text:
    Sharon Gail DAVIS v. James B. DAVIS, III.
    Civ. 4071.
    Court of Civil Appeals of Alabama.
    April 11, 1984.
    As Corrected on Denial of Rehearing May 16, 1984.

      Edwin L. Yates, Montgomery, and Virginia A. Johnston, Mobile, for appellant.
    J. Bernard Brannan, Jr., Montgomery, for appellee.
   PER CURIAM.

This is a child custody modification ease.

The father sought custody of a minor child, which by a previous decree of divorce was in the custody of the mother. After an ore tenus hearing, the trial court changed the custody of the child awarding custody to the father. The mother, through able counsel, appeals and we affirm.

The primary dispositive issue on appeal is whether the evidence supports the trial court’s action in modifying the prior decree of divorce and awarding custody to the father.

At the outset, we note that it is not necessary to relate in detail the evidence adduced at trial. Suffice it to say that, viewing the record with the attendant presumptions accorded the trial court decree, the following is pertinently revealed.

The couple was divorced in August of 1980. The divorce decree incorporated a settlement agreement between the parties which granted the wife custody of the couple’s only child, Jamie Michelle Davis, set the husband’s child support obligation at $225 per month, and granted the husband “reasonable visitation rights to be determined by both parties using good faith efforts.”

After the divorce, the wife, Gail Davis, took an “eight-to-four” job at Baptist Medical Center and was also a cocktail waitress part-time. She later quit the Baptist Medical Center job, however, because she found it difficult to hold down both jobs, and expanded her hours as a cocktail waitress, working from five o’clock in the afternoon to closing (any time from eleven p.m. to three a.m.). She subsequently left this job and moved to another establishment, cocktail waitressing and managing from four p.m. to closing (anytime from ten p.m. to two a.m.).

On Thanksgiving Day 1982, Gail Davis opened her own bar, in Montgomery, with a partner, Ronnie Waters. According to the testimony of Mr. Waters’s wife, the partnership agreement was that Mr. Waters would put up the capital investment, and Gail would “run” the bar, being there most of the bar’s opening hours, which were two p.m. to five a.m. Mr. Waters only rarely worked at night, and after two and one-half months he agreed to sell his share of the business to Gail, partly because the two had different ideas about running the bar. At the time of the hearing in this matter, Gail was still the sole owner of the establishment; she was spending a great deal of time at the bar during its opening hours to supervise operations. She was also coming in in the mornings before the bar opened to keep the books, make bank deposits, clean up, and make out food orders, and she was talking about opening a second establishment in Gulf Shores, Alabama.

The entire time that Gail cocktail w'ait-ressed and then later, when she opened her own business, she was unable to devise a stable arrangement for someone to supervise Jamie when she had to be at work. Although she did have Jamie in a day care center during the days, at nights, while Gail was waitressing and then later when she was running her own business, she consistently farmed out Jamie to various relatives and different babysitters. On several occasions Gail had roommates, relatives, or other sitters in her own home to stay with Jamie, but the child was often sent to stay with neighbors, friends, or relatives in or near Montgomery. Evidence revealed that from February of 1981 until April of 1983, Jamie spent at least 399 nights away from her home. There were months, right after the business opened, that Jamie spent as many as twenty-two days and nine nights away from her mother and home. There was also an occasion when Gail left Jamie with others for several days at a time.

There was also evidence that Jamie’s personal needs were not always met — that Gail did not show much interest in her school work, that there was not always adequate food around the house, that Jamie sometimes went to day care dirty or with wrinkled clothes, that she had problems with her ears that were not always tended to, and that for a period of time Jamie did not have her own bed to sleep in but was allowed to fall asleep on a comforter placed in front of the fireplace.

The husband filed a petition for modification on August 26, 1982, seeking to reduce his child support obligations because he had suffered a decrease in earnings. He also asked that custody of Jamie be transferred to him because Gail had been unable to arrange suitable nighttime supervision for the child.

On December 10, 1983, upon a joint petition for modification filed by the parties, the trial court reduced the father’s monthly child support obligation to $132. The court also clarified the husband’s visitation rights, giving the husband first option to keep the child nights or any other time that Gail could not keep her.

On May 1, 1983, the father remarried. His new wife is a business and office coordinator at a Montgomery high school, earning $22,500 a year and working from 7:30 a.m. to 1:00 p.m. She testified that she and Jamie get along very well and that when Jamie is with her father, the three attend church regularly and engage in such activities as trips to the zoo or the mall, picnics, and visits with out-of-town relatives.

On August 19, 1983, the court entered a final order, awarding custody to the father, requiring Gail to pay $200 a month child support, and setting eight specific visitation periods for the mother. Gail then filed a Rule 59(e) motion to have visitation extended in three respects, but the trial court denied her motion. She then appealed to this court.

A trial court judgment entered after an ore terms trial carries a presumption of correctness. Sain v. Sain, 426 So.2d 853 (Ala.Civ.App.1983). Such judgment, if supported by competent evidence, will not be set aside unless palpably wrong. Hall v. Polk, 363 So.2d 300 (Ala.1978).

A decision regarding modification of child custody rests within the sound discretion of the trial judge. The party who seeks such modification carries the burden of proof, see Sanders v. Sanders, 425 So.2d 476 (Ala.Civ.App.1983), and must establish that there has been such a material change in circumstances since the last custody decree that the welfare and best interests of the child require the change sought. Hallford v. Hallford, 390 So.2d 295 (Ala.Civ.App.1980).

In the instant appeal we can find no error in the trial court’s decision to transfer custody of the four-year-old child to her father. The evidence reveals a material change in circumstances, that change being after becoming divorced, the mother began working nights and was unable to provide suitable and stable supervision for the child. This problem was only compounded when the mother opened her own night club. On the other hand, the father had remarried to a woman who loved Jamie, and there is evidence that together the father and his new wife could provide a stable home for the child with adequate supervision.

On appeal, the mother also raised as error the trial court’s consideration of evidence predating the December 10, 1983, modification. Because the December 10, 1983, modification was based upon a “stipulation” of the parties, this contention is without merit. See Wilson v. Wilson, 408 So.2d 114, 116 (Ala.Civ.App.1981), cert. denied, 408 So.2d 117 (Ala.1982).

In addressing the mother’s Rule 59(e) visitation claim, we are bound by the following statement in Naylor v. Oden, 444 So.2d 861, 862 (Ala.Civ.App.1983):

“The law is clear that the trial court is accorded much discretion in its judgment concerning visitation. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980). Under the ore tenus rule, our review of the trial court’s order is controlled by the principle that this court will not substitute its judgment for that of the trial court and will reverse only where the evidence shows the trial court to have been plainly and palpably wrong and unjust. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App. 1980).”

After having reviewed the record, we cannot say that the trial court was plainly and palpably wrong and unjust in its refusal to extend visitation as requested by the mother. Its judgment in this regard is also due to be affirmed.

In addition to the above, the mother contends the trial court “improperly” considered a report from the Department of Pensions and Security. Assuming without so deciding that the mother’s contention is correct, such error in this instance, in view of the evidence set out herein above, would not require reversal. See Rule 45, Alabama Rules of Appellate Procedure.

Other evidentiary rulings complained of by the mother would also, if error, fall within the provision of Rule 45, A.R.A.P.

The father’s request for attorney fees for representation on appeal is, in view of all the circumstances and hopefully in the best interest of all concerned, denied.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jamie Ray STRINGER v. Martha L. Stringer SHEFFIELD.
    Civ. 4028.
    Court of Civil Appeals of Alabama.
    April 18, 1984.
    Rehearing Denied May 16, 1984.

      Joseph C. McCorquodale, III, Jackson, for appellant.
    Ronnie E. Keahey, Grove Hill, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This postdivorce litigation concerns unpaid child support and an increase in the amount of future support through modification of the divorce judgment.

The parties were first divorced from each other in June 1967 but remarried in late 1967. Their second divorce was rendered on April 23, 1969 after the defendant-husband had filed an answer and waiver to the complaint. That judgment granted the custody of Joel and Billy, “the minor children of the parties,” to the plaintiff-mother and ordered the defendant to pay monthly support for the children of $50. On January 21, 1983 the plaintiff filed her petition, which sought to adjudge the defendant to be in contempt of court for his delinquency in the payment of support for the children. The plaintiff also asked for an increase in the amount of support to be paid by the defendant. After an ore tenus trial, a judgment was entered against the defendant in the amount of $7,975 for past-due child support and the divorce judgment was modified so that the defendant was ordered to subsequently pay $34 each week for Billy’s support. The defendant appealed and raised four issues.

I.

The defendant complains that the trial court erred in not allowing witnesses to testify that the plaintiff had stated that Billy was not the child of the defendant.

Billy was born on June 18, 1968. The plaintiff swore that Billy is the defendant’s son and that the defendant knows it. In one instance the defendant was permitted to testify that, about one year after the April 1969 divorce of the parties, the plaintiff told the defendant that Billy was not his child. However, the plaintiff’s objections were sustained to other questions which were directed to the defendant and to some of his witnesses concerning the plaintiff’s statements regarding Billy’s paternity.

