author: ADAMS, Justice.

text:
    Ex parte James W. HARRINGTON, Jr. (In re Margaret E. HARRINGTON v. James W. HARRINGTON, Jr.)
    83-28.
    Supreme Court of Alabama.
    April 6, 1984.
    George P. Howard and G. Houston Howard, II of Howard, Dunn & Howard, and Robert B. Reneau of Reneau & Reneau, Wetumpka, for petitioner.
    Charles H. Volz, Jr. of Volz, Capouano, Wampold & Sansone, Montgomery, for respondent.
   ADAMS, Justice.

Margaret E. Harrington filed a tort action against her husband James W. Harrington for $5,000,000.00 in the Circuit Court of Montgomery County on June 22, 1983. However, on April 14, 1⅞83, Margaret Harrington had filed a divorce action in the Circuit Court of Elmore County, in which she alleged that:

On or about, to-wit, February 4, 1983, James W. Harrington, Jr., the Husband, willfully and wantonly attacked the Wife, shooting her with a gun, causing severe personal injury to her person, rendering her a paraplegic, permanently paralyzed from the waist of her body to her feet. She was caused to be hospitalized for a long period of time and caused to suffer excruciating and severe mental and physical pain and anguish and the prognosis is that she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for care, maintenance and treatment.

In her tort action, Margaret Harrington alleged:

On or about, to-wit, the 4th day of February, at or near, to-wit, County Road 29 near Powell’s Grocery in Elmore County, Alabama, the Defendant willfully or wantonly shot the Plaintiff with a gun.
As a proximate consequence of the Defendant’s willful or wanton misconduct, the Plaintiff was caused to suffer the following injuries and damages:
Plaintiff was seriously wounded and was caused to be hospitalized for a long period of time and has been permanently and severely injured and paralyzed from the waist down, she suffers severe pain and mental anguish and will continue to suffer severe pain and mental anguish and will be paralyzed for the rest of her natural life, she has been caused to incur large expenses for hospital, doctor and other medical treatment for her injuries, she has been permanently and severely injured and paralyzed and is unable to enjoy the normal pursuits of life and happiness, she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for her care, maintenance, treatment and support, and she will continue to suffer excruciating mental and physical pain and anguish for the rest of her natural life.

James Harrington filed a motion to dismiss Margaret Harrington’s tort action in the Montgomery Circuit Court, claiming that plaintiff had previously filed a case in the Circuit Court of Elmore County, which is presently pending, which alleges substantially the same facts and seeks substantially the same relief, and that venue was improper in Montgomery County.

After an ore terms hearing on August 19, 1983, the Honorable Joseph D. Phelps, Circuit Judge of Montgomery County, entered an order denying defendant’s motion. Defendant then filed this petition for writ of prohibition, mandamus, or other relief, invoking the supervisory powers of this court under Amendment 328, § 6.02, to the Alabama Constitution and § 12-2-7 of the Alabama Code.

Subsequent to the filing of defendant’s petition for mandamus, defendant filed a motion in limine in the Circuit Court of Montgomery County, in which he alleged that he had “struck all allegations of improper venue from both his answer and counterclaim,” and requested the Circuit Court to instruct the plaintiff and her counsel not to mention, refer to, interrogate concerning or attempt to convey to the jury in any manner the fact that improper venue actions had been struck from the answer and counterclaim. The case proceeded to trial and a jury verdict in favor of the plaintiff Margaret E. Harrington was returned on the 1st day of March 1984.

As a result of the actions of the defendant concerning the venue allegations in his motion, Margaret Harrington has asked us to dismiss James Harrington’s petition for mandamus on the ground that her husband’s actions have rendered his petition filed with us moot. Plaintiff’s petition for writ of mandamus, prohibition, or other relief is due to be denied.

In order for defendant Harrington to prevail on his petition for writ of mandamus or other relief, he is obligated to convince this court that Margaret Harrington is or was pursuing the same cause of action in two distinct courts, and/or that venue was not proper in Montgomery County because in truth and fact James Harrington was a permanent resident of Elmore County-

We will address petitioner’s first contention first. Fortunately, we have been provided with excellent briefs by the parties. Petitioner relies heavily on our decision in Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). The petitioner quotes the following from Terrell:

In Sessions v. Jack Cole Co., 276 Ala. 10 at 12, 158 So.2d 652 at 654 (1963), this court, quoting with approval from Chappell v. Boykin, 41 Ala.App. 137, 140, 127 So.2d 636, 638 (1960), cert. denied 271 Ala. 697, 127 So.2d 641 (1961), interpreting the rule against splitting one’s cause of action, observed that “a ‘cause of action' grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act.” This court stated also that application of this rule is guided by “whether a judgment in one suit would be res judicata of the other.” Sessions, 276 Ala. at 12, 158 So.2d at 654.
Plaintiffs state and federal actions arise from the same alleged fact situation. Although plaintiff’s state court action was instituted on different theories of recovery, these theories are not different causes of action in the context of the rule against splitting a cause of action. A cause of action may give rise to one [or] more theories of recovery. It has been recognized that where a single wrong leads to an action under state law and leads to an action under federal law, there is but one wrong and one cause of action.
Id. at 339.

Petitioner states that the wrongful act in both the Montgomery County and the El-more County cases is the shooting of the plaintiff. He further contends that the only difference in the two actions is the form of relief sought in the two cases. In Elmore County, the relief sought is an award of “any and all real or personal property in which the husband may own an interest.” In Montgomery County, the relief sought is $5,000,000.00. Petitioner argues that since the form of relief does not determine whether there are two causes of action, and there was only one wrong, Mrs. Harrington’s suit in Montgomery County is prohibited by our decision in Terrell, and by Code 1975, § 6-5-440.

In other words, petitioner contends that if there has been an assault and battery on a wife and a divorce action is filed, the wife should not be allowed to file a separate suit for assault and battery, but should be required to join her claim of assault and battery in her divorce action. This is true, he says, since with the merger of law and equity, “[a] party asserting a claim to relief ... may join ... as many claims either legal or equitable, or both, as he has against an opposing party.” A.R.Civ.P. 18; Underwood v. Jarvis, 358 So.2d 731, 736-37 (1978).

But, as ingenious as petitioner’s argument is, we are constrained to agree with Mrs. Harrington that the divorce action in Elmore County is simply not the same cause of action as her action in Montgomery County for assault and battery. We agree with her that the issues before the Elmore County court include the following:

(1) divorce — termination of the marriage res
(a) incompatibility
(b) irretrievable breakdown of the marriage
(c) actual violence
(d) habitual drunkenness
(2) property division
(3) alimony
(4) child custody and support
(5) attorney’s fees

In the tort action in Montgomery County, the issues involved are:

(1) the nature of the wrong committed by defendant;
(2) the amount of compensatory damages recoverable by plaintiff;
(3) the amount of punitive damages recoverable by plaintiff;
(4) a determination by a jury of all of the factual issues set forth.

In order to determine whether causes of action are the same, the courts have developed certain tests. Two of these tests are: (1) res judicata, and (2) same evidence test. We addressed both of these tests in our decision in Braggs v. Jim Skinner Ford, Inc., 432 So.2d 466 (Ala.1983). There, plaintiff filed a suit based on Mini-Code and Truth-In-Lending Act claims. Subsequently, plaintiff filed a suit alleging fraud and misrepresentation and breach of warranty. There we held that since substantially different evidence supported each of plaintiff’s actions, suit on the Mini-Code and Truth-In-Lending Act claims did not necessarily bar plaintiff’s claims for fraud and misrepresentation and breach of warranty. We are of the opinion that the reasoning of that case applies with equal force in the instant case. The mere fact that plaintiff included in her divorce action a charge that defendant assaulted her does not make the divorce action a cause of action identical to the assault and battery action brought in Montgomery County. To find persuasion in that argument would mean that we would have had to conclude, in Braggs, that suit under the Truth-In-Lending Act barred a suit for fraud and misrepresentation and breach of warranty. Therefore, the petition for writ of mandamus and prohibition based on identical causes of action is due to be denied.

We now address petitioner’s second issue, namely, that he was a permanent resident of Elmore County, and, therefore, was not properly sued in Montgomery County because the tort sued for did not occur in Montgomery County and he did not reside there. The trial judge took testimony on this issue and concluded that the petitioner was a resident of Montgomery County at the time the tort action was filed. We have reviewed the testimony offered at the hearing, including Mr. Harrington’s testimony that he admitted that he had lived in Montgomery County and moved to Elmore County for four years and then moved back to Montgomery County. We also note that there was evidence that in March 1982, Mr. Harrington moved into the Grove Court apartments in Montgomery County, signed a lease, and paid rent there. Furthermore, he movéd from there to The Meadows apartments in Montgomery and gave that address to the operators of the Grove Court apartments. Where a trial judge hears ore terms evidence, his findings are presumed to be correct and will not be disturbed unless palpably wrong. Stallworth v. First National Bank of Mobile, 432 So.2d 1222, 1224 (Ala.1983).

We are of the opinion that the evidence quoted above, together with further evidence in the record, leaves no doubt that the trial judge was well within his authority in determining that petitioner was, and is, a resident of Montgomery County.

Therefore, as to petitioner’s second issue, as well as the first, the writ of mandamus must be denied.

WRIT DENIED.

TORBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    John Roger WILSON, Jr. v. Kathryn Lynne Hyde WILSON.
    Civ. 3498.
    Court of Civil Appeals of Alabama.
    June 8, 1983.
    Rehearing Denied July 13, 1983.

