author: JONES, Justice.

text:
    WYATT OIL COMPANY, INC., a Corp.; Hugh W. Fikes; John Robert Wyatt v. MADDEN COAL COMPANY, INC.
    83-493.
    Supreme Court of Alabama.
    July 20, 1984.
    As Corrected on Denial of Rehearing Aug. 31, 1984.

      McCoy Davidson of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellants.
    Perry Hubbard and Jay Guin of Hubbard, Waldrop & Tanner, Tuscaloosa, for appellee.
   JONES, Justice.

Appellants John Robert Wyatt, Hugh W. Fikes, and Wyatt Oil Company seek relief from a verdict and judgment against them wherein Appellee Madden Coal Company claimed Appellants converted Appellee’s coal. Wyatt and Fikes counterclaimed, alleging that Madden had earlier converted their coal. After both sides’ motions for summary judgment were overruled, the case was tried to a jury; verdicts were returned in favor of Madden on its conversion claim and on the Defendants’ counterclaim.

After a careful review of a rather long and complex record involving multiple transactions and multiple third parties, we find that the instant controversy relates to claims between the property owner and the original lessee, on the one hand, and the ultimate purchaser, on the other hand, as to who converted whose personal property (severed coal). Wyatt and Fikes claim error in the trial court’s denial of their motions for directed verdict against Madden on their respective counterclaims. Under the evidence of record, whether Madden, who admittedly was a “buyer in the ordinary course of business” was a “good faith” purchaser “without knowledge that the sale to him [was] in violation of the [true owners’] rights” was an issue of fact, and thus properly submitted to the jury. Code 1975, §§ 7-1-201(9); 7-2-104(1), and -403(1); see, also, American Standard Credit, Inc. v. National Cement Co., 643 F.2d 248 (5th Cir.1981).

This factual issue and the factual issues relating to Madden’s conversion claim were properly submitted to the jury on settled principles of law and were fairly resolved in favor of Madden, who purchased the coal from a nonparty sublessee; we hold, however, that the trial court erred in not limiting the proof of damages by reducing from the sales price the transportation and storage costs. That is to say, the trial court should have sustained the Defendants’ contention that the payment of these expenses out of the sale of the coal in question by the Defendants inured to the ultimate benefit of Madden and should not have been included in any verdict in its favor.

Consequently, the judgment is affirmed on the condition that Madden file with the Clerk of this Court within 14 days of this Court’s judgment a remittitur in the sum of $6,410, thus reducing the judgment to $15,-308.83, plus interest from the date of taking. Otherwise, the judgment will be reversed and the cause remanded for a new trial.

AFFIRMED CONDITIONALLY.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Kimberly BEARDEN v. EQUIFAX SERVICES, et al.
    83-116.
    Supreme Court of Alabama.
    July 27, 1984.
    Rehearing Denied Aug. 31, 1984.
    Douglas I. Friedman, Birmingham for appellant.
    William Anthony Davis III and M. Clay Ragsdale IV of Starnes & Atchison, Birmingham, for appellees.
   ALMON, Justice.

This case involves an action by an employee against her employer’s workmen’s compensation insurance carrier for bad faith and outrageous conduct.

The appellant, Kimberly Bearden, states in her brief the sole issue on appeal:

“This appeal involves solely the question of whether a worker who sustains an injury covered by the Workmen’s Compensation Act may assert a separate claim against the workmen’s compensation carrier and its employee for damages on the grounds that the insurer and its employee committed intentional torts and acted in bad faith in adjusting and processing the worker’s compensation claim.”

The viability of a separate bad faith action is controlled by the recent decision of Waldon v. Hartford Insurance Group, 435 So.2d 1271 (Ala.1983), cited with approval in Garvin v. Shewbart, 442 So.2d 80 (Ala.1983). In Waldon, supra, this Court held that the employee’s action against the employer or its carrier for bad faith in processing or paying claims was barred under the exclusivity provisions of the Workmen’s Compensation Act, Code 1975, §§ 25-5-52 and -53.

Yet in Garvin, supra, this Court also held that an employee’s claim against the employer or its insurance carrier for the tort of extreme and outrageous conduct was not barred under the exclusivity provisions of the Workmen’s Compensation Act. To prevail under this cause of action, however, the plaintiff must show that the conduct alleged is “so outrageous in character and so extreme in degree so as to be regarded as atrocious and utterly intolerable in a civilized society.” Garvin, supra, 442 So.2d at 83 (citing American Road Serv. Co. v. Inmon, 394 So.2d 361 (Ala.1980)). See National Sec. Fire & Casualty Co. v. Bowen, 447 So.2d 133 (Ala.1983) (threats by insurer’s agents to kill insured and insured’s children constituted extreme and outrageous conduct on part of insurer).

Bearden has failed to establish any evidence of such extreme and outrageous conduct on the part of the defendants which would create a genuine issue of material fact so as to withstand a motion for summary judgment.

In actuality, the record reveals that the insurance carrier went out of its way to cover the costs of Bearden’s hospitalization, medical treatment, and child care, and Bearden herself stated in an affidavit that the insurance company employees were most cooperative in assisting her needs. Moreover, the evidence clearly shows that the carrier’s initial decision to lower Bear-den’s benefits was due to a treating physician’s report as to her bodily impairment and not to any extreme or outrageous conduct on its part.

The circuit court therefore properly granted summary judgment on behalf of these defendants.

The judgment of the circuit court is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    VANGUARD INDUSTRIAL CORPORATION v. ALABAMA POWER COMPANY. HARTFORD FIRE INSURANCE COMPANY, A Corp. v. ALABAMA POWER COMPANY.
    83-234, 83-242.
    Supreme Court of Alabama.
    July 27, 1984.
    As Modified on Denial of Rehearing Aug. 31, 1984.
    Clarence F. Rhea and Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant Vanguard Industrial Corporation.
    George C. Hawkins of Hawkins & Day, Gadsden, for appellant Hartford Fire Insurance Company.
    James H. Miller III of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, and Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   JONES, Justice.

The Facts: The jury returned a verdict in favor of Alabama Power Company against Hartford Fire Insurance Company and Vanguard Industrial Corporation as joint tortfeasors, assessing “damages at $35,-000.” The verdict form contained the following additional language: “Vanguard— $25,000.00[,] Hartford — $10,000.00.” The trial court struck the added language as surplusage.

The Issue: Is the challenged verdict invalid as constituting an illegal apportionment of damages among joint tortfeasors? We hold that it is and reverse the trial court’s ruling in striking the apportionment language from the verdict form and entering a judgment against the Defendants for $35,000.

Decision: Although this exact issue has not been previously decided in any appellate court decision in Alabama, our holding of reversal is required by Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966), and City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25 (1916).

In City of Birmingham, the jury returned a verdict against two defendants for $50 each and the trial court entered a judgment against the defendants for $100. This Court held that the trial court’s action effected a substantive, and thus a prohibited, revision of the jury verdict. The Court further held that the trial court should have refused the verdict and retained the jury for further deliberation with appropriate instructions to return a proper verdict. Because this was not done, the plaintiff was faced with two options in order to avoid the proscription against apportionment among joint tortfeasors: 1) dismiss as to one defendant and proceed to execute against the other; or 2) suffer an order granting a new trial as to both defendants. Layman v. Hendrix, 1 Ala. 212 (Ala.1840).

In Anderson, the jury returned a verdict for $1,500 and added the words “$750 City Cab — $750 Kemp.” Based on the plaintiffs dismissal of City Cab for its payment of $750 before trial and the trial court’s instruction that the jury verdict should reflect the total amount of plaintiff’s damages and then reduce that sum by the amount of City Cab’s payment, the trial court entered a judgment against Kemp for $750. The Supreme Court affirmed, reasoning that the jury had followed the trial court’s precise instructions with respect to the credit due Kemp after the pro tanto settlement between plaintiff and City Cab.

From these two cases emerges this principle: A jury verdict that assesses separate amounts (whether equal or unequal) against joint tortfeasors is an illegal verdict and is not subject to the trial court’s correction by striking certain portions thereof as “surplusage.” This rule was not violated in Anderson because that case was tried to a jury against only one defendant, and the three separate amounts shown on the verdict form were essential to an understanding of what amount the jury intended to award against that defendant.

The Plaintiff’s argument that the trial court was justified in striking the apportionment aspect of the verdict, because the first part of the verdict assessed the Plaintiff’s damages “at $35,000.00,” is misplaced. While the jury, through its verdict form, clearly intended that the Plaintiff recover a total award of $35,000, it is equally clear that the jury intended that the award be apportioned between the joint tortfeasors — a result prohibited by law.