The 1969 divorce decree designated Joel and Billy as being “the minor children of the parties.” That constituted a finding that the defendant was the father of those two boys and, in subsequent proceedings between them, the parties are normally concluded by that paternity determination of their divorce judgment. Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App. 1980), cert. denied, 392 So.2d 1196 (Ala.1981). In Stewart, however, it was pointed out that res judicata may not be utilized to sustain certain types of fraud. The counterclaim of the defendant was, in substance, an independent action under rule 60(b) of the Alabama Rules of Civil Procedure. That pleading complained that fraud was committed by the plaintiff upon the defendant and upon the trial court regarding Billy’s paternity.

Under rule 60(b) any independent action for a fraud allegedly perpetrated against the defendant was required to be commenced within three years of the divorce or within one year from the discovery of the fraud under section 6-2-3, Code 1975. Here, the defendant’s own testimony showed that he knew of such alleged fraud approximately one year after the April 1969 divorce. The counterclaim was filed in August 1983, which was at least eleven years too late in making a claim of fraud committed against the defendant.

“The alleged fraud was not a ‘fraud upon the court.’ It did not vitiate the finding of paternity in the divorce judgment, which still constitutes res judicata as between the parties as against such allegations.” Stewart v. Stewart, supra. Therefore, no fraud was committed upon the trial court by the plaintiff concerning Billy’s paternity-

We find no error as to this issue.

II.

The defendant complains that the evidence was insufficient to prove that a material change in the circumstances had occurred which warranted a modification as to child support.

The 1969 divorce decree established support for the two boys at $50 per month and the 1983 judgment modified it to $34 each week for Billy’s sustenance. Joel reached his nineteenth birthday on June 13, 1983, prior to the modification judgment.

The plaintiff is employed but takes home only $100 per week in net wages. She testified that she needs assistance from the defendant in supporting Billy since her income is inadequate to do so. The defendant admitted that his hourly wages in 1969 were $3 and had increased to $10 in 1983. His present average net weekly wage is $320 when a $60 weekly deduction for his credit union is not considered. He pays $50 weekly for child support for a child born to his second wife and has one child by his third, and present, wife.

“This court has committed itself to the principles that the increase in age of minor children and the correlative increase in need for support, when coupled with the increase in the cost of living due to inflation, is sufficient to constitute a material change of circumstances and support a modification.” (Citations omitted.)

Young v. Young, 376 So.2d 737 (Ala.Civ. App.1979). Where an ore tenus hearing is held before the trial court, we presume that the factual finding of the trial court is correct and we cannot alter it if it was supported by legal evidence unless it was palpably wrong. Young v. Young, supra. The evidence was adequate and the trial court’s modification of the divorce judgment’s provisions for child support was not palpably wrong.

III.

The next issue raised by the defendant concerns the failure of the trial court to allow certain credits to the defendant for various matters as against his arrearage of child support.

The defendant testified that Joel lived with him on two different occasions, once for five months and once for seven months. Joel also resided with his paternal grandparents for one and one-half years commencing when he was seventeen years old, but, during that entire period, the plaintiff furnished clothing, money, and other items to Joel, and he would return to the plaintiff’s home and stay with her “off and on.” There was no proof of the amount of expenditures made by either of the parties or by the paternal grandparents while Joel resided with them. Hence, a credit cannot be allowed for those items because of a lack of required proof in that regard. Wood v. Wood, 434 So.2d 800 (Ala.Civ.App.1983); Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981).

In February 1983 Joel began to stay with a paternal aunt and her husband in Texas. Joel reached nineteen years of age on June 13, 1983. There was evidence of expenditures by the aunt for Joel. A total of $8,600 was due to be paid as support for both boys by the defendant from the 1969 divorce decree to the date of the 1983 trial and the plaintiff testified that the defendant paid her nothing thereon during that one hundred seventy-two month period. The trial court ascertained the defendant’s arrearage to be $7,975. Therefore, we cannot say that credit was not given for the four months during his minority in which Joel was supported by the aunt.

The defendant also seeks credit for his purchase of clothing, a $200 suit, and sports equipment for Joel. The father spent $425 for a clutch and transmission which Joel ruined in the defendant’s vehicles. He also contends that he gave an unspecified amount of spending and gas money to Joel and that he permitted that son to use his car on occasions for dates. Many of those matters constituted gifts rather than the payment for necessities, and we find no abuse of discretion even if we assume that the trial court failed to allow a credit for those expenditures. Anonymous v. Anonymous, 428 So.2d 109 (Ala.Civ.App.1983); McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982).

As to all of the claimed credits, the ore tenus rule applies and, additionally, the trial court had a discretion to exercise in determining whether to give credit for each item as claimed by the defendant. McDaniel v. Winter, supra. We find no abuse of that discretion. Evidence was before the trial court which upheld the final judgment and the decision of the circuit court was not clearly erroneous.

IV.

During the lunch break pending the trial, it was discovered on behalf of the defendant from the recorded marriage records of the probate judge that a marriage license for the second marriage of the parties was issued by the probate judge on December 21, 1967 but that the certificate of marriage thereon by the person who performed the ceremony had not been filled in or signed and was blank. The defendant contends that the lack of that certificate rendered the marriage void, that the 1969 divorce decree was a nullity, and that the defendant cannot be required to pay any of the money he was ordered to pay by that judgment.

Section 30-1-13, Code 1975, requires all persons who solemnize a marriage by virtue of a marriage license to certify that fact in writing to the probate judge within one month after the ceremony and the next succeeding code section renders persons uniting a couple in matrimony guilty of a misdemeanor for failure to return the certificate thereof to the judge of probate as required by law. Those code sections neither declare nor do they render a marriage void when the certificate is not filed in compliance therewith. Neither will we make such a declaration, for, had the legislature intended such a severe and harsh result, it would have expressly pronounced the invalidity of such marriages.

The judgment of April 23,1969 expressly-ordered “that the bonds of matrimony heretofore existing between the Complainant and Defendant be, and the same are hereby dissolved.” The parties were divorced, they were prohibited from again marrying except to each other for the statutorily required period of time, and they were permitted to “again contract marriage” upon the payment of the court costs. There is no question from the actual language of the divorce judgment but that the trial court found that the parties were married and divorced them.

There is no contention of fraud being committed by anyone against anyone or against the trial court in 1969. Therefore, the parties are prevented from a collateral attack upon the 1969 divorce judgment on the ground here presented. Stewart v. Stewart, supra.

Further, both parties signed the application for the marriage license and there was evidence before the trial court that the parties were married to each other from the time of the marriage license until their 1969 divorce. There is a total absence of any evidence that a marriage ceremony was never validly performed pursuant to the marriage license.

We find no error by the trial court upon this or upon any other raised issue. Accordingly, we affirm the judgment of the trial court.

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

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    Ex parte Glenn E. HICKS, Sr. and Anna Hicks. (Re: Glenn E. HICKS, Sr. and Anna Hicks, v. W. Thomas CROSSLIN, Judge of Probate of Colbert County, Alabama; W.D. Cornelius; Bernice Cornelius; Edwin E. Enlow, Sr.; and Nancy B. Enlow).
    Civ. 4053.
    Court of Civil Appeals of Alabama.
    April 25, 1984.

      Robert S. Gargis and Gary Alverson, Tuscumbia, for appellants.
    Michael F. Ford and Ronald F. Súber of Martin & Ford, Tuscumbia, for appellees.
    D. Marcel Black of Hewett & Black, Tus-cumbia, for appellees W. D. Cornelius and Bernice Cornelius.
    Lee B. Osborn of Huddleston, Osborn & Babcock, Sheffield amicus curiae/guardian ad litem for Gregory Blake Hicks and Allison Denise Hicks, minors.
   BRADLEY, Judge.

Glenn E. Hicks, Sr. and Anna Hicks (petitioners) are the paternal grandparents of the two children (Gregory Blake Hicks and Allison Denise Hicks) that they are seeking to adopt. W.D. and Bernice Cornelius (respondents) are the maternal grandparents of the children and are also their legal guardians. Edwin E. Enlow, Sr. and Nancy B. Enlow (respondents) are relatives of the children and are also seeking to adopt the children.

The parents of the children are deceased, having died under tragic circumstances on December 7, 1980.

The Corneliuses, as stated previously, are the legal guardians of the children by way of letters of guardianship which were in full force and effect on the day of the hearing.

In January 1982, more than a year after the deaths of the children’s parents, the Corneliuses filed a petition in the Juvenile Division of the District Court of Colbert County, Alabama, seeking custody of the children. A hearing was scheduled for January 29, 1982. On the date of the hearing, the Hickses filed a cross-petition seeking custody of the children.

After hearing the testimony ore tenus, the juvenile division of the district court on February 1, 1982 entered a temporary order granting custody of the children to the Corneliuses. Permanent custody was granted to the Corneliuses on February 4, 1983.

