text:
    Randolph E. NEAL, Jr. v. AMERICAN TELEPHONE AND TELEGRAPH CO., d/b/a South Central Bell.
    83-229.
    Supreme Court of Alabama.
    July 13, 1984.
    Randolph E. Neal, Jr., pro se.
    William W. Sanderson, Jr., of Lanier, Shaver & Herring, Huntsville, for appellee.
   PER CURIAM.

Randolph E. Neal, Jr. appeals from an order dismissing his action against the American Telephone and Telegraph Co., d/b/a South Central Bell (SCB), because of his failure to appear at a deposition pursuant to a court order.

On July 2,1982, Neal filed a complaint in circuit court against SCB wherein he sought to avoid disconnection of his telephone service by alleging that the failure of SCB to provide him with over 35 free telephone directories warranted his refusal to pay his delinquent phone bill. Neal also sought injunctive relief to preclude such disconnection. This relief was denied, however, and SCB disconnected his telephone service.

SCB then filed an answer which stated that Neal’s telephone service was properly disconnected because of his failure to pay his delinquent phone bill after repeated notice, and that his extensive request for directories could not be filled because Neal failed to place a written order with SCB.

On August 25, 1982, Neal filed an amendment to his complaint, seeking recovery of damages for extraordinary deprivations which allegedly resulted from the disconnection of his telephone service. SCB filed a motion to strike pursuant to Rule 12(f), A.R.Civ.P., on August 31, 1982, based upon the presence of allegedly outrageous, ridiculous, impertinent, and irrelevant material in the amended complaint.

Neal also filed various motions for in-junctive relief based upon the presence of extensive damages allegedly resulting from an increase in pay telephone rates. These motions were denied.

On August 1, 1983, Neal filed an application for entry of default, requesting that the clerk of the court, in accordance with Rule 55(b)(1), enter judgment for the amount stated therein due to SCB’s failure to answer Count Two of his amended complaint. The clerk refused to enter the default, and this Court denied Neal’s petition for writ of mandamus to the circuit court clerk. Ex parte Neal, 441 So.2d 139 (Ala. 1983) (mem.).

On September 1, 1983, SCB served Neal with a notice of deposition, scheduling his deposition for September 14, 1983, at 10:00 a.m. in the law offices of Lanier, Shaver & Herring. This notice was served on Neal at 2211 Bide-A-Wee Drive, NE, Huntsville, Alabama 35801, the address which Neal listed throughout the course of this case.

On September 9, 1983, Neal filed a “Notice of Refusal to Allow Taking of Deposition and Objection,” which was received by defense counsel on September 12, 1983. In this document, Neal stated that he would refuse to appear for the deposition at the stated time and place. He then stated that he would attend a deposition only on the following terms: that the deposition be taken in a courtroom before a judge; that SCB agree to pay for Neal’s copy of the deposition; and that the scheduled time be changed.

On September 12, 1983, SCB filed a motion for an order compelling Neal to appear at the stated time for the deposition or at another reasonable time within ten days prior to the September 27, 1983, trial date. A copy of this motion was mailed to Neal at his Bide-A-Wee Drive address on September 12, 1983.

On this same day, the circuit court entered an order which stated that Neal’s failure to appear for the deposition at the time and place noticed would result in dismissal. This order was also mailed to Neal at the same address.

On September 14, 1983, pursuant to Rule 37, A.R.Civ.P., SCB filed a motion to strike the complaint and to dismiss the action for Neal’s failure to attend the deposition. This motion was supported by an affidavit from the court reporter, who stated that Neal failed to appear for his deposition as ordered.

On September 16, 1983, the circuit court entered an order dismissing Neal’s action against SCB due to his violation of the order to appear for his deposition. Neal then filed a motion for a new trial, which alleged that he did not receive notice of the court order compelling discovery until after the actual deposition date. The circuit court denied this motion, and this appeal ensued.

Neal presents the following issues: 1) whether the circuit court clerk erred in refusing to enter a default judgment on Neal’s amended complaint; and 2) whether the circuit court abused its discretion in dismissing this action due to Neal's failure to comply with a court order compelling the taking of a deposition.

Under Rule 55(b)(1), A.R.Civ.P., the clerk of the court may enter judgment by default in only one instance:

“When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear and if he is not an infant or incompetent person.”

In all other cases, the party entitled to a judgment by default must apply to the court for entry of such a judgment. Rule 55(b)(2), A.R.Civ.P.

Because the speculative amount which Neal claimed as damages in his amended complaint and in his application for default could not conceivably constitute a “sum certain” as determined by a contract or note, Neal was perforce relegated to the Rule 55(b)(2) application for entry of default judgment by the circuit court. Neal, however, failed to pursue this latter alternative, and the circuit court clerk properly refused to enter a default judgment on Neal’s amended complaint.

The remaining issue is controlled by the recent decision of Blair v. Cooper, 437 So.2d 1249 (Ala.1983), wherein this Court upheld the dismissal of an action pursuant to Rule 37, A.R.Civ.P., due to the plaintiff’s willful failure to attend a deposition, after being duly notified of its date and time.

Under Rule 37(d), A.R.Civ.P., if a party fails to appear before the officer who is to take his deposition, after being served with proper notice, the court in which the action is pending may, on motion of the other party, dismiss the action in accordance with Rule 37(b)(2)(C), A.R.Civ.P. This later provision also allows the sanction of dismissal for the failure of a party to obey an order permitting discovery.

This Court has required that a party intentionally or willfully fail to attend a deposition before the sanction of dismissal will be upheld. See Blair, supra.

The record discloses ample evidence supporting the dismissal of this action for Neal’s willful failure to attend the deposition.

It is clear that Neal received actual notice of the time and place of the deposition beforehand, because he filed a motion in response to this notice, wherein he emphatically stated that he would not attend the deposition on the date specified unless certain demands were met.

Although Neal complains that he did not receive notice of the order compelling his attendance at this deposition, a copy of this order was sent to him at the address which he listed in all of his filings throughout the proceeding below, and which, on appeal, he' still lists as his current address.

In its order denying Neal’s motion for a new trial, the circuit court, moreover, took judicial notice of the fact that Neal had recently filed a multiplicity of frivolous actions in Madison Circuit Court. In each of these actions, Neal listed the Bide-A-Wee Drive address as his current residence. Neal was evicted from this residence in one such action and thereafter claimed no address in each of the other pending actions. The court told Neal that all documents would be sent to the Bide-A-Wee Drive address, his last known residence, and that it would be incumbent upon him to periodically check the court files in each of his cases should this notice prove insufficient.

Under these circumstances, we hold that the circuit court properly dismissed the action for Neal’s intentional failure to attend the deposition.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . It was proper for the circuit court to take judicial notice of the multiplicity of litigation which Neal had pending before the court in determining whether he had willfully failed to attend the deposition. See Blair v. Cooper, 437 So.2d 1249, 1252 (Ala.1983).


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Henry SHEARER & Don Bryan, as partners, d/b/a The Keg Korner v. The TOWN OF GULF SHORES, Alabama, a Municipal Corporation.
    83-247.
    Supreme Court of Alabama.
    July 13, 1984.
    John Earle Chason of Chason & Chason, Bay Minette, for appellants.
    J. Don Foster and Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appel-lee.
   EMBRY, Justice.

This is an appeal from a judgment entered on a directed verdict for appellee in the Circuit Court of Baldwin County. Appellants, Henry Shearer and Don Bryan, partners in a business called The Keg Kor-ner, sued the Town of Gulf Shores for negligence and willful misconduct in connection with the issuance of a privilege license. Their complaint is premised on the failure of the Town of Gulf Shores to ascertain whether appellants had a valid health department permit prior to the Town’s issuing its privilege license.

The license was issued to appellants to permit them to sell beer from a portable building during the summer of 1982. They did not contact the Department of Public Health before starting their operation, but shortly thereafter were notified by the department that they were in violation of numerous health regulations. They chose to cease operating rather than to correct the violations. This suit was filed, claiming the Town was under a duty to require a valid health permit prior to issuing the privilege license. It is claimed this duty is found in the text of § 22-20-5(c), Code 1975. It provides, in pertinent part:

“[A]nd it shall be unlawful thereafter for the judge of probate of said county or for the city clerk of said municipality to accept payment for, or to issue, a privilege license for the operation of any establishment governed by said regulations unless the applicant for said license is in possession of a valid permit issued by the health officer for the operation of said establishment. It shall, therefore, be unlawful to operate, within any county or any incorporated municipality within the state of Alabama, wherein the aforesaid regulations have been declared to be in effect, any establishment which is governed by said regulations unless the operator of said establishment possesses a valid permit from the health officer for its operation; and further, the health officer is hereby authorized and empowered to suspend or revoke, after the expiration of reasonable time specifically named in an official written notice to the operator, the permit for the operation of an establishment governed by the aforesaid regulations for the flagrant or continuous violation of any provisions of said regulations.”

Appellants contend that this duty inures to their benefit. The city issued the privilege license without demanding a valid health permit and it is alleged that representations were made to the effect that the health permits would not be necessary for the temporary business operation. Based on the foregoing, appellants contend the city has injured them by its negligence.

