text:
    SOUTHWEST VILLAGE WATER CO., INC. v. Walton FLEMING, et al.
    82-1176.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Fulton S. Hamilton of Simpson & Hamilton, Huntsville, for appellant.
    John M. Heacock, Jr. of Lanier, Shaver & Herring, Huntsville, for appellees.
   FAULKNER, Justice.

This is an appeal by Southwest Village Water Company from an order of the trial court quieting title in Walton Fleming, et al., to a parcel of land located in Madison County, Alabama. We affirm.

The appellees in this case are the owners of the fee simple interest in the property that is the subject of this suit. In 1960, the appellees and their predecessors in title granted a long term (55-year) lease of the property. When the lease was executed, no permanent improvements existed on the property. Paragraph 5 of the lease authorizes the construction of permanent improvements on the property and states that the lessee will operate “a high class motel” on the property. Paragraph 6 of the lease allows title to the improvements to be held by the tenant until the expiration of the lease, and paragraph 8 of the lease permits the assigning, sub-leasing, and mortgaging of the leasehold. The lease provides, in paragraph 10, that the lessee will maintain all improvements on the premises in good condition and repair. Paragraphs 15 and 16 of the lease state that prior to termination of the lease for default by the lessee, the lessor will give the lessee notice of default together with a specified time in which to cure the default. However, no rights to cure upon default are given in the lease to any holder of a lien on the leasehold estate.

Between March 1960 and April 1979, the leasehold was assigned, mortgaged, deeded, and otherwise encumbered and transferred between and among numerous parties. Throughout this period certain permanent improvements were placed upon the property to permit the operation of a motel. On April 4, 1979, all right, title, and interest to the leasehold, free from any outstanding encumbrance or obligation, was held by KLM Construction Company, Inc. (KLM), a Missouri Corporation. On April 5, 1979, at 9:34 a.m., a deed from KLM to Geneva Ann Johnson was recorded, and, at 9:36 a.m., that same day, a purported mortgage from KLM to Geneva Ann Johnson was recorded. On the same day, April 5, 1979, at 3:01 p.m., a deed to the leasehold from KLM to Terry E. Graham was recorded, and, at 3:06 p.m., an assignment of the lease from KLM to Terry E. Graham also was recorded. Terry E. Graham executed a mortgage to Joe G. Sanders, giving the leasehold and its improvements as security, which by order of a Texas district court, as affirmed by the Texas Court of Appeals, was later assigned to River and Beach Land Corporation. River and Beach Land Corporation, by an instrument dated February 16, 1981, then assigned its interest in the note and mortgage to appellant, Southwest Village Water Company, Inc. (Southwest).

In October 1980, purportedly due to the deterioration and extreme disrepair of the improvements on the lease property, the appellees, pursuant to the applicable provisions of the lease, gave notice of termination to the then-lessee. In April 1981, the appellees again gave notice of termination to the succeeding lessee, Chulavista Land Investment Company, Inc. (Chulavista). When no repairs were undertaken within the time allowed by the lease and by the notice of termination, the appellees instituted an adversary proceeding against Chu-lavista in the United States Bankruptcy Court for the Southern District of Mississippi, where Chulavista had filed a petition for reorganization. The Bankruptcy Court, in August 1981, entered an order terminating the lease and awarding immediate possession of the property to the appellees.

The appellees then proceeded to initiate a quiet title action against numerous defendants, including appellant, Southwest Village Water Company, Inc., on March 8, 1982, alleging that the termination of the lease in the bankruptcy proceeding extinguished all claims or liens held by any of the defendants in the leasehold. Prior to trial, judgment was entered in favor of plaintiffs-appellees and against all defendants, other than Southwest, for various reasons. The case proceeded to trial between plaintiffs-appellees and defendant Southwest. The facts of the case were stipulated at trial by the parties, including the fact that Southwest had never been a lessee under the lease. Furthermore, both parties agreed that Southwest’s sole claim of any interest in the property was by virtue of an unrecorded assignment to it in February 1981 of a purported mortgage on the leasehold estate, which mortgage was previously given by Terry E. Graham to Joe G. Sanders.

The stipulations indicate that the issues to be determined by the trial judge were: (1) Did Southwest hold a valid mortgage on the leasehold estate? (2) Did the termination of the lease by the United States Bankruptcy Court extinguish any interest that Southwest might have held in the leased property?

The trial judge found in favor of plaintiffs-appellees on both issues and entered a final judgment declaring that appellant, Southwest Village Water Company, Inc., had “no right, title or interest in or to the real estate ... subject to the [lease].” Southwest appeals to this court alleging that the trial court erred in its determination of both issues. We do not agree.

Southwest’s basic argument, on appeal, is that, assuming it held a valid mortgage on the leasehold, the order of the United States Bankruptcy Court terminating the lease did not entitle appellees to a judgment by the Madison County Circuit Court forfeiting Southwest’s interest in the property, since Southwest did not receive notice of the impending forfeiture or adversary proceeding, was not made a party to the proceeding, and was not given an opportunity to protect its mortgage by correcting the violations of the lease conditions.

The question of whether a mortgagee of a leasehold estate has any rights in the leased property upon termination or forfeiture of the lease has not directly been addressed in Alabama. Furthermore, the authority from other jurisdictions on this point is sparse.

Our Alabama case of U.S.A. Petroleum Corporation v. Jopat Building Corporation, 343 So.2d 501 (Ala.1977), which reaffirms various principles set out in Brock v. Desmond & Company, 154 Ala. 634, 45 So. 665 (1908), lends guidance to the question at hand.

The issue in U.S.A. Petroleum was whether a sublessee retained any rights in the leased property upon forfeiture of the lease by the original lessee. The court stated that the sublessee’s right to possession of the property was subject to the terms and conditions of the lease and that “[t]he sublessee could stand in no higher position than the lessee from which its rights derived.” 343 So.2d at 504 (citing Brock, supra) (emphasis added). Consequently, the forfeiture of the lessees’ rights in the property necessarily resulted in the forfeiture of the sublessees’ rights. Id. The court further stated that “[t]he remedy of the subtenant for [the surrender of its rights] is confined to its immediate lessor (the lessee) upon covenants in the sublease.” Id. (citing Brock, supra.)

An analogy of U.S.A. Petroleum to the case at bar leads us to the conclusion that the forfeiture of the lease against the lessee (Chulavista) worked a forfeiture of the rights of the lessee’s mortgagee (Southwest) in the leased property.

When the long term lease was forfeited against the principal lessee (Chulavista), any rights that Chulavista had in the property were extinguished. It follows that since Southwest’s rights were derived from the rights held by Chulavista, Southwest could stand in no higher position than Chu-lavista. Therefore, any rights that Southwest may have in the leasehold property were, by necessity, also extinguished.

The remedy for a mortgagee in this situation would be against the mortgagor according to the terms of the mortgage and subject to the lessor-fee owners’ rights in the property. Under the facts of this case, it seems obvious that Southwest should assert any rights and should pursue any remedies it may have against Chulavista in the United States Bankruptcy Court.

To hold as the mortgagee in the present case urges, i.e., that Southwest be allowed to assume the position of the lessee and cure the default in the lease, this court would be giving rights to Southwest that it is not afforded under the lease. We would be forcing appellees, the lessors, to adhere to a contract not of their own making, and this the court will not do. Furthermore, the limited amount of authority from other jurisdictions that have addressed the issue of the rights of the mortgagee of a leasehold upon termination or forfeiture of the lease is in accord with our present holding. See Law Center Inc. v. Trust Company of North America, 84 N.Y.S.2d 577, (N.Y.Sp. Term 1948); Third National Bank & Trust Company of Scranton v. Lehigh Valley Coal Company, 353 Pa. 185, 44 A.2d 571 (1945); City of Chicago v. Salinger, 384 Ill. 515, 52 N.E.2d 184 (1944); Bowen v. Selby, 106 Neb. 166, 183 N.W. 93 (1921); Wender Blue Gem Coal Company v. Louisville Property Company, 137 Ky. 339, 125 S.W. 732 (1910); Abrahams v. Tappe, 60 Md. 317 (1883).

In view of our holding that any rights Southwest may have held in the leased property were extinguished upon forfeiture of the lease, it is unnecessary to determine whether Southwest held a valid mortgage on the leasehold under the facts of this case. We, therefore, pretermit discussion of that issue.