The Hickses filed notice of appeal to the Circuit Court of Colbert County, Alabama. The appeal was dismissed by the circuit court.

On June 20, 1983 the Hickses filed a petition to modify the grant of custody in the juvenile division of the district court. A hearing was held on August 12, 1983 and the relief requested was denied by order of the court. A motion for rehearing was filed by the Hickses, which was denied. The Hickses appealed to this court. The appeal was denied on February 15, 1984. 446 So.2d 647.

The Enlows filed petitions to adopt the minor children on August 18, 1983. A hearing was had in the probate court on September 29, 1983 and all parties were present. Several motions were filed by the Hickses on the hearing date. These motions included a motion to dismiss, a motion to stay proceedings, and a motion to transfer the matter to the district court. After arguments, all the motions were denied.

During the course of the hearing, and prior to the close of the Enlows’ case, consent of each of the Corneliuses, as guardians of the children, was given by written instrument.

Upon conclusion of the hearing, the trial judge entered interlocutory orders granting the petitions of the Enlows to adopt the minor children.

Petition for mandamus was filed in this court on October 28, 1983.

The Hickses’ first contention is that the probate court committed error by failing to stay the adoption proceedings, or, in the alternative, to transfer them to the district court. Petitioners argue that once a court takes upon itself the question of the custody of a minor child, renders a final decision regarding the custody of the minor child, and such decision is appealed, any adoption proceeding with regard to said minor child must be filed in the juvenile court.

The Corneliuses reply that the probate court did not abuse its discretion in refusing to stay the proceedings or transfer them to the juvenile court. They point out that the Hickses’ motion was made on the day set for trial of the adoption matter, which was September 29, 1983. They also say that notice of such hearing date went to the Hickses on August 24, 1983 and that numerous witnesses had been summoned for that date and were present to testify.

The Corneliuses rely on section 12-13-12, Code 1975, and rule 6(d), Alabama Rules of Civil Procedure, for the proposition that the Hickses failed to file their motions a sufficient length of time before the hearing date. to give the opposing parties an opportunity to reply to them.

Section 12-13-12, Code 1975, provides that in the absence of express provisions to the contrary, provisions of the code relating to pleading, practice, evidence, and judgments and orders in the circuit courts shall apply in the probate court. Rule 6(d), A.R.Civ.P., provides that notice of a hearing on a written motion must be served not later than five days before the hearing date.

This court said in Matter of Morrison, 388 So.2d 1014 (Ala.Civ.App.1980), which was an appeal from a probate court order in an adoption proceeding, that if neither the adoption statutes nor the probate court statutes provide for a particular procedure, then the litigant looks to the procedures set out for the circuit courts. We said that the practice and procedure for disposing of a motion for new trial in the circuit courts is set out in rules 59 and 59.1, A.R.Civ.P. Likewise, the practice of disposing of motions for new trial in the probate courts would be governed by rules 59 and 59.1, A.R.Civ.P.

In the case at bar there is no procedure set out in the code for processing motions in the probate court. So we look to the procedure for handling motions in the circuit courts, and those are found in the Alabama Rules of Procedure, especially rule 6, which specifies the time when motions shall be served on opposing parties.

The motions filed by the Hickses did not comply with rule 6, A.R.Civ.P., and, as a consequence, the probate court did not abuse its discretion in refusing to stay the proceedings or to transfer them to the juvenile court, since the motions were made on the day of the hearing.

In addition, we also are of the opinion that the probate court had the discretionary authority not to transfer the adoption proceedings to the juvenile court. The Hickses argue that the probate court erred by not transferring the adoption matter to the juvenile court, which had jurisdiction of the custody of the children. They, in effect, contend that the probate court had no alternative other than to transfer when they asked that it be transferred. We disagree.

Section 12-12-35, Code 1975, provides as follows:

“(a) Adoption proceedings, primarily cognizable before the probate court, may be transferred to the district court on motion of a party to the proceeding in probate court.
“(b) When adoption proceedings are transferred to the district court, a copy of the record of such proceedings shall be filed in the probate court, and the probate court offices shall maintain records of all adoption proceedings within their respective counties.”

Section 12-15-30, Code 1975, provides that:

“(b) The [juvenile] court shall also exercise exclusive original jurisdiction of the following proceedings, which shall be governed by the laws relating thereto:
“(5) Proceedings for the adoption of a child when such proceedings have been removed from probate court on motion of any party to the proceedings .... ”

Hence, it appears that not only does the district court have jurisdiction over adoption matters when transferred to it from the probate court, but also that the juvenile court, whether in the circuit court or in the district court, has jurisdiction over adoption matters that have been transferred to it.

Is it mandatory that an adoption proceeding be transferred to one or the other of the courts listed above upon motion of a party to the proceeding in the probate court? We hold that it is not.

Amendment 364 to the 1901 Alabama Constitution provides that the probate court is a court of general jurisdiction in adoption matters. Section 12-12-35, Code 1975, provides that adoption matters are primarily cognizable in the probate court. Section 26-10-1, Code 1975, provides that petitions for the adoption of children are to be filed in the probate court.

It appears to this court that the language used in the constitutional amendment and in the two code sections relating to adoptions was intended by the legislature to give the probate court primary jurisdiction of adoption proceedings. Although the legislature authorized adoption proceedings to be transferred to the district court and to the juvenile court upon motion of a party thereto, we believe that the legislature also intended that the motion to transfer be made to the probate court and that the probate court have the discretion to grant the motion or not grant it.

We consider this to be the more reasonable interpretation of the statutes in question because it is clear that petitions for adoption must be filed in the probate court and that court has been made the primary forum for deciding adoption eases. See §§ 26-10-1 and 12-12-35, Code 1975. It is only after a motion to transfer has been granted that the other courts have jurisdiction to decide adoption cases.

To hold that it is mandatory that an adoption matter be transferred upon motion of a party would be, in our opinion, contrary to the legislative intent and could lead to forum shopping, which certainly was not the result intended by the legislature.

We conclude, therefore, that the probate court did not abuse its discretion in refusing to transfer the adoption proceedings to the district court or to the juvenile court.

The Hickses’ next contention is that the probate court did not have jurisdiction to enter the interlocutory order of adoption because consent was not given by the legal custodian of the children.

Section 26-10-3, Code 1975, provides in pertinent part:

“No adoption of a minor child shall be permitted without the consent of parents, but the consent of a parent' who has abandoned the child, who cannot be 'found, who is insane or otherwise incapacitated from giving such consent or who has lost guardianship of the child through divorce proceedings or by the order of a court having jurisdiction may be dispensed with, and consent may be given by the guardian, if there is one, or if there is no guardian, by the state department of pensions and security _” (Emphasis supplied).

In the case of Davis v. Turner, 337 So.2d 355 (Ala.Civ.App.1976), this court stated:

“[RJather, the giving of consent at some point is one of the prerequisites to the probate court’s consideration of the subject matter.
“Where this jurisdictional prerequisite has been satisfied at the time of the decree, the decree consummates the adoption and a later withdrawal of consent has no effect. Where a required consent has never been given, the trial court never obtains jurisdiction to proceed to the paramount question of the child’s welfare.” (Emphasis added.)

Respondents contend that the “jurisdictional prerequisite” of consent by the legal guardians was satisfied at the time of the probate court’s interlocutory decree. The Hickses argue that the failure of the Cor-neliuses to give their consent at the time the petition for adoption was filed prevents the court from hearing the matter. Respondents say that the issue is not the time or manner of consent but whether consent to the adoption was in fact given. We agree.

In Wolf v. Smith, 435 So.2d 749 (Ala.Civ. App.1983), this court stated:

“The statute does not specify a form for the consent, does not require notarization, and does not require that the consent be in writing. Thus, the proper question before the probate court, and before us now, is whether Mrs. Wolf consented to the adoption....
“It is uncontradicted that Mrs. Wolf orally consented to the adoption of Zachary by the Smiths at the time she signed the form.”

The evidence shows that the Corne-liuses discussed the adoption with the En-lows and gave their consent orally. Then the Corneliuses executed and filed with the probate court a written consent for the adoption prior to the interlocutory decree. The writ of mandamus is denied.

WRIT DENIED.

HOLMES, J., concurs.

WRIGHT, P.J., concurs specially.

WRIGHT, Presiding Judge,

concurring specially.

I concur in the result reached by the majority. However, I must respectfully dissent from the interpretation of the statutes concerning removal of adoption proceedings from probate court to juvenile court.

The majority said that removal of an adoption filed in probate court to juvenile court under § 12-12-35 upon motion of a party is not mandatory. In other words, probate court may refuse to transfer and juvenile court may refuse to accept. In my humble opinion such holding effectively destroys the statute. It is my opinion that § 12-12-35, which is found in the Code under the section titled “District Courts,” provides the right to have transfer from probate to district court of an adoption case upon motion of a party thereto. It is further my opinion that the motion is to be filed in district court, not probate court, and the order of transfer issue from district court. It appears obvious that such a case may not be forced upon district court by an order of the probate court.

