text:
    Helen DAVIS, d/b/a Damar’s Tea House v. Kenneth EVERETT, et al.
    82-494.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      Samuel A. Cherry, Jr. of Cherry & Givens, Dothan, for appellant.
    D. Taylor Flowers of Buntin & Cobb, Dothan, for appellees.
   BEATTY, Justice.

Plaintiff, Helen Davis, appealed from a judgment denying attorney’s fees under 42 U.S.C. § 1988 (Supp. IV 1980). • We reverse and remand. .

The issues before this Court on appeal are:

(1) Whether plaintiff was a “prevailing party” under 42 U.S.C. § 1988;

(2) Whether special circumstances existed which precluded an award of attorney’s fees under 42 U.S.C. § 1988; and

(3) Whether the trial court erred in applying Ott v. Everett, 420 So.2d 258 (Ala.1982).

Plaintiff-appellant, Helen Davis, is the owner of Damar’s Tea House, a restaurant in Dothan, Alabama. She applied to the board of city commissioners (commissioners) for an on-premises beer and wine license. Municipal Ordinance No. 5942 requires that an applicant’s premises be at least 600 feet from a church, playground, school, or public park before an alcoholic beverage license will be issued. The Commissioners found that Mrs. Davis’s premises were less than 600 feet from a church and denied her application for a license.

Mrs. Davis filed suit against the mayor and commissioners, alleging, among other things, that the City violated her rights to equal protection and due process under the Alabama and United States constitutions by using the “public access” method in a discriminatory fashion to measure for compliance with the ordinance. Mrs. Davis contended that the city used the public access method to selectively enforce the ordinance because the commissioners had issued licenses to businesses which were less than 600 feet from the prohibited zone if measured by a straight line, but greater than 600 feet under the public access method. She claimed that the commissioners acted under color of state and local law to arbitrarily deny her a license, and therefore, she says, they violated 42 U.S.C. § 1983 (1976), the Civil Rights Act. Accordingly, she requested attorney’s fees under 42 U.S.C. § 1988, which provides for attorney’s fees in a civil rights action. Mrs. Davis asked the court to grant the following additional relief:

(1) Money damages as compensation for injury to her business and reputation;

(2) A writ of mandamus ordering the mayor and board of commissioners to grant the license;

(8) A judgment declaring the “public access” measurement unconstitutional, thus making the ordinance invalid; and

(4) A judgment declaring the “grandfather clause” in the ordinance unconstitutional, thus making the ordinance invalid.

After the trial, the court found that the city had denied Mrs. Davis’s equal protection rights, not by selectively enforcing the ordinance, but rather by its failure to comply with the clear language of the ordinance. The use of the “public access” method defeated the purpose of the ordinance, which states: “No privilege license shall be issued ... where the place or establishment for which such license applied for is less than six hundred (600) feet from any church building or church grounds.” The court based its decision solely on the Alabama Constitution. The court granted mandamus and ordered the mayor and commissioners to issue the license to Mrs. Davis; it denied the complaint for damages and the bill for declaratory relief.

Later, Mrs. Davis filed a motion for reconsideration on the issue of attorney’s fees. In ruling on the motion, the trial court made the following findings:

“(1) That Plaintiff’s complaint herein sought relief under both state and federal grounds.
“(2) That this Court’s judgment granting mandamus entered in favor of the Plaintiff on August 20, 1982, explicitly and affirmatively relied on the Alabama Constitution of 1901 but neither affirmatively granted nor denied relief under the U.S. Constitution pursuant to 42 U.S.C. Sec. 1983, which is known as the Civil Rights Act.
“(3) That, however, even though this Court’s decision was based upon a state cause of action rather than a federal one, the same decision could have possibly been reached under the federal cause of action.”

The court noted that the issue had not been decided in Alabama but acknowledged that:

“where a Court enters judgment in favor of a plaintiff on a state law claim but ■ does not enter judgment for the plaintiff on a federal Constitution violation claim, attorney’s fees may be nevertheless awarded to the prevailing plaintiff under the Civil Rights Act as long as both claims arise out of a common nucleus of operative fact. Burchett v. Bower, D.C. Ariz.1979, 470 F.Supp. 1170; Milwe v. Cavuoto, C.A.Conn.1981, 653 F.2d 80.”

However, the trial court denied Mrs. Davis’s application for attorney’s fees, based on Ott v. Everett, 420 So.2d 258 (Ala.1982). Citing Ott, the court said that:

“neither a municipality, its mayor, nor the members of the board of commissioners are liable in damages on account of the exercise of their quasi-judicial powers regarding approval or disapproval of an •application for a retail liquor license, or the issuance or refusal to issue that license, and are exempt from liability for error or mistake of judgment in the exercise of the duty in that regard absent fraudulent, malicious, or corrupt intent.”

The court stated that its ruling for plaintiff was not based upon any finding of “fraudulent, malicious, or corrupt intent” on the part of defendants; therefore, the court said the commissioners could not be liable for attorney’s fees under § 1988 because they were entitled to immunity for damages under Ott.

I

The first issue before the Court is whether plaintiff is a “prevailing party” under § 1988. Mrs. Davis contends that, because the trial court failed to specifically deny her right to recover on the § 1983 claim, she is a prevailing party. In contrast, the commissioners allege that because the trial court granted relief to plaintiff solely on state law grounds she is not a prevailing party. They argue that no affirmative denial of the § 1983 claim is necessary.

In Still v. Personnel Board of Jefferson County, 406 So.2d 860, 861-62 (Ala.1981), this Court considered “whether a party that asserts both a federal and a state cause of action and does not prevail on the federal cause but does on the state cause, is entitled to an award of attorney’s fees under the federal statute.” We found that such a party was not entitled to attorney’s fees under those circumstances. However, that holding in Still is distinguishable from the case at bar because in Still the trial court specifically denied the justiciability of the federal claims. Justice Jones commented upon this aspect: “Our holding is not premised on the mere affirmative grant of Plaintiff’s state grounds relief; rather, it is premised on the trial court’s affirmative denial of federal grounds relief.” Still, supra, at 862 (Jones, J., concurring specially).

The United States Supreme Court has held that success on the § 1983 claim is not necessary for a plaintiff to be a prevailing party under § 1988. Instead, the Court has stated:

“[I]f the claim for which fees may be awarded meets the ‘substantiality’ test ... attorney’s fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a ‘common nucleus of operative fact.’ ” Maher v. Gagne, 448 U.S. 122, 132, 100 S.Ct. 2570, 2576, 65 L.Ed.2d 653, 663 (1980), n. 15, quoting H.R.Rep. No. 1558, 94th Cong., 2nd Sess. 4 n. 7 (1976).

This test for whether a pendent claim is attached to a “substantial” claim corresponds to the test for whether a federal court has jurisdiction over the pendent claim. In other words, attorney’s fees are available in cases “in which plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim.” Maher, supra, 448 U.S. at 132, 100 S.Ct. at 2576, 65 L.Ed.2d at 663.

In the case at bar, plaintiff succeeded on her state constitutional claim, but the trial court neither specifically granted nor denied relief under her federal constitutional or § 1983 claims. The court recognized that the federal and state claims were closely related, because it stated that, “though this Court’s decision was based upon a state cause of action rather than a federal one, the same decision could have possibly been reached under the federal cause of action.”

This Court holds that Mrs. Davis’s state constitutional claim arose from a common nucleus of operative facts with her federal constitutional claim, and, consequently, her § 1983 claim. All of her claims arose from the same underlying facts, i.e., the commissioners’ denial of plaintiff’s application for the license.

It is not necessary here to equate equal protection under the Constitution of 1901, Art. I, §§ 1, 6, and 22, with equal protection under the United States Constitution for all purposes; however, the Alabama Constitution necessarily embraces at least the minimal requirements of the United States Constitution. Defendants violated plaintiff’s equal protection rights under the Alabama Constitution. It may also follow that plaintiff’s federal constitutional rights were violated; she alleged a substantial federal claim, which was not dismissed, and ultimately prevailed on her state constitutional claim. The Gibbs test was satisfied because both claims arose from a common nucleus of operative facts. Accordingly, Mrs. Davis was a prevailing party under § 1988.

. Additionally, Mrs. Davis satisfied the test of a prevailing party adopted by the United States Court of Appeals for the Fifth Circuit in Iranian Students Association v. Edwards, 604 F.2d 352, 353 (5th Cir.1979): “The proper focus is whether the plaintiff has been successful on the central issue [citation omitted] exhibited by the fact that he has acquired the primary relief sought.” The primary relief sought by Mrs. Davis was the issuance of a writ of mandamus to the commissioners requiring them to grant her the license. She achieved this relief and therefore satisfied the above test, which is also used by other jurisdictions. See e.g., Harrington v. De-Vito, 656 F.2d 264 (7th Cir.1981); Sweitolich v. County of Bucks, 620 F.2d 33 (3d Cir. 1980).

II

The next issue before this Court is whether special circumstances exist which made an award of attorney’s fees unjust. The plain language of § 1988 allows a court, in its discretion, to award attorney’s fees to a prevailing party in any proceedings to enforce § 1983 (among other statutes). Section 1983 creates a cause of action against any person who, under color of state law, deprives any United States citizen of any rights, privileges, or immunities secured by the Constitution and laws.

The trial court’s discretion under § 1988 is limited, however: “[The prevailing party] should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Sen. Rep. No. 1011, 94th Cong., 2d Sess. 1, reprinted in [1976] U.S.Code Cong. & Adm. News 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1266 (1968)).