It should be noted, however, that in its appeal, Southwest contends that even if the master lease was lawfully forfeited against it, equity should refuse to enforce the forfeiture against the mortgagee under the facts of this case. Again, we think U.S.A. Petroleum, supra, to be dispositive of this issue. In U.S.A. Petroleum, 343 So.2d at 505, we stated:

“As a general rule, equity will relieve against the forfeiture of a lease for nonpayment of rent on the theory that the covenant for such forfeiture is intended merely as security and will be relieved against on payment of rent due and any damages sustained by the lessor. Relief, however, will not ordinarily be granted against forfeiture arising from a breach of covenants other than that covenant to pay rent, because no exact compensation can ordinarily be made for other breaches. See Cesar v. Virgin, 207 Ala. 148, 149, 92 So. 406 (1921). See also 49 Am.Jur.2d, Landlord and Tenant, § 1078.” (Emphasis added.)

In the instant case, the lease was terminated due to breach of covenants to keep the premises in good repair, and not for nonpayment of rent. Also, a determination of an exact amount that would compensate the lessors for the breaches asserted would be difficult, if not impossible. Relief for the mortgagee from forfeiture, therefore, is not warranted in this case.

We have reviewed the record and briefs in this case. Finding no error in the lower court’s ruling, we affirm.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Andrea GUTHRIE, a minor, etc., et al. v. BIO-MEDICAL LABORATORIES, INC., et al. Ex parte Andrea GUTHRIE. (In re: Andrea GUTHRIE, et al. v. BIO-MEDICAL LABORATORIES, Drs. Ray, Birdsong and O’Rear, et al.)
    82-569, 82-905.
    Supreme Court of Alabama.
    Dec. 5, 1983.

      Michael A. Worel of Emond & Vines, Birmingham, for appellants and petitioners.
    Robert D. Norman and Michael K. Wright of Norman, Fitzpatrick & Wood, Birmingham, for Bio-Medical Laboratories,
    W. Stancil Starnes and Randal H. Sellers of Starnes & Atchison, Birmingham, for Drs. Ray, Birdsong and O’Rear.
   FAULKNER, Justice.

Gary and Susan Guthrie brought this action individually and on behalf of their minor daughter, Andrea, against Bio-Medical Laboratories, Inc., Baptist Medical Centers, People’s Hospital, Walker County Medical Center, Dr. William D. Birdsong, Dr. Edgar Allen O’Rear, Jr., Dr. Robert Elbert Ray, Dr. Gaines Keith, and Dr. David Wirtschafter. The trial court granted a summary judgment in favor of BioMedical and made it final in accordance with ARCP 54(b). It then ordered a severance of the action against Doctors Birdsong, Ray, and O’Rear from the action against the remainder of the defendants. Since Birdsong, Ray, and O’Rear are residents of Walker County, the court then transferred the severed action to the Circuit Court of Walker County. The plaintiffs appealed from the summary judgment and petitioned for a writ of mandamus ordering the trial court to vacate its order severing and transferring the action against Birdsong, Ray, and O’Rear.

The complaint alleged that on or about April 2, 1974, Dr. Keith withdrew a specimen of Mrs. Guthrie’s blood and sent it to Bio-Medical Laboratories for a prenatal analysis. Bio-Medical reported that Mrs. Guthrie’s blood type was A-positive when, in fact, it was A-negative. When Mrs. Guthrie subsequently became pregnant, an Rh incompatability occurred between Mrs. Guthrie and her unborn child. Andrea was born on September 30, 1978, with brain damage allegedly attributable to the Rh incompatability. The plaintiffs claimed that if Bio-Medical had accurately typed Mrs. Guthrie’s blood her physician could have taken steps before she became pregnant to prevent the incompatability.

Doctors Birdsong, Ray, and O’Rear treated Mrs. Guthrie after she became pregnant. They performed their own blood testing and presumably were aware of the Rh incompatability. They were unaware of, and in no way relied on, Bio-Medical’s test. The plaintiffs alleged that Birdsong, Ray, and O’Rear failed to timely and properly treat Andrea and that, as a proximate result, she suffered the injuries complained of.

SUMMARY JUDGMENT

As grounds for its motion Bio-Medical argued that the complaint failed to state a claim against it and that the statute of limitations had expired. In support of its motion, it filed an affidavit by an immuno-hematology supervisor who was employed by the defendant on the date in question. The affidavit states, inter alia, that:

“As a part of my duties and responsibilities with Biomedical Reference Laboratories, Inc., I did perform routine grouping and typing of blood for specimens submitted to Biomedical Reference Laboratories for analysis. From the account number and specimen number shown on the report of Susan Guthrie dated April 4, 1974, it is determined that the laboratory analysis was performed in Burlington, North Carolina.
“The specimen which was analyzed was taken and labeled by Dr. Woodrow Gaines Keith of Carbon Hill, Alabama prior to being submitted to Biomedical Reference Laboratories, Inc. for testing.
“The procedures which I followed in routine grouping and typing of blood were those recommended by the American Association of Blood Banks.
“All reagents were tested daily using known positive and negative controls.
“At this time, the auto-typer (Techni-con) was used daily to run all specimens.
“All Rh negative specimens were pulled and further testing was done to conclude the results as being positive or negative. Results were then recorded on a computer printout sheet and entered into the computer to be sent to the doctor and/or laboratory that requested the tests.
“This procedure was followed uniformly with respect to all specimens submitted for analysis including that of Susan Guthrie.
“Biomedical Reference Laboratories, Inc. in Burlington, North Carolina has been accredited by the College of American Pathologists since January of 1973, and is presently accredited.”

In response to Bio-Medical’s affidavit, the plaintiffs filed an affidavit by a physician who is the supervisor of another laboratory which does blood typing; that affidavit stated, inter alia:

“If, on April 4, 1974, standard, accepted, and routine procedures concerning the labeling, handling, grouping, typing, and reporting of a blood specimen had been followed by a laboratory, the determination of whether a specific blood sample was Rh negative could have been accurately made and reported.
“If, on April 4, 1974, a laboratory determined or reported that a specific blood sample was Rh positive, when in fact the specific blood sample was Rh negative, that laboratory failed to either possess or use that degree of care, skill, and diligence ordinarily possessed and used by laboratories.”

Summary judgments are rarely appropriate in negligence actions. Folmar v. Montgomery Fair Co., 293 Ala. 686, 691, 309 So.2d 818, 822 (1975). Extreme caution is especially appropriate when reviewing cases such as the one at bar where a summary judgment was granted before full discovery was completed by the parties.

This ease bears a great similarity to, and is governed by, our opinion in Scott v. Mendoza, 428 So.2d 8 (Ala.1982) In Scott, the defendant, a physician who had treated the plaintiff, alleged by affidavit that he had exercised the standard of care required of him under the circumstances. An affidavit filed on behalf of the plaintiff by a physician treating him subsequently stated that, in the opinion of the affiant, the injuries complained of could have had any one of three causes. Even though only one of the three possible causes enumerated in the affidavit was attributable to the defendant, we ruled that the possibility that the defendant was responsible was sufficient to raise an issue of fact.

Similarly, in the case at bar, the defendant’s affidavit alleged that in this case, as in all others, it exercised due care in typing the blood. The plaintiffs’ expert’s affidavit to the effect that the incorrect typing could have been the result of the failure of BioMedical to either possess or use the degree of care ordinarily possessed by laboratories which perform blood typing was sufficient to raise a question of fact. We recognize the possibility that the error may have been attributable to the person or persons who handled the specimen before it reached Bio-Medical. Such questions of fact are not, however, appropriate for resolution by summary judgment. Scott, supra at 11.

The defendant also raised the statute of limitations as a defense. The Alabama Medical Liability Act provides:

“(a) All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
“(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitation for the commencement of actions, namely, sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30 and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his eighth birthday to commence such action.”

Section 6-5-482, Code of Alabama (1975).

Since the test in question was performed on or about April 6, 1974, Bio-Medical argued that any actions based on the testing would have to have been filed by April 6, 1978, to have been timely. Plaintiffs’ action was not filed until November 5, 1979.

We disagree with the defendants’ assumption that the statute began to run in 1974. In order to accord constitutional validity to the statute, we ruled in Ramey v. Guyton, 394 So.2d 2 (Ala.1981), that the prescriptive period cannot begin to run until a cause of action “accrues,” to-wit, when the act complained of results in injury to the plaintiff. Since the injuries to Andrea occurred within two years of filing suit, the action was timely. Under any interpretation of the act, the action brought on behalf of Andrea was timely because it was filed before her eighth birthday. Section 6-5-482(b), Code of Alabama (1975).