There is a direct corollary between § 12-12-35 and § 12-11-41, which provides for transfer of the administration of an estate from probate court to circuit court. These two statutes are the only ones that I know of that operate to oust one jurisdiction in favor of another in such manner. Each statute ousts the jurisdiction of a primary court in favor of a secondary one. In each statute the authority for transfer is codified under the power of the secondary or transferee court. The words of the authority are strikingly similar. In § 12-12-35 the words are, “may be transferred to the district court upon motion of a party to the proceeding in probate court.” In § 12-11-41 the pertinent words are, “may be removed from the probate court to the circuit court ... upon the filing of a sworn petition reciting that the petitioner is such heir_” Cases considering § 12-11-41 have declared that the statute provides a right of transfer or removal. Ex parte Pettus, 245 Ala. 349, 17 So.2d 409 (1944); Hall v. Proctor, 239 Ala. 211, 194 So. 675 (1940). I perceive no other reasonable construction of § 12-12-35.

It appears that the legislature intended that in eases where the district court, because of a prior relationship with the child, or perhaps because of better training or experience of the judge or for some other reason, was better qualified to determine the best interest of the child, transfer could be made upon motion to the district court.

It is for these reasons I submit that the majority is in error in declaring that the probate court had discretionary authority not to transfer the case to district court. It is not necessary to the decision to say it. I would hold that the writ should be denied because the motion to transfer was not filed in the proper court.


author: BRADLEY, Judge. '

text:
    Sandra J. Parker FIRESTONE v. Michael Jack PARKER.
    Civ. 3987.
    Court of Civil Appeals of Alabama.
    May 9, 1984.
    Richard H. Ramsey, III, Dothan, for appellant.
    Robert F. Northcutt of Hardwick, Hause, Segrest & Northcutt, Dothan, for appellee.
   BRADLEY, Judge. '

This is a child custody modification case.

The parties to this proceeding were divorced on June 14, 1979. The custody of the only child of the marriage was awarded to the mother. On May 24, 1983 the father filed a petition to change the custody of the child from the mother to him. After an ore tenus hearing, custody of the child was changed from the mother to the father. The mother appeals.

The evidence shows that subsequent to the divorce the mother married Edward Brunson. They were married for a period of seven months before they were divorced.

Brunson testified that prior to the time the mother and he were married he stayed overnight at the mother’s house on many occasions when the child was present. Mr. Brunson stated that he was sure that the child had seen him and the mother going into and coming out of the bedroom together.

Brunson said that he had heard the mother use curse words in the presence of the young child and that the mother allowed the child to stay with the mother’s parents “quite a bit.”

Brunson and the mother were divorced on December 1, 1982. The mother married Michael Firestone on June 17, 1983, which was after the petition for modification was filed, but four days before the first scheduled hearing date.

There is also evidence that Firestone stayed at the mother's house prior to their marriage when the child was present. He even had a key to her house during this time. The mother said that she and Firestone napped together when the child was present, and that the child even took a nap with them on occasion.

The evidence revealed that the child spent a good bit of time with the maternal grandmother and that he stayed with his father more than the visitation schedule during the period from January 1983 to about April 1983. The child also spent most of the summer of 1982 with his father.

The child testified that he would rather stay with his father than with his mother. He said he got along better with his stepmother’s children than he did his stepfather’s children.

The father has been married for about two years. He said that the child is loved by his new wife and they get along very well. The evidence reveals that the father takes the child to church, but there is no indication that the mother does so.

The father said that the mother would on occasion forcibly put the child in her car after visitation because the child did not want to go back to the mother’s home. The mother also indicated that she was having problems handling the child but that she thought she could work them out.

The mother argues here that the trial court abused its discretion in changing custody of the child from the mother to the father.

Where the trial court hears evidence orally, its judgment is presumed correct and will not be overturned except for a showing that it is plainly and palpably wrong and thus an abuse of the court’s discretion. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). To overcome the presumption of correctness, there must be evidence of a material change in circumstances since the last decree affecting the best interests and welfare of the child, necessitating a change in custody. Alford v. Alford, supra. The burden of proof is on the party seeking modification. Pons v. Phillips, 406 So.2d 932 (Ala.Civ.App.), cert. denied, 406 So.2d 935 (Ala.1981).

Although a parent will not be denied custody for every act of indiscretion, evidence of infidelity has a direct bearing on the fitness of a parent to have custody of its child. Sain v. Sain, 426 So.2d 853 (Ala.Civ.App.1983). And, which parent a child wishes to live with in a custody dispute is a factor to be considered by the trial court; however, such wish is not controlling. Livengood v. Sechler, 382 So.2d 567 (Ala.Civ.App.1980).

The evidence shows that the mother permitted men to stay with her at her house over an extended period of time in the presence of her young son. During this period the child spent a lot of time with his father and grandmother. It was shown that the child preferred living with his father and one of the reasons was that he got along much better with his stepmother’s children than he did with his stepfather’s children.

There was evidence that the mother was having problems with the boy and the father was not. It was stated by the mother that the father took the child to church, but she gave no indication that she did the same.

In view of the strong presumption of correctness accorded the trial court’s decision in a case of this nature, we cannot say that its judgment is so plainly and palpably wrong as to amount to an abuse of its discretion. The judgment of the trial court is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    In The Matter of CONDEMNATION OF 176 BOXES OF FIREWORKS. Ed BLUM v. STATE of Alabama, Chris Galanos, D.A.
    Civ. 3988.
    Court of Civil Appeals of Alabama.
    May 9, 1984.
    S. Robert Brooks, III, Mobile, for appellant.
    Thomas E. Harrison, Chief Asst. Dist. Atty., Mobile, for appellee.
   PER CURIAM.

This appeal involves the condemnation of certain “fireworks.”

The Circuit Court of Mobile County in April of 1983 entered an order condemning certain fireworks and ordered the fireworks to be destroyed. The fireworks were destroyed.

In June of 1983, the apparent owner of the fireworks filed the following “motion.”

MOTION FOR RELIEF FROM ORDER
“NOW COMES, Ed Blum, and moves this Court pursuant to Rule 60 Alabama Rules of Civil Procedure, to vacate its Order of April 18, 1983, and for good cause would show unto the Court, to-wit:
I
“That he is the rightful owner of the 176 Boxes of Fireworks.
II
“That Order is void.
III
“That said order was entered by mistake, or excusable neglect.
IV
“That newly discovered evidence which by due diligence could not have been presented.
V
“That said order is due to fraud, misrepresentation, and other misconduct by the District Attorney and/or Fire Marshall of the City of Mobile.
VI
“That other reasons justifying relief from said order exist.”

The trial court denied this motion and Blum appeals.

The following appears in Blum’s brief filed in this court:

RELIEF SOUGHT
“The Appellant requests that this Court issue a declaratory judgment that § 8-17-225 requires due process.
“The Appellant requests] that this Court issue a declaratory judgment that the Appellant’s due process was violated.
“The Appellant requests] that this Court issue a declaratory judgment that the City of Mobile jurisdiction as to its Fireworks ordinance does not extend to the police jurisdiction.”

The “relief” sought by Blum in the circuit court was pursuant to Rule 60(b), Alabama Rules of Civil Procedure. It further appears that the “relief” now sought in this court is pursuant to a declaratory judgment.

A party cannot try his case on one theory and then appeal on a separate theory. A question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal. Ford v. Alabama By-Products, 400 So.2d 380 (Ala.1981); Ala.Digest, Appeal and Error, Key No. 171(1).

We further note that we are not aware of any authority, nor is any authority cited to us, that confirms original jurisdiction in this court for a declaratory judgment action. See §§ 12-3-10 and 12-3-11, Ala.Code (1975).

In addition to the above, it appears clear that, in this instance, the ultimate relief sought by the appellant-Blum would be moot. This is so because of the destruction of the subject property. See Ala. Digest, Appeal and Error, Key No. 781(1).

For any or all of the above, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    William W. ARMSTRONG v. LEWIS & ASSOCIATES CONSTRUCTION CO., INC.
    Civ. 4018.
    Court of Civil Appeals of Alabama.
    May 9, 1984.

      Judy A. Newcomb of Faulk, Newcomb & Newman, Dothan, for appellant.
    William C. Carn, III and Huey D. Mclnish of Lee & Mclnish, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Claimant, William Armstrong, age forty-eight, is married and has four children. He is unable to read or write except to sign his name. In the past claimant has performed various types of unskilled labor. He has never held a supervisory position.

In January 1979 claimant began work for Lewis and Associates Construction Company (employer) as a general laborer, earning an hourly wage of $3.00 and a weekly wage of approximately $120. On February 7, 1979, while on a job site for employer, claimant injured his back lifting a cement form weighing between 100 and 150 pounds. The day after the accident, claimant informed his supervisor of the injury and was sent to Dr. Burén Wells. After initial treatment by Dr. Wells, claimant received treatment by Dr. William Silvernail, a neurosurgeon, and Dr. Robert Moore, an orthopedic surgeon. Claimant was then treated by Drs. Joseph F. Kersey and Doug McKeown, psychologists.

