele v. Carter, 390 So.2d 299 (Ala.Civ.App.1980). In the present case conflicting evidence was presented concerning the telephone call and whether claimant quit or was fired from her job. The trial judge was free to choose which evidence he believed and it was his responsibility to resolve the conflicts. Gann and Lewis Roofing Co. v. Sohol, 359 So.2d 815 (Ala.Civ.App.1978); Lowe’s of Dothan, Inc., v. Acme Drywall Co., 341 So.2d 166 (Ala.Civ.App.1976). The trial court determined that claimant was not entitled to unemployment compensation and from our perusal of the record we cannot say that the great weight of the evidence was contrary to such a determination.

Claimant, however argues in brief that the court erred as a matter of law “in implicitly finding that [claimant] could be ‘assumed’ to have quit her job by not showing up for the midnight shift,” because there was no evidence whatsoever that she actually quit her job. Whether claimant should be disqualified for benefits under § 25-4-78(2) is for the trier of fact to determine according to the evidence. See, Payne v. Director of Department of Industrial Relations, 405 So.2d 1322 (Ala.Civ.App.), cert. denied, 405 So.2d 1324 (Ala.1981). Again our review of the record indicates that evidence exists to support the court’s determination that claimant is ineligible for unemployment compensation. There is evidence tending to show that claimant, angered over the schedule mix-up, failed to show up for work as directed and that the manager had not discharged her until after she failed to show up for two consecutive shifts. In short, there is evidence in the record to support the trial court’s decision, therefore we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Patton Michael CAIN v. Frances Louise CAIN.
    Civ. 4182.
    Court of Civil Appeals of Alabama.
    June 20, 1984.
    Rehearing Denied July 25, 1984.
    William A. Short, Jr., Birmingham, for appellant.
    T.K. Selman of Selman, Beaird & Sel-man, Jasper, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from denial of a Rule 60(b) motion, A.R.Civ.P., and adjudication of contempt of court.

Appellant and appellee were married on March 27, 1974, and one child was born to that union. On April 14, 1976, appellee filed an action for divorce, custody of child, child support, alimony, medical coverage, title to real and personal property and payment of all indebtedness. The appellant was served on April 19, 1976, and, failing to answer, a default was entered against him on September 19,1976. On August 20, 1980, a commission was issued to Gaylord Mullins, II, to take testimony in the pending divorce action. The depositions of Frances Louise Cain and Charles Wiggins were taken by Gaylord Mullins, II, which were submitted on a note of testimony, on the same day, to the court which entered a judgment of divorce and granted the appel-lee the relief she prayed. The judgment ordered the appellant to pay $150 every two weeks as child support and $150 every two weeks as alimony; gave to the appellee the mobile home, household goods, Grand Prix automobile, a Glastron boat, the real estate and house owned jointly by the parties, and a $500 attorney’s fee; ordered appellant to pay all outstanding indebtedness owed by the parties, including that on the real property and mobile home; and further ordered him to provide medical expenses for the parties’ minor child.

On June 11, 1983, appellee filed a Rule Nisi, which was served on the appellant on July 13, 1983, for failure to pay child support and alimony. On September 2, 1983, a default was entered for failure to answer the Rule Nisi, which had been set for hearing on September 8, 1983. On September 21, 1983, appellant filed a motion under Rule 60(b) for relief from the default judgment entered on August 20, 1980, and an answer denying indebtedness to the Rule Nisi. An ore tenus hearing was held on November 18, 1983. On December 8, 1983, the trial court entered an order denying the appellant’s Rule 60(b) motion; found him in contempt of court and ordered that he pay appellee the sum of $21,195 for arrearage in child support and alimony, until appellee remarried, plus $750 in attorney’s fees; and further ordered that if said sums were not paid within sixty days, appellant was to be incarcerated until they were paid.

Appellant alleges that the trial court erred in failure to grant his Rule 60(b) motion as Gaylord Mullins, II, was an employee of attorney for appellee and disqualified under Rule 28(c) to take the depositions of Frances Louise Cain and Charles Wiggins; and this being so, there was no evidence before the court, as required under Rule 55(e), on which to base a judgment. Therefore, the judgment is void. It was stipulated by the parties that at the time the commission was issued and the depositions taken, Gaylord Mullins, II, was a clerk-typist in the office of appellee’s attorney.

Rule 28(c), A.R.CÍV.P. states:
“No deposition shall be taken before a person who is a relative or employee or attorney or counsel for any of the parties, or to a relative or employee of such attorney or counsel or is financially interested in the action.”
Rule 32(d)(2) provides that,
“Objection to the taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.”
In regard to divorce, Rule 43(a) states,
“[I]n cases of default or upon written waiver the testimony may be taken upon deposition on oral examination in accordance with prior practice, and at any time and without notice of the time and place of the taking or other proceedings therein.”

Rule 43(a) preserves the old Alabama practice with respect to presentation of evidence to a commission in a default divorce proceeding. See Committee Comments, Rule 43(a).

“Objections duly made to errors or irregularities specified in Rule 32, must be substantial and really affect the value of the deposition as evidence, before they can be held to preclude the use of the deposition, in whole or in part, at time of trial.”

4A J. Moore, Moore’s Federal Practice 3211 (2d ed. 1983). In absence of any citation of testimony that should have been excluded in the deposition there was no abuse of discretion on the part of the trial court, nor prejudicial error. Standard Oil Company v. Landmark Farm Bureau Cooperative, 52 Ohio App.2d 225, 369 N.E.2d 785 (1976). The appellant fails to cite any error other than the appointment of a commissioner who was an employee of appel-lee’s attorney. This was not error under Alabama practice in cases of default divorce action.

Appellant further alleges the trial court erred in failing to grant his motion under Rule 60(b)(6). Relief is not justified under a Rule 60(b)(6) motion, unless a party is able to show exceptional circumstances sufficient to entitle him to relief. Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978). The decision of whether to grant or deny the motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1980).

In reviewing the record, wé cannot say the trial court abused its discretion. The appellant had a right to choose counsel or no counsel, trial or no trial. His full, calculated and deliberate choice was to default. He is the victim of his chosen disregard for the legal process served upon him and his callous temperament toward his family.

Judgment of the trial court is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Annie Turner DAVIS and Willie Davis v. Richard W. COPAS.
    Civ. 4151.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    David A- Sullivan, Birmingham, for ap-Plants,
    Julian P. Hardy and Lonette E. Lamb of Lorant, Harris & Yearout, Birmingham, for appellee.
   HOLMES, Judge.

The plaintiffs, husband and wife, sued the defendant for negligence as a result of an automobile accident. The jury returned a verdict in favor of plaintiff/wife and assessed her damages at $1,000. The jury found no damages were due the plaintiff/husband for loss of his wife’s consortium.

The plaintiffs filed a motion for new trial. This motion was overruled and plaintiffs through able counsel appeal.

The dispositive issue on appeal is whether the trial court erred to reversal in failing to grant plaintiffs’ motion for a new trial based upon the inadequacy of the damages.

The record in pertinent part and the reasonable inference therefrom reveal the following:

Plaintiff, Annie Turner Davis, was involved in an automobile accident on December 15 or 16,1981. The accident took place in Jefferson County at the intersection of Daniel Payne Road and 40th Terrace. Mrs. Davis had stopped, for two to three minutes, waiting for traffic to clear so that she could turn left onto 40th Terrace. The defendant, Richard Wayne Copas, who was traveling in the same direction as Mrs. Davis, first noticed her car when he crested a hill, some fifty yards from the intersection. He testified that he was traveling thirty to thirty-five miles per hour at that time and that he immediately released the gas pedal when he saw her car. Copas testified that because the intersection was clear, he coasted for some distance; when he finally realized that Mrs. Davis was not going to turn, he slammed on his brakes. When Mr. Copas’s car hit hers, Mrs. Davis struck the dashboard with her head and leg and hit her hand on the steering wheel hard enough to break the molding.