SEVERANCE

In its order severing the action against Doctors Birdsong, Ray, and O’Rear, the trial court stated, inter alia:

“Because the undisputed affidavit testimony has established that each of said defendant physicians was not aware of the existence of the [Bio-Medical] report, any cause of action which plaintiffs would have against these defendants based on treatment of Andrea Guthrie is separate and apart from any cause of action which plaintiffs might have against defendant Bio-Medical Laborato-ríes, Inc. based on negligence alleged to have occurred before Andrea Guthrie was conceived. Because the claims of the plaintiffs against defendants Ray, Birdsong, and O’Rear are not properly joined with plaintiffs’ claims against defendant Bio-Medical Laboratories, Inc., and the Court, pursuant to its authority under Rule 21 ARCP does hereby sever plaintiffs’ claims against defendants Ray, Birdsong, and O’Rear from the plaintiffs’ claims against all other defendants.”

Rule 21 provides the mechanism for dropping or adding parties in instances of misjoinder or non-joinder. The rule should be read in conjunction with Rules 18, 19, and 20, since it contains no standards governing its operation, but is invoked when one of the other rules has been violated. See Pan American World Airways v. United States District Court, C.D., Cal., 523 F.2d 1073, 1079 (9th Cir.1975); United States v. Commercial Bank of North America, 31 F.R.D. 133, 135 (S.D.N.Y.1962).

A.R.C.P. 20 provides that it is permissible to join defendants if: (1) the plaintiff(s) asserted any right to relief against the defendants, either jointly, severally, or in the alternative; (2) the claims were asserted in respect of, or arising out of, the same transaction, occurrence, or series of transactions or occurrences; and (3) there is any question of law or fact common to all defendants.

In the case at bar, the plaintiffs were clearly entitled to join the defendants in one action. (1) The complaint alleged that each defendant was negligent and that as a proximate result Andrea suffered brain damage. (2) The claims all arose out of the same series of occurrences, to-wit, Andrea’s conception, gestation, and birth. (3) There was but a single, indivisible injury to Andrea, which was allegedly caused by the negligence of one or more of the defendants. Therefore, there is a factual issue common to all defendants, the issue of damages.

A.R.C.P. 20 was intended to abolish the technical objections to joinder previously existing, in order to prevent a multiplicity of actions and allow all parties interested in a controversy to proceed in one action. See Committee Comments to Rule 20. Forcing the plaintiffs to pursue two actions for Andrea’s injuries would create a risk of incurring inconsistent judgments. Requiring all the parties to proceed in a single action will promote consistency of results as well as judicial economy.

Although factually accurate, the defendants’ argument that Bio-Medical’s alleged mistyping had no effect on the care and treatment provided by Doctors Birdsong, Ray, and O’Rear is unpersuasive. Nothing in the rules of civil procedure requires the allegedly negligent acts of all the defendants to be so intertwined. It is not essential to allege that the defendants jointly committed a single tort in order for the plaintiff(s) to properly join them in one action. It is sufficient to allege that successive torts concurred in producing the same indivisible injury. Brown v. Murdy, 78 S.D. 367, 102 N.W.2d 664, 667 (1960); Shawd v. Donohoe, 97 Ohio App. 252, 125 N.E.2d 368, 369 (1954).

The summary judgment in favor of BioMedical Laboratories, Inc., is hereby reversed. The petition for writ of mandamus is granted and the trial court is hereby ordered to vacate its order severing and transferring the action against the defendants Birdsong, Ray, and O’Rear. The case is remanded to the trial court.

82-569, REVERSED AND REMANDED; 82-905, WRIT GRANTED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: SHORES, Justice.

text:
    Dorothy May MOORER v. DOSTER CONSTRUCTION COMPANY, INC.
    82-1035.
    Supreme Court of Alabama.
    Dec. 9, 1983.
    David W. Haines, Birmingham, for appellant.
    Tommy Yearout of Rutledge & Yearout, Birmingham, for appellee.
   SHORES, Justice.

We are once again called upon to state the law with respect to fictitious parties and an amendment’s relation back so as to avoid the bar of the statute of limitations.

The original complaint was filed on October 14, 1982. The caption described the parties as:

“DOROTHY MAY MOORER, Plaintiff “vs. “THE CITY OF BIRMINGHAM, Alabama, a municipal corporation; X, Y, and Z, the legal entity responsible for the repair and maintenance of the streets, alleys, and public ways of the City of Birmingham, Alabama, on October 14, 1981, and whose carelessness, neglect, or failure to remedy a defect in said streets, alleys or public ways caused the injuries to the Plaintiff referred to in the complaint, whose true name and legal description is otherwise unknown to Plaintiff but will be supplied by amendment when ascertained, Defendants.”

The complaint contained one theory of liability, stated as follows:

“2. Plaintiff avers that on or about October 14, 1981, Defendants negligently maintained the streets, alleys, and public ways at or near 27th Street between 30th and 31st Avenues North, Birmingham, Alabama. As a proximate consequence of said negligence, Plaintiff was caused to fall and seriously injure herself as hereafter described.”

As indicated, the complaint was filed on the last day allowed by the statute of limitations on the negligence claimed therein.

Subsequently, the plaintiff propounded interrogatories to the City of Birmingham, which contained the following question:

“1. Do you deny that you were the party responsible for the repair and maintenance of the streets, alleys, and public ways at or near 27th Street between 30th and 31st Avenue, North on October 14, 1981?
“a. If you do deny such responsibility, please state the name of the person, firm or corporation whom you claim to be so responsible on said date at said place.”

The City of Birmingham filed answers to these interrogatories in the following form:

“1. Yes.
“(a) It appears that the condition which allegedly caused the plaintiff to fall was located within an area where a sidewalk cut away was being constructed by Doster Construction Company under a contract with Carraway Methodist Hospital where they were responsible for maintaining the safety of the area and would have primary liability under 11-47-191, Code of Alabama 1975.”

The plaintiff thereupon filed the following amendment to her complaint:

“Comes now the Plaintiff in the above action and amends her Complaint heretofore filed as follows:
“1. By changing and re-designating party ‘X’ as ‘Doster Construction Company, Inc., a corporation’.
“2. By changing and re-designating party ‘Y’ as ‘Carraway Methodist Medical Center, a corporation’.”

Doster Construction Company, Inc., filed a motion to dismiss the complaint, alleging that the statute of limitations barred the claim against it. The trial court granted the motion, noting in its order that it appeared that the cause of action against Doster was barred by the statute of limitations. The court subsequently entered a 54(b), A.R.Civ.P., order, and the plaintiff appealed. We reverse.

This Court has addressed the question raised on this appeal, or very similar ones, in seven recent cases: Phelps v. South Alabama Electric Co-op, 434 So.2d 234 (Ala.1983); Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983); Threadgill v. Birmingham Board of Education, 407 So.2d 129 (Ala.1981); Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981); Minton v. Whisenant, 402 So.2d 971 (Ala.1981); Fowlkes v. Liberty Mutual Ins. Co., 392 So.2d 803 (Ala.1980); Shirley v. Getty Oil Co., 367 So.2d 1388 (Ala.1979).

As demonstrated by this appeal, we have not succeeded in our efforts to clarify the rule, which has been confused by some of the statements contained in one or more of these recent cases. This case represents a textbook example of how and under what circumstances the rule was intended to operate. Here, the plaintiff did not know who was responsible for the maintenance of the street at the time her complaint was filed. Not knowing, she properly included them by naming them fictitiously and describing them by the function they performed. In addition, and as required by the above cases, she stated a cause of action against all defendants in the body of her complaint. No more is required.

Apparently Bench and Bar are interpreting our recent cases to require that a cause of action be stated separately in the complaint against each fictitious party. This is not necessary. As we said in one or more of those cases, no more particularity is required in stating a claim against a fictitious party than is required in stating a claim against a party whose name is known at the time the complaint is filed. Here, the complaint satisfies the rule by alleging that the defendants, plural, negligently maintained the streets, etc. Nothing would have been added by restating the very same allegation against fictitious party X.

We hold that the body of the complaint, as originally filed, states a cause of action, or a claim upon which relief may be granted, against Doster Construction Company, which was initially sued as fictitious party X under Rule 9(h), A.R.Civ.P. The amendment substituting Doster for fictitious party X, therefore, relates back to the time of the filing of the original complaint, under Rule 15(c), A.R.Civ.P. Therefore, the statute of limitations is not a bar to the claim against Doster. This comports with the two requirements announced in our previous cases: “(1) Plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and (2) plaintiff must be ignorant of the identity of the fictitious party....” Columbia Engineering Int'l, Ltd. v. Espey, 429 So.2d at 958.

We have not found a contrary holding in any of the recent cases cited previously. Justice Embry, with whom Justice Faulkner joined, expressed a contrary view in his dissenting opinion in Phelps, supra. A majority, however, has consistently held that the procedure followed in this case is sufficient to comply with the statute of limitations.