As in City of Birmingham, the trial court should not have accepted the instant verdict. Because the verdict was accepted and purportedly “corrected,” the Plaintiff, upon this Court’s reversal of the judgment and remand of this cause, may elect within 14 days of this Court’s judgment to dismiss (nol-pros the verdict) as to one Appellant and proceed to execute as against the other; that is to say, in order to avoid the apportionment proscription, APCo, if it elects to execute, is constrained to choose between Vanguard Industrial Corporation and Hartford Fire Insurance Company in the amounts of $25,000 and $10,000, respectively. In that event, the trial court will enter the appropriate judgment; otherwise, the trial court is instructed to set aside the judgment appealed from and order a new trial as to both Defendants.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    R. J. SMITH v. The INDUSTRIAL DEVELOPMENT BOARD OF the CITY OF ANDALUSIA.
    83-672.
    Supreme Court of Alabama.
    Aug. 24, 1984.
    Joseph H. Johnson, Jr. and David W. Spurlock of Johnson & Thorington, Birmingham, for appellant.
    John B. Givhan and Reuben W. Cook of Albrittons & Givhan, Andalusia, for appel-lee.
    Charles Hayes and Susan H. Snyder of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae The Industrial Development Board of the City of Scottsboro.
   On Application for Rehearing

SHORES, Justice.

The original opinion issued on July 20, 1984, is withdrawn, and the following is substituted therefor.

The issues presented by this appeal concern the constitutionality of Act No. 83-199, amending § 11-54-80, Ala. Code 1975, known as the Cater Act. The Cater Act authorizes the incorporation of industrial development boards, and gives them the power to assume certain “projects” designated by the legislature as promotiing a public purpose. Ala. Code 1975, § 11-54-81(a). Act No. 83-199 amends the Cater Act to include in the list of projects “[a]ny commercial enterprise ... providing hotel, motor inn services ... including food or lodging services or both.” Ala. Code 1975, § 11-54-80(3). We are asked to determine whether Act. No. 83-199 violates § 94 of the 1901 Alabama Constitution, the due process clauses of the Federal and the 1901 Alabama Constitutions, or § 45 of the 1901 Alabama Constitution.

Section 94 of the Constitution states in full:

“The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or stockholder in any such corporation, association, or company, by issuing bonds or otherwise.”

Appellant contends that Act No. 83-199 authorizes the expenditure of public funds for the acquisition, construction, and maintenance of a private enterprise, and is, therefore, unconstitutional under § 94.

The restriction in Section 94 applies only to a “county, city, town, or other subdivision of this state.” An industrial development board is a public corporation and is a separate entity from a county, city, or town. It is not the alter ego or agent of the municipality in which it is organized. It is also not a subdivision of the state. Opinion of the Justices, 254 Ala. 506, 49 So.2d 175 (1950); George A. Fuller Co. v. Vulcan Materials Co., Southeast Division, 293 Ala. 199, 301 So.2d 74 (1974). Furthermore, “Act No. 648 [the Cater Act] involves no expenditure of public money and the incurring of no liability that must or can be taken care of by taxation. Under the act, a municipality is not authorized to spend public funds.” Opinion of the Justices, 254 Ala. at 510, 49 So.2d at 178.

We hold that § 94, Article IV, of the 1901 Constitution is inapplicable to Act No. 83-199, which authorizes spending by an industrial development board, not a county, city, town, or other subdivision of the state.

The legislature passed the Cater Act with the intent of

“promoting] industry, developing] trade and furthering] the use of the agricultural products and natural and human resources of this state and the development and preservation of the said resources, by inducing manufacturing, industrial, commercial and research enterprises: (1) To locate in this state, (2) To enlarge, expand and improve existing operations in this state, or (3) To relocate ... in this state.”

Section ll-54-81(a). In keeping with this intent, the projects which the development boards are authorized to assume ought to promote this public purpose. By designating the acquisition, construction, and maintenance of hotels and motels as a permissible project, the legislature has indicated that this promotes the public purpose stated in the Act.

In determining whether something fulfills a public purpose, we, of course, accord great deference to the legislature and will accept its determination “when it does not clearly appear to be wrong, assuming that we have the right to differ with them in their finding.” Opinion of the Justices, 384 So.2d 1051, 1052 (Ala.1980), citing Board of Revenue and Road Commissioners of Mobile County v. Puckett, 227 Ala. 374, 149 So. 850 (1933). See also Brown v. Longiotti, 420 So.2d 71 (Ala.1982), and McDonald’s Corp. v. DeVenney, 415 So.2d 1075 (Ala.1982). However, if the legislature's determination “is repugnant to the Constitution, the courts not only have the power, but it is their duty, when the issue is properly presented, to declare it so.” Peddycoart v. City of Birmingham, 354 So.2d 808, 811 (Ala.1978).

The question then, is whether the legislature’s designation of the acquisition and construction of hotels and motor inns as promoting a public purpose is “clearly wrong.” We do not think it is. Such facilities provide incentive for industry and business to locate in or near Andalusia. They provide accommodations for guests and traveling employees of industries and businesses, provide facilities for conventions, exhibitions, and meetings, and use the “agricultural products and natural and human resources of this state” in their construction and maintenance. These facilities will promote the public purpose espoused by the legislature and as set down in the Cater Act. Because this bonding issue is to further a public purpose, there is no violation of the due process clauses of the United States or the 1901 Alabama Constitutions.

The only other issue presented is whether Act No. 83-199 violates § 45, Article IV, of the 1901 Constitution, which requires that “[e]ach law shall contain but one subject, which shall be clearly expressed in its title.”

The title of Act No. 83-199 reads: “To amend Section 11-54-80, as heretofore amended, to include as permissible projects hotels, motor inns.” Section 1 of the act adds hotels and motor inns to the list of projects. Section 3 states that “[a]ll hotels and motel inns built under this Act shall not be exempt from ad valorem taxes.” This provision is now found in the Alabama Code at § 11-54-96.1, and is an exception to the § 11-54-96 provision that all properties owned by the board shall be exempt from all taxation in the state of Alabama.

The title of an act need not be an index of all of the provisions contained therein. Lane v. Gurley Oil Co., 341 So.2d 712 (Ala.1977). Section 45 requires only that the title not be “so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment.” Alabama Education Association v. Grayson, 382 So.2d 501, 505 (Ala.1980), citing Pillans v. Hancock, 203 Ala. 570, 84 So. 757 (1919). This Court has always given a liberal construction to the provisions of § 45 and will not abandon this guiding principle in the present case.

The act has one general subject and that is hotels and motels as projects under the Cater Act. The tax status of such hotels and motels is but a single facet of this subject. We hold that Act No. 83-199 has but one subject, which is clearly expressed in the title, and the act is, therefore, not violative of § 45, Article IV, of the 1901 Constitution.

OPINION SUBSTITUTED; AFFIRMED; APPLICATION FOR REHEARING DENIED.

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


author: FAULKNER, Justice.

text:
    AMSOUTH BANK, N.A., a banking corporation, as Administrator of the Estate of Alva S. Frye v. NEW YORK LIFE INSURANCE COMPANY, a corp.
    83-13.
    Supreme Court of Alabama.
    Aug. 24, 1984.

      J. Scott Vowell and Albert C. Bowen, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellant.
    John H. Morrow and M. Christian King of Bradley, Arant, Rose & White, Birmingham, and L.E. Gosa of Young, Gosa & Brown, Vernon, for appellee.
   FAULKNER, Justice.

The plaintiff-appellee, New York Life Insurance Company, filed an interpleader action against Alva S. Frye, Daisy Frye Barnes, and others, seeking, inter alia, an adjudication of the question of who was the lawful first beneficiary under the late Billy R. Frye’s life insurance policy. After an ore tenus non-jury hearing, the trial court entered judgment in favor of Daisy Frye Barnes. AmSouth Bank, administrator of the estate of Alva S. Frye, appeals. We affirm.

The findings and judgment of the trial court must be reviewed in light of the ore tenus rule, by which every presumption is indulged in favor of the trial court’s judgment so that its findings will not be disturbed absent palpable error. Martin v. Slayton, 428 So.2d 23, 25 (Ala.1983); Shepherd Realty v. Winn-Dixie Montgomery, 418 So.2d 871, 874 (Ala.1982).

The evidence presented to the trial court indicates the following: On October 28, 1980, Billy R. Frye purchased from New York Life Insurance Company a life insurance policy which provided whole life benefits in the face amount of $100,000 and an accidental death benefit in the additional amount of $100,000. His wife, Alva S. Frye (Mrs. Frye) was originally named as the first beneficiary under the policy, with the second beneficiaries being the children of Mr. and Mrs. Frye. However, on November 13, 1980, Mr. Frye executed a change-of-beneficiary form naming his mother, Daisy Frye Barnes (Mrs. Barnes), as the first beneficiary.

Mr. Frye was indicted by a federal grand jury for numerous drug violations in late 1981. Thereafter, Mr. Frye contacted his attorney, Mr. Shotts, concerning the feasibility of having Mrs. Frye operate Frye’s business through a general power-of-attorney in the event of his absence.

Mr. Shotts advised Frye against such a move. Nevertheless, on March 19, 1982, Frye went to Shotts’s office and executed a general power-of-attorney. This instrument included the power to “place and effect insurance.” Mr. Frye took the original power-of-attorney to his office, leaving a signed, notarized copy with Shotts.