Defendants contend that the following are special circumstances which required the trial court to deny attorney’s fees:

(1) Mrs. Davis’s personal financial interest in the litigation;

(2) Mrs. Davis suffers no disability that would make her especially favored by Congress;

(3) The commissioners’ only interest in the subject matter of the case was the public interest; and

(4) The commissioners’ acts were not inherently unconstitutional.

In support of their position, defendants cite Green v. Carbaugh, 460 F.Supp. 1193 (E.D.Va.), final order entered, 465 F.Supp. 372 (E.D.Va.1978).

In Green, a state administrative officer found that the management of the Jimmy Green Warehouse, a tobacco warehouse, had participated in illegal activities which had resulted in losses to persons dealing with the warehouse. Defendant asked the management to straighten out those problems and directed that the license for the warehouse be withheld until after the first two weeks of the selling season.

The district court found that defendant’s ruling violated plaintiffs’ due process rights, but refused to grant attorney’s fees based on the following special circumstances:

(1) Plaintiffs made no claim nor presented evidence that they suffered any disability that would make them favored by Congress;

(2) Plaintiffs’ interest in the litigation was primarily financial; and

(3) Defendant’s decision was made in the public interest.

The Green court found that § 1988 was enacted “to encourage plaintiffs to file suits to vindicate the public interest in such things as racial equality and other such matters in which the primary beneficiary is the public in general.” 460 F.Supp. at 1193. The Court said: “We have a ease, that apparently meets all of the language set forth in 42 U.S.C. § 1988 but which seems to meet none of its spirit.” Id. at 1194. The Court expressed concern that an award of attorney’s fees in such a case would make the administrative decisions of state governments so expensive that the hard decisions would almost always go in favor of the applicant. Id. at 1195.

The special circumstances relied upon by the Green court, and urged by the defendants in the present case, have all been rejected by the Fifth Circuit Court of Appeals. The Eleventh Circuit, which includes Alabama, has adopted as binding precedent the case law of the former Fifth Circuit handed down as of September 30, 1981, unless and until such precedent is overruled or modified by the Eleventh Circuit Court of Appeals en banc. Decisions of the en bane court of the former Fifth Circuit handed down after September 30, 1981, are also binding. United States v. Cross, 708 F.2d 631 (11th Cir.1983). Therefore, we find the Fifth Circuit’s decisions persuasive on the issue of special circumstances.

In Aware Woman Clinic, Inc. v. City of Cocoa Beach, Florida, 629 F.2d 1146 (5th Cir.1980), the Fifth Circuit reversed the district court’s finding of special circumstances. The district court had found an ordinance regulating abortions to be unconstitutional and permanently enjoined its enforcement, but denied attorney’s fees based on the following special circumstances:

(1) The ordinance did not discriminate on the basis of sex or any other suspect factor;

(2) There was no discrimination against one of the homogeneous groups that Congress was attempting to protect in enacting § 1988; and

(3) The financial impact of an award of attorney’s fees would fall on the individual taxpayers who had not participated in any discriminatory act.

Relying on Supreme Court decisions, the Fifth Circuit found that § 1988 applies to all types of § 1983 actions, not only those alleging invidious discrimination based on suspect classifications. 629 F.2d at 1148 (citing Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); and Maher v. Gagne, supra).

The Fifth Circuit also rejected the argument concerning the financial impact on innocent taxpayers based on the Supreme Court’s ruling in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (ruling that the Eleventh Amendment did not bar recovery of attorney’s fees from state officers acting in their official capacities).

In support of her position that there were no special circumstances, Mrs. Davis relies primarily on International Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502 (5th Cir.1980). In that case, plaintiffs alleged that the city council voted to rezone a tract of land after they purchased it and that the motive for rezoning was plaintiffs’ affiliation with the Unification Church. They sued for declaratory and injunctive relief against the police chief, the city attorney, and the members of the city council under 42 U.S.C. § 1983. The district court found that the zoning ordinance operated as an unconstitutional abridgment of plaintiffs’ First and Fourteenth Amendment rights. Plaintiffs then moved for attorney’s fees pursuant to 42 U.S.C. § 1988. The district court denied the award of attorney’s fees, based on special circumstances, although it found that appellants were “prevailing parties” within the meaning of the statute. Plaintiffs appealed the denial of attorney’s fees.

The Fifth Circuit reversed the trial court’s decision, finding that none of the following were special circumstances:

(1) The financial interest of the plaintiffs;

(2) Their ability to pay attorney’s fees;

(3) The fact that defendants were “mere functionaries” carrying out the will of the city council; and

(4) The good faith of defendants in carrying out their official duties.

In light of the above two decisions by the Fifth Circuit, it is clear that all of the special circumstances argued by the commissioners have been rejected by the Fifth Circuit and, consequently, by the Eleventh Circuit. We hold that, under the facts presented, no special circumstances exist which would make an award of attorney’s fees unjust.

Ill

The third and final issue is whether the trial court correctly applied the Ott case. We hold that it did not. Ott provided for a qualified immunity from damages absent a finding of fraudulent, malicious, or corrupt intent on the part of the defendants. An award of attorney’s fees is an award of costs, not damages, so Ott is inapplicable to the present case. See, Hutto v. Finney, 437 U.S. 678, 695-99, 98 S.Ct. 2565, 2576-77, 57 L.Ed.2d 522, 537-39 (1978).

Additionally, § 1988 does not provide for, and the Supreme Court has specifically found that there was no legislative intent therein to provide for immunity for state and local governmental officials sued in their official capacities. Hutto, supra, 437 U.S. at 694, 98 S.Ct. at 2576, 57 L.Ed.2d at 536. The defendant commissioners were sued in their official capacities. The trial court erred in finding that the commissioners were immune from attorney’s fees.

For all the reasons discussed above, we hold that the trial court erred in denying attorney’s fees. The judgment is reversed and the case remanded for further proceedings consistent with this opinion. It is so ordered.

REVERSED AND REMANDED.

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

ALMON and SHORES, JJ., not sitting.

      . The relevant portion of 42 U.S.C. § 1988 (Supp. IV 1980) is as follows: "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

      . 42 U.S.C. § 1983 (1976): "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

      . The commissioners did not challenge in their brief the correctness of the court's finding that they violated Mrs. Davis’s equal protection rights. At the oral argument before this Court, the commissioners conceded that they had indeed violated Mrs. Davis’s rights to equal protection under the laws; therefore, we do not address this issue.

      . The Supreme Court’s statement of the substan-tiality test in United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), defined the relationship of pendency as follows: “The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” (Emphasis in original.)


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Ex parte The STATE HEALTH PLANNING AND DEVELOPMENT AGENCY, et al. (Re SHELBY COUNTY HOSPITAL BOARD, d/b/a Shelby Medical Center v. The STATE HEALTH PLANNING AND DEVELOPMENT AGENCY, et al.)
    Civ. 3807, 3807-A.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Rehearing Denied Oct. 5, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-124.
    Charles A. Graddick, Atty. Gen., and Al-gert S. Agrícola, Jr., Asst. Atty. Gen., for appellant.
    Michael S. Jackson of Melton & Espy, Montgomery, and Frank Ellis and Conrad Fowler of Wallace, Head, Ellis & Fowler, Columbiana, for appellees.
   BRADLEY, Judge.

Petitions for the writ of mandamus, prohibition, or other appropriate writ have been filed in this court by the State Health Planning and Development Agency (SHPDA) and its members, and St. Vincent’s Hospital, seeking relief from a denial of requests for a dismissal of an appeal by the Shelby County Hospital Board d/b/a Shelby Medical Center, or alternatively, a change of venue.

On November 5, 1981 Shelby Medical Center filed an application for a certificate of need for a one hundred bed satellite hospital in the Riverchase area of Shelby County, Alabama. A public hearing was set by SHPDA on this application for March 16, 1982 along with four other applicants for certificates of need (CON) for the same type facility. By agreement of the parties a public hearing on the five applications was continued to April 20, 1982. By court order these five applications were again continued for public hearing on June 22, 1982. All applications for CON for hospital facilities in the Riverchase area were denied by the SHPDA Board on June 16, 1982.

On December 16, 1981 the applications of St. Vincent's Hospital for certificates of need to build an Urgent Care Center and an Ambulatory Surgery Center were deemed complete by SHPDA. The application which proposed the Urgent Care Center was presented to the SHPDA Board at its regular meeting on March 16, 1982. Notice of the hearing of this application was sent to all interested parties as required. See § 22-21-275(5), Code 1975. After the hearing the SHPDA Board voted to approve the application and directed the issuance of a CON to St. Vincent’s allowing it to proceed with the construction of an Urgent Care Center in the Riverchase area.

On April 14, 1982, pursuant to § 22-21-275(12), Code 1975, respondent Shelby Medical Center (SMC) requested reconsideration of the March 16, 1982 ruling of the SHPDA Board on St. Vincent’s application. SMC alleged that it had not received notice of St. Vincent’s application and wanted to be heard in opposition to the project.

The reconsideration request was granted and SMC appeared at the April 20, 1982 meeting of the SHPDA Board. The SHPDA Board again voted to approve the Urgent Care Center application. On May 19, 1982 respondent SMC commenced its action in the Circuit Court of Shelby County challenging SHPDA’s grant of the CON.

On June 3, 1982 St. Vincent’s and, on June 22, 1982 SHPDA and its members, filed a motion to dismiss or, alternatively, a motion for change of venue.

St. Vincent’s application proposing an Ambulatory Surgery Center in the River-chase area was presented to the SHPDA Board on May 18,1982 and it was approved by the Board on that same day. On June 18, 1982 respondent SMC commenced its action in the Circuit Court of Shelby County challenging SHPDA’s grant of the CON.