The elements required to support an actionable negligence claim are breach of a legal duty and an injury proximately resulting from the breach of duty (owed to plaintiffs). TG & Y Stores v. Atchley, 414 So.2d 912, 914 (Ala.1982). Under the facts of this case, and applicable laws, we find no legal duty owed plaintiffs by the Town and therefore no actionable negligence.

The statute in question is aimed at protecting the public health and is for the protection of the public. It creates no duty of the Town owed appellants. The Code establishes this:

“(d) The health officer is hereby authorized and empowered to institute proceedings in the circuit court to enjoin the operation of any establishment governed by the aforesaid regulations when no more reasonable course of action will serve to protect the public health_”

(Emphasis added.)

§ 22-20-5(d), Code 1975.

The appellants proceed on a false assumption. They cannot be saved by the scintilla rule (ARCP 50(e)) or a most favorable view of the evidence presented because “there is no duty to disclose laws which are accessible to and presumed to be known by all.” Henson v. Estes Health Care Center, Inc., 439 So.2d 74, 76 (Ala.1983). Appellants are charged with knowledge of § 22-20-5(c), Code 1975, requiring them to be in possession of a valid health permit for operation of their business as a condition to obtaining a privilege license.

We find that the court below properly directed a verdict in favor of the Town because appellants failed to establish a pri-ma facie case. We need not address the issue of damages or contributory negligence in light of this opinion.

The judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAIJLKNER, Justice.

text:
    Richmond STEPHENS v. Samuel A. CHERRY, Jr.
    83-357.
    Supreme Court of Alabama.
    July 13, 1984.
    Henry T. Henzel, Birmingham, for appellant.
    Edward 0. Conerly of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee.
   FAIJLKNER, Justice.

Richmond Stephens appeals from a judgment entered on a directed verdict in favor of the defendant, Samuel A. Cherry, in a suit for slander. We affirm.

The single issue presented for our review is whether Stephens presented any evidence which, when viewed in its most favorable light, supports his case. Ex parte Bennett, 426 So.2d 832 (Ala.1981).

Stephens’s complaint, both as originally filed and as amended, alleges that the defendant, Samuel Cherry, made statements to a third party to the effect that Stephens had engaged in sexual relations with a client represented by him in a divorce proceeding. Stephens asserts that these statements were made with the intent to injure him in his profession as an attorney.

The following colloquy is cited by Stephens as evidence showing that a directed verdict was improper:

“Q Now, I want to try to take you back around May 15th, 1980, and ask if you recall having a telephone conversation with Mr. Cherry about a divorce case that he and Mr. Stephens were involved in. Do you recall that taking place?
“A Yes. We had a conversation. I don’t say that it’s centered around the divorce case, but it was brought up.
“Q Who brought it up?
“A Sam brought it up.
“Q You didn’t bring it up?
“A No.
“Q Would you relate to the jury what he said when he brought it up?
“A Sam and I had some conversation about business and such. Later on in the conversation, it was one of these deals, ‘Oh, your buddy, Richmond Stephens, was down the other day on a divorce proceeding. He and I had people in my office there, and this thing became somewhat heated, the conversation, between Richmond and myself.’ And either the parties separated or Richmond stormed out or whatever. Basically, Sam asked me to — Sam said that he felt like Richmond was letting his emotions get involved with his legal responsibilities in representing this particular individual. And he said, basically, do me a favor. The next time you talk with Richmond or call up Richmond, indicate to him that, you know, I know what is going on. I basically checked him out and I have the goods on him and that he had been seen in several of the Birmingham nightspots in the company of this female that he was representing in these divorce proceedings. And whether it was that afternoon or the following day that I had a conversation with Richmond, and I passed this along.”

After reviewing the above, as well as the record in its entirety in a light favorable to Stephens, we find that it is devoid of any evidence which suggests that Cherry accused Stephens of any type of sexual misconduct or sexual impropriety. Cf. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927). Accordingly, the judgment is due to be, and it is hereby, affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Robert LIGHT v. Randall MULLINS.
    83-383.
    Supreme Court of Alabama.
    July 13, 1984.
    Dan W. McCoy, Huntsville, for appellant.
    Robert E. Willisson, Huntsville, for ap-pellee.
   PER CURIAM.

Robert Light brought suit against Randall Mullins for a determination of the proper sum of money necessary to redeem certain real estate from a mortgage foreclosure sale to Randall Mullins. The trial judge found that $38,862.63 was the proper sum. In this amount was an item for removal of an outbuilding by Mullins. Light objects to his having to pay for the removal.

After reviewing the evidence, we cannot say that the trial judge committed error. Consequently, under the ore tenus rule, the judgment is affirmed. Chism v. Hicks, 423 So.2d 143 (Ala.1982).

AFFIRMED.

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


text:
    Constance R. REICH v. HOLIDAY INN and H.P. Eisenmann.
    83-485.
    Supreme Court of Alabama.
    July 13, 1984.
    Grover S. McLeod, Birmingham, for appellant.
    William C. Wood of Norman, Fitzpatrick & Wood, Birmingham, for appellees.
   PER CURIAM.

Appellant Constance R. Reich sued her former employer, Holiday Inn, and her former supervisor, H.P. Eisenmann, alleging that she was wrongfully discharged from her job. It is undisputed that appellant’s job status was that of an employee at will. The trial court dismissed the action, holding that her complaint failed to state a claim upon which relief could be granted. We affirm.

The amended complaint alleges that Reich was a clerk at the Holiday Inn, Civic Center, in Birmingham, with the chief responsibility of auditing and paying those accounts that were due and owing. It also alleges that there existed a company policy or rule that forbade her from paying any invoices that were of a questionable nature. In June of 1983 she received several invoices that she determined were of a questionable nature and refused to pay them. She alleges that these invoices were from a dummy corporation set up by the defendants in order to defraud the stockholders of Holiday Inn, Inc., and the Internal Revenue Service.

Reich states in her amended complaint that she refused to pay the invoices out of fear that she would then become a party to the crime. Upon her failure to pay the invoices, she was fired.

The general rule in this state has been and still is that an employment contract at will may be terminated by either party, with or without cause or justification. We have held that this means a party may be discharged for a good reason, a wrong reason, or for no reason at all. Johnson v. Gary, 443 So.2d 924, 926 (Ala.1983); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130, 1131 (Ala.1977).

In Hinrichs we noted:

“Alabama has followed the general rule which is that in a contract of employment ‘at will,’ the contract means what it says, that it is at the will of either party. The employee can quit at will; the employer can terminate at will. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). This is true whether the discharge by the employer was malicious or done for other improper reasons. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). This has been the Alabama law since the early years of this century. See Tennessee Coal, Iron and R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909), where this Court held:
“ ‘... If one does an act which is legal in itself and violates no right of another, the fact that this rightful act is done from bad motives or with bad intent toward the person so injured thereby does not give the latter a right of action against the former.’ ”

Hinrichs, supra, at 1131. See also, Meredith v. C.E. Walther, Inc., 422 So.2d 761, 762 (Ala.1982).

This case presents nothing to justify the adoption of an exception to the longstanding and well-established rule of this jurisdiction.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

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

JONES and ADAMS, JJ., concur in the result.


text:
    Turner C. CALVERT, et al. v. CITY OF GADSDEN, a municipal corporation.
    83-536.
    Supreme Court of Alabama.
    July 13, 1984.
    James F. Hinton, Gadsden, for appellants.
    Roger W. Kirby, City Atty., Gadsden, for appellee.
   PER CURIAM.

Several employees of the City of Gadsden’s Fire and Police Departments appeal from a judgment dismissing their complaint against the defendant, the City of Gadsden, for breach of an implied contract.

A retirement system for police officers and firefighters employed by the City of Gadsden was created by legislative Act No. 106, Regular Session 1939, and that system has been modified from time to time thereafter by further legislative acts, including Act No. 904, Regular Session 1975, which is the subject of this action.

The employees argue that less than twenty years prior to the adoption of Act No. 904, approved October 8, 1975, which amended the Policeman’s & Fireman’s Fund Act for the City of Gadsden, they entered into an agreement with the City which included the provision that upon completing twenty years of employment service and contributing a certain percentage of their salaries they would be eligible for retirement and upon retirement would receive a sum equal to fifty percent of the rate of pay for the rank they held at the time of their retirement. The employees argue that the City of Gadsden breached this agreement, because Act No. 904 fixed retirement pay at a rate based on their last three years’ rank. The employees demand specific performance of the alleged agreement.

The issue presented in this case was decided by this Court in Board of Trustees of the Policemen’s & Firemen’s Retirement Fund of the City of Gadsden v. Cary, 373 So.2d 841 (Ala.1979). This Court held:

“With respect to those employees who had not yet become eligible for retirement [as of October 8, 1975], we are constrained to hold that their interests had not matured into an unqualified right to receive the benefits set out in the statutory plan. We view the completion of twenty years’ of service as a condition precedent to the vesting of an absolute right to receive these benefits. Therefore, absent this vesting, the compensatory scheme, including the retirement plan, was subject to legislative modification.”

Cary, at 843.

The employees in this case had not served twenty years of employment at the time Act No. 904 became law; thus, their retirement benefits had not vested. Therefore, on the authority of Cary, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Edna Ruth STEPHENS v. Charles A. RUSH.
    83-651.
    Supreme Court of Alabama.
    July 20, 1984.
    W.M. Beck, Sr. of Beck & Beck, Fort Payne, for appellant.
    Stephen P. Bussman, Fort Payne, for appellee.
   PER CURIAM.