Upon arriving at his office, Frye had his secretary, Shirley Burnett, read the document to him. According to Burnett, Frye stated that he did not want his wife to have the power. He then tore the document into pieces, threw the pieces into the waste basket and instructed Ms. Burnett not to. mention the power to Mrs. Frye. Soon thereafter, Frye called Shotts’s office and told someone there that he had destroyed the power and requested that they draft a power which would give Mrs. Frye only the right to operate the business. Mrs. Frye came to Mr. Frye’s office later to get the power-of-attorney and Mr. Frye informed her that he had been unable to get it.

On April 12, 1982, Mr. Frye was confined to a federal facility in Springfield, Missouri, for a pre-trial evaluation.

On April 16, 1982, Mrs. Frye went to Shotts’s office and asked that she be given the executed copy of the power, which Mr. Shotts had retained. Although Mr. Frye had never directed Mr. Shotts to deliver any document to Mrs. Frye, Mr. Shotts gave her his file copy of the power. Mrs. Frye took the copy to the Jefferson County Probate Court and had it recorded.

After having the copy of the power recorded, Mrs. Frye took that copy to Mr. Earl Adair, Mr. Frye’s insurance agent, and through it sought to change the ownership of all of Mr. Frye’s life insurance policies and the named beneficiary of the policy involved in this action from Mr. Frye’s mother to herself. Mr. Adair allowed her to fill out the appropriate forms, and sent those forms, together with a copy of the power which Mrs. Frye had shown him, to New York Life’s home office for the company’s approval. The home office rejected the change of beneficiaries and returned the forms to Adair, stating that the power-of-attorney did not confer the authority to change the ownership of the insurance policies.

On May 7, 1982, Adair informed Frye of the beneficiary changes Mrs. Frye was attempting to make. Frye told Adair it was “fine” and to go ahead and make the changes. However, that same day, Frye talked with his attorney, Mr. Shotts. Three days later Frye wrote Shotts the .following letter:

“Dear Jesse:
“As per our phone conversation, last Friday in regard to Alva Frye having the power of attorney in my behalf, which you said would be void since I had destroyed the original, but as of this writing has caused me untold problems in my business and personal ventures and holdings. I want you to do what ever is necessary to relieve her of this document as soon as possible. I am hereby revoking this power of attorney, and will not, honour any contracts nor live up to any negotiations that has developed in my absence. Alva Frye has acted on her own without any authorization from me, nor have I deleted my ownership of any of my business, company nor personal holdings to anyone to act in my behalf. This I Bill Frye thus declares to be true and valid on this tenth day of May, 1982.
“Sincerely Yours,
“S/Bill Frye
“Bill Frye”
Finally, once New York Life’s home office rejected the aforementioned change of beneficiary and ownership requests made by Mrs. Frye, Mr. Adair mailed Mr. Frye the forms necessary to either change beneficiaries or to execute another power-of-attorney conferring the requisite authority. Although Adair spoke with Frye several times thereafter, Frye never made any attempt to change the status of any of his insurance policies.
Upon hearing the evidence, the trial court made the following findings of fact and conclusions of law:
“ONE: The action of Mr. Frye on March 19, 1982, when he destroyed the original of the Power-of-Attorney before he delivered it to Mrs. Frye was sufficient to prevent the Power-of-Attorney from becoming effective, or in the alternative, to revoke the Power-of-Attorney.
“TWO: Mr. Frye did not re-execute the Power-of-Attorney, nor did he take sufficient action to ratify or reaffirm the previously executed copy of the Power-of-Attorney which was left in the file in his attorney’s office.
“THREE: Mr. Frye did not direct or authorize the delivery of the copy of the Power-of-Attorney by his attorney to Mrs. Frye.
“FOUR: The burden of proof was on Mrs. Frye to show a change of beneficiary by clear and convincing evidence and this burden was not met.
“FIVE: Mrs. Barnes is entitled to receive the proceeds of the Insurance Policy as, the named first beneficiary thereunder.”

After a careful review of the entire record, we find support for the trial court’s findings and conclusions, and we will not disturb them. Accordingly, the judgment below is due to be, and it is hereby, affirmed.

AFFIRMED.

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

      . Frye died on July 8, 1982, from a gunshot wound.


text:
    Martha CLAYTON and William R. Clayton v. The KROGER COMPANY, INC.
    83-157.
    Supreme Court of Alabama.
    Aug. 24, 1984.

      Robert W. Walker of Walker & Mus-grove, Florence, for appellants.
    Braxton W. Ashe of Almon, McAlister, Ashe & Baccus, Tuscumbia, for appellee.
   FAULKNER, Justice.

Martha Clayton and her husband William R. Clayton appeal from a judgment entered on a directed verdict in favor of the defendant, the Kroger Company, in an action for negligence. We affirm.

On July 6, 1979, Martha Clayton tripped and fell on a wrinkled or raised floor mat located in front of the entrance to a Kroger store. She asserts that the fall resulted from Kroger’s negligence in placing the mat or allowing it to wrinkle or protrude in the doorway. She testified that she thought she was watching where she was going, but that she did not see the raised place in the mat before she fell. After she had fallen, she said, she looked at the mat and saw a wrinkle or raised place of about ten inches in height. There was further testimony from both Claytons that at the time of the fall it was dark in the parking lot and the entrance way was dimly lit. The accident occurred between 7:20 P.M. and 7:40 P.M. However, the court took judicial notice of the fact that it was not dark at that hour on July 6, which was approximately two weeks after the longest day of the year. Martha Clayton sued for damages for her personal injuries resulting from the fall, and her husband William sued for loss of consortium and services of his wife and for medical expenses incurred in providing treatment for his wife.

Storekeepers, such as Kroger, have a duty to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers. The storekeeper is not an insurer of the customer’s safety, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. The burden rests upon the plaintiff to show that the injury was proximately caused by the negligence of the storekeeper or one of his servants or employees. Actual or constructive notice of the presence of the offending substance or condition must be proven before the proprietor can be held responsible for the injury. Cash v. Winn-Dixie Montgomery, Inc., 418 So.2d 874 (Ala.1982); cf. Tice v. Tice, 361 So.2d 1051 (Ala.1978).

There is no evidence in the record that Kroger caused the mat to be wrinkled or knew that it was wrinkled. Nor was there any evidence to show that the mat had been wrinkled for an inordinate length of time so as to impute constructive notice.

Reviewing the record in its entirety in a light favorable to the Claytons, we find no evidence which would establish any negligence on the part of Kroger which proximately caused the accident and injuries sustained. Therefore, the judgment is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    DISCO ALUMINUM PRODUCTS COMPANY, INC., a Corporation v. STATE of Alabama.
    Civ. 3651.
    Court of Civil Appeals of Alabama.
    May 11, 1983.
    Rehearing Denied June 15, 1983.

      W.S. Pritchard, Jr. of Pritchard, McCall, Jones, Spencer & O’Kelley, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel Dept, of Revenue, and Asst. Atty. Gen., for appellee.
    A.J. Noble, Jr. and Gary M. London, of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for amicus curiae GATX Tank Erection Corporation.
    E.T. Brown, Jr. and Roy J. Crawford, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae Chicago Bridge & Iron Company.
   WRIGHT, Presiding Judge.

This is a sales tax case governed by § 40-23-1, Code of Alabama 1975.

Disco Aluminum Products Company (Disco) manufactures custom-ordered blinds, window units and door units, using aluminum tubing and glass purchased at wholesale in the fabricating process. The State Department of Revenue made a final sales tax assessment against Disco on July 31, 1979, in the amount of $32,621.14 (including penalties and interest). The final assessment included $21,616.64 in state sales tax, and $11,004.50 in sales tax due the city of Selma. The transactions covered in the assessments which are contested by Disco all involve customers from outside of the state of Alabama. In each of the transactions involved in this appeal, the agreement between Disco and the purchaser provided that Disco would furnish various products to the construction site and either install or supervise the installation of those products.

Disco appealed the State’s final assessment to the Dallas County Circuit Court, which upheld the assessment on the basis of § 40-23-l(a)(10), Code 1975. Disco appeals the final judgment.

In considering this appeal, we adhere to the rule as stated in Hill v. State, 50 Ala.App. 587, 591, 281 So.2d 440, 444 (1973): “[T]he application of taxing statutes must be bottomed upon, and considered in the light of each particular situation, bearing in mind that in case of doubt a tax law should be liberally construed in favor of the taxpayer.”

On appeal Disco first contends that the trial court incorrectly applied § 40-23-l(a)(10), Code 1975, to the facts in this case. Disco contends that, as a manufacturer, its sales are governed instead by § 40-23-l(b):

“The use within this state of tangible personal property by the manufacturer thereof, as building materials in the performance of a construction contract, shall, for the purposes of this division, be considered as a retail sale thereof by such manufacturer, who shall also be construed as the ultimate consumer of such materials or property, and who shall be required to report such transaction and pay the sales tax thereon, based upon the reasonable and fair market price thereof at the time and place where same are used or consumed by him or it.”

Because the transactions covered by the State’s assessment involved parties outside of Alabama, Disco contends it would not be liable for taxes thereon under this section.