The judgment of the trial court is reversed, and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur, except ALMON, J., not sitting.


text:
    John Karmell WARD and Southern Haulers, Inc. v. Susan ULLERY.
    Civ. 3795.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Rehearing Denied Oct. 5, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-122.
    See also, 412 So.2d 796.

      John W. Cooper, Mentone, for appellants.
    Julian P. Hardy of Lorant, Harris & Yearout, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal arises out of a controversy as to whether a district court final judgment contained such an error as to be correctable under Rule 60(a) of the Alabama Rules of Civil Procedure.

In the district court, Ullery sued Southern Haulers and Ward along with some fictitious defendants. She sought damages for personal and property injury resulting from the negligent collision of a truck, owned by Southern Haulers and driven by Ward, with her automobile.

On March 20, 1980, trial was held in the district court. Ward testified that he was employed by Southern Haulers and was engaged in his employer’s business at the time of the collision. At the conclusion of the trial, the district court apparently proclaimed a judgment for the plaintiff for $750. On that date a rubber stamp was used to record the following judgment: “Judgment by default consent trial for Plaintiff and against Defendant_ for $750.00...” There was no appeal from the judgment.

On March 24, 1981, over a year after the entry of the district court’s final judgment, Ward and Southern Haulers filed in that court a motion for relief from the judgment under Rule 60(b)(4), (6). They alleged that the district court’s judgment was void due to a lack of certainty as to which defendant it was rendered against. The district court held a hearing thereon and subsequently rendered its April 15, 1981 judgment which recited that it was the intention of the district court to render a judgment in favor of the plaintiff and against both defendants, but that a clerical error was made by the court in not adding the letter “s” to and after the word “Defendant_” in the March 20, 1980 judgment entry. Accordingly that judgment was corrected to read, “Judgment by trial for Plaintiff and against Defendants for $750.00...” The fictitious defendants were dismissed.

Ward and Southern Haulers perfected an appeal to the circuit court. However, before that court heard the case, they appealed directly to this court from the district court upon an agreed question of law. This court dismissed that appeal. Ward v. Ullery, 412 So.2d 796 (Ala.Civ.App.), cert. denied, 412 So.2d 796 (Ala.1982). Thereafter, the circuit court granted Ullery’s motion to dismiss Ward and Southern Haulers’ appeal to that court and the defendants have once more perfected their appeal to this court.

Rule 60(a) provides as follows:

“Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ.”

In interpreting that rule, some of the recognized authorities have made the following statements:

“Rule 60(a) permits the correction of clerical mistakes in judgments, orders, or other parts of the record as well as the correction of errors arising from oversight or omissions... [I]f the intention of the judge to include a particular provision in the judgment was clear, but he neglected to include the provision, the rule authorizes correction of the judgment.”

11 C. Wright and A. Miller, Federal Practice and Procedure § 2854 at 148, 153 (1973).

“The errors envisioned by Rule 60(a) cover such things as misprisions, oversights and omissions, unintended acts or failures to act.”

6A J. Moore, Moore’s Federal Practice ¶ 60.06(1) at 4054 (2d ed. 1983).

“The correction of clerical errors in the records of judgments may take the form of amendments striking out the names of parties who ought not to have been included, or inserting the names of parties who ought to have been included, or substituting the name of a party who ought to have been included for the name of a party who was improperly included.”

46 Am.Jur.2d, Judgments, § 205 at 446 (1969).

From the most applicable opinion of our supreme court we quote:

“The term ‘clerical errors’ is not limited solely to errors by the clerk in transcription. It can also include errors by others, such as a jury foreman, counsel, a party, or the judge himself. 13 A.L.R. Fed. 794, § 4. When a correction is based upon the recollection of the court it is not subject to contest. 13 A.L.R. Fed. 794, § 2. Here Judge Kittrell has stated in his order of November 2 that he intended to grant the motion to dismiss but did not do so through oversight or omission. Thus his action was within the scope of Rule 60(a). A similar order was allowed in Blaine v. Peters, 90 U.S. App.D.C. 207, 194 F.2d 887 (1952), where the District Court inadvertently denied a motion for a judgment notwithstanding the verdict, or in the alternative for a new trial. Two months later the District Court set aside the denial and granted the motion for new trial in a Rule 60(a) correction.” (Emphasis supplied.)

Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979).

In Honeycutt v. Moore’s Supreme Oil Company, 293 Ala. 151, 300 So.2d 816 (1974), the two defendants filed a cross-complaint against the plaintiff, and the trial court’s judgment ordered the plaintiff to pay the “defendant” $500 thereunder. The supreme court held that, after a review of the record, the trial court’s failure to specifically name the defendant in whose favor the judgment was rendered amounted to a mere clerical error.

In reviewing the record in this case, it is apparent that the only two real defendants were Ward and Southern Haulers and that an uncontroverted master-servant relationship with the necessary scope of authority existed between them at the time of the accident. We are also highly cognizant of the finding of the trial court’s intentions to render a judgment against both Ward and Southern Haulers.

In using a rubber stamp to record a routine judgment, it is relatively easy for a conscientious trial judge to fail to fill in blanks therein. Interruptions, preoccupation about other matters, time and trial pressures, engorged dockets, double capacity caseloads and myriad other reasons can lead to an oversight or omission, as was very humanly made in this instance by the learned district court regarding the March 20, 1980 judgment. A clerical error was made by the district court which was correctable under Rule 60(a) under the decisions in the Continental Oil and Honeycutt cases, supra.

The district court properly amended its March 20, 1980 judgment so as to make it speak the truth by means of the April 15, 1981 judgment. The circuit court correctly dismissed Ward and Southern Haulers’ appeal.

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.


text:
    Emmitte Edwin MIMS v. Miriam Louise MIMS.
    Civ. 3794.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.
    Rehearing Denied Dec. 14, 1983.
    See also, 444 So.2d 874.
    Frank W. Riggs, Montgomery, for appellant.
    G. Houston Howard, II of Howard, Dunn & Howard, Wetumpka, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a periodic alimony modification and contempt proceeding.

The divorce judgment was rendered on February 5, 1980, and it required Mr. Mims to pay to Mrs. Mims as periodic alimony $250 each month. At that time, Mr. Mims was paid disability benefits by both the Veterans Administration and the Social Security Administration. His social security payments were discontinued and he received from them his last monthly check of $456 in December 1982. Mr. Mims contested that discontinuance but the contest has not been decided. The Veterans Administration’s tax-free 100% medical disability payment presently amounts to $1,278 each month. Admittedly, Mr. Mims did not make any of the seven monthly alimony payments due in October 1982 through April 1983.

Mr. Mims has remarried and in excess of one-third of his itemized expenses are payments or expenses of his present wife, who has no income of her own. The mental and physical health of Mr. Mims is poor and he is not able to work.

Mrs. Mims is employed as a hospital supply clerk and earns $509 a month as take-home pay. Her monthly itemized expenses total $820. The children, who are all adults, assist her in making financial ends meet.

Modification

Mr. Mims sought a modification in, or elimination of, periodic alimony. The trial court denied his petition.

The ore tenus rule applies and the judgment of the trial court is presumed to be correct. Whether a periodic alimony judgment should be modified because of the parties’ changed circumstances reposes within the judicial discretion of the trial court and its decision will not be disturbed on appeal unless the judgment is palpably wrong. While Mr. Mims had a reduction in income received of $456 a month, we cannot say that the trial court was palpably wrong or abused its discretion in denying his modification petition. Jeffcoat v. Jeffcoat, 423 So.2d 888 (Ala.Civ.App.1982).

Contempt

Mrs. Mims’s petition requested that Mr. Mims be held in contempt of court for his failure to pay alimony as ordered. In prior proceedings, Mr. Mims had already been adjudicated to be in contempt of court for arrearages of alimony which are not of concern in the present litigation. The trial court again found Mr. Mims to be in contempt of court. The judgment expressly found that, although Mr. Mims possessed the means to make the alimony payments, he willfully and contemptuously failed or refused to pay it and that he was delinquent in his payments in the amount of $1,750. The trial court allowed Mr. Mims to purge himself of such contempt by making payments of $100 each month until the ascertained arrearage is paid in full.

We treat Mr. Mims’s appeal of the contempt matter as being certiorari proceedings.

In contempt cases the rule of review is restricted to questions of law and, if there is any legal evidence which supports the holding of the trial court, those factual findings are conclusive on appeal. Smith v. Smith, 380 So.2d 897 (Ala.Civ.App.1980). Here, the necessary supportive evidence appears in the record.

However, Mr. Mims argues that, since his only present income is a disability benefit from the Veterans Administration, contempt proceedings are improper because section 3101 of title 38 of the United States Code provides that those benefits are exempt from the claims of creditors. That code section states the following:

“Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary....”