      Vaughan Drinkard, Jr. of Drinkard & Newton, Mobile, for appellant.
    Herndon Inge, III, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The father, John Roger Wilson, Jr., and the mother, Kathryn Lynne Hyde Wilson were divorced on August 31, 1982. The divorce decree granted custody of the parties’ two minor children to the mother. The father appeals the custody provision.

The first issue raised on appeal is whether the trial court erred by conducting an in camera interview with the minor children of the parties, outside the presence of counsel and without making a record. The father requested the in camera interview, but specifically requested that a court reporter be present to record the interview. The mother objected to the interview, but does not appeal.

The in camera questioning of children in a child custody proceeding was addressed by the supreme court in Ex parte Berryhill, 410 So.2d 416 (Ala.1982). Based on the Bill of Rights and Rule 43, A.R.Civ.P., the court rules that such an examination, without the consent of the parties, was error. The court said:

“We are aware that the practice exists among certain trial courts to conduct private conversations with minors in chambers with the consent of opposing counsel. In the absence of waiver or consent, however, the private interview by the trial court cannot be condoned. To sanction such a procedure would fly squarely in the face of the constitutional right of litigants to a public trial.”

410 So.2d at 418.

In the present case, the father not only consented to the in camera interview; he requested it. The father does not claim on appeal that the court committed error in granting the interview; he claims error in the court’s failure (although inadvertent) to comply with his request that a court reporter be present.

A situation similar to the present one was addressed in Stinnett v. Gilchrist, 419 So.2d 238 (Ala.Civ.App.1982). There the father of minor children also claimed that the trial court had committed error in conducting an in camera interview off the record. Both parties to the proceeding consented to the interview. The father contended that he was not cognizant of the fact that it would not be of record. Information obtained from the interview was made part of the record by a statement of the trial court in summary of the interview. This court held that the proceeding “comported with due process as defined by our supreme court in Ex parte Berryhill.” 419 So.2d at 239.

The present case is distinguished from Stinnett in that the father specifically requested that a record be made of the interview; no such request was made in Stinnett. Due process does not require that the proceedings be recorded, but the question remains of the effect of the trial court’s failure to honor the father’s request. The court should have had a reporter present (See § 12-17-275, Code of Alabama 1975), according to the request, but was the failure to do so reversible error?

We conclude not. As in Stinnett, the court in the present case made a statement summarizing the interview for the record. In that statement, the court made it clear that nothing had been said by the children in preference to either parent. We find ample evidence in the record to support the court’s finding without considering the in camera interview. Had there been a record made of the interview, it would not have been available to the parties prior to judgment. We perceive no benefit to appellant of an untranscribed record, except possibly for argument on appeal. The rights of confrontation, cross-examination and public trial, protected by Berryhill were waived. The failure of the trial court was therefore without injury to the father and does not require reversal under Rule 45, A.R.Civ.P. .

We do not approve of the grant of the in camera interview over the objection of the mother, but the mother does not appeal the court’s action.

The final issue is whether the court abused its discretion in granting custody of the minor children to the mother. The father claims the mother has a history of mental and emotional illness and that it is against the children’s best interest to grant her custody. He claims that she is not a fit and proper custodial parent.

The trial court has broad discretion in determining the custody of children after divorce, subject to the requirement that the award protect the best interests and welfare of the children. Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.), cert. denied, 355 So.2d 722 (Ala.1978). The record indicates the mother has had some serious emotional difficulties. We consider relation of the details unnecessary. However, the record also indicates that the mother is of high intelligence and has been the primary custodial parent both before and after the parties’ separation. The children are also of high intelligence and apparently well adjusted. There is no substantial evidence that the mother has neglected her children.

In light of the evidence and the principles of law discussed above, we find no abuse of the trial court’s discretion. The judgment is affirmed.

Appellee’s request for attorney fees on appeal is granted in the amount of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BEATTY, Justice.

text:
    Ex parte John Roger WILSON, Jr. (Re John Roger WILSON, Jr. v. Kathryn Lynn Hyde WILSON).
    82-1022.
    Supreme Court of Alabama.
    April 6, 1984.

      Vaughan Drinkard, Jr. of Drinkard & Sherling, Mobile, for petitioner.
    Herndon Inge, III, Mobile, for respondent.
   BEATTY, Justice.

This Court granted certiorari to determine whether the Court of Civil Appeals, 450 So.2d 102, correctly found that the trial court did not commit error by conducting an in camera, off the record interview of minor children in a custody dispute. We reverse and remand for further proceedings.

The children’s father, John Roger Wilson, Jr., and mother, Lynn Hyde Wilson, were granted a divorce on August 31, 1982. The trial court awarded custody of the two minor children to Mrs. Wilson.

During the divorce proceedings, the trial court held an in camera interview with the children at Mr. Wilson’s request. The court failed to comply with Mr. Wilson’s specific request that a court reporter be present, but proceeded to conduct the interview off the record. The trial court subsequently made a statement summarizing that interview for the record, stating that the children had said nothing indicating a preference for either parent.

After the court granted custody of the children to the wife, Mr. Wilson appealed that ruling to the Court of Civil Appeals, alleging, among other things, that the trial court erred in conducting the in camera interview of the children off the record. Having consented to the interview, he did not claim that the trial court erred by holding it. Rather, he claimed error because the court failed to comply with his request that a court reporter be present. The Court of Civil Appeals stated that the trial court should have had a court reporter present during the interview, but concluded that the failure to do so was not reversible error:

“Due process does not require that the proceedings be recorded....
“... We perceive no benefit to appellant of an untranscribed record, except possibly for argument on appeal. The rights of confrontation, cross-examination and public trial, protected by Berryhill were waived. The failure of the trial court was therefore without injury to the father and does not require reversal under Rule 45, A.R.Civ.P.”

Petitioner, Mr. Wilson, contends that that statement conflicts with this Court’s holding in Ex parte Berryhill, 410 So.2d 416 (Ala.1982), with constitutional due process requirements, and with Code of. 1975, § 12-17-275. Accordingly, Wilson requests this Court to reverse the judgment of the Court of Civil Appeals and to order that court to reverse and remand this case to the trial court.

The issue before this Court is whether the Court of Civil Appeals erred in holding that the trial court did not err to reversal by conducting the in camera interview of the Wilsons’ minor children without the presence of a court reporter, when Mr. Wilson’s consent to the interview was expressly conditioned upon the presence of a court reporter.

In Berryhill, this Court considered an analogous issue, whether a court may conduct an in camera interview of a minor child in a custody dispute without the consent of counsel. In that decision, we held:

“We are aware that the practice exists among certain trial courts to conduct private conversations with minors in chambers with the consent of opposing counsel. In the absence of waiver or consent, however, the private interview by the trial court cannot be condoned. To sanction such a procedure would fly squarely in the face of the constitutional right of litigants to a public trial. Nothing in Alabama law allows ‘private’ trials. That custom went out with the abolishment of the Star Chamber, and the right to a public trial was one of the rights wrested from the British Crown and included in our Bill of Rights which remains the fundamental law of our land. The fundamental principle is that the decision of a court must be based on evidence produced in open court lest the guaranty of due process be infringed.” (Emphasis in original.) 410 So.2d at 418.

In the case at bar, Mr. Wilson undoubtedly waived his due process rights of confrontation and cross-examination by consenting to the in camera interview. The question here, however, is whether, under these facts, Mr. Wilson had a right, in order to avoid the impairment of the right to appellate review, to a complete record. We hold that the Court of Civil Appeals erred in holding that due process does not require that an in camera interview of minor children in a custody dispute be recorded when the consent for those proceedings was contingent upon the court reporter’s presence at the interview. The Court of Civil Appeals relied upon Stinnett v. Gilchrist, 419 So.2d 238 (Ala.Civ.App.1982), in support of its holding that the trial court’s summarized statement of the in camera interview provided adequate information for the record. In that decision, however, the party’s consent to the interview was not conditioned upon the court reporter’s presence.

Some jurisdictions hold that it is not necessarily'improper for a trial court to conduct a private interview off the record, even in the absence of consent or waiver, when the court either states for the record a summary of the child’s testimony, or the court does not make that testimony the primary basis for the custody decision. See, e.g., Seniuta v. Seniuta, 31 Ill.App.3d 408, 334 N.E.2d 261 (1975); Jenkins v. Jenkins, 125 Cal.App.2d 109, 269 P.2d 908 (1954). However, the decisions from jurisdictions such as these are not persuasive in view of our decision in Berryhill that absent consent, waiver, or acquiescence, a private interview is not proper.

Missouri statutory law is similar to the rule expressed by this Court in Berryhill that counsel must be permitted to attend an in chambers interview with minor children. The Missouri Supreme Court, moreover, has held that error is presumed if a trial court interviews children in chambers without causing a record to be made. Williams v. Cole, 590 S.W.2d 908 (Mo.1979), accord, Duncan v. Duncan, 528 S.W.2d 806 (Mo.App.1975). The Williams decision was based upon a Missouri statute which provides:

“The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shall cause a record of the interview to be made and to be made part of the record in the case.” Mo.Rev.Stat. § 452.385 (1975).

The Missouri court articulated two reasons for the requirement of a record. First, the trial court’s consideration of the child’s unrecorded testimony would be improper as not being supported by the record. Second, the absence of a record would preclude “meaningful review with respect to what extent, if any, the trial court relied upon the child’s testimony in determining ... the best interests of the child.” 590 S.W.2d at 911.

The court in Williams also discussed the issue of waiver, because the attorneys for both parties were present and did not object to the court’s interviewing the children off the record. The discussion on that issue is not relevant to the present case, however, because waiver is not in issue here.