Dr. J.C. Serrato, Jr., who treated claimant for his back injury from March 1979 until November 1980, diagnosed claimant’s malady as a “soft tissue ligament type of injury of the lumbosacral spine, or a trauma to the ligaments of the disc,” or in everyday vernacular, a “lame back or sprung back” and that claimant has spon-dylolisthesis, which existed prior to claimant’s back injury. Dr. Serrato assigned a five percent permanent disability rating to claimant’s body as a whole.

Because of continued complaints of pain, claimant was referred to the Pain Rehabilitation Clinic in Columbus, Georgia, for psychological consultation. After undergoing a series of tests, interviews and evaluations, claimant was determined to have “so-maticized his difficulties and developed a hypochondriacal neurosis.” Claimant was advised not to resume construction work. Claimant received disability benefits for eleven and one-half months.

Claimant presently does not work, drive or participate in the sports or social activities that he did prior to his injury. He testified that he has experienced constant and severe pain in his lower back and intermittent pain in his feet and legs since the injury.

In January 1981, claimant filed a complaint in Houston County Circuit Court alleging total and permanent disability resulting from a job-related injury of February 7, 1979. In September 1983 the trial court entered judgment finding that claimant had suffered a five percent loss of ability to earn as a result of the injury. Claimant petitioned this court for certiora-ri.

The only issue raised by claimant is whether the trial court’s decision that claimant suffered only a five percent loss of ability to earn as a result of his injury, is supported by legal evidence.

On appeal, review of a workmen’s compensation ease is limited to questions of law and to an examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. Allen v. Metro Contract Services, Inc., 421 So.2d 1289 (Ala.Civ.App.1982). The reviewing court may, however, examine the trial court’s application of the law to the facts, Pate v. Miller Transporters, Inc., 381 So.2d 64 (Ala.Civ.App.1979), aff'd, 381 So.2d 68 (Ala.1980), and the legal conclusions drawn by the trial court. Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977), cert. denied, 354 So.2d 1142 (Ala.1978).

It is established that claimant suffered a soft tissue injury to his back in the performance of his employment.

The essential dispositive question is whether a claimant’s psychosomatic, hy-pochondriacal pain, proximately resulting from a physical injury is properly considered in determining disability to earn under the Workmen’s Compensation Law.

Factors other than strict medical physical disability are properly considered in determining disability in workmen’s compensation cases. See, Allen v. Metro Contract Services, Inc., supra; See, e.g., City of Muscle Shoals v. Davis, 406 So.2d 919 (Ala.Civ.App.), cert. denied, 406 So.2d 923 (Ala.1981); Brunson Milling Company v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958). In Fruehauf Corporation v. Prater, 360 So.2d 999, 1001 Ala.Civ.App.), cert. denied, 360 So.2d 1003 (Ala.1978), this court held,

“[Tjhat if it is established by legal evidence that an employee has suffered a physical injury or trauma in the line and scope of his employment and he develops a neurosis as a proximate result of such injury or trauma which neurosis causes or contributes to an occupational or physical disability, such disability is compen-sable.”

Recognizing the distinct possibility of a malingering claimant, in the absence of objective symptoms, that possibility may be minimized by a vigilant, discerning trial judge and the “difficulty of proof may be overcome by the use of expert medical testimony and/or objective evidence.” Id.

In light of our sayings in Fruehauf and the further observation that each case must be considered upon its own facts, the question is whether, in this case, the claimant’s alleged psychological suffering may be proximately attributable to his back injury and thereby compensable.

No evidence was offered suggesting that claimant is malingering. To the contrary, Dr. Kersey and Dr. McKeown stated in deposition that they found no evidence that claimant is malingering. Dr. McKeown diagnosed claimant as follows: “A primary diagnosis would be mental defective intellectual functioning; secondary diagnosis would be somatiform disorder.” A somati-form disorder is generally a disorder wherein an individual’s present symptoms are exacerbated by his psychological functioning. Dr. Kersey stated that claimant had developed a hypochondriacal neurosis which is an irrational or exaggerated view of physical difficulties or a preoccupation with those difficulties.

Claimant’s intellectual capacity was determined by Dr. McKeown to be in the mentally defective range of intellectual functioning with a full scale I.Q. of 63. Dr. McKeown opined that claimant’s prognosis for rehabilitation was quite guarded for he stated that,

“[I]n claimant's particular case he has such lowered intellectual abilities that any attempt at insight into his particular problem would really have an insignificant effect. He generally doesn’t have the capacity to understand how these two factors may be going together. What he feels is the actual pain and that’s what he deals with.”

Dr. McKeown further stated that, “There is a possibility that vocational rehabilitation could provide some benefits to [claimant], but even this is remote. He appears to have minimal social skills for his environment, and has minimal financial self-management skills.... ”

The record thus contains much evidence tending to show that claimant’s neurosis is not intentional as that of a malingerer. Though Dr. McKeown said that he could not state specifically the actual degree to which claimant’s existing psychological problems were caused by the accident in 1979, he nevertheless stated that he could probably say “without hesitation that [claimant’s] functionality has been exacerbated by that.”

We recognize that the trial judge in workmen’s compensation cases is the trier of fact, and our power of review does not permit us to weigh the evidence heard by him. See, Allen v. Metro Contract Services, Inc., supra; Hester v. Ridings, 388 So.2d 1218 (Ala.Civ.App.1980). We also recognize that he is not bound by the opinion of expert witnesses. Clark Lumber Co. v. Thornton, 360 So.2d 1019 (Ala.Civ.App.1978). However, it is correct to state that the trial judge may not fail to consider evidence, particularly when it is without conflict or dispute. Stinson v. Acme Propane Gas Co., 391 So.2d 659 (Ala.1980).

The judgment does not contain any finding of fact relative to the stated neurosis of claimant other than to relate the incident of his psychological counseling. The judgment then finds a five percent loss of ability to earn. That percentage of ability to earn is the same percentage of permanent physical disability assigned claimant by Dr. Serrato, who did not consider his psychological condition. There is no evidence disputing the presence of psychological problems. There was evidence of previous mental problems several years before the injury. Claimant had been committed to Bryce Mental Hospital with severe depression and was given shock treatments. However, none of the medical testimony stated any connection between that condition and his present one.

Considering the evidence we have related, the failure of the court to make any finding of fact concerning the claimant’s undisputed psychological condition or a statement of the basis for the finding of a five percent loss of ability to earn, we are unable to find any evidence to support such finding. We do not know if the judge disregarded the testimony of all the witnesses that testified as to the continuation of claimant’s debilitating pain and reached his own conclusions. It has been said that the trier of fact may not do that. Deal v. Johnson, 362 So.2d 214 (Ala.1978). We do not know if the trial judge, after considering the evidence, most of which was in deposition, merely disbelieved it. We do not know if the court was not informed of the present law of this state as stated in Fruehauf. We do know that if the court had determined claimant to be more seriously disabled than five percent, there is sufficient evidence to support his judgment.

Therefore, in view of our uncertainty of the basis for the judgment, we take the unusual procedure of reversing the judgment and remanding the case for reconsideration by the trial court, with direction for entry of a judgment with a more complete finding of fact.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    CITY OF ALABASTER v. HOUSING AUTHORITY OF the TOWN OF COLUMBIANA, et al.
    Civ. 4085.
    Court of Civil Appeals of Alabama.
    May 9, 1984.

      Robert R. Sexton of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Conrad M. Fowler, Jr. and Frank Head of Wallace, Ellis, Head & Fowler, Colum-biana, for appellees.
   WRIGHT, Presiding Judge.

This is a property condemnation suit.

In 1972 the City of Alabaster adopted a comprehensive master plan for a sanitary sewer system for all of the corporate limits of the city. One of the outfalls of the sewer line installed by Alabaster ended at a cul-de-sac on property of the Housing Authority of Columbiana. When the line was extended, the Housing Authority tied onto the sanitary system by paying a $500 tap-on fee.

Sometime after the installation of the sewer line, the City acquired land lying due north of and contiguous to the Housing Authority project. The land was donated to the City as a public park. The park had a picnic area, basketball court and baseball field, but no restroom facilities.

Lying immediately west of the park area was undeveloped property owned by Harold Walker, a private individual who was interested in building on the land. In January 1979, Mr. Walker, the developer, proposed to construct a large apartment complex on his undeveloped land using the sanitary sewer outfall line which stopped at the cul-de-sac at the Housing Authority project.

Walker’s request for permission to cross the park property with the sanitary sewer was granted by the Park and Recreation Board on the conditions that he (Walker) stub out a “T” in the line for a bathroom facility for the park and that he would bear all costs incurred in the extension. Walker also agreed to secure the necessary easement from the Housing Authority to cross its property. The sewer lines were laid from Walker’s property across the park property and tied onto the sanitary sewer at the cul-de-sac. After the City’s approval of the installation of the line, it was discovered that Walker had not secured an easement from the Housing Authority to cross its land.