Section 3101 does not apply in this case for, in Alabama, a former wife seeking to recover alimony is not a creditor of her former husband, the claim not being based upon a debt. Kendrick v. Kendrick, 271 Ala. 372, 124 So.2d 78 (1960). The instant contempt proceeding was not litigation which sought to attach, levy upon or seize Mr. Mims’s veterans benefits and the quoted code section is inapplicable. While that federal statute would prohibit an assignment or apportionment of Mr. Mims’s medical disability benefits, or any part thereof, which he receives from the Veterans Administration, whether the assignment be by agreement of the parties or by a judgment of the court, those benefits may clearly be considered by the court as a source of Mr. Mims’s income from which periodic alimony may be paid. Lott v. Lott, 440 So.2d 1090 (Ala.Civ.App.1983); Pedigo v. Pedigo, 413 So.2d 1154 (Ala.Civ.App.1981), cert. quashed, 413 So.2d 1157 (Ala.1982).

While we have decided the contempt issue upon the merits out of deference to Mr. Mims and to his learned counsel, the attempt to invoke section 3101 was first made on appeal and, for that reason as well as upon the merits, we hold that the trial court correctly adjudged Mr. Mims to be in contempt of court. Dobbins v. Getz Exterminators of Alabama, Inc., 382 So.2d 1135 (Ala.Civ.App.1980). It is not necessary that we decide whether or not the provisions of 42 U.S.C. § 659(a) are applicable to disability benefits received from the Veterans Administration.

The judgment of the trial court is affirmed.

Mr. Mims shall pay to Mrs. Mims’s attorney the sum of $400 as a reasonable fee for representing Mrs. Mims on this appeal before this court.

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

AFFIRMED.

All the Judges concur.


text:
    Jeffrey Lynn RIDGEWAY v. Gaston S. STRICKLING.
    Civ. 3857.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Arthur F. Fite, III, Anniston, for appellant.
    Ralph L. Brooks, Anniston, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an automobile accident case.

The parties prepared and signed an agreed statement as being the record on appeal in accordance with Rule 10(e) of the Alabama Rules of Appellate Procedure. The trial court approved it. Pertinent portions of the agreed statement follow:

“2. On August 3, 1982, the plaintiff, Gaston S. Strickling, filed a complaint charging the defendant, Jeffrey Lynn Ridgeway with negligent operation of an automobile. The sheriff served the defendant, who was a minor, personally but did not serve anyone else. The defendant denied the allegations of the complaint. The Answer of the defendant denied the plaintiffs allegations and charged the plaintiff with contributory negligence.
“3. On March 16, 1983 the plaintiff, upon proper notice, took the deposition of Dr. N.E. Nester who had treated the plaintiff.
“4. The case was tried before a jury on April 12, 1983. The jury returned a verdict in favor of the plaintiff and assessed his damages at $5,595.00 plus costs.
“5. At the time the suit was filed on August 3, 1982, the defendant, Jeffrey Lynn Ridgeway was a minor, 17 years of age. The defendant was born on August 28, 1964. At the time the case was tried before the jury, the defendant was a minor, 18 years old.
“6. The trial commenced on April 12, 1983. A jury was selected, the plaintiff offered his own testimony and the deposition of Dr. Nester. The plaintiff then rested. The defendant then began offering testimony from other witnesses concerning the automobile accident. The court recessed for lunch. Following the noon recess, the plaintiff’s attorney moved in open court for the court to appoint a guardian ad litem to represent the defendant. No guardian ad litem had been appointed to represent the defendant at any stage of the proceedings until the motion was made. The court immediately appointed Arthur Fite, III, the attorney who had been representing the defendant from the beginning of the suit, to be the defendant’s guardian ad litem. The defendant then proceeded with the remaining witnesses with respect to his case and following the presentation of his witnesses the defendant rested.
“7. The defendant was represented by the same attorney throughout the entire proceedings, but only by a guardian ad litem from a point during the course of the trial of the case as stated in the preceding paragraph. At no time did the defendant have a general guardian.
“8. At the time that the plaintiff moved for an appointment of guardian ad litem, which was done outside the presence of the jury, the plaintiff’s counsel stated to the court that he was of the opinion that the defendant was entitled to a mistrial at that time because there had been no appointment of a guardian ad litem prior to the trial. Neither the plaintiff nor the defendant moved for a mistrial at any time on any grounds, nor did the court order a mistrial.
“9. The defendant filed a timely motion for a new trial raising the issue of the failure of the trial court to make a timely appointment of a guardian ad li-tem for the defendant. The trial court denied the motion for a new trial and this appeal was perfected.”

The minor defendant argues that important proceedings, consisting of the taking of the doctor’s deposition and the undertaking and completion of a major portion of the jury trial, occurred at a time when he did not have a guardian ad litem. He argues that the failure of the trial court to timely appoint a guardian ad litem rendered the final judgment voidable and that it is due to be set aside. The primary authority for his argument is Citizens Walgreen Drug Agency, Inc. v. Gulf Insurance Company, 282 Ala. 648, 213 So.2d 814 (1968).

On the other hand, the plaintiff contends that Rule 17(c) of the Alabama Rules of Civil Procedure changed or altered the pri- or Alabama rule. He argues that the appointment of a guardian ad litem is not always required under the federal civil rules and that, when a guardian ad litem is not appointed, or the appointment is late, the judgment is voidable only when the minor defendant was not properly represented in the civil action. The plaintiffs principal authorities are Savage v. Rowell Distributing Corp., 95 So.2d 415 (Fla.1957), and the discussion of federal rule 17(c) in 6 C. Wright & A. Miller, Federal Practice and Procedure § 1570 (1971).

Had this state’s supreme court adopted federal rule 17(c) verbatim, the old law as outlined by the defendant would have been largely replaced by different requirements, but “Rule 17(c) differs from Federal Rule 17(c) in its separate treatment of infants and incompetents. While some of the language of Rule 17(c) is drawn from the Federal Rule 17(c), the differences outnumber the similarities.” 1 C. Lyons, Alabama Practice at 353 (1973). If those two rules are placed in parallel columns and are compared and studied the dissimilarities are readily and clearly apparent.

With regard to infants and incompetents, Lyons has the following comments:

“The sense of the Committee Comments discloses an intention to leave present practice in this field unaltered. Superseded Tit. 7, § 102 Code of Alabama, was construed in Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co., 282 Ala. 648, 213 So.2d 814 (1968) to require the appointment of a guardian ad litem for minor defendants. Under Rule 17(c) a representative may sue in the name of an infant or, having no representative, an infant may sue by his next friend. An infant defends by guardian ad litem. An incompetent may sue or defend in the name of a representative. Having no representative he may sue by next friend and defend by guardian ad litem.” (Emphasis supplied.)

1 C. Lyons, Alabama Practice at 353 (1973).

It is evident from a comparison of the federal and Alabama rules 17(c) that the original advisory committee who proposed this rule to the Alabama Supreme Court deliberately drafted the Alabama rule so as to accommodate and preserve the prior requirements of the Alabama law regarding the necessity of the appointment of a guardian ad litem to defend an infant defendant. Accordingly, we must be governed by the latest authoritative pronouncement of the Alabama Supreme Court upon this subject. Their most recent and most applicable opinion which discussed and determined that law as to an infant defendant was the Citizens Walgreen Drug Agency case, supra, which stated:

“We hold that it was a duty resting upon the trial court to see that this injured infant receive a fair and impartial hearing, and that the record should have disclosed an appearance through the proceedings of a guardian ad litem being present in his behalf at all times. Owens v. Washington, 260 Ala. 198, 69 So.2d 694 [1953]; Porter v. Alabama Farm Bureau Mutual Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 [1966]; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234 [1936]; Title 7, § 102, Recompiled Code 1958, supra.
“Since the record is clear that a period of time existed when there were important proceedings being had before the court, and at such time there was no guardian ad litem to speak for the minor, the court, on its own motion, should have remedied this situation then and there. We cannot conceive how this court, on appeal, could hold otherwise than that the infant did not have due process in face of all the activities of the trial court during the space of time when there was no guardian ad litem in existence. This absence of a guardian ad litem, under such circumstances, was a violation of a non-waivable right of the minor respondent.”

282 Ala. at 651-652, 213 So.2d 814.

In applying that decision to the present ease, the minor defendant was without a guardian ad litem during important proceedings and he was absolutely entitled to the benefits of a guardian ad litem at those times. That was a non-waivable right. It was a right of such magnitude that, upon appeal, the supreme court will take notice ex mero motu of the absence of a guardian ad litem for an infant defendant and will reverse the case on that account. Doss v. Terry, 256 Ala. 218, 54 So.2d 451 (1951). Therefore, this minor through his guardian ad litem did not, and could not, waive that defect by failing to make a motion for a mistrial. The learned trial judge had no alternative but to grant the defendant’s motion for a new trial and erred to a reversal when that motion was overruled.