The Missouri statute relied upon in Williams is more specific than our Alabama statute providing 'for records of court proceedings. The Alabama statute is Code of 1975, § 12-17-275:

“The official court reporter shall attend in person ... the session of court held in the circuit for which he is appointed, and in every case, where directed by the judge or requested by a party thereto, he shall take full stenographic notes of the oral testimony and proceedings _” (Emphasis added.)

Under Missouri’s statute, which deals particularly with in camera interviews of children, the court must cause a record to be made of the interview. Alabama’s statute does not specifically provide for in camera interviews, nor is the court solely responsible for having a record made. However, it is clear under our statute that when a party requests the attendance of the court reporter he is entitled to a record of the proceedings.

The Missouri court’s reasoning is persuasive. To reiterate, it would be improper to allow a court to consider evidence that is not in the record, unless a party has waived his right to have a record made. Additionally, if no record is made of the child’s testimony in chambers, an appellate court would be unable to determine exactly to what extent, if any, the trial court considered that testimony. Accord, Walker v. Walker, 40 Ohio App.2d 6, 317 N.E.2d 415 (1974) (“Without some record of the relevant testimony adduced at trial, appellant’s right to appeal is, for all practical purposes, eliminated.”).

Under Berryhill, a trial court cannot conduct a private in camera interview with minor children in a custody dispute without the consent of the parties, and under § 12-17-275, a party requesting a record is entitled to have the court reporter present. It follows that a party giving consent for a private in camera interview attended by a court reporter has the right to a record so made.

Thus, the trial court’s failure to comply with Mr. Wilson’s request to have the court reporter present during the interview constituted prejudicial error, and the Court of Civil Appeals erred in reaching a contrary result. Therefore, the judgment of the Court of Civil Appeals is reversed, and this case is remanded to that court for an order remanding this cause to the trial court for further proceedings.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.

      . Mr. Wilson alleges in brief that he did not request the interview; however, he did not file a corrected statement of facts in compliance with Rule 39(k), A.R.A.P. Therefore, this Court is bound by the facts stated in the opinion of the Court of Civil Appeals. One of those facts is that Mr. Wilson requested the interview, but that does not affect the determination of the issue before this Court.


text:
    John Roger WILSON, Jr. v. Kathryn Lynne Hyde WILSON.
    Civ. 3498.
    Court of Civil Appeals of Alabama.
    May 2, 1984.
   WRIGHT, Presiding Judge.

Whereas, on April 6, 1984, the Supreme Court of Alabama, 450 So.2d 104, entered judgment reversing the judgment of this court, 450 So.2d 102, entered June 8, 1983, and therein remanded the case with direction.

It is accordingly the judgment of this court that the judgment of the trial court is reversed and the case remanded for further proceedings therein at the cost of respondent. Such proceedings being to reconsider the evidence heretofore presented, together with a recorded in camera interview of the children in the presence of counsel, and with their consent, together with any other matter deemed proper by the court.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    FOUR SEASONS v. STATE of Alabama. CEDAR BEND, LTD. v. STATE of Alabama.
    Civ. 3787, Civ. 3788.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Aug. 24, 1983.
    J.A. Keller of Keller & Cochran, Florence, for appellant.
    Lavern Tate, Dist. Atty., 11th Jud. Cir., and Michael T. Jones, Asst. Dist. Atty., Florence, for appellee.
   HOLMES, Judge.

These are appeals from the circuit court’s action granting summary judgment against appellant-taxpayers concerning the Board of Equalization’s property valuations for 1982. The taxpayers appeal.

The facts of this case are not in dispute.

Taxpayers were dissatisfied with the Board of Equalization’s property valuations. On July 9, 1982, taxpayers notified the Board that they were protesting the valuations. A hearing was held on August 19, 1982 and was attended by taxpayers. Thereafter, the taxpayers kept in frequent contact with the Board and the tax assessor concerning the status of their protest.

On October 20, 1982, the tax assessor mailed notice to taxpayers informing them that “the Board of Equalization has this date concluded its review of your pro-test_” The notice also informed appellants that any appeal from the Board’s ruling would be to the circuit court in accordance with Ala.Code § 40-3-25 (1975) which requires that appeals be taken within thirty days from the Board’s final decision.

Taxpayers filed notice of appeal with the circuit court on November 18,1982. Thereafter, the State of Alabama filed a motion for summary judgment setting forth as grounds the fact that the appeal was not filed within thirty days of the Board’s final decision. The State attached an affidavit from the tax assessor stating that the Board had adjourned on October 4, 1982. In addition, all parties stipulated at the hearing on the summary judgment motion that the Board adjourned on October 4, 1982, and held no further meetings that year. Therefore, the date contained in the notice mailed by the tax assessor was incorrect.

After due consideration, the trial court granted the State’s motion for summary judgment. From that action, taxpayers through able counsel who made an excellent presentation at oral argument, take this appeal. We find no error requiring reversal and affirm.

Taxpayers contend on appeal that the trial court erred in granting summary judgment by not applying the doctrine of equitable estoppel to the facts of this case. In other words, appellants contend that the State of Alabama should be estopped from asserting the thirty day limitation of § 40-3-25 due to taxpayers’ reliance on an incorrect date contained in the written notice from the tax assessor, as mentioned above.

In Alabama the doctrine of equitable estoppel is, as a general rule, not applicable to the State or to State-created agencies. Marsh v. Birmingham Bd. of Education, 349 So.2d 34 (Ala.1977). In regard to matters of taxation, the State is acting in its governmental capacity in the assessment and collection of taxes and it cannot be estopped with reference to these areas. Community Action Agency of Huntsville, Madison County, Inc. v. State, 406 So.2d 890 (Ala.1981).

Be that as it may, it is the taxpayers’ argument that they are not seeking to estop the State in the assessment or collection of taxes; rather, taxpayers contend that the State should be estopped from asserting the statute of limitations due to the misrepresentation of the date of the Board’s final decision. This court is not persuaded that the doctrine of estoppel should be extended in this instance.

State v. Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So.2d 426 (1951), is similar factually to the case at bar. In Maddox, the taxpayer relied on statements made by the Department of Revenue of the State of Alabama concerning the assessment of sales tax on certain items. These statements were incorrect and, consequently, the taxpayer had to pay additional taxes. The Supreme Court of Alabama held that the doctrine of estoppel cannot be applied to the State in tax matters. Although Maddox speaks only to the assessment and collection of taxes, there is additional authority that should be considered in connection with the law on estoppel.

The right to appeal in tax cases is strictly statutory. State v. Colonial Refrigerated Transportation, Inc., 48 Ala.App. 46, 261 So.2d 767 (1971), affirmed, 288 Ala. 433, 261 So.2d 772 (1972). Furthermore, the perfection of appeal within the time limited by statute is jurisdictional. Underwood v. Underwood, 162 Ala. 553, 50 So. 305 (1909). The effect of allowing estoppel under the facts of this case would be to extend the time for appeal beyond the statutory limit. This could conceivably impact indirectly upon the assessment and collection of taxes. In view of the above, we do not believe estoppel can be used to accomplish indirectly that which cannot be done directly.

In addition, it appears, although we do not specifically so decide, that in this instance the actions of the tax assessor should not be imputed to the Board of Equalization. The tax assessor serves as the secretary of the county board of equalization according to statute, but he does not have any authority on the board except that conferred by statute. See Ala.Code § 40-3-6 (1975). This court is not aware of any authority, nor is any cited, that indicates that actions of the tax assessor, such as we have now before us, can be binding on the Board of Equalization.

A review of the record fails to reveal any evidence that the Board authorized the tax assessor to inform the taxpayers of the date of the Board’s final decision. In fact, unfortunately, we cannot find any authority that provides for giving notice of the date of the Board decisions when an objection, such as we have in this instance, has been made to the original assessment. We do note, however, that the tax assessor, as secretary of the Board, has the most “contact” with the public in regard to instant procedures. See Ala.Code §§ 40-3-20, -21, and -25 (1975).

We further note that it appears to this court that the statutory scheme in view of the above is deficient and, perhaps, legislative action might be appropriate.

There is nothing in the statutes that provides for notice in the present situation. In other words, the taxpayer objects to the Board’s valuation, a hearing is held, and thereafter the Board makes its final decision which taxpayers wish to appeal to the circuit court. There is no requirement in the statutes that notice of the Board’s final decision be given to the taxpayer. The statutory scheme for appeals of the Board’s decisions is silent in that regard. The only requirement is that the appeal be taken within thirty days of the Board’s final decision.

Section 40-3-25 specifically states that all appeals from the rulings of the Board “shall be taken within 30 days after the final decision of said board_” The su-

preme court has determined that the decisions of the Board become final and sufficiently formal when the Board adjourns without changing the amount entered on the assessment sheet. Denson v. First National Bank, 276 Ala. 146, 159 So.2d 849 (1964).

In the present case the Board adjourned on October 4, 1982, without changing the assessment. That was the date the thirty days started running. Although the instant facts resulted in an unfortunate situation, the circuit court’s action in granting summary judgment is not error.

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

AFFIRMED.

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


text:
    Ex parte FOUR SEASONS, LTD. and Cedar Bend, Ltd. (Re: FOUR SEASONS v. STATE of Alabama. CEDAR BEND, LTD. v. STATE of Alabama).
    82-1193.
    Supreme Court of Alabama.
    April 6, 1984.

      J.A. Keller of Keller & Cochran, Florence, for petitioners.
    Michael T. Jones, Asst. Dist. Atty., for 11th Judicial Circuit, Florence, for respondent.
   ADAMS, Justice.