During the time it took the police to arrive at the scene, Mrs. Davis complained of a slight headache. Later that evening the headache grew progressively worse; Mrs. Davis also began experiencing pain in her neck and shoulder and was unable to sleep. At daybreak she had her husband take her to a hospital emergency room. She was examined, X-rayed, given two prescriptions, and released. Mrs. Davis then attempted to return to work, but because of the pain she was unable to do so. She then took off the next two weeks.

On December 28, 1981, and February 5, 1982, Mrs. Davis saw Dr. Edward Brom-berg, an orthopedic surgeon, about the pain in her neck and the headaches. (She had previously seen Dr. Bromberg about three months before the accident, complaining of a pain in her leg, which Dr. Bromberg diagnosed as synovitis, an inflammatory condition in the muscles.) Dr. Bromberg ordered in-office treatment and gave her prescriptions. On March 2, 1982, she saw another orthopedic surgeon, Dr. Gaylon Rogers. He diagnosed her problem as acute cervical strain, a soft-tissue injury to the neck without any findings of nerve involvement or disc disease. Dr. Rogers testified that Mrs. Davis’s injury was not permanent and that the pain she experienced could be caused by any number of factors, including synovitis or bursitis. Mrs. Davis was examined by Dr. Rogers’s partner, Dr. Lawrence Lemak, on April 13, 1982.

Mrs. Davis did not see a doctor again until seventeen months later; on August 16, 1983, immediately prior to the trial date originally set in the case, she again saw Dr. Lemak and complained, apparently for the first time, of pains in her lower back as well as in her neck. Dr. Lemak ordered an electrical myogram (EMG) to determine nerve damage; the results were normal. In his deposition, which was introduced at trial, Dr. Lemak stated that he had no way of determining if the problems Mrs. Davis experienced in August of 1983 were the same ones she had complained of seventeen months earlier.

At trial, Mrs. Davis introduced the doctor’s charges for all of the above office visits and the bill from the emergency room visit. She also introduced bills from prescribed medications. She testified as to numerous refills of the prescriptions although she had no receipts and no records other than her memory as to the number of refills or the prices of each.

In support of her property damage claim, Mrs. Davis submitted evidence of ear repairs totaling $624.63. She also offered the testimony of an experienced car appraiser, Cottrell Abner, who set the December 1981 value of Mrs. Davis’s 1980 Buick Riviera at $11,700 and its present repaired value at $11,000. However, it was established that Abner had never seen the car before the accident and that he did not make his appraisal until the day before the trial, or almost two years after the accident.

In support of her lost wages claim, Mrs. Davis testified as to the two weeks lost from work immediately after the accident and as to seventy-three more hours lost up until the time of trial. Although she failed to rebut defendant’s claim that she received sick pay for all the time she lost from work, she did testify that using sick leave would somehow affect her future retirement benefits.

After hearing the above evidence, the jury returned a verdict against the defendant in favor of Mrs. Davis for $1,000. The jury entered a verdict in favor of the defendant on Mr. Davis’s claim for loss of consortium. (Such verdicts are not inconsistent, see Harden v. Alabama Great Southern R.R., 45 Ala.App. 301, 229 So.2d 803 (1969), and although Mr. Davis did join in the instant appeal, the consortium issue has not been raised on appeal.) After the trial court denied Mrs. Davis’s motion for a new trial on the issue of inadequacy of damages, plaintiffs appealed to this court.

Plaintiffs’ argument, as summarized from their brief, is as follows: Uncontra-dicted and undisputed evidence showed that Mrs. Davis’s property damage and personal injuries were more than three times the $1,000 verdict awarded by the jury. Mrs. Davis contends that damages were undisputedly established as follows:

Repairs to Car (624.63)
Before/After Expert testimony (700.00)
TOTAL PROPERTY DAMAGE $1,324.63
PRESCRIPTION DRUGS 211.21
HOSPITAL CHARGES 104.00
PHYSICIAN CHARGES 287.00
LOST WAGES (or loss of sick leave benefits) 1,161,93
LOSS OP CONSORTIUM (at least) 1.00
PAIN AND SUFFERING (at least) 1.00
TOTAL SPECIAL DAMAGES $3,090.77

The law applicable to the inadequacy of damages issue is as follows: Jury verdicts are presumed to be correct. This presumption is especially true in the area of assessment of damages for personal injury, including pain and suffering. Pennington v. Yarbrough, 406 So.2d 943 (Ala.Civ.App.1981). Furthermore, the presumption is strengthened when the presiding judge refuses to set aside the verdict oh a party’s motion for a new trial. See, e.g., Rag E. Loper Lumber Co. v. Windham, 291 Ala. 428, 282 So.2d 256 (1973).

With respect to damages, a reviewing court will not substitute its judgment for that of the trier of fact. Alabama Great Southern R.R. v. Baum, 249 Ala. 442, 31 So.2d 366 (1947). Even in cases of severe and permanent injury, a court will not set aside a verdict merely because, in its opinion, a jury gave too much or too little. Id. A reviewing court will substitute its judgment for that of the jury on the question of damages only if the amount is so grossly inadequate as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury. Id.

The following standard of review for inadequacy of damages was set out in Hardy Insurance Co. v. Baumhauer-Croom Insurance, 339 So.2d 584, 587 (Ala.Civ.App.1976): the test is “whether the record affirmatively reveals either an improper motive of, or improper influence on, the jury. If there is no such showing, then it must appear that the verdict fails to give substantial compensation for substantial injury.”

We need not reach the issues of passion, prejudice, improper motive, or substantial compensation, for it appears that the instant case is similar to Pennington v. Yarbrough, 406 So.2d 943, 945 (Ala.Civ.App.1981), where we stated the following:

“There is a great deal of conflict in the evidence regarding the damages suffered by the plaintiff in this case. For instance, there is conflict as to the amount of damage the plaintiffs car suffered; there is conflict as to the force of the impact; and there is conflict as to the plaintiffs physical condition immediately after the accident. Where there is conflicting evidence, the appellate court should not substitute its judgment for that of the jury. Ray E. Loper Lumber Co. v. Windham, 291 Ala. 428, 282 So.2d 256 (1973).”

Although defendant apparently did not offer his own contradictory evidence, defendant’s able counsel conducted consistently excellent cross-examination of plaintiffs’ witnesses, creating conflicts and exposing possible weaknesses in plaintiffs’ case. For example, on the issue of personal injury damages, defendant elicited the following testimony on cross-examination that would have allowed the jury to infer that not all of Mrs. Davis’s complaints were related to the trauma she sustained in the automobile accident: Mrs. Davis did not see any doctors over the seventeen-month period preceeding the original trial date; she did not complain of low back pains until over a year and one-half after the accident; she had previously suffered from bursitis and synovitis, both of which could cause similar pain; Mrs. Davis’s strain was not a permanent injury, and Mrs. Davis had no records for over one-half of the prescription charges alleged.

On the issue of property damages, it was well within the province of the jury to disregard plaintiffs’ expert’s testimony on the $700 reduced value of the plaintiffs’ car, as the appraiser saw the car not before or immediately after the accident, but instead on the eve of trial, almost two years later.

On the issue of lost wages, the jury could reasonably infer that Mrs. Davis did not in fact lose any wages, as she received sick leave benefits. Furthermore, given the chance, Mrs. Davis was unable to explain exactly how present use of sick leave wages would reduce her retirement benefits. As a verdict for plaintiff for lost retirement benefits could not be based merely on conjecture, there was no error here. See Clark v. Smith, 292 Ala. 617, 299 So.2d 226 (1974).