On June 22, 1982 SHPDA and its members and, on July 9,1982 St. Vincent’s, filed a motion to dismiss or, alternatively, for a change of venue.

The circuit court denied the motions of SHPDA and St. Vincent’s in both cases on January 4, 1983. Petitioners SHPDA and its Board members aver that the trial court was manifestly in error by refusing to perform its imperative duty to grant petitioners’ clear legal right to have respondent SMC’s action either dismissed or transferred to the Circuit Court of Montgomery County.

The essence of SMC’s argument is that SHPDA should have deemed SMC’s application for a CON to build a one hundred bed satellite facility to be a competing application with St. Vincent’s applications for CONS to build the Urgent Care Center and the Ambulatory Surgical Center.

SHPDA contends that it did not deem these applications to be competing because the applications were for different types of facilities. The facilities proposed to be built by St. Vincent’s, the Ambulatory Surgical Center, and the Urgent Care Center, do not provide any acute care in-patient hospital beds whereas SMC’s facility for a one hundred bed satellite hospital does provide beds for acute in-patient care.

SMC also contends that SHPDA failed to follow its own regulations and statutory scheme by conducting the independent review of St. Vincent’s applications. SHPDA is required by law to administer the certificate of need program in a manner consistent with the State Health Plan (SHP). SHPDA contends that the SHP does not even address those kinds of facilities requested by St. Vincent’s, thus, their construction could not possibly be inconsistent with the SHP. Furthermore, in review of St. Vincent’s application, the SHPDA Board found that all other criteria were met. See § 22-21-24, 266, Code 1975.

SMC further contends that they have a statutory right to appeal in the circuit court of the county where the applicant resides. See § 22-21-275(14), Code 1975. This statutory provision, however, requires an adverse decision in order for an appeal to';lie. Respondent SMC can show no decision adverse to it from which to appeal. It is true that plaintiffs application for a CON for a one hundred bed in-patient hospital was denied on June 16, 1982, along with those of five other applicants, but at the April 20 and May 18 meetings of the SHPDA Board, which are the subject of this suit, SMC was denied nothing. In fact, the only rulings were favorable rulings on St. Vincent’s applications. SMC had not applied for a CON for an Urgent Care Center and Ambulatory Surgical Center, so it could not be classified as a competing applicant in this situation. See Lifemark Corp. v. Guissinger, 416 So.2d 1279 (La.1982).

In § 22-21-260(11), Code 1975, there is a broad definition of “applicant” as being any person who files an application for a CON, but there is no statutory definition of a competing applicant. The only reference to competing applications is by implication in § 22-21-264(5), Code 1975. SHPDA contends that it has interpreted § 22-21-264(5), Code 1975, to require that a determination be made regarding the most appropriate applicant when there are at least two applicants proposing to build similar facilities in the same health service area competing for limited resources in the SHP. SHPDA further contends that because the facility proposed by SMC was entirely different, i.e. a one hundred bed in-patient hospital, and, therefore, not a duplicative application from those proposed by St. Vincent’s, it was unnecessary to make a determination as to which applicant was the most appropriate applicant for providing the proposed health care facility, i.e. the Urgent Care Center and the Ambulatory Surgical Center. In other words SMC did not want to build the same type facility that St. Vincent’s wanted to build.

For the above reasons SMC cannot be an “applicant” nor a “competing applicant” in these cases at hand. Since SMC is not an “applicant” within the meaning of section 22-21-264(5), Code 1975, no ruling adverse to an “applicant” was made by SHPDA, and SMC has no standing to appeal under section 22-21-275(4), Code 1975.

There being no appeal by statute, the only remedy available to SMC would be by common law writ of certiorari. Phelps v. Public Service Commission, 46 Ala.App. 13, 237 So.2d 499 (Ala.Civ.App.1970). The proper forum for a review of SMC’s writ of certiorari would be the Circuit Court of Montgomery County, which is the principal place of business and the official residence of SHPDA and its officials. Alabama Youth Services Board v. Ellis, 350 So.2d 405 (Ala.1977); Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683 (1966). SMC’s petition for writ of certiorari should be transferred to the Circuit Court of Montgomery County-

The petitions for the writ of mandamus filed by SHPDA and St. Vincent’s requesting that the Honorable Harold E. Walden be directed to set aside his order denying their motions to dismiss the appeal filed by SMC are granted. The Honorable Harold E. Walden is further directed to order the petition for the writ of certiorari filed by SMC in the Circuit Court of Shelby County to be transferred to the Circuit Court of Montgomery County for further proceedings.

WRITS GRANTED.

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


text:
    Boyce Garrett ERWIN v. Janet Elizabeth LUNA. Boyce Garrett ERWIN v. STATE of Alabama DEPARTMENT OF PENSIONS AND SECURITY and Janet Luna.
    Civs. 3743, 3756.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1983.
    Rehearing Denied Oct. 5, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-125.

      M. Wayne Wheeler, Birmingham, for appellant.
    Charles H. Huey, Birmingham, for appel-lee Janet Elizabeth Luna.
    Charles A. Graddick, Atty. Gen. and Mary Lee Stapp, William Prendergast, and James E. Long, Asst. Attys. Gen., for ap-pellee State of Ala. Dept, of Pensions and Sec.
   BRADLEY, Judge.

On July 12, 1976 appellant, Boyce Garrett Erwin, and appellee Janet Luna, in a case not the subject of either appeal herein, were divorced by the Circuit Court of Jefferson County, Alabama. Thereafter, the parties lived together without the benefit of formal marriage, separating at some time prior to the birth of their daughter.

After the separation and before the birth of the child, the parties entered into a written agreement for the support of the child. This agreement also provided for the adoption of the child by persons not parties to such agreement. The agreement was ratified by the Jefferson County Circuit Court and incorporated into a final decree. Copies of signed consent forms do not appear in the record; however, appellant says that he did sign a consent form.

The present proceedings arose when ap-pellee State of Alabama Department of Pensions and Security (DPS) filed in the name of appellee Janet Luna a proceeding styled “Petition for Child Support,” alleging that appellant was the father of her child and owed a duty to support said child.

Appellant filed an answer alleging that the prior order in Jefferson County Circuit Court released appellant from any child support obligation. Appellant then amended such answer to include a cross-claim against appellee Luna based on an indemnity clause contained in the order of the Circuit Court of Jefferson County.

Thereafter, appellant filed a petition for rule nisi in Jefferson County requesting that appellee Luna be held in contempt; that she be imprisoned until she completed the adoption, and that appellant be indemnified. After a hearing the court denied appellant’s request for relief. Appellees, DPS and Luna, then filed in Winston County Circuit Court a motion for injunction asking that appellant be enjoined from proceeding further in the action filed in Jefferson County.

A hearing was held in Winston County and an order was entered therein where appellant was required to pay $15 per week to the DPS for reimbursement of payments made by the DPS in support of his minor child and another $35 per week to be paid to Luna for the support and maintenance of said minor child. The Winston County Circuit Court also decreed that it had jurisdiction and venue of this case and is the proper forum for disposition of the issues in this cause. The Winston County case and the Jefferson County case have been consolidated for review by this court.

The first issue raised in brief to which we will direct our attention concerns appellant’s contention that the Circuit Court of Winston County should not have entertained the petition filed by DPS because of the final decree entered by the Jefferson County Circuit Court. Appellant argues that if two courts have equal and concurrent jurisdiction, the court that first assumes that jurisdiction has a preference. In order for this principle to be applicable in any particular case, the second action must be between the same parties, and it should relate to the same question. This principle, however, is not a blanket prohibition, as there are exceptions such as the one recognized in Guy v. Robison, 252 Ala. 99, 39 So.2d 392 (1942).

In Guy the court restated the concurrent jurisdiction principle and then refused to apply it, recognizing that “the same rights are not involved in the two suits.” The same is true here. The Jefferson County case contained no support order. DPS, a nonparty to the Jefferson County case, commenced an independent statutory action in Winston County for child support. Thus, there are different issues, different parties, different remedies, and different questions. The concurrent jurisdiction principle, thus, does not apply. Therefore, we affirm the Winston County ruling as to jurisdiction.

Appellant’s next contention is that the Jefferson County agreement and final decree contain a waiver of support provision. Appellant urges that Luna violated the waiver of child support provision contained in the agreement later made a part of the judgment of divorce, and should have been held in contempt of court. A child’s right to receive support from his parents, however, is inherent and cannot be waived by the parents by agreement even if a waiver of support provision is included in the final decree. Willis v. Levesque, 402 So.2d 1003 (Ala.Civ.App.1981); Percer v. Percer, 370 So.2d 308 (Ala.Civ.App.), cert. denied, 370 So.2d 311 (Ala.1979).

Appellant’s argument that his child support obligations were terminated by the agreement thus has no judicial merit. Only if appellant’s parental rights had been terminated, either by adoption or otherwise, would appellant’s support obligations have ceased. Gessner v. Powell, 238 So.2d 101 (Fla.1970); Law v. Bush, 239 Ala. 612, 195 So. 885 (1940). No adoption, however, ever took place.