We granted certiorari in order to determine whether the doctrine of equitable es-toppel should be applied against the State of Alabama under the facts in this case. Those facts are set out in the opinion of the Court of Civil Appeals; therefore, we do not repeat all of them here, but merely emphasize that on October 20, 1982, the tax assessor informed the petitioners that “the Board of Equalization has this date concluded its review of your protest....” The statute controlling appeals from the board’s ruling requires that appeals to the circuit court be taken within thirty days after the final decision of the board. Notice of appeal was filed November 18. Thereafter, the state filed a motion for summary judgment, on the grounds that the notice of appeal was not timely. It was shown that the board had adjourned on October 4, 1982, and held no further meetings that year. The trial court granted the state’s motion, and the Court of Civil Appeals affirmed. We reverse.

Although the doctrine of equitable estoppel is, as a general rule, not applicable to the state, to municipal subdivisions, or to state-created agencies (Marsh v. Birmingham Board of Education, 349 So.2d 34 (Ala.1977)), the doctrine is applicable to the government where justice and fair play require it. United States v. Lazy F C Ranch, 481 F.2d 985 (9th Cir.1973). See, also, Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964). This court has applied the doctrine of estoppel against municipalities when the facts and circumstances, in the judgment of the court, warranted its application. Marsh v. Birmingham Board of Education, supra; City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967); Powell v. City of Birmingham, 258 Ala. 159, 61 So.2d 11 (1952).

The doctrine of estoppel has not been applied against the state acting in its governmental capacity in the assessment and collection of taxes. Community Ac tion Agency of Huntsville, Madison County, Inc. v. State, 406 So.2d 890 (Ala.1981); State v. Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So.2d 426 (1953). However, the petitioners in this case are not seeking to estop the state from assessing or collecting the tax owed. Rather, they are attempting to preserve their right to a hearing in a state court, where the untimeliness of the filing of their appeal was caused by misinformation furnished by the state’s officer and relied upon by the petitioners to their detriment.

The respondent correctly points out that the timeliness of an appeal is jurisdictional, and that questions of timeliness must be decided according to the controlling rule or statute. However, in this case, failure to apply estoppel against the state would effectively deny the appellants a remedy at law. Thus far, they have had a protest hearing before the Board of Equalization, whose initial property valuations they were protesting. This administrative “remedy” does not appear to us to be sufficient to meet the requirements of equity. While Code 1975, § 40-3-25, provides that an appeal from such a hearing shall be taken within thirty days after the final decision of the board, there is no statutory requirement that notice of the board’s decision be given to the taxpayer. Although not required to do so, the secretary of the board did notify the appellants’ attorney that the board had “this date” concluded its review. If the secretary had remained silent, the burden would have rested on the appellants to discover the time limits for filing an appeal. This case is similar to cases where estoppel has been applied against the government based on affirmative acts of misconduct or misrepresentation, rather than mere silence. In United States v. Wharton, 514 F.2d 406 (9th Cir.1975), the court stated the proposition that “estoppel is available as a defense against the government if the government’s wrongful conduct threatens to work a serious injustice and if the public’s interest would not be. unduly damaged by the imposition of estoppel_” 514 F.2d at 411 (emphasis in original).

In the case before us, the secretary’s active misrepresentation of the date of the board’s decision is being used in an attempt to deny the taxpayers, who relied on it, their right to an appeal to a court of law. Such a result would obviously work a serious injustice. Furthermore, the public’s interest would not be unduly damaged by the imposition of estoppel in this case. While the Court of Civil Appeals, in its opinion, suggested that the imposition of estoppel “could conceivably impact indirectly upon the assessment and collection of taxes,” we do not feel that this remote possibility warrants the injustice which would be wrought, should estoppel not be imposed.

The question is raised, both by the Court of Civil Appeals and by the appellee, whether the actions of the tax assessor should be imputed to the Board of Equalization. The Court of Civil Appeals points out that although the tax assessor is, by statute, the secretary of the county board, there is no evidence that he was authorized by the board to inform the taxpayers of the date of the board’s final decision, and there is no statutory requirement that notice be given at all. The court, in its opinion, also notes that the tax assessor, as secretary of the board, has the most contact with the public in regard to the instant procedures. See Code 1975, §§ 40-3-20, 40-3-21 and 40-3-25.

If this court were to conclude that the taxpayers could not rely on information furnished to them voluntarily by the tax assessor in this case, regarding actions of the board, then it would appear that there ordinarily would be no way that a taxpayer could reliably ascertain at what time the board had reached its decision, for purposes of filing an appeal, since nobody is authorized or required to give notice of final decisions of the board. Notice obtained through diligent effort of the taxpayer would be no more reliable than that volunteered in a letter from the tax assessor. This would result in such manifest injustice that it cannot be allowed.

For the above reasons, the judgment of the Court of Civil Appeals is reversed, and the cause remanded for further action consistent with this opinion.

REVERSED AND REMANDED.

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

      . Four Seasons v. State and Cedar Bend, Ltd. v. State, 450 So.2d 108 (Ala.Civ.App.1983).

        . Code 1975, § 40-3-25.


text:
    FOUR SEASONS v. STATE of Alabama. CEDAR BEND, LTD. v. STATE of Alabama.
    Civ. 3787, Civ. 3788.
    Court of Civil Appeals of Alabama.
    May 2, 1984.
   HOLMES, Judge.

The prior opinion of this court, 450 So.2d 108, has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion of April 6, 1984, 450 So.2d 110, this cause is now reversed and remanded.

REVERSED AND REMANDED.

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


author: EDWARD N. SCRUGGS, Retired Circuit Judge. EDWARD N. SCRUGGS, Retired Circuit Judge.

text:
    Betty LOVETT v. Frances S. UPTAIN, as Administratrix of the Estate of Cora B. Spruell, Deceased.
    Civ. 3853.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Rehearing Denied Nov. 23, 1983.

      Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    David Neal of Fine & Associates, Rus-sellville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This legal contest is over the proceeds of a joint certificate of deposit.

Mrs. Lovett and Mrs. Uptain are the only children of J.F. Spruell and Cora B. Spruell.

In 1974 a certificate of deposit was issued to “J.F. Spruell or Cora Spruell.” Mr. Spruell died on May 25, 1978. The testimony was that, at some point in time after Mr. Spruell’s death, the bank’s records were changed to reflect the ownership of the certificate of deposit to “Cora Spruell or Betty Lovett,” but it cannot be ascertained from the evidence as to even approximately when that change took place. Mrs. Spruell died on November 29, 1982, and Mrs. Uptain was appointed as administra-trix of her mother’s estate. Litigation over the ownership of the proceeds of the certificate ensued between the administratrix and Mrs. Lovett. The trial court determined that the certificate of deposit was the property of the estate of Cora B. Spruell.

Mrs. Lovett appeals and contends that she is entitled to the certificate of deposit by virtue of § 5-1-25 or § 5-5A-41 of the Code of Alabama 1975.

The evidence and record are silent as to the date of the creation of the joint ownership of the certificate between Mrs. Spruell or Mrs. Lovett, the only evidence in that regard being that the ownership was changed “after Mr. Spruell’s death.” The proper inquiry is the date on which the joint ownership of the C.D. was created. Jones v. Jones, 423 So.2d 205 (Ala.1982). Since § 5-1-25 was repealed and replaced by § 5-5A-41 as of May 28, 1980, it would have been helpful if not essential, to establish the date of the creation of the joint interests of the mother and daughter in the certificate in order to determine which law applied. However, for the reasons that follow, the absence of that fact in this case does not necessitate a remand of the matter to the trial court because Mrs. Lovett is not entitled to prevail regardless of whether the creation of the joint ownership of the certificate of deposit occurred before or after May 28, 1980.

The initial original certificate of deposit as issued in 1974 apparently was never replaced. The only writing in the evidence of any change in it was a separate bank record as follows:

“2601 59-042807
Cora Spruell or 00
Betty Lovett [ XXX-XX-XXXX ]
Rt. 1
Mt. Hope A1 35651”

Neither the C.D. nor the bank record contained any provision for a right of survivor-ship. If a joint certificate of deposit had been created before May 28, 1980, and had it included a survivorship provision, Mrs. Lovett would have been vested by § 5-1-25 with the proceeds of that certificate without regard to the interest of Mrs. Spruell. However, there was no survivorship provision and, before Mrs. Lovett could recover, she bore the burden of proof that her mother intended to make a gift inter vivos to her of the C.D., and no such evidence was before the trial court. Chandler v. Farmer’s and Merchants Bank, 355 So.2d 726 (Ala.Civ.App.1978). Mrs. Lovett could not prevail under § 5-1-25 under the Chandler decision.

In Jones v. Jones, supra, our supreme court clarified the effect of § 5-5A-41 as follows:

“Admittedly, the statute is drafted in terms which exempt the bank from liability for its payment of a joint account to the survivor. But the statute does not empower the bank to determine ownership of a joint account in its depository. Rather, title is determined in accordance with the intentions of the parties, ‘stated in the instrument creating such tenancy,’ pursuant to § 35-4-7. When § 5-5A-41 superseded § 5-1-25, effective May 28, 1980, the survivorship between joint tenants provisions of § 35-4-7, which applies to personal as well as real property, remained fully operative. First National Bank v. Lawrence, 212 Ala. 45, 101 So. 663 (1924).
“This current survivorship statute (passed originally in 1852 and last amended in 1951) would have controlled this case had the joint account in question been created on or after May 28, 1980.”

423 So.2d at 207-208.

The provisions of § 35-4-7 are:

“When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.”