In light of the above, we cannot say that the trial court erred in failing to set aside the jury’s $1,000 verdict. The judgment below is due to be affirmed.

AFFIRMED.

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


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    Carol Ann DANIEL and Louise Jackson as Administrices Cum Testamento Annexo of the Estate of L.L. Jackson, deceased v. C.C. SCOTT.
    Civ. 4168.
    Court of Civil Appeals of Alabama.
    July 11, 1984.
    Rehearing Denied Aug. 15, 1984.

      Eddie Beason of Fine & Associates, Rus-sellville, for appellants.
    Nelson Vinson of Vinson & Guyton, Hamilton, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This action upon a note and for an accounting was instituted by the two admin-istraces C.T.A. of the estate of Mr. Jackson, deceased.

One aspect of this case concerns the authority of Mr. McDowell, the former attorney for the plaintiffs, to settle this case. It is undisputed that Mr. Vinson, the attorney for the defendant, with the full permission of his client, and Mr. McDowell, both in good faith, agreed that the case be dismissed with prejudice in consideration of the payment of $2,000 to the plaintiffs by the defendant.

Mr. McDowell was not called to testify as a witness in the case. Mr. Vinson swore that Mr. McDowell had informed him that the plaintiffs had given him authority to settle the litigation and, thereafter, the attorneys reached the agreement through “horsetrading.” Mr. Vinson then prepared a written settlement agreement which was signed by the defendant. On January 7, 1983, the defendant personally delivered to Mr. McDowell that agreement along with a check for $2,000 drawn upon the trust account of Mr. Vinson’s law firm which was payable to the plaintiffs. .

Mrs. Daniel, the only one of the plaintiffs to testify, stated that she and Mr. McDowell had never discussed a settlement of the lawsuit in any manner prior to January 7, 1983. On a date which she does not recall but which was after January 7, 1983, Mr. McDowell showed the agreement and check to her, which was the first occasion that she had heard of any proposed settlement. She then told Mr. McDowell that she “didn’t want any kind of deal like that. And I wouldn’t sign it....” She never executed the agreement and testified that she never gave her attorney any authority to settle the case.

Evidently, Mr. Jackson and his wife, who is now one of his administratrices, had executed in 1973 a certain specific indemnity agreement as to a corporate debt due to a bank, which was secured by a real estate mortgage.

Mr. Vinson testified that on or about January 10,1983, which was after the written agreement and check had been delivered to Mr. McDowell, he was telephoned by Mr. McDowell with a request that Mr. Vinson obtain a release by the bank of the plaintiffs from the guaranty agreement. Mr. Vinson informed his client of that request and prepared a release. The release request was considered by Mr. Vinson to be the imposition of another settlement condition upon the defendant, which requirement was met by him. Upon payment of $18,000 to the bank, the release was executed on January 11, 1983, and the mortgage was transferred to the defendant’s son. When the mortgage was later foreclosed, the defendant’s wife became the purchaser of the property. Mr. Vinson stated that he promptly notified Mr. McDowell of the obtaining of the release and mailed, or otherwise delivered, a copy of the release to him. Mrs. Daniel testified that the release was needed by them in order to remove a claim which had been filed against the Jackson estate.

On January 18, 1983, the defendant filed a motion that the settlement agreement be carried out. Thereafter, Mr. McDowell was appointed to a public office and ceased to represent the plaintiffs. The unindorsed and uncashed $2,000 check which had been delivered to Mr. McDowell was mailed to Mr. Vinson on February 25, 1983 by the plaintiffs’ present counsel.

After an ore tenus trial, the circuit court, in effect, ordered that the terms of the settlement be performed. The plaintiffs appealed. Able counsel for both sides have provided this court with helpful briefs.

The appropriate law of Alabama upon the power of an attorney to compromise will be briefly summarized. An attorney cannot settle a client’s action or claim or prejudice a client’s rights without authorization from the client. Davis v. Black, 406 So.2d 408 (Ala.Civ.App.1981); Nero v. Material Sales Company, Inc., 340 So.2d 454 (Ala.Civ.App.1976). The power to compromise a demand does not arise from the power to sue or from an attorney’s general authority which is usually limited in both duty and authority to the vigilant prosecution or defense of the rights of the client. The authority to settle is not incidental, but it is essential that an attorney have express, special authority from his client to do so. Birmingham Electric Company v. Cochran, 242 Ala. 673, 8 So.2d 171 (1942); National Bread Company v. Bird, 226 Ala. 40,145 So. 462 (1933); Senn v. Joseph, 106 Ala. 454, 17 So. 543 (1895); Robinson v. Murphy, 69 Ala. 543 (1881). A person dealing with an attorney must ascertain the extent of the attorney’s authority to compromise the client’s claim. Life and Casualty Insurance Company v. Bell, 235 Ala. 548, 180 So. 573 (1938); Robinson v. Murphy, supra. “An attorney employed to represent a litigant in the prosecution or defense of a suit is a special agent of his client and has no implied or inherent authority or right to compromise and settle it.” (Citations omitted.) Crawford v. Tucker, 258 Ala. 658, 663, 64 So.2d 411, 416 (1953). An agent’s apparent authority must be founded upon the conduct of the principal and not upon the conduct of the agent. Northington v. Dairyland Insurance Company, 445 So.2d 283 (Ala.1984).

After a thorough review of the entire record, we located no evidence that either of the plaintiffs indicated to Mr. Vinson or to the defendant or led them to believe that Mr. McDowell had authority to settle the case. There was evidence as to the words and actions of Mr. McDowell. However, since the apparent authority of an agent must be based upon conduct of the principal and not of the agent and because of the absence of the required evidence in that respect, we hold that there was no evidence that Mr. McDowell had apparent or actual authority to settle.

However, an agreement of compromise which is entered into by an attorney without authority from his client may become binding if it is ratified by the client. National Bread Company v. Bird, supra. Where an attorney had no authority to settle but did so, the client may rescind it or he may ratify the settlement agreement. Ratification may be express, but its presence or absence is more usually implied from the circumstances of the particular case. “Silence and inaction on his [the client’s] part after knowledge is a ratification as a matter of law. He cannot ratify in part; cannot hold the fruits of the transaction and deny to the other the benefits accruing to him.... ” McFry v. Stewart, 219 Ala. 216, 218, 121 So. 517, 518 (1929). Slight evidence of acquiescence on a client’s part may be deemed a ratification of the acts of his attorney in making a compromise. 7A C.J.S. Attorney and Client § 189 at 308. That is an accurate statement of the law in Alabama, for we retain and apply the scintilla of evidence rule. Ratification in this case was a question of fact for the trial court to determine. Waters v. Blackmon, 228 Ala. 462, 153 So. 739 (1934). The trial having been orally heard before the circuit court, its decision is presumed to be correct regarding factual questions and, if it was supported by the evidence and reasonable inferences therefrom, we are not authorized to alter it unless it was palpably wrong. Lovejoy v. Franklin, 426 So.2d 841 (Ala.Civ.App.1983). The trial court could have ascertained that the obtaining of the release was a fulfillment by the defendant of a term of a final agreement of compromise. The bank released the Jackson estate, as well as Mrs. Jackson individually, from a possibly substantial indebtedness. The plaintiffs, thus, have obtained and retained a part of the fruits of the entire settlement and seek to deny to the defendant any of the benefits contained in the compromise. It is also noteworthy that the trial court could have ascertained that the $2,000 check was retained, with the knowledge of the plaintiffs, for up to fifty days before being returned to Mr. Vinson, and that such retention was for such an unreasonable period of time as to constitute ratification by the plaintiffs of the agreement made by the attorneys. Accordingly, the evidence supports the holding of the trial court, which was not palpably wrong.

The judgment of the circuit court is affirmed.

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

AFFIRMED.

All the Judges concur.