According to the testimony of Disco’s officers, Disco does not maintain an inventory of its manufactured products; it only manufactures blinds, window units, and door units to meet specific orders. As in State v. Acker, 45 Ala.App. 574, 579, 233 So.2d 514, 518 (1970), Disco does not manufacture “a finished product saleable on the market and having any market value.” Disco does not, by its own admission, produce a “standard finished product.” Id. Therefore, § 40-23-l(b) is not applicable to this case. Id.; State v. Air Conditioning Engineers, Inc., 277 Ala. 675, 174 So.2d 315 (1965).

The trial court ruled that this case is governed by § 40-23-l(a)(10), Code 1975, which reads, in pertinent part:

“The term ‘sale at retail’ or ‘retail sale’ shall also mean and include the withdrawal, use or consumption of any tangible personal property by anyone who purchases same at wholesale, ... except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same .... ”

Disco contends that the transactions involved in the assessment are not taxable under this section because Disco falls within the exception listed therein. Specifically, Disco contends that the raw materials it purchased at wholesale entered into and became “an ingredient or component part of tangible personal property or products manufactured or compounded for sale and not for the personal and private use or consumption ” of Disco. This contention is refuted by Disco’s own witnesses at trial. Various officers of Disco testified that Disco did not manufacture any door or window units, blinds, or other items for sale to the general public. Instead, products are made only to fulfill specific orders. Further, the products involved in this appeal were manufactured specially to fulfill Disco’s obligation under various “furnish and install” contracts. Thus, this case falls directly within the purview of Alabama Precast Products, Inc. v. Boswell, 357 So.2d 981 (Ala.Civ.App.1977), aff'd, 357 So.2d 985 (Ala.1978). As in Alabama Precast Products, the products involved in this ease were manufactured especially for the various buildings under construction, according to specifications prepared by the general contractor. The raw materials became ingredients or component parts of tangible personal property used by Disco in the performance of a personal obligation under the construction subcontract. Thus, the transactions are taxable retail sales under § 40-23-l(a)(10). Id at 988.

Disco also argues on appeal that the trial court erroneously included mirrors, automatic doors, louvers, and prefabricated aluminum and glass purchased by Disco from a third party and shipped out of state to the construction site, as taxable under § 40-23-l(a)(10). The prefabricated aluminum and glass purchased by Disco and then used in the manufacture of window and door units at Disco’s plant in Selma has already been discussed above. Disco also purchased automatic doors from Automatic Doors of Birmingham for installation in a hospital project in Saudi Arabia. The automatic doors were shipped to Disco’s plant in Selma where they were packed and shipped to the job site. There they were installed by Automatic Doors as per its contract with Disco. The contested transactions also include louvers, mirrors, store fronts, prefabricated aluminum and glass purchased at wholesale, shipped to Disco in Selma, packed by Disco in its containers, shipped to Saudi Arabia and assembled in performance of a Disco contract. It is clear that all of the tangible personal property purchased by Disco, at wholesale, whether used in manufacture of a custom product or merely transhipped after purchase, was consumed by Disco in the performance of its contractor’s obligation to “furnish and install.”

The purpose of § 40-23-l(a)(10), as stated in previous decisions, is “to reach and tax transactions which could not be taxed because there was a withdrawal, use or consumption by the purchaser but no sale by the purchaser to another. State v. Kershaw Manufacturing Co., 273 Ala. 215, 137 So.2d 740 (1962).” Alabama Precast Products, supra, at 984; State v. Helburn Co., 269 Ala. 164, 111 So.2d 912 (1959). Disco has used products purchased at wholesale on which there could be no tax except for § 40-23-l(a)(10), because there has been no sale to another. All of the products purchased at wholesale by Disco, when used in the performance of its vari-eras “furnish and install” contracts, were retail sales properly taxable under § 40-23-l(a)(10). Home Tile & Equipment Co. v. State, 362 So.2d 236 (Ala.Civ.App.), cert. denied, 362 So.2d 239 (Ala.1978).

Finally, it is stipulated and agreed that the assessment of the contract involving “Fire Station No. 6,” job number 77-22, was incorrectly based upon a cost of materials as $27,236.14; the correct cost was $2,721.00. The error results in a decrease of the tax due in the amount of $1,000.61. The trial court should have corrected the amount.

We therefore direct the trial court to amend its judgment to correct the assessment in that amount. Subject to such amendment the judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte DISCO ALUMINUM PRODUCTS CO., INC. (In re: DISCO ALUMINUM PRODUCTS CO., INC. v. The STATE of Alabama).
    82-910.
    Supreme Court of Alabama.
    June 8, 1984.

      W.S. Pritchard, Jr. of Pritchard, McCall, Jones, Spencer & O’Kelley, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel Dept, of Revenue, and Asst. Atty. Gen., for respondent.
    E.T. Brown, Jr. and Roy J. Crawford of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae Chicago Bridge & Iron Company.
    A.J. Noble, Jr. and Gary M. London of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for amicus curiae GATX Tank Erection Corporation.
   ALMON, Justice.

This case involves the application of the sales tax to a manufacturer which installs its products outside Alabama. The circuit court and the Court of Civil Appeals, 455 So.2d 846, upheld an assessment of state and county sales taxes against petitioner, Disco Aluminum Products Company, Inc. Disco petitioned this Court for a writ of certiorari. Two companies which have been subjected to tax assessments similar to that against Disco have filed amicus briefs.

The facts are set out in the opinion of the Court of Civil Appeals. Briefly, we reiterate that Disco purchases aluminum, glass, and other materials to fabricate custom-designed windows and doors for the parties with whom it contracts. In a small percentage of cases, Disco contracts to install or supervise the installation of its products. These are the transactions which the State deems taxable.

Disco and the amici construct elaborate arguments around various provisions of the sales tax act to demonstrate that the instant transactions should not be taxed; the State makes similar arguments to establish the contrary proposition. The source of the conflict is the definition section, Code 1975, § 40-23-1, which includes provisions to which Disco refers as the contractor provision, the manufacturer provision, the withdrawal provision, and the manufacturer/contractor provision.

The contractor provision defines “[s]ales of building materials to contractors [and] builders ... for use in the form of real estate” as retail sales. Id., § 40-23-l(a)(10), third sentence. The manufacturer provision defines sales of tangible personal property or products to manufacturers “which are used or consumed by them in manufacturing ... or compounding and do not become an ingredient or component part of the tangible personal property manufactured or compounded” as retail sales. Id., sixth sentence. Neither of these provisions is applicable to the transactions at hand, but they are pertinent as part of the scheme of taxation against wholesale purchasers and they apply in some of the cases discussed below.

The State taxed Disco under the withdrawal provision:

“The term ‘sale at retail’ or ‘retail sale’ shall also mean and include the withdrawal, use or consumption of any tangible personal property by anyone who purchases same at wholesale, except property which has been previously withdrawn from the business or stock and so used or consumed and with respect to which property tax has been paid because of such previous withdrawal, use or consumption, and except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same; and such wholesale purchaser shall report and pay the taxes thereon.”

Code 1975, § 40-23-l(a)(10), seventh sentence (emphasis added). The state contends that Disco’s use of the aluminum and glass which it buys at wholesale is a withdrawal for the personal use of fulfilling its personal obligations under “furnish and install” contracts.

Disco counters that a withdrawal must be “personal and private,” and that the legislature added the withdrawal provision to reach instances in which retailers take goods off the shelf for their own use rather than selling them. Disco and the amici insist that the definition properly applicable to the transactions at hand is the manufacturer/ contractor provision:

“The use within this state of tangible personal property by the manufacturer thereof, as building materials in the performance of a construction contract, shall, for the purposes of this division, be considered as a retail sale thereof by such manufactuer, who shall also be construed as the ultimate consumer of such materials or property, and who shall be required to report such transaction and pay the sales tax thereon, based upon the reasonable and fair market price thereof at the time and place where same are used or consumed by him or it.”

Code 1975, § 40-23-l(b). Because the materials in question are used outside the state, their use would not be taxable if they properly fall within this definition.

The State takes the position that the manufacturer/contractor provision applies only to manufacturers who both manufacture a “standard finished product” for wholesale and use some of their product in construction contracts. Because Disco only manufactures custom windows and doors to fill specific orders, says the State, this definition is not applicable here.

The State’s position is a reasonable interpretation of certain decisions of the appellate courts of this state applying these sales tax definitions. The “standard finished product” gloss on the manufacturer/contractor provision arises from State v. Air Conditioning Engineers, Inc., 277 Ala. 674, 174 So.2d 315 (1965), and State v. Acker, 45 Ala.App. 574, 233 So.2d 514 (1970).

Air Conditioning Engineers (ACE) challenged an assessment under this provision against sheet metal ductwork used in installations of air conditioning systems. The State taxed the value of the finished ductwork under the manufacturer/contractor provision; ACE contended that only the value of the sheet metal was taxable under the withdrawal provision. The Court agreed with ACE, holding that ACE used and consumed the sheet metal in fashioning the duct system. In refuting the State’s argument, the Court said, “[0]ne manufacturing a standard finished product, and who as a contractor installs such finished product is liable for a sales tax on the value of the completed and finished product.” Air Conditioning Engineers, supra, 277 Ala. at 678, 174 So.2d 315.