Because of the major differences which exist between federal rule 17(c) and Alabama’s rule 17(c), the Florida case which was relied upon by the plaintiff and most of the comments as to 17(c) in Federal Practice and Procedure, supra, have no application.

The case of Meriwether v. Brown, 390 So.2d 1042 (Ala.1980), concerned an incompetent defendant rather than an infant. The requirements of Alabama’s rule 17(e) as to the necessity of an appointment of a guardian ad litem for an incompetent differ materially from the rule’s mandate governing a guardian ad litem for an infant defendant. With regard to a minor defendant, a guardian ad litem must be appointed. A guardian ad litem need not be appointed to defend an incompetent who is diligently represented by counsel. Meriwether v. Brown, supra.

We are very cognizant of the feelings of futility, as well as the outright inconvenience, which are almost always experienced by trial judges, attorneys, litigants, witnesses, court officials and court employees when it is discovered or disclosed for the first time in the midst of a trial upon the merits of the case that a defendant is a minor and that no guardian ad litem had been appointed to represent him.

Regardless of the merits and demerits of both the federal and Alabama versions of rule 17(c), we have no authority to alter or amend it. This court must follow the decisions of our supreme court. § 12-3-16, Code of Alabama 1975.

The minor defendant further argues that this case also must be reversed because only he was served with a copy of the summons and complaint which is contrary to some of the requirements of Rule 4(c)(2) of the Alabama Rules of Civil Procedure. However, a decision on that issue is not necessary since this case must be reversed for other reasons, and the plaintiff will have the opportunity to, and should as a matter of precaution, correct any deficiencies which existed in service of process.

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.

REVERSED AND REMANDED.

All the Judges concur.

      . Federal Rule 17(c) is as follows:
      “(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”
      Alabama rule 17(c), in pertinent part is as follows:
      “(c) Infants or incompetent persons. Whenever an infant has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the infant. Whenever an incompetent person has a representative such as a general guardian or a like fiduciary, the representative may sue or defend in the name of the incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend. The court shall appoint a guardian ad litem (1) for an infant defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the infant or incompetent person....”


text:
    Roy Jack HIGGINBOTHAM v. Faye HIGGINBOTHAM.
    Civ. 3858.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1983.
    William R. Self, II, Huntsville, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a domestic relations appeal from a judgment of the trial court which overruled the husband’s posttrial motion.

The pertinent proceedings in the trial court in chronological order were as follows:

1. A divorce judgment was rendered on October 8, 1982.

2. The husband filed his Alabama Rules of Civil Procedure rule 59 motion on October 27, 1982. He alleged that he was not informed of the date of the divorce trial, and he complained of the division of marital assets.

3. The husband orally amended his motion on March 29,1983 so as to, alternatively, seek to set aside the judgment, under the authority of rule 60(b)(1), A.R.Civ.P., using the same original averments.

4. An ore tenus trial was held before the circuit court upon the motion on March 29, 1983. The evidence conflicted in almost every important area.

5. A final judgment, which denied and overruled the husband’s motion, was entered by the trial court on May 17, 1983.

6. The husband filed his notice of appeal on June 28,1983. Submission was had on November 9, 1983.

We affirm the action of the trial court for the reasons that follow.

As to the rule 59 aspect of the motion, it was overruled by operation of rule 59.1 in January 1983. Since the appeal was not taken until June 1983, it was not timely under Alabama Rules of Appellate Procedure rule 4(a)(3) so as to enable us to review the ruling upon the rule 59 motion. Olson v. Olson, 367 So.2d 504 (Ala.Civ.App.1979). Nevertheless, we opine that it was properly overruled upon its merits.

The other possible alternative of the motion fell under rule 60(b)(1), which motions must be filed within four months from the date of the final judgment. The oral amendment of the original rule 59 motion, which amendment attempted only to designate the October 27, 1982 motion alternatively as a rule 60(b) motion, was not made until almost five months had elapsed from the entry of the divorce judgment. The amendment came too late. Wilkerson v. City Sales Co., 374 So.2d 1333 (Ala.1979); McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979). Also, a meritorious defense was neither alleged nor proved. AAA Sewing Machine Co. v. Shelby Finance Co., 384 So.2d 126 (Ala.Civ.App.1980). Furthermore, the matter of an equitable property division in a divorce case falls within the judicial discretion of the trial court and the proper method to review an alleged abuse of discretion in that regard is by an appeal and not by a rule 60(b)(1) motion, which cannot take the place of an appeal. McSween v. McSween, supra.

Finally, out of deference to learned counsel for the husband, we have reviewed and studied the entire file upon the merits, including the evidence. The ore tenus rule applies. While the evidence was in sharp conflict, there was an abundance of testimony which fully supported the trial court’s ruling upon the motion. It is clear that the circuit court did not abuse its discretion in overruling the husband’s motion. Tucker v. Tucker, 403 So.2d 273 (Ala.Civ.App.1981).

We affirm.

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

AFFIRMED.

All the Judges concur.

      . We do not determine the propriety of the oral amendment to the motion.


author: HOLMES, Judge.

text:
    NORTH ALABAMA NURSING HOME, INC. v. Annie Mae BORDEN.
    Civ. 3878.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1983.
    Luke E. Alexander of Guin, Bouldin & Alexander, Russellville, for appellant.
    David Neal of Fine & Associates, Rus-sellville, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court found that the employee suffered a sixty percent loss of ability to earn as a result of a job-related injury. The injury suffered was a hernia.

The employer appeals, and the dispositive issue on appeal is whether there is evidence to support the trial court’s finding.

We find no reversible error and affirm.

At the outset we note the often quoted standard of review in workmen’s compensation cases. The decision of the trial court will be upheld upon appellate review if there is any legal evidence to support the trial court’s findings. Dees v. Daleville Florist, 408 So.2d 155 (Ala.Civ.App.1981).

The facts in general reveal the following: The employee, a forty-one-year-old female, worked as a nurse’s aide at employer’s nursing home. She testified that her job involved making beds and feeding, dressing, bathing, and carrying patients. On January 23, 1981, she and another nurse’s aide were lifting a patient from his bed when the other aide released her hold on the patient. When the entire weight of the man was left to the employee, she felt her stomach tear. She immediately became nauseated, and felt as if she would faint. After steadying the patient in a chair, employee left work. The next day she saw a doctor who diagnosed her injury as a ventral hernia and recommended surgery. Employee was admitted to the hospital on March 9,1981, and the operation was performed March 12, 1981.

I

The employer first contends that the evidence does not satisfy the requirement of Ala.Code § 25-5-57(a)(6) (1975).

This code section, in pertinent part, is as follows:

“(6) HERNIA
“a. Proof. — In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of his employment, it must be definitely proven to the satisfaction of the court:
1. That there was an injury resulting in hernia,
2. That the hernia appeared suddenly,
3. That it was accompanied by pain,
4. That the hernia immediately followed an accident, and
5. That the hernia did not exist pri- or to the accident for which compensation is claimed.”

(Emphasis supplied.)

In support thereof the employer relies upon certain medical testimony. This testimony is that approximately seven years prior to the January 1981 injury the employee had one-half of her stomach removed. Then, in 1977, the employee suffered a hernia, the tear occurring along the incision of the earlier surgery. A short time prior to the January accident, the employee visited a physician complaining of stomach pains. Medical testimony was that the January 1981 hernia probably came about gradually. Other medical testimony was that if it had developed suddenly, “it would be attended by a whole lot of pain, like lifting something, something tore loose.”

The employee testified that while lifting a patient at work she experienced a stinging, tearing sensation that nauseated her and made her feel faint. She also said that she felt a great deal of pain.

The day following the accident a physician diagnosed the employee’s condition as a ventral hernia.

In view of the standard of review, as indicated above, the medical testimony in part, to wit, that if it had developed suddenly “it would be attended by a whole lot of pain like lifting something, something tore loose” and the referenced testimony of the employee provide the necessary evidence to comply with the dictates of § 25-5-57(a)(6).

Put another way, there is evidence the hernia “appeared suddenly.”

II

The employer next contends that the trial court did not properly consider the question of a pre-existing injury.