The Jefferson County agreement stated that termination of appellant’s parental rights would occur only if an adoption was entered into and appellee consented to the adoption. Appellee would be found in contempt only if it were shown that she violated the Jefferson County decree. Yet even though appellee failed to execute the terms of the agreement, she is excused from contempt charges because of an established rule stating that “the inability of an alleged contemner, without fault on his part, to render obedience to an order or decree of court is a good defense to a charge of contempt for the disobedience of the order or decree.” 22 A.L.R. 1256 (1923). Also:

“In McKissack v. Voorhees (1898) 119 Ala. [101], 24 So. 523, the defendant was directed by an order of court to pay over certain money to a receiver for the benefit of creditors. The defendant did not have the money in his possession or under his control at the time of the order. The court said that unless he had so held the money, or unless he had such possession and control of it after the commencement of the suit, and had disposed of it in anticipation of the decree and order, and to avoid its mandate, he would not be guilty of contempt for failing to obey the order.”

22 A.L.R. 1257 (1923).

Appellee Luna did not consent to the adoption because of circumstances beyond her control, and thus should not be held in contempt. The record indicates that appellee Luna’s parents were the parties designated to adopt the child and they are now separated and in the process of obtaining a divorce. Since appellee has no legal control over her parents, and additionally, has no control over the probate courts and cannot compel them to grant the adoption to her parents, she should not be held in contempt. Accordingly, we affirm the Jefferson County court’s denial of appellant’s motion for rule nisi.

The final issue raised that we will consider is the appellant’s argument that the Winston County court committed error in ordering him to pay $50 a week in child support. He says that his only income is $60 a week in workmen’s compensation benefits.

Shortly after the collection action was filed by DPS, appellant quit his job as a truck driver, for which he was earning about $300 a week. He then worked for his stepfather doing yard work, for which he earned $30 a day when he worked. It was while so employed that he injured one of his knees, for which he draws workmen’s compensation benefits. He is presently married and his wife works.

There is a presumption of correctness of the trial court’s judgment where the court has heard the testimony and viewed the witnesses. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (Ala.Civ. App.1975). The appellate court will not reverse the trial court’s determination in cases where the trial court has heard the testimony and viewed the witnesses unless the complaining party demonstrates from the record before the appellate court that the trial court palpably abused its discretion. Campbell v. Campbell, 377 So.2d 1098 (Ala.Civ.App.1979). In Emfinger v. Emfinger, 411 So.2d 156 (Ala.Civ.App. 1982), this court held that a child support award of $150 a week and $1.00 a week alimony was not so excessive as to constitute abuse of discretion, even though such an award constituted approximately one-half of the husband’s salary. Moreover, we have held that ability to earn, as opposed to actual earning, is a factor to be considered in making a child support award. Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979). Appellant was earning about $300 a week driving a truck until he quit shortly after the collection action was filed.

Also, there is no magical mathematical formula that can determine what is an appropriate child support award. Each case must rest on its own facts. Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437 (Ala.Civ.App.1973). We do not find that the trial court so abused its discretion in the amount of its child support award as to require it to be set aside.

Both parties have requested an attorney’s fee on appeal, and both requests are denied.

The judgments of the trial courts are affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    COMMERCIAL STANDARD INSURANCE COMPANY v. ALABAMA SURFACE MINING RECLAMATION COMMISSION.
    Civ. 3806.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1983.
    Rehearing Denied Oct. 19, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-150.

      Thomas L. Stewart of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellant.

      Paul M. Heffler, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is an action under the Alabama Surface Mining Reclamation Act of 1975, appealed from the Circuit Court of Tuscaloosa County, Alabama.

On January 12, 1981, verified complaints were filed with the Alabama Surface Mining Reclamation Commission (herein the Commission) against Hendrix & Lee, Inc. (herein Hendrix), a company which had previously been engaged in surface mining in Tuscaloosa County, Alabama. The complaints alleged violations of the Alabama Surface Mining Reclamation Act of 1975 by Hendrix.

A hearing was held January 27, 1981, by a hearing examiner. Notice of the hearing was sent to appellant, Commercial Standard Insurance Company (herein Commercial), the surety on the reclamation bonds of Hendrix for the affected mined area. Commercial appeared by counsel at the hearing.

No one appeared at the hearing on behalf of Hendrix which, prior to the issuance of the complaint, had filed a Chapter 7 petition in bankruptcy court. No testimony was taken at the hearing as the examiner determined that all the facts delineated in the verified complaints were admitted by Hendrix, due to its failure to appear.

Counsel for Commercial requested the right to present evidence, subpoena witnesses, and cross examine the inspectors who filed the complaint. That request was denied. However, the examiner allowed Commercial to object on the record that its constitutional rights to due process and equal protection were being violated, and that the examiner had no jurisdiction under § 9-16-51(a), Code of Alabama 1975.

Subsequently, the examiner issued an order stating that Hendrix, or any other party with an interest, should submit a reclamation timetable to the Commission. Failing to receive any timetables, the Commission ordered the forfeiture of the surety bonds.

Commercial appealed the order to the Jefferson County Circuit Court, pursuant to § 9-16-51(b), Code of Alabama 1975. The case was transferred to Tuscaloosa County Circuit Court. In April 1983, the Circuit Court of Tuscaloosa County, after hearing, entered judgment in favor of the Commission. Commercial appealed.

Three issues are raised on appeal: (1) lack of proper jurisdiction under § 9-16-51(a), Code 1975, (2) release of surety due to a material alteration of the original obligation, and (3) deprivation of Commercial’s federal constitutional rights of due process and equal protection when not allowed to participate in the hearing before the Commission.

In resolving the jurisdictional issue it should be noted that the Alabama Surface Mining Reclamation Act of 1975 has been repealed by Act No. 81-435, Acts of Alabama 1981, § 38. The 1975 act is applicable in this case, however, because it was in effect at the time the cause of action occurred.

Section 9-16-51(a) states in pertinent part that, “Complaints alleging a violation of the articles or rules or regulations of the Commission must, as a jurisdictional matter, be filed with the Commission within 90 days of the event or events giving rise to such complaint.” This court has already held the section required as a jurisdictional matter that a verified complaint must be filed within ninety days. Alabama Surface Mining Reclamation Commission v. Jolly, 373 So.2d 855 (Ala.Civ.App.1979).

The essential language in dispute is the meaning of “event or events” which would activate the jurisdiction of the Commission to hear a complaint. In construing a statute several rules of construction are applicable. The court is to ascertain and give effect to the legislature’s intent as expressed from the words of the statute. State v. Steel City Crane Rental, Inc., 345 So.2d 1371 (Ala.Civ.App.1977). A reasonable construction is to be given as opposed to a repressive or inconvenient one. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). A statute must be considered in its entirety, and every word in it should be made effectual where possible. Alabama State Board of Health ex rel. Baxley v. Chambers County, Alabama, 335 So.2d 653 (1976). Moreover, a statute susceptible to either of two opposing interpretations must be read in the manner which effectuates rather than frustrates the major purpose of the legislative draftsman. Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948).

The legislative intent is to provide for the safe, responsible and reasonable reclamation of lands which have been surface mined. § 9-16-32(a), Code 1975. The legislature has delineated several objectives of this legislation, one of which is to ensure the prompt reclamation of mined surfaces. § 9—16—32(i)(3), Code of Alabama 1975.

Two different interpretations of the language “event or events” are offered by the parties, neither of which is satisfactory. Commercial urges this court to construe the phrase as meaning a single act which would start the ninety-day period running. Under Commercial’s interpretation if reclamation has not commenced within six months of the date mining began, the ninety-day period for filing a complaint begins to run. To adopt Commercial’s interpretation would be unreasonable when applied to continuing and repeated violations and an extended period of operation. See League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1976).

The Commission, on the other hand, submits that the failure to reclaim the land is a continuing act which does not abate until the land is properly reclaimed and that a complaint is timely filed if done within ninety days of any day in which the land or any part thereof remains unreclaimed. To adopt the Commission’s interpretation would nullify and eliminate the limitation provision entirely. There would be a diminished incentive to press for early reclamation. There would be no end to the surety’s obligation under the bond. To remove a time limit for enforcing reclamation is to encourage delay of reclamation.

While a mining operation is ongoing, the probability of reclamation is likely to be greater because of a present financial ability of the operator to finance reclamation. The incentive and the means to reclaim are likely to decline once the coal is removed and equipment moved to other and more profitable operations. A direct and tangible risk in the Commission’s interpretation is the longer the land lies unreclaimed, the greater the probability of soil erosion and increased expenses for the ultimate reclamation. To permit the authority of the Commission to hear a complaint to extend over an unlimited time is to unreasonably frustrate the legislative intent of prompt reclamation of land.

Section 9-16-39(g) states that contouring of all affected land is to be completed “within six months from the date of the completion of operations,” unless prevented by an act of God or otherwise extended by the director for reasonable cause. The ninety-day period thereafter is a limitation on filing a complaint for failing to complete contouring. Thus, in order to give a reasonable interpretation to the statute and effectuate the legislative intent, we interpret the statutory words “event or events” found in Section 9-16-51(a) as meaning that except for an act of God or extension by the director, the outer limitation for filing a complaint would be nine months after the completion of mining operations.

Though the record does not reveal the exact date mining operations ceased, it was stipulated that the Commission had been aware of Hendrix’ failure to timely reclaim the land for as long as fourteen months before the complaint was filed. It was further stipulated that Hendrix was in violation of § 9-16-39, for a period substantially in excess of ninety days prior to the filing of the complaint. It thus appears that a timely complaint was not filed. Therefore no jurisdiction existed in the Commission, under the statute, to hear the complaint against Hendrix. The crucial question is whether Commercial, as surety, may claim the benefit of its principal’s defense to the complaint before the Commission.