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    Hunter Edwards SLATON v. Florence Fail SLATON.
    Civ. 4265.
    Court of Civil Appeals of Alabama.
    July 18, 1984.
    Hunter Edwards Slaton, pro se.
    Robert S. Hill III of Hill & Hill, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a case involving modification of a divorce decree.

. Hunter Edwards Slaton (husband) and Florence Fail Slaton (wife) were divorced by final decree of the Montgomery County Circuit Court on March 19, 1976. The decree incorporated the following agreement of the parties:

“That the Husband will maintain and keep in force, by paying the premium thereon when due, the policy of life insurance on his life issued by Metropolitan Life Insurance Company, Policy No. 607201340PR, in the face amount of $25,-000, and will irrevocably designate as primary beneficiary of said policy, the wife, Florence Fail Slaton, and as alternate beneficiaries, the three children of the parties.”

On October 9, 1976, wife remarried. Sometime thereafter husband discontinued paying insurance premiums. Wife moved for an order requiring him to show cause why he should not be held in contempt. Husband petitioned for modification, asking that the obligation to pay insurance premiums be terminated. After receiving briefs from both parties, the trial court held the provision in question to be non-modifiable, ordering husband to reimburse wife the premium payments due and assessing him with $300 in attorney’s fees.

Husband appeals, asserting that (1) the provision in question amounted to payment of periodic alimony and, therefore, was modifiable, and (2) the trial court erred in awarding wife’s attorney’s fees.

Husband insists in argument that the disputed provision was an agreement and award of periodic alimony as opposed to a property settlement or alimony in gross and thus modifiable. It is to be noted that the judgment of the trial court makes no determination that the provision falls into either category by definition. The order of the court is as follows: “2. The Court further finds that the provision of the agreement between the parties concerning the making of the premium payments on that certain life insurance policy is not modifiable by this court.”

It is the opinion of this court that there is no error in the judgment of the trial court. We consider that the agreement as incorporated in the decree as between the parties thereto constituted a contract enforceable according to its terms. Porter v. Porter, 441 So.2d 921 (Ala.Civ.App.1983). There is nothing in the agreement to indicate that the provision for payment of the premiums on the designated insurance policy was to terminate upon the remarriage of the wife or even at her death. To the contrary, it indicated that in event of her death, the beneficiaries were to be the children. It provided that the designation of those beneficiaries was irrevocable.

It appears that the agreement was for the benefit of the wife and/or children in the event of the death of the husband and father. It clearly was not intended as periodic alimony as there was no provision anywhere in the agreement for periodic alimony—only child support and property division. Periodic alimony is an allowance from the current earnings of a spouse to provide for the current and continuous support of the other. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980).

It is unnecessary to attempt to categorize the agreement as alimony in gross or part of a property division. It is sufficient that the trial court found it to be part of an agreement by the terms of which the husband intended to be contractually bound and which is now unmodifiable. Whether one or the other, alimony in gross or a part of the property settlement, it is not capable of modification. Robinson v. Robinson, 410 So.2d 426 (Ala.Civ.App.1981).

Husband asserts that the award of attorney fees to wife’s attorney by the trial court was error under § 30-2-54, because he was not found in contempt of court. Husband overlooks that he brought a counter-petition for modification of the original decree. The necessity of defending a petition for modification of a divorce decree may invoke the discretionary authority of the court to award an attorney fee. Hansen v. Hansen, 401 So.2d 105 (Ala.Civ.App.1981); Haynes v. Haynes, 360 So.2d 1016 (Ala.Civ.App.1978).

Finding no reversible error, we affirm.

Appellee’s request for attorney fees on appeal is granted in the amount of $300.00.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    STATE of Alabama and Sylvia Tolbert v. Christopher ASKEW.
    Civ. 4267.
    Court of Civil Appeals of Alabama.
    July 18, 1984.
    Mary Lee Stapp and William F. Prender-gast, Asst. Attys. Gen., and Lois Brasfield, Staff Atty., Montgomery, for appellants.
    George K. Elbrecht, Monroeville, for ap-pellee.
   HOLMES, Judge.

This is a paternity case.

The mother filed a paternity complaint in the District Court of Conecuh County naming the appellee, Askew, as the father. Thereafter, Askew, without the assistance of a lawyer, filed a motion in district court requesting that human leucocyte antigen tests (HLA blood tests) be performed on the mother, child, and himself. The district court granted Askew’s motion and the HLA tests were performed. The results of the tests indicated that the probability of paternity was 95.7%. The tests did not exclude Askew as the father. Subsequently, the district court found that Askew was the father. Askew then appealed to the circuit court for a trial de novo.

One week before trial in circuit court, Askew, now represented by counsel, filed a motion in limine to suppress the results of the HLA blood tests. Askew contended at trial, and contends on appeal, that the results of the HLA tests should not be allowed in evidence because section 26-12-5, Ala.Code (1975), permits the admission of blood tests only in cases where the tests definitely exclude the defendant as the father.

The circuit court granted Askew’s motion in limine. The case was tried by a jury and Askew was found not to be the father of the child. The state and the mother now appeal.

The only issue raised on appeal is whether the trial court erred in granting Askew’s motion in limine. Considering the circumstances of this case, we cannot say the trial court erred in granting the motion.

The record before this court does not contain a transcript of the trial. This court cannot put the trial court in error without engaging in speculation as to what occurred at the trial level.

We are guided by the longstanding rule that any errors committed by the trial court must be affirmatively demonstrated by the record filed in this court, and if it does not disclose the facts upon which an alleged error is based, we will not consider that issue. Teng v. Diners Club, Inc., 424 So.2d 629 (Ala.Civ.App.1982). This rule is based upon the fundamental proposition that an appellate court will not presume error and will affirm the judgment appealed from if supported on any valid legal ground. Tucker v. Nichols, 431 So.2d 1263 (Ala.1983).

The situation in this instance is further compounded by the very nature of motions in limine. The trial court has broad discretion in evidentiary matters. See Louisville & N.R.R. v. Phillips, 293 Ala. 713, 310 So.2d 194 (1975).

“In keeping with the vesting of broad discretion in the trial court in this area, it is generally held that the granting of a motion in limine can never be reversible error. The non-moving party may repeat at trial, preferably out of the hearing of the jury, his request for permission to prove the contested matter. This offer of proof is required in order to isolate the error for appeal. It is this refusal at trial to accept the proffered evidence, not the granting of the pretrial motion in limine, that serves as the basis for reversible error. Of course, this ability to bring up the matter a second time would not be available if counsel had requested and the judge had granted a prohibitive-absolute motion in limine.”

Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981).

While it might be said that the trial court’s order in this instance granting the motion in limine is the “prohibitive-absolute” type referred to above, we are not absolutely convinced that it is one of this type.

In any event, the motion and the order granting the motion came at least a week before trial. It could have been that the contested evidence was directly or indirectly conveyed to the jury. It could also have been that there was convincing proof that the putative father did not have access to the mother during the crucial period, and therefore, the refusal to admit the tests was harmless error. It is obvious that any speculation on our part is pointless and prohibited.

Therefore, considering the nature of motions in limine, the broad discretion accorded the trial court, and the incompleteness of the record, we cannot say the trial court erred to reversal. This case is due to be and is affirmed.

AFFIRMED.

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

      . It appears that under the Alabama Uniform Parentage Act, 1984 Ala.Acts 84-244, which would now apply to proceedings of this nature, the HLA blood tests would be admissible.


text:
    Shelby SKELTON v. Cynthia SUDGE.
    Civ. 4223.
    Court of Civil Appeals of Alabama.
    July 25, 1984.
    R. Howell Dean, Montgomery, for appellant.
    Ruben K. King and Ira De Ment, Montgomery, for appellee.
   HOLMES, Judge.

This is a case involving temporary custody of a child.