In State v. Acker, supra, the Court of Civil Appeals applied the reasoning in Air Conditioning Engineers to hold that a cabinet maker who built custom, but not standard, cabinets, was not a manufacturer/contractor and therefore only had to pay tax on the value of materials used under the contractor (not the withdrawal) provision.

The decision in Air Conditioning Engineers was proper and reasonable: the duct-work had no intrinsic value but only had value as part of a completed air conditioning system. The Court of Civil Appeals in Acker took the reasoning one step further: even though the cabinets had value as such, they were held not to be taxable as finished products because they would be scrapped if not properly built to fit the intended installation. This too, was a reasonable interpretation of the sales tax statute, because Acker was a contractor. In the instant case, the Court of Civil Appeals accepted the State’s argument that because Disco’s products have very little value if ill-designed or -built for the intended use, Disco is not a manufacturer/contractor.

It will be noted that in Air Conditioning Engineers the Court applied the withdrawal provision to a manufacturing-type withdrawal at the taxpayer’s insistence. Other than this instance, the withdrawal provision was long applied only to cases in which there was no transfer of title to another.

In State v. Helburn Co., 269 Ala. 164, 111 So.2d 912 (1959), the State sought to tax, under the withdrawal provision, sales by Helburn of air conditioning equipment to the state and federal governments. Sales to the government entities were not taxable as retail sales, so the State sought to tax Helburn’s withdrawal from inventory. The Court, in affirming a finding that no sales tax was due, observed:

“[The withdrawal provision] has not been considered by the State Department of Revenue to be necessary to the collection of sales taxes on equipment furnished and installed under similar contracts with private individuals. That Department, prior to the time that [the withdrawal provision] became a part of our Sales Tax Law, considered such contracts with private individuals to encompass an ordinary sale of the equipment furnished and installed and has permitted the dealer to pass the tax on to the buyer whereas [the withdrawal provision] provides that the taxes due thereunder are to be paid by the party who purchases at wholesale. And there has been no change of policy in regard to transactions with private individuals since the adoption of [the withdrawal provision].”

Id., 269 Ala. at 166, 111 So.2d at 913-14 (emphasis added).

The observation that the State at one time did not deem the withdrawal provision to apply to situations where the manufacturer or wholesale purchaser transferred title is reinforced by the fact that the State did not contend in Hamm v. Continental Gin Co., 276 Ala. 611, 165 So.2d 392 (1964), that the withdrawal provision applied. In that case, the State merely contended that the sales of gins installed in South Carolina were closed transactions within Alabama and thus were taxable retail sales.

In State v. T.R. Miller Mill Co., 272 Ala. 135, 130 So.2d 185 (1961), the Court held that the State properly assessed taxes under the withdrawal provision against a lumber mill for withdrawals of its lumber from inventory to use in repairs, improvements, and maintenance of its own facilities. In State v. Kershaw Manufacturing Co., 273 Ala. 215, 137 So.2d 740 (1965), the Court held that the leasing of machines manufactured by Kershaw constituted a taxable withdrawal, noting that Kershaw manufactured the machines for a profit, whether by sale or lease. In State v. Barnes, 45 Ala.App. 522, 233 So.2d 83 (1970), the Court of Civil Appeals held that the withdrawal of phonograph records from stock to place in jukeboxes constituted a withdrawal. But in Drennen Motor Co. v. State, 279 Ala. 383, 185 So.2d 405 (1966), the Court held that designation of cars as demonstrators did not constitute withdrawals, because the cars were available for sale at all times and sold for an average of four and one-half percent less than new cars not used as demonstrators.

In each of these cases the state sought to impose tax on a withdrawal where no transfer of title took place. Later cases, however, established a pattern of applying the withdrawal provision where manufacturers transferred their products. In Rabren v. United States Steel Corp., 286 Ala. 394, 240 So.2d 358 (1970), the Court cited Air Conditioning Engineers, supra, and Acker, supra, in affirming that the use of structural steel in bridge construction was a taxable withdrawal “measured by the purchase price paid by [U.S. Steel] for such steel.” 286 Ala. at 397, 240 So.2d at 361. Rabren involved both the manufacturer/contractor and the withdrawal provisions, discussed standard steel and custom-fabricated steel, and taxed both manufactured and purchased steel; therefore, it is less than crystal clear as a precedent for applying the withdrawal provision to items transferred by the taxpayer to another.

The withdrawal provision was first applied to an objecting taxpayer who transferred the goods to another in Alabama Precast Products, Inc. v. Boswell, 357 So.2d 985 (Ala.1978). Alabama Precast manufactured roof slabs both for sale at retail and for use in “furnish and install” contracts. The State sought to tax, under the withdrawal provision, the value of the raw materials used to manufacture roof slabs for a contract under which Alabama Precast was to furnish and install roof slabs on a building in South Carolina. The parties agreed that the withdrawal provision was the only statute applicable to the facts of the case, and thus the Court did not consider whether the manufacturer/contractor provision was more germane to the transactions. In one sense, of course, the latter provision did not apply, because it relates only to use of property within the state. In another sense, however, the manufacturer/contractor provision might have been deemed to apply, had Alabama Precast so argued, to the extent that Alabama Precast’s operations were of the type governed by that provision.

The Court in Alabama Precast upheld the finding of the Court of Civil Appeals that the transactions were taxable, on the basis that “[t]he raw materials [were] withdrawn ... [and] used by Alabama Precast Products in the performance of a personal obligation under the construction subcontract.” Id., 357 So.2d at 988 (emphasis in original). Thus, the courts established not only the application of the withdrawal provision to goods transferred to others, but also the concept that the requirement that withdrawals must be for “personal and private use” included the “personal obligation” of a “furnish and install” contract. This result also obtained in Home Tile and Equipment Co. v. State, 362 So.2d 236 (Ala.Civ.App.), cert. denied, 362 So.2d 239 (Ala.1978).

The legislature signaled its disapproval of these interpretations of the withdrawal provision by passing Act No. 83-720, 1983 Ala. Acts 1167, effective during the pend-ency of this appeal. The Act amends several of the definitions in Code 1975, § 40-23-1, chiefly relating to the very issue at hand. The withdrawal provision of § 40-23-l(a)(10) is amended to read, with new material emphasized:

“The term ‘sale at retail’ or ‘retail sale’ shall also mean and include the withdrawal, use or consumption of any tangible personal property previously purchased at wholesale by a person engaged in the business of selling at retail tangible personal property from the business or stock for the personal and private use or consumption, without transfer of title, in connection with the business or by the person so withdrawing, using or consuming the same, except property which has been previously withdrawn from the business or stock and so used or consumed and with respect to which property tax has been paid because of such previous withdrawal, use or consumption, and except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured, fabricated or compounded for sale or for use in the performance of a contract for improvements or additions to real estate situated outside the State of Alabama; and such wholesale purchaser shall report and pay the taxes thereon.”

The Act also states that it “does not constitute a change in, but is declaratory of, the pre-existing law.” Courts must consider subsequent acts passed by the legislature to clarify previously ambiguous provisions. McWhorter v. State Board of Registration for Professional Engineers and Land Surveyors ex rel. Baxley, 359 So.2d 769 (Ala.1978).

Moreover, this change does indeed appear consistent with the intent of the legislature which originally passed the withdrawal provision. Disco has ably set out the background and legislative history of the withdrawal provision. In 1945, the Commissioner of Revenue sought to promulgate a regulation to the effect that diversions to personal use or consumption by a retailer were sales for sales tax purposes. The Commissioner requested an opinion from the Attorney General as to whether this regulation would be consistent with the sales tax laws. The Attorney General responded that a diversion to personal use was not within the definition of “sale” contained in the sales tax statutes because there was no transfer to a buyer. 38 Reports of the Attorney General 37 (1945). To the alternative question of what the Commissioner could do about such diversions, the Attorney General answered that any such action would be a legislative matter. Id.

In 1947 the legislature passed House Bill 70 as an amendment to the sales tax definitions now found at Code 1975, § 40-23-1. Act No. 305, 1947 Ala. Acts p. 160. The bill originally would have defined as retail sales all use or consumption of personal property purchased at wholesale. House Journal 1947, pp. 748-750. The bill was amended to delete that change but to add instead the sentence quoted at the beginning of this opinion as the withdrawal provision. The net effect of the change in the bill was to except property on which a sales tax has already been paid or which becomes part of property manufactured or compounded for sale rather than being used for the personal and private use or consumption of the person purchasing the property. Id., pp. 940-942.

As can be seen from the history of the withdrawal provision, the original legislative intent was consistent with the clarifying amendment of Act No. 83-720 and the position taken by Disco and the amici. Because this intent was inconsistent with the position taken by the State herein and accepted by the courts below, that position is not in accordance with the statute being applied. The decision of the Court of Civil Appeals must therefore be reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and ADAMS, JJ., concur.

FAULKNER and BEATTY, JJ., dissent.

TORBERT, C.J., and EMBRY, J., not sitting.


text:
    DISCO ALUMINUM PRODUCTS COMPANY, INC., a Corporation v. STATE of Alabama.
    Civ. 3651.
    Court of Civil Appeals of Alabama.
    July 25, 1984.
   On Remand from Supreme Court.