The pre-existing injuries the employer points to are the stomach surgery and the first hernia. Under § 25-5-58, “[i]f the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.” This provision was explained in Allen v. Metro Contract Serv ices, Inc., 421 So.2d 1289 (Ala.Civ.App.1982); Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948); and Thompson & Co. Contractors v. Cole, 391 So.2d 1042 (Ala.Civ.App.1980). Ingalls stated the fundamental principle that an employer takes the employee subject to his physical condition when he enters his employment. The terms of the statute, it stated, “do not refer to latent conditions which may not spring into activity during the compensable period, and at the time of the accident are causing no apparent physical effect on the health or activity of the employee.” 251 Ala. at 173, 36 So.2d at 521. Thompson defined the terms “disability” and “infirmity” as referring “to a condition which affects the ability to work as a normal man at the time of and prior to the accident.” 391 So.2d at 1045. The same rules are repeated in Allen where the court reversed the trial court’s consideration of the employee’s “general physical condition” as a factor reducing the compensation award.

In the present case, although employee had suffered earlier physical ailments; that is, the earlier stomach surgery and the first hernia, and although there was medical testimony that but for the stomach surgery, employee probably would never had sustained the hernia, the trial court was, in this instance, correct in not allowing these other medical conditions to reduce the compensation fixed. The uncon-tradicted proof established that employee returned to work after the stomach surgery and the first hernia and that she had no problems whatsoever. Employee testified that after recovering from the earlier surgery she was able to do the same kind of work she had done before. Under these circumstances, § 25-5-58 should not be applied to reduce employee’s award. See Ingalls, 251 Ala. at 171, 36 So.2d at 519.

Ill

The employer’s final dispositive issue is that the evidence does not support the trial court’s finding of a sixty percent loss of ability to earn.

There was evidence that the employee had an eighth-grade education and that her previous and, to some extent, present employment was manual labor. Her past employment consisted of picking cotton, ironing and cleaning house, cooking, mopping, and sweeping as a cafeteria employee, and working at a sawmill.

As indicated earlier, the employee is a nurse’s aide. One of her job requirements is lifting patients. As a result of the injury, the employee’s ability to “lift” is restricted. The physician testified that the employee had a bodily impairment of forty to fifty percent.

The determination of the proper percentage of a disability rests with the trial court. See Dees v. Daleville Florist, 408 So.2d 155 (Ala.Civ.App.1981) and cases cited therein. Additionally, the trial judge had the opportunity to observe the courtroom demeanor of the employee.

After examining the record in this case, we cannot say that the trial court’s finding of sixty percent permanent partial disability is unsupported by the facts.

We particularly note the evidence concerning the employee’s education and skills.

We would be remiss in not commenting that both parties have favored this court with excellent and concise briefs for which we are grateful.

This case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    GOLD KIST, INC. v. Flora DUMAS.
    Civ. 3898.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1983.
    John W. Clark, Jr., of Clark & Maddox, Birmingham, for appellant.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Appellee Flora Dumas (Dumas) is a forty-year-old woman with a sixth-grade education. Her working experience has been as a farm worker, a nurse’s aide, and as a waitress and dishwasher.

Dumas had worked for appellant, Gold Kist, for about a month as a line worker in its chicken processing plant when she suffered an on-the-job injury on May 6, 1981. Her boss yelled “move;” she jumped back abruptly to avoid being hit by wire from a broken conveyor belt, jerking her left arm and shoulder. She told Randall Scott, her supervisor, that she had been hurt. He replied that she was “not hurt that bad,” and told her to work the rest of the day, which she did. Dumas did not see the company nurse, because the nurse was out for the day.

The following morning Dumas went to Dr. Jenkins who provided her with a prescription and a statement for her employer, indicating she would be unable to work through May 9, 1981. There was conflicting testimony regarding whether the employer received notice of her injury or the doctor’s statement.

Some four months later, Dr. Craddock hospitalized Dumas and performed back surgery on her. Conflicting testimony was offered regarding whether the surgery was necessitated by the incident occurring at work on May 6,1981, or by a cause unrelated to work.

Prior to trial, Dumas went to work in a small restaurant as a short order cook and dishwasher. She currently earns $2.00 an hour at this job. At Gold Kist, she earned $4.10 an hour.

Dumas filed a complaint against Gold Kist, alleging job injury occurring on or about May 6, 1981. After trial, the court awarded Dumas temporary total disability benefits, temporary partial disability benefits and permanent partial disability benefits. A motion for new trial was denied and this appeal followed.

Appellant Gold Kist raises two issues on appeal; (1) that proper notice of the alleged injury was not given as required by § 25-5-78, Code of Alabama 1975, and (2) that the evidence does not support the court's award of disability benefits to Dumas.

Section 25-5-78 contains, in pertinent part:

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

The purpose of this section is to enable an employer to make a speedy examination, afford proper treatment and protect himself against simulated or exaggerated claims. Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756 (1925). Oral notice which places the employer on notice that an accident has occurred and that a resultant injury of some degree has occurred is sufficient to satisfy the requirement of § 25-5-78. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979). The statute does not require that an accident must be seen firsthand by the employer. Price Ceiling, Inc. v. Ray, 394 So.2d 58 (Ala.Civ.App.1981).

In the present case Gold Kist contends that proper notice was not given by Dumas. Billy McClendon, a unit manager for Gold Kist, testified that he had examined all personnel records for Dumas and found nothing to indicate she had ever reported an on-the-job injury. Randall Scott, her supervisor, testified that he did not remember her ever reporting any accident to him on May 6, 1981, or the next day.

Dumas, however, testified that her boss yelled at her to “move” to avoid injury and that immediately after the injury she told her boss and her supervisor that she had been hurt. Dumas’ testimony that she gave oral notice to her boss and supervisor was not directly refuted. The supervisor only testified that he did not remember if she had told him. The unit manager only testified that the personnel records reflected no notice given by her. No one directly denied that she had given oral notice of her injury.

Additionally, Dumas gave notice when she handed Dr. Jenkins’ statement to Scott, who in turn handed it to “one of the other bosses,” McClendon, standing nearby. She informed them she had seen Dr. Jenkins because of her hurt shoulder. McClendon replied that he could not “use her anymore.” Gold Kist introduced evaluation reports indicating Dumas was not performing her work satisfactorily and that she was to be dismissed. The evidence supports a finding that Gold Kist had sufficient notification to satisfy the requisites and purpose of § 25-5-78.

Appellant’s other contention on appeal is that the evidence does not support the court’s award of disability benefits to Dumas. Gold Kist introduced testimony taken in the depositions of Drs. Jenkins and Craddock tending to show that Dumas’ disability was not caused by the incident at work and that she suffered from bursitis, which was not severe enough to keep her from working at the same kind of work she had done any time in the past.

Dumas, on the other hand, testified that although she had suffered before from bursitis in her legs prior to May 6, 1981, she had never suffered before in her arms and shoulders. She further testified that between the time of her injury and the operation, her arm, shoulder and neck continued to hurt and worsen to the point that she could hardly move her arm, sleep or do her housework. She stated that even though the surgery improved her arm and shoulder, she still experienced pain and if she lifted heavy objects, her arm “just gives away on me and it burns and hurts all the time in the muscle or in this spot up here and in this shoulder joint here.” Working in the restaurant causes pain and swelling in her arm and hand.

On review we cannot weigh the conflicting evidence in a workmen’s compensation case. Instead, we are to determine if there is any legal evidence or reasonable inference therefrom to support the judgment, and if there is, we must affirm. Glenn v. Kent Corp., 416 So.2d 1066 (Ala.Civ.App.1982); Stinson v. Liberty Mutual Insurance Co., 395 So.2d 1032 (Ala.Civ.App.1981). (Emphasis supplied.) In this case there is legal evidence to support the trial court’s decision to award Dumas disability benefits; therefore, we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Rebecca Gibson Schadt LAMOREAUX v. Charles Frederick SCHADT, Jr.
    Civ. 3943.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1983.

      David L. Carroll of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellant.
    Ralph I. Knowles, Jr., of Drake, Knowles & Pierce, Tuscaloosa, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from an order of modification of visitation rights from New York, New York to St. Thomas, Virgin Islands.

Appellant has custody of two female children, ages eight and thirteen, and appellee had the right of visitation of said children in New York by judgment of the trial court dated December 10, 1982. In May 1983 appellee filed a motion to modify said judgment, alleging that on July 1, 1983 he was to move to St. Thomas, Virgin Islands, and prayed that his visitation privileges be extended to St. Thomas in lieu of New York. Appellant filed an answer opposing the modification.

The trial court held a pretrial hearing on said motion on July 1,1983, and by order of the court dated July 8, 1983, the modification was granted without an evidentiary hearing.

In the order of modification, the court found that another judge had held a full evidentiary hearing concerning visitation in New York six months prior, and that the objections of the appellant were essentially the same as at the previous hearing and that this modification is formal rather than substantive. From that order this appeal is taken.