Under Alabama law, a surety may make any defense not personal to the principal, that the principal can. United States Fidelity & Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 So. 958 (1911). Specifically, a surety may assert as a defense the statute of limitations available to the principal, State v. Bi-States Construction Co., 269 N.W.2d 455 (Iowa 1978), even if the principal through negligence, inadvertence, collusion, or otherwise, has not raised it. United States v. Frankini Construction Co., 139 F.Supp. 153 (D.Mass. 1956). See also, 72 C.J.S. Principal and Surety § 255 (1951). Thus, in this case, the surety, Commercial, could claim the benefit of Hendrix’ defense of the lack of jurisdiction in the Commission to entertain the complaint against it.

We find the Commission erred in denying Commercial the right to appear and defend in place of its defaulting principal. The circuit court erred in entering judgment in favor of the Commission and by holding therein that failure to reclaim is a continuing violation with no limitation upon the filing of a complaint and hearing thereon by the Commission. For want of jurisdiction in the Commission, its orders herein are void and to no effect. Commercial is due to be discharged from its obligation as surety in the instances complained of.

In view of the issue of jurisdiction being dispositive, we pretermit discussion of other issues presented.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Teresa Gayle Seals LAWSHE v. Jackie Berlin SEALS and Dottie Lou Seals.
    Civ. 3691.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.
    Rehearing Denied Nov. 16, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-253.

      Dennis J. Knizley of Alexander & Kniz-ley, Mobile, for appellant.
    J. Michael Newton, Mobile, for appellees.
   BRADLEY, Judge.

Teresa Gayle Seals Lawshe, was married to Carl Milton Seals, the son of Jackie Berlin Seals and Dottie Lou Seals, on March 9, 1979 in Mobile County, Alabama. Teresa was fifteen years old at the time. One child was born to this marriage, Jenny Lynn Seals, on November 5, 1980. Subsequent to the birth of the child, Teresa and Carl experienced a breakdown in their marital relations, which resulted in at least two separations for a substantial period of time. Teresa and Carl remained separated continuously until March of 1982 when they went to an attorney to sign divorce and adoption papers. Jackie and Dottie Seals (the grandparents) were also present at this time. Both Teresa and Carl were presented with a series of documents, including a divorce agreement, an answer and waiver, a petition for adoption, and a consent for adoption. According to the trial record, each of the documents was read by all of the parties and was explained, after which all documents were properly executed by Teresa, Carl and the grandparents. Teresa at no time told the attorney that she did not understand the consent to adoption.

Subsequent to executing the divorce and adoption papers, Teresa moved to Mississippi. A judgment of divorce was thereafter rendered and provided that the grandparents should have custody of the minor child and that Teresa and her exhusband should have reasonable rights of visitation with their child. The trial record reflects that Teresa showed little concern for the minor child after she moved to Mississippi. During the period that Teresa lived in Mississippi, the grandparents refused to allow her to take the minor child from their home, fearing for the welfare of the child. However, they did allow Teresa to visit with the child in their home.

The petition for leave to adopt and consent to adoption were filed in the Probate Court of Mobile County, Alabama on March 16, 1982 and were scheduled for hearing on May 13, 1982. Teresa retained an attorney, and he advised the court that Teresa no longer consented to the adoption. The adoption hearing was rescheduled for July 28, 1982.

After several hearings the trial court entered an order disallowing Teresa’s revocation of consent and granting an interlocutory order of adoption. The final order of adoption was entered on January 6, 1983 and Teresa appealed.

Teresa’s argument is centered upon her contention that the probate court erred in denying her attempted revocation of consent to adopt. She further contends that this consent to adoption should be revoked because it was procured through fraud, undue influence, and coercion.

The court in Williams v. Pope, 281 Ala. 416, 203 So.2d 271 (1967), held that the consent to adopt by the natural parent may not be revoked after the child has been placed in the possession of the adoptive parents except for legal cause shown or where such consent was procured through fraud, undue influence, coercion, or other improper methods. The court further stated that a subsequent unilateral change of mind by the natural parent could not amount to such legal cause.

Although Teresa alleges that the trial court erred in not accepting the revocation of consent, she failed to offer evidence sufficient to satisfy the finder of fact that any legal cause justifying revocation existed.

According to the record, Teresa, desirous of obtaining a divorce, agreed that custody of her minor child be given to the grandparents, and further voluntarily and knowingly consented to the grandparents’ petition to adopt. Teresa complains of alleged misrepresentation regarding visitation with the minor child although the undisputed testimony reveals she was permitted to visit with her child in the grandparents’ home. Additionally, Teresa asks this court to assume that she was influenced by the aforesaid misrepresentation. The record, however, is devoid of any such evidence.

Further, Teresa argues that the facts and circumstances attending the signing of the consent and the terminology of the consent to adoption reveal that she could not have understood the ramifications of her consent. Teresa’s conduct, however, would support a finding that she willingly and voluntarily assented to the adoption. Also, the record fails to show that Teresa’s consent to adopt was procured by fraud or that she was influenced in any unfair manner to sign this consent.

It is a settled principle of law that the findings of the probate court based on examination of witnesses ore tenus are presumed to be correct and will not be disturbed on appeal unless such finding is plainly and palpably erroneous. State Department of Pensions & Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978). We do not find such error here. Therefore, the trial court properly refused to allow Teresa to revoke her consent for the adoption of her child.

Teresa next asks this court to review the probate court’s decision to grant the grandparents’ petition to adopt. Alabama courts have held that jurisdiction in the probate court attaches in an adoption proceeding with the initial acknowledgement of consent by the natural parent, and, once the child is placed, remains despite attempts at revocation, so long as the child’s welfare is thereby furthered. By keeping jurisdiction the trial court is fully able to inquire into the best interest of the child, which is the foremost consideration of the court. Davis v. Turner, 337 So.2d 355 (Ala.Civ.App.), cert. denied, 337 So.2d 362 (Ala.1976); Graves v. Graves, 51 Ala.App. 601, 288 So.2d 142 (Ala.Civ.App.1973). After examining the record, we believe that the trial court could have reasonably found that Teresa had failed to properly care for her child. According to the evidence, Teresa would leave the child with the grandparents, stay out all night and not return for the child until the next day. Additionally, Teresa would smoke marijuana with friends when the child was present. Also, the trial court could have concluded that Teresa wished to be freed from the responsibility of her minor child when she willingly signed the consent to adopt, moved to Mississippi to live with her present husband and his sister, and visited the child for only a few minutes when returning to Alabama.

In contrast, it appears from the record that the grandparents have cared well for the child since December of 1981; they have provided her with a stable home, and much love. Finally, as in Davis supra, there is sufficient evidence for the trial court to find, as it did, that the child’s best interests lie with the grandparents.

The judgment of the probate court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Thaniel SMITH v. Judy SMITH.
    Civ. 3618.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
    Rehearing Denied Nov. 16, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-250.

      C.S. Whittelsey and Dewey W. Teague of Whittelsey, Ray, Tipton & Teague, Opelika, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties after an ore tenus hearing. The trial court granted custody of the two minor girls to the wife and ordered the husband to pay $75 per week as child support. The husband was granted custody of the minor son. The trial court made a division of property, in pertinent part ordering the husband to pay all the debts owed by the parties as of the date of the decree and also requiring the husband to pay the wife $3,000 so that she can obtain suitable transportation. The husband was awarded exclusive use of the marital home with the choice of either giving the wife $5,000 for her interest or selling the house and dividing the proceeds equally between the two of them.

The husband through able counsel now appeals, contending that the trial court abused its discretion in regard to the property division described above. We find no error requiring reversal and affirm.

The firmly established rule on appeal from a decree of the trial court rendered after an ore tenus hearing is that such a decree is presumed correct and will be set aside only if it is unsupported by any credible evidence and is plainly wrong. Boggan v. Boggan, 398 So.2d 710 (Ala.Civ. App.1981). Furthermore, division of property is withinjdie sound discretion of the trial court and each case must stand on its own facts. Property division does not have to be equal. Boggan v. Boggan, 398 So.2d 710 (Ala.Civ.App.1981).

Viewing the record with the above presumptions in mind, the following is revealed:

The parties were married some twenty-years except for one brief period when they were divorced. There were three children born during the marriage and at the time of the trial their ages were 11, 14, and 15.

The wife had worked eight years as a sewing machine operator and for some time as a laborer at a factory. The wife also held several other jobs for relatively short periods of time. At the time of the divorce, the wife had been working part time at Wal-Mart. Her take-home pay is approximately $90 every two weeks.

The husband earns approximately $2,000 a month and his take-home pay is in excess of $1,000 a month. The parties’ only major assets consist of the marital home and furnishings. The home is encumbered in the amount of $24,000 and there is an amount owing on the furniture. Three automobiles in the husband’s possession were repossessed after the parties separated and before the divorce hearing. Subsequent to repossession, the husband’s mother purchased one of the automobiles. The husband’s mother does not drive or have a driver’s license and she testified that her son, the husband, has exclusive use of the car.

Subsequent to their separation, the husband received the parties’ joint income tax refund, approximately $3,000. The husband testified that he had spent that money plus some $600 or $800 he borrowed during the period starting with the separation in March 1982 until June 1982; however, the husband cannot account for this money other than saying that the money was used to pay “bills.” During this time, the husband paid some $700 in support to the wife and in May 1982, he deposited $1,700 in his mother’s bank account.

It appears to this court that the trial court could have determined that the husband was somewhat uncooperative, almost evasive, and certainly unclear about his financial status. At best, the trial court had only sketchy information from which to make its decision. Specifically, the husband had trouble accounting for how he spent his salary plus certain loans and tax refunds since the time of the separation. During this time, the husband allowed the three automobiles to be repossessed. The wife has custody of two of the children and is presently without transportation. The husband has regained possession of one of the automobiles through his mother’s purchase of the car.