Affirmed as to Issue No. 1 (failure to plead adverse possessior) on the authority of A.R.Civ.P. 15(b) and Bischoff v. Thomasson, 400 So.2d 359 (Ala.1981); affirmed as to Issue No. 2 (sufficiency of the evidence to support claim of adverse possession) or the authority of Code 1975, § 6-5-200, et seq., and Hand v. Stanard, 392 So.2d 1157 (Ala.1980).

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    John Henry DOUGLAS and Edith Douglas v. Randall Keith HARRELSON and Sandy Harrelson.
    Civ. 3936.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1984.
    Rehearing Denied Feb. 29, 1984.

      J. Fletcher Jones, Andalusia, for appellants.
    Abner Powell, III and M. Ashley McKa-than of Powell & Powell, Andalusia, for appellees.
   BRADLEY, Judge.

This is a child custody case.

Jeffery Alan Douglas was born September 1, 1978. The mother, Sandra Elaine Douglas, and the father were not married. On September 5, 1979 the child was adopted by his maternal grandparents, John Henry and Edith Douglas, under a final order of adoption rendered by the Probate Court of Covington County, Alabama.

In August 1981 Sandra Douglas married Randy Harrelson, the child’s father, and on November 9, 1982 the couple filed a petition for custody of their son, Jeffery.

After an ore tenus hearing on May 5, 1983, the trial court entered an order granting custody of Jeffery to his natural parents with reasonable rights of visitation to the adoptive parents.

On June 8, 1983 the Douglases filed a motion to vacate the judgment and enter a new judgment or, in the alternative, a new trial. The court denied the motion and they appeal.

The dispositive issue here is whether the trial court erred to reversal by taking custody of Jeffery from the adoptive parents and placing his custody with the natural parents.

In Alabama adoption is a status created by the state acting as parens patriae, the sovereign parent. Ex parte Bronstein, 434 So.2d 780 (Ala.1983). The policy of the adoption statute is to treat adopted children in all respects as natural children. Ex parte Bronstein, supra. One of the rights vested in the adoptive parents is the right to custody. Jones v. Jones, 215 Kan. 102, 523 P.2d 743, cert. denied, 419 U.S. 1032, 95 S.Ct. 515, 42 L.Ed.2d 307 (1974).

The presumption is strong that a child’s best interests lie with its natural parents, and the authority of the parents will not be interfered with except for gross misconduct or where the parents lack the capacity or the means to properly care for the child. Ex parte Sullivan, 407 So.2d 559 (Ala.1981). Where the dispute over a child’s custody arises between the natural parents and a third person, the superior claim is with the parents, and that custody will not be disturbed unless it plainly appears that a custody change is required. 407 So.2d 563, supra.

Since adoptive parents stand in the shoes of natural parents so far as custody of a child is concerned, the above propositions apply as well to adoptive parents.

In the case at bar the trial court determined that the best interests of the child required that the adoptive parents be deprived of its custody. We disagree and reverse.

The evidence shows that the natural mother, Sandra Douglas, was thirteen when she became pregnant, and she was living at home and going to school. The natural father, Randy Harrelson, was eighteen. Upon learning of her daughter’s pregnancy, Mrs. Douglas took Sandy to the Department of Pensions and Security in Andalusia. Sandy was told her only choice was to go to Mobile and have the baby and the state would put it up for adoption. Neither Sandy nor Mrs. Douglas wanted to give the child to a stranger. Mrs. Douglas then called Randy’s parents, Ralph and Betty Harrelson, and told them their son had caused her daughter to become pregnant. The Harrelsons agreed with Sandy and her parents that Ralph Harrelson would pay the medical expenses for the birth of the child plus a sum for a baby bed and clothes in return for his son never being revealed as the father of the child and for Randy being released from any obligation of support.

The child was born on September 1,1978. After his birth Sandy and the baby lived with her parents, the Douglases. On September 22, 1978 Sandy signed a consent form for her parents to adopt the child. Sandy testified that she consented to the adoption only because her parents assured her that if she ever married Randy, the child’s father, the child would be returned to her.

A year later, on September 5, 1979, Jeffery’s adoption was finalized. There was no objection by anyone to the adoption of the child by the Douglases, nor was any appeal taken from the judgment of adoption.

Randy Harrelson married Sandy Douglas, the child’s mother, on August 15, 1981. The father testified that he never knew anything about the agreement entered into between Sandy and the grandparents. He states the reason he waited until November 1982 to file for custody of his son was to establish that he and Sandy had a nice home, could provide for the child, and were secure in their marriage.

Randy is now twenty-three years old and Sandy is eighteen years old. They are expecting another child. Although the evidence shows that Randy changed jobs frequently in the past, since January 1983 he has been working in his father’s convenience store and also sells cars for his father. He makes about $250 a week at the store and a twenty percent commission on the cars he sells. The couple have bought the child clothes, birthday and Christmas gifts, and have offered to take him to the dentist. They have a two bedroom brick home with a large yard, and Jeffery would have his own room.

Jeffery refers to the Douglases as “Mama” and “Daddy” and to his natural parents as Sandy and Randy.

Prior to her marriage to Randy Harrel-son, Sandy lived at home with her parents, the Douglases, and helped care for Jeffery. During the time she was living with her parents, Sandy completed the eleventh grade and also worked at Jack’s restaurant. She used part of her earnings to buy things for Jeffery and she also gave her parents some of her earnings. Sandy also helped care for Jeffery and the Douglases’ other children when she was not in school or working.

After marrying Randy, Sandy completed high school and worked for a period of time for her father-in-law.

The evidence is without dispute that the Douglases are fit parents. They are both employed and have provided most of the support for Jeffery. The evidence is also without dispute that Sandy and Randy Har-relson would be fit parents for Jeffery.

In view of the evidence that the child has lived with the Douglases for most of its life, i.e. about four years; that the child refers to the Douglases as mama and daddy; that adoption proceedings for the child were commenced within three or four weeks after its birth; that the child is well cared for and generously loved by the Douglases; and that the Douglases have the capacity, desire, and means to provide for Jeffery as they do their natural children, we find that the parental presumption reposed in the Douglases that Jeffery's best interests lie with them has not been overcome by the Harrelsons.

The natural parents also contend that the judgment of the trial court can be upheld on the ground that the decree of adoption was obtained by fraud and, therefore, it could be set aside and custody restored to the natural parents.

There was evidence in the record that the adoptive mother had promised the natural mother that if the natural mother would consent to the adoption of Jeffery that the adoptive mother would give the child to the natural mother if the natural mother, at some later time, married the natural father.

Whether such evidence would be sufficient to support a collateral attack on the adoption decree is immaterial in the case at bar. The trial court, in its decree, made no mention of the adoption decree; it only changed custody of Jeffery from the adoptive parents to the natural parents and gave the adoptive parents visitation rights. So, the only issue decided by the trial court and properly presented to this court is whether the trial court erred in changing Jeffery’s custody from the adoptive parents to the natural parents. We find that the trial court did err by changing Jeffery’s custody. Accordingly, the judgment of the trial court is reversed and the cause is remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: BEATTY, Justice.

text:
    Ex parte Randall Keith HARRELSON and Sandy Harrelson. (Re: John Henry DOUGLAS and Edith Douglas v. Randall Keith HARRELSON and Sandy Harrelson).
    83-598.
    Supreme Court of Alabama.
    July 6, 1984.
    Ab Powell, III and M. Ashley McKathan, Andalusia, for petitioners.
    J. Fletcher Jones, Andalusia, for respondents.
   BEATTY, Justice.

Writ quashed on the authority of Ex parte McLendon, 455 So.2d 863 (Ala.1984).

WRIT QUASHED.

All the Justices concur.


author: BRADLEY, Judge. HOLMES, Judge,

text:
    Michael E. LANKFORD v. INTERNATIONAL PAPER COMPANY.
    Civ. 3933.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Rehearing Denied May 2, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-856.

      James A. Yance and Jay A. York of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    John N. Leach, Jr. of Coale, Helmsing, Lyons & Sims, Mobile, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Claimant, Michael Lankford, is an employee of the International Paper Company in Mobile County, Alabama. In April 1981 Lankford was injured in an on-the-job explosion at employer’s plant. He applied for and received temporary total workmen’s compensation benefits. Subsequently, Lankford filed an action seeking to recover permanent disability benefits.

After an ore tenus hearing on April 27, 1983, the trial court entered judgment in favor of employer and denied Lankford’s claim for further benefits, finding claimant had not sustained any loss of earning capacity. Lankford’s subsequent motion for a new trial was denied and he appeals.

Claimant argues here that the trial court erred in not finding that he suffered a loss in his ability to earn and that an employee may be compensated for an undisputed disability even though there is no actual impairment of earnings.

Before considering claimant’s contentions, we note that in this case compensation under Alabama’s workmen’s compensation laws can be awarded only when there is a loss of ability to earn. Ashley v. Blue Bell, Inc., 401 So.2d 112 (Ala.Civ.App.1981); Lingo v. Dixie Veneer Co., 349 So.2d 591 (Ala.Civ.App.1977); see § 25-5-57(a)(3)(g), Code 1975.

In the instant case the trial court determined that claimant had not sustained any impairment in earning capacity and denied him any benefits.