In May 1979 the Housing Authority filed suit against Walker in Shelby County Circuit Court to have the line removed. Walker prepared a petition, which was presented to the Park Board in March 1980, regarding the need for a condemnation proceeding against the Housing Authority. In September 1980, the Park Board recommended to the Alabaster City Council that the condemnation action be taken or the sewer line would have to be removed.

In Shelby County Probate Court, Judge Snowden found that the City had a right to acquire the land by condemnation stating that the taking was for a public purpose within the provisions of § 11-50-50 and § 11-47-171, Code of Alabama 1975. The court reduced the extent of the taking to a ten-foot easement. The Housing Authority then appealed to the Circuit Court of Shelby County. The court after hearing the case ore tenus, and without findings of fact, entered a final order denying the right of condemnation. After the City’s motion for a new trial or in the alternative to alter, amend or vacate the judgment was denied, it appealed to this court.

On appeal the City propounds essentially two contentions: (1) that a municipality has a right to condemn property for the extension of its sanitary sewer system, even if the condemnation indirectly benefits a private individual, and (2) that the taking of an easement for an underground sanitary sewer system in this case was actually necessary, and did not materially interfere with, alter or change the previous public use of such property sought to be condemned.

Undoubtedly, a city is empowered to condemn property for purposes of installing a sanitary sewer line. Section 11-50-50, Code of Alabama 1975, provides that, “All cities and towns ... may construct and maintain efficient sanitary and storm water sewers or sewer system, ... and may build and construct underground sewers through private or public property, either within or without the corporate limits of such city_” Section 11-50-52, Code of Alabama 1975, allows any city or town to extend or alter its sewer system when deemed necessary or expedient by the city and that it can exercise “the full rights of eminent domain ... by the proceedings provided by law for acquiring private property for public uses.”

Appellee, the Housing Authority, however, argues that the taking in this case was for a private purpose and therefore in violation of Ala. Const, art. I, § 23 (1901) and Ala. Const, art. XII, § 235 (1901), which require that there must be a public use of property before the right of eminent domain can be exercised and which state “nor shall private property be taken for private use....”

The City seeks to circumvent any conflict with the constitutional provisions by arguing that the legislature’s enactment of the aforementioned Code sections predetermined that the extension of a sewer by a city is unquestionably a “public purpose” and hence outside the scope of Ala. Const, art. I, § 23 (1901).

It is correct to say that the right to condemn is to be determined by the court in light of powers granted by the legislature. Gamble v. State, 289 Ala. 131, 266 So.2d 286 (1972). However, where the legislature has declared a use to be a public one, its judgment should be respected by the courts. Florence v. Williams, 439 So.2d 83 (Ala.1983).

“The general principle is well established that the delegation of the power of eminent domain to a grantee without restriction, carries with it the power to locate the route, and its location or necessity will not be interfered with by the courts if it is made by the utility in good faith and is not capricious or wantonly injurious ... necessity to condemn is a legislative question, not judicial. It is granted by statute to petitioner.... The province of the court is to see that the right is not abused.... ”

Berry v. Alabama Power Co., 257 Ala. 654, 657, 60 So.2d 681, 683 (1952) as quoted in Florence v. Williams, supra.

We perceive the difficulty of decision in this case to be the mistake of the developer Walker .in proceeding with the installation of the sewer upon the property of the Housing Authority without permission of the Authority. Had this condemnation occurred in the usual course of events with an initial proceeding by the City, it is unlikely to have arrived here. When viewed as an original proceeding to extend a sewer line, what objection could there be? Such extension is surely within the specific power granted in §§ 11-50-50, -51, -52. As this court said in Nicrosi v. City of Montgomery, 406 So.2d 951 (Ala.Civ.App.1981), quoting City of Birmingham v. City of Fairfield, 375 So.2d 438 (Ala.1979), “[Cjities have express authority to make all needful drainage improvements.”

In view of this express legislative authority delegated to the City of Alabaster, we follow the ruling of the supreme court in Florence v. Williams, supra, quoting Alabama Electric Co-op, Inc. v. Watson, 419 So.2d 1351 (Ala.1982): “[T]he circuit court could not second guess the City’s decision to condemn, in the absence of clear evidence of capricious, arbitrary conduct on the part of the City.”

We further consider that the requirements of § 18-1-6, as construed in the case of Public Relations Counsel, Inc. v. City of Mobile, 381 So.2d 15, 18 (Ala.1980), have been satisfied; that is, that in order to condemn property already devoted to public use, there must be proved (1) actual necessity, and (2) that the use will not materially interfere with the public use to which the property is already devoted. The actual necessity for constructing or extending sanitary sewers has been expressed in the power granted by the legislature in § 11-50-50. Only clear evidence of a capricious or arbitrary exercise of that power may bar its use. Florence v. Williams, supra. There appears no such evidence, nor did the trial court state so in its judgment.

The evidence as to the noninterference with the use of the property by the Housing Authority is without dispute. There is no interference with either present or contemplated future use. The presence of the extension has been established for more than four years without incident. The issue of the propriety of the developer in proceeding to install the sewer on the property of the Authority without permission is presently before the court in another case.

We consider that any argument as to the condemnation being not for a public use because of the private construction by an individual is answered sufficiently by our decision in Nicrosi v. City of Montgomery, supra. The evidence showed a public need for the extension, though it also benefited the individual developer. There was also evidence that any other approach to serve the area was geographically and economically unfeasible.

In view of the principles stated and the fact that the trial court made no finding of fact, we review its judgment without the benefit of presumption of correctness. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Cain, 387 So.2d 195 (Ala.1980). We find its judgment contrary to law and reverse. We remand for determination of the value of the property sought to be condemned.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur in the result only.

HOLMES, Judge

(concurring in the result).

I concur in the result only.

I also comment that to me the lack of a finding of facts by the trial court is of no import in this case. In the absence of specific findings of facts by the trial court, an appellate court will assume that the trial court made findings necessary to support its judgment, unless such findings would be clearly erroneous. Thomas v. Davis, 410 So.2d 889 (Ala.1982). I do agree, however, that the trial court should not be afforded the presumption of correctness provided by the ore tenus rule. I do not believe the ore tenus rule applies to the issues in this case. See Ala.Code §§' 11-47-171 and 11-50-50 (1975); Florence v. Williams, 439 So.2d 83 (Ala.1983); Berry v. Alabama Power Co., 257 Ala. 654, 60 So.2d 681 (1952). See also Public Relations Counsel, Inc. v. City of Mobile, 381 So.2d 15 (Ala.1980) (relating to § 18-1-6, Ala.Code (1975)).


text:
    Michael WILSON v. BERRY INDUSTRIES COMPANY, INC.
    Civ. 4107.
    Court of Civil Appeals of Alabama.
    May 9, 1984.

      Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellant.
    Edward R. Jackson and J. David Hood of Tweedy, Jackson & Beech, Jasper, for ap-pellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The employee sought workmen’s compensation for a disability to his back.

The parties entered into the following stipulation in open court:

“I think we can go ahead and stipulate that the only issue to be tried to the Court is the issue involved of permanent partial or total disability, or just permanent disability be it partial or total. But that’s the one issue to be tried to the Court. I think the remaining issues can be stipulated and agreed upon: That he was an employee; That they were covered by the act and notice was given. So for the record, all of that can be stipulated and agreed upon, if my understanding is correct, that would be the single issue.”

Additionally, it was agreed that the employee had been previously compensated for five weeks and three days, that the date of the injury was January 13, 1981, and that all of his medical expenses to the trial date of $3,107.27 had been paid. The employee’s average weekly wage also was stipulated.

After an ore tenus contested trial, the circuit court denied compensation to the employee. The trial court was not reasonably satisfied from the evidence that the disability claimed by the employee was a result of the accident suffered while he worked for Berry Industries Company, his employer. The employee appealed and, by most capable counsel, raises three issues. Both sides have provided excellent briefs.

I.

The employee first contends that the trial court’s judgment was contrary to the stipulation of the parties.

Oral or written agreements made in open court by the parties or their attorneys are binding. Rule 49, A.R.A.P.

In Montgomery v. Mardis, 416 So.2d 1042 (Ala.Civ.App.1982), the trial court had decided that Mardis suffered a temporary total disability. In pertinent part, it was determined on appeal as follows:

“We note that at trial the parties, by stipulation, apparently attempted to limit the court’s determination to the question of whether Mardis was permanently disabled. Mardis, in his cross-appeal, argues this point, alleging that the court could not legally make a finding of temporary disability. We do not agree. Although the parties may enter into an agreement to try their case on any theory they choose, Reese Funeral Home v. Kennedy Electric Co., 370 So.2d 1030 (Ala.Civ.App.1979), the court is not bound by the parties’ agreement as to the law to be applied in the case, or by agreements of fact which are contrary to the facts as disclosed by testimony. Garrett v. Mathews, 474 F.Supp. 594 (N.D.Ala.1979), aff'd, 625 F.2d 658 (5th Cir.1980). The extent and type of disability suffered by a workmen’s compensation claimant, and the amount of compensation to be awarded in a given situation, are matters for the court to decide. In this case the trial court was free to make a determination of temporary or permanent disability, or lack thereof.”