Considering the disparity in wages between the parties, the length of the marriage, the fact that the husband received the marital home and the wife did not receive any periodic alimony, and, further, considering that the trial court had the advantage of seeing and hearing the witnesses testify, this court finds that there was no abuse of discretion in the division of property.

We note that this court has previously held that it was not an abuse of discretion to award the wife the homeplace and the majority of the parties’ assets. Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

We further note that matters of child support, alimony, and property division are all interrelated and this court will not disturb the trial court’s action unless it is so unsupported by the evidence as to be unjust and palpably wrong. See Austin v. Austin, 408 So.2d 138 (Ala.Civ.App.1981).

In view of the above, we do not find that the trial court abused its discretion in the division of property. This is particularly so in that the wife received no periodic alimony and the husband received the house with the option of either paying the wife $5,000 for her interest or selling the house and dividing the proceeds.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Randolph E. NEAL, Jr. v. FIRST ALABAMA BANK OF HUNTSVILLE, N.A.
    Civ. 3845.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1983.
    Rehearing Denied Nov. 23, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-265.
    Randolph E. Neal, Jr., pro se.
    Paul A. Pate of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This action originated as a suit on a promissory note. Appellant, Randolph E. Neal, Jr. (Neal), was alleged therein to have executed a promissory note to First Alabama Bank of Huntsville (bank) in 1979 for the sum of $5,021.92, which note was due and unpaid.

After protracted and voluminous pre-trial discovery and pleadings in circuit court, Neal filed a bankruptcy petition in the Bankruptcy Court for the Northern District of Alabama (bankruptcy court) in November 1980. The bank by application removed the action from the circuit court to the bankruptcy court.

In September 1982, the bankruptcy trustee moved to dismiss the bankruptcy case. The bankruptcy court determined that dismissal would be in the best interest of the creditors and entered the following order:

“The above styled case and all adversary proceedings [including the suit on the note] shall be dismissed out of court, except that, in the event that a party in interest files within ten (10) days an objection to the dismissal of said case or one of said adversary proceedings and shows good cause for such objection at a hearing thereon, such case proceeding shall be retained in court.”

The bankruptcy court subsequently denied objections and made final the dismissal.

Thereafter various pleadings were filed in the circuit court by Neal, pro se, including a motion to dismiss and a counterclaim for actual and punitive damages in the amount of $64,573,942.12. In response to these pleadings the bank filed a motion in the trial court contending inter alia that the action was dismissed by the order of the bankruptcy court, and that consequently the trial court had no jurisdiction to entertain either the action or Neal’s subsequent pleadings filed therein.

The trial court, after hearing oral argument on this motion and later pleadings filed by Neal, entered a declaratory judgment as follows:

“This cause was removed by the Plaintiff [the bank] to the United States Bankruptcy Court and was there dismissed. ... Said orders did not remand the cause to this court for any further adjudication.
It is therefore ORDERED, ADJUDGED, and DECREED that this court has no jurisdiction over this cause and that this action was dismissed with prejudice by the Bankruptcy Court in its ... orders.”

Neal moved to vacate the judgment or for reconsideration. Without a hearing, oral argument or comment, the trial court denied Neal’s motion. Neal appealed to this court.

In the resolution of this case we will discuss briefly whether removal from circuit court to bankruptcy court was proper. We do so even though the power of removal is a question of federal law and such power was not questioned in the bankruptcy court.

Neal contends that proper removal was not effectuated because 28 U.S.C.A. § 1478, which allows for the removal of nonbankruptcy claims to the bankruptcy court, does not become effective until April 1, 1984. In a recent case dealing directly with this question, the court found § 1478 “to be effective during the transition period from October 1, 1979 to April 1, 1984, and that the state action may be removed to the Bankruptcy Court.” In re Greco, 3 B.R. 18, 19 (Bkrtcy.D.Hawaii 1979). The transition period refers to that period from the passage of the Bankruptcy Reform Act of 1978 to its effective date of April 1, 1984.

Section 1478(a) provides that “[A]ny party may remove any claim or cause of action in a civil action ... to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action.” The bank met the requisites for proper removal.

The present case is within the proper jurisdiction of the bankruptcy court. An action filed by the holder of a note, filed prior to the defendant-debtor’s filing of his petition in bankruptcy, is within the jurisdiction of the bankruptcy court. In re Moore, 5 B.R. 449 (Bkrtcy.D.Md.1980). Moreover, a suit on a loan agreement is properly removable to and within the jurisdiction of the bankruptcy courts as it is “related to” the debtor’s bankruptcy proceeding. In re Brothers Coal Co., 3 C.B.C. 31, 6 B.R. 567 (Bkrtcy.W.D.Va.1980). An action to collect a promissory note is clearly “related to” Neal’s bankruptcy.

Having determined that proper removal was had to the bankruptcy court, the remaining question is what effect the dismissal of the bankrupt’s case by that court had upon the adversary action removed from circuit court. Neal contends the dismissal does not bar further action in circuit court because the bankruptcy court did not specify dismissal with prejudice. The bank, on the other hand, argues the dismissal of the bankrupt’s petition effects a final disposition of the removed case, and that any further proceeding in the case is prohibited. The bank, in contending that its suit upon a note is now res judicata without a judgment in its favor, takes an unusual position to say the least.

Generally, the dismissal of a bankruptcy proceeding is “limited in its effect to return things to the status quo ante.” 9 Am.Jur.2d Bankruptcy § 391 (1980). As far as practicable a dismissal operates to restore all property rights “to the position in which they were found at the commencement of the case.” Id. This limitation upon the effect of a dismissal means that the bankruptcy court’s dismissal of the proceeding does not amount to a judicial determination of the issues which would have been covered in the case. See Jones v. National Bank of Commerce, 207 Ark. 613, 182 S.W.2d 377 (1944). In this case therer is no indication in the record that any adjudication of the issues ever occurred.

The dismissal of a case without a determination of its merits is governed by Bankruptcy Rule 120(c), which provides that unless a court order specifies otherwise, a dismissal of a case other than on the merits is without prejudice. Thus, in the present case where the dismissal of the case was not on its merits and the dismissal order did not specify whether it was with or without prejudice, the case was dismissed without prejudice under Rule 120(c). The absence of prejudice refers primarily to refiling of a new petition in bankruptcy, but must also apply to all matters pending.

Therefore, we consider the bankruptcy court’s dismissal orders were without prejudice to any matters pending therein, and in effect restored the parties to the same position they were in prior to Neal’s filing in bankruptcy court. Accordingly, we reverse the trial court’s declaratory judgment of April 28, 1983, finding that it had no jurisdiction over the cause because the action was dismissed with prejudice by the bankruptcy court. We find that the court does have jurisdiction to adjudicate the merits of the case and remand the case for further action not inconsistent with this opinion.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    W. Richard ANTHONY, II, and Janice Kay Anthony v. Clyde H. EARNEST, Donna H. Earnest, Truck Air, Inc.
    Civ. 3877.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Jan. 4, 1984.

      Jonathan E. Lyerly of Evans & Lyerly, Birmingham, for appellant.
    James R. Clifton of Stone, Patton, Kierce & Clifton, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of a motion for new trial upon the issue of damages.

On October 12, 1980, plaintiffs W. Richard Anthony II and Janice Kay Anthony executed a general sales contract with defendants, Clyde H. Earnest and Donna H. Earnest for the purchase of 1.16 acres of realty. The sales contract provided that the purchase price was to be $15,000. An additional provision of the contract, the basis of this suit, provided that “[SJeller [is] to provide public water to subject property by February 1, 1982.”

Plaintiffs filed suit on June 28, 1982, seeking specific performance, rescission of the contract or damages for breach of contract and fraud. Defendants were served with the complaint July 1, 1982. After defendants failed to respond to the complaint within thirty days, the court entered a default judgment in the amount of $14,-000 plus costs. Defendants moved to set aside the judgment. A hearing was held October 1, 1982, and the court set aside the judgment. A trial was then held on the merits.

Plaintiff testified that at the sale closing, defendant told him that the proceeds from the sale would be used to purchase pipe which was all that was needed to get water to the property being conveyed. Plaintiff also testified that defendant was to purchase pipe, and the Roupes Valley Water Authority was to lay the pipe adjacent to plaintiffs property across the highway. He further testified that the pipe has now been laid across the road from Indian Fort Lodge down past the subdivision where his lot is located. All that remains to be completed is for the pipe to be laid across the road and for the system to be tested.

Plaintiff introduced evidence through a real estate appraiser that the lot was currently worth $7,450, while a comparable nearby piece of property, having water and sewage, sold for $14,500. Defendant testified that he used $2,600 from the sale of the property to pay for water pipe. He further stated that though he encouraged Roupes Valley to install the pipe, he did not have a contract with Roupes Valley to ht stall pipe or bring water to the property at the time plaintiffs purchased it.

Judgment was rendered for plaintiff in the amount of $7,550. Defendants moved to alter, amend or vacate the decree, for relief from judgment or alternatively for new trial,' averring newly discovered evidence. The court granted defendants a new trial. Plaintiffs appeal.

The dispositive issue presented by the appeal is whether events occurring subsequent to trial qualify as newly discovered evidence warranting a new trial under Rule 59, A.R.Civ.P.

The new trial was granted only as to the issue of damages. Committee comments under Rule 59, A.R.Civ.P. indicate that in nonjury cases a new trial may be granted on part, rather than all, of the issues where such action is appropriate. According to the comments a partial new trial is appropriate where justice demands such and where the issues are severable without confusion or injustice resulting to the parties.