“The rule is well established that on cer-tiorari to review workmen’s compensation cases, we will not undertake an examination of the weight or preponderance of the evidence presented to the trial court. Instead, we will look to see if there is any evidence to support the facts found by the trial court. Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 ([Ala.Civ. App.] 1974).”

Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978). Therefore, we must determine whether there was any evidence to support the trial court’s finding that claimant suffered no impairment in his ability to earn.

The evidence revealed the following facts. Lankford is thirty-four years old. He has been a manual laborer for most of his working life and for the past eleven years has been employed at the International Paper Company, Mobile plant. He is currently holding the same position as he did before the injury, that of instrument electrical mechanic. The duties of this position require claimant to repair certain machines and equipment at the plant, some of which are located off the ground. Before the accident claimant often had to climb and lift tools and repair parts, and to exert a sizeable amount of body strength in order to perform these duties.

On April 22, 1981 Lankford was seriously injured when a steam boiler he was working on exploded. He was struck in the back by a piece of steel and knocked to the ground. As a result of the accident, claimant sustained a deep laceration to his back and left elbow, first, second, and third degree burns to his back, right arm, and left elbow, a fractured rib, and a ringing in the ears or “tinnitus” as was later diagnosed.

Lankford was hospitalized for six days and was not able to return to work for four to five weeks. During this time he received workmen’s compensation payments. When he returned to work, claimant resumed the duties of instrument electrical mechanic but was restricted to light duty in the power house area and was restricted from any activity involving heavy lifting or climbing.

Lankford was treated by two doctors for the ringing in his ears. It was determined that Lankford had suffered some damage to the nerve endings in his ears from the explosion, but that he had suffered no hearing loss. One doctor recommended that claimant not work in areas where the noise levels were in excess of eighty to eighty-five decibels. Another doctor stated that Lankford should wear ear protectors if he works in a high noise area. Ear protectors are required by International Paper of all employees who work in high noise areas. Lankford was transferred to the sheet finishing department where the noise level was much lower. Although tinnitus can cause irritability, nervousness, and dizziness, it would not materially affect a person’s ability to function on a daily basis, and with medication can be suppressed.

Lankford was also treated by two orthopedic surgeons for pain in his back. Recommended treatment was extra-strength Tylenol. Both doctors restricted Lankford from lifting heavy objects, and determined that he had suffered a twenty percent permanent partial disability to the body. One doctor opined that claimant could occasionally climb; that he could lift twenty to fifty pounds, and occasionally fifty to one hundred pounds, and that he could squat and bend, climb, crawl, and reach above shoulder level occasionally.

Lankford was also seen by a psychiatrist, who determined that claimant was having a mild anxiety reaction to the accident, but recommended no treatment.

There was testimony that another instrument electrician had been injured in an accident at employer’s plant several years ago, but that he is still working at the plant as an instrument electrical mechanic and has had more restrictions placed on his activities than claimant.

Since his return to work, claimant has been able to perform the duties of instrument electrical mechanic, with restrictions on lifting, climbing, and working in noisy areas. When there is a strenuous lifting job involved, other workers are sent to assist Lankford, or else chain blocks are used. This type of assistance was also available to International Paper mechanics before Lankford’s injury.

The evidence shows that at the time of his injury in 1981 Lankford made $37,978, or $13 an hour. In 1982 he earned $38,365 and for the first four months of 1983 earned $17,904, or $15 per hour, plus overtime.

The evidence does show that mechanics in the power house area have the opportunity to work more overtime hours than do mechanics in the sheet finishing department. However, work assignments are made by the supervisors and an International Paper mechanic may receive work assignments to other areas of the plant. There is evidence, however, that Lankford has accumulated as many or more overtime hours working in the sheet finishing department. During the week of February 19, 1983, Lankford worked seventy-nine hours, thirty-nine hours of overtime in addition to his regular forty hours a week.

Lankford argues that his ability to earn has been impaired and that a comparison of his preinjury and postinjury earnings cannot be used as the determining factor that such an impairment does not in fact exist.

The rule is that postinjury earnings are but one factor for the court to consider in determining whether there has been a loss of earning capacity. Goodyear Tire & Rubber Co. v. Downey, 266 Ala.344, 96 So.2d 278 (1957); Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982). But when an employee’s postinjury earnings equal or exceed his earnings at the time of injury there exists a presumption of earning capacity. Such presumption however may be rebutted by (1) independent evidence of incapacity or (2) evidence tending to indicate that the postin-jury earnings are an unreliable basis for estimating earning capacity. Downey, supra; Florence Enameling Co. v. Jones, supra. Factors which would indicate that postinjury earnings are an unreliable basis for estimating earning capacity include: an increase in general wage levels since the time of the accident; claimant’s own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of postinjury earnings. Downey, supra.

We do not believe the presumption of earning capacity has been overcome in this case. The evidence shows that Lank-ford was injured on the job; however, there is also evidence that he has suffered no loss of earning capacity.

After the accident Lankford returned to the same position, that of instrument electrical mechanic, that he had prior to the accident. He has worked regularly and satisfactorily and is able to perform the duties connected with that job except for some restriction on lifting, climbing, and working in noisy areas. These restrictions are not as onerous as those placed on other employees of employer. Lankford is putting in -about as many overtime hours as before the injury and, in fact, worked seventy-nine hours during a week in February 1983.

Lankford’s argument that he will have a hard time finding suitable employment should he ever resign or get fired from International’s employ is strictly speculative in nature. The evidence showed that International Paper’s mechanics presently are in great demand and will be in great demand in the future due to the use of high technology in the manufacturing industries. We also consider the argument that claimant may not get as many overtime hours in the future as being speculative. Lankford’s supervisor makes work assignments, and the trial court could have found that Lankford will be given an equal opportunity for overtime. Moreover, there was no evidence that Lankford’s work assignments would be restricted to the finishing department. We conclude that there is legal evidence in the record to support the trial court’s finding.

AFFIRMED.

WRIGHT, P.J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge,

concurring specially:

I concur that there is some evidence to support the learned trial court’s conclusion. However, I feel compelled to comment that, as pointed out by able counsel for the employee, there is evidence that would have supported a finding of loss of ability to earn. The standard of review in workmen’s compensation cases prevents this court from reaching any result other than to affirm.


text:
    (In the Matter of Victoria Nicole PETERSEN and Susan Marie Petersen). Jan PETERSEN and Carol Petersen v. BALDWIN COUNTY DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 4113.
    Court of Civil Appeals of Alabama.
    April 11, 1984.
    Rehearing Denied May 16, 1984.
    Certiorari Denied July 27, 1984 Alabama Supreme Court 83-960.
    L.D. Owen, III of Owen & Cherry, Bay Minette, for appellants.
    E.E. Ball of Owen & Ball, Bay Minette, for appellee.
   BRADLEY, Judge.

The natural parents appeal from a ruling of the Circuit Court of Baldwin County terminating their parental rights and granting permanent custody of their two minor daughters to the Baldwin County Department of Pensions and Security.

They argue that the trial court abused its discretion in terminating their parental rights and placing custody of the children with DPS. We find no error and affirm.

The relevant facts are as follows. Appellants, Jan and Carol Petersen, are the natural parents of Victoria Nicole Petersen, born August 25, 1979, and Susan Marie Petersen, born May 16, 1981. On February 7, 1982 Susan Marie, who was at that time eight months old, was admitted to a hospital in Pensacola, Florida for a large burn over her lower back and buttocks area, a skull fracture, broken ribs, internal injuries, numerous bruises and abrasions, and human bite marks on her arms and legs. There was a strong suspicion of child abuse, and on February 12, 1982 both Susan Marie and Victoria were placed in the temporary custody of the Baldwin County, Alabama, Department of Pensions and Security.

When questioned about the child’s injuries, the parents related that the child had been staying with a nineteen year old male babysitter named Vincent Hamilton for two weeks while they were in Florida. Hamilton was the son of husband’s mother’s boyfriend and had been living with the Peter-sens for six months in Lillian, Alabama. There was evidence that Carol, the mother, was admitted to a Pensacola hospital on January 15, 1982 for a drug overdose and for having been beaten by Jan, her husband, and that she was recuperating at a friend’s house in Pensacola. Jan was staying there along with the couple’s oldest daughter, Victoria. Apparently Jan made trips from Pensacola to Lillian, Alabama to visit with Hamilton and Susan Marie every day or every other day while he stayed in Pensacola during his wife’s illness and recovery. Carol visited with the child on three occasions: January 22, January 26, and February 5. She stated that when she saw Susan Marie on February 5 she did not notice the burn and had noticed the bumps and bruises on the child’s body, but that Hamilton had explained them to her satisfaction.

Hamilton testified that he was cooking dinner and the child tipped a pot of boiling water he had placed on the table onto herself. However, a doctor who examined the child testified that the burn was between twenty-four and twenty-seven hours old and that the burned area was “well circumscribed” and was consistent with an immersion-type burn, as if someone had lifted and placed the infant in a hot liquid.

Hamilton also explained the abrasions on the child’s forehead, and the bruises on the child’s chin, neck, chest, and arms, as due to being knocked over and scratched by a large dog and being crushed on a bed by her parents who were fighting. He explained the marks on the child’s arm resulted from falling on a teacup in her playpen.