In the present case, the certificate of deposit itself does not include any sur-vivorship provision. If the bank record was the instrument creating the tenancy between the mother and daughter, it, likewise, was silent as to survivorship. In the absence of the required survivorship right being stated in any instrument which could be construed to create the tenancy, Mrs. Spruell’s interest in the certificate of deposit did not pass, upon her death, to Mrs. Lovett under the terms of § 35-4-7, supra. To the contrary, it descended and vested as the property of Mrs. Spruell’s estate.

We affirm.

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.

ON REHEARING

EDWARD N. SCRUGGS, Retired Circuit Judge.

Learned counsel for Mrs. Lovett contends on rehearing that this court’s original opinion was erroneous and, out of deference to his sincerity and concern, we make the following brief observations:

1. Mrs. Lovett is correct when she states in her rehearing brief that Chandler v. Farmers and Merchants Bank, 355 So.2d 726 (Ala.Civ.App.1978), was decided pursuant to Title 5, § 128(2a) of the Code of Alabama of 1940 (Recomp.1958) instead of § 5-1-25 of the 1975 Code. However, insofar as pertinent provisions of each are concerned, both of those code sections contain so much compatable, common and verbatim language that the Chandler decision was fully authoritative and determinative as to our adjudication that Mrs. Lovett could not prevail under § 5-1-25.

2. Mrs. Lovett argues that, at least, she is entitled to one-half of the proceeds of the certificate of deposit. The trial court granted the entire proceeds of the C.D. to the estate of Mrs. Spruell. Upon the original submission of this case before this court, no issue, contention or argument was made by either party that the trial court erred in that respect. We are not under any duty or obligation to place a trial court in error for issues not raised by the parties. Accordingly, this court’s opinion only responded to the issues as made and presented by the parties upon the appeal. On rehearing, Mrs. Lovett now raises this question for the first time. After an opinion has been rendered by an appellate court, consideration may not be given on rehearing to issues which were not argued nor suggested upon the initial submission of the case. Rudolph v. Rudolph, 251 Ala. 317, 36 So.2d 902 (1948); Alabama Farm Bureau Mutual Casualty Insurance Company v. Anderson, 48 Ala.App. 172, 263 So.2d 149, cert. denied, 288 Ala. 538, 263 So.2d 155 (1972).

The application of Mrs. Lovett for a rehearing is denied.

OPINION EXTENDED ON REHEARING.

APPLICATION FOR REHEARING DENIED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex Parte Betty LOVETT. (Re Betty LOVETT v. Frances S. UPTAIN, as Administratrix of the Estate of Cora B. Spruell, Deceased).
    83-267.
    Supreme Court of Alabama.
    March 23, 1984.

      Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for petitioner.
    No brief for appellee.
   PER CURIAM.

We granted the petition for certiorari because the petitioner earnestly insists that the opinion of the Court of Civil Appeals is in conflict with § 5-5A-41, Ala.Code 1975, and Harris v. Dial, 398 So.2d 679 (Ala.1981). We affirm.

As reflected in the opinion of the Court of Civil Appeals, the certificate of deposit was carried on the bank’s records in the names of Cora Spruell or Betty Lo-vett. It was not disputed that the funds represented by the certificate were acquired by Mrs. Spruell upon the death of her husband. As between the claimants to the proceeds, here, the administratrix of the estate of Mrs. Spruell, Mrs. Uptain on the one hand, and Mrs. Lovett on the other, § 35-4-7, Code, is the controlling statute with regard to Mrs. Lovett’s claim to the proceeds as a joint tenant with right of survivorship. Title to personalty by that act is determined in accordance with the intention of the parties “stated in the instrument creating such tenancy.” Nothing in the evidence suggests that a joint tenancy with right of survivorship was intended. That being so, Mrs. Lovett is not entitled to the entire fund, because the certificate of deposit did not create a survivorship estate in her.

Mrs. Lovett’s reliance on Harris v. Dial, supra, is misplaced. There the account was established in the names of two people and contained a right of survivorship provision in writing, which was effective to create a survivorship estate under § 35-4-7, Code. That is not true here. Additionally, § 5-1-25 had not been changed by § 5-5A-41 when the account in Harris v. Dial was created.

Section 5-5A-41 made a critical change in the law. The conclusive presumption of survivorship and donative intent created by § 5-1-25 was eliminated by § 5-5A-41.

It is true, as Mrs. Lovett argues, that § 5-5A-41, Code (which she concedes is applicable here), authorizes a bank to pay the proceeds of an account in the names of two persons to the survivor, even though there is no provision for survivorship. But, § 5-5A-41, unlike § 5-1-25, Code, concerns only the liability of the bank and authorizes payment by it, and does not govern the ownership of the funds.

Thus, the bank was authorized by § 5-5A-41 to pay the proceeds of the certificate of deposit to Mrs. Lovett upon the death of Mrs. Spruell, and it is not liable to Mrs. Uptain for having done so. However, the fact of payment does not defeat the claim of the estate of Mrs. Spruell to the proceeds. The controlling case, therefore, is Jones v. Jones, 423 So.2d 205 (Ala.1982), which the Court of Civil Appeals followed.

On rehearing to the Court of Civil Appeals and here, Mrs. Lovett argues that she is, at least, entitled to one half of the proceeds of the certificate of deposit. She is, of course, entitled to one half of the personalty of her mother’s estate by intestate succession, since she and her sister are the only descendants. She apparently contends, although she does not expressly say so, that she is entitled to one half of the certificate of deposit as a tenant in common with Mrs. Spruell. This ⅛ an issue of fact, and unless Mrs. Lovett, the survivor on the account, establishes by the evidence that a gift was intended by the owner of the fund establishing the account in both names, the claim must fail. 10 Am.Jur.2d Banks, § 377 (1963). The rule applicable to these facts is stated in Clark v. Young, 246 Ala. 529, 21 So.2d 331 (1944), quoting from Hicks v. Meadows, 193 Ala. 246, 69 So. 432 (1915), as follows:

“ ‘In cases involving such deposits, questions frequently arise concerning the right of the one other than the original owner to the fund upon the death of the original owner. Apart from the contract theory, which is comparatively rare, this leaves the title of the survivor to rest upon a gift, trust, or bequest. The bequest drops out of consideration, because it is not claimed that the transfer is in the requisite form to constitute a valid bequest, i.e., there is no compliance with the statute of wills. There thus remain two theories, upon one or the other of which the right of the survivor to the fund must be based, i.e., gift or trust. Unless the survivor can show title in one of these ways, his claim must fail.’ 7 Amer.Juris. p. 301, § 426.”

246 Ala. at 535, 21 So.2d at 335. Mrs. Lovett, however, offered no evidence to support a contention either that a gift or a trust was intended by the establishment of the account in the names of both or that she was a tenant in common to the funds represented by the certificate of deposit, and, because this is purely a fact issue, we cannot say that the trial court erred in holding that the entire amount of the certificate was an asset of the mother’s estate.

The decision of the Court of Civil Appeals is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: BRADLEY, Judge.

text:
    (In the Matter of Melissa Sue ABBOTT, a minor child). CULLMAN COUNTY DEPARTMENT OF PENSIONS AND SECURITY and State Department of Pensions and Security of the State of Alabama v. Hubert Gene PLAKE and Katrina Abbott Priest.
    Civ. 3751.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.
    Rehearing Denied Dec. 14, 1983.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-363.

      Bryce Scott Davis of Davis & South, Cullman, for appellant.
    Hayden R.. Battles of Battles & Battles, Cullman, for appellee.
    Roy W. Williams, Jr. and Martha E. Williams, Cullman, amicus curiae for appellants.
   BRADLEY, Judge.

This is a child custody case.

Melissa Sue Abbott, born January 30, 1978, is the illegitimate daughter of Katrina Abbott Priest. In April 1979 she was placed in the temporary custody of the Cullman County Department of Pensions and Security. Since that time Melissa has been living in a licensed foster home.

On August 12, 1981 the Cullman County Department of Pensions and Security filed a petition seeking the termination of all legal rights of the parents and the award to the Department of the child’s legal custody and the authority to place the child for adoption. The father, Hubert Gene Plake, acknowledged paternity and legitimated the child. He then filed an answer to the August 12, 1981 petition in which he denied that he had neglected Melissa or refused to provide proper care for her. He also counter-petitioned for permanent custody of Melissa.

After an ore tenus hearing, the trial court granted permanent custody of Melissa to the father. Cullman County DPS asked for a reconsideration and the request was denied. Cullman County DPS and State of Alabama DPS (hereinafter DPS) appeal to this court.

An amicus curiae brief has been filed here by the attorneys for William Lee Abbott, Melissa’s half brother.

Amicus argues that rule 20, Alabama Rules of Juvenile Procedure, requires that all testimony in a juvenile case be recorded so that a record of those proceedings will be preserved. No such record was made; henee a review of the trial court's judgment is precluded.

It is true that no record of the testimony was made in the trial court. It is also true that no objection was made to the failure of the trial court to record the proceedings as required by rule 20. But, a rule 10(d), Alabama Rules of Appellate Procedure, record of the testimony has been prepared, approved by the trial judge, and filed in this court.

A rule 10(d) record of the proceedings will be accepted and relied on in the absence of a record made according to rule 20, A.R.J.P., where the rule 20 record was in effect waived by the parties to the proceedings in the trial court. See Sangster v. Sangster, 366 So.2d 1136 (Ala.Civ.App.1979). Accordingly, the 10(d) record will be considered by this court in assessing the sufficiency, of the evidence to support the judgment of the trial court.

Appellants contend here that it was wrong for the trial court to remove Melissa from the custody of the appellants and the foster parents and place her permanent custody with her natural father. They argue that the evidence does not support such a decision.