The granting of a new trial, though generally a matter within the discretion of the trial judge, Hill v. Cherry, 379 So.2d 590 (Ala.1980), is not without limits. All of the authority under Rule 59 of the Federal Rules of Civil Procedure limits the granting of a new trial based on newly discovered evidence to undiscovered facts existing at the time of trial. Ryan v. U.S. Lines Co., 303 F.2d 430 (2d Cir.1962). “Newly discovered evidence must be of facts existing at the time of trial. The moving party must have been excusably ignorant of the facts despite using due diligence to learn about them.” 8 C. Wright & A. Miller, Federal Practice and Procedure: Civ. § 2808 (1973). See also, Washington Mobilization Committee v. Jefferson, 617 F.2d 848 (D.C.Cir.1980).

In the present case the newly discovered evidence concerned undiscovered facts occurring subsequent to the trial. The court’s order provided, inter alia, “[tjhat since the rendition of the final decree of February 4, 1983, the Defendant has discovered that the Roupes Valley Water Authority has completed the water line to the Plaintiff's property.” (Emphasis supplied.) Thus, since the newly discovered evidence occurred subsequent to the trial, a new trial under Rule 59, A.R.Civ.P. is not warranted. We therefore reverse the trial court’s grant of a new trial.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ„ concur.


author: PER CURIAM.

text:
    Robert BELL v. Mary Frances BELL.
    Civ. 3679.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1983.

      Steven E. Haddock of Aldridge & Haddock, Decatur, for appellant.
    Dan F. Nelson of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellee.
   PER CURIAM.

The husband appeals from the trial court’s refusal to order a reduction in alimony upon the husband’s modification petition.

After having considered the applicable case law and the decree entered by the trial court, this court must reverse in part the judgment entered below and remand in part for further proceedings.

There is evidence that reveals the following: The parties, after having been married twenty-six years, were divorced by a decree of the Circuit Court of Morgan County on July 17, 1981. At the time of the divorce, the forty-nine-year-old husband was a partner in an established Decatur, Alabama accounting firm, with gross earnings for 1980 in excess of $78,000. The wife, on the other hand, had not worked outside the home since the early part of the marriage and had numerous medical problems. The decree divorcing the couple incorporated the parties’ agreement as.to the terms of alimony. Under that agreement, the husband was obligated to make monthly payments totaling $1,743 to or on behalf of the wife. That figure includes $1,000 of periodic alimony, $500 for a house payment and utilities, and various amounts for the wife’s country club dues and for premiums due on hospitalization, major medical, and life insurance policies benefiting the wife.

Within two months after the divorce, the husband’s relationship with the other partners in his accounting firm had deteriorated. Because of his marital difficulties and claims by the other partners that his productivity had decreased, the husband voluntarily left the partnership on September 1, 1981. He then went into solo practice as a public accountant, grossing only $3,000 for the last four months of 1981 and incurring substantial start-up and overhead expenses.

In the first ten months of 1982 (which preceded the modification hearing), the husband grossed $37,000 from his solo practice. Based on this figure, he projected that his 1982 gross earnings would reach only fifty percent of his gross earnings for 1980, his last full year in the partnership before the divorce. In addition to this marked drop in gross income, the husband substantially increased his debt obligations, as he borrowed in excess of $50,000 for payment of a partnership indebtedness upon its dissolution, business start-up and overhead costs, and personal living expenses. At the modification hearing the husband estimated that his net worth and estate had decreased from approximately $250,000 at the time of the divorce to approximately $87,000 a year later.

In seeking modification of the monthly alimony figure, the husband contended that his current financial status, in particular his lack of liquidity, rendered him unable to meet the $1,743 obligation. The husband did, however, concede that he is currently receiving $1,934 monthly in fixed income from sources outside his solo practice ($1,599 for his interest in the partnership and in partnership real estate and $335 military disability).

Based upon these facts, the trial court made the following order:

“The Court finds from a consideration of all the evidence the following:
“1. The petitioner Robert Bell’s business income has changed in character and substance to a sufficient degree to afford certain modifications. The petitioner is still in a position to continue to make those payments originally agreed to, however, it appears that he does not have sufficient liquidity to continue to pay without some sacrifice to his economic position. It appears to the Court that the financial wellbeing of both parties could possibly be adversely affected. “The Court does not find sufficient evidence before the Court to warrant a forgiveness of the obligations which the petitioner voluntarily incurred at the time of divorce. The Court is of the opinion that the petitioner should be afforded an opportunity to defer certain of his obligations (at substantial interest) should he consider it expedient from a business standpoint.
“2. The respondent is entitled to recover an attorney’s fee for a portion of the services performed by her attorney of record.
“It is, therefore,
“CONSIDERED, ORDERED AND ADJUDGED that:
“The petitioner, Robert Bell, shall continue to pay all amounts previously agreed to and ordered, or at his election, he may defer the monthly temporary alimony installments in the amount of $1,000.00 a month to the extent of reducing these installments to $750.00 a month, thereby deferring $250.00 of each $1,000 installment for a period of two (2) years. At the end of two (2) years he will once more pay at the rate of $1,000.00 a month.
“All amounts of deferred alimony will accrue to the interest which Mary Frances Bell now owns in the jointly owned home. Interest at the rate of fifteen percent (15%) per annum shall accrue on all deferred payment. This interest will be compounded annually. All deferred amounts shall be secured by a lien against the principal dwelling house described in the original judgment which is yet to be sold in accordance with the terms of the original judgment. At the time of sale, all deferred payments (with interest) shall be paid from the proceeds of the dwelling house.
“Robert Bell shall advise the Clerk within thirty (30) days if he proposes to exercise this option or continue to pay according to the original judgment.”

The court also awarded the wife an attorney fee of $500.

On appeal of this judgment, the husband makes the following three arguments: (1) that the lower court erred when, after finding that the husband’s financial position had changed substantially, it refused to order a reduction in the periodic alimony earlier ordered; (2) that the alternative payment structure set up by the court was in the nature of a non-modifiable judgment or alimony in gross; and (3) that the court had no authority for awarding the wife an attorney’s fee. Countering the husband’s arguments, the wife contends that there has been no abuse of discretion and that she is entitled to attorney fees for services rendered on the instant appeal.

The principles generally applicable to periodic alimony modification cases are as follows: The amount fixed as periodic alimony, like child support, is always subject to modification, Jernigan v. Jerni gan, 335 So.2d 178 (Ala.Civ.App.1976), upon showing of material changed circumstances of the parties, Cooper v. Cooper, 401 So.2d 99 (Ala.Civ.App.1981). A court will not continue to require a spouse to meet payments which are clearly excessive. Menton v. Menton, 405 So.2d 940 (Ala.Civ. App.), cert. denied, 405 So.2d 942 (Ala.1981). However, the burden of proving material change in circumstances sufficient to warrant modification is on the petitioner, Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979).

A modification based upon changed circumstances is largely within the discretion of the trial court, and the exercise of such discretion will not be upset on appeal absent such an abuse of discretion as to be plainly and palpably wrong. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App. 1979).

In reviewing the decree of the learned and distinguished trial judge, this court is faced with several inconsistencies. For example, while the court found that the husband’s income “has changed in character and substance to a sufficient degree to afford certain modifications” and that the husband “does not have sufficient liquidity to continue to pay without some sacrifice to his economic position,” it denied the requested reduction, saying that “petitioner is still in a position to continue to make those payments originally agreed to” as there was insufficient evidence “to warrant a forgiveness of the obligations” imposed by the original divorce decree.

In view of the above, this court is of the opinion the case should be remanded to the trial court with the direction that the trial court specifically determine whether a material change in circumstances has occurred and enter an appropriate order after such determination.

Without in any way implying that the trial court should determine that there has been a material change in circumstances, we should caution that if such a determination is in fact made, the petitioner’s monetary obligations under the original divorce decree should be reduced, not merely deferred. The alternative payment plan devised by the lower court in the present case is remarkably similar to child support payments fashioned by the trial court in Forlini v. Forlini, [Ms. Nov. 9, 1983] (Ala.Civ. App.1983), a case recently decided by this court. In Forlini the trial court found that the husband was unable to meet monthly child support payments previously set at $980, and reset the husband’s current obligation at $500. However, instead of forgiving the remaining $480, the court provided that the $480 would continue to accrue monthly and that the husband might eventually satisfy such accrued obligation upon selling some of his property or obtaining a higher salary.

In reversing the trial court’s failure to forgive the $480 excess, we said the following:

“[W]e find neither evidence nor equity to support the ordered accrual of $480 per month. The trial court ordering a sum for child support is limited by the present ability of the parent to pay. It may not speculate upon a possible future ability to satisfy an accumulated judgment. Each such unpaid monthly amount becomes a final judgment upon which execution may be obtained at any time. Osborne v. Osborne, 326 So.2d 766 (Ala.Civ. App.1976). We know of no authority for basing an order for child support upon any criteria other than present ability to pay. It was said in Murray v. Murray, 84 Ala. 363, 4 So. 239 (1887), ‘Maintenance not beyond the husband’s means, is all the law can enforce.’ It is to be remembered that modification may be had subsequent to an increased ability to pay. Boswell v. Boswell, [280 Ala. 53, 189 So.2d 854 (Ala.1966) ], citing Roubicek v. Roubicek, 246 Ala. 442, 451, 21 So.2d 244, 252 (1945).”

(Emphasis in original.)

Because of the availability of upward modification in periodic alimony cases should a spouse’s income be restored to its previous level, we think the Forlini reasoning should be equally applicable to cases involving modification of periodic alimony.