WRIGHT, Presiding Judge.

WHEREAS, this court on May 11, 1983, entered its decision affirming the judgment of the Circuit Court of Dallas County, Alabama, 455 So.2d 846, which judgment upheld a final sales tax assessment made by the State Department of Revenue on July 31, 1979, against Disco Aluminum Products Company, Inc., and

WHEREAS, the Supreme Court of Alabama reviewed the decision of this court by way of a writ of certiorari and on June 8, 1984, reversed the decision of this court and directed entry of judgment by this court accordingly, 455 So.2d 849.

IT IS THEREFORE the judgment of this court that the judgment of the Circuit Court of Dallas County, Alabama, heretofore entered in this cause be and the same is hereby reversed with direction to enter judgment in favor of taxpayer and against the State of Alabama Department of Revenue.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    John D. FORLINI v. Alice C. FORLINI.
    Civ. 3803.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.
    Rehearing Denied Dec. 14, 1983.
    William H. Harris of Harris & Molloy, Mobile, for appellant.
    Robert H. Smith of Collins, Galloway & Smith, Mobile, for appellee.
   WRIGHT, Presiding Judge.

The appellant John D. Forlini (father) and Alice Forlini Parsons (mother) were divorced in June 1978. The parties had four minor sons at the time of the divorce. The original divorce decree ordered the father to pay $980 per month in child support.

Because the sole issue raised on appeal deals with the father’s ability to pay child support and the amount he is able to pay, the evidence as to his income since the divorce may be summarized as follows:

Net Income Taxable

Year Gross Income After Losses Income

1978 $76,697. $66,419. $51,266

1979 75,719 54,111 48,812

1980 78,430 65,224 59,821

1981 57,061. 42,888 37,823

1982 20,000 *

1983 (projected)

When the parties were divorced the father was employed at Acuray where he continued to work through 1979. During 1980 and 1981 he was employed by Measu-rex. Both jobs were in the process control industry. In January 1982 his job with Measurex ended, and he experienced a marked decrease in his income and earning capacity. The industry was saturated and his income dried up. The father decided to change professions to the computer industry. He has since gone to school at nights and on weekends as part of his efforts in changing careers.

From February 1982 until July 1982 he attempted to set up his own company, Ene-rex, Inc., which ultimately failed, generating no sales and producing no income. For six months he lived off of his savings and those were depleted. In July 1982 the father worked for Olensky Brothers, a personal computer store, and in 1983 he changed jobs to work for another personal computer store.

One year after the divorce decree was entered, the court reduced the child support payments from $980 to $700 upon the father’s motion for modification. In February 1982 he again moved the court for modification to reduce child support payments on the basis of a decreased income and earning capacity. A June 1982 decree reset the amount of child support at $980, and a July 1982 decree provided that he could pay $500 per month with the remainder of $480 arrearage accruing. He then filed a motion to modify in October 1982. The court denied his motion. The father appealed.

The only issue on appeal is whether the trial court abused its discretion by setting an amount of child support excessive of the father’s ability to pay.

The Alabama Supreme Court has recognized that a divorced father must support his children reasonably according to his means. Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854 (1966). A divorced father’s duty to contribute to the maintenance of his minor children is not limited to his wages but may also include income derived from property holdings and any other earning capacity. Waldrop v. Waldrop, 222 Ala. 625, 134 So. 1 (1931). The determination of the amount of child support rests within the sound discretion of the trial court. Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980).

“[T]he standard for determining child support is the needs of the child as compared with the ability of the parent to respond to that need.” Ex parte Boley, 392 So.2d 840 (Ala.1981). The court in Boley continued, stating that,

“[Ujnfortunately these two factors rarely coincide: therefore ‘[I]f the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court.’ ”

Id. at 841-42 quoting Pruett v. Pruett, 333 So.2d 580, 582 (Ala.Civ.App.1976).

Modification of a prior child support award will be made only on proof of changed circumstances, and the burden of proof rests on the one seeking the modification. Wise v. Wise, 396 So.2d 111 (Ala.Civ.App.1981). In this case the burden was on the father. He contends that he does not have the financial resources to make payments as ordered and has therefore proven a material change in circumstances. The mother, on the other hand, claims he has failed to meet his burden of proof and that he does have adequate resources to make payments as ordered by the court.

It is not our prerogative to substitute our judgment for that of the trial court, Owens v. Owens, 412 So.2d 820, 821 (Ala.Civ.App.1982); nevertheless, we must examine the evidence to see whether it supports the judgment. “The court is bound by the legal evidence or lack of it. It is not free to speculate as to the ability of the husband to pay.” Alford v. Alford, 368 So.2d 295, 298 (Ala.Civ.App.1979). We have examined the evidence and find that the order for a monthly payment of $980 is not supported by it.

At the time of the last hearing on this case, the father’s income had diminished significantly. He had a net salary of $1,200 per month. His other income was from real estate notes and rentals in the amount of $1,040 per month, which combined with his net salary totaled $2,240 per month.

At that time his current monthly living expenses for food, utilities, transportation, clothing and debts (according to undisputed testimony) were conservatively estimated to be $900 per month for him and his present wife and their daughter. Payment for the mortgage on his home and the two rental properties alone total $1,351.85. If he pays $980 per month child support, he could not pay the mortgages and meet his necessary living expenses. He had been unable to sell the rental property which provided $420 of his monthly income. Moreover, he testified that he had been able to meet his living expenses only by borrowing heavily and repeatedly, with his wife borrowing over $10,000 in the last year.

He has no money in any savings or other bank accounts and holds no other type of savings or liquid investments. He is buying his home and has two pieces of rental property valued at $64,000 and $30,000 respectively, and these properties are also subject to $56,000 and $26,000 mortgages respectively. It might be said that the father could dispose of the rental properties and use his equities to pay the support. However, to sell would diminish his monthly income to his net salary of $1,200 per month. Clearly he could not pay child support of $980 from that income.

As we said in Wise v. Wise, supra, “We believe that the trial court disbelieved the undisputed evidence related to [his] income and his access to funds to pay the amounts awarded by the divorce decree, and it was not at liberty to do so. Such error requires reversal.” Id. at 113. The court may have set up the support payments as it did with the intent that if the father later increased his income by earning a higher salary, building his equity in the rental property or any other way, then the mother could garnish his salary or attach his property.

We sustain the order of $500 per month child support because the evidence supports it. However, we find neither evidence nor equity to support the ordered accrual of $480 per month. The trial court ordering a sum for child support is limited by the present ability of the parent to pay. It may not speculate upon a possible future ability to satisfy an accumulated judgment. Each such unpaid monthly amount becomes a final judgment upon which execution may be obtained at any time. Osborne v. Osborne, 57 Ala.App. 204, 326 So.2d 766 (1976). We know of no authority for basing an order for child support upon any criteria other than present ability to pay. It was said in Murray v. Murray, 84 Ala. 363, 4 So. 239 (1887), “Maintenance not beyond the husband’s means, is all the law can enforce.” It is to be remembered that modification may be had subsequent to an increased ability to pay. Boswell v. Boswell, supra, citing Roubicek v. Roubicek, 246 Ala. 442, 451, 21 So.2d 244, 252 (1945).

In Thomas v. Thomas, 281 Ala. 397, 203 So.2d 118 (1967), a divorced father was a doctor earning about $60,000 a year at the time of divorce. The mother was awarded $1,250 per month for the maintenance and support of herself and their two minor children. Shortly thereafter the father entered a residency program to study a different field of medicine wherein he would earn $400 per month. The court reduced support payments to $300 per month, with any balance deferred until after the residency was completed. Our supreme court held that any deferred monthly payments “are to be considered as future alimony payments not to become due until five months after Dr. Thomas has completed his residency, when ... he may have the question of excess amounts again considered by the court.” Thus, in that case, the court treated the amount of deferred support as future support payments subject to change should circumstances so warrant, rather than as an arrearage accruing monthly. We find the reasoning in Thomas appropriate to the present case.

We consider that the trial court determined that the father was presently unable to pay $980 per month in child support; that circumstances justified a reduction in the amount of payment; and that $500 per month was a reasonable figure. Accordingly we uphold that part of the trial court’s decree. We reverse with regard to the $480 arrearage accruing, finding it more reasonable to increase the payments at a later date when a material change in circumstances so warrants.

Appellee’s request for attorney’s fees is granted in the sum of $500.

AFFIRMED IN PART: REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

       Tax return not filed as of last hearing.


author: BEATTY, Justice.

text:
    Ex parte Alice FORLINI-PARSONS. (re John D. FORLINI v. Alice C. FORLINI).
    83-364.
    Supreme Court of Alabama.
    June 8, 1984.
    Robert H. Smith of Collins, Galloway & Smith, Mobile, for petitioner.
    William H. Harris of Harris & Molloy, Mobile, for respondent.
   BEATTY, Justice.

We granted certiorari in this case to determine whether the opinion of the Court of Civil Appeals, 455 So.2d 855, is in conflict with Ex parte Boley, 392 So.2d 840 (Ala.1981). We reverse and remand.