The doctor who examined the child testified that the child’s broken ribs were caused by blunt force trauma and not from a fall, that the abrasions were at least twenty-four hours old, that the bruises were between five and fourteen days old and were of different colors and stages of healing. There was expert testimony that these injuries were consistent with child abuse and could not have been accidental.

There was evidence that Jan Petersen picked Hamilton and Susan Marie up on February 7 to take them back to Pensacola for Sunday dinner. Father denies having noticed the child’s injuries when he picked her up; however, there was evidence that Hamilton showed him the burn and explained to him what had happened. In any event, on the way back to Pensacola, father drove past a hospital, but did not seek medical attention for the child. When he arrived in Pensacola, he told mother about the burn and although she asked what had happened there was evidence that she did not look at the burn until a half hour later. Moreover, it was not until two hours later that she took Susan Marie to the hospital for treatment. Instead of going to the hospital with mother, father went to a wrestling match with Hamilton and a son from a previous marriage.

As indicated above, the parents’ eldest daughter, Victoria, was removed from their custody also. It was adduced at trial that she had given her foster mother a “graphic description” of having been sexually abused by Hamilton. A caseworker testified that a four year old would be completely unfamiliar with such an event unless it had actually happened to her. Hamilton was subsequently indicted by the grand jury of Baldwin County for child abuse.

Mother testified that she had no reason to suspect that Hamilton would ever harm the children.

The record shows that mother is expecting another child, that her marriage to Jan has been less than stable, that she has had severe emotional problems, and that both she and Jan have been found guilty of violating various criminal laws. In 1978 mother was convicted of obtaining drugs through a false prescription and was placed on probation for carrying a concealed weapon. In 1983 she was placed on a new probation for assault, trespass of a dwelling, and criminal mischief. Father has been charged with assault with intent to murder and given four years’ probation. Moreover, at the time Custody was taken from parents, father had been unemployed for nearly three years.

The record shows that a caseworker was working with and counselling parents following DPS’s involvement in the case, but that counselling was terminated because of the caseworker’s fear of father and the couple’s uncooperativeness. The Petersens did not follow through with parental coun-selling and training set up for them by DPS.

This court has held that where there is a dispute over custody of a child between a natural parent and one who is not a natural parent the natural parent is presumed to be the best custodian for the child. Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977); Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (Ala.Civ.App.1973). Before a trial court can remove custody from the natural parent, there must be clear and convincing evidence before the court that it would not be in the child’s best interests to remain with the natural parent. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982); Massey v. Massey, 410 So.2d 422 (Ala.Civ. App.1981). And, the termination of parental rights should occur only upon strong proof of abuse and/or continuing neglect of the welfare of the child. Gaddy v. Alabama Department of Pensions & Security, 428 So.2d 91 (Ala.Civ.App.1983); Glover v. Alabama Department of Pensions & Security, 401 So.2d 786 (Ala.Civ.App. 1981).

In the instant case the trial court determined that the children’s best interests would be served by placing their permanent custody in DPS and terminated the natural parents’ rights, Where the trial court hears the evidence ore tenus, its judgment is given every favorable presumption and will not be disturbed unless it is palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982).

The parents claim there was not clear and convincing evidence that they were responsible for their child’s injuries. We disagree.

The record shows that they left the child in the care of a nonrelated male teenager for a two-week period instead of with relatives who lived nearby, that they visited with the child frequently but never noticed any abuse, that when they finally discovered the child’s injuries they believed the babysitter’s version of how the injuries occurred, and that after noticing the child’s injuries they waited more than two hours before seeking treatment for the child. What is more, parents are still friends with Hamilton, and father was so unconcerned about his daughter’s injuries that he went to a wrestling match with Hamilton when the child was taken to the hospital. Moreover, the record shows that the Petersens have a history of violence and have had marital, emotional, and financial problems.

After reviewing the evidence before us, we find that the record is replete with evidence of parental neglect. Both children have been abused; one physically and one sexually. Although it appears that the abuse was inflicted by a third party, appellants were custodians of the children and were responsible for their children’s welfare. There is ample evidence that they grossly neglected their parental duties and were either unable to prevent the abuse or were indifferent to the infliction of that abuse. Therefore, the trial court was correct in terminating the parents’ rights to custody of their children and placing custody with DPS for permanent placement.,

AFFIRMED

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


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    W.J. THURMAN v. Owen W. THURMAN.
    Civ. 4020.
    Court of Civil Appeals of Alabama.
    April 18, 1984.
    Rehearing Denied June 6, 1984.
    Certiorari Denied July 27, 1984 Alabama Supreme Court 83-1040.

      J. Douglas Evans, Florence, for appellant.
    Lee B. Osborn, Sheffield, for appellee.
   BRADLEY, Judge.

This is an action to recover personal property.

Owen Thurman filed an action in the District Court of Colbert County against his son, W.J. Thurman, to recover certain personal property in son’s possession. Son filed an answer and counterclaim, asserting his ownership of the property, and demanded that father return certain property taken from the premises and be ordered to pay damages for loss and waste to the property.

After a hearing the district court found for son on father’s petition and for father on son’s counterclaim, thus granting relief to neither party. Son appealed the ruling against him on the counterclaim to the circuit court for a trial de novo.

On March 23, 1981 son made an oral motion to dismiss the appeal, which the court overruled. On April 1, 1981 father filed a reply to son’s counterclaim and on May 24, 1983 son refiled his motion to dismiss the appeal, which the court also denied.

On May 25, 1983 the court conducted a pretrial inspection of son’s home and the personalty sought to be recovered.

After an ore tenus hearing on June 10, 1983, the circuit court entered an order awarding certain personalty to son and certain personalty to father, and found in favor of father on son’s counterclaim.

Son filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The court denied the motion and son appeals.

A review of the evidence shows that the house in question, located at 1111 North Nashville Avenue, Sheffield, Alabama, was sold by father to son in 1964. The deed transferring title of the property to son contained no reference to the ownership of the household furnishings and appliances in the home, but son claims he bought the house and the furnishings.

There was evidence that after the sale father resided in the house occasionally, but that sometime in May 1979 son forced him out of the house. When he left, father took a few of his personal belongings with him and subsequently filed suit to recover the furnishings he left in the house.

The evidence shows that ownership of the property is in sharp dispute. Each party claims ownership of certain articles of personalty' and contends he acquired them by purchase, gift or inheritance.

The issues raised here are that the trial court erred in not dismissing the appeal, in allowing a pretrial inspection of the home, in allowing father to amend his complaint, and in permitting a witness to testify as an expert.

In support of his contention that the trial court erred in refusing to allow him to dismiss his appeal, the son relies on rule 41(a)(1) and 41(c), Alabama Rules of Civil Procedure.

Rule 41(a)(1) allows a plaintiff to dismiss his action, without an order of court, provided he has filed his notice of dismissal before service by the adverse party of an answer or motion for summary judgment. Rule 41(c) also provides that a counter-claimant may voluntarily dismiss his counterclaim in the same circumstances as provided by rule 41(a)(1) for plaintiffs.

In the instant case, however, son does not wish to dismiss his action, i.e. his counterclaim; he wants to dismiss his appeal to circuit court. Hence, we do not perceive son’s analogy of the disposition of an action or counterclaim pursuant to rule 41 to be applicable in the instant case. We are here concerned with the disposition of an appeal of a case from an inferior court to a superior court for a trial de novo.

Sections 12-12-70 and -71, Code 1975, provide that any party may appeal the final judgment of any case in the district court to the circuit court for a trial de novo.

It has been held that appeals from a justice of the peace court to the circuit court were to be tried de novo, or, in other words, as if no trial had ever been had, and just as if they had originated in the circuit court. Louisville & Nashville Railroad v. Lancaster, 121 Ala. 471, 25 So. 733 (1899). The appeal operates to annul and vacate the entire judgment of the justice of the peace, and not a part only of the judgment. Louisville & Nashville Railroad v. Lancaster, supra.

In Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928), the supreme court observed that an appellate court has the inherent authority to dismiss an appeal which had been taken for a review of the trial court’s rulings and judgment where the appealing party fails to appear and prosecute. However, where the case is appealed for a trial de novo, a different situation is presented. The court said that in an appeal for a trial de novo the plaintiff is still the actor and it is his duty to bring the case on for trial even though he is not the appealing party.

Applying these principles to the case at bar, we observe that the son’s appeal of the district court’s judgment had the effect of bringing up to the circuit court the entire judgment of the district court, not just the ruling on the counterclaim. This means that the case was to be retried completely in the circuit court. The father was required to prosecute his complaint and the son was required to prosecute his counterclaim. The case could be tried on pleadings filed in the district court or amendments could be made to those pleadings or additional pleadings could be filed in the circuit court. Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552 (1921).

The case at bar was tried in the circuit court in just this manner. The father presented his case and the son presented his case and the court thereupon rendered a judgment.

We do not find that the circuit court committed reversible error in refusing to allow son to dismiss his appeal of the district court’s judgment.

The son’s next, contention is that the circuit court erred in conducting a pretrial inspection of the property in question.

On May 25, 1983 a pretrial inspection of son’s home was conducted so that the court could determine which items of personalty were in dispute as to ownership. Both father and son were present at the viewing, along with their attorneys, the judge, and the court reporter. Father was sworn to testify by the court. During the inspection the court went through the house and questioned father about the items of personalty he claimed were his. Father testified that some of the furnishings that were in the house when he left were missing at the viewing, and there was also testimony that father had removed some items from the house.