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

Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977).

In a termination of parental rights case, the judgment of the trial court is reviewed in the light of the ore tenus rule. And, such a judgment is given every favorable presumption and will not be overturned unless it is palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982).

Before a trial court can terminate a parent's right to the custody of its child, there must be clear and convincing evidence before the court that it would not be in the child’s best interests to be in the natural parent’s custody. Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981).

In the case sub judice, the evidence shows that DPS was given temporary custody of Melissa when she was fourteen months old. She had been neglected by her natural mother. DPS placed Melissa with foster parents until a permanent disposition of her custody could be made.

About two years later DPS filed a petition seeking termination of parental rights and authority to place Melissa for adoption. A copy of this petition was served on the natural father. He testified that this was the first time that he knew that he was the father of Melissa. He then acknowledged paternity and legitimated Melissa by a proceeding in the Probate Court of Cullman County, Alabama.

Subsequently, the father answered DPS’s petition by denying his parental rights should be terminated, and counterclaimed for the permanent custody of Melissa.

The evidence further shows that the father is married and has three children by his wife. They live in a three bedroom house in Kokomo, Indiana, where he is employed and earns about $21,000 a year. The Plakes were married in 1971, divorced in 1975, and remarried in 1978. It is without dispute that the Plakes’ early years were beset with many troubles, but the evidence is strong that for about the last five years they have gotten along well, love and properly care for their children, and profess a real desire to be proper parents for Melissa. Mr. Plake is the president of his local union and actively participates in activities involving his children. He and his wife both testified that they wanted Melissa in their home and would make every effort to make Melissa feel loved and wanted. They recognized the change would be difficult for Melissa, but expressed a desire to be understanding and helpful.

There was evidence before the trial court that Melissa had become attached to her foster parents and that it would be traumatic for her to be removed from them. However, the trial court could not rely on this relationship as controlling because DPS was the temporary custodian and would have the authority to place Melissa with those prospective adoptive parents who would best serve her needs. Such a placement would not necessarily be with the present foster parents and most likely would not be with them. Foster parents have a contractual arrangement with DPS to care for children until they can be permanently placed by DPS. Foster parents are not usually considered as likely adoptive parents by DPS. See Clements v. Barber, 49 Ala.App. 266, 270 So.2d 815. (1972); State Department of Pensions & Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978). Consequently, we are constrained to conclude that the separation trauma would likely afflict Melissa even if DPS were given her permanent custody and authority to place her for adoption.

The trial court’s judgment is supported by the evidence, and it is affirmed.

AFFIRMED.

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


text:
    Dennis H. BULLINGTON v. Birdie NICHOLS and Linda Tank.
    Civ. 3926.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-597.

      William J. Underwood, Tuscumbia, for appellant.
    John R. Benn of Peck, Slusher & Bunch, Florence, for appellees.
   WRIGHT, Presiding Judge.

This is a child custody case.

The defendant, father of seven-year-old daughter, Lera Bullington, was awarded her custody by decree of October 14, 1982. The mother, Linda, who had remarried, was given specific rights and time of visitation with Lera. The maternal grandmother filed a petition against both mother and father, alleging that since gaining custody of Lera, the father has not properly cared for her nor given her a good home. It was averred that the father is usually drunk and violent in front of the child; that Lera is afraid to go into his bedroom because of his drunkenness; the home is not suitable; the father has failed to get medicine for the child. The petitioner further averred that neither the mother or father is fit to have custody.

After hearing orally, the court granted custody to the petitioning grandmother, with all reasonable rights of visitation by the mother as mutually agreed between her and her mother, the petitioner. The father was given the same specific visitation rights as had previously been given the mother in the last decree. Both parents were relieved from any responsibility for support of the child. The father appeals. We reverse.

It is seldom that the court reverses the discretionary judgment of a trial judge rendered after oral hearing in a matter of child custody. We have stated the rule innumerable times in our decisions that the matter of custody of children is within the discretion of the court. If the evidence is presented orally, there is a presumption of correctness accompanying the judgment. Ala.Digest, Appeal & Error Key No. 931(1) (1982). However, the judgment must be sufficiently supported by the material and relevant evidence as not to be deemed arbitrary, palpably wrong or unjust. Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977).

The appellant father in this case first submits that the evidence fails to show a material change of circumstances affecting the best interest and welfare of Lera occurring since October 14, 1982, the date of the last decree. After close examination of the transcript of the evidence with its exhibits, we find the father to be correct.

The first finding of fact by the trial court is that the father, since the last decree, has failed to comply with the order of the court of October 14, 1982, in that he has been consistently late in bringing the child to the mother for visitation at 9:00 A.M. on Saturday morning every other weekend, and has brought the child to residences not specified in the order.

The record reveals considerable conflict in this area. It was shown the father worked on Saturday morning and usually relied on his father or mother to transport Lera for the visits with her mother. It was further shown that she was often brought later than 9:00 A.M. She was usually brought to the grandmother’s home or some other place under direction of the mother. There was shown conflict and problems both in delivery of the child to the mother and also in her return to the father by the mother. We have said that disputes over visitation should be settled by the exercise of the enforcement powers of the court. Absent other viable reasons, such disputes should not be settled by changing custody from one parent to another. Pons v. Phillips, 406 So.2d 932 (Ala.Civ.App.), cert. denied, 406 So.2d 935 (Ala.1981). Even less, in a dispute between parents over visitation should the custody of the child be removed from the parent and given to a grandparent.

The second finding of fact by the trial court is that the father “failed to obtain separate apartment or housing for himself and the minor child ... and that the husband is presently living in the home of his mother and father along with several cousins to the minor child of the parties.”

There is no dispute in the evidence that the father and Lera have been living in a large home with his mother and father. It appears that in the prior hearings there was some reference that the father and Lera were going to live in an apartment connected to his father and mother’s home. There is no order that they do so. That apartment consists of a kitchen and bedroom. The evidence is undisputed that the father and Lera occupy separate bedrooms in his parents’ home. His mother and father assist in caring for Lera. He works the day shift driving a truck for a lumber company. He cooks breakfast for all in the mornings. His mother cooks other meals and aids in transporting Lera as needed. Pictures of the home and Lera’s bedroom show them to be spacious, comfortable and well furnished. This court fails to understand why these accommodations are not favored by the trial court as opposed to the apartment with only one bedroom. We further fail to understand why living with the father’s parents is offensive in light of their testimony that they desired it so and in view of the need of assistance in caring for Lera. We have carefully reviewed the testimony and find no support for the finding that there are several cousins of Lera also living in the home. To the contrary, though there had been another grandchild living there, he has now gone to live with his father.

The third finding of the trial court is that the primary care of Lera has been provided by the paternal grandparents, who, due to health problems, are no longer capable of providing such care. Again, we have carefully studied the testimony and have discovered no reasonable support therein for such finding. In fact, the grandfather, who is recovering from an illness, stated that it was his opinion that the presence of Lera in his home was beneficial to both him and his wife in that it gave purpose to their lives. It was only the opinion of a daughter that because of her father’s illness, her parents shouldn’t have Lera and her father in their home. It was shown that she often left her own son in their care for periods of time.

The record, from testimony of friends, neighbors, pastors, teachers, little league coaches and a mental health psychotherapist, presents overwhelming evidence that Lera has been doing very well in school; that she is being well cared for; that her father is taking her to Little League baseball, to Brownies and to the mental health center for treatment; that she is progressing well in therapy with the cooperation of her father, and that she is happy with her father.

The only testimony tending to show any detriment to her in the custody of her father is that he has drunk some beer in the privacy of his bedroom at night and put empty beer cans in a paper sack under his bed. On one occasion, his sister saw him drink one or two cans of beer. On that occasion, the former wife contends he was intoxicated. There was no testimony that the father ever lost any time from his truck driving job or was ever arrested for drunkenness.

In summary, there is no evidence of abuse, mistreatment or any activity of the father since he obtained custody, detrimental to the welfare of his child, except that he did not always deliver her to the mother for visitation at the exact hour of 9:00 A.M. On the other hand, there was no material dispute of the surplus of testimony that he was a good and loving father, who, with the aid of his parents, was providing excellent care for his daughter. It was further undisputed that Lera is flourishing, mentally and physically, and is progressing well in the recovery from whatever personality maladjustment she was suffering from pri- or to coming to live with her father. This court concludes that the evidence fails to support a finding that there has been a material change of circumstances affecting the best interest or welfare of Lera since October 14, 1982. The allegations of the petition which instigated this action, and which we set out in the beginning of this opinion, are totally unsupported by any credible evidence.

We have shown an absence of proof of the charges in the petition of drunkenness of the father, failure to take proper care and an improper home. It is known that a grandparent has no legal right to custody. Murphy v. Bronstein, 434 So.2d 778 (Ala.Civ.App.1982). Having shown no mistreatment or dependency, we have simply a contest of custody between a parent and nonparent. Our supreme court spoke directly and plainly in the case of Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955), and reiterated in the recent cases of Ex parte Berryhill, 410 So.2d 416 (Ala.1982), and Ex parte Sullivan, 407 So.2d 559 (Ala.1981), to the strong presumption of the primacy of parental rights to custody. It was therein stated, “Where a contest for the custody of a child arises between its father or mother and a third person, the superior claim of the parent ought not, in our opinion, to be disturbed unless it plainly appears that the interests of the child require it to be set aside.” Berryhill, supra at 417.

Considering all things, the failure of the evidence to show a material change of circumstances since October 14, 1982; the failure to show unfitness of the father; and certainly the failure to present evidence from which it plainly appears that the best interests of the child require the superior claim to custody of the father be set aside, this court must reverse the judgment of the trial court. We therefore reverse that judgment and direct it be set aside.