John Forlini and Alice Forlini-Parsons were divorced in 1978. The June 9, 1978, divorce decree incorporated the parties’ agreement giving custody of their four minor sons to Alice and setting John’s child support obligation at $980.00 per month. Later, John filed a motion to modify child support based upon changed circumstances (an anticipated decrease in earnings), and, on August 6, 1979, the trial court ordered his payments reduced from $980.00 to $700.00 per month. At the time of that order, John worked for Acuray. During 1980 and 1981, he worked for another company, Measurex. His employment with that company ended in January 1982 and, from February until July 1982, he attempted to set up his own company, Enerex, Inc., which was unsuccessful. During that time, Alice filed a motion to modify child support, and, on June 10, 1982, the trial court ordered an increase from $700.00 to $980.00 per month. Apparently, in response to John’s motion for reconsideration of that order, the trial court entered an order on July 20, 1982, allowing a payment of $500.00 per month with an accrual of $480.00 per month. Additionally, the trial court ordered John to resume payments of $980.00 per month and to pay any arrear-age when he found employment. Neither the June order setting child support nor the July order allowing the accrual was appealed.

On October 12, 1982, John filed a motion to modify the July 10, 1982, order based upon “a material change in circumstances since the entry [of that order].” The trial court denied the motion to modify by an order dated April 5, 1983, and amended that order on April 11, 1983. John appealed to the Court of Civil Appeals from the denial of his motion.

The Court of Civil Appeals stated that “the only issue on appeal is whether the trial court abused its discretion by setting an amount of child support excessive of the father’s ability to pay.” (Emphasis added.) That court then proceeded to analyze the propriety of the award made in the decree of June 1982 and amended in July 1982, which had set child support payments at $980.00 per month, but allowed the payment of $500.00 per month with an accrual of $480.00. These decrees had not been appealed. The court found that the $500.00 per month award was reasonable and upheld that part of the decree, but reversed with regard to the monthly accrual. That court relied upon the following language from Ex parte Boley, 392 So.2d 840, 841-42 (Ala.1981):

“[T]he standard for setting child support is the needs of the child as compared with the ability of the parent to respond to that need. Thompson v. Thompson, 337 So.2d 1 (Ala.Civ.App.1976); Donahey v. Donahey, 52 Ala.App. 596, 296 So.2d 188 (1974). Unfortunately, these two factors rarely coincide. Therefore,
“ ‘[i]f the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court.’
“Pruett v. Pruett, 333 So.2d 580, 582 (Ala.Civ.App.1976).”

Taken alone, this statement could lead to the erroneous conclusion that a trial court has unlimited discretion as to what evidence it can consider in deciding whether or not to grant a petition to modify child support. However, reading Boley in its entirety, it is clear that such an unlimited discretion is not what this Court intended.

The Boley decision dealt with an appeal from a denial of a motion to modify child support. The chronology of the trial court proceedings is as follows: (1) a divorce decree in 1970 which incorporated the parties’ child support agreement granting custody to the wife and setting the husband’s child support obligation; (2) a petition for modification of child support filed by the wife in 1978 which was denied and not appealed; and (3) a petition for modification of child support filed by the wife in 1979 which was denied and appealed. In ruling on the 1979 petition, the trial court refused to consider any material changes prior to the 1978 order which denied modification.

On appeal, the issue concerned the evidence the trial court should consider in regard to a petition for modification. More precisely, the issue was:

“[W]hether a trial court, in deciding if sufficient changed circumstances exist to warrant modification of a child support decree, is limited to a consideration of the changes that occurred since the last decree that considered the question of modification or whether the court is permitted to consider the changes that have occurred since the last decree awarding child support or actually modifying a support award.’’ (Emphasis added.) Rowe v. Boley, 392 So.2d 838, 839 (Ala.Civ.App.1980).

This Court affirmed the holding of the Court of Civil Appeals that:

“[I]n considering a modification of child support payments, a court should consider all changes in circumstances since the last decree awarding or actually modifying child support, rather than only those changes taking place since the last decree that considered the question of modification.” (Emphasis added.) Ex parte Boley, 392 So.2d 840, 841 (Ala.1981).

Reading this language in light of our discussion in Boley regarding the needs of the child and the ability of the parent to respond to those needs, it is apparent that this Court intended that the trial court consider any material changes in the needs of the children and the ability of the parent to pay since the last award fixing the amount of support. In its own opinion in Boley, the Court of Civil Appeals recognized that:

“If the needs of the children and the ability of the father to respond to those needs have materially changed since the last award fixing the amount of support, the trial court should be able to consider those changes in fashioning its decree_” (Emphasis added.) Rowe v. Boley, 392 So.2d at 840.

Nevertheless, in the present case, the Court of Civil Appeals went beyond the standard of review approved in Boley and went beyond the date of the last decree fixing child support. Using the analysis of the Court of Civil Appeals, that court could have gone back to the original decree of June 1978 to determine changed circumstances. Obviously, under Boley, such a discretion was not recognized as the proper standard of review on the issue of child support. Thus, under the standard of review approved in Boley, the Court of Civil Appeals could not go beyond the June 1982 decree as amended in July 1982. This Court finds no fault with the opinion of the Court of Civil Appeals examining the obligation of the father based upon the June 1982 decree which was modified to permit an accrual of child support in July 1982. The error is in the review by that court of those prior decrees which were not appealed.

Because the opinion of the Court of Civil Appeals is in conflict with that court's holding in Rowe v. Boley, supra, and our holding in Ex parte Boley, supra, we have no choice but to reverse the judgment and remand this cause to that court for further consideration consistent with this opinion. It is so ordered.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, FAULKNER, JONES, SHORES, and EM-BRY, JJ., concur.

ALMON and ADAMS, JJ., dissent.


text:
    John D. FORLINI v. Alice C. FORLINI.
    Civ. 3803.
    Court of Civil Appeals of Alabama.
    Aug. 1, 1984.
   On Remand from Supreme Court.

WRIGHT, Presiding Judge.

WHEREAS, on November 9, 1983, this court rendered a decision and judgment in this case, affirming in part and reversing in part the judgment of the Circuit Court of Mobile County, 455 So.2d 855, and,

WHEREAS, the Supreme Court of Alabama reviewed the decision of this court by writ of certiorari and entered its judgment reversing this court on June 8, 1984, and remanded the same, 455 So.2d 858,

IT IS THEREFORE the judgment of this court that the judgment of the Circuit Court of Mobile County be in all respects affirmed.

The request of appellee for an attorney fee is granted in the sum of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Mr. and Mrs. W.R. McLENDON v. John William McLENDON and Ruby Ann McLendon.
    Civ. 3910.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    A1 Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for appellant.
    W.A. Kimbrough, Jr. of Turner, Onder-donk & Kimbrough, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

John William McLendon and Ruby Ann McLendon were divorced in the Circuit Court of Mobile County, Alabama, on November 19, 1980. Pursuant to an agreement of the parties, custody of the couple’s minor daughter, Elizabeth Ann McLendon, was awarded to the paternal grandparents, Mr. and Mrs. W.R. McLendon, subject to each parent’s right of visitation. The child remained with the grandparents until August 1982, at which time the natural mother picked the child up for visitation and returned with her to California, the mother’s residence. The grandmother, after obtaining a California court order, regained custody of the child and petitioned the Circuit Court of Mobile County for a suspension of the mother’s visitation rights and for reimbursement of her expenses in traveling to California to regain custody. The mother counterclaimed, seeking a modification granting her custody. After an ore tenus hearing, the court awarded custody to the mother subject to the grandparents’ visitation rights. The grandparents filed a motion for reconsideration, which was denied. They appeal here, asserting that the trial court erred in awarding custody to the mother, that it abused its discretion in modifying the child custody provisions of the judgment of divorce, and that it improperly applied the law to the facts.

The grandparents contend that the trial court mistakenly believed that the recent case of Ex parte Berryhill, 410 So.2d 416 (Ala.), on remand, 410 So.2d 419 (Ala.Civ.App.1982), required that the natural mother be proved unfit in order to deny her custody. They assert that the trial court improperly applied this standard to the case at bar, thus imposing upon the grandparents the burden of proving the mother’s unfitness.

This court of course cannot know what was in the mind of the trial judge during the trial nor at the time he rendered his judgment. We have read in the record the statements of the court relative to the opinion of the supreme court in Berryhill. We find nothing more shown thereby than a question of the meaning of that opinion. We all have questions in our mind as to the exact meaning and effect of many appellate court decisions. Our responsibility in this case extends only to determining whether the judgment rendered is sufficiently supported by legal evidence, is not contrary to law as we understand the law, and is not clearly wrong and unjust. We make our determinations keeping in mind the discretionary authority of the trial court and the presumption that its judgment is correct.

It is the opinion of this court that the decision in Berryhill espouses no new law. In fact, the primary statements in Berryhill are quotations from the case of Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955). That case was decided nearly thirty years ago and cited to the case of Striplin v. Ware, 36 Ala. 87, 89, 90, written in 1860. Berryhill says that when a contest for custody of a child arises between a parent and a third person, the parent is deemed to have a superior claim to custody which should not be disturbed unless it plainly appears that the interest of the child requires it be set aside. We consider this to mean nothing more than that for a third person to overcome the presumptive superior right of a parent to the custody of his or her child, there must be clear and convincing evidence that the parent is so unfit or unsuited for custody that the best interest of the child will be served by granting custody to the third person.