In Alabama, in a nonjury case, a trial judge has the discretion to conduct an out-of-court view of evidence. Monroe Bond & Mortgage Co. v. State, ex rel. Hybart, 254 Ala. 278, 48 So.2d 431 (1950); Hubbard v. Williamson, 404 So.2d 690 (Ala.Civ.App.1981); see also C. Gamble, McElroy’s Alabama Evidence § 208.02 (3d ed. 1977). Moreover, the court may view the premises without the parties; however, it is desirable that the parties and their attorneys be present at the viewing. Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So.2d 770 (1952); Adalex Construction Co. v. Atkins, 214 Ala. 53, 106 So. 338 (1925). And, the presumption of correctness that attaches to a trial court’s finding upon evidence in sharp dispute is strengthened where the court visits the premises involved before making its findings of fact. Fowler v. Fayco, Inc., 290 Ala. 237, 275 So.2d 665 (1973).

In the instant case the trial court conducted the viewing in order to see the various items of personalty being claimed by the parties. Such a viewing would aid the court in making its decision as to the ownership of the property. Thus, we find no merit in son’s contention that it was error for the court to inspect the premises. Nor is there any merit in the contention that it was error for the court to elicit testimony from witnesses during the inspection, as it appears that adequate procedural safeguards were taken during the viewing, i.e. the witnesses were sworn and opportunity for cross-examination was given.

Son further contends that the trial court abused its discretion in granting, one day before trial, father’s motion to amend, which added two counts to include the value of certain personalty missing at the inspection. Son was ordered to answer the amended complaint in open court. Rule 15(a), A.R.Civ.P.

“ARCP 15 expressly provides that amendments should be freely allowed when justice so requires; and our rule regarding amendments is that Rule 15 should be liberally construed within the sound discretion of the trial judge. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar an amendment. Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974); Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).”

Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980). And, where an amendment merely adds an additional theory based upon the same set of facts in previous pleadings, no prejudice is worked upon the other party. Employers Casualty Co. v. Hagendorfer, 393 So.2d 999 (Ala.1981); Bracy, supra; rule 15(b), A.R.Civ.P. We cannot say that son suffered actual prejudice or that the trial would have been unduly delayed by allowing the amendment; therefore, the court did not abuse its discretion in allowing it.

Son’s final contention is that the trial court erred in allowing Evelyn Hall to testify as an expert in regard to used silverware.

The record shows that Evelyn Hall has been employed at a jewelry store in Florence, Alabama for fifteen years and that she sells mostly new silverware but also disposes of used silverware. At trial Ms. Hall was allowed to testify as to the value of a used set of sterling silverware as the result of a hypothetical question which had been propounded to her. Son argues this was error. We disagree.

Where the opinion of an expert is elicited, the proper test to determine his qualifications is whether his knowledge of the matter would probably aid the trier of fact in its determination of the truth, Glaze v. Tennyson, 352 So.2d 1335 (Ala.1977), or if the witness has some special experience which enables him to form a more reliable opinion than the average person. C. Gamble, McElroy’s Alabama Evidence § 127.-01(5) (3d ed. 1977). Whether a particular witness will be allowed to testify as an expert is a matter within the sound discretion of the trial court and will not be disturbed absent palpable abuse. Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982). Moreover, should an expert be without firsthand knowledge concerning data upon which his opinion is sought, the data may be supplied to him in the form of a hypothetical question. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (Ala.Civ.App.1974).

In the case before us, the trial court determined that Ms. Hall was qualified to give her opinion as to the value of used silverware. It cannot be said that the trial court abused its discretion by admitting such evidence.

Appellee’s motion to dismiss the appeal to this court because it was frivolous is denied.

AFFIRMED.

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

On Rehearing

BRADLEY, Judge.

In brief in support of his application for rehearing, appellant urges the reconsideration of that part of our decision finding there was no error for the trial court to inspect the premises or to elicit testimony from witnesses during the inspection.

Appellant argues that this court erred in allowing the inspection for two reasons: (1) that the viewing should have been conducted during the trial of the case and not as part of the pretrial procedure, and (2) that no testimony should have been taken at the viewing. He relies on the following quote from C. Gamble, McElroy’s Alabama Evidence § 208.01 (3d ed. 1977), which states:

“A view is limited to a mere inspection of the place or thing stipulated and no testimony may be taken at an out of court view.” (Footnote omitted; emphasis added.)

However, the protection afforded by this section applies primarily to jury views and, in particular, to criminal cases. § 208.01; Kilgore v. State, 19 Ala.App. 181, 95 So. 906 (1923).

In the instant case the proceedings were held before a trial judge and not a jury. Although inspection of the property was an outgrowth of a pretrial hearing and was not part of the actual trial, both parties had notice of the inspection and, in fact, were present at the inspection along with their attorneys. And, although father did testify as to his ownership of the items, he was sworn to testify by the trial court, opportunity for cross-examination was given, and a court reporter was present to transcribe the testimony. As there were proper safeguards taken to assure that a fair trial would be had, we see no prejudice to either party in respect to the actions taken at the inspection, notwithstanding that the viewing was had before the trial proper. See, Meyer v. Short, 104 N.H. 328, 186 A.2d 146 (1962); Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441 (1938).

In at least one state a witness can point out and explain the property to be viewed and can even be questioned about the property. Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112 (1949). The Alabama Rules of Civil Procedure permit inspection of property as part of the discovery process. Rule 34(a). Consequently, we do not find that the appellant’s rights have been so prejudiced by the inspection of the premises in question and the interrogation of his father during that inspection relative to the ownership of certain items-of personal property as to require a reversal of this case. All of the safeguards necessary for a fair trial were adhered to at the inspection and we, therefore, can find no prejudice resulting from it.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


author: WRIGHT, Presiding Judge.

text:
    Florine SMITH v. ALABAMA STATE TENURE COMMISSION.
    Civ. 4084.
    Court of Civil Appeals of Alabama.
    April 18, 1984.
    Rehearing Denied May 16, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-962.
    J. Victor Price, Jr., Montgomery, for appellant.
    Milton C. Davis, Sp. Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

On May 26, 1981, the Macon County Board of Education, by letter, notified Florine Smith of its intention to abolish the position of attendance supervisor that she currently held and to transfer her to an undesignated teaching position in “the Vocational Educational Program.” Mrs. Smith then gave notice of her intent to contest the proposed transfer and demanded a hearing thereon.

The board sent Mrs. Smith another letter informing her of the reasons for the proposed transfer and the time and place of the scheduled hearing, though not specifying where she would be transferred. The reasons given for the abolition of the attendance supervisor’s position were severe reductions in funding due to federal cutbacks, state funding proration, lack of an educational budget and the need for experienced staff to be utilized in areas of need. The letter further provided as a statement of fact, but not as a part of the reasons for the intended transfer, that Mrs. Smith was not certified to occupy the position of attendance supervisor.

A hearing was held and the board determined that Mrs. Smith should be transferred, but did not specify the location of her new assignment. Mrs. Smith appealed to the Alabama State Tenure Commission, which determined that it lacked jurisdiction in the matter.

The circuit court subsequently denied Mrs. Smith’s petition for writ of mandamus. This court reversed, holding that the tenure commission did have jurisdiction. The Alabama Supreme Court then granted certiorari and affirmed this court’s decision. The tenure commission heard the case and ruled that Mrs. Smith’s transfer was in compliance with the teacher tenure law and was not for political or personal reasons. Mrs. Smith’s petition for writ of mandamus was denied by the circuit court. She appeals.

Mrs. Smith raises two issues: (1) whether the continuing service status (tenure) of a teacher is presumed when a local board of education grants a hearing under the state tenure laws and (2) whether a board of education must inform a teacher it proposes to transfer of the location of the new assignment.

In brief Mrs. Smith contends the board should be estopped from claiming that she is not tenured as a supervisor. She argues that she was granted a hearing by the board because it accepted that she was tenured as a supervisor, and no evidence was presented to the contrary. Though her argument seems to emphasize a presumption of tenure due to the granting her a hearing, her underlying concern is that if she is deemed nontenured as a supervisor, she will suffer no loss of status from a transfer to a teaching position.

The board submits that the granting of a hearing did not confer Mrs. Smith with tenure as a supervisor or vest her with any presumptions under law. She was granted a hearing because she does have tenure as a teacher. A teacher with continuing service status is entitled to a hearing upon notice of intent to transfer. § 16-24-6, Code of Alabama 1975; Smith v. Alabama State Tenure Commission, 430 So.2d 877 (Ala.Civ.App.1982), aff'd, 430 So.2d 880 (Ala.1983).

Tenure in any position may only be conferred by compliance with the applicable statutes. Mrs. Smith must have been employed as a “supervisor,” as provided by statute, § 16-24-2(b), Code 1975, in order to obtain tenure in that position. The evidence at the board hearing showed that Mrs. Smith had not served at least three years as a supervisor. Therefore, as she was not tenured as a supervisor, Mrs. Smith did not sustain a loss of status when reassigned to a teaching position in her area of certification as a vocational teacher.