The matters discussed herein being dis-positive, there is no necessity of discussion of the other issues presented in the appeal.

Reversed and remanded with direction to enter judgment denying the petitions of Birdie Nichols and Linda Bullington Tank.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


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    Dalton A. SHARPTON v. WINSTON COUNTY BOARD OF EDUCATION; and Letha G. Weaver, in her capacity as Superintendent of Education of the Winston County Board of Education.
    Civ. 3977.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
    Rehearing Denied April 11, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-764.

      William M. Dawson of Parker & Dawson, Birmingham, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

Dalton Sharpton was an employee of the Winston County educational system for over thirty-two years. He was a tenured teacher, principal, and guidance counselor.

For several years prior to June 1981, Sharpton, in addition to his duties as guidance counselor, had been a professional development coordinator. These additional duties were given to Sharpton by the Winston County Board of Education on the recommendation of the superintendent of education, a Mr. Lott.

Mr. Sharpton worked twelve months out of the year and was paid over $17,000 as a guidance counselor and a little over $5,000 as a professional development coordinator.

The position of professional development coordinator was created by the Winston County Board of Education on the recommendation of Superintendent Lott and was not a tenured position.

In June 1981 Superintendent Lott recommended to the Board of Education that Sharpton be reemployed on the same basis as the prior year for the new year beginning July 1, 1981. Sharpton continued to work in this position.

On July 29, 1981 Sharpton was informed by the new superintendent, Letha Weaver, who had taken office on July 1, 1981, that the Board of Education had cut his salary to $17,090.53 and reduced his employment period from twelve months to ten months each year. In other words he no longer had the duties of a professional development coordinator. He was working in his tenured position of guidance counselor.

Mr. Sharpton retired at the end of the 1981-82 school year and has filed this action to recover the loss of pay due to the elimination of his job as a professional assistant to the superintendent. Sharpton says that because of the reduction in pay he receives $106 per month less in retirement pay than he would have received if he had not been deprived of the $5,000 he should have received for the 1981-82 school year.

Mr. Sharpton argues here, as he did in 'the trial court, that the reduction in pay was a violation of the Tenure Act. §§ 16-24-1 to -38, Code 1975. He says that it also violated his property and contract rights under the due process clause of the fourteenth amendment to the United States Constitution.

In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the United States Supreme Court held that a college professor dismissed from an office held under tenure and other college professors dismissed during the terms of their contracts have interests safeguarded by the due process clause of the fourteenth amendment to the United States Constitution. Also see, Ex parte Hayes, 405 So.2d 366 (Ala.1981).

Mr. Sharpton argues that he had tenure and Should not have been removed from his professional assistant position without notice and a hearing.

The evidence shows that the position held by Sharpton and from which he was discharged was not a tenured position but was in the nature of extra duty given to him by the board of education on the recommendation of the superintendent.

The trial court also concluded in its judgment that:

“[Mr. Sharpton’s] duties as Professional Development Coordinator [fell] within the category of a professional assistant to the Superintendent of Education, the employment and termination of such assistant being governed by Section 16-9-24 of the Code of Alabama, 1975, which said position is not a tenured position

Not being tenured, Sharpton was not entitled to the protection of the Teacher Tenure Act, §§ 16-24-1 to -38, Code 1975. However, we do find that the due process rights accorded to him by the fourteenth amendment to the United States Constitution have been infringed.

Sharpton says that he did not have a written contract for the school year 1981-82 but that the board of education in June 1981, on the recommendation of the then-superintendent, Mr. Lott, reemployed him as a professional assistant for the next twelve months.

The minutes of the board of education reflect that Sharpton, along with all other central office personnel, was reemployed for the 1981-82 school year at the present salary scale.

The new superintendent, Mrs. Weaver, who had taken office on July 1, 1981, recommended to the board of education that the professional development coordinator position held by Mr. Sharpton be eliminated. The board on the recommendation of the superintendent eliminated the professional position held by Sharpton without notice and a hearing.

Sharpton argues that he was entitled to notice and a hearing before being terminated because he was hired for a term of twelve months beginning in June 1981.

We agree that Sharpton should have been accorded notice and. a hearing before being terminated as a professional development coordinator. Roth, supra. He had been reemployed for the forthcoming year in the position that he had held for several years. Although no written contract was entered into between the parties, the board of education did employ Sharpton for the new year and recorded that fact in its minutes. We conclude that Sharpton had been hired for the 1981-82 school year just as effectively as if he had been given a written contract.' Therefore, he cannot be deprived of this property right without due process, i.e. notice and a hearing. Roth, supra.

Sharpton was not given such notice and a hearing before being terminated, and for this omission error was committed.

The board of education argued in the trial court that notice and a hearing were not required and cited the Alabama Supreme Court case of Roberts v. State, 228 Ala. 222, 153 So. 432 (1934).

The Alabama Supreme Court in the Roberts case held that clerical assistants in the county superintendent’s office were hired for the term of the superintendent and their appointments expired with the terms of the superintendent of education.

Accordingly, in the case at bar, the board argued to the trial court that Sharpton’s appointment as a professional development coordinator expired with the expiration of Superintendent Lott’s term, which occurred on July 1, 1981.

Roberts was decided long before Roth determined that public employees who have been discharged from jobs that were held under tenure provisions or pursuant to valid contractual terms had interests in those jobs that were protected by due process.

We conclude, therefore, that Roberts cannot deprive a professional assistant to the superintendent of education of his constitutional rights to due process when he proves that he has protected interests in continued employment. Sharpton proved that he had been employed by the board of education for another year as a professional development coordinator and thus he showed that he had interests in continued employment that entitled him to notice and a hearing.

For the failure to accord Sharpton notice and a hearing prior to his termination as a professional assistant to the superintendent, the board of education violated his constitutional rights to due process. The judgment of the trial court is reversed and the cause remanded for entry of an order directing the board of education to set aside its order terminating Sharpton’s employment as a professional assistant to the superintendent and to give him a hearing on the issue of termination.

We are not to be understood as suggesting that the board of education can or cannot terminate Sharpton’s job as a professional assistant; we are saying only that he must have a hearing before any action is taken by the board of education.

REVERSED AND REMANDED WITH DIRECTIONS.

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


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    Minnie EMBROY v. STATE DEPARTMENT OF PENSIONS AND SECURITY STATE OF ALABAMA.
    Civ. 4044.
    Court of Civil Appeals of Alabama.
    March 14, 1984.
    Rehearing Denied April 11, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-759.

      Pam G. Gardner, Birmingham, for appellant.
    Lane Strong, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This case concerns the termination of parental rights.

Minnie Embroy, appellant-petitioner, has a daughter, Tameka Embroy, aged eight, and twin sons, Deroy and Levoy Embroy, aged four. Dependent/neglect petitions were filed by the Department of Pensions and Security of the State of Alabama (DPS) on Embroy’s three children. In Tameka’s case the mother failed to appear at the first hearing, and two weeks later the referee left Tameka in the custody of her mother under supervision of DPS. Various reviews were held on Tameka’s custody, from some of which the mother was absent, and custody remained with the mother. A hearing was scheduled for January 6, 1983, but the mother left the courtroom before the hearing could be held. The hearing was postponed from time to time due to inclement weather and the illness of a witness.

On June 1, 1982, while review of the first .case was pending, a new dependent/neglect petition was filed for Tameka, alleging, inter alia, that she had been raped and severely burned. Tameka was ordered picked up and subsequently, at a detention hearing, DPS was awarded custody. Various reviews were scheduled from time to time regarding Tameka’s custody which remained vested in DPS. On August 5, 1983, DPS filed a petition to terminate the parental rights of the mother. On October 5, 1983, parental rights were terminated, and permanent custody was awarded to DPS.

With respect to the twins, Deroy and Levoy, a dependent/neglect petition was filed in April 1980. At a detention hearing DPS was given custody of the twins. The mother, having received notice of a hearing on the merits scheduled in June 1980, failed to appear. In November 1980 the mother consented to DPS retaining custody, and a review was set for April 22, 1981. Again, the mother failed to appear, and DPS continued to have custody of the twins until July 30, 1981, when custody was returned to the mother with supervision by DPS and review set for January 1982. Custody continued with the mother until June 1, 1982, when the twins were picked up and custody given to DPS in response to a new dependent/neglect petition. Review was scheduled for January 6, 1983, but the mother left the courtroom prior to the hearing. Review was continued from time to time on both cases. On August 5, 1983, DPS filed a petition for termination of parental rights with respect to the twins.

A hearing on the petitions for termination of parental rights was scheduled for October 5, 1983. There was a judgment entered on that date. That judgment recites that the cause came on for hearing in open court. It proceeds to relate the presence of the mother’s attorney, representatives from DPS and their attorney, and the guardian ad litem for the children. It further related certain facts appearing to the court, including the absence of the mother, the anonymity of the father and the prior events that had transpired in the matter. It concludes that from considering and understanding of all things, the court is of the opinion that it is to the best interest of the children that parental rights of the parents be terminated. There were no post-trial pleadings.

Appellant contends in brief that the court erred in terminating parental rights by default and without the taking of testimony.