The paternal aunt of the minor child filed a dependency petition in the Juvenile Court of Montgomery County alleging that the child had been physically abused by his stepfather and that the child had left his home in Nevada without permission to come to Alabama.

A jurisdictional hearing was held by the juvenile court and it determined that it could properly exercise jurisdiction over the matter. Thereafter, a hearing on the merits was held and the trial court awarded temporary custody to the paternal aunt. The mother now appeals and we affirm.

The dispositive issue on appeal is whether the Juvenile Court of Montgomery County had jurisdiction to decide temporary custody.

The child, a sixteen-year-old male, had lived for the past six years or more in Las Vegas, Nevada, with his mother, stepfather, and two younger brothers. In August 1983, the child, Bruce, communicated with his paternal grandparents and his aunt in Alabama that his stepfather had recently beaten him, that he was unhappy in Nevada and wanted to come to Alabama.

Bruce’s aunt purchased am airplane ticket for Bruce in Alabama and her husband flew to Las Vegas and gave the ticket to Bruce. That same day Bruce left Nevada by himself and came to Alabama without his mother or stepfather’s knowledge or permission. A letter was left at Bruce’s home in Las Vegas written by the paternal aunt explaining that Bruce had left for Alabama and that some legal action was forthcoming.

After Bruce arrived in Alabama, his aunt filed a petition pursuant to section 12-15-30, Ala.Code (1975), to have Bruce declared a dependent child and have his custody placed with her.

The mother contends that certain provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 30-3-20 through -44, Ala.Code (1975), prevent or prohibit Alabama courts from assuming jurisdiction of this matter. Under the facts and circumstances of this case, we believe that the only relevant or applicable provision of the UCCJA is section 30-3-28. Because there was no prior order concerning custody, the Parental Kidnapping Prevention Act (PKPA) is not applicable. 28 U.S.C. § 1738A (1984).

Section 30-3-28 provides in pertinent part: “If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.”

This section, however, is discretionary with the trial court. Pitts v. Sutter, 408 So.2d 105 (Ala.Civ.App.1981), cert. denied, 408 So.2d 114 (Ala.1982). Under the facts of the case at bar, we cannot find an abuse of discretion.

There is more than ample evidence from which the trial court could conclude that the child had been regularly and routinely beaten by his stepfather throughout most of his life. His mother either ignored or condoned this condition. The child was almost sixteen years old when he left his home in Nevada; he voluntarily left home, by his own admission, to avoid further beatings.

As indicated above, the PKPA does not apply in this case; we are compelled to note that it appears that even if it did, Alabama courts could still properly assume jurisdiction because of the abuse situation. A court can make a child custody determination under the PKPA when the child is physically present in the state and “it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse.” 28 U.S.C. § 1738A (1984); § 30-3-23(a)(3)(b), Ala.Code (1975).

Additionally, the child was before the court on a petition of dependency, § 12-15-30, Ala.Code (1975), which states that

“(a) The juvenile court shall exercise exclusive original jurisdiction of the following proceedings, which are governed by this chapter:
“(1) Proceedings in which a child is alleged to be delinquent, dependent or in need of supervision;”

A dependent child is defined as, among other things, a child

“c. Whose custody is the subject of controversy; or
“d. Whose home, by reason of neglect, cruelty or depravity on the part of his parent, parents, guardian or other person in whose care he may be, is an unfit and improper place for him; or
“j. Who is physically, mentally or emotionally abused by his parents, guardian or other custodian or who is without proper parental care and control necessary for his well-being because of the faults or habits of his parents, guardian or other custodian or their neglect or refusal, when able to do so, to provide them;”

Ala.Code § 12-15-1(10) (1975). The child in the present case was in the state when the dependency petition was filed with the court. There were no other proceedings pending anywhere. There had never before been a judicial proceeding of any sort involving the custody of this child. Furthermore, the paternal aunt was given only temporary custody of the child.

Considering the child abuse present in this case, the fact that the child apparently came to Alabama “voluntarily,” that he was in the state when a petition for dependency was filed, and the fact that jurisdiction was sought under the dependency statute leads this court to the conclusion that the Juvenile Court of Montgomery County properly assumed jurisdiction. Hence, no error.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Roy DURANT v. Stephen O. HAMRICK, as Administrator of the Estate of Carrie V. Durant, deceased.
    Civ. 4214.
    Court of Civil Appeals of Alabama.
    Aug. 1, 1984.
    Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for appellant.
    George A. Tonsmeire, Mobile, for appel-lee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is a detinue action.

Appellee filed suit in district court to recover certain items of personal property allegedly belonging to the estate of Carrie W. Durant, deceased. Judgment was rendered by the district court in favor of ap-pellee and appellant appealed to the circuit court demanding a trial by jury. Appellee filed a motion for summary judgment, which was denied. A special master was appointed by the court to inspect and inventory items in custody of appellant. The special master made an oral report to the court, which was not reported, and the court considering the report, the affidavits filed in support of the motion for summary judgment, and other evidence, which also is not reported, rendered a judgment, without the intervention of a jury, in favor of the appellee in the sum of $3,000 plus costs which included a $300 fee to the special master.

Appellant alleges on appeal that he was denied the right of a trial by jury as he had demanded under Rule 38(b), Alabama Rules of Civil Procedure. Appellee contends that appellant waived his right to a jury trial by consent to the appointment of a special master and oral submission of the special master’s report to the court and failure to file objections to said report.

Rule 39(a), A.R.Civ.P., provides:
“When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury .... ”

The record is void of any such oral or written stipulation.

The record reveals that the special master was appointed on motion of appellee and both parties agreed on the person to be appointed. The special master’s report should have been received under Rule 53(e)(3).

The failure of the trial court to afford appellant a trial by jury requires this action to be reversed.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as 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.

REVERSED AND REMANDED.

All the Judges concur.


text:
    CITY OF MOBILE, a Municipal Corporation v. Charles LUDGOOD.
    Civ. 4241.
    Court of Civil Appeals of Alabama.
    Aug. 1, 1984.

      John L. Lawler, Mobile, for appellant.
    Mark J. Everest of Collins, Galloway & Smith, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Claimant Ludgood was injured in 1980 while employed as a firefighter by the City of Mobile. He also worked part time for Sears, Roebuck and Company as a deliveryman. It was stipulated that he suffered a back injury in the course of employment with the City of Mobile. The only issue actually tried before the trial judge was the extent of and duration of his injury. After hearing the evidence and observing the claimant, the court found him to have suffered an eighty percent permanent partial loss of ability to earn. City of Mobile appealed, contending that the finding is not supported by the evidence.

FACTS

The claimant was medically treated by a qualified orthopedic surgeon. He underwent a laminectomy of the disc at the fourth and fifth vertebrae. As a result of his injury, claimant was determined to have a twenty percent disability of the body as a whole and unable to continue working as a firefighter or as a deliveryman for Sears. He was determined unable to perform any comparable manual labor. He was found unqualified by training or experience to perform any other work without retraining.

He was awarded retirement as a firefighter.

The trial court found that,
“[Bjased on the opinion of Dr. King, the testimony of the plaintiff, including his education, age, training and experience, and the record as a whole, that the plaintiff has sustained a permanent partial disability to the body as a whole of eighty percent (80%) and ..'. that said permanent partial disability affects the plaintiffs ability to earn and that the plaintiff has sustained an eighty percent (80%) permanent partial loss of his ability to earn.”

We find that determination not unsupported by the evidence. Such is the extent of our power of review. McCarty v. Campbell Plumbing Co., 45 Ala.App. 617, 234 So.2d 895 (1970).