In light of this application of Forlini, we need not address the husband’s second contention, that the alternative payment plan set up by the court is impermissible because it is in the nature of a non-modifiable judgment or alimony in gross. However, we would note that in modifying periodic alimony the trial court does not have the option of altering a property division previously ordered; that is, increasing the wife’s interest in the family residence, as a property division, being in the nature of alimony in gross, is not modifiable. See, e.g., Cherry v. Cherry, 422 So.2d 784 (Ala.Civ. App.1982).

The final issue is that of attorney fees. The husband contends that the trial court erred in granting the wife the sum of $500 for attorney fees because she made no request for them and because the issue was not tried by the implied or express consent of the parties. The wife counters, alleging that the attorney fee request was made in an off-the-record meeting in the trial judge’s chambers and furthermore, that the fees were allowable under § 30-2-54, Ala.Code (1975), because the husband was found to be in contempt.

Attorney fees are ordinarily available in modification proceedings, the rationale being that the modification proceeding is merely an extension of the original divorce action. See, e.g., Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978); Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App. 1976). However, before such fees can be awarded it must appear that a request for fees had been made or that the issue has been tried by the express or implied consent of the parties. See, e.g., Kelly v. Kelly, 414 So.2d 126 (Ala.Civ.App.1982); Lacy v. Lacy, 403 So.2d 251, 255 (Ala.Civ. App.1981). Under the statute cited by the wife, attorney fees are also made available in actions for the recovery of past-due alimony payments, but only if a contempt of court citation has been made against the party in arrears. Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978). In Scott v. Scott, 375 So.2d 797 (Ala.Civ.App.1979), the husband was behind in his alimony payments. The court allowed him to cure the deficiency, and thereafter the court specifically found that the husband was not in contempt. However, it awarded attorney fees in favor of the wife. On appeal, the trial court’s award of attorney fees was reversed, this court saying that attorney fees are not available where no contempt citation is made.

After reviewing the record, this court is of the opinion that the contempt statute cannot be looked to as authority for the fees awarded. As the wife points out, at the August 4, 1981, hearing in this matter, the trial judge did express his intent to enter an order, later that day, finding the husband in contempt and giving the husband thirty days to purge the contempt before the modification issue was taken up. However, the order actually entered merely continued the cause, reserving judgment on the contempt issue for a later hearing. At the later hearing the court commented that the husband was not in contempt, and the order entered later that day did not contain a contempt citation. We believe these facts bring the case squarely within the Scott case cited above, and that the attorney fee award is not supportable on this ground.

Likewise, we find that attorney fees are not available as incidental to the modification proceeding since the record is devoid of any evidence as to a request and since there is no evidence showing that the issue was tried by the implied or express consent of the parties. Lacy v. Lacy, 403 So.2d 251 (Ala.Civ.App.1981). We cannot rely upon a request for attorney fees allegedly made in an off-the-record conference, as on appeal we are bound by the evidence contained in the record. Birmingham S.R. v. McDonald, 339 So.2d 1004 (Ala.1976); Hinds v. Hinds, 415 So.2d 1122 (Ala.Civ.App.1982). Likewise, assertions in the briefs of parties cannot be relied upon to supplement the record. See e.g., Geer Brothers, Inc. v. Walker, 416 So.2d 1045 (Ala.Civ.App.1982).

Accordingly, in view of the above, at this point we have no alternative but to find that the award of attorney fees is due to be reversed. The remainder of the trial court’s judgment is remanded for further proceedings not inconsistent with this opinion. The husband has filed with this court a motion to strike the brief of appellee-wife. The motion is denied.

The wife has requested an attorney’s fee for representation on appeal. In view of the nature of our remandment, the request is denied.

The case is due to be reversed in part and remanded in part.

REVERSED AND REMANDED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    James LONGMIRE v. STATE.
    3 Div. 445.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.

      Raymond Johnson, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Robert S. Thompson, Sp. Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

On June 11, 1979, the appellant was convicted of robbery and sentenced to thirty years' imprisonment. He failed to appeal his conviction, but on April 6, 1981, filed a petition for writ of error coram nobis contending that he was denied his right to appeal. His petition cited as authority Daniels v. Alabama, 487 F.2d 887 (5th Cir.1973), asking “that the court discharge petitioner, grant him a new trial, or grant him an appeal.”

On May 5, 1981, by agreement of the prosecution and the defense, the trial court purported to grant Longmire an appeal to this court. On May 20, 1981, counsel for appellant filed a motion in the trial court stating that the order of May 5 was not in compliance with our holding in Goolsby v. State, 374 So.2d 927 (Ala.Cr.App.1978-79), and moved the trial court to grant him a new trial under his petition for writ of error coram nobis.

The trial court set aside its order of May 5, denied a new trial, and ordered a further hearing on the petition. After that hearing the trial court, on June 29, found that at the time of sentencing the appellant was aware that he had a right to appeal and that he “expressed to his court appointed trial counsel immediately after trial his desire to appeal his conviction.” The trial court further found that appellant’s sister discussed the appeal with appellant’s court appointed trial counsel, but never retained him. Likewise, she discussed the cost of a trial transcript with the court, reporter, but “did not consummate an agreement.” The trial court found that appellant was unaware that appeal counsel and a transcript would be furnished him at no cost if he was found to be an indigent. The trial court found that “[fjormal notice of appeal was not taken by defendant within the time prescribed by law.”

The order of the trial court on June 29 was entered as follows:

' “1. The Petition for Writ of Error Coram Nobis is due to be granted because petitioner, through no fault of his own, failed to perfect his appeal within the time prescribed by law.
“2. A complete transcript of the original trial proceedings shall be made and the same timely filed in the Court of Criminal Appeals in accordance with the Alabama Rules of Appellate Procedure (Baldwin v. State, [Ala.Cr.App.] [342] So.2d 939).”

Appellant therefore is attempting to obtain a review of his conviction via the procedure used in Baldwin v. State, supra.

This court finds the appellant’s reliance upon Baldwin and Daniels, supra, to be misplaced.

I

In Baldwin, supra, the appellant had given timely notice of appeal. He had failed to timely file a trial transcript in this court. There, upon a finding that the failure to file the transcript was due to no fault of the appellant, this court allowed the filing of the transcript on appeal.

The difference between the instant case and Baldwin is that no notice of appeal was filed in the instant case within forty-two days of entry of sentence, whereas in Baldwin such notice was filed. Rule 4, Alabama Rules of Appellate Procedure, makes the timely filing of notice of appeal jurisdictional. “The timely filing of a notice of appeal with the trial clerk is the only jurisdictional act required in the entire appellate process.” Preface to ARAP, Alabama. Code 1975, vol. 23, page 417. See Turner v. State, 365 So.2d 335 (Ala.Cr. App.), cert. denied, 365 So.2d 336 (Ala.1978). For good cause shown, an appellate court may suspend any of the rules except the jurisdictional rule as to the timely filing of a notice of appeal. See Rule 2(b), ARAP.

In Goolsby, supra, we stated that “[a]n appeal is deemed ‘perfected’ if the defendant upon rendition of judgment expresses a desire to appeal.” Appellant apparently believes that such an expression to his counsel was sufficient. We hold otherwise. The expression of a desire to appeal must be made in conformity to Rule 3(a)(2), ARAP, by either “filing an oral notice of appeal at the time of sentencing which shall be entered of record or by filing a written notice of appeal with the clerk of the trial court.” (Emphasis added.)

II

Daniels v. Alabama, supra, is not authority for granting an out-of-time appeal. In that case the Circuit Court of Appeals affirmed an order of a federal district court granting Daniels federal ha-beas corpus relief “subject to the right of the State to retry him within six months, unless Alabama provides him with ‘effective out-of-time appellate consideration of his conviction and sentence.’ ” The federal court order did not, and legally could not, order this court to grant an “out-of-time appeal.” The federal habeas corpus relief was the discharge of the prisoner subject to the right of the state to retry him, or give him an out-of-time appeal. The federal court did not go into the matter of whether such an appeal is permissible under state law, but properly left it to state determination as to which alternative it selected to that of discharging the prisoner.

Under Alabama law only one alternative to release would lie in a case where no notice of appeal was timely filed. That alternative would be the right of the state to retry the defendant because, as set out clearly in Goolsby, supra, and cases cited therein, “there is no such creature as an ‘out-of-time appeal’ in this state.”

III

The appellant is not appealing from an order denying him coram nobis relief. He is appealing from an order granting his petition for writ of error coram nobis, but which purports to grant relief not appropriate to that writ.

The relief granted is no more than a subterfuge for granting an out-of-time appeal on the original conviction which we cannot entertain. A petition for writ of coram nobis is in effect a delayed motion for a new trial based upon newly discovered evidence and is not a substitute for an appeal. Groce v. State, 48 Ala.App. 709, 267 So.2d 499 (1972). The writ allows the trial judge to grant a new trial because of an error of fact which, if known at trial, would have prevented rendition of judgment. Lewis v. State, 367 So.2d 542 (Ala.Cr.App.), cert. denied, 367 So.2d 547 (Ala. 1978). The petition must be based upon facts which were not known and could not have been discovered by exercise of due diligence at the time of trial. Summers v. State, 866 So.2d 336 (Ala.Cr.App.), cert. denied, 366 So.2d 346 (Ala.1978).

The trial court may only grant a new trial on the instant petition for writ of error coram nobis or deny the writ. Likewise, the appellant cannot appeal a favorable ruling granting his petition. We find the petition was granted, but the relief granted was inappropriate. For all the reasons stated hereinabove, we find no authority to entertain an appeal in this case.

APPEAL DISMISSED.

All the Judges concur.