Our response to that contention must be that our review in every case must be upon the record of pleadings and a transcript of testimony and proceedings before the trial court. It is a settled rule that if complaint is made upon appeal as to matters alleged in brief to have occurred or not to have occurred, but which are not reflected in the “record,” there is not a basis for our consideration. Hinds v. Hinds, 415 So.2d 1122 (Ala.Civ.App.1982). In the absence of matters occurring at trial, but not shown by the record, it is assumed that the trial court acted correctly. Reliance Insurance Company v. Substation Products Corp., 404 So.2d 598 (Ala.1981). If there was improper procedure or an absence of proper procedure at trial, the attention of the trial judge must have been directed to it either at the time or by proper and timely post-trial motion. Without such in the record, there is nothing for our review, allegations in brief to the contrary.

We have noted that the judgment of the trial court stated there was a hearing and matters were considered by the court. There is nothing to the contrary in the record, and we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    LIVINGSTON BAIL BONDS, INC., Surety v. STATE of Alabama.
    Civ. 4082.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Rehearing Denied May 2, 1984.

      Elno A. Smith, Jr. of Smith, Cruse & Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from an order of final forfeiture on an appearance bond.

On November 11, 1982 appellant became surety on a consolidated bond (District Court, Grand Jury and Circuit Court) with Timothy Hairston as the principal. Hair-ston was indicted and on March 23, 1983 he pleaded guilty to forgery in the third degree. Hairston’s case was continued to April 8, 1983 for a presentence report, sentencing, probation application, and restitution motion. He was released on the same bond but failed to appear at said time and place, and a final forfeiture was entered on June 7, 1983. Appellant filed a motion to set aside the bond forfeiture, which was overruled on October 14, 1983.

Appellant contends that the trial court committed error by not granting its motion to dismiss the forfeiture and cites Hawk v. State, 84 Ala. 466, 4 So. 690 (1888), and Reed v. State, 245 Ala. 173, 16 So.2d 310 (1944), in support of its contention that after Hairston’s appearance in court and plea of guilty the obligation as surety on the bail bond ended. .. -

The principle of the law is that when bail is given and accepted the custody of the prisoner is transferred from the officer of the law to that of his sureties. The essence of all undertaking of bail is the appearance of defendant at court for trial until he is discharged by law. By statute, section 15-13-62, Code 1975, bail may, at any time before or during the trial, exonerate themselves by surrendering the defendant. Whenever a party is convicted and sentenced, he is no longer in the custody of his bail, but is in the custody of the proper officer of the law, and the bail are thereby discharged by the operation of the law without a formal order to that effect. The mere appearance of the defendant at court for trial, or his presence during trial or a mistrial, will not operate to discharge the bail. The obligation of a proper bail bond binds the sureties, at least until after the verdict of the jury; but, when the sentence of the law is pronounced, the officer of the law is charged with its due execution. The bail have no further control over the custody of their principal, and cannot be longer held responsible. Miller v. State, 158 Ala. 73, 48 So. 360 (1909); Hawk v. State, supra; Ex parte Williams, 114 Ala. 29, 22 So. 446 (1897); § 15-13-60, Code 1975.

It was further stated in Beddow v. State, 259 Ala. 651, 68 So.2d 503 (1953), that bail is exacted for the sole purpose of securing the attendance of the defendant in court at all times when his presence may be lawfully required and his surrender in execution of any legal judgment that may be pronounced against him.

Hairston having failed to appear in court for sentencing, probation hearing, and restitution hearing as ordered, the trial court correctly forfeited his bond.

The judgment of the circuit court is affirmed.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER 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.


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    Wylene TURNER v. The EXCHANGE BANK.
    Civ. 4119.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Rehearing Denied May 2, 1984.
    Mary Ann Ross Stackhouse of Legal Services Corporation of Alabama, Inc., Gadsden, for appellant.
    George C. Day, Jr. of Hawkins & Day, Gadsden, for appellee.
   PER CURIAM.

This is a Truth-In-Lending Act case.

The plaintiff (Bank) sued the defendant (Turner) for a deficiency on a promissory note. The defendant filed a truth-in-lending counterclaim. Both parties sought a summary judgment. The trial court granted the Bank’s request for a summary judgment and Turner appeals.

Turner contends that the Bank violated the Federal Truth-In-Lending Act. and Federal Reserve Regulation Z, and therefore, the trial court erred in failing to grant Turner’s motion for summary judgment. The dispositive issue is whether the Bank failed to describe or identify the type of security interest retained by the Bank as required by the Act.

At the outset it is necessary that this court determine the appropriate Regulation Z that governs the instant lawsuit.

The promissory note that is the basis of this lawsuit was executed in August 1981. At that time there were in force two separate sets of Regulation Z. The second Regulation Z (Revised Regulation Z) accompanied the Truth-In-Lending Simplification and Reform Act, Pub.L. No. 96-221, 94 Stat. 168 (1980), which went into effect October 1, 1982. However, from April 1981 until October 1, 1982, there was a transition period.during which the creditor could use either the old regulations or the revised regulations. 46 •Fed.R'eg. 20,848 (1981). The only limitation on the use of the revised regulations during this transition period was that the creditor must comply entirely with the requirements of the revised regulations' and not “mix. and match” requirements from the then current and the revised regulations. 46 Fed.Reg. 20,849 (1981). In other words, with respect to any single transaction during the transition period, the creditor must follow completely either the revised Regulation Z or the prior regulation.

In the instant case, the Bank did not fully comply with the revised Regulation Z, and therefore, the prior Regulation Z governs this case. Specifically, the revised Regulation Z requires the creditor to disclose the amount of credit, the finance charge, etc. using those terms and a brief description of each term. Revised Regulation Z, 12 C.F.R. § 226.18 (1982). In the instant case, the Bank did not provide a brief description of these terms as required.

With the above in mind, this court will attempt to deal with the dispositive issues of this case using the Regulation Z in effect in 1981 prior to the enactment of the Truth-In-Lending Simplification and Reform Act and the Revised Regulation Z.

The facts of this case are relatively uncomplicated. The Bank loaned Turner money. For purposes of the Truth-In-Lending Act the transaction was a consumer loan, a closed-end, non-sale credit transaction. Section 1639 of the Truth-In-Lending Act, 15 U.S.C. §§ 1601-1693 (1976), sets out the information a lender in such a transaction must disclose to the borrower.

“Section 1639(a)(8) requires a ‘description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.’ “Acting pursuant to its authority under § 1604 of the Act the Federal Reserve Board has adopted regulations concerning compliance with § 1639(a)(8). See generally, 12 C.F.R. §§ 226.1 et seq. (1976) (‘Regulation Z’).
“Section 226.8(b)(5) of Regulation Z deals with the specific requirements of § 1639(a)(8). Under this regulation, a lender must disclose: ‘(1) the type of security interest held, retained, or acquired; (2). the property of the borrower which serves or will serve as the collateral; and (3) whether any future obligations which the borrower may incur to the lender will be secured by any such property.’ Anthony v. Community Loan and Investment Corporation, 559 F.2d 1363 (5th Cir.1977).”

Fulghum v. Termplan, Inc., 383 So.2d 191, 192 (Ala.Civ.App.1980).

Turner first contends that the Bank failed to adequately describe in its disclosure statement the type of security interest held, retained, or acquired in connection with its extension of credit.

In its disclosure statement, the Bank states that “[a]s security for the payment of the above evidenced indebtedness, Borrower grants Bank a security interest in the following described property, together with any accessions, additions, replacements, substitutions, or proceeds thereto or thereof, all of which are hereafter sometimes referred to collectively as ‘collateral’, to wit: (1) 1979 Dodge PU D100 VIN # D14AN95202628.” On the reverse side of the disclosure statement concerning the security interest there are listed terms, covenants, and conditions. Under the item numbered “7” and titled “Heading Events of Default” is the statement that, “Upon such default, Bank may, in addition to taking all proceedings available to it in law or equity, proceed to exercise any and all rights and remedies available to secured parties under the Uniform Commercial Code of Alabama.”

Turner signed the note only on the front although there is space for the borrower’s signature on the reverse side.

This court has addressed an almost identical problem in Fulghum v. Termplan, Inc., 383 So.2d 191 (Ala.Civ.App.1980). The disclosure statement concerning the security interest used by the creditor in Fulghum stated:

“This loan is secured by a Security Agreement of even date covering: (1) the following described property, (2) the proceeds thereof, (3) all property of the same type or character in which Borrower acquires rights ..., (4) all equipment, accessories and parts added or attached thereto, (5) all insurance proceeds from the loss or damage of the collateral, and (6) all refunds of unearned insurance premiums.”

Id. at 193.

We held in that instance that the disclosure was insufficient to satisfy the requirements of § 1639(a)(8). We are not able to distinguish that disclosure from the disclosure in the case at bar.

The reference to the U.C.C. on the reverse side of the note in the instant case does not provide the missing elements. Section 226.8(a) of Regulation Z requires that all disclosures required under the Regulation be made together on the same side of the page. Here, the disclosure did not meet that requirement.

To sum up, the disclosure of the security interest in the instant case did not meet the requirements of Regulation Z in that it did not adequately disclose the type of security interest on the same side of the document. Hence, this case is due to be reversed.

We note that this problem will not likely come up again. The Revised Regulation Z was designed, among other things, to eliminate just such problems.

In view of the foregoing, this case is reversed and remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

In brief in support of its application, the plaintiff (bank), through able counsel, contends the following paragraph in our original opinion is not factually correct.

“Turner signed the note only on the front although there is space for the borrower’s signature on the reverse side.”

This court has re-examined the note and, quite frankly, we do believe there is “space for the borrower’s signature on the reverse side.” However, in deference to counsel, the questioned paragraph is deleted and the following is substituted therefor.

Turner signed the note only on the front although, while not a paragon of clarity, there appears to be space on the reverse side for the borrower's signature.

Opinion extended. Application for rehearing overruled.

All the Judges concur.