This court has said that the presumptive superior claim of a parent is ended once there has been a decree granting custody of the child to a third person, rendered upon testimony showing unfitness of the parent and best interest of the child to lie in the custody of the third person. In other words, the issue of best interest of the child would not thereafter be subject to the presumed superior right to custody of the parent. Chandler v. Manning, 411 So.2d 160 (Ala.Civ.App.1982); Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977).

Therefore, the only burden of proof in this case was upon the mother. That burden, without benefit of presumption of primary right of a parent, was to show a change in circumstances since the divorce in 1980 and that the grant to her of custody was in the best interest of her child. The trial court by its decree determined that she met her burden. We may not reverse that determination unless it is so unsupported by the evidence as to be palpably wrong. Lightfoot v. Bylsma, 412 So.2d 813 (Ala.Civ.App.1982).

There is no testimony in this case denigrating the character of nor the loving care given to the child, Elizabeth Ann, by her grandparents. Though the mother relinquished custody of her baby early in its life, there were shown extenuating circumstances. There is testimony that her circumstances and ability to care for her child have substantially improved. She has remarried and has given birth to another child. She has adequate housing and income to care for her child. She is no longer the young girl who had neither husband nor support for her child.

It is no anachronism that every child custody case must be decided upon its own facts within the discretionary authority of the one who heard the testimony and observed the contestants. Chandler, supra.

Viewing the judgment of the trier of fact in light of the evidence and the presumption of its correctness, we are unable to find it palpably erroneous. We therefore must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice. MADDOX, Justice

text:
    Ex parte Mr. and Mrs. W.R. McLENDON. (re Mr. and Mrs. W.R. McLENDON v. John William McLENDON and Ruby Ann McLendon).
    83-595.
    Supreme Court of Alabama.
    July 6, 1984.

      A1 Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for petitioner.
    W.A. Kimbrough, Jr., Mobile, for respondent.
   SHORES, Justice.

This is a child custody case. The child was born in 1977. The parents of the child were divorced in 1980. By agreement of the parties, which was made a part of the divorce decree, custody was awarded to the paternal grandparents, who had already been caring for the child. In 1982, the mother picked up the child for visitation and took her to California, the mother’s new home, without advising the grandparents. The grandmother, after obtaining a California court order, regained custody of the child. She then petitioned the Circuit Court of Mobile County for suspension of the mother’s visitation rights. The mother counterclaimed, seeking a modification of the decree to regain custody. Following an ore tenus hearing, the trial court awarded custody to the mother, subject to the liberal visitation rights of the grandparents. The grandparents appealed, and the Court of Civil Appeals affirmed the judgment. McLendon v. McLendon, 455 So.2d 861 (Ala.Civ.App.1984). Rehearing was denied, and the grandparents petitioned for a writ of certiorari. We granted the writ under A.R.A.P. Rule 39(c)(4).

At the time of the hearing, the child was just under six years old and had been living with the grandparents since she was eleven months old, except for a period of about two months when she was with her mother in Tennessee. The child has remained with the grandparents during the pendency of this appeal because the trial court granted the motion of the grandparents for a stay of the custody award.

The mother’s visits with the child over the past five years have been infrequent, although there is evidence of some extenuating circumstances, which may account for the lapses. It is undisputed that the grandparents provide a good home for the child and that the grandmother has been a good mother figure. The grandparents have provided substantial medical care for the child, nursing her through several illnesses.

It is also undisputed that the mother has remarried and is now able to provide a stable and wholesome environment for the child. She and her new husband have one child of their own and have an income adequate to support both children. The mother’s new husband testified unequivocally that he would assist in the care and support of the child, and that he wanted custody to be returned to the mother. He and the mother agree that the grandparents can have all reasonable visitation rights and that, if they can afford to, they will send the child to the grandparents in the summer.

A natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a non-parent. Ex Parte Mathews, 428 So.2d 58 (Ala.1983); Ex Parte Berryhill, 410 So.2d 416 (Ala.1982); Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393 (1957); Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983).

In returning custody to the mother, the trial court may have incorrectly given the mother the benefit of this presumption. The trial court apparently misconstrued our holding in Ex Parte Berryhill, supra, wherein this Court said that in a contest between a natural parent and a non-parent for custody of a child, the natural parent has a superior right to custody. The Court of Civil Appeals correctly noted that the holding of Berryhill has no application when there is a prior decree removing custody from the parent. The superior right of the mother in this case was cut off by the prior decree awarding custody to the grandparents. McLendon v. McLendon, 455 So.2d at 862.

The correct standard in this case is: “Where a parent has transferred to another [whether it be a non-parent or the other parent], the custody of h[er] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child’s welfare.”

Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).

Furthermore,

“[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.”

Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).

It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981). The parent seeking the custody change must show not only that she is fit, but also that the change of custody “materially promotes” the child’s best interest and welfare.

For several years now, the Court of Civil Appeals has stated that the parent seeking custody has the burden of showing a change in circumstances which adversely affect the welfare of the child. Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983); Simpson v. Gibson, 420 So.2d 782 (Ala.Civ.App.1982); Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980); Keith v. Keith, 380 So.2d 889 (Ala.Civ.App.1980). This Court, in 1975, expressly rejected that standard in favor of the standard applied today. We held that “the use of the word 'adversely' limits the law as stated in our cases.” Ford v. Ford, 293 Ala. 743, 310 So.2d 234 (1975). We reaffirm that holding today and further hold that all contrary decisions, including the above-cited ones, are overruled to this extent.

We have examined the record carefully and conclude that the parties are equally capable of taking care of the child, and that both would provide her with a nurturing, loving home. The most that the mother has shown is that her circumstances have improved, and she is now able to provide for the child in the same manner in which the grandparents have been providing for her. She failed to show that changing the custody materially promotes the welfare and best interest of the child.

In Carter v. Harbin, supra, this Court affirmed the trial court’s decree denying the mother’s petition to remove custody from the father, who had it by the original decree. We find some of the language in Carter to be particularly poignant:

“In view of the evidence going to show that the father and stepmother are in all respects equipped to minister to the needs of the children in an adequate home where they are loved and cared for, we cannot believe it would be to the best interest of the children that they be uprooted again and taken to Huntsville to the home of their mother and her present husband, although it is clear that the present husband, as well as the mother, love the children and perhaps could afford them more of the luxuries of life than their father.”

Carter v. Harbin, 279 Ala. at 240, 184 So.2d at 148. If we substitute “grandparents” for “father and stepmother,” and “California” for “Huntsville,” this language could have been written especially for this case. The children in Carter had been shuffled from one household to the next many more times than this child, but the need for continuity is not any less in the case of this child than in the case of the Carter children. We cannot overemphasize that “frequent disruptions are to be condemned.” Wood v. Wood, 333 So.2d at 828.

The Court of Civil Appeals, in affirming the trial court’s award of custody to the mother, held that the mother had met her burden “to show a change in circumstances since the divorce in 1980 and that the grant to her of custody was in the best interest of her child.” McLendon v. McLendon, 455 So.2d at 863. Although the best interests of the child are paramount, this is not the standard to be applied in this ease. It is important that she show that the child’s interests are promoted by the change, i.e., that she produce evidence to overcome the “inherently disruptive effect caused by uprooting the child.” Wood v. Wood, 333 So.2d at 828. This she has not done.

For these reasons, we reverse the judgment of the Court of Civil Appeals and remand the case to that court.

REVERSED AND REMANDED.

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

MADDOX, J., concurs in the result.

MADDOX, Justice

(concurring in the result).

I concur in the result. At the conclusion of the trial in the instant case, the trial judge stated: “I know you use the best interest theory when you are dealing with people on the same level, but that decision [Berryhill] appears to me, says that when they are on different levels you use different standards.” It appears that the trial court applied the wrong legal principle in determining whether a right to modification of custody was proven. I would remand the case to the Court of Civil Appeals with directions that the Court of Civil Appeals remand the cause to the circuit court with directions that the circuit court determine the question of custody using the principles of law set out in the majority opinion. In other words, I would not make that factual determination at this level of review.


text:
    Mr. and Mrs. W. R. McLENDON v. John William McLENDON and Ruby Ann McLendon.
    Civ. 3910.
    Court of Civil Appeals of Alabama.
    Aug. 8, 1984.
   On Remand from Supreme Court.

WRIGHT, Presiding Judge.

WHEREAS, on July 6, 1984, the Supreme Court of Alabama, 455 So.2d 863, reversed the decision of this court entered on February 1, 1984, 455 So.2d 861, and remanded the cause to this court for further proceedings, and,

WHEREAS, it was the judgment of said Supreme Court that the judgment of the Circuit Court of Mobile County should be reversed and annulled,

IT IS THEREFORE ordered that the said judgment of the Circuit Court of Mobile County, Alabama, in this cause be reversed and the cause is remanded to that court for further proceedings.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.