416 So.2d at 1042. Here, the trial court found a lack of any disability which resulted to the employee from the January 1981 accident. That decision was one of the authorized solutions as stated in the Montgomery case.

The terms of the stipulation in this particular case did not require that the trial court award compensation to the employee. There was no admission of liability. In view of the language of the stipulation, the trial court could hold as it did and still be consistent with the stipulation.

Consequently, we find no error as to this issue.

II.

While working for a subsequent employer, the employee fell a distance of fourteen feet, thereby breaking his left wrist and right arm and giving him a good general shaking up. The employee was a convict in a work release program, when he had his accident in January 1981. There was evidence that he had spondylolisthesis, which was probably a congenital defect to his back but which had not previously bothered him. The employee argues that the trial court erred in its application of the law to the evidence if it considered either his criminal record or his spondylolisthesis in deciding this ease.

Obviously, pre-existing conditions do not affect an award of compensation if the on-the-job injury combined with the preexisting condition to produce disability. Allen v. Metro Contract Services, Inc., 421 So.2d 1289 (Ala.Civ.App.1982).

Some of the evidence was so uncertain that it was a matter for the trial court to determine whether or not the employee’s pre-existing disease by itself is causing the employee’s back problem, or whether his difficulties resulted from a combination of the spondylolisthesis and either the accident which occurred in January 1981 or his later fall while working for a different employer. Thus, if the trial court determined that the pre-existmg condition was the root of the disability and that the accident while working for Berry Industries did not contribute to it, the employee suffered no compensa-ble disability. There was conflicting evidence, and the trial court resolved the issue in that regard in favor of the employer. In short, while it is not contested that the employee presently suffers from a disability, the trial court was authorized by certain aspects of the evidence to find that the impairment of the employee was not the result of the January 1981 accident while he was working for Berry Industries.

There is nothing in the record that indicates that the trial court penalized the employee by denying workmen’s compensation to him on account of his criminal record.

III.

The employee’s last issue is that the evidence does not support the judgment.

In addition to his later fall and his pre-ex-isting condition which have been previously discussed, the employee testified that one of his medical specialists told him that he was born with the condition that was causing his pain. At least three physicians admittedly informed the employee that he could resume his work. A specialist testified that tests administered to the employee cast doubt upon the validity of the employee’s complaint of pain while he was in a certain position, and that same doctor’s final diagnosis was that the employee had low back pain of unknown etiology with complaints of weakness in the lower extremities which has not been objectively documented. A full-fledged myelogram was negative and the employee had no muscle atrophy. Some of the employee’s complaints were medically inconsistent with each other.

The cause of the employee’s disability was an issue. The payment to him of compensation for five weeks and three days was not an admission of liability. § 25-5-56, Code of Alabama 1975. We are not here concerned with what we would have decided had we collectively tried the case, for the standard of review in workmen’s compensation cases is most narrow and is limited to questions of law and to an examination of all of the evidence to determine if there was any legal evidence which supported the findings of the trial court. If the supportive evidence was before the trial court, an appellate court is required to affirm the trial court’s workmen’s compensation judgment insofar as factual matters are concerned. Neither the weight of the' evidence nor the propriety of the trial court’s finding of fact may be considered. Garner v. Douglas Beasley & Sons Painting, Inc., 432 So.2d 501 (Ala.Civ.App.), cert. denied, 432 So.2d 503 (Ala.1983); Montgomery v. Mardis, supra. The Garner case is clear and positive authority that the testimony in the present case upheld the trial court’s finding that the employee failed to establish a work-related injury.

This case must be 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.


author: BRADLEY, Judge.

text:
    Myra BOLING v. DELCHAMPS, INC., an Alabama Corporation.
    Civ. 4149.
    Court of Civil Appeals of Alabama.
    May 9, 1984.

      S. Robert Brooks, III, Mobile, for appellant.
    Benjamen T. Rowe and R. Boyd Miller of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Mobile, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Myra Boling was injured in January 1978 while performing her duties as an employee of Delchamps, Inc. She was off work from March 10, 1978 until April 3, 1978. Ms. Boling worked until September 1980, when she stopped work because of her injuries.

Ms. Boling filed an action for workmen’s compensation benefits on January 19, 1983. Delchamps filed an answer and a motion for summary judgment. The motion averred that the action was filed more than one year after the injury or more than one year after the last workmen’s compensation payment.

Section 25-5-80, Code 1975, provides in part as follows:

“In case of a personal injury, all claims for compensation under this article and article 2 of this chapter shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable under this article and article 2 of this chapter or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 25-5-88_ Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment.” (Emphasis added.)

After a hearing the trial court granted a summary judgment for Delchamps. Ms. Boling appeals.

Ms. Boling contends here that the trial court erred in granting a summary judgment in favor of Delchamps because there was a material question of fact as to whether the one year statute of limitations had run prior to the filing of her complaint.

She stated in her affidavit that the medical treatment for her injuries had been paid for by Delchamps up until the time of the court action. Ms. Boling did not aver in her complaint, nor did she say in her affidavit, that she had been paid workmen’s compensation benefits for any period other than March 10, 1978 to April 3, 1978.

It is clear from section 25-5-80 that the filing of an action more than one year after the last payment of workmen’s compensation benefits comes too late and must be dismissed. B.F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (Ala.1967).

There is no evidence in the record that compensation benefits were paid for any period after April 3, 1978. Hence, the trial court properly granted summary judgment to Delchamps.

Ms. Boling says, however, that the medical expenses caused by her injury were paid by Delchamps up to the time she filed her action. We have held that the payment of medical expenses does not toll the running of the statute of limitations. Cunningham v. Milstead Pulpwood Co., 366 So.2d 737 (Ala.Civ.App.1979).

There being no evidence that Delchamps paid compensation benefits to Ms. Boling within one year of the filing of her complaint, the trial court did not err in granting summary judgment to Delchamps on the ground that Ms. Boling’s action was not timely filed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Sheila B. FRY v. Jerry W. FRY.
    Civ. 4169.
    Court of Civil Appeals of Alabama.
    May 9, 1984.
    Alice B. Pruett, Gadsden, for appellant.
    Jack W. Torbert, Gadsden, for appellee.
   HOLMES, Judge.

This is a child custody modification case.

The mother and father were divorced in June of 1979. Custody of the couple’s two-year-old daughter, Sarah, was split between the mother and the father on an every-other-month basis. Both of the parties subsequently remarried; the mother to an electrical technician who has one child by a previous marriage and who has since taken a job in Denver, Colorado, and the father to a woman who has no children of her own.

In April of 1983, the mother, Sheila Fry Parris, filed a petition for change of custody and child support, contending that Sarah was not benefiting from the frequent (monthly) changes in custody, that she did not relate well to her new stepmother, and that the parties had not been able to communicate about the child’s problems.

The mother asked that she be given year-round primary custody of Sarah and child support and that she be allowed to take Sarah to Colorado to join her new husband. The father cross-petitioned, denying the material allegations of the complaint and asking that he be given primary custody of the child. The matter was set for a hearing before the domestic referee.

After an ore terms hearing, the domestic referee issued the following order:

ORDER

“This matter coming on to be heard on the petition of the Plaintiff seeking a modification of the Final Divorce Decree, and both parties being present and represented by counsel, and upon hearing the testimony and after due consideration thereof, it is

“ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:

“1. That the Plaintiff, Sheila B. Fry, shall have the permanent care, custody, and control of the minor child, Sarah Fry, beginning August 1, 1983.

“2. That Defendant, Jerry W. Fry, shall have the custody of the minor child during any and all of the summer vacation as he chooses, beginning at least one week after the end of the school year and ending at least one week before the next- school year begins.

“3. That Defendant shall have visitation rights with the minor child for one week at Christmas of each year, the dates to be agreed upon by the parties, with the visit to include Christmas Eve and Christmas Day in even numbered years. The Plaintiff shall have the minor child on Christmas Eve and Christmas Day in odd numbered years.

“4. That Defendant shall have visitation at any other time as the parties may agree.

The next day, without giving either party an opportunity to object, the circuit court adopted the referee’s order as its own. The husband promptly objected and asked the circuit court to set aside its order so that he might file objections to the referee’s order. Following a hearing at which evidence concerning modification was presented, the court reversed its earlier order and vested primary custody in the father. The mother appeals and we affirm.

The mother, through able counsel who has favored this court with an excellent brief, raises three issues on appeal; 1) that the circuit court was required to accept the referee’s findings unless clearly erroneous, 2) that the husband failed to meet his burden of proving that the referee’s findings were clearly erroneous, and 3) that the trial court’s award of custody to the father was clearly erroneous. Because of our resolution of the first issue, we may bypass the second in favor of the third.