We find the language of the court in Clark v. Beverly, 257 Ala. 484, 490, 59 So.2d 810, 816 (1952), applicable in the present case:

“We think that the language of the section plainly makes all ‘teachers,’ ... subject to the direction of the board of education, following the recommendation of the county superintendent, as to the position in which they shall serve during any succeeding year. The words ‘without loss of status’ ... cannot reasonably be said to limit the right to transfer only to a similar rank or position.... [A] transfer from one position to another position or from one school to another school or from one grade to another grade can be made without in any wise jeopardizing a teacher’s continuing service status.”

Transfer does not require that cause be shown but rather is limited only in that a tenured teacher may not be transferred for personal or political reasons, and the transfer may not involve a loss of status. DeCarlo v. Tarrant City Board of Education, 52 Ala.App. 220, 291 So.2d 155 (1974). In this case the testimony does not indicate personal or political bias by the board nor an arbitrarily made decision with loss of status.

The second contention Mrs. Smith raises is that a school board must inform a tenured teacher of the location of her reassignment. Notification of the location of a new work assignment is not required by § 16-24-5, Code of Alabama 1975, which deals with the statutory requirements for transferring a tenured teacher. That section requires' only that the school board give written notice of intent to transfer. Though the desire of a teacher to know where she will be transferred is understandable, the giving of that information is not required by the statute. In this case, there is evidence that it was well known there could be only one school to which Mrs. Smith could be placed in her teaching certification. We affirm the judgment of the Alabama State Teacher Tenure Commission.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Alice M. LIGHTSEY, S.J. Lightsey, and John Lightsey v. ORGILL BROTHERS AND COMPANY, INC.
    Civ. 3961-X.
    Court of Civil Appeals of Alabama.
    April 25, 1984.
    Rehearing Denied May 30, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1009.

      Clarence T. Heliums, Jr., Centreville, for appellants.
    Douglas J. Centeno of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for appellee.
   ON REHEARING

BRADLEY, Judge.

On rehearing the opinion of this court rendered on February 22, 1984 is withdrawn and the following substituted therefor.

Joe Lightsey and his wife, Alice M. Lightsey, established Centreville Building Supply Company in 1970. The business was incorporated with Joe and Alice owning all but two percent of the stock, which was owned by their sons, John and Brent Lightsey. On or about October 4, 1974, Alice, John and Joe (appellants) executed a document, a portion of which personally guarantied the accounts of Centreville Building Supply Company, Inc.

The Lightseys continued to do business as Centreville Building Supply Company, Inc., until August 10, 1977, at which time they sold that business to Charles D. Lee, his wife, Sandra Lee, and W.E. Belcher, Jr.

Teague Hardware Company, Inc. and Stratton-Warren Hardware, Inc. were notified of the sale and the names and addresses of the new stockholders of the corporation. When Centreville Building Supply was sold, Mrs. Lightsey testified that she contacted all creditors to notify them they would no longer be owners in the corporation and to determine if any personal guaranty was outstanding. She was advised by Stratton-Warren Hardware Company, Inc. that it would be necessary for her to write a letter telling of the change in ownership. Mrs. Lightsey wrote the letter and Strat-ton-Warren then went to Charles D. Lee, the new owner, and had him execute a personal guaranty for the debts of Centre-ville Building Supply Company, Inc.

Orgill Brothers and Company, Inc. purchased Teague Hardware Company on March 31, 1978. Some twenty-one months later, Orgill Brothers purchased Stratton-Warren Hardware Company. Therefore, on May 11, 1982, the time of commencement of this action, Orgill Brothers owned the assets and liabilities of both Teague Hardware and Stratton-Warren Hardware.

After two amendments to the original complaint, Orgill Brothers and Company, Inc. was substituted as the plaintiff and sought (1) $8,545.12 plus interest and costs of defendant, Centreville Building Supply Company, Inc. on open account, which was count one of the original complaint and was dismissed immediately prior to the trial for insufficiency of service of process; (2) $8,545.12 plus interest and costs of defendants, Alice Lightsey, John Lightsey, and Joe Lightsey, based on a personal guaranty of debt of the Centreville Building Supply Company open account owed to Teague Hardware Company (hereinafter referred to as count two); and (3) $4,473.37 plus interest and costs of defendants, the Light-seys, based upon a personal guaranty of the S.J. Lightsey and Son Construction Company, Inc. debt to Stratton-Warren (plaintiffs exhibit E) (count three). This debt was reduced to a consent judgment to Orgill Brothers and Company, the successor in interest to Stratton-Warren, against S.J. Lightsey and Sons Construction Company, Inc., in the amount of $4,473.37 in the District Court of Bibb County.

The jury returned a verdict for the Light-seys on count two of the complaint and against the Lightseys on count three. After the Lightseys’ posttrial motions were overruled, they appealed as to count three.

Orgill Brothers has also appealed from the rulings on their posttrial motions as to count two of the complaint.

The first issue raised by the Lightseys in their appeal is whether Orgill Brothers was the proper party to sue on the personal guaranty signed by the Lightseys to Strat-ton-Warren.

The Lightseys argue that prior to trial the action was amended to change the parties and this violated rules 17, 18, and 20 of the Alabama Rules of Civil Procedure. The Alabama Rules of Civil Procedure, however, provide in rule 17, “Every action shall be prosecuted in the name of the real party in interest.” In a recent Alabama case the court held:

“The effect of Rule 17(a) is that the action must be brought by the person who is entitled to enforce the right claimed therein. Who has such right is a matter of substantive law of the particular jurisdiction. The purpose of the rule is to protect the defendant from subsequent action by the party actually entitled to recover and to ensure that a judgment will have res judicata effect.” (Citation omitted.)

U-Haul Co. v. Turner, 355 So.2d 384 (Ala.Civ.App.1978). Orgill Brothers contends it was the real party in interest and that the trial court properly allowed the change in parties. We agree.

Moreover, the Lightseys’ argument that the guaranties to Stratton-War-ren were not assigned to Orgill Brothers because they were not endorsed appears to be meritless. The Lightseys argue that at common law a guaranty, like other choses in action, was not assignable and since the guaranty was made to Stratton-Warren, it could not be assigned to Orgill Brothers. The common-law rule that guaranties are not assignable has been modified by statutes and decisions to permit an action to be maintained by the assignee of a chose in action or by the real party in interest, which is Orgill Brothers in the present case. 38 C.J.S. Guaranty § 86 (1943). Additionally, in Henley v. Bush, 33 Ala. 636 (1859), the court held the predecessor statute of section 8-5-20, Code 1975, dealing with assignments and endorsements of contracts for the payment of money, changes the common law to authorize the action to be brought in the name of the real party in interest in suits on contracts for the payment of money, whether they are assigned, endorsed, in writing, or simply transferred by delivery. It appears in the present case that Orgill Brothers received all the assets and liabilities upon the acquisition of Strat-ton-Warren and, hence, is the real party in interest. Therefore, based on Henley, supra, we conclude that an endorsement was not required for the assignment of the guaranty.

The next issue argued by the Lightseys is that the judgment entered on count three did not conform to the jury verdict and the evidence concerning interest. The Light-seys contend that it was not possible to hold them liable for interest accruing on the debt of S.J. Lightsey and Son Construction Company, Inc. since the guaranty agreement they signed contained no agreement to pay interest on the debt it secured. We disagree.

The agreement that the Lightseys signed stated in pertinent part as follows: “I agree to pay any and all legal service charges added each month on past due invoices.” The Lightseys claim that “legal service charges” are not the equivalent of interest. Interest, however, has been defined as “a sum paid or charged for the use of money.” Random House Dictionary of the English Language p. 741 (1971). Moreover, Corpus Juris Secundum states that “as a general rule a guarantor is liable for interest accruing on the principal debt or obligation whose payment is guaranteed, particularly if the contract of guaranty so provides.” 38 C.J.S. Guaranty § 57 (1943) (footnotes omitted). We deem the term “legal service charges” as used in the contract in the case at bar to include interest. Hence, interest was due on the guaranty signed by the Lightseys. Additionally, the jury was charged that the interest rate would be one percent per month on a verdict rendered for plaintiff and there was no objection to this charge.

Also, the Lightseys, in their brief, seem to imply that someone other than the jury included the phrase “with interest” in parentheses after the judgment. This implication, however, is not supported by any evidence in the record. We find no error here.

The last issue for our consideration is Orgill Brothers’ contention on cross-appeal that the trial court erred in overruling its motion for judgment n.o.v. because the jury verdict on count two was contrary to the undisputed evidence in certain respects and contrary to the great weight of evidence and legally insufficient in other respects.

The Lightseys argued at trial that their guaranty was withdrawn prior to the time the debt was incurred by the principal obli-gor (Centreville Building Supply Co., Inc.) as evidenced by defendant’s exhibit 3.

It is settled law that “[a] promise of guaranty ... is revocable like other offers.” 1 A. Corbin, Corbin on Contracts § 38 (1963). “The method of exercising this power [of revocation] varies; usually it is by giving notice to the offeree.” 1 A.Corbin, Corbin on Contracts § 38 (1963).

It is settled law in Alabama that “[cjontracting parties are free to modify their contract by mutual assent.” Kinmon v. J.P. King Auction Co., 290 Ala. 323, 276 So.2d 569 (1973). And, since mutual assent is a factual issue, it must be determined by the jury. Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965).

The guaranty made by the Lightseys provided that “we hereby personally guarantee the payment of all their [Centreville Building Supply Company, Inc.] obligations to you until withdrawn by us by certified mail.”