The criteria for determining permanent partial disability for the purpose of compensation are not controlled by a finding of physical disability of the body as a whole. B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 47 Ala.App. 244, 253 So.2d 45, 46 (1971). The trial court is not bound by expert medical testimony as to physical disability in determining loss of ability to earn. In fact, expert medical testimony, though desirable, is not required in order for the court to make a finding of disability. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973). Such determination rests in the best judgment of the court after considering all the evidence. Dees v. Daleville Florist, 408 So.2d 155 (Ala.Civ.App.1981). The weight of that evidence is not before this court on review. Den-Tal-Ez Manufacturing Co. v. Gosa, 388 So.2d 1006 (Ala.Civ.App.1980).

With these authorities before us, we must affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Major WILLIAMS v. Ethel CURRY.
    Civ. 4325.
    Court of Civil Appeals of Alabama.
    Aug. 1, 1984.
    Mayer W. Perloff of Reid, Perloff & Doyle, Mobile, for appellant.
    Stephen M. Gudac, Mobile, for appellee.
   BRADLEY, Judge.

This is an action seeking to set aside a default judgment.

On July 27, 1983 plaintiff, Ethel Curry, filed suit against defendant, Major Williams, seeking damages for injuries sustained as a result of an assault and battery. The sheriff’s return indicated that defendant was served with process on August 9, 1983. After defendant failed to respond to the suit within thirty days, a default judgment was entered on October 24, 1983 in favor of plaintiff and against defendant in the amount of $5,000.

On January 17,1984, within four months from the entry of the default judgment, defendant filed a motion to stay execution and a motion for relief from judgment. Rule 60, Alabama Rules of Civil Procedure. The trial court granted the motion to stay execution and, after a hearing, denied the motion for relief from judgment on Febru•ary 16, 1984.

On March 19, 1984 defendant filed a motion for reconsideration of the February 16, 1984 order. The court granted the motion on March 23, 1984 and set aside the default judgment. Thereafter, plaintiff filed a motion to vacate the order granting the motion to reconsider and setting aside the judgment of default, alleging that the court was without jurisdiction to set aside the judgment.

On April 16, 1984 the court granted the motion to vacate its March 23 order. From this ruling defendant appeals.

It is argued here that the trial court erred in vacating its order setting aside the default judgment. We find no error and affirm.

We acknowledge that default judgments are not favored by the courts, and discretion to grant such judgments should be resolved in favor of the defaulting party when there is doubt as to the propriety of the default judgment. Bush v. James T. Johnson & Co., 411 So.2d 139 (Ala.Civ.App.1982). Trial courts are accorded broad discretion on motions to set aside default judgments; an appellate court will not disturb the trial court’s grant or refusal unless there is an abuse of discretion. Holt v. David G. Steven, Inc., 416 So.2d 1071 (Ala.Civ.App.1982); Bush v. James T. Johnson & Co., supra.

Rule 55(c), A.R.Civ.P., provides that the court may set aside a judgment by default on the motion of a party filed not later than thirty days after the entry of the judgment. When more than thirty days have passed since entry of the judgment by default, a party may still obtain relief from the judgment under rule 60(b).

“By the specific provisions of rule 60(b)(1), (2), and (3), a motion for relief from judgment based upon mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud, must be filed not more than four months after the judgment was entered. A motion filed pursuant to rule 60(b)(6) permits relief from judgment in the discretion of the trial court for ‘any other reason justifying relief,’ and allows a motion to be filed within a reason-time from entry of judgment.
“Relief is justified under rule 60(b)(6) when a party is able to show exceptional circumstances sufficient to entitle him to relief. Rodgers v. Rodgers, 424 So.2d 647 (Ala.Civ.App.1982). For rule 60(b)(6) to be available as a device for extraordinary relief, two prerequisites must be satisfied. First, the motion must be based on some reason other than those stated in rule 60(b)(1) through (5); and, second, the reason urged for relief must be such as to justify relief. Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981).”

Roberts v. Roberts, 446 So.2d 641 (Ala.Civ.App.1984) (emphasis added).

In the case before us defendant has filed two different motions seeking relief. The first motion, filed on January 17, 1984 and within four months from the entry of the default judgment, was a motion for relief from judgment and was timely under rule 60(b). However, after a hearing on the motion it was denied by the court apparently on evidence presented that although defendant was personally served with a copy of the summons and complaint on August 9, 1983 he failed to respond within thirty days. Thus, any doubt about whether to grant the default judgment was resolved against defendant by his failure to plead or otherwise defend himself upon notice of the suit. See Howell v. D.H. Holmes, Ltd., 420 So.2d 26 (Ala.1982).

The second motion, a motion styled as a “motion for reconsideration,” was filed on March 19, 1984 and within thirty days of the February 16, 1984 order.

We have held that a motion to reconsider an order denying a rule 60(b) motion seeking relief from a default judgment is valid and proper. Havel v. Dawkins, 412 So.2d 800 (Ala.Civ.App.1982); Graham v. University Credit Union, 411 So.2d 144 (Ala.Civ.App.1982). We have also held that a motion for reconsideration of a motion for relief under rule 60(b) may be made at any time prior to the running of the time for appeal. Havel v. Dawkins, supra; Graham v. University Credit Union, supra.

Since the motion to reconsider was timely, it was then within the discretion of the trial court to grant or deny the motion. Black v. Hodges, 429 So.2d 1028 (Ala.1983); Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977).

The trial court denied the motion to set aside the default judgment and in doing so exercised its discretion. There is nothing in the record to indicate that the trial court abused its discretion. Its judgment is affirmed.

AFFIRMED.

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


text:
    Roger LAWRENCE v. Glenda Jo LAWRENCE.
    Civ. 4132.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.
    William R. Hovater, Tuscumbia, for appellant.
    Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for appellee.
   BRADLEY, Judge.

Roger Lawrence, hereinafter referred to as husband, filed a complaint for divorce in the Circuit Court of Franklin County, Alabama on June 29, 1983, asking the court to dissolve the bonds of matrimony existing between him and his wife, Glenda Jo Lawrence. The complaint alleged that the parties had been married since January 7, 1965, and that one child, a daughter, sixteen, had been born of this marriage. The complaint further alleged that there existed a complete incompatibility of temperament between the parties, and that they could no longer live together.

The wife filed an answer and crossbill, seeking the custody and control of the minor child of the parties, a property settlement, and child support and alimony.

The court held a temporary hearing on August 24, 1983 and testimony from that hearing was incorporated by agreement into the final hearing on September 21, 1983.

The wife testified that the parties were married in 1966. Further, wife testified that she and the daughter moved out of the house where she and her husband had lived on or around July 26, 1983.

The husband and wife both testified that their marriage relationship had deteriorated. The husband testified that he did not love his wife, and that for the nine months prior to the trial he had lived in one end of the house and she had lived in the other. Wife stated that they had not had physical relations with one another for some eight or nine months.

The court, after hearing the testimony, ordered the parties divorced. The court further ordered a division of the parties’ property. It was ordered that the custody and control of the minor child be awarded to the wife, and the husband was ordered to pay $55 per week as child support. Additionally, the husband was ordered to pay wife $50 per week as alimony. Husband appeals from this order of periodic alimony.

Husband contends that the trial court abused its discretion in awarding periodic alimony and, additionally, that the award of periodic alimony is excessive. We disagree. It is well settled that the trial court will not be reversed concerning an award of periodic alimony unless there is plain and palpable error. Jeffcoat v. Jeffcoat, 423 So.2d 888 (Ala.Civ.App.1982).

Moreover, in determining whether alimony is appropriate, the trial court should consider the earning capacity, age, health, and conduct of the parties, as well as the length of the marriage, the parties’ station in life, and whether there are children to support. Burson v. Burson, 363 So.2d 778 (Ala.Civ.App.1978). The award of periodic alimony is discretionary with the judge granting the divorce. § 30-2-51, Code 1975.