Rule 53 of the Alabama Rules of Civil Procedure governs the reference of matters to a master. Under 53(a) “master” is defined to include a referee. Under 53(e) the master must prepare a report upon the matters submitted to him. If specifically required to do so, he must include findings of fact and conclusions of law in his report. In non-jury actions, the master’s findings of fact must be accepted by the trial court unless clearly erroneous. This is the provision upon which the mother relies, as the master had recommended that she be given primary custody.

Although the parties have not cited and we have been unable to find any Alabama decisions dealing with similar circumstances, we find that the master’s report in this case is not governed by the “clearly erroneous” rule of 53(e)(2) as the master made no express findings of fact. See 5A J. Moore, Moore’s Federal Practice § 53.-12[1] (2d ed. 1984).

The brief order, set out above, which the referee entered, in effect merely recommended that custody be given to the mother and that certain visitation and support rights be set. As it is the trial judge, not the master, who must enter the actual judgment, the “clearly erroneous” rule cannot be used to prevent the trial court’s searching review of the master’s recommendation or of ultimate findings which are in reality conclusions of law or at least mixed questions of law and fact. Id. at § 53.12[4]. We find no error in the trial court’s action in taking evidence and setting aside the referee’s order.

The second issue is whether the trial court erred in granting primary custody to the father. Both of the parties agreed that a more consistent custody arrangement was necessary, as Sarah had just turned six years of age when the matter was heard and she would be entering grade school in the fall. (The every-other-month custody arrangement was also complicated when the mother’s new husband accepted a new job out of state.)

The standards which govern child custody cases were recently repeated in Mansell v. Mansell, 437 So.2d 588, 589 (Ala.Civ.App.1983):

“In a child custody case, the issue of paramount importance is the best interest of the child. Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981). The determination of the custody issue is addressed to the sound discretion of the trial judge, and when such discretion is exercised after an oral hearing of the evidence, the decision will not be set aside unless it is so contrary to the evidence as to be clearly and palpably wrong. Fassina v. Fassina, 401 So.2d 113 (Ala.Civ.App.1981); Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981). Furthermore, when the trial court must resolve conflicts in the facts testified to, it is not for this court to substitute its judgment for that of the trial court. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).”

In the present case, the evidence in the most part tended to establish that either the mother and her new husband or the father and his new wife could provide caring and loving homes for Sarah and that both sets of parents were very fit to assume the primary responsibility for her upbringing. Under such circumstances, we will not attempt to substitute our judgment for that of the trial judge who had the added advantage of observing the live testimony. The judgment below is due to be affirmed. The father has filed with this court a motion to dismiss the appeal. The motion is denied.

AFFIRMED.

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


text:
    Edna V. PIPKIN v. David LUCAS, Jr.; David Lucas.
    Civ. 4184.
    Court of Civil Appeals of Alabama.
    May 9, 1984.

      S. Robert Brooks, III, Mobile, for appellant.
    Lucian Gillis, Jr. of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellees.
   WRIGHT, Presiding Judge.

This case arises from an accident between an automobile operated by. defendant Lucas, Jr. and an automobile occupied by plaintiff Pipkin. The automobile operated by Lucas, Jr. was owned by Lucas, Sr. Defendants are insured by State Farm Mutual Automobile Insurance Company, also an original defendant.

Pipkin and her husband brought suit against defendants Lucas, alleging personal injuries, loss of earning capacity and loss of consortium, and against State Farm, alleging failure to pay plaintiffs benefits due as a result of the accident. State Farm moved for a summary judgment, which was granted. Subsequently the Lucases moved to enforce a settlement agreement allegedly entered into on their behalf between a claims representative for State Farm and the attorney of record for plaintiffs. The trial court granted the Lucases’ motion and entered a final order in which it found the following pertinent facts.

On March 15, 1983, the Lucases, through their claims representative, made an offer to settle the case for $8,500; and the offer was accepted on behalf of plaintiffs by their attorney of record. Subsequently, State Farm forwarded a draft in the amount of $7,889.06 to plaintiffs’ attorney. The attorney returned the draft with a letter stating that plaintiffs had decided not to accept the agreed-upon figure. The attorney then withdrew his representation of plaintiffs. Plaintiffs obtained new counsel who opposed defendant’s motion to enforce settlement, and who now represents plaintiffs on appeal.

The question on appeal is whether plaintiffs’ original attorney was authorized to negotiate and enter a binding settlement on behalf of plaintiffs. Plaintiffs contend that he lacked such authority and therefore they are not bound by any agreement made between him and State Farm.

We find the ease of Hawk v. Biggio, 372 So.2d 303 (Ala.1979), dispositive of this case. In that case the court noted that § 34-3-21, Code of Alabama 1975, provides that “[A]n attorney has the authority to bind his client in any action or proceeding, by any agreement in relation to such case.... The statute does not enlarge the duties of an attorney, nor give him authority to compromise the claim of his client....” Hawk v. Biggio, supra at 304, quoting Senn v. Joseph, 106 Ala. 454, 17 So. 543 (1895).

Whether an attorney is authorized to bind his client is a question of fact to be determined by the fact finder, which is the trial judge in this case. Such was the common law. As in Hawk v. Biggio, supra, the trial court in this case did not specifically find that plaintiffs’ attorney was authorized to make the settlement; however, such a finding is implicit in the trial court’s judgment.

“The rule is that, where the trial judge does not make an express finding of a particular fact, this court will assume that he found that fact if the finding of it was necessary to support his judgment, unless the finding would be clearly erroneous and against the great weight and preponderance of the evidence. See, Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975).”

372 So.2d at 304.

We note that as this case was heard ore tenus, it comes to this court clothed with a presumption of correctness. In view of the ore tenus rule and the decision in Hawk v. Biggio, supra, we hereby affirm the trial court’s judgment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The remaining $610.94 had been previously advanced to plaintiffs.


text:
    James Arnold LAWLER v. Glenda Lawler RAY.
    Civ. 3924.
    Court of Civil Appeals of Alabama.
    May 16, 1984.
    William M. Russell, Jr., Tuskegee, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil contempt case which arose from Lawler’s (the father’s) failure to pay court ordered child support.

In prior litigations between the parties the circuit court had attempted to obtain compliance with its child support judgments by many means, including adjudications of contempt and incarceration of Lawler in the county jail, but his delinquency continued and the amount of his arrear-age consistently increased in spite of all orders and efforts of at least three fine trial judges. The present litigation culminated in the circuit court’s holding in a very explicit and well-written judgment that the father was in contempt. He was ordered held in jail until he purged himself of contempt by paying in full all of his delinquency.

There is no question nor doubt but that Lawler was in contempt of the circuit court for his failure to support his child in the amount of $50 each week as had been previously ordered by that trial court on several occasions. He had the weekly means of making his periodic payments had he possessed the least desire or inclination to do so. Admittedly, his arrearage now exceeds $5,000.

The only issue raised in this court is whether Lawler, at the time of his trial, had the ability to comply in any lawful manner, with the latest contempt judgment by making payment in full of his total delinquency. The mother has not favored us with a brief.

The only defense to conditional punishment as was here imposed is the inability of the contemnor to comply with the purge conditions, i.e., to pay. Williams v. Stumpe, 439 So.2d 1297 (Ala.Civ.App.1983).

Lawler swore that all of the property owned by him consists of a 1967 Buick automobile which he recently purchased for $150 and his welding tools which he uses in his work. He possesses no other assets. Lawler does not own any land or a home and has no bank account. He swore that he has no assets that can be used to pay his back support either by borrowing money against them or by selling them. He stated that his credit is poor and he is not able to borrow any money. The above testimony of the father was not controverted.

Mrs. Ray, who is Lawler’s former wife and the mother of the child, testified that she knew that he could not pay the delinquency of over $5,000 on the date of the trial or he would have done so or attempted to do so.

“In contempt proceedings when the accused proves that he is financially unable to comply with the court’s order the burden then falls on the shoulders of the complainant to prove beyond a reasonable doubt that the accused is financially able to comply with the decree. Sewell v. Butler, 375 So.2d 800 (Ala.Civ.App. 1979).”

Ex parte Griggs, 435 So.2d 103, 105 (Ala.Civ.App.1983). Accord, Zeigler v. Butler, 410 So.2d 93 (Ala.Civ.App.1982).

Lawler met his required burden of proof that he is unable to pay the arrear-age and the mother failed to prove in any manner or degree that he could pay that past-due child support. To the contrary, she admitted his inability to pay in that regard. Accordingly, this case in that respect is in the same posture as Zeigler v. Butler, supra, and we have no alternative but to reverse and remand this case to the circuit court. On remand, the circuit court is authorized, if it so desires, to adjudge Lawler to have been in contempt of court, but Lawler must be allowed to purge himself in a manner that is within his means and ability to comply with it.

This court is certainly cognizant of, sympathetic with, and fully relates to the total frustration and utter exasperation which has been experienced and expressed by both the learned trial court and the mother of the child because of Lawler’s consistent previous contumacious conduct; however, the law binds our hands and we have no alternative but to reverse and remand this case.

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

REVERSED AND REMANDED.

All the Judges concur.