The evidence in the case at bar shows that when Alice and Joe Lightsey sold their interest in Centreville Building Supply they contacted all creditors to notify them of the fact that they were no longer owners and to determine any personal guaranty outstanding. Mrs. Lightsey was told by Strat-ton-Warren that it would be necessary to advise it of the sale in writing. She wrote a letter to Stratton-Warren informing it of the sale. Shortly thereafter Stratton-War-ren required the new owner, Charles D. Lee, to execute a personal guaranty of the debts of Centreville Building Supply.

Although the written notice to Stratton-Warren did not specifically revoke the Lightseys’ guaranty, the fact that Alice and Joe Lightsey informed Stratton-War-ren of the sale of their interest in Centre-ville Building Supply and asked about any outstanding personal guaranty of the debts of the company could be considered by the jury as an offer by the Lightseys to revoke their guaranty. And, when Stratton-War-ren told the Lightseys to write a letter advising of the sale of their interest in Centreville Building Supply, the jury could also conclude that Stratton-Warren had agreed to modify the guaranty by accepting written notice of the sale of the Light-seys’ interest in that company as a revocation of the Lightseys’ guaranty.

The evidence supports the jury’s verdict in favor of Joe and Alice Lightsey on count two of the complaint, and we affirm the verdict and judgment as to those parties.

There also is evidence in the record to support the jury’s verdict in favor of John Lightsey on count two of the complaint. The record reveals that John Lightsey sold his interest in Centreville Building Supply at the time Joe and Alice Lightsey sold their interest. There is in evidence a letter from Charles D. Lee to Stratton-Warren stating that he had purchased all outstanding stock in Centreville Building Supply and had accepted all liabilities of the corporation. Shortly thereafter, the Centreville Building Supply account was paid in full.

Although John Lightsey’s name did not appear on the letter written by Alice and Joe Lightsey to Stratton-Warren informing it of the sale of their interest in Centreville Building Supply, the jury could have readily concluded from the testimony in the record that Alice and Joe Lightsey were also speaking for John Lightsey when they wrote the letter to Stratton-Warren revoking their personal guaranty.

The parties modified the manner in which revocation would take place and the jury properly determined that by “mutual assent,” all the Lightseys revoked the entire personal guaranty. This was based on Mrs. Lightsey’s compliance with the requirements enunciated by Stratton-Warren.

Based on the above, we conclude also that the evidence supports the jury’s verdict in favor of John Lightsey on count two of the complaint.

The verdict and judgment on count three of the complaint is affirmed. The judgment of the trial court overruling the motion for a judgment n.o.v. as to count two of the complaint is affirmed as to all three Lightseys.

APPLICATION FOR REHEARING GRANTED.

AFFIRMED.

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


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    Tobye M. JONES v. Keith S. JONES.
    Civ. 4099.
    Court of Civil Appeals of Alabama.
    April 25, 1984.
    Rehearing Denied May 30, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1010.

      Harold H. Goings of Corley, Moncus, By-num & De Buys, Birmingham, for appellant.
    R. Wayne Wolfe, Huntsville, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal from a divorce decree.

Tobye M. Jones and Keith S. Jones were married on June 1, 1975 and divorced on October 21, 1983. The divorce decree provided that, in addition to paying $250 per month in child support, Mr. Jones should pay various debts owed by his former wife, Mrs. Jones, repay Mrs. Jones’ mother, Gladys Moncus, for various debts owed to her, and maintain medical insurance on the couple’s minor child, Hunter McCain Jones. Mrs. Jones was given custody of the child, title to the couple’s home and automobile, and extensive personal property, including furnishings and appliances. Mrs. Jones appeals, asserting that the trial court erred in: (1) failing to order Mr. Jones to repay her for money spent for his support and educational expenses while he was in undergraduate and law school, (2) failing to consider Mr. Jones’ law degree and admittance to the bar as an asset of the marriage when dividing marital property and/or determining an amount of alimony, (3) failing to provide adequate child support for the couple’s minor son and (4) failing to award Mrs. Jones reasonable attorney fees.

The following facts were presented to the trial court: Between 1975 and 1980, while her husband pursued his undergraduate and law degrees, Tobye Jones was employed as a social worker with the Huntsville city schools. Her income during that period was almost the exclusive source of earned income for the couple. However, her income was heavily subsidized by her mother, Mrs. Moncus, through gifts and various joint savings and trust accounts.

During the three years he was attending law school in Birmingham (Mrs. Jones remained in Huntsville), Mr. Jones roomed and boarded with Mrs. Moncus and attempted to keep his expenses at a minimum. During this same period, Mrs. Jones’ lifestyle remained unchanged by the couple’s financial straits. With her mother’s help, she lived essentially as she had previously. The record shows that rather than relying upon his wife’s income to pay school expenses, Jones borrowed $15,000 to finance his law school tuition and books and that he sent as much as $2,000 per year of this money to Mrs. Jones for placement in their joint account in Huntsville.

While in law school, Jones traveled to Huntsville on weekends to be with his wife. Nevertheless, the couple drifted apart. The breakdown of their marriage continued after Jones left school and began his practice in Huntsville. He began seeing at least one other woman. The wife alleges that this was the sole factor leading to their divorce. Jones asserts other factors, including his wife’s spendthrift ways and lack of affection.

The divorce decree required Jones to pay $250 monthly as child support. He had previously signed a promissory note obligating himself to repay Mrs. Moncus approximately $15,000 at a rate of $400 per month for money she advanced to Mrs. Jones while he was in school. He also executed a second promissory note agreeing to repay Mrs. Moncus $4,125 for the room and board he received while living with her. He is also currently paying $124 per month on his student loan and $200 per month in support of two children by a previous marriage.

In regard to Mrs. Jones’ first, third and fourth alleged errors, we have frequently held that the awarding of attorney’s fees, Gilliland v. Gilliland, 422 So.2d 299 (Ala.Civ.App.1982), child support, Wilbanks v. Wilbanks, 424 So.2d 641 (Ala.Civ.App.1982), alimony, Ashbee v. Ashbee, 431 So.2d 1312 (Ala.Civ.App.1983), and division of property, Eastman v. Eastman, 429 So.2d 1058 (Ala.Civ.App.1983), are all within the sound discretion of the trial court. The exercise of that discretion is presumed correct and will be disturbed on appeal only if unsupported by legal evidence or if palpably wrong. Smith v. Smith, 429 So.2d 1080 (Ala.Civ.App.1983). Though substantially more evidence was presented at trial concerning various transactions entered into by and between the couple, a reiteration of those facts here would serve no useful purpose. It is sufficient to say that our review of the record reveals no palpable error nor abuse of discretion in the adjudication of attorney’s fees, child support, alimony, or division of property. Therefore, giving proper deference to the ore tenus presumption of correctness, we affirm the court’s determination in these matters.

The direct contention that the husband’s law degree and bar membership constitute divisible assets of the marriage has not previously been presented to this court.

The trial court’s division of property and determination of alimony in divorce cases heard ore tenus is presumed correct. Butts v. Butts, 418 So.2d 161 (Ala.Civ.App.1982). We have said that in exercising its discretion in those matters, the trial court may consider any number of factors including: the earning ability of the parties, their future prospects, their age, health, the duration of their marriage, their standard of living, the value and type of property owned by them, and the conduct of the parties. Butts, supra at 163. Other factors to be considered are each spouse’s training, education, experience, job and professional history, earning record and any other matter which would be material to the issues and of assistance to the court in reaching a just and fair decision. Elliott v. Elliott, 410 So.2d 74 (Ala.Civ.App.1982). We recognize that decisions in some other jurisdictions have held a professional degree acquired by one spouse during the marriage to be tantamount to a marital asset, Inman v. Inman, 578 S.W.2d 266 (Ky.1979). We also recognize contrary authority in other jurisdictions. In re Marriage of McManama, 179 Ind.App. 513, 386 N.E.2d 953 (1979), superseded on other grounds, 272 Ind. 483, 399 N.E.2d 371 (1980). See generally, Annot. 4 A.L.R. 4th 1294 (1981). We are not prepared to hold such degrees to be marital property in this state. The possession of a law degree and the pursuit of the practice of law may be an asset of the marriage to the extent that it produces income from which alimony and/or child support may be paid. It may have made possible the securing of divisible property, both real and personal, during the marriage which may be divided or dispersed in a divorce decree. However, we are not prepared to hold as a matter of law that a law degree earned by one after marriage, with the encouragement (even sacrifice), and financial assistance of the marriage partner, must be assessed a value and a portion of such value ordered paid to the assisting partner at the time of divorce.

We need not consider so holding in this case because there was no evidence relating to the value of the husband’s law degree, either past, present or future. There was only evidence relating to the cost of pursuing and securing it. That evidence tended to disclose that a substantial part of such cost was derived from loans from banks and Mrs. Moncus to the husband and for which he continues liable. There was some evidence that the wife maintained the family home and furnished substantial necessary logistical support for the marriage. For that she is to be commended. There is indication that insofar as there were marital assets, the court attempted to appropriately reward her. She received substantially all of those tangible assets. In view of the total evidence, including the individual income and assets of the wife and the income and obligations of the husband, we find no abuse of the discretion of the court below in the divorce decree.

Appellant’s request for attorney’s fees on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.