Husband and wife were married for about seventeen and one-half years. Prior to the divorce husband began seeing another woman which, according to him, “was the straw that broke the camel’s back” in regard to his relationship with his wife.

Moreover, there is conflict in the record as to exactly how much husband earned. He testified that his net income was $1,296 per month, whereas there was other evidence that his net monthly take-home pay was $1,494.52. Husband stated that his monthly expenses were $1,219.97, including the $55 per week child support.

The wife said her net monthly pay was $536, and that her monthly expenses necessitated a monthly supplement from her husband of $572.21 in order to support herself and her daughter.

Based on the above recited evidence and the other evidence in the record, we do not find that the trial court abused its discretion either in the award or the amount of periodic alimony. Lott v. Lott, 440 So.2d 1090 (Ala.Civ.App.1983).

Wife is awarded $400 as an attorney’s fee on appeal.

AFFIRMED.

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


text:
    Luther CLEMENT v. Madie E. CLEMENT.
    Civ. 4316.
    Court of Civil Appeals of Alabama.
    Aug. 15, 1984.

      Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    Gary W. Alverson, Tuscumbia, for appel-lee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1980 after thirty-two years of marriage. In the decree of divorce the wife was awarded the sum of $75 per week as alimony. The alimony was ordered to continue until such time as the wife remarried or became self supporting. The decree contained a property division by which the wife received a sixty-acre tract of land and the husband received three other tracts.

The husband kept the alimony current until January 1984. He then filed a petition to modify, alleging a change in circumstances in that he no longer had a job and that the wife was now self-supporting. He requested a termination of the alimony.

After oral hearing, the trial court denied modification. The former husband appeals, charging error in failing to terminate alimony because the former wife is now self-supporting and because there was shown a change of circumstances which required termination.

FACTS

At the time of the divorce, the husband was employed by Ford Motor Company, earning $8.50 an hour and working much overtime. His take-home pay was approximately $286 per week for forty hours. In 1983, Ford closed its plant and the husband was drawing $120 per week unemployment compensation. He was entitled to draw sub-pay from Ford in the amount of $190 per week, for a period of two years. However, he had chosen to defer those payments until he exhausted his unemployment benefits. He is now fifty-three years of age. At age fifty-five he will be eligible for retirement pay from Ford.

In 1983 he sold cattle and received over $3,000. He continues to own property upon which there are mortgages. He remains in a small cattle business. He has remarried. His wife is unemployed.

The former wife has no employment, is in ill health with only one kidney which is not fully functional. She sold her sixty acres, from which she netted $17,000. That sum is invested at interest, with anticipated annual return of some $1,800. The wife lives in government subsidized housing and relies on the alimony for rent, utilities, food, medical bills and insurance, drugs and automobile expense.

MERITS

We recognize that the modification of a decree for alimony remains a matter for the discretion of the trial court, even though there may be shown some change in circumstances since the last decree. Snow v. Snow, 393 So.2d 1020 (Ala.Civ.App.1981). In reviewing the exercise of that discretion as shown by the judgment entered after oral hearing of testimony, we accord it a presumption of correctness. With such a presumption in mind, our task is simply to determine if there was sufficient evidence before the trial court to support its judgment against a charge of clear arbitrariness and abuse of discretion. Prentice v. Prentice, 440 So.2d 1091 (Ala.Civ.App.1983); Dean v. Dean, 424 So.2d 1323 (Ala.Civ.App.1982). We have used that standard in this case and do not find the judgment clearly arbitrary nor unjust. Neither do we find it error for the trial court to determine that the former wife was not self-supporting.

At this time, to pay $75 weekly from a weekly income of $120 is obviously difficult for the husband. However, the former husband has some cattle business income. He is apparently healthy and owns acreage upon which he could grow food. There was some testimony of a possible additional source of income.

On the other hand, the former wife is unwell, with apparently worse to come. She has no other income, except a little interest, to sustain her. It is no reasonable answer to contend that she may use the principal of her savings and thus be self-supporting. She will need that money in event of further deterioration of her health. It would be as reasonable to require the former husband to sell some of his property in order to pay the alimony. In' any event, former husband’s ability to pay sharply increases when he begins to receive his sub-pay and retirement.

We cannot find the trial court in error for requiring the continuation of payment to provide a bare livelihood to a former wife of thirty-two years. That court may see more clearly than we.

We affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jimmy Coleman SIDES, Jr. v. STATE.
    6 Div. 993.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    On Return to Remand July 17, 1984.

      Hiram Dodd, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from an order revoking probation that was granted appellant in Circuit Court Cases 76-01133 and 77-00432. In each case, he had pleaded guilty to an indictment charging him with grand larceny, had been adjudged guilty thereof and had received a sentence, concurrent with the other case, of imprisonment in the penitentiary for two years. Upon his application for probation in each case, the cases were consolidated for a probation hearing, and on May 13, 1977, the sentences were suspended and defendant was placed on probation until May 12, 1979. On a showing of indigency, an attorney was appointed for him on the revocation hearing, and the same attorney represents him by appointment on this appeal.

Appellant urges that as to the probation revocation proceeding there was a failure to meet the minimum standards of due process in accordance with the requirements set forth in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), pursuant to Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). He specifies: (1) that there was no written notice to the probationer of the claimed violation of probation and (2) that there was no disclosure to the probationer of evidence against him, which, if true, would constitute a failure to meet the correspondingly numbered requirements of the opinion in Armstrong v. State, supra. As to the specific contentions, we quote from the transcript of the probation revocation hearings the following colloquy during the first hearing on May 25, 1982:

“MR. DODD [Defendant’s Attorney]: He had an argument with his girl friend and the police were called and they checked NCIC and that was when—
“THE COURT: That was when?
“MR. DODD: May 18, 1982.
“THE COURT: May 18, ’82 he had an argument with his girl friend and the police were called and checked NCIC and found out this outstanding warrant and he was placed back in Jefferson County Jail on 5-13-82.
“You are now charged with violation of your probation, not failure to pay court costs, but for failure of being convicted of robbery in Walker County and escape in Elmore County. Do you understand? “THE DEFENDANT: Yes, sir.
“THE COURT: I might add that I find the defendant could not pay his court costs because he was in fact in the State penitentiary.
“Has he been served with this (indicating) or anything?
“MR. WILSON [State’s Attorney]: (Shook head in the negative)
“THE COURT: That is your copy, sir. We will pass until next Friday for final revocation hearing.”

The transcript of the proceedings shows that the revocation hearing was resumed on May 28, 1982, at 9:20 A.M., which commenced as follows:

“(MURRAY GUTHRIE, SWORN)
“THE COURT: This is the final hearing of Jimmy Coleman Sides which I took the preliminary last week. Tell me about it, about Mr. Sides.
“MR. GUTHRIE [Probation Officer]: Mr. Sides was parolled on 2-8-82 to his apartment address in Walker County. “THE COURT: He was placed on probation here and you have these records? “MR. GUTHRIE: No, sir.
“THE COURT: You have your report, don’t you?
“MR. GUTHRIE: I have the report that I sent you, but all that is what I was told over the telephone — the failure to pay court costs.
“THE COURT: He was placed on probation May 13, 1977, what happen after that?
“MR. GUTHRIE: He was arrested on 11-20-76 and charged with robbery and he was sentenced to 10 years in the penitentiary on 10-12-77 for the robbery charge.
“MR. DODD: Did you say arrested on 11-20-76?
“MR. GUTHRIE: That was the date of the offense. I didn’t — the date of arrest was 3-7-77.
“THE COURT: Did he subsequently escape from the penitentiary?
“MR. GUTHRIE: Yes, sir, he was convicted.
“THE COURT: When was that?
“MR. GUTHRIE: 5-1-79.
“THE COURT: 5-1-79. And how many years?
“MR. GUTHRIE: One year, I believe.”