Appellant alleges that she was denied due process of law in that she was not given a hearing to present evidence in opposition to the modification. Appellee alleges appellant failed to raise the question of a hearing below and invoke an adversary ruling of the trial court from which she could appeal.

The courts of Alabama have often held:

“In dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction. Tillman v. Walters, 214 Ala. 71, 108 So. 62 [1925].”

Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961). Thorne v. Thorne, 344 So.2d 165 (Ala.Civ.App.1977). The parental right to due process far outweighs any burden that would be placed on the proceeding to determine that right. Thorne v. Thorne, supra.

From the record there is no indication prior to the modification order that visitation privileges outside the continental United States would be granted without a hearing.

The trial court’s action in denying appellant a hearing on the legal and factual matters involved in this case deprived appellant of her right to due process.

Therefore, we reverse.

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.

REVERSED AND REMANDED.

All the Judges concur.


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    WALLACE ROOFING COMPANY v. Carson GANLEY.
    Civ. 3850.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1983.

      Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Richard W. Vollmer, III and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Mobile County awarded the employee permanent partial disability benefits. The employer through able counsel appeals and we affirm.

The dispositive issue on appeal is whether there is any evidence to support the trial court’s finding that the employee’s earning capacity after his injury was $110 per week.

In workmen’s compensation eases the trial court’s finding is conclusive if there is any evidence that will support it. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1976). This court can consider neither the weight of the evidence nor the propriety of the trial court’s finding of fact. Our inquiry is limited to a determination of whether there is any evidence to support the trial court’s finding. Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982).

Viewing the record in light of the above, this court finds that there is evidence to support the trial court’s finding.

The -employee fell from a roof while working and sustained a fractured vertebra. Prior to his injury the employee earned an average of $150 weekly.

After the employee reached maximum medical recovery, he worked at various jobs such as cashier, waiter and cook, and other odd jobs.

The employee has pain from his injury while sitting, standing, and walking. His range of movement is restricted and he cannot safely lift more than twenty to twenty-five pounds. The employee can expect to suffer pain from his back indefinitely; most likely his condition will worsen. The employee may possibly need surgery in the future.

The employee’s employment history, both before and after his injury, shows an average work week of twenty-five to thirty hours. The employee’s average wage for a fourteen-week period after his injury was approximately $170 every two weeks. The employee has a high school education, has no special skills, and he has always worked at manual labor or unskilled jobs. There is evidence that the chances are that whatever the employee’s future prospects, he will most likely earn minimum wage.

Considering the employee’s twenty percent permanent partial disability and the limitations or restrictions his injury places on the employee’s possibilities of employment, and his work history subsequent to the injury, we find that there is ample evidence to support the trial court’s finding of $110 per week post-injury average earning capacity.

The employee’s request that a penalty pursuant to Ala.Code § 25-5-59 (1975) be assessed against the employer is denied. See Read News Agency, Inc. v. Moman, 383 So.2d 840 (Ala.Civ.App.), cert. denied, 383 So.2d 847 (Ala.1980).

This case is due to be affirmed.

AFFIRMED.

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


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    Donna Patricia COLE v. Joseph Charles COLE.
    Civ. 3889.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1983.
    James H. Reid, Jr., Fairhope, for appellant.
    Charles C. Partin, Stone, Partin, Granade & Crosby, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

Donna Patricia Cole and Joseph Charles Cole were divorced by a final decree entered June 3, 1983. Custody of the couple’s two minor daughters was awarded to Mr. Cole, subject to Mrs. Cole’s visitation rights. Mrs. Cole appeals here, asserting that (1) the trial court abused its discretion in awarding custody of the children to the father, and that (2) the findings of the trial court are unsupported by the evidence. We do not agree.

A child custody award incident to divorce is a matter within the sound discretion of the trial court. Baker v. Baker, 418 So.2d 134 (Ala.Civ.App.1982). In deciding which parent should have custody, the paramount consideration is the health, safety and well being of the children. Ex parte Hilley, 405 So.2d 708 (Ala.1981). The trial court, in exercising its discretion to make a custody award must be guided by the children’s best interest, which is determined by weighing many factors, including the sex and age of the children, the characteristics and needs of each child, the respective home environment of the parties, the characteristics of those seeking custody, the capacity and interest of each parent to provide for the varying needs of the children, the interpersonal relationship between each child and parent, and the interpersonal relationship between the children. Baker, supra at 136.

Where, as here, a custody award is made after an ore tenus hearing, we have often stated that this court will presume that the trial court correctly applied its discretionary authority to adjudge the child’s best interest. Lightfoot v. Bylsma, 412 So.2d 813 (Ala.Civ.App.1982). This presumption arises from the trial court’s opportunity to see and hear the witnesses, Phillips v. Phillips, 277 Ala. 2, 166 So.2d 726 (1964), and we will only reverse on appeal if the trial court abused its discretion, Baker, supra at 136, or if the judgment is so unsupported by the evidence as to appear plainly wrong. Lightfoot, supra at 814. If we find the decree supported by credible evidence, it is our duty to affirm. Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.), cert. denied, 370 So.2d 1019 (Ala.1979).

After reviewing the record before us, we are convinced that the trial court properly considered the aforementioned factors in exercising its discretion to award custody to Mr. Cole. We find no abuse of discretion in the court so doing, and we consider the evidence adequately supports the trial court’s judgment. Viewing the record in the light of the ore tenus presumption of correctness, we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Debra Kay PRICE v. Michael Lynn PRICE.
    Civ. 3884.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1983.

      W. Cameron Parsons, Ray, Oliver, Ward & Parsons, Tuscaloosa, for appellant.
    No brief for appellee.
   HOLMES, Judge.

The wife brought contempt proceedings against the husband for failure to pay required child support and periodic alimony. The trial court found the husband in contempt and modified the child support and alimony provisions.

The wife appeals, contending the trial court was without authority to modify the alimony and child support provisions because the husband did not petition for modification and because the issue was not tried by the implied or express consent of the parties. We agree and reverse.

We do not deem it necessary nor prudent to set out in detail the facts of the instant appeal. The following is sufficient. The parties were divorced in May of 1982. An agreement of the parties was incorporated into the divorce decree. By this agreement the husband agreed to pay $200 biweekly as child support and $50 biweekly as alimony.

In April of 1983, the instant contempt proceedings were filed by the wife. It was alleged the husband owed $900 in alimony and $3,200 in child support.

At trial, the husband admitted that he owed $3,600 in child support and $900 in alimony. The trial court entered an order of contempt for these amounts.

The trial court then ex mero motu and over objection modified the alimony and child support provisions. Additionally, the trial court entered an order allowing the husband to claim the two children as dependents for income tax purposes.

Specifically, the trial court suspended the payment of alimony until 1986 at which time the husband would pay $25 per week. Child support payments were modified to the sum of $50 per week. Certain other adjustments were ordered.

We do not deem it necessary to unduly lengthen nor belabor the issue at hand. We find the following in Carden v. Penney, 362 So.2d 266, 268-69 (Ala.Civ.App.1978), to be appropriate and dispositive:

“Under the provisions of Rule 54(c) of the Alabama Rules of Civil Procedure it is the duty of the court to grant relief to which a party is entitled irrespective of the request for relief contained in the pleadings. Penney v. Carden, [356 So.2d 1188 (Ala.1978)]. See 6 Moore’s Federal Practice § 54.62 (1976). However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party’s failure to ask for particular relief has substantially prejudiced the opposing party. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir.1962); Penney v. Carden, supra. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir.1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir.1944).”

In this instance the wife, a nonresident, filed a contempt proceeding. The husband filed no petition to modify nor made any oral request for modification. The husband appeared pro se. The wife, a nonresident, appeared by counsel. The following transpired at the contempt hearing:

“[WIFE’S COUNSEL:] We object to the court modifying the alimony and the child support payments as there’s been no showing of substantial change in circumstances and there having been no petition for modification filed by Mr. Price.
“THE COURT: All right, sir. I understand counsel’s objection and I am also sensitive to the fact that Mr. Price is pro se and I know and recognize the equities in the case are such that were he to have an attorney, his attorney would have a modification. The Court is doing it ex mero motu out of a sense of trying to protect Mr. Price’s rights; vis-a-vis, his being pro se versus Mrs. Price being represented by you, Mr. Parsons.”

Under the above circumstances, due process and fair play require reversal. See Carden v. Penney, 362 So.2d 266 (Ala.Civ.App.1978).

The wife has requested an attorney’s fee for representation on appeal. A fee of $350 is hereby awarded.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE ABOVE.

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