Notwithstanding our inclination to believe that probably the appellant received on May 23, 1982, “written notice ... of the claimed violation of probation” as indicated by, the trial court’s statement, “That is your copy, sir. We will pass until next Friday for final revocation hearing,” as shown by the excerpt of the transcript quoted above, we are not fully persuaded as to this, as the transcript contains no copy of the “copy” apparently handed the probationer at the time by the court and little is said about the contents of the copy or the contents of the original at the hearing resumed on May 28, 1982.

The court concluded the hearing on May 28, 1982, as follows:

“THE COURT: This is a finding of fact. “May 13,1977, this defendant was placed on probation in two cases of grand larceny. He was given two years concurrently and placed on probation. On May 13, 1977, I find as a fact that the defendant was arrested in Walker County March 7, 1977, for the offense of robbery which occurred on November 20, 1976, and this matter was not brought to the attention of the court and convicted of robbery on November 20, 1976.
“I further find, as a fact, that the defendant attempted to escape from the penitentiary and was convicted on May 1, 1979, for attempted escape. A writ of probation violation was issued against this defendant on March 31, 1978, not for the robbery escape conviction, but for the failure to pay court costs for which the defendant was unable to do by virtue of being in the State penitentiary. “Defendant’s probation is • hereby revoked due to the defendant being subsequently convicted of the offense of robbery and attempting to escape after being placed on probation by this Court.”

Appellant also insists that the court was in error in holding that appellant had violated the terms of his probation by “his conviction of a criminal offense which occurred prior to the time he was placed on probation.” During the argument on the hearing on this point, the following statements were made:

“MR. DODD: ... The point I’m making to Your Honor is this: the defendant, if he had been brought before Your Honor in 1977, in October of 1977, for action in these two cases, I would say to the Court that you would not have revoked him at that time.
“THE COURT: Why?
“MR. DODD: Because the offense-which you have brought him before was something that occurred prior to you placing-him on probation, it was not something that he committed after you placed him on probation, he would not have had a violation.
“THE COURT: Show me the case that says I can’t revoke for something I did not know about that occurred prior to the actual offense.
“MR. DODD: There is no testimony that you did not know that he had a pending case in Walker County.
“THE COURT: The record reflects I did not and I did not know it. The record is silent as to any writ — is there a delinquency report directed to me from Walker County?
“MR. GUTHRIE: There would not have been, because this was prior to your case.
“THE COURT: You mean if a person is arrested after I put them on probation for something they did prior to being put on—
“MR. GUTHRIE: He was denied probation in Walker County, so we would not have done anything on that.
“MR. DODD: According to the record he was arrested before he was placed on probation.
“THE COURT: About three or four days? Just to give you an example— “MR. DODD: It was two months, March 7th is when he was arrested and placed on probation in May.
“THE COURT: Two months, I’m sorry. Are you saying that would not have been brought to my attention, is that the policy of this probation office?
“MR. GUTHRIE: The Jasper office. “THE COURT: How about the Birmingham office?
“MR. GUTHRIE: They should have done it.
“THE COURT: Is there any record of that, sir?
“MR. GUTHRIE: No, sir.”

We are convinced that probably there has been a failure to reproduce precisely what the learned trial judge said and meant in endeavoring to bring order out of the chaotic circumstances related at the revocation hearings on May 23 and May 25, 1982, as to appellant’s criminal activities in Walker County, his period of imprisonment,' his escape, his recapture, his parole, and his subsequent apprehension as an alleged violator of his probation in the Jefferson County cases under consideration. Whether so or not, we are unable to determine with reasonable certainty all of the facts necessary for us to come to a conclusion as to the validity of the judgment revoking appellant’s probation. We find it necessary, therefore, to remand the case for further hearing, with directions that the trial court reopen the hearing upon which this appeal is presently based and do what it can, and that the parties be given an opportunity to do what they can, to clarify the question whether appellant was given written notice of the claimed violation of his probation and a disclosure of the evidence against him, before the probation hearing on May 28, 1982, and the pertinent facts developed at said hearing, in the light of what we have already said herein and the following comments.

We make no decision at this time as to whether the trial court was correct in statements relative to whether there would have been a violation of probation by any conduct of the probationer prior to his probation, but we refer to Ex parte State (In re: Wilcox v. State), Ala., 395 So.2d 1054, 1056, in which it is stated:

“The Court of Criminal Appeals stated the general rule applicable to probation revocation hearings as follows: ‘There can be no violation of a term or condition of probation other than by commissive or omissive conduct during the probationary period.’ We adopt the general rule and expand it to include the proviso that probation may be revoked solely upon conviction of a subsequent crime, provided the subsequent conviction is valid....”

In the cited case, the Alabama Supreme Court reversed Wilcox v. State, Ala.Cr.App., 395 So.2d 1052, by reason of the failure of the writer of the opinion therein, who now endeavors to write the opinion herein, to consider, as he should have done, that the alleged violation of the terms of the probation in Wilcox v. State, although occurring prior to the effective date of the probationary portion of the sentence, actually occurred at a time subsequent to the rendition of the order of probation. In accordance with the opinion of the Alabama Supreme Court and the Alabama Court of Criminal Appeals in Wilcox, supra, a determination by the trial court in the instant case that conduct of the appellant prior to the date of the order of probation would be a basis for revocation of his probation would be incorrect.

According to the record before us, the order of probation in the two Circuit Court cases under consideration was entered on May 13, 1977, as the transcript of the proceedings herein discloses, and the first paragraph of the order of probation provides:

“The defendant having made application for probation, the Court is of the opinion that the same should be granted. It is therefore ordered that the sentences in this cause, heretofore imposed, are suspended until May 12 1979 and the defendant is placed on probation until said date

It appears that the conviction for “escape” occurred only twelve days before the expiration of appellant’s period of probation, which emphasizes the necessity for exactitude as to the date of said conviction if said conviction is to form a basis for revocation of his probation. It appears also that, although a writ was issued against appellant on March 81, 1978, for a violation of his probation by reason of his failure to pay court costs, which the trial court determined was not a basis for revocation of probation, no writ or warrant for his arrest was ever executed upon him for violation of his probation until May 13, 1982. This gives us concern as to whether the instant proceeding for revocation of probation was instituted during the period of probation. In this connection, we refer to Brantley v. State, Ala.Cr.App., per Judge DeCarlo, 340 So.2d 901, 902, cert. denied, 340 So.2d 902, in which it is stated:

“The application of the speedy trial principle to probation revocation hearings has not been determined in Alabama. This is the first occasion when such an insistence has been made. It is our judgment that a probation violator’s warrant could be issued and probation revoked any time before the expiration of the term for which probation was granted. The right to a speedy trial is not involved. Cox v. Feldkamp, 438 F.2d 1 (5th Cir.1971); Moultrie v. State of Georgia, 464 F.2d 551 (5th Cir.1972).”

Reference is also made to United States v. Tyler, 605 F.2d 851 (5 Cir.1979), in which it was held that the probationary system imposes a duty on a probation officer to represent the interests of both society and the probationer and that an unreasonable delay in bringing charges of violations, or piecemeal approach seeking revocation of probation, would rarely, if ever, serve the interests of either.

In remanding this cause with directions that the trial court reopen the probation hearing, we further direct that, after the hearing to be conducted, the trial court render such judgment as the pleadings, the evidence and the law justify, which will then constitute the judgment for this Court to review upon a return to this remandment with a copy of the judgment and a transcript of the reopened hearing, and which return shall be made in due course with notice to each of the parties. Either aggrieved party will have thirty days therefrom to file a brief in this Court, and the opposing party will then have fifteen days within which to file a reply brief.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

PER CURIAM.

AFFIRMED ON RETURN TO REMAND. NO OPINION.

All the Judges concur.